# Commonwealth v. Delbridge > Supreme Court of Pennsylvania · September 25, 2003 · 578 Pa. 641 URL: https://www.frixlaw.com/law-library/cases/9755676 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Gerald John DELBRIDGE, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** September 25, 2003 - **Citations:** 578 Pa. 641; 855 A.2d 27; 2003 Pa. LEXIS 1754 - **Precedential status:** Published - **Opinion:** Concurring in part by Eakin - **Judges:** Zappala, Cappy, Castille, Nigro, Newman, Saylor, Eakin, Former - **Cited by:** 154 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755676 ## How later opinions describe it (automated extraction) - stating that "[t]his court granted allocatur primarily to consider whether taint is a legitimate avenue of exploration regarding the competency of a child witness. The grant of allocatur extended to related questions raised by Appellant within the context of the competency hea… - stating that “[d]uring the hearing[,] the party alleging taint bears the burden of production of evidence of taint and the burden of persuasion to show taint by clear and convincing evidence.” - noting that the admissibility of out- of-court statements under the tender years hearsay exception “is determined by assessing the particularized guarantees of trustworthiness surrounding the circumstances under which the statements were uttered to the person who is testifying.” ## Opinion text Justice EAKIN, concurring and dissenting. I agree that any witness (child or not), tainted by the “implantation of false memories or distortion of actual memories through improper and suggestive interview techniques,” may be incompetent. If there is a competency hearing because of the age of the witness, the logical time to explore taint, once there is a preliminary showing taint actually occurred, is at that hearing. However, I disagree that “taint” always goes to competency; I also take issue on the use of expert witnesses on what is really a credibility issue. Finally, I disagree that the “evidence” here justifies a hearing in the first place. The word “taint” may be used as a verb, a noun, or an adjective. It may be used to refer to the process of tainting, or to the result of that process; in the context of child abuse, it may mean the investigation was tainted, which may or may not mean the witness was tainted. Unfortunately many of the cases do not make this distinction clear, which (with apologies) taints the analysis. A tainted process may affect credibility, but it does not render the victim or witness tainted or incompetent unless it denies the ability to perceive, understand, or communicate truthfully. If a child has faced interview after interview, but remains steadfast, the child cannot be precluded from testifying simply because the investigation was deemed tainted. Legitimizing the notion that establishing some taint of process proves taint of the witness, and hence incompetence per se, we *680 allow the total disqualification of witnesses whose competence is in fact unaffected. Conversely, if the witness is not capable of perceiving, understanding, or communicating truthfully, it matters not if the reason is age, mental capacity, taint of process, or any other factor. The true issue is whether the witness, not the process, is tainted to the point of being incompetent. I believe the existing procedure deals with this; once competence is properly at issue, the Commonwealth must prove the requisite elements of perception and understanding, and the challenging party may offer evidence to dispute that. Creating an additional burden of addressing taint as a separate notion simply muddies the waters with fashionable jargon; established legal procedures and concepts can address the claim. Taint may be an “emerging” notion, but it is nothing but a variation of traditionally recognized considerations; it does not require departure from traditional and tested principles for evaluating witnesses. 1 While the majority lets the need for expert testimony to the discretion of the trial court, it notes that this Court has not permitted juries in child abuse cases to hear expert testimony on reasons children delay reporting, or about post-assault behavior patterns. I must assume that expert opinions on taint are likewise to be inadmissible at trial; if expertise on taint is allowed at trial, then other expertise on the subject of credibility is also appropriate. Pretrial, if taint is a recognized subject for opinion evidence, then certainly areas such as Child Sexual Abuse Syndrome, as recognized a phenomenon as taint, must also be proper subjects of expert testimony. The admission of expert testimony is not determined by which side wishes to address the issue; the search for credibility or competence is only served by allowing, or disallowing, experts *681 on all issues affecting testimony of abused children. As I believe this is really a credibility matter, I would opt to disallow opinion testimony on the point. The factors the majority suggests comprise a threshold showing here are these: (1) the age of the children, which make their memories “suspect merely because of their tender years,” Majority Opinion, at 20; (2) their mother was abused sexually as a child; (3) she had sole custody; (4) her prior report of sexual abuse, which was held “unfounded”; and (5) the presence of Trooper Zellner during interviews. I believe these factors simply do not establish anything approaching a tainted process, much less one that tainted this witness, and find no basis for further examination of the issue. First, the age of the children has little to do with taint. Their age may be relevant, but if a child’s ability to remember is “suspect” because of age, as the majority states, that is a far cry from suggesting a false memory has actually been implanted. Children are presumed to be competent, and the bar establishing that competence is low. See Commonwealth v. Washington, 554 Pa. 559 , 722 A.2d 643, 646 (1998) (citing Rosche v. McCoy, 397 Pa. 615 , 156 A.2d 307 (1959)). Age may allow a naive child to be more easily tainted than a cynical adult, but age has nothing to do with whether a person was tainted. The majority next notes Mrs. Delbridge was sexually abused as a child, and had made a prior complaint that someone may have sexually abused AD when she was two years old. It appears we are to infer this is a potential case of crying wolf by the mother of the victim, but again no reason is given to suspect actual taint. Mrs. Delbridge may be understandably sensitive to signs of sexual abuse, but how does this suggest she did anything to implant false memories in her children? The majority suggests “her experiences may have influenced the course of the investigation,” but every witness in every case from shoplifting to murder has experiences which affect (taint?) their involvement in an investigation. Even if she had run the investigation all by herself, the majority does not tell us why we should think a victim of *682 sexual abuse will implant false memories of victimization in others. This is plain and simple innuendo, and borders on an offensive stereotyping of victims. It is not based on evidence, and is no reason to suspect taint. The prior allegation of abuse was dismissed as unfounded, at a time when AD was two years old and incapable of testifying; that case was hardly capable of being “founded” absent physical injury. Mere dismissal, without more, does not suggest the report was fabricated; the causes of the report were behavioral changes of the child, which were established by persons other than Mrs. Delbridge. Rather than support a suspicion she tainted the child, this prior report actually belies fabrication or implantation of false memory. If this implies she cried wolf, there is equal independent evidence there really was a wolf. The majority also notes Mrs. Delbridge’s influence over the children may have been enhanced because she had sole custody of them when the abuse was uncovered. Again we are to infer this common fact of life-after-divorce somehow implies she implanted specific memories of abuse in the minds of her children. Motive to dislike appellant is certainly understandable—witness the PFA Order—but a reason to dislike does not equal evidence there was action on that dislike, much less action of this nature. She was abused as a child, abused by appellant to the point of getting a PFA, protected her child by reporting prior behavioral changes that indicated abuse, won sole custody of the children—why does any of this lead to the suspicion she implanted false memories in the children? The majority acknowledges appellant’s claim that Trooper Zellner’s presence at the interviews as a “guardian angel” supports the inference that appellant was vilified and the testimony tainted. Why this supports such a spurious inference, we are not told. At most, the record states Trooper Zellner told the child not to fear appellant, but does this support an inference appellant was “vilified”? Besides, the factual memories of the children, the very root of the allegations, necessarily preceded the trooper’s involvement—even if Trooper Zellner had spoken ill of appellant, something not of *683 record, does this show the children were tainted after the fact? There is no allegation their testimony changed after his appearance; the very complaint is that the process implanted memories in the children, but the memory preceded the trooper. Having a protector with them does not imply the protector acted improperly or suggestively, or that he vilified anyone. 2 In sum, there is not one fact that would logically suggest anyone did anything to taint these children. All of the listed factors are at most matters of credibility, reasons a skeptic might question the side denying taint, but they do nothing to affirmatively show there was taint in the first place. One is reminded of the rule of corpus delicti; there must be some independent evidence suggesting that a crime actually happened before the supporting credibility reasons allow the factfinder to believe and convict. Likewise, we cannot examine reasons to believe an allegation of tainting a witness until we have independent reason to believe that something approaching taint actually resulted. The factors cited are bootstrapping at its best, and I do not find the threshold met here. Accordingly, I must respectfully dissent from the portion of the opinion of my colleagues which expresses a contrary view. . The classic case demonstrating a tainted witness was the Triangle Shirtwaist case. There, cross-examination revealed that a key eyewitness had memorized her story of what happened, and on the stand was merely repeating the story, time after time, word for word. This was a question of credibility, though, not competence. The witness, though clearly tainted, was merely incredible, not incompetent. See People v. Harris, et al., 74 Misc. 353 , 134 N.Y.S. 409 (1911). . It is ironic that the basis for the claim of taint is suggestive interviewing, yet the solution to the problem is another round of questioning which may extend to the incident itself, including cross-examination, which is questioning that, by definition, suggests answers. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755676. Public record. Not legal advice.