Petition for Writ of Certiorari — Dannie Joe Farnum, Petitioner v. Scott Frauenheim, Warden

Supreme Court briefSep 27, 2019

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No. _______

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________

DANNIE JOE FARNUM,

Petitioner,

SCOTT FRAUENHEIM, Warden,

Respondent.

________________________

On Petition For Writ of Certiorari

To The United States Court of Appeals

For the Ninth Circuit

_________________________

PETITION FOR WRIT OF CERTIORARI

TARIK S. ADLAI

LAW OFFICES OF TARIK S. ADLAI

65 No. Raymond Avenue

Suite 320

Pasadena, California 91103

(626) 578-7294

Counsel for Petitioner

QUESTIONS PRESENTED

Whether the trial court violated a defendant’s right to due process by

admitting the prior statements of a 4 year old child without any inquiry into the

child’s competency when the child treated the interview “as if it was a game,” said

“it was better to tell a lie” than the truth, and where the prosecutor conceded the

child “may not know the difference between truth and a lie.”

Whether the competency finding of a 6 year old comports with due

process where the child never independently expressed any appreciation of the

difference between truth and lies nor endorsed any duty to tell the truth except in

response to leading questions and never disavowed her previously-expressed belief

that it was better to lie that tell the truth.

LIST OF PARTIES

The caption of the case on the cover page contains the names of all the

parties.

RELATED PROCEEDINGS

Riverside County Superior Court:

People v. Farnum, No. SWF027707 (Dec. 16, 2011)

California Court of Appeal, Fourth Appellate District, Division One:

People v. Farnum, No. D066353 (Jan. 28, 2015)

California Supreme Court:

People v. Farnum, No. S224998 (Apr. 22, 2015)

U.S. District Court for the Central District of California:

Farnum v. Beard, No. 5:15-cv-02078-GW-E (Oct. 25, 2016)

U.S. Court of Appeals for the Ninth Circuit:

Farnum v. Frauenheim, No. 16-56719 (Apr. 23, 2019)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PETITION FOR WRIT OF CERTIORARI.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS. . . . . . . . . . . 3

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of the Offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jane Doe’s Initial Unrecorded 2008 Statement. . . . . . . . . . . . . . . . . . . 5

Jane Doe’s Subsequent, Recorded Statements. . . . . . . . . . . . . . . . . . . . 6

State Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Trial Court Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Pretrial Phase.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

(1)

Admissibility of Jane Doe’s 2008 statements. . . . . 9

(2)

The in limine competency hearing.. . . . . . . . . . . . 10

Jury Trial Phase.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

(1)

General Background. . . . . . . . . . . . . . . . . . . . . . . 12

(2)

Events of November 10, 2008.. . . . . . . . . . . . . . . . 13

(3)

Jane Doe’s Trial Testimony. . . . . . . . . . . . . . . . . . 16

(4)

Trial Judge’s Findings re 2008 Statements. . . . . 17

(5)

Physical and Forensic Testimony. . . . . . . . . . . . . 19

(6)

Closing argument.. . . . . . . . . . . . . . . . . . . . . . . . . 20

State Appellate and Habeas Proceedings. . . . . . . . . . . . 20

REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

The Petition Raises an Federal Question of National Importance. . . . . . . . 22

II.

Doe’s Statements Should Have Been Excluded as Incompetent and

Unreliable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

III.

As the Prosecutor Conceded, Doe Was Not Competent at the

Time of Her Recorded Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Doe Was Not Competent at the 2011 Trial. . . . . . . . . . . . . . . . . . . . . 34

This Case is a Good Vehicle for the Questions Presented. . . . . . . . . . . . . . . 37

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

INDEX TO APPENDICES

Appendix A

Memorandum, Ninth Circuit Court of Appeals, No.

16-56719, filed Apr. 23, 2019. . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B

Order Accepting Findings, Conclusions, and Recommendations

of United States Magistrate Judge, United States District Court

for the Central District of California, No. ED CV 15-2078GW(E), filed Oct. 25, 2016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6a

Appendix C

Report and Recommendation of United States Magistrate Judge,

United States District Court for the Central District of

California, No. ED CV 15-2078-GW(E), filed Feb. 29, 2016. . . 8a

Appendix D

Order denying petition for rehearing, Ninth Circuit

Court of Appeals, No. 16-56719, filed Jul. 2, 2019. . . . . . . . . 68a

Appendix E

Opinion, California Court of Appeal, No. D066353,

filed Jan. 28, 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69a

Appendix F

Order denying petition for review, California Supreme

Court, No. S224998, filed Oct. 29, 2015. . . . . . . . . . . . . . . . . 111a

TABLE OF AUTHORITIES

Cases

Arizona v. Youngblood,

488 U.S. 51 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Ball v. State,

188 Tenn. 255, 219 S.W.2d 166 (1949).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Blackburn v. Alabama,

361 U.S. 199 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Clark v. Finnegan,

127 Iowa 644, 103 N.W. 970 (1905). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Commonwealth v. AdonSoto,

475 Mass. 497, 58 N.E.3d 305 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Commonwealth v. Brusgulis,

398 Mass. 325, 496 N.E.2d 652 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 28

Commonwealth v. Delbridge,

578 Pa. 641, 855 A.2d 27 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Cone v. Bell,

556 U.S. 449 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Coy v. Iowa,

487 U.S. 1012 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

De Groot v. Van Akkeren,

225 Wis. 105, 273 N.W. 725 (1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Delacruz v. State,

734 So.2d 1116 (Fla. Ct. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

District of Columbia v. Arms,

107 U.S. (17 Otto) 519 (1883). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Dowling v. United States,

493 U.S. 342 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vii

Duncan v. Henry,

513 U.S. 364 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Ex parte Thompson,

53 S.W.3d 416 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Fields v. State,

500 S.W.2d 500 (Tex. Crim. App. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Harris v. Thompson,

698 F.3d 609 (7th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26

Hawaii v. Ah Wong,

10 Haw. 524 (1896). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Idaho v. Wright,

497 U.S. 805 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

In re A.H.B.,

491 A.2d 490 (D.C. App. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

J.D.B. v. North Carolina,

564 U.S. 261 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 30, 35

Johnson v. United States,

364 A.2d 1198 (D.C. App. 1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Johnson v. Williams,

568 U.S. 289 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Kansas v. Carr,

136 S.Ct. 633 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Kennedy v. Louisiana,

554 U.S. 407 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Kentucky v. Stincer,

482 U.S. 730 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Larsen v. State,

686 P.2d 583 (Wyo. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Martin v. State,

251 Ind. 587, 244 N.E.2d 100 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 35

viii

Maryland v. Craig,

497 U.S. 836 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24, 25

Medina v. Diguglielmo,

461 F.3d 417 (3d Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 36

Miller-El v. Cockrell,

537 U.S. 322 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Payne v. State,

177 Ark. 413, 6 S.W.2d 832 (1928). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Payne v. Tennessee,

501 U.S. 808 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

People v. Farnum,

2015 WL 315928 (Cal. Ct. App. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

People v. Nisoff,

36 N.Y.2d 560, 330 N.E.2d 638, 369 N.Y.S.2d 686 (1975). . . . . . . . . . . . . . . 21

People v. Sanchez,

7 Cal.5th 14, 439 P.3d 772 (2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 27

Perry v. State,

381 Md. 138, 848 A.2d 631 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ricketts v. State,

488 A.2d 856 (Del. 1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 29

Rogers v. Commonwealth,

132 Va. 771, 111 S.E. 231 (1922). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Roper v. Simmons,

543 U.S. 551 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

State in Interest of R. R.,

79 N.J. 97, 398 A.2d 76 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 28, 34

State v. Allen,

70 Wash.2d 690, 424 P.2d 1021 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Brigandi,

186 Conn. 521, 442 A.2d 927 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . 22, 28, 29

State v. Brousseau,

172 Wash.2d 331, 259 P.3d 209 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 30

State v. Brown,

138 N.H. 649, 644 A.2d 1082 (1994).. . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 29

State v. Bueso,

225 N.J. 193, 137 A.3d 516 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

State v. Colwell,

246 Kan. 382, 790 P.2d 430 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

State v. Cooke,

278 N.C. 288, 179 S.E.2d 365 (1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

State v. Correll,

25 Kan. App. 770, 973 P.2d 197 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

State v. Ford,

626 So. 2d 1338 (Fla. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 30, 31

State v. G.C.,

188 N.J. 118, 902 A.2d 1174 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

State v. Hugerth,

2018 VT 89, 194 A.3d 1189 (Vt. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Hussey,

521 A.2d 278 (Me. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Jessica Jane M.,

226 W.Va. 242, 700 S.E.2d 302 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Maxwell,

139 Ohio St.3d 12, 9 N.E.3d 930 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

State v. McKenney,

101 Idaho 149, 609 P.2d 1140 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Morasco,

42 Utah 5, 128 P. 571 (1912). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Oliver,

78 N.D. 398, 49 N.W.2d 564 (1951). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Ponteras,

44 Haw. 71, 351 P.2d 1097 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

State v. R.W.,

104 N.J. 14, 514 A.2d 1287 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29

State v. S.J.W.,

170 Wash. 2d 92, 239 P.3d 568 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

State v. Wigg,

179 Vt. 65, 889 A.2d 233 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

United States v. Jones,

482 F.2d 747 (D.C. Cir. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Washington v. Schriver,

255 F.3d 45 (2d Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Wheeler v. United States,

159 U.S. 523 (1895). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Whitehead v. Stith,

268 Ky. 703, 105 S.W.2d 834 (1937).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Wiggins v. Smith,

539 U.S. 510 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Federal Constitution and Statutes

AMEND. XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20, 37-38

28 U.S.C.

§ 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

§ 2254(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 37, 39

State Statutes

CAL. EVID. CODE § 701(a)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CAL. PEN. CODE

§ 187(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

§ 273ab.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Miscellaneous

Anderson, Assessing the Reliability of Child Testimony in Child Abuse Cases, 69 S.

CAL. L. REV. 2117 (1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Ceci & Bruck, Suggestibility of the Child Witness: A Historical Review and

Synthesis, 113 PSYCHOL. BULL. 403 (1993). . . . . . . . . . . . . . . . . . 23, 24, 27, 35

Ceci & Friedman, The Suggestibility of Children: Scientific Research and

Legal Implications, 86 CORNELL L. REV. 33 (2000). . . . . . . . . . . . . . . . . . . . . 23

Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the

Influence of Pretrial Interviews, 62 WASH. L. REV. 705 (1987). . . . . . . . . . . . 25

Feher, The Alleged Molestation Victim, The Rules of Evidence, and the

Constitution; Should Children Really Be Seen and Not Heard?, 14 AM. J.

CRIM. L. 227 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Goldberg, Youths’ ‘Tainted’ Testimony is Barred in Day Care Retrial, N.Y.

TIMES, June 13, 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Gross, et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L.

& C. 523 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Clyde Haberman, The Trial that Unleashed Hysteria Over Child Abuse, N.Y.

TIMES, Mar. 9, 2014... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Hayward & Mashberg, Upheaval in ’80s Put the Spotlight on Child Abuse, BOSTON

HERALD, Dec. 3, 1995. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Lindsay & Johnson, Reality Monitoring and Suggestibility: Children’s Ability to

Discriminate Among Memories From Different Sources, in CHILDREN’S

EYEWITNESS MEMORY 92 (Ceci, Toglia & Ross eds. 1987). . . . . . . . . . . . . . . 25

LOFTUS AND DOYLE, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL (1987). . . . . . . 23

Lyon, Child Witnesses and the Oath: Empirical Evidence, 73 S. CAL. L. REV.

1017 (2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

LYON & SAYWITZ, QUALIFYING CHILDREN TO TAKE THE OATH: MATERIALS FOR

INTERVIEWING PROFESSIONALS (Rev. ed. 2000), available at

http://works.bepress.com/cgi/viewcontent.cgi?article=1008&context=

thomaslyon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

xii

Poole & White, Two Years Later: Effects of Question Repetition and Retention

Interval on the Eyewitness Testimony of Children and Adults, 29 DEV.

PSYCHOL. 844 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Quas, et al., Repeated Questions, Deception, and Children's True and False

Reports of Body Touch, 12 CHILD MALTREATMENT 60 (2007)

Carl Sagan, COSMOS (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Benjamin Spock & Robert Needleman, DR., SPOCK’S BABY AND CHILD CARE

(9th ed. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Tye, et al., The Willingness of Children to Lie and the Assessment of

Credibility, etc., 3 APP. DEV. SCI. 92 (1999).. . . . . . . . . . . . . . . . . . . . . . . . . . 28

Warren & Marsil, Children as Victims and Witnesses in the Criminal Trial

Process: Why Children's Suggestibility Remains a Serious Concern, 65

LAW & CONTEMP. PROBS. 127 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

“Preschool children are virtuosos of imagination.”

– Benjamin Spock & Robert Needleman, DR.

SPOCK’S BABY AND CHILD CARE 188 (9th ed. 2012).

“Imagination will often carry us to worlds that never were.”

– Carl Sagan, COSMOS 4 (1980).

INTRODUCTION

Dannie Joe Farnum serving a sentence of 25 years to life based on the

uncross-examined statements of a 4 year old child who believed it was better to lie

than tell the truth. In the course of being questioned, she relayed a story replete

with numerous incontrovertible falsehoods to a social worker including, among

others, that her mother died, her father died, her one-year old brother died, and

that she caused the death of her infant brother.

Although, as the prosecutor conceded, the judge agreed the child was unable

to distinguish between truths and falsehoods, the trial judge allowed the

introduction of the 4 year old’s statements after finding she had become competent

to testify by age 6. Although agreeing with the prosecutor that the child did not

appreciate any obligation to tell the truth when she was 4, the trial judge expressly

disclaimed any need to assess the child’s competency at the time of her prior

statements.

In the course of her storytelling, after saying she had killed her two-year-old

brother who was alive and well, the 4 year old child said her father (petitioner

Farnum) caused the death of another child who actually had died. The

prosecution’s reliance on inherently unreliable statements by a 4 year old child who

was unable to distinguish truth from fantasy and concededly failed to appreciate

the obligation to tell the truth was a violation of due process.

PETITION FOR WRIT OF CERTIORARI

Petitioner Dannie Joe Farnum respectfully prays that a writ of certiorari

issue to review a judgment of the United States Court of Appeals for the Ninth

Circuit.

OPINIONS BELOW

The decision of the United States Court of Appeals for the Ninth Circuit, App.

1a, is unpublished but available at Farnum v. Frauenheim, 768 Fed. Appx 680 (9th

Cir. 2019). The Magistrate Judge’s Report and Recommendation, App. 8a, and the

United States District Court’s order adopting the Report and Recommendation,

App. 6a, are unpublished.

The opinion of the California Court of Appeal, App. 69a, is unpublished but

available at People v. Farnum, 2015 WL 315928 (Cal. Ct. App. 2015). The

California Supreme Court’s order denying Farnum’s petition for review is

unpublished. App. 111a.

JURISDICTION

The judgment of the Court of Appeals was entered April 23, 2019. App. 1a.

A timely petition for rehearing was denied July 2, 2019. App. 111a. This Court has

jurisdiction. 28 U.S.C. § 1254(1).

RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS

The Fourteenth Amendment to the United States Constitution provides in

relevant part:

[N]or shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 2254(d) of Title 28, U.S.C., provides:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

STATEMENT OF THE CASE

Summary of the Offense

Baby John was seven months old when he died November 10, 2008.

Petitioner Farnum was the father of two children. His daughter, Jane Doe,

had just turned four.1 His son Joseph (Jo Jo) was two. By all accounts, Farnum

was loving and caring towards all the children, and had never been hostile, let

alone violent, towards any child.

Baby John died one month after Doe turned four years old, R.T. 34, although

she did not know when her birthday was, C.T. 171.

Doe was the only person to testify who admitted allegedly witnessing the

cause of Baby John’s death. No other witness claimed to have any knowledge of

who or what caused Baby John’s injuries.

Farnum denied any wrongdoing. Although undisputed he was in the house

with the infant around the time the child died, so too were several others. As the

evidence at trial disclosed, the events occurred in a residence that was unsanitary

and where the other children were unkempt. R.T. 91 (“I vaguely remember the

small children, and I just remember noting in my head just how dirty they were.

Like unsanitary.”)

Preston lived in “a very rural area,” “four telephone poles away passed [sic]

the dump.” C.T. 203; R.T. 84.

The residence was the site of methamphetamine and marijuana use,2 and it

was soiled extensively by urine and feces. R.T. 120, 125 (““Even before I walked

into the – into the residence, I could smell urine. . . Yes, it was strongest inside of

the mobile home.” “I do recall smelling [feces].”) Preston’s residence was unkempt

due to her drug problem but she also blamed her children for not helping her clean

the home. There was no washing machine. Baby John rarely had clean clothes to

wear since Preston had to wash the clothes by hand. R.T. 227-28, 241.

Baby John’s death was initially attributed to Sudden Infant Death Syndrome

(SIDS). R.T. 266.

Doe subsequently gave two statements about Baby John’s death to two

Baby John’s mother was a methamphetamine and pot user. R.T. 315. At

times, because of her methamphetamine use, she was “agitated.” R.T. 339.

different social workers that were wholly inconsistent with each other and different

again from the statements she would subsequently make at trial.

Jane Doe’s Initial Unrecorded 2008 Statement

On November 11, 2008, the day after Baby John’s death, Francisca Russo

met with Doe and her mother. A social worker for 11 years, Russo was passionate

about protecting children and admitted reacting emotionally, even while testifying,

because the case involved a child’s death. Russo started by assuming Doe suffered

trauma and intending to establish the details that caused it. R.T. 181, 187-88, 19495.

Although wanting to speak privately with Doe, Russo decided not to “push it”

when Doe “became a bit upset and did not want to be without the mother.” R.T.

194, 197.

Russo reported that, in the unrecorded interview, Doe initially said “The

baby was sad and stopped crying.” R.T. 183. Pressed for more detail, Doe added

“the baby was crying; my dad was mad” and later said her father “hurt the baby, he

put it on the bed hard.” R.T. 186. Doe also said Farnum shook the baby. R.T. 186.

Doe did not say Farnum and the baby were “playing” or that they were both

“happy.” She did not claim Farnum hit the child against the crib. Doe did not

mention a crib at all. She did not say Farnum dropped the baby on the street

outside the house. Although interviewed in the presence of her mother, Doe did not

say her mother witnessed the events. R.T. 200-01.

Jane Doe’s Subsequent, Recorded Statements

Russo thereafter arranged for a recorded interview in a controlled

environment. Tr. Ex. 18 [C.T. 171-93]; R.T. 206.

On November 13, 2008, Doe was brought to the “talking room” and told “you

can say whatever you want in this room.” C.T. 171-72. She knew she was four

years old but did not know her birthday. C.T. 171. She was uncertain about colors.

C.T. 174.

Right after they began Doe already wanted to go back out and play. She had

to be coaxed back into the conversation because “it’s talking time.” C.T. 173.

Doe said it was “a truth” if the interviewer “said you were a girl” while also

agreeing it was “a truth” “if I said you’re a boy.” C.T. 175.

Doe said it was “right” that her female interviewer was “a boy.”3 Asked if it

was “better to tell the truth or to tell a lie?,” Doe confidently replied “A lie.” C.T. 38,

175.

Doe did not know her grandmother’s name and could not accurately relay

whether her mother’s current partner was a girl or boy:

Walker:

Doe:

Walker:

Doe:

Walker:

Doe:

Okay, so we’ll put grandma and who else?

Um, Davis.

Davis . . . Who’s Davis?

My mom’s girlfriend.

Is that a boy . . . Davis a girl or a boy?

Boy.

C.T. 176-77.

Doe identified her two year old brother Jo Jo as a “big kid.” C.T. 178. Asked

Although the transcript identifies the interviewer as Sarah Walker, the

interviewer was actually Denise Bowman Rodriguez. C.T. 171; R.T. 167.

about other siblings, Doe said she had a brother. Also Jo Jo. C.T. 177. “Two Jo

Jo’s.” Doe claimed also to have a sister – four year old Shelly. Doe was “littler”

than Shelly; but 2 year old Jo Jo was “bigger on me.” Asked if “there [are] any

babies in your family,” Doe insisted “Yeah.” The baby’s name is “Shelly, Shelly,

Shelly.” C.T. 178.

Transitioning from the murky description of Doe’s family, asked if

“something happen[ed] in your family,” Doe replied “my mom got hurt.” Asked to

elaborate, Doe said she “hurt herself” with “papers” and her mom “died.” C.T. 41,

179.

Doe identified Farnum as her father and claimed she and her brother lived

with him and his girlfriend Delice Preston whom she called “Tink.” C.T. 180.4 Her

dad (Farnum), however, she added, “died.” Her mom (even though she died?) told

her Farnum died. C.T. 41-42, 181-82. Doe added that Davis got hurt too. C.T. 182.

Asked if any kids were hurt, Doe said “I got hurt,” “Up in my house,” “I fall

and scrape myself.” She didn’t know how though. C.T. 41, 182. Jo Jo also got hurt:

“He jumped down and hurt hiself and he got died.” C.T. 182. Asked who hurt Jo Jo,

At the time of Baby John’s death, Doe was in the custody of her birth mother,

Shannon Garcia (not Farnum and Preston). By the time of trial, however, Doe had

been removed from Garcia’s custody and placed in an adoptive placement home.

R.T. 130.

Moreover, contrary to Doe’s report, Farnum didn’t live with Preston either.

No men’s clothes were found in the search of Preston’s home. R.T. 122-23.

Although Farnum came over to Preston’s “once in a while,” mostly, she went to his

house. R.T. 215. Also contrary to Doe’s report, Farnum’s father did not live with

Preston either. C.T. 191.

Doe also contradictorily reported that the baby lived with Preston, but did

not live with her and her father. C.T. 184-85.

Doe replied “I did” but didn’t know how she hurt him. C.T. 182.

Doe acknowledged saying “something different” to another interviewer. “I

telled her ah, ah, my dad shaked the baby and, and grabbed his feet and hurt him

on his head.” C.T. 183. Doe said she saw from “up in my house” the baby’s head

being hurt “on his crib.” C.T. 183-85. She said Farnum was saying something as he

was shaking the child but she didn’t know what. But Farnum looked “happy” and

the baby “was playing, he got happy.” C.T. 186.

She said Farmum hit the baby with his hand “on his butt” causing the baby

to “got fun.” C.T. 188-89. When describing actions strikingly redolent of scenes

from her favorite show, Sponge Bob Squarepants, which she had watched earlier

that morning Doe “appeared distracted and even flippant.” C.T. 43, 173.

Farnum never spoke to Doe about the incident but her mother (Garcia) had.

“Her said, yeah, to the baby. . . . She said ‘Bad baby, bad baby,’” and then “take him

away.” C.T. 189-90. Asked to clarify how her mom took away the baby, Doe

retracted, “she didn’t,” “only the cops.” C.T. 190.

The interview devolved as Doe declared “I want to play over there,”

unimpressed by the interviewer’s insistence “it’s talking time right now.” C.T. 191.

Unable to control the will of a four year old who insisted “I don’t want to play

there,” the interview soon ended. C.T. 191-93. As they left the room, the

interviewer was surprised to be greeted by Jo Jo. C.T. 192-93.

State Proceedings

Trial Court Proceedings

The district attorney charged Farnum with murder, CAL. PEN. CODE § 187(a),

and child abuse resulting in death, CAL. PEN. CODE § 273ab. C.T. 1. Baby John’s

mother, Delice Sharon Preston, was charged with being an accessory to the alleged

murder, C.T. 1, to which she pled guilty before Farnum’s trial. R.T. 7, 342.

Pretrial Phase

(1)

Admissibility of Jane Doe’s 2008 statements

Farnum’s defense attorneys objected, pretrial, Doe’s current

competency in 2011 and the admissibility of her 2008 statements. C.T. 145-47; R.T.

26. The trial judge agreed to hold an in limine hearing to determine Doe’s current

competence but deferred inquiry into her competence at the time of her 2008

statements. R.T. 43-44.

(2)

The in limine competency hearing

Rather than genuinely explore Doe’s ability to distinguish truth from fantasy

or appreciation of the obligation to tell the truth, the competency hearing primarily

consisted of the trial judge’s talking, routinely leading Doe with questions that

suggested the answer to her. R.T. 33-43. When Doe answered inappropriately, the

judge simply corrected her, and then reinforced the correction with a follow-up

question.

After ascertaining she was six years old, the judge spent several transcript

pages trying to develop rapport with her, asking general questions about her life

and routines. Frequently, Doe did not answer and the judge suggested an answer

to her.5

After identifying Barney as the big pink dinosaur, she was asked:

. . . And do you know who lives in the pineapple under

the sea?

Sponge Bob.

. . . Do you think he lives under the sea? You think so,

huh. Okay.

R.T. 36-37.

The trial judge then identified the participants in a trial. He asked some

questions but, like with Sponge Bob, he simply continued on without Doe’s having

answered.6 She accepted his instruction to tell the truth, claimed she knew what

“Do you know who Galileo was? [No response].” “And what else do you like

besides math? [No response]. My favorite subject was recess.” “Do you go to public

school or do you go where they have nuns? [No response]. Women who have black

outfits on. [No response.] Do you go to regular public school? [No response.]” R.T.

36.

“They are lawyers. Do you know who a lawyer is? Okay. Lawyers, they

come to court and they talk to witnesses.” “You have to answer them. Do you

understand that? And you are shaking. Can you say yes?” R.T. 37.

that meant, but could not explain anything about that obligation.

Okay. And when you answer the lawyers and then you

answer me, you have to tell the truth. Do you understand that?

Yes.

And do you understand what it means to tell the truth?

Yes.

Can you tell me what you think it means to tell the truth?

(No audible response).

R.T. 37.

The trial judge tried to clear this up with a concrete example.

Okay. Did you ever – did you ever – you know what snow

(No audible response) .

Okay. You know what the white stuff and it’s cold and it

is?

falls?

Yes.

If I told you right now there is a mountain of snow

outside, am I telling the truth or am I lying?

The truth.

R.T. 37-38.

The trial judge asked the same question again, perhaps more pointedly,

prompting a different response. R.T. 38. Doe confirmed there had not been any

snow when she entered the building. Asked a third time, Doe finally said it would

be “lying” to say there was snow outside. R.T. 38.

After being told what type of car the judge drove, he asked her what kind of

car he drove. No audible response. R.T. 39. The judge then filled in for her that

she didn’t know. R.T. 39.

The judge then engaged in a series of questions assuring her she could say

she did not know, telling her to be honest, and instructing her not to guess. Doe

responded with a series of monosyllabic “yes” and “no” answers. R.T. 39. Despite

having been encouraged to say she did not remember a fact if she couldn’t, her

answers were not routinely appropriate:

Okay. And if the attorneys ask you something about

what you saw with the baby and you can’t remember exactly what it

was, what is your answer going to be?

Yes.

R.T. 41.

The judge then told her that the correct answer would be “I don’t remember,”

which Doe dutifully repeated. R.T. 41-42. The trial judge closed after eliciting

more monosyllabic “yes” responses to his instructions that she tell the truth. R.T.

42.

At the conclusion of the competency hearing, the trial court declared “I think

she is competent.” R.T. 45.

Jury Trial Phase

(1)

General Background

Preston was 41 years old when she gave birth to Baby John on March 18,

2008. R.T. 218. Baby John’s father died two months later. R.T. 213-14 . Preston

had two other children: Ricky, who was 9 or 10, and Kelly, who was 16. R.T. 216.

Preston had been unemployed for 6 years, since 2002, and was relying upon

government assistance and her mother. She did not rely on Farnum for financial

support. R.T. 218-19.

Preston had been dating Farnum for approximately three months when Baby

John died. R.T. 290. She occasionally stayed at his house, and he occasionally

stayed at her trailer. R.T. 216. Farnum never left personal items at Preston’s

trailer. R.T. 291.7

Farnum regularly cared for Baby John. He fed him, bathed him, put him

down for naps, and spent time outside with him. He built a swing for Baby John,

and would play with him in it. “He generally – he played with him.” R.T. 292.

Preston never saw Farnum lose his temper or strike Baby John. Farnum

never even yelled at Baby John. R.T. 292-93. When Preston argued with Farnum,

Farnum would leave the room and go outside to smoke rather than engage in

conflict. R.T. 293.

Preston had seen Farnum become angry with his own children, but she did

not believe he was capable of harming her baby. R.T. 381-82. When Farnum was

angry with his own children, he would “flick” them on the forehead but Preston

never saw him hit them. R.T. 381-82.

(2)

Events of November 10, 2008

On November 10, 2008, Preston was at home with Baby John, Farnum, and

Farnum’s two children, 4 year old Doe and 2 year old Jo Jo. R.T. 230-31.

The night before, Preston and Farnum had both used methamphetamine.

Preston was periodically agitated and her patience was short due to her drug use.

R.T. 339-40.

Farnum awoke around noon and was soon playing with Baby John on his lap.

Preston suspected Farnum was cheating on her, continuing his sexual

relationship with Garcia (Doe’s and Jo Jo’s mother) while she and Farnum were

sexually involved. R.T. 220.

R.T. 235-36. Preston fed Baby John, and then put him down for an afternoon nap.

When the baby awoke, Preston wrapped him in a blanket and walked around with

him. R.T. 238-41. Baby John did not appear unusual and was not being

particularly fussy that day. R.T. 225, 236.

Preston asked Farnum to go to the store to buy food for dinner, but he didn’t

want to go. Preston was irritated by Farnum’s refusal; he “just shrugged it off” and

Preston left for the store. R.T. 243-45. When she left, Farnum “seemed fine.” R.T.

245.

Preston was gone between 20 and 45 minutes. R.T. 252, 294-96. Upon

returning, she put the groceries in the kitchen and went to the bedroom to let

Farnum know she had returned. R.T. 253.

Preston initially told police at least 5 times that she saw Baby John sitting

up and alive after returning from shopping but she recanted that at trial. R.T. 36465.

At trial, Preston still acknowledged seeing Baby John in the crib, on his

stomach and apparently sleeping, but said she did not want to wake him (he was a

light sleeper) so she did not touch him. R.T. 253-54. Doe was watching television

and her brother Jo Jo was asleep on the couch. R.T. 255. Preston started to

prepare dinner. R.T. 255.

About 20 minutes after returning, while she was making dinner, Farnum

called out in a frightened voice: “Sharon, the baby isn’t breathing!” R.T. 256-58.

Preston went to the bedroom, where she found Farnum performing CPR on

Baby John. He was plugging the baby’s nose and breathing into his mouth, as well

as massaging his chest. R.T. 257.

Preston called 911 and then ran to summon her step-children who lived in a

nearby trailer on the same property. Tr. Ex. 31 [C.T. 198-211]; R.T. 258-60.

When paramedics arrived 20 to 30 minutes later, Farnum was frantically

trying to resuscitate the infant, trying to save the baby’s life. R.T. 97. He ran out

to the paramedics, cradling the child in his arms with one hand and attempting to

push on the chest with another. R.T. 85, 93.

Paramedics took Baby John to the hospital. R.T. 264-65. Preston and

Farnum drove to the hospital together, during which time Preston asked Farnum

what happened; he told her he did not know. R.T. 265.

Preston initially told authorities that her stepson Johnny was not present

when Farnum was performing CPR on Baby John. R.T. 312. She later admitted

this was a lie; he was there and took over the CPR from Farnum. Preston lied to

shield Johnny from liability; she did not want authorities to know Johnny’s

involvement because it was clear to her that Johnny was intoxicated by drugs and

alcohol and was handling Baby John very roughly. R.T. 313.

Preston had acknowledged thinking it possible Johnny injured Baby John;

she asked Johnny to stop CPR because he was being “too violent.” R.T. 313.

At the hospital, a nurse told her that Baby John died of SIDS (Sudden Infant

Death Syndrome). R.T. 266-67. When Preston returned home, she began cleaning,

hoping she would not lose her two other children to social services when they saw

the state of the home. R.T. 270.

Preston went to the police station two days later to discuss the autopsy. R.T.

278-79. She knew before that Doe had spoken with a social worker, but did not

know what Doe said. R.T. 282-83. When interviewed, Preston believed one of

Farnum’s children, either Doe or Jo Jo, had caused the baby’s death. R.T. 283.

In the hopes of obtaining incriminating statements, after interrogating

Preston, law enforcement put her and Farnum into a room that was being secretly

recorded. Tr. Ex. 32 [C.T. 221-37]; R.T. 386-87. Neither Preston nor Farnum made

any incriminating statements. Quite the contrary, they both made numerous

statements disclaiming any knowledge or understanding of how Baby John died.

C.T. 221-37. But Preston also made clear: “I’m not going down for this.” C.T. 232.

At trial, Preston denied having injured Baby John. R.T. 287.

(3)

Jane Doe’s Trial Testimony

At trial, Doe offered a third version of events. By the time of trial, she was

six years old and in the second grade. R.T. 129, 135.8

Doe recalled that, two years earlier, she was living with both her mother

(Garcia) and father (Farnum), but that Farnum sometimes lived with another

woman whose name Doe did not know. Asked if the other woman had a baby, Doe

replied “No.” R.T. 130-31.

Untethered to any particular baby, Doe testified that a baby “got shooked.”

R.T. 131. “Dannie” shook the baby “because he was mad,” “because something

happened,” but Doe did not know what happened to make him mad. R.T. 131.

The Ninth Circuit erroneously recited that she “was seven years old at the

time of trial,” App. 3a, but in fact Doe testified that she was still only 6.

“Tink” was not around; she was at her own house. R.T. 133-34, 146. The

baby got hurt at Farnum’s house. R.T. 132. Doe was at Farnum’s house, “looking

at the street outside.” R.T. 132, 140. Her mother, Garcia, was also there, “standing

next to me.” R.T. 134, 146. The baby was “in the seat,” by which she meant “the

stroller.” With everyone outside, she claimed Farnum “shook the baby and dropped

it in the street.” R.T. 131-32. “He dropped it in the middle of the street.” R.T. 133.

Her little brother Jo Jo “was sleeping in the crib” at the time. R.T. 146.

After the baby was dropped, no one came to the house. There were no police.

There was no one with sirens or loud noises. R.T. 140. They didn’t leave to go

anywhere. They just stayed at the trailer. R.T. 147.

Thereafter, Doe never spoke to anyone about what happened to the baby.

She didn’t remember a Denise. She had no recollection of telling anyone the child

had been injured on a crib or that her dad “put the baby on the bed hard.” She

didn’t talk to anyone about it at her mother’s house. R.T. 141-42.

(4)

Trial Judge’s Findings re 2008 Statements

After Doe testified, the prosecution sought to introduce her prior statements

from 2008. Defense counsel objected anew to the 2008 statements. R.T. 154, 158.

The trial court disclaimed any need to assess Doe’s competency at the time of

her fanciful allegations as a foundation for admitting the prior statement, noting

“the [California] Evidence Code does not require a finding of competence when we’re

talking about a prior inconsistent statement.” “There’s nothing about competence

in the code section.” R.T. 167-68.

Having watching the recorded 2008 statement, however, the trial judge

added “Doe had a pretty good degree of understanding” because she knew she was

not attending school but would “when I get my shots” and claimed to know the

name of her future teacher. R.T. 168.9 He was “astonished that she knew who

Pinocchio was” and observed she “described various colors,” though acknowledging

“I couldn’t tell what the colors were, actually. But she described those colors.” R.T.

168.

The trial judge also credited Doe’s ability to name the adults in her life and

that she “was pretty quick to point out that it’s not Jo Jo who died.” R.T. 168. The

trial judge did not attempt to harmonize this observation with the fact that Doe did

claim Jo Jo had died, but only that it was in a different incident. Nor did the trial

judge attempt to grapple with Doe’s assertions that Farnum and her mother had

also both died.

The trial judge acknowledged that Doe was “confused” because she knew she

was a girl but claimed it was true to say she was a boy. He also observed that “she

had some difficulty maybe with the definition of lie, truth.” R.T. 169.

Ultimately, however, he believed that “Doe appeared to be consistent in

describing what she said. I don’t believe she was influenced by the interviewer,”

appeared “to comprehend what was asked,” and had “no motive whatsoever to

fabricate.” R.T. 169.

There was no evidence confirming the accuracy of Doe’s report that her

teacher’s name was “Shelly.” Notably, “Shelly” is also the name Doe ascribed to the

fictional sister who was her same age. C.T. 178.

Doe’s prior statements were received in evidence and heard by the jury. R.T.

179-86.

(5)

Physical and Forensic Testimony

The prosecution’s medical expert testified that it was unlikely the baby had

been shaken. R.T. 419-20, 430, 432. The pathologist also opined the injury

wouldn’t have occurred from an ordinary fall. R.T. 423.

The pathologist opined Baby John suffered a blunt force trauma, meaning he

either hit his head on something or he was hit on the head with something. R.T.

430.

The pathologist opined, generically, that death could have been caused by the

baby’s head being banged on the edge of a crib. Shown a photograph of the crib

found in Preston’s home and asked whether it could have been the instrument that

caused the injuries, the pathologist said he could only speculate:

I would have to examine it myself. If it was firm, like, if there was

metal underneath that, then I would say that’s certainly consistent

with his head being slammed against that. . . . [I]f it was weak plastic

on that edge then I’d say no because it probably would have broken the

– the crib railing.

R.T. 431.

A forensic technician from the Sheriff’s Department testified that the crib in

the photograph was a “Pack ‘n Play” crib that folded up easily. The crib’s railings

were padded; the corners appeared to be covered by plastic and a nylon mesh. R.T.

124-25.

(6)

Closing argument

During her closing argument, the prosecutor conceded – twice – that Jane

Doe was not a competent witness in 2008 given that she did not understand the

difference between the “truth” and a “lie.” R.T. 611:2-3, 612:7-8.

State Appellate and Habeas Proceedings

The California Court of Appeals affirmed the judgment in its entirety and the

California Supreme Court summarily denied review. App. 69a, 111a.

The United States District Court accepted and adopted the magistrate’s

report and recommendation, and dismissed Farnum’s pro se habeas petition with

prejudice. App. 6a.

The Ninth Circuit granted a certificate of appealability, appointed counsel for

Petitioner, and then affirmed the denial of Farnum’s habeas petition. App. 5a.

REASONS FOR GRANTING THE WRIT

“Due process protects a criminal defendant against a conviction based upon

incompetent evidence.” State v. Brousseau, 172 Wash.2d 331, 335, 259 P.3d 209,

211 (2011); accord Blackburn v. Alabama, 361 U.S. 199, 206 (1960) (“the Fourteenth

Amendment forbids fundamental unfairness in the use of evidence”).

Where “evidence is introduced that is so unduly prejudicial that it renders

the trial fundamentally unfair, the Due Process Clause of the Fourteenth

Amendment provides a mechanism for relief.” Payne v. Tennessee, 501 U.S. 808,

825 (1991); accord Kansas v. Carr, 136 S.Ct. 633, 644 (2016). The question is

“whether the introduction of this type of evidence is so extremely unfair that its

admission violates fundamental conceptions of justice.” Dowling v. United States,

493 U.S. 342, 352 (1990) (internal quotations omitted).

Rules regulating “witness competency . . . protect the integrity of the

adversary process by excluding categorically testimony that is likely to be

unreliable.” Harris v. Thompson, 698 F.3d 609, 635 (7th Cir. 2012). “Reliability [of

evidence] is an essential factor of due process.” Commonwealth v. AdonSoto, 475

Mass. 497, 508, 58 N.E.3d 305, 316 (2016). A court’s discretion to admit evidence

“is limited, however, by defendant’s right to due process.” State v. Wigg, 179 Vt. 65,

69, 889 A.2d 233, 236 (2005).

This Court long ago affirmed that, to be competent to testify, a witness must

“have sufficient understanding to apprehend the obligation of an oath, and to be

capable fo giving a correct account of the matters which he has [perceived].”

District of Columbia v. Arms, 107 U.S. (17 Otto) 519, 521-22 (1883). While “there is

no precise age which determines the question of competency,” its resolution

“depends on the capacity and intelligence of the child, his appreciation of the

difference between truth and falsehood, as well as of his duty to tell the former.”

Wheeler v. United States, 159 U.S. 523, 524 (1895).10

10.

Many of the states have looked directly to Wheeler to provide the guiding

principles. Payne v. State, 177 Ark. 413, 6 S.W.2d 832, 833 (1928); Johnson v.

United States, 364 A.2d 1198, 1202 (D.C. App. 1976); Clark v. Finnegan, 127 Iowa

644, 103 N.W. 970, 970 (1905); Hawaii v. Ah Wong, 10 Haw. 524, 525 (1896); State

in Interest of R. R., 79 N.J. 97, 114, 398 A.2d 76, 84 (1979); People v. Nisoff, 36

N.Y.2d 560, 566, 330 N.E.2d 638, 641, 369 N.Y.S.2d 686, 691 (1975); State v. Cooke,

The Petition Raises an Federal Question of National Importance

This Court has recognized the “special risk” created by “the problem of

unreliable, induced, and even imagined child testimony.” Kennedy v. Louisiana,

554 U.S. 407, 443-44 (2008). “Our history is replete with laws and judicial

recognition that children cannot be viewed simply as miniature adults.” J.D.B. v.

North Carolina, 564 U.S. 261, 274 (2011) (internal quotations omitted). A scientific

consensus recognizes that cognitive differences between children and adults have

profound importance regarding their ability to provide accurate testimony. As this

Court has recognized, research confirms that children have especially fragile

278 N.C. 288, 291, 179 S.E.2d 365, 367 (1971); State v. Oliver, 78 N.D. 398, 416, 49

N.W.2d 564, 573 (1951); Fields v. State, 500 S.W.2d 500, 502 (Tex. Crim. App.

1973); State v. Morasco, 42 Utah 5, 128 P. 571, 572 (1912); Rogers v.

Commonwealth, 132 Va. 771, 773, 111 S.E. 231, 232 (1922); State v. Hugerth, 2018

VT 89, ¶ 10, 194 A.3d 1189, 1193 (Vt. 2018); State v. S.J.W., 170 Wash. 2d 92, 101,

239 P.3d 568, 572 (2010); State v. Jessica Jane M., 226 W. Va. 242, 254, 700 S.E.2d

302, 314 (2010); Larsen v. State, 686 P.2d 583, 585 (Wyo. 1984). Accord United

States v. Jones, 482 F.2d 747, 752 (D.C. Cir. 1973). Several others have adopted the

identical standard without expressly attributing it to Wheeler. State v. Brigandi,

186 Conn. 521, 535, 442 A.2d 927, 934 (1982); Whitehead v. Stith, 268 Ky. 703, 105

S.W.2d 834, 836 (1937); Perry v. State, 381 Md. 138, 149, 848 A.2d 631, 637 (2004);

Ball v. State, 188 Tenn. 255, 261, 219 S.W.2d 166, 168 (1949); De Groot v. Van

Akkeren, 225 Wis. 105, 273 N.W. 725, 728 (1937).

But, regardless of historical pedigree, all courts affirm that competency is

demonstrated by establishing that “the child understood her obligation to tell the

truth, and the difference between truth and falsehood.” Ricketts v. State, 488 A.2d

856, 857 (Del. 1985). See also State v. Ford, 626 So. 2d 1338, 1347 (Fla. 1993); State

v. McKenney, 101 Idaho 149, 150, 609 P.2d 1140, 1141 (1980); Commonwealth v.

Brusgulis, 398 Mass. 325, 329, 496 N.E.2d 652, 655 (1986); State v. Hussey, 521

A.2d 278, 280 (Me. 1987); Commonwealth v. Delbridge, 578 Pa. 641, 663, 855 A.2d

27, 40 (2003); State v. Allen, 70 Wash.2d 690, 692, 424 P.2d 1021 (1967). As does

California. CAL. EVID. CODE § 701(a)(2); People v. Sanchez, 7 Cal.5th 14, 30 (2019).

memories, a propensity to form false memories as time passes following an event,

and a unique susceptibility to suggestion and formation of false memories. See,

e.g., Kennedy, 554 U.S. at 443-44, citing Ceci & Friedman, The Suggestibility of

Children: Scientific Research and Legal Implications, 86 CORNELL L. REV. 33, 47

(2000); Gross, et al., Exonerations in the United States 1989 Through 2003, 95 J.

CRIM. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals

Day Care Center); see also Quas, et al., Repeated Questions, Deception, and

Children's True and False Reports of Body Touch, 12 CHILD MALTREATMENT 60, 6166 (2007) (finding that 4- to 7-year-olds “were able to maintain [a] lie about body

touch fairly effectively when asked repeated, direct questions during a mock

forensic interview”).11

A leading study concluded that children are less reliable than adults even in

their initial acquisition of a memory. LOFTUS AND DOYLE, EYEWITNESS TESTIMONY:

CIVIL AND CRIMINAL § 2-2 at 13 (1987). Even without suggestive influences,

moderate delays before a child’s testimony – akin to the two years time required to

11.

See also Ceci & Bruck, Suggestibility of the Child Witness: A Historical

Review and Synthesis, 113 PSYCHOL. BULL. 403, 431 (1993) (reviewing

developmental studies and concluding that memories of preschool children are

especially vulnerable to distortion); Roper v. Simmons, 543 U.S. 551, 569 (2005)

(“[J]uveniles are more vulnerable or susceptible to negative influences and outside

pressures[.]”); Idaho v. Wright, 497 U.S. 805, 812-13 (1990) (discussing interview

methods known to create a risk of eliciting unreliable statements from a child);

Maryland v. Craig, 497 U.S. 836, 868-69 (1990) (Scalia, J., dissenting) (citing

studies “show[ing] that children are substantially more vulnerable to suggestion

than adults, and often unable to separate recollected fantasy (or suggestion) from

reality”); Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001) (“An emerging

consensus in the case law relies upon scientific studies to conclude that

suggestibility and improper interviewing techniques are serious issues with child

witnesses.”).

prepare for trial in this case – “are disproportionately detrimental to the memories

of 4-year-olds than older children and adults.” Ceci & Bruck, Suggestibility of the

Child Witness, 113 PSYCHOL. BULL. at 410.12

History is replete with examples of scandalous, false accusations made by

children, from the Salem witch trials to the McMartin preschool case in the late

1980s, to “the tragic Scott County investigations of 1983-1984, which disrupted the

lives of many (as far as we know) innocent people in the small town of Jordan,

Minnesota.” Craig, 497 U.S. at (Scalia, J., dissenting); see Ceci & Bruck,

Suggestibility of the Child Witness, 113 PSYCHOL. BULL. at 405; Anderson, Assessing

the Reliability of Child Testimony in Child Abuse Cases, 69 S. CAL. L. REV. 2117

(1996).13 These historical examples reflect the exacerbated reliability problems

inherent in child testimony – young children may be particularly susceptible to

suggestion; they may confuse the suggestions of others with authentic memories;

and their stories may change dramatically from interview to interview. Courts and

12.

See also Warren & Marsil, Children as Victims and Witnesses in the Criminal

Trial Process: Why Children's Suggestibility Remains a Serious Concern, 65 LAW &

CONTEMP. PROBS. 127, 135-36 (2002); Poole & White, Two Years Later: Effects of

Question Repetition and Retention Interval on the Eyewitness Testimony of Children

and Adults, 29 DEV. PSYCHOL. 844, 845-49 (1993).

13.

It should be unsurprising that more than half of the heralded sexual abuse

convictions obtained against daycare professionals in the 1980s were later

overturned on appeal. See Hayward & Mashberg, Upheaval in ’80s Put the Spotlight

on Child Abuse, BOSTON HERALD, Dec. 3, 1995, at 23; cf. Goldberg, Youths’ ‘Tainted’

Testimony is Barred in Day Care Retrial, N.Y. TIMES, June 13, 1998, at A6 (noting

several reversals of convictions in sexual abuse trials).

judges have long recognized these problems.14

Mistakes are inevitable in such cases, for as “[a]ny parent who has ever

attempted to resolve a sibling quarrel based upon ‘he said, she said’ versions of a

single event knows…[,] even a parent can, from time to time, make a credibility

mistake and believe a child’s inaccurate version of the event.” Ex parte Thompson,

153 S.W.3d 416, 422 (Tex. Crim. App. 2005) (Cochran, J., concurring).

In short, it is well-recognized that children, especially young children, have a

unique propensity to develop inaccurate, and even wholly imagined, memories. A

child’s testimony based on false memory can be all the more damaging because the

child subjectively believes she is telling the truth, thus increasing the danger that

her testimony may appear credible.

***

The problem, however, is not insurmountable. Trial judges genuinely

attempting to ascertain a witness’s competency have many tools at their disposal.

14.

Coy v. Iowa, 487 U.S. 1012, 1020 (1988) (recognizing the risks of child “false

accuser[s]” and “coach[ing] by a malevolent adult”); Arizona v. Youngblood, 488 U.S.

51, 72 n.8 (1988) (Blackmun, J., dissenting) (“Studies show that children are more

likely to make mistaken identifications than are adults, especially when they have

been encouraged by adults.”); Craig, 497 U.S. at 868 (Scalia, J., dissenting) (noting

“‘special’ reasons” to be suspicious of child testimony, for “studies show that children

are substantially more vulnerable to suggestion than adults, and often unable to

separate recollected fantasy (or suggestion) from reality”), citing Lindsay &

Johnson, Reality Monitoring and Suggestibility: Children’s Ability to Discriminate

Among Memories From Different Sources, in CHILDREN’S EYEWITNESS MEMORY 92

(Ceci, Toglia & Ross eds. 1987); Feher, The Alleged Molestation Victim, The Rules of

Evidence, and the Constitution; Should Children Really Be Seen and Not Heard?, 14

AM. J. CRIM. L. 227, 230-233 (1987); Christiansen, The Testimony of Child

Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 WASH. L. REV.

705, 708-711 (1987).

Lyon, Child Witnesses and the Oath: Empirical Evidence, 73 S. CAL. L. REV. 1017,

1048 n. 101 (2000), citing LYON & SAYWITZ, QUALIFYING CHILDREN TO TAKE THE

OATH: MATERIALS FOR INTERVIEWING PROFESSIONALS (Rev. ed. 2000), available at

http://works.bepress.com/cgi/viewcontent.cgi?article=1008&context=thomaslyon.

Even if young children “cannot answer an abstract question regarding the

difference between the truth and a lie,” many can still have a “complete functional

understanding of the concepts.” Harris, 698 F.3d at 641.

In Wheeler, for example, a 5½ year old affirmed that “he knew the difference

between the truth and a lie, that if he told a lie, the bad man would get him, and

that he was going to tell the truth,” for “if he told a lie, he replied that they would

put him in jail.” Wheeler, 159 U.S. at 524. Here, of course, in her original

statement Doe never retreated from her belief that it was better to tell a lie and,

even two years later in court, the judge acknowledged Doe had “difficulty”

understanding and distinguishing “truth.”

In Arms, a physician opined that the witness’s “memory was impaired but

that he was able to make a substantially correct statement of facts . . . though, from

the impairment of his memory, he might leave out some important part.” Arms,

107 U.S. at 520. Here, by contrast, no independent witness opined on Doe’s

appreciation of the duty to tell the truth or ability to distinguish fact from fiction.

Kansas adheres to the time-worn principle that a witness is incompetent if

“incapable of understanding the duty of a witness to tell the truth.” State v.

Colwell, 246 Kan. 382, 388, 790 P.2d 430 (1990). In State v. Correll, 25 Kan. App.

770, 973 P.2d 197 (1998), when shown a red shirt which the child identified as “red”

and asked if the shirt was blue, the child’s first response was “it’s blue.” When

asked again if it was true to say the shirt was blue, the child answered “yes.” Id.,

973 P.2d at 199. Such incongruous answers were among the facts convincing the

appellate court to find the child not competent as a matter of law. Id., at 199-200.

This is not dissimilar from the trial judge’s cajoling Doe into acknowledging there

was no snow on a hot September day. Or when Doe was asked to identify the color

of items, she not only got the colors wrong, but there was no follow-up to correlate

whether she accurately recognized when answers were true or false.

By contrast, a child was found competent when, although unable to explain

the difference between the truth and a lie, when shown a pen and asked “if I told

you this is a car,” the child replied “that would be a lie. Asked by the prosecutor “If

I said I was wearing a blue shirt, would that be the truth or would that be a lie?,”

the child accurately replied “A lie.” And, when asked, “If I said I was wearing a tie

with elephants on it, would that be the truth or would that be a lie?,” he correctly

responded, “The truth.” Sanchez, 7 Cal.5th at 31. A similar approach was used

effectively in In re A.H.B., 491 A.2d 490, 493-95 (D.C. App. 1985).

Objective external circumstances like the weather can be a reference point:

“The truth is, I would say it’s kind of cloudy out here tonight – today . . . and a lie

would be it’s sunny out.” State v. Brown, 138 N.H. 649, 541, 644 A.2d 1082, 1083

(1994).

Lies are universal and start from a young age. Ceci & Bruck, Suggestibility

of the Child Witness, 113 PSYCHOL. BULL. at 426; Tye, et al., The Willingness of

Children to Lie and the Assessment of Credibility, etc., 3 APP. DEV. SCI. 92, 96

(1999).15 A child that understands the difference between truth and a lie will be

able to acknowledge such instances.16 Or the lies could be completely hypothetical.

State v. Bueso, 225 N.J. 193, 212, 137 A.3d 516, 528 (2016).

Nothing sophisticated is required.17 Even inarticulate young children can

15.

“Over half of the children [age 6-10] were willing to tell lies to a person they

believed to be a police officer . . . about a matter weighty enough to get the person

who was the object of the lie into serious trouble with the legal authorities.”

16.

The child had told “a few” lies such as “once I lied to my mother that I was

going to go down to the store, but I didn’t; I went far, far away up to my friend’s

house.” Brown, 138 N.H. at 541, 644 A.2d at 1083.

17.

Although unable to define “truth” in the abstract, a child might describe a lie

as “when you tell somebody and that is not the truth” and clarify that an oath “is

when you promise to tell the truth,” Brigandi, 186 Conn. at 535 n.16, 442 A.2d at

934.

A child who could not define “punishment” or associate it with terms like

“spanking,” “licking” or “whipping,” might explain “‘[t]he truth is the thing you

want and a lie you don’t’ and that ‘You get punished’ for telling a lie, but ‘You don’t

get punished’ for telling the truth.” Brusgulis, 398 Mass. At 328, 496 N.E.2d at 654.

Even more basic, children might explain in basic terms that it is “good” to tell

the truth and “You will get in trouble” if you tell a lie, State v. Maxwell, 139 Ohio

St.3d 12, 34-35, 9 N.E.3d 930, 958-59 (2014), or that “It’s good to tell the truth” and

“not good” to lie. Asked whether she would tell the truth or lie when testifying, the

child said “I’m not going to tell the lie. I will tell the truth.” State v. G.C., 188 N.J.

118, 125-26, 902 A.2d 1174, 1178 (2006).

Similarly adequate was a child who “equated truthfulness with telling what

was ‘real’ and lying with telling that which was ‘pretend,’” State v. R.W., 104 N.J.

14, 18, 514 A.2d 1287, 1289 (1986), and another who “equated truthfulness with

‘good’ and lying with ‘bad’ and stated that he tried never to be ‘bad’ for fear of

receiving a beating. He further indicated that he would tell the court what had

transpired ‘the way it (was).’” State in Interest of R. R., 79 N.J. at 114, 398 A.2d at

84.

convey an appreciation of the wrongfulness of telling a lie18 – unlike Doe, who never

retreated from thinking it better to lie.

“In short, . . . judges need no imaginative powers, knowledge of

developmental psychology, training in cognitive science, or expertise in social and

cultural anthropology” to conduct an adequate competency examination. They

simply need to ask questions and elicit answers applying “common sense

18.

In State v. Ponteras, 44 Haw. 71, 73, 351 P.2d 1097 (1960), the child knew “it

was not good to tell a lie, and that people who tell lies ‘get punished,’” and

understood that an oath was to “raise your right hand and swear to tell the truth.”

Id. The witness also manifested an appreciation of the difference between truth

and falsehood by acknowledging that “she often lied to her mother and her father”

before promising to tell the truth in court. Id., 44 Haw. at 74, 351 P.2d at 1099.

In Ricketts, “the child stated that she went to church, that a lie was a thing

that is not true, and that it was a bad thing to tell a lie. She testified further that if

you tell a lie you sometimes get a spanking.” Id., 488 A.2d at 856-57. In another

case, the child replied that the consequences of lying were “I get grounded, and

sometimes I have to stay in the house for a week or so.” Brown, 138 N.H. at 652,

644 A.2d at 1083.

In In re A.H.B., one child said it would be “a lie” to say one of the lawyers was

wearing a red jacket “because you’re wearing a brown jacket” and “the truth” to say

he was wearing a tan shirt “because you’re wearing a tan shirt.” Id., 491 A.2d at

493. Similarly, another said “that’s a lie” to say someone was three feet away if

they were ten feet away “because he was not three feet away, he’s ten feet away;”

even if the difference was only one foot “that’s a lie too.” Similarly, if “you’re just

not sure” and said three feet, “No, you’re telling a story because you don’t really

know how many feet he is away” and “you’re not supposed to tell any stories.” Id.,

at 494. The children also demonstrated their appreciation of a preference for the

truth. One though he would be “punished” if told a lie and the judge could “put me

in a home . . . if I lie.” Id. The other remarked she could “go to jail” or “go to the

devil” for lying. Id. “Fear of punishment satisfies the ‘duty’ requirement.” Id. The

“sense of moral responsibility alone is sufficient to establish an awareness of the

duty to be truthful.” Id., at 495.

Asked about lying, one child replied “We don’t do that kind of stuff,”

explaining that when one did so, “you get in trouble” with parents, everybody, your

family, God and Jesus. Brigandi, 186 Conn. at 535 n.16, 442 A.2d at 934 n.16. See

also Bueso, 225 N.J. at 213, 137 A.3d at 528-29; R.W., 104 N.J. at 18, 514 A.2d at

1289; State in Interest of R.R., 79 N.J. at 114, 398 A.2d at 84.

[awareness] that a 7-year-old is not a 13-year-old and neither is an adult.” J.D.B.,

564 U.S. at 279-80.

When, in fine, the trial judge fails to conduct a sufficient inquiry or where

voir dire reveals that the child “was unable to distinguish between telling the truth

and telling a lie [and] she gave no indication of knowledge that she would be

punished if she told a lie . . . [the requirement that the child] must ‘understand the

nature and obligation of an oath’ before being competent to testify has not here been

met.” Martin v. State, 251 Ind. 587, 603, 244 N.E.2d 100, 108-09 (1969).

II.

Doe’s Statements Should Have Been Excluded as Incompetent and

Unreliable

As the Prosecutor Conceded, Doe Was Not Competent at the

Time of Her Recorded Statement

Regardless of the judge’s assessment of Doe’s competence at trial, because

“the determination of competency is an ongoing one,” Ford, 626 So.2d at 1347,

quoting Kentucky v. Stincer, 482 U.S. 730, 740 (1987), “a child found competent at

one point in time may become [or have been] incompetent at [another].” Brousseau,

172 Wash.2d at 348, 259 P.3d at 217; accord Ford, 626 So.2d at 1347.

When disavowing any intent to assess Doe’s earlier competency,19 the trial

19.

The Ninth Circuit panel seemed not to recognize that the trial court held a

hearing only into Doe’s current competency at the time of her proposed trial

testimony. He not only made no attempt to assess Doe’s competency as of the time

she related a story replete with incontrovertible falsehoods, but he expressly

disclaimed any need to do so. The trial judge never addressed Doe’s competency at

the time she claimed her mother, Farnum, and brother all died, all of whom were

indisputably still alive and unharmed.

judge was already aware of glaring inconsistencies between Doe’s testimony and the

statements in her 2008 interview. Compounding her “distracted and even flippant”

demeanor, “as if she was playing a game,” C.T. 43, 60, the need to ensure Doe’s

appreciation of the “‘duty to tell the truth’ [should have been] underscored by the

child’s many inconsistent statements.” Ford, 626 So.2d at 1348.

However, instead of assessing competency, the trial judge considered only a

handful of factors prompting him to assume Doe’s 2008 statements might be

reliable, principal of which was whether Doe was “influenced by the interviewer,

were there consistencies/inconsistencies,” R.T. 168, seemingly ignoring the role

fantasy and imagination play in story-telling by children.

Notably, he ignored the most obvious inconsistencies – Doe’s claim that her

mother died, her father died, her claims of two brothers both named Jo Jo (at least

one of whose deaths she caused), and a non-existent sister (or pair of identically

named sisters) – that were undisputed. Instead, the judge focused on

uncorroborated assumptions.

Perhaps most tellingly, the trial judge credited that Doe “described the

various colors, red, blue and yellow – I don’t know if they were true or not. . . . I

couldn’t tell what the colors were, actually. But she described those colors.” R.T.

168. Quite strikingly, both the prosecutor and the defense agreed that Doe’s

identification of colors was wrong. R.T. 573-74, 610-11.

His other rationalizations fared no better. The trial judge stated “I was kind

of astonished that she knew who Pinocchio was, but she knew Pinocchio.” R.T. 168.

She was also familiar with Sponge Bob, Spider-Man, and Dora the Explorer. C.T.

173-74. Astonishment notwithstanding, the trial judge offered no explanation how

familiarity with cartoon characters marketed to children her age correlated with an

ability to distinguish fact from fantasy or appreciate the duty to tell the truth.

The trial judge’s reference to fairy tales provides an apt example why

“consistency” is not the touchstone. No matter how many times one tells the story

of a wooden marionette magically transformed into a living boy, that it was told

consistently gives no insight into whether it was a true account of matters actually

witnessed or that the story-teller has an “appreciation of the difference between

truth and falsehood.”

While Doe’s claim to be starting school “when I get my shots” may have been

plausible, the trial judge had no information whether that statement was true. The

judge knew nothing about Doe’s school attendance or enrollment, or the status of

her vaccinations. The trial judge was equally ignorant of what her teacher’s name

was or would be, or that it was “Shelley.” C.T. 172; R.T. 168. The trial judge did

know, perhaps not coincidentally, that “Shelley” was the same name Doe bestowed

on her imaginary twin sister and her fictional little sister. C.T. 178-79.

The only fact the trial judge relied on that could be corroborated was

something he and Doe were both wrong about. After Doe stated that she caused Jo

Jo’s death, Doe “corrected” the interviewer to clarify that Tommy (Baby John) had

been shaken.20 The trial judge treated the confusion caused by Doe’s false report of

20.

Doe said Jo Jo “jumped down and hurt hiself and he got died.” C.T. 182-83.

Walker:

Who hurt Jo Jo?

Jo Jo’s death as indicia of competency because she “was pretty quick to point out

that it’s not Jo Jo who died.” R.T. 168. But Doe never retreated from her

(unquestionably false) report that Jo Jo died; she only “corrected” that Tommy, not

Jo Jo, had been shaken. C.T. 182-84.

That she had “no motive whatsoever to fabricate” only reflects a lack of bias,

not competency. The risk wasn’t just that she was maliciously concocting a story.

Lack of hostility does not eliminate the very real concerns that she acted on the

proclivity of many young children to confuse fantasy with reality. Clyde Haberman,

The Trial that Unleashed Hysteria Over Child Abuse, N.Y. TIMES, Mar. 9, 2014. For

a child with such a demonstrated penchant for relating fanciful “facts,” however, the

lack of bias provides little to assurance that the statements are not simply a

product of her own fantasy.

The trial judge made no attempt to harmonize his conclusion with Doe’s

demonstrably false claims that

• her mother was injured and died, C.T. 179;

• her father (Farnum) died, C.T. 181;

• her brother Jo Jo died, C.T. 182-83;

• she had two brothers who were both named Jo Jo, C.T. 177-78;

• she had a sister who was both a baby and the same age as herself

(when she had no sister), C.T. 178;

• Doe herself had been hurt, C.T. 182;

• she claimed to live with Farnum and Preston, who did not live

together, even though she lived with Garcia, R.T. 122-23, 130, 213;

Doe:

Walker:

Doe:

I did.

How did you hurt Jo Jo?

I don’t know.

C.T. 182-83.

Moments later, asked “who shaked Jo Jo,” Doe replied “It’s Tommy.” C.T.

184.

C.T. 184-85, 191;

• it was “a truth” to call her “a boy” (and also a girl), C.T. 175; and

• it was “right” to call her female interviewer “a boy.” C.T. 175.

Even if the trial judge arguably could have found Doe was able to reliably

distinguish between fact and fantasy, no effort was made to ensure Doe appreciated

the obligation to tell the truth. A child’s casual and flippant attitude, expressed as

if being forced to play a grown-up’s game, cast serious doubt whether the child felt

any duty to tell the truth. Yet, after Doe said it was “better” to tell “a lie” than tell

the truth, the interviewer made no attempt to clarify or follow-up with Doe and no

one else ever asked that or a similar question again.

If Doe appreciated the distinction between fact and fiction, she would not

have reported so many incontrovertible lies. She likely did so because she did not

“entertain [] the danger and impiety of falsehood.” Wheeler, 159 U.S. at 525.

Doe Was Not Competent at the 2011 Trial

The goal of a competency hearing is to “determin[e] whether the child

possesses ‘moral responsibility’ that is, a consciousness of the duty to tell the truth.”

State in Interest of R. R., 79 N.J. at 113, 398 A.2d at 84. That inquiry should “be

more searching in proportion to chronological immaturity.” Medina v. Diguglielmo,

461 F.3d 417, 428 (3d Cir. 2006).

The trial judge made no attempt to assess either, let alone “searchingly.” The

colloquy failed to elicit evidence Doe had any meaningful understanding or

appreciation of what the trial judge asked her, that she genuinely understood what

it mean to tell the truth or that she had an obligation to tell the truth.

Asked what it meant to tell the truth, Doe provided no answer. R.T. 37.

Although acknowledging there was no snow outside, she agreed it would be the

“truth” if the judge said “there was a mountain of snow outside.” R.T. 38.

Although the judge got her to change her answer and call it “lying,” the

circumstances shed no light on whether she understood her error or was simply

desiring to please him. “Children are most susceptible to influence and outside

pressures.” J.D.B., 564 U.S. at 275. They are not only dependent on adults but also

look to adults for guidance. Ceci & Bruck, Suggestibility of the Child Witness, 113

PSYCHOL. BULL. at 418.21 Cajoling a child into an accurate response following

palpably inaccurate information fails to reveal an appreciation of the duty to tell

the truth rather than just accommodating. Id.; Martin, 244 N.E.2d at 108-09.

Doe’s malleability manifested itself later in the hearing as well. Even after

being repeatedly encouraged to acknowledge when she didn’t remember a fact,

when asked how she would answer if she didn’t recall, she incongruously replied

“Yes.” Reminded that she should say “I don’t remember,” she obediently parroted

back the judge’s simple three-word phrase. R.T. 41-42.

Although eliciting a series of affirmative answers from Doe, the trial judge

made no effort to ascertain whether she understood what she was agreeing to or

simply wanted to please the adults asking her questions. Although instructed to

21.

Children tend to “supply their adult questioner with the type of information

they think is being requested,” reflecting “children’s desire to comply with a

respected authority figure,” as a result of which children “sometimes attempt to

make their answers consistent with what they ses as the intent of the questioner.”

tell the truth, Doe never did any more than agree with the trial judge’s assertions

(whether true or false). Nothing confirmed she knew or understood what she was

agreeing to or that she no longer believed it was better to lie. No one asked her if it

was true to say she was a boy or girl, let alone whether it was better to tell the

truth or a lie.

The inquiry’s deficiency is highlighted by the fact that the only facts Doe

relayed whose veracity the trial judge could ascertain were (1) Barney is “the big

pink dinosaur,” (2) Sponge Bob is who “lives in a pineapple under the sea,” a fact

she really believed was true, (3) she lost “two” teeth but couldn’t understand top

from bottom, and (4) saying there was a mountain of snow outside the courthouse

was true (it was false). R.T. 35-38.

She was undoubtedly a cooperative child who desired to please others. But,

without “searching inquiry,” it was unreasonable to declare competent a child

witness who testified he did not know the difference between the truth and a lie.

Medina, 461 F.3d at 421-22, 430-31.

Apart from Doe’s prior statements, there was no evidence that Baby John

was shaken, dropped on the ground, or hit against a crib railing. No different than

a witness who claims to relate information obtained through necromancy or

telephathy, regardless of whether consistent with the prosecutor’s theory, there is

no permissible inference that can be drawn from information provided by a witness

who does not know the difference between true and false and does not understand

the obligation to tell only the truth.

III.

This Case is a Good Vehicle for the Questions Presented

Although acknowledging Doe exhibited obvious “difficulty” when she was 4

distinguishing truth from fantasy, R.T. 168-69, the trial judge disclaimed any need

to inquire into Doe’s “appreciation of the difference between truth and falsehood.”

Cf. Wheeler, 159 U.S. at 524. Similarly, although Doe had expressly declared – and

never wavered from – her belief that it was better to lie than tell the truth, C.T.

175, the trial judge disavowed any inquiry into Doe’s understanding of any “duty to

tell the [truth]” or the “impiety of falsehood.” Cf. Wheeler, 159 U.S. at 524-25.

Instead of assess Doe’s competency at the time of her fanciful allegations, the

trial judge eschewed any need to do so. R.T. 167-68.

Although Farnum claimed on appeal that the admission of Doe’s testimony

and prior statements violated due process, the state appellate court addressed only

whether she was properly found competent under state law and whether the earlier

statements were admissible as prior inconsistent statements. App. 100a-103a.

Because the federal question of due process is only “somewhat similar” to the state

statutory issues, e.g. Duncan v. Henry, 513 U.S. 364, 366 (1995) (state law

assessment of balance of prejudicial versus probative value is distinct from claim of

due process violation), this isn’t a situation where “the state-law rule subsumes the

federal standard.” Johnson v. Williams, 568 U.S. 289, 301-02 (2013).

Having (erroneously) concluded Doe was competent under state law, the state

courts “did not reach the merits” of Farnum’s due process claim. Because his

“federal claim was [] overlooked in state court, § 2254(d) entitles [him] to an

unencumbered opportunity to make his case before a federal judge.” Johnson, 568

U.S. at 303. “[T]he claim is reviewed de novo.” Cone v. Bell, 556 U.S. 449, 472

(2009).

Moreover, independent of Doe’s rudimentary communication skills, the trial

judge wholly ignored the critical inquiry: whether Doe understood and appreciated

an obligation to tell the truth when responding to questions.22 Rather than consider

her understanding of the difference between truth and fantasy and appreciation of

the duty to tell the truth, the trial judge seized on the lack of alternative grounds for

not excluding her statements. A lack of suggestiveness gave no assurance Doe was

providing information she knew or believed true as opposed to imagined and

thought to be a preferable lie. Her mere familiarity with Pinocchio – and no claim

it provided her a moral compass – did not reflect on her appreciation of the duty to

tell the truth and ability to distinguish between fact and fantasy.

The state courts’ conclusions were all the more unreasonable given that even

the prosecutor rejected them, disavowing any claim that Doe could differentiate

between the truth and a lie.

Doe’s inability to identify in her own, even immature, words what it means to

tell the truth, failure to embrace any preference for the truth over lies (particularly

22.

Even two years later, when six years old at trial, Doe still had difficulty

verbalizing responses, often providing no answer whatsoever to a question. Cf.

Delacruz v. State, 734 So.2d 1116, 1119 (Fla. Ct. App. 1999) (child witness found

incompetent when voir dire consisting of non-verbal shrugs and head shaking

reveals “nothing . . . that establishes that she understood what it meant to tell the

truth; the difference between telling the truth and telling a lie; or what would

happen if she did not tell the truth.”).

in light of her past preference for lies), initial endorsement of a "mountain of snow

outside" as "the truth" when it was a lie, and overall failure to do more than

acknowledge the judge's instructions without demonstrating understanding of

them, characterizing Doe as "sharp" was patently unreasonable.

A state court's decision rests on an unreasonable determination of the facts

when the state court ''based its conclusion, in part, on a clear factual error."

Wiggins v. Smith, 539 U.S. 510, 528 (2003). The trial judge had no basis for

crediting, without evidence, Doe was being truthful and accurate in identifying her

future teacher as "Shelley," relying on her identification of colors when he

acknowledged being unable to detect if they were accurate or not, or relying on

Doe's identification of her adult caretakers when couldn't even accurately identify

who she lived with or others in' her household. Because the state court's finding

was predicated on unreasonable facts, Farm.im's petition is not further constraine.d

by§ 2254(d) and the issue is therefore presented for this Court's independent

review. Miller-El v. Cockrell, 537 U.S. 322, 346 (2003).

CONCLUSION

For the foregoing reasons, the petition should be granted.

SEPTEMBER 27, 2019.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.