Although it has been almost 20 years since the case of Kelly Michaels, State v. Michaels, 136 N.J. 299 (1994) one cannot assume that Michaels issues are a thing of the past. I recently won a case involving Michaels type issues so it is sadly still on going. There are still too many detectives and prosecutors who want nothing more than to convict the defendant. For example, my case involved a child initially indicating that her father never did anything inappropriate to her and then an hour later (after having access to her mother and a DYFS case worker) she gives a story that is 180 degrees different. Even a layperson who has never watched one episode of Law & Order would knows that the first thing you would want to do is find out what happened. But of course, in my case, the question was never asked. The detective was seemingly very happy with this disclosure and not attempt was made to determine if the child was coached. Luckily, the client was never prosecuted and the DYFS case was dismissed on my motion.
Thus, the above case indicates that taint hearings and the defense of coaching should not be limited to just law enforcement personnel. Anyone having access to the child can coach the child. In another case I had, the child victim’s teacher was actually the wife of the investigating officer. The victim made a brief disclosure to her mother who called the police. However, the child was not interviewed until the next day. The officer then went home and discussed the case with his wife. Meanwhile, the child went home and as she indicated, “discussed it a lot” with her mom. The next day, the child spoke to the teacher first and was only then interviewed by the police. At that point, the child had a lengthy conversation with her mother and then the teacher. By the time she had spoken to the police the next day, her conversation was clearly suspect. Thus, defense attorneys need to have a broad scope when they file a Michaels motion because the taint may not always arise from law enforcement sources. This is just another reason why DYFS records are important.
Also keep in mind that the Michaels hearing will usually take place at the same time as the 803(c)(27) hearing. Again, this is one of the primary issues that makes the defense of child sex crime cases so unique. For the less experienced practitioner, these cases may be too difficult. However, the battle hardened lawyer only views them as challenging and what’s the point of being a top notch criminal defense attorney if you don’t enjoy a good challenge?