US v. Fergusson: While Fergusson was station in Japan working for the Department of Defense, his 11-year-old stepdaughter, JD, sent at text to her mother alleging that Fergusson had sexually abused her. JD’s mother took her and left the home and contacted investigators. As part of the ensuing investigation, JD was interviewed by an investigator with specialized training in conducting child forensic interviews. After an nearly 10-minute introductory section of rapport building and rule establishing between the interviewer and JD, JD restated the allegations against Fergusson. Fergusson was charged with sexual abuse and went to trial. At trial, after JD had been cross-examined, the Government was allowed to introduce the entire interview with JD into evidence. Fergusson was convicted.
On appeal, the Fourth Circuit affirmed Fergusson’s conviction. At issue was the first portion of the interview video, which Fergusson argued was inadmissible hearsay, not covered (as he agreed the rest was) by the hearsay exception for prior recorded statements. Noting that the record was unclear as to the precise basis on which the video was admitted, the court ultimately concluded that the challenged portion of JD’s interview was not hearsay at all because it was not presented for the truth of the matter asserted, but to show proper forensic interview techniques that went to the reliability of JD’s statements. In addition, the court held that that portion of the video was not more prejudicial than probative.
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