The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER ON MOTIONS IN LIMINE
Before the Court is the Defendant's motion in limine filed on December 30, 2009. See Docket No. 68. The Government filed a response on January 5, 2010. See Docket Nos. 71 and 72. The Defendant filed a reply to its motion and a response to the Government's motion in limine on January 8, 2010. See Docket Nos. 73 and 74. For the reasons set forth below, the Court defers ruling on the Defendant's motion in limine and grants the Government's motion in limine.
The defendant, Kyle DeCoteau, was indicted on June 3, 2008, on two counts of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c) and 1153 and two counts of abusive sexual contact in violation of 18 U.S.C. §§ 2244(a)(5) and 1153. DeCoteau is alleged to have sexually abused two children, S.S., who was 6-years old, and R.S.L., who was 10 or 11-years old, at the time of the alleged incidents, between December 2006 and September 2007. The acts are alleged to have occurred within the boundaries of the Turtle Mountain Indian Reservation. On March 19, 2008 and April 24, 2008, Jeanne LeMay, a trained forensic examiner, conducted forensic interviews of S.S. and R.S.L. at the Northern Plains Children's Advocacy Center in Minot, North Dakota.
DeCoteau has filed a motion in limine to exclude the admission of the following evidence at trial:
1. Testimony from Jeanne J. LeMay regarding a March 19, 2008 interview with S.S., one of the alleged victims in this case, at the Northern Plains Children's Advocacy Center in Minot, North Dakota.
2. Testimony of Jeanne J. LeMay regarding the April 24, 2008, forensic interview of R.S.L., one of the alleged victims in this case, at the Northern Plains Children's Advocacy Center in Minot, North Dakota.
3. The video and audio recordings of the March 19, 2008, and April 24, 2008, forensic interviews of the two alleged victims conducted at the Northern Plains Children's Advocacy Center in Minot, North Dakota.
4. Any hearsay testimony. No notice has been provided from the government that it intends on introducing hearsay. Defendant asserts that any statements made by the alleged victims to law enforcement or forensic interviewers do not fall within any exception to the hearsay rule.
The confrontation clause of the Sixth Amendment to the United States Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The confrontation clause generally affords a defendant the right to face-to-face confrontation, but it is not guaranteed in every instance. Maryland v. Craig, 497 U.S. 836, 847 (1990). "The confrontation clause 'does not necessarily prohibit the admission of hearsay statements against a criminal defendant.' It does, however, bar 'the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.'" United States v. Turning Bear, 357 F.3d 730, 737 (8th Cir. 2004) (quoting Idaho v. Wright, 497 U.S. 805, 813, 814 (1990)). "The Confrontation Clause is satisfied when the hearsay evidence falls within a firmly rooted exception to the hearsay rule or is supported by facts that otherwise demonstrate the statement's reliability; the Confrontation Clause is alternatively satisfied when the hearsay declarant testifies at trial and is available for cross-examination." Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir. 2003). To satisfy the requirements under the confrontation clause, out-of-court statements of child victims in sexual abuse cases "must bear adequate 'indicia of reliability,' either because they fall within a 'firmly rooted hearsay exception' or because they are supported by a showing of particularized guarantees of trustworthiness." United States v. Sumner, 204 F.3d 1182, 1185 (8th Cir. 2000) (quoting Idaho, 497 U.S. at 816).
A. DEFENDANT'S MOTION IN LIMINE
In anticipation of the Government calling the alleged victims, S.S. and R.S.L., during trial, DeCoteau seeks to exclude the admission of the forensic interviews and the testimony of forensic examiner Jeanne LeMay. DeCoteau argues that the statements made by S.S. and R.S.L. during the forensic interviews should be excluded because they do not have circumstantial guarantees of trustworthiness. DeCoteau contends that "serious questions exist as to the interview techniques employed by the forensic interviewer, techniques which ...