James Morton comments on the New York case of John F Carroll, appealing against his conviction of indecently assaulting a young girl ...

The case may not be so instantly audience friendly as that of the poor doctor standing accused of the murder of his wife, but the appeal of John F Carroll, begun a fortnight ago in the New York Court of Appeals, has much more law to it. Mr Carroll is presently working his way through an 8-and-a-half to 25 year sentence in Dannemora after being convicted of indecently assaulting a young girl over a seven year period. The girl, then aged 13, told her mother of the alleged abuse and named Carroll. He was a man of good character. The police officers called in to investigate became convinced that he was a rapist and child molester and, in true police tradition, set about garnering the evidence and obtaining a confession.

Here they ran into a stumbling block. They decided it would be for the best if he was tricked into admitting his guilt. They, therefore, had the child telephone Carroll under their supervision. Unfortunately for them, he adamantly denied the accusation, and three times during the 15 minute conversation advised her to see a doctor. Unfortunately for him, he did not tell her he thought she was lying, but was merely confused. The next step for the police was to have him down the station and tell him she had passed a lie detector test. This was untrue. She had never taken one. The interview lasted three hours, during which time no tape was run, and the discussion was reduced to a bare two pages of notes.

The prosecution's evidence at the trial was the word of a nurse who said that there had, at some time, been vaginal penetration; an expert who explained why the victims of sexual abuse do not make immediate complaints, and the police officers who said that Carroll had never denied molesting the girl. He says he did deny the claims, and certainly, his denials appear on the telephone tape.

When Carroll's lawyers tried to have that tape introduced in evidence they ran into a stone wall in the form of Judge Joseph Sise. The judge characterised it as 'self-serving' hearsay and refused to admit it. The thinking behind this decision appears to have been that testimony about a statement made outside a courtroom is barred unless it qualifies as an exception such as an 'excited utterance'. Mr Carroll's denials could not fall into this category because, since he had allegedly been abusing the girl for the better part of a decade, he could not have been surprised when the allegation was made, and so his denials were self serving.

Things did not get much better for him. When he first appealed he lost 5-0. Now he has another shot, even though it is statistically a long one. His counsel argues that what the court is saying is that a defendant or potential defendant, because he did it, can never be surprised. He is also hoping the court will clarify the question of ethics and interrogation.

Carroll would not be in this position over here. It is inconceivable that the telephone tape recording would not have been introduced. There would have been serious questions raised about why the police station interview was not taped and why the police were allowed to try to trap him. Here, the Court of Appeal was particularly severe in the case of Mason (1987) 86 Cr App R 349 when the police lied to a suspect in the presence of his solicitor, saying wrongly that his fingerprints had been found. In America, however, a widely read police manual by Inban and Read accepts most of the techniques of interrogation will inevitably involve some sort of deception because they require an officer to make statements he knows are untrue...

All in all, it shows how two countries can be divided, not merely by a common language, but a more or less common legal system. We shall not know until December whether Mr Carroll wins his appeal, so narrowing the gap. He would probably have a better run at things if the appeal was being heard in the Strand. (31/10/00)