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Taint Hearing: Scientific And Legal Underpinnings
By Ashish S. Joshi
Federal Rule of Evidence 602 and the corresponding state rules require
that a witness must testify from personal knowledge. If witnesses are
unable to testify from personal knowledge because their memories have
been altered or manipulated, they are said to be tainted.1 These tainted witnesses are not competent to testify at trial.
More often than not, the alleged victim in a child sexual abuse case has
been questioned repeatedly by several authority figures in different
settings. These authority figures may include anxious parents and other
adult family members, schoolteachers, forensic interviewers, police
officials, and social worker therapists. There is reasonable concern
that the child witness’s memory of events has been tainted by the
questioning, interviewing, or counseling such that the witness is not
competent under the rules of evidence. In this circumstance, a taint
hearing is needed to ascertain whether the proposed witness is competent
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