Motion to Suppress
Now comes the defendant in the above-entitled matter and moves that the Court preclude the hearsay testimony of Therapist [insert name of Therapist]on the grounds that her anticipated testimony will be comprised of hearsay, supererogatory, gratuitous, unwarranted, and uncontrolled evidence, and will thereby violate John Doe's constitutional rights to a fair trial.
In support of his motion, John Doe
Therapist, who at deposition and/or at trial, testified to the
In conclusion, Therapist 's statements cannot pass muster of a "reliability" test required under G.L. c. 233, s. 81. She has already admitted that any of Child Doe's statements to her may well have been distorted by the multiple interviews that preceded her alleged so-called "therapy" of Child Doe.
Defendant suggests that Therapist has not been performing "therapy" but, instead, has been preparing the child as a witness for the prosecution under the auspices of the Office of the District Attorney. There is evidence of bias throughout her process notes and the documentation produced by Therapist herself at her deposition at the request of the Defendant.
Moreover, Child Doe, herself, is not unavailable as defined in that G.L. c. 233, s. 81. In view of the extensive preparation over a period of years of the child Child Doe for testifying, Defendant must have the opportunity to cross-examine Child Doe herself. Comm. v. Stockhammer, 409 Mass. 867, 875 (1991) ("'[t]he right to cross-examine a complainant in a rape case to show a false accusation may be the last refuge if an innocent defendant.' Comm. v. Elliot, 393 Mass. 824, 828 (1985), quoting Comm. v. Joyce, 382 Mass. 222, 229 (1981).'").
WHEREFORE, Defendant respectfully
Therapist 's anticipated testimony be suppressed in entirety, including
any and all statements Child Doe may have made to Therapist . To
do otherwise would violate John Doe's rights to a fair trial.
I, [insert name], hereby depose and say that:
1. I am a member in good standing with the bar in this Commonwealth.
2. I represent the Defendant in the above-captioned action.
3. I have been at all Court proceedings in this action, including the divorce trial entitled Doe v. Doe held during 1989 at Probate & Family Court at City.
4. I deposed Therapist at my office regarding the matters discussed in the motion of which this affidavit is in support and listened well to her answers both to my questions and to the questions by attorney of Mother Doe.
5. I cross-examined Therapist at the Does' divorce trial regarding the matters discussed in the motion of which this affidavit is in support and listened well to her answers both to my questions and to the questions by attorney of Mother Doe.
6. I hereby certify that the facts as re-iterated in this motion are true.
7. The findings referred to in this motion are those of the Honorable Judge ____ and are the same as those attached to the memorandum in support of Defendant's Motion to Dismiss and certified to be a true and accurate copy of Judge ____'s Findings of Fact and Rulings of Law, which were written after trial and which I have kept in the ordinary course of business.
Signed under the pains and