Loyal Miller v. Tennessee Board of Paroles - Concurring

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE FILED February 1, 1999

LOYAL MILLER, ) Cecil W. Crowson ) Appellate Court Clerk Plaintiff/Appellant, ) Davidson Chancery ) No. 97-4127-I VS. ) ) Appeal No. TENNESSEE BOARD OF PAROLES, ) 01A01-9806-CH-00293 ) Defendant/Appellee. )

APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR

For the Plaintiff/Appellant: For the Defendant/Appellee:

Kenneth L. Miller John Knox Walkup Logan Thompson Miller Bilbo Thompson & Fisher Attorney General and Reporter Cleveland, Tennessee Michael E. Moore Solicitor General

Patricia C. Kussmann Assistant Attorney General

REVERSED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

OPINION

This appeal involves the fundamental fairness of the procedures used by the Tennessee Board of Paroles to re voke the parole of a p erson accused of c omm itting child sexual abuse. The Board revoked the parole b ased solely on hearsay testimony concerning statemen ts made b y his alleged victim. The parolee filed a petition for a comm on-law w rit of certiorari in the Chancery Court for Davidson County seeking judicial review of the Board’s decision-making process. After the trial court denied the petition, the parolee appealed to this court. We ha ve determ ined that the B oard’s hea ring officer ac ted arbitrarily and illegally by applying an incorrect standard to determine whether good cause existed for not allowing the parolee to co nfront or to cross-exam ine his only accuser. Accordingly, we reverse the trial court’s denial of the parolee’s petition for a com mon-law w rit of certiorari and remand the case to the trial court for the entry of a n order dire cting the B oard either to conduct a proper parole revocation hearing forthwith or to return the parolee to parole status.

I.

Loyal Miller stabbed Lynn Howell three times during a knife fight on Spivey Moun tain in Unicoi County. After Mr. Howell died of his wounds, Mr. Miller was convicted of second degree murder and was sentenced to thirty years in the Department of Correction.1 When Mr. M iller was paro led in 1993 , he returned to Unicoi C ounty and later mov ed to Bradley County where he attempted to resume an ordinary life.2 After settling in Bradley County, Mr. M iller maintain ed steady e mploym ent, reported reg ularly to his pa role officer, paid his parole fees, and remained arrest free.

Some time in 1995, Mr. Miller became acquainted with J.M. who lived next door to him with her four children. J.M. had recently separated from her husband and was in the process of obtaining a divorce. Mr. Miller and J.M. became friends and even dated on

1 The Tennessee Court of Criminal Appeals subsequently affirmed both his conviction and sentence. See Miller v. State, No. 36, 1988 WL 33867, at *6 (Tenn. Crim. App. Apr. 12, 1988), perm. app. denied (Tenn. July 25, 1988). Three years later, the Court of Criminal Appeals denied Mr. Miller’s petition for post-conviction relief. See Miller v. State, No. 51, 1991 WL 180613 (Tenn. Crim. App. Sept. 17, 1991) (No Tenn. R. App. P. 11 application filed). 2 The record contains sketchy, unreliable hearsay evidence concerning the circumstances surrounding Mr. Miller’s decision to move from Unicoi County to Bradley County.

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several occasions. He also becam e friend s with J .M.’s c hildren , includin g D.M .,3 her eleven- year-old daughter. M r. Miller wa s popular w ith J.M.’s children and the other neighborhood children and, on occasion, took them out for ice cream.

On March 4, 1997, a stu dent at Arn old Elem entary Sch ool reported to Becky Guthrie, a school counselor, that D.M. w as crying in one of the s chool’s ba throoms . Ms. Gu thrie found D.M. in a girls’ bathroom and escorted the child to her office to talk with her privately. During the interview, D.M . told Ms. Guthrie that Mr. Miller had fondled her between her legs while they had be en riding around in his truck during the past weekend. D.M. also recounted other incidents in which she said that Mr. Miller had kissed her on the mouth and had touched her breasts. M s. Guthrie contacted the local police and the Department of Children’s Services, an d soon the reafter, represe ntatives of th ese agencies arrived at the school and took charge of the investigation.

Tom Eady, an employee of the Department of Children’s Services, and Detectiv e Sheila Freeman of the Cleveland Police Department interviewed D.M. at the school on March 4, 1997 in M s. Guthrie’s p resence. D .M. told them that Mr. Miller had “touched me in places where he shouldn’t have.” She stated that on February 28, 1997, M r. Miller had put his hand down the front of her shirt and the front of her pants while they were driving down the road past the library. She also stated that Mr. Miller had put his hand down her pants on two prior occasions and that he put his hands on her breasts while “popping” her back at his house. At the conclusion of the interview, the investigators told D.M. that she had “d one the right thin g” by ta lking w ith them and tha t “we’r e going to take c are of it.”

Detective Freeman interviewed Mr. Miller on April 30, 1997 at the Cleveland Police Departm ent. While M r. Miller denied ever placing his hands under D .M.’s clothes, he admitted that he had popped her back. He stated that he “would lay her down on the floor on her belly and just take my hands and push up and down on her spine and it will pop her back.” Whe n Dete ctive Fr eema n asked why D .M. had accused him of ab using her, Mr. Miller stated that she had become angry with him several times because he had told her mother that she w as getting into cars with b oys. H e also sta ted that h e thoug ht that D .M. might be tryin g to “ge t . . . [him] out o f the picture” because s he was u nhappy about him seeing her mothe r.

3 The trial court granted the Board permission to submit the record of the parole revocation proceedings under seal because it contains documents disclosing the identity of an alleged victim of child sexual abuse. We question whether Tenn. Code Ann. § 37-1-409(1996) applies to evidence introduced before the Board of Paroles or in common-law certiorari proceedings. However, because of the nature of the alleged offense and the age of the alleged victim, we will refer to the victim and her family members by their initials.

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Mr. Miller wa s arrested on a parole vio lation warran t but was n ever crim inally charged with se xual ba ttery. O n July 1 6, 1997 , he requested a speedy parole revocation hearing. On July 23, 1997, Gale Reed, the supervisor of the Board’s office in Bradley County, Linda Brown, Mr. Miller’s parole officer, and Diane Hodo, the victim/witness coordinator for the d istrict attor ney’s o ffice m et with J .M. and D.M . to prepare the child for testifying at the parole r evocation hearing. T hey disco vered that J.M . did not believe her daughter had been telling the truth and that D.M. would not discuss her accusations about Mr. Miller with anyone other than Kim Brown , a family coordinator w ith the Governor’s Comm unity Preven tion Initia tive for C hildren . Kim Brown had apparently been counseling one of D.M.’s siblings concerning matters unrelated to Mr. Miller. They also discovered that D.M . would not per mit the m to tak e a vide otaped statem ent.

The Board employees and the victim/witness coordinator decided that D.M. had been “intimidated” and “harassed” because her family did not believe her allegations aga inst Mr. Miller. They decided to ask Kim Brown to have another private discussion with D.M. During a conversation w ith Kim B rown on A ugust 12, 1997, D .M. recounted tw o more incidents that she had previously not mentioned to the authorities. One involved an occasion when Mr. Miller had told D.M. that “[y]our pa nts are big enough for you and I to fit in.” The other involved in appropriate touching in Mr. M iller’s bedroo m, even though D .M. had to ld the investigators on March 4, 1997, that Mr. Miller had never tried anything in the bedroom.4 Kim Brown reported back to Ms. Reed on August 13, 1997 that D.M. was “scared and tearful” and that she “appe ared to be very con fused and scared if she w ould have to testify . . . [against] Mr. Miller.” Based on this information, the Board’s employees decided not to call D.M. as a witness at Mr. Miller’s parole revocation hearing.

The Board’s h earing office r conduc ted Mr. M iller’s parole revocation hearing on August 21, 1997 at the Bru shy Moun tain Correctional Com plex. The parole officer presenting the case against Mr. Miller called only two witnesses – Ms. Guthrie and Mr. Eady. Detective Freeman failed to appear even though she had been subpoenaed, and Kim Brown did not attend because of prior commitments. Over M r. Miller’s strenuous objections, Ms. Guthrie recounted D.M.’s hearsay statements to her on March 4, 1997, and Mr. Eady authenticated the trans cript of th e intervi ew he and D etective Freem an con ducted with D .M. on March 4, 1997. The hearing officer also permitted Mr. Eady and Ms. Guthrie to express their belief that D.M. was telling the truth. Even though Ms. Reed w as not called as a

4 On March 4, 1997, D.M. stated that she had been in Mr. Miller’s bedroom looking at a Bible and that Mr. Miller had not done anything in the bedroom. On August 12, 1997, D.M. told Kim Brown that she had gone into Mr. Miller’s bedroom looking for “rings for an African American project for school” and that Mr. Miller had followed her into the bedroom and had touched both of her breasts with his hands and had “touched me on my vagina with both hands.”

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witness, the hearing officer permitted her to recount Ms. Hodo’s and Kim Brown’s hearsay statements concerning D.M.’s refusa l to discuss the incident. The balan ce of the Board’s case consisted o f a transcript of th e statemen t Mr. M iller gave to D etective Free man on April 30, 1997 and a copy of M s. Kim Brow n’s report of her conversation with D.M. on August 12, 1997.

Mr. Miller testified o n his own be half. He de nied sexu ally abusing D.M. or touching her in an inappropriate way. He also explained the references to “popping” D.M.’s back by describing how he “popped ” D.M .’s older sister’s b ack to help her with headaches caused by her back problem s. Apparently the sister’s chiropractor also “popped” her back to give her some relief. Mr. Miller stated that he had also “popped” D.M.’s back but denied ever putting his hands on her bre asts while doing it. Mr. M iller’s attorney also introduced a sw orn statement by J.M. In her statement, J.M. confirmed that D.M. had told her that Mr. Miller had put his hands in her pants but added that when she pressed D.M. for details, her daughter told her that “he grabbed a belt loop of her baggy pants, pulled them out and said ‘there’s enough room in th ere for both of us.’ . . . [D.M.] never told me . . . that . . . [Mr. Miller’s] hands were inside her pants.” J.M. also stated that D.M. had told her father about Mr. Miller grabbing her belt loops. In addition, she explained that she had questioned her older daughter about the “popping” incident and that her older daughter had confirmed that she had been present during the incident and that M r. Miller had not touched D.M.’s breasts. J .M. concluded by stating that she believed that D.M. was simply emb arrassed about M r. Miller’s comm ents ab out the s ize of he r pants.

Following a 43-minute recess, the hearing officer announced that she had concluded that Mr. Miller had violated the rules o f his parole “based on the testimony of the State’s witnesses here today that I feel is reliable proof.” She also stated that she intended to recommend to the Board that Mr. Miller’s parole be revoked. Between August 25 and September 25, 199 7, three Board members signified their agreement with the hearing officer’s recommendation, and on October 3, 1997 , Mr. Miller was no tified that the Board had concurred with the hearing officer’s recommendation to revoke his parole. Mr. Miller sought administrative review of this decision and received word on November 21, 1997 that his request for review had been denied.

On Decemb er 12, 1997, M r. Miller filed a petition for a comm on-law writ of certiorari in the Chancery Court for Davidson County. He asserted that the hearing officer had denied his right to due process by allowing the introduction of hearsay evidence which had not been established as being reliable and by not allowing confrontation of witnesses without the required finding of good cause. On Ap ril 22, 1998, the trial court filed an order d enying Mr.

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Miller’s petition base d on its findin g that “the h earing office r did not exc eed his [sic] authority or act arbitrarily, illegally or fraudulently in determining that good cause existed for not allowing the petitioner to confront the child witness.” This appeal followed.

II.

Prisoners do not have a right to be released from confinement prior to the expiration of their sen tence. See Tenn. Code Ann. § 4 0-28-117 (a) (1997); Graha m v. State, 202 Tenn. 423, 426, 304 S.W.2d 622, 623 -24 (1957 ); Tarpley v. Traughber, 944 S.W.2 d 394, 395 (Tenn. Ct. App. 1996). Decisions to grant parole are discretionary and are solely the prerogative of the T enness ee Bo ard of P aroles. See Tenn. Code Ann. § 40-28-116(a)(1) (Supp. 1998); State ex rel. Ivey v. Meadows, 216 Tenn. 678, 685, 393 S.W.2d 744, 747 (1965). These decisions may be reviewed using a common-law writ of certiorari, but the courts may no t overturn the m if they have been done accord ing to law . See Tenn. Code Ann. § 40-28-115 (c) (Supp. 1 998); Flowers v. Traughber, 910 S.W.2d 468, 470 (Tenn. Crim. App. 1995). The scope of review available thro ugh a com mon-law writ of certiorari is ex tremely narrow. The writ may be used only to determine w hether, in a particular case, the Board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily; it m ay not be u sed to review the corr ectness of the B oard’s d ecision . See Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478 , 480 (Tenn. 1997 ).

The Board’s decisions either to revo ke or to resc ind parole a re also review able only through a com mon- law w rit of certio rari. See Sanders v. Tennessee Bd. of Paroles, 944 S.W .2d 395, 397 (Tenn. C t. App. 199 6) (revoca tion of paro le); Daniels v. Traughber, No. 01A01-9707-CH-00297, 1998 WL 221075, at *3 (Tenn. Ct. App. May 6, 1998), perm. app. denied (Tenn. Jan. 4, 1999) (recission of parole). Accordingly, we will review decisions to revoke parole to determine whether the Board exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. We will not review the Board’s decision simply to determine whether it is correct, and we will not grant relief if the decision was arrived at in a constitutional and law ful ma nner. See Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d at 480 ; Powell v. Parole Eligibility Review Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App . 1994).

III.

This appeal does not require us to decide wheth er Mr. M iller sexu ally abu sed D .M. The sole issue here involves the ad equacy and fun damental fairness of the p rocedure employed by the Board to rev oke Mr. M iller’s parole. If we find that the procedure employed in this case comports with all applicable statutory and constitutional requirements,

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then we must affirm the trial court’s denial of Mr. Miller’s petition for a com mon-law writ of certiorari. If, however, we find that the proc edure w as inconsiste nt with app licable statutory and cons titutional requirements, then we must grant Mr. Miller relief. The appropriate relief is not to absolve him of the allegations against him but rather is to remand the case to the Board to afford Mr. Miller a constitutionally adequate parole revocation hearing.

A.

We first address the necessary proc edural ingredients for a constitutiona lly adequa te parole revocation hearing. Because parole revocation proceedings are not criminal prosecutions, parolees facing the revocation of their parole are not entitled to the fu ll panoply of proced ural righ ts accor ded to d efenda nts in crim inal trials. See Pennsylvania Bd. of Probation & Paro le v. Scott, ___ U.S. ___, ___, 118 S. C t. 2014, 202 2 (1998); Morrissey v. Brewer, 408 U.S. 471, 48 0, 92 S . Ct. 259 3, 2600 (1972 ). They are , nevertheles s, entitled to certain minimum due process pro tections stem ming from the state and federal constitutions, state law, and the Board’s own rules. See Wells v. Tennessee Bd. of Paroles, 909 S.W.2d 826, 82 9 (Ten n. Ct. A pp. 199 5).

The minimum due p rocess prote ctions afford ed parolee s facing the lo ss of their liberty should by now be well-known to the courts and the parole authorities. Chief Justice Burger has stated that they include: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportun ity to be heard in person and to present witnesses and documen tary evidence; (d) the right to confront and cross- examine adverse witnesses (unless the hearing officer specifically finds good cause for n ot allowing confrontatio n); a “neutral and detached” hearing body such as a traditional parole board, mem bers of w hich need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey v. Brewer, 408 U.S. at 489, 92 S. Ct. at 2604. Both this court and the Tennessee Court of Criminal Ap peals have held that the T ennessee Boa rd of Paroles must ad here to these procedural req uirem ents. See Jennings v. Traughber, No. 01A01-9509-CH-00390, 1996 WL 93763, at *4-5 (Tenn. Ct. App. Mar. 6, 1996) (No Tenn. R. App. P. 11 application filed); Young v . State, 539 S .W.2d 850, 85 3 (Ten n. Crim . App. 1 976).

These minimu m standa rds reflect a preference for perm itting parolees to confront and cross-examine their accuse rs; howev er, they also p ermit the B oard’s hea ring officers to

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dispense with confrontation and cross-examination for good cau se. How ever, the Sta te even concedes that parolees must be g iven “an o pportunity to cross-examine adverse witnesses unless the hearing officer specifica lly finds good c ause fo r not allo wing c onfron tation.” Thus, when good cause exists, hearing officers in parole revocation hearings may permit the introductio n of letters and affidavits that, by their very nature, have not been tested by confrontation and cross-examination. See Morrissey v. Brewer, 408 U.S . at 489, 92 S . Ct. at 2604; Sanders v. Tennessee Bd. of Paroles, 944 S.W .2d at 397. T he issue tha t remains to be decided concerns what must be proven to demonstrate good cause for denying a parolee the opportunity to confront and cross-examine adversary witnesses.

Good cause is not a precise standard, and there is no bright-line rule for determining whether good cau se exists. The inquiry is factu ally driven and may, in large measure, depend on the nature and purpose of the evidence sought to be introduced. Thus, for example, persons who desire to express an opinion either favoring or opposing the revocation of parole based on the parolee’s character, the nature of the parolee’s underlying conviction, the parolee’s institutional conduct, or the paro lee’s reputation in the community need not be subjected to confrontation and cross-examination because their statements are simply personal opinions. The Board receives these sorts of letters and communications every day, and it would ad d little to the integrity of the hearin g process to require pers ons desiring to give opinions of this sort to appear in person at the revocation hearing to offer them.

Testimony establishing the grounds fo r revoking a parole sho uld be treated more rigorously because it provides the basis for depriving the parolee of his or her liberty. Rather than being merely statements of personal opinion, this testimony is being offered to prove the truth of the matters contained in it. Accord ingly, the req uiremen ts for its admission must contain reasonable safeguards to ensure that the testimony is truthful and accurate.

In the Anglo-American legal system, confrontation and cross-examination are the principal safeguards for assuring that testimonial evidence is true and accurate. Ever since the treason trial of Sir Walte r Raleigh in 1603 in which Raleigh was convicted and executed based on the written confession of an alleged co-conspirator, our law has favored rigorous adversarial testing of testimonial eviden ce. See Dutton v. Evans, 400 U.S. 74, 86 n.16, 91 S. Ct. 210, 218 n.16 (19 70). As Lord Chief Justic e Hale noted in the seventeenth century, adversarial questioning “beats and boults out the truth much better than when the witness only delivers a formal series of his knowledge without being interrogated.” Matthew Hale, History of the Common Law (1680 ), quoted in 5 John H. W igmo re, Evidence in Trials at Common Law § 1367, at 34 (Ch adbourn rev. 197 4).

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This same preference for confrontation and cross-examination continues to be reflected in our modern decisions. Adversarial questioning can test a witness’s (a) opportun ity to ascertain the facts being testified to, (b) pow ers of perception and memory, (c) bias, interest, or prejudice, and (d) underlying character for truthfulness, as well as the completeness of the witness’s account of situations or events. Thus, the Tennessee Supreme Court has emphasized that adversarial questioning can expose facts that permit the fact-finder to gauge a witne ss’s reliab ility mo re accu rately, see State v. Howe ll, 868 S.W.2d 238, 252 (Tenn. 1993), and that providing the fact-finder with an opportunity to observe how a witness testifies in the accused’s presence h as value tha t should no t be easily dismis sed. See State v. Deuter, 839 S.W.2d 391, 395 (Tenn. 19 92); see also 5 John H. W igmo re, Evidenc e in Trials at Common Law § 1395, at 153-54 (Chadbourn re v. 1974).

Administrative proceedings such as parole revocation hearings, no less than civil or criminal judicial proce edings, involve a search fo r the truth. Th us, when presented w ith hearsay evidence to prove a parole violation, hearing officers must satisfy themselves either that the evidence is, by its very nature, inherently reliable and the type of information comm only relied up on by r easona bly pru dent pe rsons, see gener ally State v. Wade, 863 S.W.2d 406, 409 (Tenn. 1993); Tenn. Code Ann. § 4-5-313(1) (1998), or that the evidence sought to be introdu ced has alre ady been subjected to the same sort of adversarial questioning as live, in -person testimo ny. See generally State v. Deuter, 839 S.W.2d at 393. Other courts have applied substan tially sim ilar stand ards on parole r evoca tion hea rings. See Belk v. Purkett, 15 F.3d 803, 812-13 (8th Cir. 1994); Farrish v. Mississippi State Parole Bd., 836 F.2d 969 , 977-78 (5 th Cir. 1988 ); Ex parte Taylor, 957 S.W.2d 43, 44-45 (Tex. Crim. App. 1997).

B.

We now turn to the proce dure used to determine w hether good cause existed for permitting the Board to prove its entire case against Mr. M iller using untested hearsay evidence. The hearing officer’s dec ision rests on three grounds – D.M.’s age, the nature of Mr. Miller’s alleged offense, and th e hearing officer’s subjective belief that the witnesses offering the hearsay testimony were “reliable.” These reasons do not provide good cause for depriving Mr. Miller of his opportunity to test the credibility of D.M.’s statements.

In order to make a constitutionally adequate finding that good cause exists for dispensing with Mr. Miller’s opportunity to confront or cross-examine D.M., the hearing officer should have considered three issues. First, wheth er D.M .’s out-of-cou rt statemen ts were inherently re liable and o f the type tha t would b e comm only relied u pon by re asonable

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persons in the conduct of their own affairs. Second, whether D.M.’s statements had been tested for vera city thro ugh ad versaria l questio ning. Third, whether D.M. was suffering from such serious em otional distress that she w ould be un able to testify fu lly and truthfu lly if she were required to testify in Mr. M iller’s pre sence. See State v. Deuter, 839 S.W.2d at 393-94.

1. T HE I NHERENT R ELIABILITY OF D.M .’S S TATEMENTS

There are three reasons why the current record does not support the hearing officer’s conclusion that D.M.’s statements concerning Mr. Miller are inherently re liable. First, children’s reports of sex ual abuse a re no long er perceive d to be inhe rently accura te. Second, D.M.’s statemen ts to the autho rities are internally inconsisten t. Third, D.M .’s statemen ts to her parents are not consistent with her statements to authorities.

A belief prevailed at one time th at children’s re ports of sexual ab use were inherently reliable because children would rarely persist in lying to authority figures about sexual activity and because children do not have sufficient knowledge about sexual activity to lie effectively.5 This belief has now been tempered by two developments. First, experience has shown that a significantly large number of child sexual abuse reports turn out to be erroneous or unsubstantiated.6 Second, concern exists that the techniques frequently used to interview children have further undermined the reliability of the children’s statements.7 In light of these developm ents, there is no empirical basis for treating ch ildren’s testimony concerning sexual abuse as any more or less reliable than other types of testimony.

This record also contains indications th at D.M.’s statemen ts about Mr. Miller should not be taken at face value. The credibility of a witness who giv es inconsiste nt statemen ts is subjec t to ques tion. See Jones v. Lenoir City Car Works, 216 Tenn. 351, 356, 392 S.W.2d 671, 673 (1965); Dailey v. Bateman, 937 S.W.2d 9 27, 930 (Tenn. C t. App. 1996). D.M .’s

5 See, e.g., State v. Myatt, 697 P.2d 836, 841 (Kan. 1985); Robert P. Mosteller, Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual Abuse Prosecutions, 1993 U. Ill. L. Rev. 691, 695; Judy Yun, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases, 83 Col. L. Rev. 1745, 1751 (1983). 6 See Valmonte v. Bane, 18 F.3d 992, 1003-04 (2d Cir. 1994); Christopher J. Sinnott, When Defendant Becomes Victim: A Child’s Recantation As New Discovered Evidence, 41 Clev. St. L. Rev. 569, 579 (1993); Jacqueline Beckett, Note, The True Value of the Confrontation Clause: A Study of Child Sex Abuse Trials, 82 Geo. L.J. 1605, 1606-07, 1632 (1994) (“Beckett”). 7 See Maryland v. Craig, 497 U.S. 836, 868, 110 S. Ct. 3157, 3175 (1990) (Scalia, J., dissenting); Felix v. State, 849 P.2d 220, 243 (Nev. 1993); State v. Matsamas, 808 P.2d 1048, 1055 (Utah 1991)(Stewart, J., concurring); Beckett, 82 Geo. L.J. at 1636; Meredith Sopher, The Best of All Possible Worlds: Balancing Victims’ and Defendants’ Rights in the Child Sexual Abuse Case, 63 Fordham L. Rev. 633, 645-46 (1994).

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statemen ts concerning Mr. Miller are both internally and externally inconsistent. On March 4, 1997, she told investigators that Mr. Miller never touched her while she was in his bedroom; howev er, on Au gust 12, 19 97, she told Kim Bro wn that Mr. Miller had touched her breasts and vagina with both hands while she was in his bedroom looking for “rings for an African American project for school.” In addition, her statem ents to the investigators concerning another incident when she stated that Mr. Miller put his hands inside her pants are inconsistent with her statements to both her mother and father that Mr. Miller grabbed a belt loop of her baggy pants, pulled them out, and told her that “[y]our pants are big enough for you and I to fit in.”

2. T HE C IRCUMSTANCES U NDER W HICH D.M. G AVE H ER S TATEMENTS

The record is likewise cle ar that the ver acity of D.M .’s hearsay sta tements was never tested by any sort of adversarial questioning. The investigators conducted extremely informal interviews with the child. D.M. was never placed under oath. She was never asked if she understood the difference between telling the truth and telling a lie, and she was never cautioned about the importance of telling the truth. She was, however, congratulated by the investigators for making the statements. The investigators told her that they were “proud” of her for talking to them, that she “did the right thing” by talking with them, and that they were “going to take care o f it.” Mr. M iller’s lawyer w as never af forded an opportun ity to be present when the inve stigators questio ned D .M. or to ask her any questions at all. Under these circumstances, no conclusion can be drawn other than D.M.’s statements have never been tested for veracity using techniques similar to those that would have been employed had she testified at the parole revocation hearing.

3. D.M .’S A BILITY TO T ESTIFY

The purpose of a fact-finding hearing is to seek the truth. Courts and legislatures have recognized that a fact-finder’s ability to discover the truth may be undermined when a young victim of sexual abuse is so intimidated by her abuser that he or she is too fe arful to talk in the abuser ’s prese nce. See Coy v. Iowa, 487 U.S. 1012, 1032, 108 S. Ct. 2798, 2809 (1988) (Blackmun, J., dissenting); P aula Hill & Samue l Hill, N ote, Videotaping C hildren’s Testimony: An Em pirical View, 85 Mic h. L. Rev. 8 09, 827 (1 987); Dia ne K. V aillancourt, Note, State v. Thomas: Face to Face With Coy and Craig – Constitutional Invocation of Wisconsin’s Child Witness Protection Statute, 1990 Wis. L. Rev. 1613, 1614. Accordingly, they have established and approved procedures permitting victims of child sex ual abuse to

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testify outside of the alleged abuser’s presence as long as there has been a finding that the child would be una ble to co mm unicate otherw ise. See Maryla nd v. Cra ig, 497 U.S. at 857, 110 S. C t. at 3170; State v. Deuter, 839 S.W .2d at 393-9 4; Ex parte Taylor, 957 S.W.2d at 45-47; see also 18 U.S.C .A. § 3509 (b)(1)(B)(i), (ii), (iv) (West Supp. 1998); Tenn. Code Ann. § 24-7-12 0(a)(3) (Supp. 1998 ).

The evidence concerning D.M.’s ability to testify in Mr. Miller’s presence is sketchy. Ms. Reed informed the hearing officer that D.M. declined to discuss Mr. Miller and refused to give a videotaped statement when she, Linda Brown, and Ms. Hodo talked with D.M. and J.M. on July 23 , 1997. Ev en though Kim Brown did not attend the parole revocation hearing, the record also contains her hearsay statements that D.M. was “scared and tearful” on August 12, 1997 and that she “appeared to be very confused and sca red if she would ha ve to testify . . . [agains t] Mr. M iller.”

There are two possible explanations for D.M.’s reticence in July and August 1997. First, her con duct could indicate that D.M . remains s o fearful of M r. Miller that sh e would be unable to testify fully and truthfully in his presence. Second, her cond uct could in dicate that D.M. realizes that her statements regarding Mr. Miller were mistaken or exaggerated. D.M. should no t be perm itted to avoid confronting Mr. Miller unless the first explanation is correct. But even if the first explanation is correct, it does not provide a basis for concluding that Mr. Miller, through his lawyer, was not entitled to an opportunity to test D.M.'s credibility under proper circumstances.

IV.

We are only now beginning to realize that child sexual abuse is a major and growing problem in our society.8 This abus e perma nently affec ts its victims’ lives, and its societal costs are staggeringly high.9 Yet, despite the horrendously repulsive nature of the offense, these proceedings present sensitive and difficult procedural problems because of the competing interests at stake. Like judicial proceedings in which child sexual abuse is at

8 See Donald C. Bross, Terminating the Parent-Child Relationship As a Response to Child Sexual Abuse, 26 Loy. U. Chi. L.J. 287, 289 (1995) (stating that five studies conducted between 1940 and 1978 indicate that from 17% to 28% of middle class women reported being the victims of sexual abuse); Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv. L. Rev. 806, 806 (1985) (stating that as many as one in five females and one in eleven males are sexually abused as children). 9 See Cynthia G. Bowman & Elizabeth Mertz, A Dangerous Direction: Legal Intervention in Sexual Abuse Survivor Therapy, 109 Harv. L. Rev. 549, 552 (1996); Lynne Henderson, Without Narrative: Child Sexual Abuse, 4 Va. J. Soc. Pol’y & L. 794, 538 (1997).

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issue, administrative proceedings must be conducted according to a fundamentally fair legal proced ure.

In this case, the hearing off icer acted arb itrarily and illegally by failing to apply the proper standards for determining whether good cause existed for preventing Mr. Miller from confronting and cross-examining D.M. To strike an appropriate balance be tween Mr. Miller’s rights of confrontation and cross-e xamination and the Board’s desire to shield D .M. from the trauma and stress of testifying, the hearing officer should have first determined whether D.M. w as unable to testify com pletely and truthfully in Mr. Miller’s presen ce. If D.M. was com pletely una ble to testify in Mr. Miller’s presence, then the hearing officer should have determined whether her testimony was inherently reliable or whether it had already been subjected to adversarial questioning substantially equivalent to cross- examination in cour t. Unless the hearing officer determined from all the circumstances that D.M.’s testimony was inherently reliable, Mr. Miller should have been afforded an appropriate opportunity to test the credibility of D.M.’s accusations.

V.

The order dismissing Mr. Miller’s petition for a com mon-law writ of certiora ri is reversed and the case is remanded to the trial court with directions to enter an order granting the writ of certiorari and remanding the proceeding to the Boa rd with dire ctions either to provide Mr. M iller forthwith w ith a proper parole revocation hearing or to restore Mr. Miller to his statu s as a pa rolee. We tax the costs of this appeal to the Tennessee Board of Paroles.

____________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________________________ BEN H. CANTRELL, PRE SIDIN G JU DGE , M.S.

_________________________________ WILLIAM B. CAIN, JUDGE

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