Read the motion to disqualify a witness in the Kalka trial.

IN THE THIRD JUDICIAL DISTRICT OF KANSAS
STATE OF KANSAS,
Plaintiff,
Case No. 14 CR 541
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AARON KALKA,
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Defendant.
MOTION TO DISQUALIFY WITNESS
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The Defendant moves the Court to find that the complaining party, L.G., is
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disqualified to be a witness at trial pursuant to K.S.A. § 60-417(b).
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ARGUMENTS & AUTHORITIES
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“A person is disqualified to be a witness if the judge finds that (a) the proposed
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witness is incapable of expressing himself or herself concerning the matter so as to be
understood by the judge and jury either directly or through interpretation by one who can
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understand him or her, or (b) the proposed witness is incapable of understanding the duty
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of a witness to tell the truth.” K.S.A. § 60-417. Prerequisite to understanding the duty to tell
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the truth is one’s ability to distinguish between what is true and what is not. Because L.G.
lacks this foundational understanding, she cannot be capable of understanding a witness’s
duty to tell the truth. Therefore, L.G. must be disqualified as a witness.
George Hough, Ph.D., ABPP performed a psychological evaluation of L.G. “to
document her capacity to provide reliable and credible testimony in court.” Psychological
Report, at 1. Dr. Hough’s evaluation included direct behavioral observations, psychological
testing, interviews with L.G.’s family members, review of L.G.’s therapist’s treatment notes,
and review of recorded statements by L.G.
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Dr. Hough’s report notes that “there are multiple instances of [L.G.] shifting her
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reports of events.” Id. at 11. Joyce Mathews, L.G.’s great-grandmother, told Detective
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Thompson that L.G. stated “Dad” came into her room and put his “pee pee” in her mouth
on two occasions. During L.G.’s Safe Talk, L.G. reported that Mr. Kalka put his “pee pee”
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in her mouth on two occasions and also stated it was all a dream. Psychological Report, at
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10. Dr. Hough notes that the dream as a competing explanation was not resolved by the
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Safe Talk interview. Id. L.G. also reported to her mother that she had seen a video of her
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mother and “Daddy” having sex. Id; Audio Recording, Bailey Kalka & L.G. (04/05/2014).
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When her mother asked if Mr. Kalka had done these sexual acts with her, L.G. told her
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mother he had not. Audio Recording, Bailey Kalka & L.G. (04/05/2014). When L.G.’s
mother asked why she told her great-grandmother that Mr. Kalka did these acts, L.G. said
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she was scared to tell her that she saw the video. Id. L.G. reported to her psychologist,
David C. Rodeheffer, Ph.D., that she had seen a video of her mother and a man, alternately
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described as “Dad” and Jared (Bailey’s Kalka’s ex-boyfriend), engaged in sex. Clinician
Progress Note, 9/17/2014, page 2 of 3. She also reported to Dr. Rodeheffer that she had a
dream about her mom and dad having sex and referenced waking up confused. Id.
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These shifting accounts, combined with L.G.’s “heavy reliance upon fantasy
constructions as a mode of living in the world,” provide a basis for Dr. Hough to question
L.G.’s ability to deliver reliable, credible and truthful testimony. Psychological Report, at
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11. According to Dr. Hough, L.G.’s reliance on fantasy impacts her appreciation of reality
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in a matter ill-suited for providing truthful testimony in court:
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[L.G.] possesses a rich fantasy life with questions raised regarding her
capacity to differentiate fantasy from reality. Whether this attribute will in
the long run prove to be an asset (i.e., acting skills and artistic pursuits) or a
liability remains to be seen. At this juncture, however, there are multiple
instances of shifting her reports of events, and of her heavy reliance upon
fantasy constructions as a mode of living in the world. Excess immersion in
fantasy comes at the expense of adaptive living in the shared consensual
reality of life with others. Questions of her veracity and ability to deliver
reliable, credible, and truthful testimony are, therefore, raised.
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Id. In addition to L.G.’s “over-rich fantasy life,” Dr. Hough noted that “low average
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cognitive skills, perceived adjustment problems in a high number of life domains, . . . and
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the simple fact that she is still a child of only 5 years of age” made him concerned about
L.G.’s ability to provide truthful testimony. Id. Overall, Dr. Hough concluded that “there
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are significant clinical concerns raised . . . regarding [L.G.’s] overall capacity to provide
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reliable, credible and truthful testimony to the Court.”Id. at 12.
The “over-rich fantasy life” Dr. Hough describes is evident in the progress notes
kept by L.G.’s treating psychologist. Dr. Rodeheffer describes L.G. as having “an active and
creative imagination which she enjoys engaging.” Clinician Progress Note, 7/1/2014, page
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2 of 3. When L.G. discusses her imaginary friends in treatment sessions, the depth and
influence of her imagination are apparent. “Although she identifies these figures as
imaginary in some ways and seems to recognize that they are not real, on the other hand
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it appears they are very palpable to her and there is a sense that at some level she sees them
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as very real.” Clinician Progress Note, 7/9/2014, page 2 of 3.
Particularly concerning is that L.G. has resorted to fantasy in response to Dr.
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Rodeheffer’s questions about the allegations in this case, announcing that “she is not [L.G.]
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but one of [L.G.’s] friends, Larissa” and engaging in the discussion as Larissa rather than
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L.G.:
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Again as though either she needs to avoid my broaching issues of talking
about the allegations or that again she needs to control the interpersonal
exchange. Noticing that when I address her as her friend she is somewhat
more responsive to questions. Making some attempts to see if her friend will
answer questions about her dad including why her dad isn't with them. She
does not resist the questions as she has in the past but does not offer much
by way of information and again generally is more interested and whatever
thought or idea comes to her. However I noticed that she "stays within
character" seemingly quite comfortable portraying herself as someone else.
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Clinician Progress Note, 8/20/2014, page 1 of 2. L.G.’s use of fantasy as a way of dealing
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with questioning about the allegations in this case provides substantial concern regarding
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her ability to truthfully answer similar questions in court. It also demonstrates an inability
to discern the seriousness of the matter at issue—an appreciation of which is crucial to a
witness’s understanding of her duty to tell the truth.
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As far as L.G.’s ability to distinguish truth from fiction is concerned, it is also
problematic that “there is a high likelihood that this child’s memory as a source of reliable
evidence for the court has become contaminated” given the “strong likelihood that [L.G.’s]
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recollections about the alleged events have been subject to the distortion and recollection
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bias that can ensue from multiple interviews, conversations (direct as well as those
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overheard by adults), and art renditions that she has been subjected to.” Id. at 11.
Regarding the matters on which she would be questioned in court, L.G. has been
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questioned by, at minimum, her maternal great-grandmother, her mother, her paternal
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step-grandmother, a DCF social worker, the Safe Talk interviewer, and her psychologist.
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In addition, a teacher at her former school had her make drawings “to explain what
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happened at home.” Id. at 4. L.G.’s paternal step-grandmother reports that “the child [L.G.]
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says so many people have talked with her that now she is confused.” Psychological Report,
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at 9. With the high likelihood of contamination, it is probable that L.G.’s own memory of
the truth has been muddled by outside influences. These outside influences are working
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on a memory that testing has shown to be below average. See Psychological Report, at 4
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(“[O]ver 81% of children [L.G.’s] age have memory skills that are better than hers. These
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findings would place her memory skills in the Below Average range among her same-aged
peers.”)
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L.G. has also shown a tendency to manufacture answers to questions rather than
acknowledging when she does not know something. Dr. Rodeheffer recorded this
proclivity in his treatment notes, specifically stating that L.G. is “reticent to state that she
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does not know something and will come up with information to fill in the question.”
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Clinician Progress Note, 8/12/2014, page 2 of 2. As an example, during the session on
August 12, 2014, Dr. Rodeheffer asked L.G. how many miles there were between the Earth
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and the Sun; L.G. was “quick to come up with a response something like 32 miles.”
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Clinician Progress Note, 8/12/2014, page 1 of 2. Particularly combined with her “sense of
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emotional hunger that perhaps leads her to respond quickly to what she thinks adults are
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wanting in her,” Clinician Progress Note, 7/31/2014, page 2 of 2, L.G.’s tendency to supply
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information she does not know in response to questioning demonstrates a significant
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roadblock to L.G.’s ability to appreciate and comply with the duty of a witness to provide
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truthful responses to questions posed in a court proceeding.
CONCLUSION
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L.G. has demonstrated a general inability to distinguish between reality and fiction,
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a specific lack of appreciation for the importance of doing so in the context of addressing
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these allegations, and a propensity for supplying information in response to questions
although she does not know the true answer. In light of these barriers, L.G. cannot be said
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to be capable of understanding her duty to tell the truth as a witness in this case. Pursuant
to K.S.A. § 60-417(b), L.G. should be disqualified as a witness.
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Respectfully submitted,
__________________________________________
Christopher Joseph, #19778
Carrie Parker, #24988
1508 S.W. Topeka Blvd.
Topeka, KS 66612
785-234-3272 Ph.
785-234-3610 Fax
[email protected]
[email protected]
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By:
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JOSEPH, HOLLANDER & CRAFT LLC
Attorneys for Defendant
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CERTIFICATE OF SERVICE
I, Stacey Tabor, certify that on December 18, 2014, counsel for the Plaintiff was
served with a copy of this motion by hand delivery to:
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Shawnee County District Attorney
200 SE 7th Street, Ste. 200
Topeka, Kansas 66603
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and a chambers copy was delivered to:
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Honorable Cheryl R. Kingfisher
Shawnee County District Court Judge
Division 11
200 SE 7th Street
Topeka, Kansas 66603
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_________________________________________
Stacey Tabor
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