Defense Considerations in the Child as Witness in Allegations of Sexual Abuse.
Part I. Witnesses in General:
How We Measure Credibility
ABSTRACT: Although the false allegation of child
sexual abuse does not always start with a child, the child becomes the
key to unlocking the mystery of why the allegations are made, and what
validity, if any, should be given to the statements made by a young
child. The following article is published in three parts: Part I
deals with how we measure credibility. The legal competency of the
child witness and the manner by which a child learns through the
interrogation process is discussed. The conclusion is that
children under age ten are incompetent and poor witnesses but attorneys
should prepare carefully in these cases. Several practice tips are
The dogma of the child abuse industry is that
children never lie about abuse. According to Dr. Roland Summit, in
a paper entitled, The Child Sexual Abuse Accommodation Syndrome,
children do not fabricate the kinds of explicit manipulations they
divulge in complaints or interrogations, and "... very few
children, no more than two or three per thousand, have ever been found
to exaggerate or to invent claims of sexual molestation."(1)
However, if a child recants, it is because they have
been "manipulated" into telling something that is not true.
This, of course suggests that children do not lie about child abuse but
will lie if they deny sexual abuse. That means that all children can be
pressured into telling a lie, but only to deny abuse. This obviously is
nonsense and, yet, this nonsense has become the dogma of mental health
professionals who frequently investigate these matters. The result is a
Catch 22 situation for if a child says it didn't happen, it happened.(2)
This is consistent with another dogma of child abuse professionals.
Since some abusers deny being abusers, anyone who denies
being an abuser is an abuser, as are those who admit to being abusers.
In fact, my experience shows that the more vehemently the client denies
having abused, the stronger the presumption that he or she is guilty.
If children never lie about abuse, why is it that the
figures show, as a minimum, 60 percent of all allegations are
unsubstantiated and may be as high as 77 percent when associated with
divorce and custody proceedings?(3,4)
If children never lie about abuse, why were over a
hundred counts and all charges against five of seven defendants of the
McMartin School dropped, and why were over a hundred counts and all
charges against 24 of the 25 defendants dropped in Jordan, Minnesota?(5)
The following is testimony from a preliminary hearing
in the McMartin Day School case, which is still pending in California.
The witness is eight years old.(6)
It begins with the judge qualifying the witness of
the issue of competency:
"Good morning James," the judge greets him.
"Can you hear me?"
"Do you promise that everything you tell will be
"Miss Rubin (the prosecutor) is going to ask you
some questions. Can you see me?"
"How old are you today?"
"Do you know the difference between telling the
truth and a lie?"
"What is the difference?"
"Well. ..telling the truth is telling what
happened and telling a lie is telling something that never happened."
"What would happen if you told a lie?"
"The judge would punish me."
"When we talk about telling the truth ... tell what you remember
... we don't want to know what other people told you
The prosecutor begins: "When you were little, did you go to the
"Did you go in the morning or the afternoon?"
"Did you ever stay in the afternoon?"
"We were talking about places you went away from school, some
houses. Did you play games at these houses?"
"The Naked Movie Star."
"Who was there?"
"Ray and his friends."
"Ray and his friends were at the house. Had you seen them
"Yes, at the school."
"James, when you played Naked Movie Star, did anyone take any
"Was there anything scary at these houses?"
"Tell me what."
"Ray would open this door in the floor and there would be
"What did they do?"
"They would run around and roar.
"What did Ray tell you?"
"That the lions would jump up and get us if we told what
"How was Ray dressed?"
"Well, there was this red ... Ray was dressed up as the devil and
it was real scary."
"A red coat, dressed up like the devil."
"At this house, did anybody touch you?"
"Ray and his friends."
"Did Ray put any part of his body inside you?"
"His penis and his finger."
"Did you go anywhere else with him?"
"I don't remember."
"Do you know what a mortuary is?"
"What is a mortuary?"
"A place where dead people are taken to get
ready for ..."
"Did you go to a mortuary with anyone from
"Did you go in a car?"
"Was there anyone else?"
"Yes, his friends."
"Would you tell what you saw in the
"Well, he opened up some coffins and we saw some
It should be noted that none of the children
complained while enrolled at the school; and it was only after they were
interviewed by therapists at the Children's Institute International were
these claims made.(9)
One would think that a class trip to the local
mortuary would have resulted in at least one child mentioning the event.
Nevertheless, law enforcement officials went to the school, attempted to
dig up the floor to find where the lions were and when they couldn't
find the underground room,(10) they brought in sonar equipment in an
attempt to locate the underground tunnels.(11)
They failed to find the
room, the tunnels and the lions.
Other children in that case have mentioned that they
were molested by film actor Chuck Norris, (whom they had never met), and
a Los Angeles City Attorney. They claimed that they had been molested in
a church by four nuns and a priest, all of whom were naked (query: how
could they tell?) and that Ray took the other children to a cemetery
where the children (preschool) were forced to dig up dead bodies and
watch while the teachers hacked them to pieces with knives, and the
bodies bled. Other children told of having been molested in airplanes,
in hot air balloons, in a supermarket, and in the walkway of a car wash.(12)
Using the above, I would like to discuss how children
often come to say these things, and how to handle the child as a
How does a trier of fact determine whether a person
is telling the truth? Basically there are six criteria:(13)
(a) Internal consistency and consistency of
(b) External consistency with "known"
facts, or with recognized laws of individual, social, sexual or physical behavior.
(d) Affect, demeanor when telling.
(e) Motive, bias, self interest.
(f) Reputation for truth and veracity.
Internal Consistency and Consistency of Accusation
Obviously, if a person tells various versions, they
all cannot be correct and, therefore, many, if not all, will be
considered to be incorrect. Falsus in uno, falsus in omnibus.
Of all the
rules for credibility, this one is the easiest to apply. The purpose of
cross examination is an attempt to elicit versions other than the one
testified to in the case in chief.
Self-serving Hearsay and Constancy of Accusation:
The general rule is that you cannot allow a person to
make declarations to others, then produce the others as witnesses.
evidence is considered hearsay, self serving and irrelevant, and should
be objected to on those bases. "The declarations of a party in his
own favor are never evidence of the truth of what is declared, unless made
so by statute." Smith vs. Martin, 17 Conn. 399, 401 (1845).
"Generally speaking, the offer of evidence to corroborate the
testimony of a party by proof of his previous statements to the same
effect is properly excluded as hearsay" Baxter vs. Camp, 71 Conn.
245,252(1898), or self serving Pluhowsky vs. New Haven, 151 Conn. 337,
341, 342 (1964). "Such prior statements are rejected as completely
irrelevant. The mere repetition of a story does not increase its
probative value." Crawford vs. Nilan 289 N.Y. 444, 46 N.E. 2d (1943).
There are several exceptions to the rule, such as res
gestae, statements to physicians for treatments, and admissions.
where the testimony has been assailed as a "recent
fabrication," proof of prior consistent statements of the witness,
made at a time when there was no motive to falsify, may be received in
order to repel such imputation. People vs. Katz, 209 N.Y. 311.
There appears to be a growing trend in this country
to permit all witnesses who have been involved in the investigation to
testify as to what the child said. Sometimes this is allowed as to the
"child's state of mind." Thus, if the child has a state of
mind that says she has been abused, then she was abused. Of course, the
best evidence of the state of mind is the child but the courts, attempting to make
the "testifying trauma" less severe on the child, permits
others to help out. Furthermore, some judges honestly but erroneously
believe that the testimony of other persons represents necessary
Under the common law, when a person was charged with
sexual assault, a traditional defense was to note the failure to make a
prompt report to the police. For example, the prostitute who waited
until the check bounced was presumed not to have been raped because of
the failure to have a fresh complaint. Naturally, it was permissible to
refute the conclusion that the person was not raped by showing that a
report was made as soon as possible. Thus, if a woman had been in coma
for six months and her first words upon awakening were "I've been
raped," this was presumed to be credible evidence that she had been
raped, notwithstanding the long period of time.
There was another rule which existed at common law
which was known as the consistency of accusation rule. Thus, in
paternity actions, when it was claimed that the mother had named several
persons as the father of the child, it was permitted to bring in
witnesses who heard the witness name one person. This became the
consistency of accusation rule, and even though the testimony was
obviously self-serving, it was brought in to show that only one person
(generally the person with the most money) was the father. Before the
other witnesses could testify in either the lack of fresh complaint
claim, or the prior inconsistent accusation, there had to be a
foundation, i.e., there had to be a claim by some competent testimony,
that the allegations were either recently fabricated, or that there had
been prior inconsistent accusations.
What we are now seeing is some sloppy evidentiary
rulings which permit various persons to whom the tale was told to
testify as to the truth of the tale. There may be an attempt to
produce this type of testimony and the attorney must be prepared to
object. This type of objection requires research and thought and should
not he made off the cuff.
Thus, one state permits the proponent of the
witnesses' testimony to bring in testimony of prior consistent
statements as part of the case in chief, provided the victim of a sexual
assault testifies. It is not uncommon to produce testimony by the child
victim, the parent or teacher to whom the incident was first reported,
the social worker, and the therapist. The Connecticut Supreme Court in
State vs. Dabkowski, l99Conn. 193,506A.2d 118(1986), referred to the constancy of accusation doctrine
"... admissible ... in order to corroborate" (the victim's
testimony). Taken one step further, the court has stated, "We have
stated that where a sexual assault has been alleged, however, 'the trial
court may presume ...' ... that the victim is impeached by a suggestion
of recent contrivance." State vs. Pollitt, 205 Conn. 61, 77 (1987).
In that case four witnesses to whom the victim complained testified that
the complaint had been made along with the details of the complaint.
There had been no suggestion of "recent fabrication" inasmuch
as the original complaint to the police was made as soon as the victim
returned home. Nevertheless, all were permitted to testify. See also
State vs. Daley, 11 Conn. App. 236 (1987). In the Daley case, the
teenager reported an assault the following day. At the trial, the
teacher, principal, social worker, and investigating police officer each
repeated the child's alleged complaint. The court pondered whether such
testimony was substantive hearsay evidence or merely a prior consistent
statement and relevant only as to credibility and then decided not to
resolve that issue. Thus, it becomes apparent that the general rule
against the use of hearsay usually does not apply in child sexual abuse
cases. Self-serving hearsay statements are usually admitted to establish
consistency of accusation and, in fact, becomes corroborative evidence.
It is the hope of this author that this rule be reevaluated.
External Consistency With "Known" Facts or
with Laws of Individual, Social, Sexual, or Physical Behavior
The person who testifies that the water was running
uphill, that the boy bicycled backwards down the hill, that the people
were asleep at the bottom of the pool, that blood flowed from bodies
buried in the cemetery; that the molestation occurred in a space ship,
in a tree, in a closet (in a room which has no closets), on the floor of
a supermarket, on the side of a busy public highway, in a gondola at Mt.
Killington on a February Sunday afternoon, would not be believed by
ordinary folk because such statements are inconsistent with known facts
and with laws of physical, social, or sexual behavior. Nevertheless,
many children describe sexual situations which are believable only to
persons who, one would think, have had no sexual or any other
experiences of their own. The statements should make the interviewer
somewhat skeptical, but they do not.
The issue of "known facts" becomes a real
problem when the investigator does not want to look at any facts. It
becomes a problem when the interviewer believes that it is unnecessary
to talk to anyone other than the child. Part of the dogma is that to be
a good investigator/therapist you must be willing to "trust"
and "believe" in the child. Thus, the investigator/therapist,
when confronted with descriptions of impossible events, suspends
reasonable judgment and assumes, since children don't lie, that the
incongruities result from the trauma of the event rather than the
possibility that the event never took place.
Often a medical report indicates that "no
evidence of sexual abuse was found," but, nevertheless, the
findings are "consistent with sexual abuse." Since the
findings are consistent with no sexual abuse, they have absolutely no
probative value. Nevertheless, such statements frequently found in
reports are intended to, and in fact, influence the trier of fact.
Those of us who heard John Dean testify at the
Watergate hearings had to be impressed with the honesty of his
testimony. After all, it appeared that the amount of detail was such
that it could not have been fabricated. His story had internal
consistency; his testimony was consistent with "known" facts
and with laws of individual and social behavior. Furthermore, he seemed
to have no motive for telling anything which was not true; indeed, his
coming clean was certainly a declaration against interest. More than
anything else, however, it was his attention to detail that made us
believe the truth of which he spoke. His statement was so specific that
Senator Inouye, incredulously asked Dean, "Have you always had a
facility for recalling the details of conversations which took place
many months before?"(14)
Most of us believed that John Dean spoke the truth.
He didn't. After the statements were compared to external facts, to wit:
Tape recordings of the conversations, it became apparent that what John
Dean reported was an inaccurate recollection the meetings as he
fantasied they had occurred. Thus, the testimony reflected more wishful
thinking than accurate recall.(15)
One of the techniques we use to judge credibility is
the amount of detail. The witness who "doesn't remember"
frequently is not believed; the person who is quick to respond is
We occasionally see the professional engineer who
wants to be so precise that his delayed answers suggest evasiveness as
opposed to the hysteric personality who, in one sentence, provides
material for two hours of cross examination.
Affect, Demeanor When Telling
The psychologists call it affect, the Supreme Court
calls it demeanor. Nevertheless, it is the nonverbal clues which we
think can help us to determine people who lie from people who tell the
truth. We, as are good liars, are taught to look the person in the eye
in order to express sincerity. Does this mean those people who do not
look you in the eye are liars? Of course not, but the presentation of
the material is just one of the many clues to veracity.
Actors and actresses are able to "act" the
part of a liar telling a lie; a truth teller telling the truth; the
truth teller telling a truth to sound like a lie; and a liar telling a
lie which sounds like the truth. Since it is all fiction, obviously even
the actor is lying even when telling the truth.
Some people lie better than other people tell the
truth. It is true with adults; it is true with children.
How do we expect children who have been abused to
testify? Does the child testify as we would expect a child who has been
abused or one who is not abused? The fact is that none of us knows what
the proper affect should be. If we don't know, it can be presumed that
neither the judge nor the jury will have knowledge based on empirical
studies and will rely on their subjective beliefs as to how a child who
has been abused will act when testifying. Thus, in preparing for trial,
you must worry about two things: (1) What the child will say and how the
child will say it and; (2) whether the manner be interpreted as
consistent or inconsistent with one who has been abused.
I'm aware of two cases in which the affect of the
child witness was the determining factor.
In one case, the young child took the stand holding a
teddy bear. She started to answer the leading questions of the
prosecutor and basically said that her father had molested her. She,
incidentally, had not been able to see her father for over a year.
the middle of her testimony, she suddenly spotted her father who was
sitting quietly, holding an oversized stuffed rabbit in his lap. She
came running off the witness chair, yelling with glee, "Daddy,
Daddy, I love you," and jumped into his lap, hugged and kissed him.
The jury acquitted the
father because they believed that a child who had been molested would
not show that kind of spontaneous affect. Her affect was deemed more
important than her words. Remember, however, there is no empirical
knowledge to show whether that conclusion is accurate.
The other case is one in which the affect of the
child appeared to have been the main consideration which led to the
According to the lawyer who was representing Colleen
Bennett: "... Amanda was about five at the time she testified, but
relatively immature, not a very bright girl. She testified
and she was
rather bizarre in what she was saying and they got her to say that she
was touched, but it was kind of vague and didn't amount to anything.
the end of her testimony, they had her start at one end (of the counsel
table) and start identifying the defendants. She looked at Gina Miller
and she said, 'I don't know who that is.' Then she looked at her
grandmother and she said, 'That's grandma.' Then she looked at her
uncle, Wayne Dill. She didn't recognize him either. Then she got to Rick
Pitts and when she could see Rick, I mean to tell you, that kid just
cracked up! She started yelling and screaming. And I tell you, I've
never seen anything like it before. The kid just freaked. And I do not
believe it was phony. The kid just shrieked. It was as if she'd just
seen her father killed and was all alone in the world. She started
running. She grabbed the judge." "... Up to that point, there was
no evidence. That incident was the strongest piece of evidence in the
whole case. Half the jury was in tears. They cried for that
The attorney for Pitts described the scene: "And
then she saw Rick and she went into hysterics and started screaming, 'Oh
God! It's Rick! Help! Help!' The judge tried to get somebody to quiet
her down. She wouldn't go with the witness coordinator, she went running
up to the judge, grabbed his robe, gasping and hyperventilating and
said, 'Don't let him near me! Don't let him kill me! ...'"
"That piece of testimony had more impact than
anything else. It was really disturbing because, up to that point, I
didn't really care about her testimony. She wasn't believable at
Both attorneys stated that all witnesses prior to
that time had confirmed that Amanda really liked Rick and had a good
relationship with him. They also feel that the therapists had instilled
a fear into Amanda which had not been there before the therapy.
Motive, Bias, Self-interest
Why would a child lie about her father or mother if
it weren't true? It is so clearly against the child's interest that the
child must be telling the truth.
While with younger children one can show that they
are mistaken, it is almost impossible to convince the trier of the fact
that the teenager has a motive to lie. Without a motive for lying, it is
likely that he or she will be believed.
Why would a teenager send her father to prison for 20
years; bankrupt him financially, destroy his happiness if he were not
guilty? Why would a teenager falsely report a teacher, the result of
which is the end of a career at the very least merely because of a bad
grade?, or because of an unreciprocated crush?
It is in this arena that the lawyer has the hardest
time explaining to the jury or the judge an improper motive.
It is difficult to explain why the complaint is made
in the first instance. One Waterbury case seems to have started when the
father "grounded" his daughter for eating a bag of potato
chips and lying about it. He is serving a 20-year sentence. Having read
the transcript, I am personally convinced the person is innocent (mainly
because of both internal and external inconsistencies) except that there
were two problems a small injury to the hymen (which may have been self
inflicted) and the lack of a credible motive other than the potato chip
problem, and that the girl was at constant war with her father and
stepmother. The inability to come up with a plausible motive was perhaps
the overwhelming cause of conviction.
My theory as to why older children would lie about
sexual abuse is one of a small lie getting out of hand. The results were
unforeseeable to the child at the time the false allegation first came
Consequently, one should consider the motive for the
little lie and attempt to learn how it goes wild. Based upon general
reading, it appears that the motives in the adolescent victim may
include one or more of the following:
(a) Shift blame from a boyfriend.
(b) Get even, revenge, i.e., against a teacher for a
bad grade, against a parent for perceived unreasonable punishment.
(c) Get attention I guarantee you that there is no
bigger hero or heroine among the mental health and police community than
the child who claims sexual abuse.
(d) Imitation of movie scripts A child who has
watched a TV movie about incest or rape may identify with the heroine.
Check to see if such movies as, "The Trouble with Amanda," or
"Kids Don't Tell" have been viewed by the alleged victim.
(e) Imitation of real accusations. Adolescents are
fad conscious, and if this becomes a fad, then other children may be
prone to join the fad. Consequently, do not discount, especially when a
teacher is involved, that other teenagers want to get in on the action.
A child can become a real hero with her peers if she, too, can claim that
she was the object of a teacher's affections.
(f) Psychotic delusional thinking some children are
simply out of touch with reality.
(g) Jealousy the child is jealous of the attention
given by a natural parent to a stepparent or a stepsibling.
(h) Take the heat off for doing poorly in school or
for other behavior problems. Once the false allegation is made, it is
guaranteed that no one will mention the word "homework" again.
In any event, attorneys involved in this type of case
must pay attention to the motive. This requires an investigation of the
child's mind, motivation, and methods.
Since the testimony of the adolescent is so clearly
against the child's self-interest, there is an underlying presumption
that the child is telling the truth. The establishment of a bad motive
becomes the chink in the armor of the detrimental effect of the
principle of self-interest.
Reputation for Truth and Veracity
There was an episode in the TV series of All in the
Family which shows how society will give certain witnesses more
credibility than others. Archie Bunker is being told by his attorney
that the whiplash case is not valuable enough for the attorney to take
it. Archie doesn't understand. "After all, it's my word against
his." The attorney responds: "Not exactly, there were some
station wagon full of nuns." Archie is told that, "you can't
beat a station wagon full of nuns."
Here, again, we have a criminal rule and a civil
rule. The civil rule is that you cannot, in your case in chief, bring
out evidence of character or reputation of a party. Bosworth vs.
Bosworth, 131 Conn. 389, 391,40 A.2d 86(1944), but may be produced as
rebuttal testimony. Creer vs. Active Auto Exchange Inc., 99 Conn 266,
278, 279, 121 At 888 (1923).
The criminal rule permits the accused to put into issue his character or reputation in the community.
State vs. Penn 144 Conn. 148, 153, 127 A.2d 833. When dealing with a
teenage complainant, it may be necessary to bring in evidence of a bad
reputation for truth and veracity.
If, early in the trial, evidence of a bad reputation
for truth can be established, it may color the perception of the rest of
the evidence. Since all knowledge is layered upon prior knowledge, the
first witness to testify may, if totally believed, set the stage for the
trier of fact to (a) selectively perceive, i.e., listen, and (b)
selectively remember. (18)
I am aware of two cases involving child abuse in
which the defendants had airtight alibi defenses. Nevertheless, they
were convicted. The only rational explanation is that the jury, after
having heard the case in chief, simply did not pay attention to the
defense. If the seed of doubt as to veracity can be planted early as to
reputation, perhaps the trier will keep an open mind as to any
affirmative defense. (This perhaps can be done in the preliminary
examination as to competency).
Since in family matters we infrequently use evidence
of reputation and character, this is one subject matter area that
deserves serious consideration.
(1) Eberle, The Politics of Child Abuse
p. 105, Lyle
Stuart, Inc. (1986). [Back]
(2) Id., p. 94 [Back]
(3) Child Abuse and Neglect Reporting and
Investigation: Policy Guidelines for Decision Making, 10-8-87, Report of
consensus-building process conducted under the auspices of the American Bar Association's National Legal Resource Center for Child Advocacy and
Protection; the American Public Welfare Association and the
Enterprise Institute. (Although the report was a "consensus,"
Professor Douglas Besharov indicates the real data showed 66 percent of
all abuse cases are unfounded). [Back]
(4) Dwyer, Guilty as Charged: Or are They?,
Unpublished paper, University of Minnesota.
(5) Eberle, Id. p. 90 [Back]
(6) Ibid. p. 185 [Back]
(7) Ibid. pp. 43, 52 [Back]
(8) Ibid. pp. 50, 52 [Back]
(9) Ibid. p. 52 [Back]
(10) Ibid. p. 54 [Back]
(11) Ibid. p. 66 [Back]
(12) Ibid. p.13 [Back]
(13) See gen. Nurcombe, The child as witness:
Competency and credibility, Journal of the Academy of Child Psychiatry, 25. (4)473,447 (1986)
(14) Goleman, Vital Lies, Simple Truths
The Psychology of Self-Deception
pp. 93-95, Touchstone, (1985).
(15) Ibid. [Back]
(16) Eberle Id. pp. 224, 225 [Back]
(17) Ibid. p. 235 [Back]
(18) Goleman, Id. pp. 61-63 [Back]
* Louis Kiefer is an Attorney at Law and can be
contacted at 60 Washington Street, Suite 1403, Hartford
Connecticut, 06106. [Back]