Trouble — Right Here in River City: What Happens When the Prosecutorial Urge to Create Persuasive Video Evidence Contaminates the Child Interviewing Process in Cases of Alleged Sexual Abuseby Stephen Danforth(Editor's Note: Mr. Danforth, an attorney, is currently
imprisoned in Minnesota after being convicted of child sexual abuse. He had
previously been convicted of child sexual abuse in Wisconsin. He readily
admitted his guilt in the Wisconsin case, was sentenced, served his time, and
was released. He does not deny that he abused the child in Wisconsin.
However,
he stoutly maintains his innocence in the case in Minnesota. He believes his
past record greatly influenced the investigation and his trial, in which the
judge refused to admit his defense claims of biased investigation and
interrogation of children. This article reflects his legal training and
experience and his interest in interrogation techniques and child witnesses.
We
take no position on his guilt or innocence in the Minnesota conviction. However,
we consider his legal analysis of the issues raised for him by his conviction of
interest.) Introduction There is no doubt that sexual abuse of children occurs. There is also no room for question that false accusations of child sexual abuse also are regularly advanced. Some of these false accusations are retracted, and their falsity admitted. However, this is not always the case. Moreover, retractions are sometimes delayed for years, all too often years during which the falsely accused is harshly imprisoned. Further, retractions are frequently disbelieved or ignored. A retraction of an earlier accusation of sexual abuse will not result in overturning of a conviction of that crime without virtually unquestionable corroboration of the retraction. The devastation wreaked by a false accusation is so complete that it essentially destroys the wrongly accused's life. There is at present no absolutely foolproof way to discern false accusations of sexual abuse from true ones. DNA testing, for example, applies only to cases where samples of "DNA material" are retrieved. Obviously, in cases of completely fabricated accusations, no DNA material will be found. Currently, deliberately concocted, false accusations are set back in time, or include assertions of subsequent washing, etc., to excuse the lack of DNA evidence. Thus, in most cases, sexual abuse trials come down to word-against-word contests of conflicting testimony, at best. There is no way to assess the comparative percentage of sexual abuse accusations that are false, as opposed to the converse percentage of such accusations that are true. However, it is widely acknowledged that, of all crimes, accusations of sexual misconduct in general are those that are most often raised falsely, for any of a wide variety of motives, ranging from highly emotional spite motivation, all the way to sheer hope for monetary gain. There is an inflammatory nature to such an accusation that typically temporarily deprives its hearers of their usual powers of skepticism and critical examination. Also, in light of the typical, 'Yes, you did', 'No, I didn't' trial scenario, calmer heads once observed that accusations of sexual misconduct are easily raised, and are disproved only with difficulty (State v. Dolliver). However, most recently, extensive surveying and experiments have concluded that the mere fact of a sexual abuse accusation, regardless of how flimsy, now causes most mock jurors to come to a snap judgment of guilt, effectively demanding that a defendant prove his innocence (Horowitz). Because of all of the foregoing, there is no case more in need of stringent enforcement of the requirement of proof beyond a reasonable doubt of guilt than cases of allegations of sexual abuse. Yet, astoundingly, many (some would say suspiciously too many) cases of this type are advanced without any testimony by the alleged victim. Only a small fraction of these cases have involved pre-verbal toddlers or the mentally disabled. Instead, all too often, the mere assertion of possible traumatization through simply testifying has been used to excuse a lack of such testimony. Indeed, the frequency of bouts of inadequately explained, purely transient, testimonial "incompetence" on the part of alleged child victims in the primary school range has suggested to some that there is now a secret trend of drugging such prospective child witnesses, or of secretly instructing them to 'act stupid', expressly to prevent them from testifying. In place of such testimony, the prosecution typically advances statements by, or interviews of the alleged victim (Daly). Hence, testimony or evidence of these statements/interviews assumes a crucial legal importance. Unfailingly, determination of the truth in cases of sexual abuse accusations is critical not only for the accused, but also, forensically, for the alleged victim as well. It is known that the sequelae for non-victims of child abuse who are falsely, chronically misrepresented as victims is, in the long run, extremely and comprehensively adverse for the non-victim, every bit as much so as the traumatization is for actual sexual abuse victims (Ceci, Bruck, "Jeopardy ...'). The child who either is a pawn of a parentally-originated false accusation, and the child who, on his or her own motion advances a false
accusation for childish motivations (e.g., of spite, or of deflection of blame for some personal misdeed) is
effectively made a profound victim of the false accusation itself. No doubt, this 'double-edged' nature of
false accusation was what
gave rise to the Judeo-Christian Ninth Commandment, enjoining the bearing of
false witness. I. Child Interviewing: Its Origins, Evolution, and Current Arrangements Oversimplifying only a little, the traditional investigation of allegations of child sexual abuse was almost purely in the domain of police agencies. Even cases where the initial report of alleged abuse was filed by medical or school personnel, all subsequent investigation was left to police. Although by no means widely valid, criticism of police was heard, beginning in the 1970s, of over-skepticism on the part of police as to such allegations, and of reluctance to engage in any serious investigation, or to press for prosecution. These groups likewise publicly criticized prosecutors for similar skepticism. Largely in response to such criticisms, both police and prosecutors scrambled to revamp procedures and charging-decision criteria. Due to political pressure, the upshot was that, before long, virtually all remotely credible sexual abuse allegations were prosecuted. Congruent to this change of approach, police agencies, still the primary investigators throughout the 1980s, now abandoned all skepticism, and approached each case with a firm presumption of guilt (Daly). This in turn prompted interviewing that was intended as supportive (at least, as to production of incriminating responses by a suspected victim). However, in practice, interviewing tactics as to such putative victims frequently ranged into categories that are best described as "grilling" at length, or "browbeating" when the anticipated accusation was not forthcoming. The New Jersey case, State v. Michaels, and the California case, State v. McMartin, stand as historical illustration of this overzealous, insistent style of interviewing, refusing to consider the possibility of innocence. Partly in an effort to defuse objections of the public to such police excesses, prosecutors sought to 'professionalize' the appearance of such interviews by making arrangements for investigational interviews to be conducted by members of various 'helping' professions, notably physicians, nurses, psychiatrists, psychologists, social workers, and "counselors" of various self-appointed types, some of which had no reason for existence other than to conduct such ex officio criminal investigational interviews as activist-'advocates' (Daly). An additional benefit accrued to the prosecution by this transfer of interviewing responsibility. Judges had always been very loath to allow police to testify to out-of-court (hearsay) statements/responses by alleged crime victims, apart from very limited exceptions, such as death of a victim before trial. In contrast, a specific exception to the hearsay prohibition had always existed (albeit infrequently used) for statements made to physicians and nurses for purposes of treatment. A new generation of prosecutors, now dedicated to aggressively advancing sexual abuse prosecutions, exploited this by having suspected victims of sexual abuse examined by physicians, who would meanwhile also be questioning the child, essentially as a police substitute (Daly). While this may have been well-intentioned, the self-selection of physicians who volunteered for this unique work sometimes gave rise to bizarre and even traumatizing results. One local example of this was a physician who would digitally penetrate and protractedly probe genital and/or anal openings of examined children, while insisting that they tell about the presumed sexual abuse (Wakefield, Underwager, "Accusations ...'). Nationwide, efforts to bifurcate physical exams from interviewing have sometimes assigned the latter task to psychologists. Psychologists were selected for this for two reasons. First, courts have been urged to broaden the specific hearsay exception for physicians to cover psychologists, but with only mixed success to date. However, in any event, second, psychologists could also testify as an expert about certain child behavior patterns thought to suggest earlier sexual abuse. While other psychotherapeutic and counseling personnel were not covered by the specific 'physician's exception' to hearsay, courts by then still allowed others to testify to a child's statements or responses about alleged sexual abuse, so long as the hearsay was judicially determined to have "sufficient indicia of reliability". However, in 1990, the United States Supreme Court, in Idaho v. Wright, ruled that this traditional hearsay standard was too loose to satisfy the requirements of the constitutional guarantee to defendants to confront their accusers, in cases where the child accuser did not actually testify. The guidelines imposed by the Supreme Court in that case severely limited occasions when this hearsay reporting by counselors of incriminating statements or responses by children could be deemed to present the requisite, virtual "guarantees of trustworthiness" of the accusation, such that cross-examination of the non-testifying child would be essentially useless. Faced with the unlikelihood of mere counselor's testimony satisfying this new, tough standard, prosecutors around the country have, throughout the 1990s, been gravitating toward a counselor-interviewing variant that includes video-recording of the interview that is hoped to be presented as evidence, in lieu of child testimony. The seldom-stated appeal implicitly made to trial judges is that, because the videotape ostensibly documents statements or responses actually made by the child, there is no chance of perjured or inaccurate testimony about those utterances by the interviewer. Although that can be assumed to be true in a technical sense, for purposes of this discussion (although perhaps not actually true, in light of recent advances in video manipulation), it is a fallacy to conclude that the statements or responses by the child in such videotaped interviews come with any "guarantee of trustworthiness". In fact, as will be seen below, such videotaped 'final
takes' obscure and belie myriad possibilities of innocence and false accusation,
and lend an unmerited, virtually unassailable imprimatur of the appearance of professionalism
to all statements 'produced' in this way, regardless of truth or falsity of the accusation itself.
Our concern is the deceptive appearance of
these 'productions', for reasons that emerge repeatedly below. II. The Non-Forensic. Persuasive Intent of Videotaped Child Interviews As suggested above, typically, non-governmental, non-profit organizations produce these videotapes of child interviews. However, in doing so, they work very closely in cooperation with police and prosecutors. "CornerHouse" (hereinafter, "CH" for short), located in Minneapolis, is a classic example of this model. Once a sexual abuse accusation has been lodged with a participating police agency, police schedule an interview to be conducted by CH. The investigating police officer then briefs CH staff on the specifics of the accusation, including times and places of alleged sexual abuse, and the alleged acts of sexual abuse (State v. Danforth, 42). An assistant county attorney is permanently stationed at CH. It is specifically hoped by this assistant county attorney and CH staff that a videotape will be produced from each child interview capable of legally being granted admission as evidence in a subsequent prosecution. One function of CH, under the direction of that assistant county attorney, is to adjust any and all aspects of interviewing so that the interview appears as convincing as possible as an accusation against the accused. In short, the videotape is a production. CH is an 'accusation factory'; 400 cases are handled there every year (State v. Danforth, 42). Only 10-15% of the interviews conducted there result in a finding that no abuse occurred. The videotapes produced have no use other than as a prosecutorial tool, in the decision to prosecute, and as such later-proffered evidence in criminal prosecutions. (id, 43). While the child is interviewed, police and the assistant county attorney are present in a nearby room, watching and listening via closed-circuit TV to the ongoing interview. At times when they desire further information, they communicate their requests to the interviewer, who then proceeds to verbally steer the child toward responses sought. Because it is impossible to cross-examine a videotape of such an interview, prosecutors deem these videotapes as superior to presenting the child as a 'live' witness in court. This view is aptly summarized by Mosteller (777):
More specifically, Mosteller adds (793, 806):
Indeed, since the inception of such videotaped interview production, there has been a large increase in the number of cases tried on such videotapes without child testimony (Mosteller, ibid). From this it can be inferred that findings of incompetency, the only legal avoidance of such otherwise required testimony, have skyrocketed. Either there is a sudden epidemic of idiot children, or incompetent appearance is being falsely manufactured, either by drugs or by direction to the child by parents or others to 'act stupid and silly' when the judge is trying to assess competence. The resulting, suspiciously convenient "unavailability" of the child as a witness ensures that the defendant's confrontation rights are thwarted. Especially in light of the foregoing, a reactionary movement has arisen that demands that all such non-forensic, 'produced' interview videotapes be banned from use as evidence, as merely "manufactured hearsay". Mosteller (776-8) expressly describing the CH scenario, where a "social worker employed by private, nonprofit organization which assists police in their investigation of child abuse ...", calls such videotaped statements "inquisitorial" in production, and "ex parte governmental statements" in nature, and flatly concludes that even "(a) showing of trustworthiness cannot compensate for the lack of cross-examination where inquisitorial statements are involved." Hence, for instance, in Burke v. State a similar videotaped statement was held inconsistent with the Confrontation Clause, the court terming it "manufactured hearsay", which gave the state an unfair advantage in presenting its principal witness by means of carefully prepared videotape. In particular, Burke rejected the argument to "sufficient indicia of reliability", concluding that such reliability could only be achieved by the opportunity for cross-examination. Burke v. State rejecting such videotapes, per se, where the complainant was subsequently held to be "unavailable", sums up their constitutional objectionability, whatever the appearance of 'indicia of reliability', thus:
Similarly, Gaines v. Comm (526) refused to admit such a videotaped interview, deeming it to be tantamount to allowing the child to testify without first finding the child to be competent and administering the oath. It is ironic that such videotapes are admitted often when the child in the videotaped interview has been found incompetent to testify. Hence, in Rolader v. State (758), the videotape failed the Idaho v. Wright analysis, in that the interview was "conducted by persons acting in a law enforcement capacity, with clear intention of gathering evidence for use against appellant." At present, the United States Supreme Court has not
specifically responded to this demand that such 'production' videotaped
interviews be banned. Because these types of interviews raise numerous problems
in communication between children and adults, including in areas of the
alteration of child cognition and memory through communication as suggestion, we
must proceed to an examination of these problems. III. The Myriad Problems of Videotaped Child Interviews as an Investigational Device A. The Ever More Universal Sweep of the Technique and of its Problems It is now scientifically established that many aspects of interviewing techniques employed in interviews of alleged child victims can radically alter what the child says in the interview. (See, e.g., Ceci, Bruck, "Child Witnesses ...; Raskin & Yuille, "Problems Interviewing ...", 184-207).
CornerHouse (CH) was one of the first private agencies to be founded for the purpose of conducting this type of child interview in accusations of sexual abuse. From its founding in 1989, it has consistently produced the kind of videotapes of concern here. In addition to this local role, it has also been extremely active in urging other metropolitan areas to found similar private entities, and to use them in child sexual abuse prosecutions (State v. Danforth). For all who are interested in doing so, or who have already begun to do so, CH offers training services that essentially 'clone' the CH model onto such other non-profit agencies elsewhere. By now there are similar videotaped interview production facilities and staff in various cities throughout the country, all taking similar advantage of the superior evidentiary appearance of such videotapes, as compared to 'live testimony by child witnesses. Along with this widespread duplication of such facilities and
methods come each of the specific problems mentioned below that render the
responses of the interviewed child doubtful and perhaps meaningless in reality
(although appearing otherwise to the untrained and overly-receptive average
juror). Hence this is not a local problem; it is a national problem.
Given the
overwhelming conviction rate in child sexual abuse cases (over 90% of cases
tried, Mosteller), and in light of just the local number of cases each year, the
number of convictions based on these unaided videotapes each year must be
staggering, and can be reasonably speculated to be in the range of 20,000.
Thus
the terrible impact can be felt, if these videotaped interviews are not a
reliable truth-getting device. Horrifically, it will be seen below that they are
anything but that, and indeed, function effectively as a truth-stifling, and
deception-perpetuating device. B. The Specific Problems 1. The Isolated 'Tip of the Iceberg' Effect One of the most seductive elements of the persuasive appearance of these child interview videotapes is that they appear to be completely spontaneous, that is, without any preceding predicate. It thus falsely appears to an observer that the child, unprompted, simply came of his/her own motion to the interview, out of purely altruistic, moralistic motives, seeking justice for a wrong. This icon is emphasized by popularized terms such as "coming forward" that, perhaps deliberately, purvey an image that is almost never an accurate descriptor of an abuse accusation's emergence/creation. This, of course, is a fallacious myth, but one that has persistently seductive power in our society. We simply want very badly to believe this. The reality almost invariably is that the video-recorded interview has been preceded by at least several conversations between the child and family members, police, social worker(s), physician(s), and perhaps psychologist(s) (Mosteller). Even in the case of a true accusation, there is an inherently contaminating effect of all these prior conversations (see below). In cases of false accusations, the undisclosed antecedents of the video-recorded interview include the actual, non-abusive scenario, the nature and origins of the motivation for the false accusation, the coaching used to teach and to refine the accusation in the child's mind, the means of influence that were brought to bear on the child to force or coax cooperation in advancing the false accusation, and innumerable further aspects (id). A videotaped interview, especially because it is a production intended to support the accusation, will fail to show, and indeed attempts to obscure, and even deliberately to cover up these strongly exonerative antecedents. Hence, such videotapes are only isolated 'tips of the
icebergs' of the actual facts behind as accusation of sexual abuse. What's
worse, they may be highly unrepresentative of the actual historical facts of a
given accusation, and indeed may cast a completely erroneous impression of it.
This is an inherent problem when such videotapes are presented as a substitute
for child witness' testimony. The inability to cross-examine a videotape leaves
the accused with no effective means to pierce behind the misleading, monolithic
facade of the carefully crafted (see below) interview itself. 2. "Taint": The Overwhelming Impact on a Child of Prior Suggestion and Misinformation There is no doubt that "children incorporate misinformation from early interviews into subsequent reports." (Adams, "Investigations ...", 123). "A committee of social scientists have reported that suggestions planted in a first interview session can be quickly taken up and mentioned by the interviewed child in a subsequent interview." (Amicus Brief, State v. Michaels; Bruck, Ceci, et al, "I hardly ..."). This problem of taint from prior suggestion impacts younger children disproportionately. In State v. Wright, the Idaho Supreme court concluded: "The problem of tainted memory is much more severe in young children. See, e.g.: Cohen & Harnick, "The Susceptibility of Child Witnesses to Suggestion", 4 Law and Human Behavior 210 (1980). Yet, ironically, the common image represented by the phrase, "out of the mouths of babes" appears to be responsible for professional interviewers' lack of control for outside influences on the child's statements, such as previous conversations with parents or peers (State v. Michaels, 1376); Younts, "Evaluating ..."). Hence, any examination of the accuracy of child interviewing
must begin by examining the antecedent influences on the interviewed children. a. The Ubiquitous, Curious Childhood Phenomenon of "Confabulation on Command" The risk with young children is that they may be unable to distinguish a memory of something which actually happened from a memory of something they imagine happening (Johnson & Foley). If an interview technique leads a child to imagine an event, the child's memory of that imagined event will be indistinguishable from memories of events which the child actually experienced. Loftus & Davies, "Distortions in the Memory of Children" 40 J. Soc. Issues 51, at 2-3 ..."
Unlike adults, children are craven for adult attention and approval. This need is strongest with regard to a child's parents, and also is very pronounced to those who are either designated by parents as, or appear to the child personally as, persons in authority. Hence, when a parent or authority figure asks a child for an account of some occurrence, the most important thing from the child's point of view is compliance, i.e., fulfillment of the parent/authority's request for a narrative. In the child's mind, especially with younger children, truth of the narrative either is a distinctly secondary concern to that of pleasing the requesting adult, or is of no consequence at all, as compared to that goal of being pleasing. Even just the way a question is asked, when a child assumes the interviewer is knowledgeable about the substance of the accusation, has been shown to result in inaccurate or false responses (Perry, Wrightsman, 191-193).
For this reason, the business of narrative in the mind of a small child always includes confabulation, that is, the impromptu fabrication of fictional events, simply to create a narrative on the fly. This is not deceit; the child is not usually specifically trying to deceive for the sake of deceit. The child's only goal is to present a pleasing narrative. Unless the inquiring parent/authority figure persistently indicates to the child that the only narrative that will be pleasing is one that actually happened, the child's narrative will likely follow the easier and freer path of fictional confabulation. Small children essentially learn by pure behaviorism. In this instance, this means that a child may learn that a parent, who inquires whether what the child just said is the truth, will be pleased if the child says it was, and may well be displeased if the child says that it was not. The child, having already stated a confabulation, simply takes the road less troubling as an immediate matter, answering "yes" to its truth. The child may even be oblivious to the fact that, by endorsing untruth as truth, a deceit has been set in motion. Alternatively, the child more likely will simply be indifferent about this 'collateral damage'. What was all-important then to the child was simply giving the immediately pleasing affirmation (Wakefield, Underwager, "Accusations ...'). Videotaped interviews are typically held long after such
initial confabulations were made, and after they have been refined by embellishments.
Especially where no strong effort is made to specifically
challenge such confabulations as untruths, they will simply be recited again in
their refined form, obscuring and contradicting historical fact. b. Parents, as High-Status First Interviewers A major problem is interview status. "Interviewer status may be especially troublesome in child sexual abuse cases because the child's first conversation about the abuse is often had with a parent, the child's ultimate status symbol. The parent may harbor hard feelings toward the suspected abuser, or have preconceived notions of what "abuse" may have occurred. Studies show that when interviewers entertain such notions, the accuracy of the interview suffers. Parents, lacking the requisite training, will not be able to avoid supplying significant suggestion. The first discussion about the abuse is the most influential, and as such, the most potentially devastating to defendants." (Feher, "the Alleged ...", 232). What has been said in the section immediately above also
illustrates the crucial role played by parents and other, older family members.
The child defers to them, giving them a high status of authority. When a parent
deliberately, maliciously teaches a child a false accusation of sexual abuse, as
a practical matter the child will have no choice but to accept this teaching,
and to parrot it back on demand. However, the child, especially if very young,
will probably not see this learning experience as a wrongful imposition, but
simply as yet another parental tutoring session, with later testing. By the
nature of childhood and parenthood, this will happen reflexively. The same
principle applies when the parent simply holds an emotionally loaded, honest
suspicion (although incorrect) of sexual abuse of his/her child. The parent's
inquiry is very likely to border on confrontational with the child. The child is
very likely to see this agitated inquiry as a request for confirmation, and to comply with
that perception by giving confirmation, regardless of the truth. c. A Child's Acceptance of Parental Lies; Assertions to the Child that Abuse Occurred Hand in glove with the foregoing is the further fact that young children, as part of their view of parental authority and infallibility, do not conceive of their parents as liars, or even as capable of lying. A child believes that if a parent makes an assertion, it must inherently be true, even if it runs contrary to the child's own memory and perceptions. Hence, e.g., a parent, in an effort to 'flush out' the suspected (but nonexistent) molestation, may well engage in what the parent believes is simply an innocent deceit in service of getting at the truth, thus: "I know about how ________ (the accused) touched your __________ (pertinent anatomical part). So you should tell me how it happened." A young child hit with this assertion, having only an absence of any memory of this nonexistent deed, will likely assume that parental knowledge is superior, and again will simply confabulate to fill in the 'missing memory'. Experiments have consistently confirmed that in a contest between what a child actually witnessed, versus a suggestion by a parent or authority figure, the suggestion will win most times.
Honts describes research designed to test children's willingness to lie about serious matters in profoundly serious situations. Children between 4 and 11 years old were placed in one of three scenarios. In one of these, a 'thief' steals a book, and asks the child to keep the theft secret. In a second alternative scenario, no one sees who stole the book, but the child's parent is accused of stealing the book while the child was not present. The parent then asks the child to lie to protect the parent by saying that the child witnessed another take the book. In the last alternative, the child actually witnesses the parent 'steal' the book (as an experimental confederate). The child was later interviewed by a 'policeman'. In the first case, the children correctly identified the thief 80% of the time. But, in the second scenario, 69% of the children lied as their parents had requested. Even where the children had seen the 'theft' by their parent, 56% falsely accused another to protect their parent. Not one child revealed to the policemen that their parent had requested a cover-up lie! The conclusion is inescapable that children will lie under circumstances they perceive as profoundly serious when requested to do so by their parents. In the now famous 'mouse trap' experiment, 58% of children tested asserted non-experiences had occurred after false suggestions of such fictional events (Sales, VandenBos, 31-2). The most startling fact in this experiment was that, even after persistent debriefing attempts after the experiment's end, the children continued to insist on the truth of those fictional suggestions, swearing that their fingers had indeed been pinched in the non-existent mousetraps, despite being confronted by the video evidence to the contrary. Still another, distinctly chilling result was false assertions (after suggestion by interviewers) of genital contact by examining physicians, once again contrary to surreptitious video surveillance (id, 38-9). In a scientific study using a false suggestion to a child that the child's mother had said that an event had occurred, involving the child, Ceci found that children immediately agreed and elaborated upon this false 'memory' in an alarming percentage (28 and 40%). With further repetitions of this assertion over tune, the rates increased. Ceci, Loftus (315) concluded that:
Younts, "Evaluating and Admitting", 724, adds:
About this confusion of memory and endorsement of suggestion, State v. Wright goes on to quote from the testimony of an expert in child psychology who testified for the defendant thus:
Suggestions of entire episodes, even traumatic ones, with the
complex, nested structure of an autobiographical memory, is possible,
particularly in the case of young children, and particularly in the case of
those with weak and not particularly accurate memory (Ceci, Loftus, 365,
368-9, 372). The inverse relationship of susceptibility to misinformation to
ability to notice discrepancies is so well known by now that it is termed in
psychology the "Principle of Discrepancy Detection" (id, 367).
It has
been shown that even a small suggestion from a trusted family member can
trigger the creation of false memory in the case of a child. (id, 375).
Interestingly, when the introduction of misinformation is delayed for a
significant period after an occasion used as its setting, actual event memory fades, and comparatively, misinformation memory is strong enough to bias 'recall'
toward itself (id, 368). d. Urging a Child to "Think Real Hard" In cases where a parent's (typically emotional) inquiry is met by a denial (typically by a somewhat older child), a parent may be tempted to believe that the child is simply 'blocking' a traumatic memory. So the parent may urge the child to "think real hard" about it, or words to like effect, and then to answer again. This, to a child, has a profound, twofold effect: It telegraphs that the desired answer was the one not given, and it blatantly asks for the child to reverse the response. In cases of non-abuse, this unwittingly asks the child for a compliant deception. This type of appeal to a child happens so often that it has
been the subject of specific comment in the professional literature. Even merely
"thinking about past events" can change a child's memories (Perry, 75).
"Repeatedly encouraging a child to 'think real hard' about
an alleged event may create multiple sources of memories, some actually experienced and some only
imagined, in the attempt at retrieval of nonexisting memories." (Ceci,
Loftus, "The Possible Role", 308). e. Explicit Vilification of the Accused, "Stereotype Inducement", and Signaled Bias of Guilt A parent or authority figure need not actually assert false knowledge of the accused's guilt to bias a child's account. Studies have shown that simply a broader vilification of the accused by a parent or authority as just being a bad man, or someone who does bad things, is sufficient. Similarly, creating for the child verbal imagery and labeling of the accused as someone with given propensities will frequently induce the child to give a false account purportedly illustrating this furnished propensity. "The explicit vilification or criticism of the person charged with wrongdoing is another factor that can induce a child to believe abuse has occurred ... Similarly, an interviewer's bias with respect to a suspected person's guilt or innocence can have a marked effect on the accuracy of a child's statements ..." (State v. Michaels, 1327). Ceci, Bruck Jeopardy, 81, 127-135 define "stereotype inducement" as where 'the interviewer gives the child information about some characteristic of the suspected perpetrator.", and they give numerous examples, as where the suspect is described to the child as a bad man or that he "tries to scare children". At 128-9, they describe two experiments where one confederate was described to children as doing bad things, and the next was described as clumsy. In the first experiment, the children readily agreed to subsequent questions that essentially accused the bad confederate of doing sexual acts with them. In the second, the children furnished various accounts of the 'klutz' doing clumsy things, such as breaking or dirtying various objects. The moral of the story is that children have a profound need to ratify impressions they are given with illustrative stories, true or not. In another experiment, children produced a high percentage (72%) of false accounts, where the supposed actor of the nonconduct had been presented earlier as a stereotype to the children (Sales, VandenBos, 38-39). The conclusion is inescapable that such stereotypification greatly increases the temptation to the child to confabulate in conformity with their perception of such stereotype. Lastly, if an inquiring parent/authority intimates any personal bias that the accused has done some act, the child is likely to agree that such an act occurred, even when the child, as purported victim, knows that nothing of the kind transpired. The concept of taint was judicially recognized in Minnesota in State v. Huss. Huss involved suggestion by the child's mother, using a book on child abuse for children, urging disclosure, "Green Light, Red Light People", which included beguiling children's songs that vilified men who touch children in unspecified ways, whenever a child is made uncomfortable. Of course, a child being given untrue suggestions of sexual abuse is very likely to become uncomfortable. The Minnesota Supreme Court reversed the defendant's conviction, noting that such suggestion "may have improperly influenced the child's reporting of events." (Huss, 293). Even such an ardent champion for the sexually abused as Gail Goodman, in her article (Goodman, Clark-Stewart, "Suggestibility ...", 101), describes a startling experiment in which children witnessed certain staged, unusual, but harmless behavior by a "janitor", and who then were subjected to a suggestive interview. Not surprisingly, "90% of the children who heard an interrogation that was inconsistent with the scenario they had witnessed answered at least four (of six) questions in line with the interrogation rather than the scenario ..." "[I]f the investigator does not maintain a neutral position, the child is likely to pick up on the evaluator's bias and provide the information the child believes the evaluator wants to hear or is seeking." (Adams. 134). These kinds of suggestive phenomena occur regularly in
questioning sessions of children in cases of suspicion of sexual abuse. f. Urging a Child to "Visualize" a Scenario, "Guided Imagery", "Memory Work", and "Cognitive Interviews" "Another professional technique involves "guided imagery" or 'memory work'. Interviewers sometimes ask children first to try to remember or pretend if a certain event occurred and then to create a mental picture of the event and to think about its details." (Ceci, Bruck, Jeopardy, 81). A related technique more recently is that of the 'cognitive interview'. This likewise consists of a number of mnemonic instructions or specific suggestions designed to facilitate witness' recall of specific details of an event." (Powell, Thomson, 211). Two scientific surveys showed videotapes of final interviews of children to psychological clinicians and researchers. Half of the children were reciting real events, while the other half were merely reciting events they had 'visualized' in response to requests of experimenters that they do so. The results consistently showed that these professionals were less accurate than chance at discerning true from false (visualized) accounts in those videotaped interviews. (Ceci, Loftus, et al, 315). Another, virtually identical study confirmed this 'no better than chance' result (Honts, "Assessing....", 886). This profoundly drives home the point that, if professionals cannot discern true accounts from those that were merely 'visualized', neither can any lay juror or judge do so. Ceci, Crotteau-Huffman, Smith & Loftus, "Repeatedly Thinking ... ", added that there had been no attempt whatsoever to mislead the subject children, only to ask them to mentally visualize what might have taken place, thus presenting a "fairly conservative test" of the hypothesis. By the eleventh week, when interviewed, fully 58% of the preschool subjects produced false memories to at least one fictitious event. The narratives then obtained were frequently elaborately embellished with internally consistent accounts of the context and emotions associated with such utter non-events. Ceci, Loftus, at p. 317, quoting a reviewer, observes:
g. The Cumulative Impact of Factually Incorrect Responses It is beyond question that the foregoing phenomena have long-lasting corrupting impact on a child's memory.
"Ironically, it appears
that the mere act of providing a false response appears to create its own
memory, which is then perceived to be true." (Adams, 218). Schooler, Foster
& Loftus, ("Some Deleterious ...", 249) report showing subjects a
slide presentation of an event, then questioning them with misleading
information, concluding that "the act of committing to an incorrect response
causes subjects to falsely remember that information ... Which later causes
interference that impairs the subjects' ability to remember the original
details."
State v. Babayan cited the impact of 'concertizing'
(repetitive, leading discussion) creating false memories in the child. While
studies have not focused on this cumulative impact, on an intuitive level it
stands to reason that the greater number and unanimity of suggestive sources and
occasions, the more profound and directional their combined effect.
Referring to the 'klutzy' janitor experiment involving children's acceptance of adult suggestion at odds with what the children themselves witnessed, more surprisingly, Goodman pointedly adds: "Nor did the children change their stories when questioned by their parents at the end of the session. All the children answered the questions posed by their parents consistently in line with the interrogator's interpretation of the janitor's) activities, and one week later, on the follow-up questionnaire, the children generally retained these interpretations." (ibid). Such is taint. It is irreversible. Other courts have recognized that, once tainted, the
distortion of the child's memory is irremediable. See State v. Wright, 116 Ida
382, 775 P. 2d 1224, 1228 (1989). ("Once this tainting of memory has
occurred, the problem is irredeemable. That memory is, from then on, as real to
the child as any other.')" State v. Michaels, 1378). Especially in light of
this troubling aspect of taint, interviewers must be very careful to counteract
it in every way possible. As will be seen below, however, interviewers,
particularly the partisan interviewers represented by those at CH, never engage
in any meaningful taint counteraction, and, indeed, they appeal to it to obtain
incriminating, but incorrect accounts from children.
Several types of "contamination errors" have been judicially recognized as occurring in or before such interviews of children in abuse cases. Among these specifically, is outside information gained by the interviewer from police. State v Babayan. Younts ("Evaluating ...') noted that factors that can undermine the neutrality of an interview and create undue suggestiveness include a lack of investigatory independence, with reliance instead on such outside information. And Powell and Thomson (206) add that "the interviewer
should be aware, however, that the more information about the event under
question (particularly inaccurate information), the more misleading are the
questions he or she is likely to ask ... [I]t may be that preconceptions about an
event bias the interviewer's perceptions of the progress that is being made
throughout the interview. For instance, if the professional is convinced prior
to the interview that the child has been sexually abused, almost anything the
child says or does will probably be regarded as evidence of abuse. Also, the
biased interviewer may be more likely to create an atmosphere of accusation or
urgency, reassuring the child that "it's OK to tell", and "you'll
feel better soon". The potential damage caused by misleading the child
should not be underestimated."
"It has become common practice for interviewers to assume that the allegations are true, and the purpose of the assessment is to obtain information that can be used to arrive at that conclusion ... Many social workers, psychiatrists and psychologists assume certain behaviors of the child are definite indicators that abuse has occurred. Their goal is to provide an atmosphere of support and encouragement to assist the child in describing the abuse the therapist is certain has occurred. Almost anything the child says and does is interpreted as being consistent with the trauma associated with sexual abuse." (Raskin, Yuille, 186-7). State v. Babayan found impact on a child's responses, originating in the assumption by the interviewer that abuse incidents occurred, and because the interviewer followed a preconceived agenda. State v. Michaels, 1376, observes:
Younts ("Evaluating ...') found that the pursuit by the interviewer of a preconceived notion of what has happened to the child likewise affected answers given by the interviewed child. At trial in State v. Danforth, for example, the CH interviewer admitted that the very goal of the interview was to draw forth an accusation of abuse, on the assumption that one was present to be adduced. "One of the hallmarks of interviewer bias is the
single-minded attempt to gather only confirmatory evidence, and to avoid all
avenues that may produce negative or inconsistent evidence. Thus, while
gathering evidence to support his hypothesis, an interviewer may fail to gather
any evidence that could potentially disconfirm his hypothesis." Ceci,
Bruck, "Jeopardy ...", 79). In sum, the tendency to follow such agendae
may well obscure or cover over the truth, where the truth is exonerative. C. The 'Annon List' of Fundamental Interview Failings Annon, "Recommended Guidelines ..." includes not less than seventeen specific fundamental flaws in interviewing children in cases of sexual abuse accusations, including, conceptually: (a) failure to ask any competency / basic knowledge questions, including inquiry into the interviewed child's understanding of truth and falsity and imagination / fantasy and reality; (b) failure to explain or encourage the validity of admissions of ignorance or confusion; (c) failure to ask questions to probe suggestibility / susceptibility to leading questions / tendency to confabulate when confused or ignorant; (d) failure to encourage assertiveness in the face of questions with erroneous premises; (e) failure to explain the non-significance of repeated questions; (f) failure to invite open-ended responses and free recall / free narrative accounts or even to obtain a narrative, chronological account at all; (g) failure to follow up on contradictions; (h) failure to test for alternative hypotheses, such as maternal coaching, thus, e.g.: "Some mothers might have told you what to say, is that what happened in your case?" (id. 137). Such problems with sexual abuse accusation interviews have
been the subject of much professional research and scientific conclusion. See,
e.g.: Ceci & Bruck, Child Witness...."; Younts, Evaluating and
Admitting ... "; State v. Babayan). Each of these flaws serves to perpetuate
and to increase the impact of prior contamination of a child's memory, and to
put the child on a one-way linguistic street toward making an accusation. d. Ignoring or Covering Up Child Incompetency In State v. Danforth the CH interviewer indicated in testimony that an assessment of competence is one function of an early stage of the interview. Yet, in the actual interview videotape admitted as evidence, when she received inaccurate and ignorant responses from the child as to questions about how many siblings he had, their names and ages, the interviewer immediately dropped all efforts to ascertain competency. The inference is clear that this was done deliberately to avoid demonstrating the actual incompetence of the child (who was in fact ruled incompetent as a witness later). In contrast, in other cases where the child is in fact
competent, CH interviewing practice is to ask competency questions virtually ad
nauseam, to demonstrate that competence beyond all question. (State v.
Danforth). Yet, because a videotape of an incompetent does not state that the decision to
abandon competence questioning was deliberate, and does not, by itself, tell the
viewer that the child's answers to these basic questions were incorrect, the
videotape creates a deceptive appearance of competence. e. Ignoring 'Pat' or 'Blurted-Out' Statements as Signs of Rote-Learning of Fictions Webb v. Lewis (1084) concluded that any seeming 'spontaneity' from the fact that the core of the accusation was essentially 'blurted out' within two minutes after the interview began was suspect: "Such a precise statement to a stranger, a person
(complainant) had never seen before, invites reflection on what had prepared
(complainant) to be so candid." In many cases of rote-learning by a child of
a false accusation, this behavior betrays the source of the accusation. Yet an
interviewer may utterly disregard this 'tell', and blithely proceed on. f. Disregarding 'Pointers' Away from Abuse "[O]ne of the hallmarks of interviewer bias is the single-minded attempt to gather only confirmatory evidence and avoid all avenues that may produce negative or inconsistent evidence. Thus, while gathering evidence to support their prior hypothesis they may fail to gather any evidence that could disconfirm the hypothesis." (Adams, 134). Hence, other 'pointers' that indicate explanations other than
abuse can also be ignored by interviewers. This can include ignoring or
discounting a child's denials, expressions of ignorance, or other statements
pointing away from abuse. (State v. Babayan). g. Failure to Challenge Responses as Fictional Johnson, Howell (221) note that interviewers do not challenge
the responses of a child by asking, "Is this real or pretend?", or any
similar wording. Ceci and Bruck (Jeopardy, 79-80) also express doubt about
accounts obtained without this challenging. They add that interviewers also do
not ask questions that would provide alternative explanations for the
allegations, nor do they ask questions about events that are inconsistent with
the hypothesis of sexual abuse. "When children provide inconsistent or
bizarre evidence, it is either ignored or interpreted within the framework of
the interviewer's initial hypothesis." 4. Specific, Suggestive Interview Techniques State v. Spreigl described children as being "witnesses who are manifestly susceptible to influence and suggestion" to make accusations of sexual molestation. One extensive study found that children quite regularly make
sexual abuse allegations that factually can be conclusively proven false. The
study found that in most of these cases, interviewing style "leads the
child gradually to construct a mental picture of abuse. This picture then
becomes the 'child's memory'." (L. Coleman, P. Clancy, "False
Allegations ...", 18).
It is important to "allow the child to provide a free narrative account of the event" to maximize accuracy of the child's memory of an event. (Perry, Wrightsman, 122). Perry, Wrightsman (242) point out that, in interviewing sexual abuse
complainants, "it is important to ask for a free narrative first to avoid
the possibility of — or even the appearance of — planting suggestions."
Yet
partisan interviewers, including CH interviewers, completely shun free
narrative.
In State v. Danforth, the CH interviewer conceded that, as a matter of deliberate interviewing protocol, the interviewer first introduces naked, detailed diagrams, and later, anatomically correct dolls, and simultaneously leads the child through a lesson in the nomenclature of sexual parts, and follows this with a discussion of places and types of touches, progressively focusing in on sexual areas. Only after all this does the interviewer pointedly ask the child (assuming as fact that there was a touch at all) who might have touched the child in any sexual zone, and in what way. This is suggestion in action, a very obvious and heavy-handed hinting, from the child's perspective. This tactic is reminiscent of the earlier Jordan sexual abuse cases, in which
one of the children, later confessing to fabrication of detailed stories of
sexual abuse, explained, "I could tell what they wanted me to say by the
way they asked the questions." (Benedek, "Problems....", 915).
As Wakefield & Underwager (Accusations ..., 316-17) explain, "When a child is asked, 'Did Daddy touch you?, and everybody, including the child, knows the question and answer is about sexually abusive genital fondling or penetration, the speaking is within the distinctive language game of the sexual abuse system. In ordinary discourse, that question would have no meaning about possible sexual abuse. "... When children and adults show verbal behaviors that can be identified as a shared language game, there has been some learning and mutual acceptance of the tacit assumption defining the act ... Actual sexual abuse occurring within the customary language game of most people does not require a different language game in order to do it or to talk about it." As mentioned above, the interviewed child has been prepared
in advance by immersion in a linguistic framework of sexual abuse. The child
knows that, in this language game, all responses are to be couched in such
terms, regardless of the accuracy of the response. d. Use of Dolls and Diagrams "The use of dolls can provide modeling to the child. One of the most powerful ways of teaching a child is by modeling. Interviewers model handling the dolls, suggest that they be undressed (or undress them for the child), and label them for the child. They may say, 'Let's pretend that this is you and this is Daddy', which invites the child to confuse fact and fantasy. They ask the child to show with the dolls what Daddy did, and they place the dolls in sexually explicit positions for the child. This is a teaching experience for the child." (Wakefield, Underwager, "Techniques for ..."). Researchers have consistently found that non-sexually abused children actively explore and manipulate the dolls' genitalia in the same way and to the same extent as sexually abused children. (Jampole, Weber, "An Assessment ..."; Cohn; Younts, "Evaluating ...'). In the chilling experiment involving false assertions of genital contact by a pediatrician (Ceci, 42, in Sales, VandenBos), children who were provided with an anatomically correct doll made progressively more false assertions of having been touched in the genital area. In cases of the 'final take' video-recorded interviews under
discussion, these dolls serve as prompts to prior rote-learning, and at the same
time add an air of abstraction and 'game playing' to the child, that encourages
the child to make irresponsible, fantasy-imbued responses.
Ceci & Bruck (Jeopardy, 81) note that interviewers provide much encouragement during the interview . These, however, "can quickly lose their impartial tone when a biased interviewer selectively reinforces children's responses by positively acknowledging statements (e.g., through the use of vigorous head nodding, smiling, and statements, such as "Wow, that's great!') that are consistent with the interviewer's beliefs or hypotheses, or by ignoring other statements that do not support the interviewer's beliefs." Powell & Thomson (205) confirm this, cautioning that "such reinforcement should not be contingent on the quality or content of the child's answers." However, in the real world, interviewer's responsive, feedback behaviors bear this biasing aspect constantly. The transmission of suggestion can also be subtly communicated to children through more obvious factors, such as the interviewer's tone of voice ... (and) praise ... (State v. Michaels, 1327).
On this point, Powell & Thomson (209) state that "The most detrimental type of leading questions are those containing definite articles, such as 'Did you see the car?', rather than 'a' car, or those implying that a correct answer exists, such as "Where did he touch you?' when the child did not state that he or she had been touched. Subsequent probing is unlikely to undo the damage caused by erroneous suggestions during previous interviews." Ceci, Bruck, The Suggestibility ..., at 432-3, states:
State v. Michaels cited the use of leading questions as being inimical to obtaining truth in child interviews. Walker (519) states that answers obtained by "direct" (closed-ended) questions tend to be far less accurate than free narrative accounts from a child. Citing numerous studies and experiments, she concludes that "direct questions are fraught with suggestive potential". Powell & Thomson (208-9) note that higher rates of error in answers is
associated with specific questions and probes designed to elicit greater detail.
In contrast, they note nonleading questions are associated with the lowest error
rates, especially when they are open ended, e.g.: "What did he say to you?
Or "What did the lady look like?"
"When a child is asked a question and gives an answer, and the question is immediately asked again, the child's normal reaction is to assume that the first answer was wrong or displeasing to the adult questioner. "... The insidious effects of repeated questioning are even more pronounced when the questions themselves over time suggest information to the children ..." (State v. Michaels, 1376) "When children are asked the same question more than once, they often change their answers presumably because they interpret the repeated question as 'I must not have given the correct response the first time; therefore, to comply and be a good conversational partner, I must try to provide new information.'" (Ceci & Bruck, "Suggestibility ...", 419). In State v. Danforth, the CH interviewer engaged in question repetition no
less than seventeen distinct times. This is a constantly abused form of child
questioning.
Walker (519) defines a modification as an instance in which an interviewer rewords a child's response in a way that changes its meaning, although perhaps only barely perceptibly to an outsider, in ways that contribute in the end to a substantial distortion of the actual historical fact being inquired about. CH interviewers, for instance, frequently engage in this behavior. In State
v.~ Danforth, e.g., the CH interviewer appeared to misinterpret the child's
responses on numerous occasions, stating the inaccurate paraphrase immediately
after the child's response, and then going forward with the interview down an
avenue of inquiry that was based on the assumption that the misinterpretation
was in fact an accurate understanding. In this way, every further answer
the child gives, having been verbally dragged down this path, seems to endorse
the interviewer's misinterpretation, even though that was not the truth.
Walker also addresses the all-too-common practice of using forced-choice questions.
This type of question offers only a limited number of
responsive choices, that may not necessarily include the correct one. For
instance, a question such as "Was her coat red or blue?" may provoke
an incorrect response if in fact the coat was yellow. Walker notes that many
studies have produced high rates of erroneous responses from children when this
kind of questioning is employed.
Most shameful of all improper, suggestive techniques, this technique involves providing a 'safety message' to the child, in order to hint to the child that a sexual abuse accusation is awaited. A 'safety message' advises a child not to let anyone touch him or her in sexual zones, and to tell a parent if anything like that happens. This message is intended to be given to the child at the end of an interview. However, its deliberate premature misuse as a hint was admitted and described by the CH interviewer in State v. Danforth, thus:
5. Other Interviewing Techniques in Videotaped Interviews Functioning to Create the Unwarranted Appearance of Veracity of the Accusation
A major problem in child interviewing is that interviewers tend to completely disregard or ignore any denials or retractions made by a child, and a related failure to probe any inconsistencies with external facts of little or no doubt. Responses obtained in interviews where these omissions occur are very likely to be inaccurate and skewed by this. (Annon, "Recommended Guidelines ...", 137). In State v. Danforth, the CH interviewer confirmed that the
only checking for consistency done by the interviewer is as to internal
inconsistencies within a statement itself. Ceci & Bruck (Jeopardy, 132)
recite an even more riveting example from the Little Rascals case in North
Carolina where the interviewer hears the child make a complete and credible
retraction, and then amazingly proceeds with questioning on an assumption of
sexual abuse, utterly ignoring the retraction. b. Disregard, or 'Glossing-Over' Unexpected Ignorance or Lack of Detail in Responses Similarly, suspicious lack of detail in children's accounts is almost universally ignored as a sign that the account may not have originated in real events, but rather in a coaching experience. Hence, e.g., Wakefield and Underwager (Accusations, 834) state that "External (i.e., real) events should contain more temporal and spatial information, and should also contain more sensory information and detail in comparison with internal (i.e. imagined) psychic events." Obviously a sexual abuse experience will not be merely
mundane to a child, and hence can be expected to be imbued with extraordinary
(albeit unpleasant) memorability and vividness. Hence, vagueness and lack of
detail should pose a red flag to interviewers; yet it goes largely ignored by
interviewers who are convinced ahead of time that abuse actually occurred.
In State v. Danforth, one misleading technique repeatedly used in the child's interview by CH was this interviewer reaction to what was in fact nothing more than an honest expression of ignorance by the child to a question without application to the actual facts inquired about. On other occasions, the interviewer gave a like reaction, assuring the child that it was all right if the subject matter was hard to talk about. While this suggested to viewers that the child was emotionally 'choking up', and needed reassurance to go on, in point of fact, the child simply sat there impassively, waiting for the next question, after giving a response of ignorance. Later, this happened again, when the child simply became peevish over the tedious interminability of the interview, in which he obviously had no interest (having already asked what time it was twice). Again the interviewer gave the same reaction, as if the child's discomfort was emotionally wrenched, instead. Finally, when the child behaviorally protested the
continuation of the interview by simply ceasing giving answers, the interviewer
again repeated the line about how it is all right that it is hard to talk about.
But in reality, the child simply wanted to leave to go out and play. The reality
was that the child saw the interview as being of no particular significance, and
simply as something to finish off like any other pointless task, while the
interviewer tried desperately to misrepresent the child's reaction as being
that the interview is too emotionally 'heavy' to bear.
CH interviewers also engage in another technique that is related to repeating back to the child misinterpretations of the child's responses. This technique is for the audience, however, and consists of inaccurately summarizing what the child has actually said, by repeating the various misinterpretations, paraphrased into a succinct, but wildly inaccurate version of what the child said. By this time, children who have given rote recitations of non-events as false accusations are almost invariably bored to tears, and m a hurry to leave. So they do not take issue with what the interviewer is saying. Children are not aware they are being videotaped, and have no idea of the significance of the interview, so they simply disregard any significance of the interviewer's misunderstandings, simply brushing it off with the same nod that the interviewer indicates will signal the end of the interview. In this way, the child is made incorrectly to appear to be agreeing with the summary, as a price of being dismissed by the interviewer (Perry, Wrightsman). All of these last additional techniques in videotaped
interviews serve as further attempts to make an accusation convincing to a
viewer, e.g., to a judge or juror. They have no other purpose. In concert with
all other misleading factors cited above, they constitute forensic fraud in
service of extremist ideology. IV. What Needs to Be Done A. Legally 1. Ban Videotaped 'Interviews' as Substitute for child Testimony The argument for this outcome has already been set forth in
the above text. While the Unites Sates Supreme Court has not yet spoken as to
admissibility of these interviews, given everything we have surveyed above,
there is no room for doubt that they do not and inherently cannot arise to the
stringent level required of presenting "guarantees of trustworthiness, such
that cross-examination would be pointless. These interviews are in fact no
substitute for a child's testimony, and they should not be allowed to function
thus. 2. Where Child Testifies, Allow Only Videotaped Statements, Only Where Inconsistent with Child's Testimony, and Only If Accused Can Challenge It with Expert Psychological Testimony about the Above Phenomena The foregoing conclusion does not have the same force, in cases where the child testifies. In these cases, the child can at least be questioned in an effort to get at the truth, where such interviews may have distorted the truth. However, these interviews are not necessary where they are simply consistent with, and cumulative to a child's testimony. In this use, they would simply be a bolstering of credibility, as if showing that the child's story had not changed. This, of course, would only serve to obscure the facts where a child's account, both in the interview and at trial, was simply a rote-learned fiction coached to the child by a spiteful parent or by others, before the interview. So use of such interviews, even in that case, should only be allowed where the interview is inconsistent, and hence is needed for an effective cross-examination challenge to the child's testimony. In any event, such statements should only be admitted that they can be
challenged as to procedure or psychological impacts on the child by an expert
psychological witness. B. Forensically 1. Reverse All of the Above Trends, and Account for the Above Inevitable Phenomena Obviously, as a starting point, each of the foregoing problems with
interviewing needs to be addressed before these interviews should be accepted as
forensic evidence for those involved in diagnosis and treatment of victims of
sexual abuse. In light of the above observation of the harm inflicted by attempting to treat a non-victim as a victim, this is of crucial importance. 2. Use Other, Counteracting Interviewing Techniques
Perry & Wrightsman, (245) urge the use of "stacking and counterstacking" questions:
Wakefield and Underwager counsel the use of questions that
essentially require a narration in reverse order starting at the end of an
alleged incident, and working backward, stage by stage. With each later stage
described, the interviewer then asks, '"What happened just before that?"
This technique is based on the observation that a rote-learned false account is
far more difficult to keep straight in reverse, but a real story can be recited
by recall of individual stages without difficulty, regardless of chronology.
Hence this technique should be used aa a screening device universally. Conclusion In light of the observation above, it is strenuously urged
that child interviewing should be seriously reexamined for its propensities to
cast suggestion and its use of other techniques that both mislead the child into
giving a substantially fictionalized or incorrect account, and that tend
to mislead the viewer/listener, who, as in the cases of jurors or therapists may be
about to make life-altering decisions based on that interview. Especially because of the profound impacts and the
many areas of erroneous influences, the specific type of videotaped
interview prepared only for use in criminal trials should simply be banned from
that use altogether. Works CitedCases Cited: Burke v. State, 820 P.2d 1344 (Okla. Cr. App. 1991) Gaines v. Com., 728 S.W.2d 525 (Ky. 1987) Idaho v. Wright, 497 U.S. 805,110 S.Ct. 3139 (1990) Rolader v. State, 413 S.E.2d 752 (Ga. App. 1991) State v. Babayan, 787 P.2d 805 (Nev. 1990) State v. Danforth, Appeal No. CO-96-1650 (Minn. Ct. App. 1997); references are to Pro Se Supplemental Brief of Defendant (full length version) State v. Dolliver, 191 N.W. 594 (Minn. 1923) State v. Huss, 506 N.W.2d 290 (Minn. 1993) State v, Michaels, 642 A.2d 1372 (N.J. 1994) State V. Spreigl, 139 N.W.2d 167 (Minn. 1965) State v. Wright, 775 P.2d 1224 (Ida. 1989) Webb v. Lewis, 33 F.3d 1079 (9th Cir. 1994) Treatises Cited: Ceci, S. J., Bruck, M., Jeopardy in the Courtroom ( Goodman, G. S., Clarke-Stewart, A, "Suggestibility in
Children's Testimony: Implications for Sexual Abuse Investigations", in Doris, J. (ed.),
The Suggestibility of
Children's Recollections: Implications for Eyewitness Testimony ( Perry, N. Wrightsman, L., The Child Witness: Legal Issues and
Dilemmas ( Raskin, D.C., Yuille, J, S., "Problems in Evaluating Interviews
of Children in Sexual Abuse Cases", in Ceci, S. J., et al, Adult Perspectives on Children's Testimony
( Sales, B., VandenBos, G. (eds.), Psychology in Litigation and Legislation
( Wakefield, H., Underwager, R., Accusations of Child Sexual Abuse ( Walker, N.E., "Should We Question How We Question Children?", in
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