Review of the Current Status of the Use of Statement Validity Analysis Procedures in Sex Abuse Cases in the United States
Martha L. Rogers*
ABSTRACT: Statement Validity Analysis (SVA) is the
recently evolved version of Statement Reality Analysis (SRA), in use in
Europe for the past 35 years) by which the quality of victim statements concerning alleged
sexual abuse is assessed. Potential barriers to its acceptance in the
United States are presented, along with an informal summary of experience
in the use of such evidence. An update on the status of ongoing SVA
research is provided.
Past History and Context of the Development of SRA/SVA
Statement Validity Analysis (SVA) is an outgrowth of
methods used in Europe for the past 35 years for assessing the credibility
of alleged sex abuse victims. Udo Undeutsch is credited as the father of
Statement Reality Analysis (SRA), the predecessor of SVA (1982, 1989).
In
West Germany, Undeutsch hypothesized that statements which are the product
of a real experience differ in structure, quality and content as compared
to statements which are the product of fantasy or fabrication. He
identified features of statements that are more frequently associated with
true experience.
The German approach to ascertaining truthfulness was a
focus upon the statement made rather than the reputation or character of
the person making a statement. In this way, the focus is not upon the
character of either the victim or the suspect, as it is in our legal
system. The reasoning goes that a person of sterling reputation will also
lie situationally, and perhaps has more to lose by telling the truth if he
has committed a sexual offense than someone of poor reputation. In fact, a
person with a bad reputation may be telling the truth about having been
victimized or not having perpetrated a sexual crime.
By 1954, the West German Supreme Court had ruled that
in cases of sexual offenses where the only evidence was the testimony of the two parties, an
assessment of the credibility of the statements would be conducted. The
victim and the alleged perpetrator are carefully evaluated, using standard
clinical/forensic methods as well as an assessment of their statements
about the incident. In court, they are questioned further by the judge and
attorneys on both sides, based upon an inquisitional model of justice
where the goal is a search for and synthesis of data leading to the truth,
coming out of Roman law. Our adversarial model arose out of English common
law, where the two sides battle it out. We might speculate that the
origins of SRA were fostered in a social/legal environment that promoted a
pooling and synthesis of evidence rather than a contest between opposing
viewpoints.
The SRA approach to analyzing victim statements has
been widely used for the better part of four decades in West Germany and
Europe. There have been several prominent practitioners over the years who
published these methods, primarily in the German language. After 1982,
there was an increase in publications and workshops teaching SRA began,
first at the University of Utah in 1985. In the last three years, the
published research on SVA has increased and training has become more
available for both law enforcement and mental health professionals.
However, the first formal validity study of CBCA/SVA
has yet to be published, while the second validity study is currently in
process (Boychuk, Esplin & Raskin, 1988). In these studies,
transcripts of child interviews are scored with Content-Based Criteria
Analysis (CBCA) criteria by raters who are unaware of the judged validity
of the allegation. The transcripts came from completely adjudicated cases
where a range of corroborating evidence tends to substantiate whether
abuse occurred, e.g., confessions of the perpetrators (apart from any plea
bargaining), polygraph exams, medical exams, statements of corroborating
witnesses, prosecutors declining to press charges, or court judgments or
dismissals, etc. In the first study, the scoreable features of the
transcripts based on the nineteen CBCA criteria showed a bimodal
distribution with no overlap between them — the confirmed abuse cases
clearly appeared to demonstrate higher quality statements as contrasted with the doubtful cases of
abuse. The problem of knowing absolutely that a case reflected a true or
false allegation will always remain a problem in this type of research,
even though every effort was made to define the experimental groups as
rigorously as possible.
Factors Impacting Use and Acceptance of SVA in U.S.
Courts
Given that the legal systems in the countries where
Statement Reality Analysis originated and developed are fundamentally
different than that of the United States, the transplantation of this
methodology involves more than simply assimilating its use. The
adversarial system is one in which any new technology is likely to go
through a period of being challenged before coming into general
acceptance. General acceptance of the polygraph, for example, is still an
ongoing process in various states. The recent advent of genetic material
sampling from bodily products and being able to rule in or rule out a
given individual as matching those biological products has had an easier
time initially than psychological methods, but there is still considerable
controversy over this technology.
The standard of the Kelly-Frye rule (People v. Kelly
(1976)17 C.3d 24, 130 C.R. 144, 549 P.2d 1240; Frye v. US. [1923] 293 F.
1013, 1014) will probably be raised in the case of any new methodology or
development, usually to challenge whether evidence should be accepted and
used by the court in making its determinations.
Just when a scientific principle or discovery crosses
the line between the experimental and demonstrable states is difficult to
define. Somewhere in this twilight zone the evidential force of the
principle must be recognized, and while courts will go a long way in
admitting expert testimony deduced from a well-recognized scientific
principle or discovery, the thing from which the deduction is made must be
sufficiently established to have gained general acceptance in the
particular field in which it belongs.
In essence, the reliability of a method must be
established. The witness must qualify as an expert in the subject of the
testimony. And there must be a showing that correct scientific procedures
were used, and if they are not, such foundational omissions will
invalidate any scientific conclusions which are offered (People v.
Dellinger [1984)163 C.A. 3d 284, 293, 209 C.R. 503).
Over time, various psychological/physiological methods
used by psychologists have had to come up against the Kelly-Frye standard
for admission into evidence in United States courts. In California V. John
W. (185 Cal. App.3d.801, September 19, 1986), the plethysmograph was found not to be a reliable method
for diagnosing sexual deviancy, although there were some conceptual
misunderstandings of what the plethysmograph can or cannot do evident in
the court's published opinion which contributed to its rejection of the
plethysmographic method. California v. Donald Lee Shirley (641 P.2d. 775,
31 Cal.3d 18 [March 11, 1982]) addressed the use of witnesses who had been
hypnotized for purposes of restoring their memory of events and the whole
issue of restoring versus creating memories became the basis for setting
standards for limiting the use of such testimony. In California v. Eddie
Bobby McDonald (690 P.wd 709,37 Cal.3d 351, November 21, 1984) the issue
of the reliability of eyewitness identification was addressed. Whether
expert opinion would be admissible to assist the trier of fact with
information that goes beyond common experience was contested, and the
court concluded that such testimony was not precluded by the Kelly-Frye
standards. The court did not feel that the Kelly-Frye rule applied to
expert witnesses on eyewitness identification.
There have been recent court rulings which addressed
overlapping issues of whether psychological profiles have to meet the
Kelly-Frye standard for use in providing an opinion as to whether a child
is a victim of sexual abuse or whether the defendant "fits the profile" for a child molester.
In California (California v. John Andrew Stoll et al.,
89 Daily Journal DAR 15164, December 22, 1989), admission of psychological
testing to provide evidence as to whether or not the defendant fits the
profile of a child molester was found not to have to meet the Kelly-Frye
standard. The reasoning was that psychological methodology, such as the
use of the MMPI, has long been routinely admitted for multiple purposes
with no suggestion that Kelly-Frye applies. Such evidence can be admitted
as character evidence to prove "conduct in conformity" (p.
15169). Thus, components of a routine psychological examination are
generally admissible in California but the trier of fact then determines
how much weight to give the evaluation.
It should be noted that within the ruling of the case
itself, there was considerable misunderstanding of what a test such as the
MMPI can actually tell us, or of what a competent examination of an
alleged sex offender should consist (c.f. Rogers & Echeandia, 1990).
Nevertheless, because common psychological tests have been admitted for
other purposes for many years, they do not have to meet the standard of
Kelly-Frye for admission as evidence in sex offense cases. The implication
would be that typical clinical procedures of whatever sort may not have to
meet such a standard before they can be admitted and weighed by the trier
of fact.
Such a ruling has its up and its down sides for the
potential for good or for ill for society as well as for the reputation of
forensic psychology. If applied efficaciously and cautiously, there are
benefits to be accrued. However, techniques or tests which have been
validated for one purpose may not be appropriately applied to another
context, the MMPI certainly being a case in point: there is no evidence to
support the belief that the MMPI can identify who is or is not a sex
offender, and there is no single profile of a child molester. The Stoll
ruling does not deal with the reliability of the testimony but only that
it is admissible and must then be weighed by the trier of fact.
In Utah (Utah v. Phillip Rimmasch, no citation
available, published 5/18/89), the court concluded:
In sum, if this Court's position of the spectrum of
opinions held by the various courts about the admissibility of scientific
evidence could be fixed ... it would probably be somewhere in the middle,
where an awareness of the usefulness of scientific evidence is balanced by
a concern that the door not be thrown wide open to any evidence that can
be labeled "scientific." We remain wary of the potential of such
evidence to distort the fact-finding process by reason of its superficial
plausibility and its potential for inducing fact finders to accept
experts' judgments on critical issues rather than making their own. And we
are convinced that trial courts sometimes admit 'scientific' evidence
without scrutinizing its foundations carefully. It is for these reasons
that we have imposed the threshold reliability requirement.
In this case, it was found that the so-called
behavioral symptomatology commonly touted to be suggestive of a child
having been sexually abused was not a reliable basis for concluding abuse
had occurred. Additionally, experts' individual assessments and
opinions as
to the child's veracity, based on their own idiosyncratic or unique
approaches, were also found not to be acceptable proof that molestation
had occurred. The court believed that providing testimony as to the
character and person of the victim was a different process than testimony
purporting to show that the statements she made to psychologists about
abuse were truthful as judged by the experts. It was found to be error
that such testimony had been admitted. It would appear that the bottom
line issue of credibility of a child's statement is not a judgment for the
psychologist to make in Utah as well as in many other jurisdictions at this
time. In Europe, such judgments as well as their underpinnings are
routinely asked for as part of the information and truth-seeking process,
but in the United States, the psychologist's proper role is the provision
of data, plus elucidation of the reasoning behind his conclusions and
their empirical foundations. The expert is expected to be able to address
the strengths and deficits in the existing knowledge base in the field.
The whole issue of whether a child witness would always
be believed continues to be a subject for furious debate in the United
States, with proponents who state that children never lie developing one
line of research, while others who tend to believe the truth is more
situational comprising other research directions. The ecological validity
of research in child witness testimony is a thorny issue which may not be
resolved quickly (c.f., DeAngelis, 1989; Ceci, Ross, & Toglia, 1989).
The history of Criteria-Based Statement Analysis and
SVA has been well described by Steller and Koehnken (1989). However, the
long history and tradition, along with general acceptance of usage of the
preceding versions of CBCA in Europe ultimately will not suffice in the
United States. Additional empirical research which more fully establishes
the validity and generality of these procedures will be required for them
to have wide appeal and application.
Since formal research on CBCA/SVA in the United States
and Canada is only a few years old, and the findings only beginning to be
more widely disseminated in the professional community, at this stage it
would be difficult to find agreement in the relevant scientific community
that these techniques have matured to the point that they are recognized
as the single standard methodology for assessing the validity of child
sexual abuse statements. In Europe, they have the advantage that the
methods have been accepted by field usage for many years, whereas here,
CBCA/SVA is not yet part of the armamentarium of most clinical
psychologists or even most forensic psychologists specializing in
assessment of sex offenders or victims. Until the needed research is
accrued, we need to use these methods cautiously and judiciously as an
investigatory tool, and they are best combined with other approaches to
assessing sex abuse cases.
There is a need for more information about how the CBCA
criteria are impacted by developmental/cognitive/language factors, and the
second validity study which is in progress should begin to shed some light
on these issues. In all child abuse cases, statements made by children
below the age of five are and will in all probability remain the most
difficult to assess, regard-less of the approach used.
How are CBCA/SVA Methods Being Used Currently In the Court Systems
Since these are methods just coming into more frequent
use in the United States, a review of how they are faring in the court
systems around the country would probably be helpful to those who are
beginning to use them.
The following is based upon informal discussion with
several researchers/clinicians who are primarily responsible for
introducing these methods more broadly in the United States, and who have
been using them longer than anyone outside of Europe. Collectively, they
have testified in cases at the federal and state level, in criminal,
civil, juvenile or military court matters in more than six states
approximately 80 times with the use of CBCA/SVA approaches. There are also
many more cases in which they have been consultants where formal court
room testimony did not occur, but instead, the input based on CBCA/SVA was
used to advise the attorneys and settle the issue.
These professionals are, at this stage, presenting
CBCA/SVA methods in such a manner so as to not raise Kelly-Frye issues, or
more as an educative tool for the court or jury. The methods are presented
as one more clinical and investigative tool which has been found helpful
in understanding the quality of the evidence. The ultimate issue of
credibility is not usually addressed by the psychologist in the
proceedings, but the trier of fact is equipped with an understanding of
factors influencing the quality of an interview with a child and
developmental factors impacting a child's testimonial competence. Additionally, they are educated about factors that are typically
associated with various forms of child sexual abuse, and factors that are
associated with a lack of validity in such cases. The problems in
interviewing very young children and the difficulty in obtaining a valid
interview are often as issue and at times the issue of competency of a
child witness is raised.
Typically, the number of CBCA criteria met in a
particular taped interview or comments about the child is not provided in
the court room before a jury. The CBCA/SVA system is not used as a formal
or finished method where scores have any sort of absolute meaning, but
rather as a method of conceptualizing and systematizing all of the data of
an interview. In some cases, the expert has been allowed to go through all
of the actual data and to apply the criteria but without assigning scores.
In this way the factors that the trier of fact should consider in making
their own judgments would be presented. In a few instances, the experts
have been allowed to go through the entire set of procedures, including
assigning of scores and giving ultimate opinions on the likely credibility
of the statement.
Based on experience thus far, the majority of cases in
which such testimony has been rendered has been those in which the abuse
was being confirmed by these methods. These included child dependency
actions where the court retained jurisdiction over the child because of
the continued risk for some form of abuse.
In one state in which fifteen to twenty such cases have
led to testimony on the behalf of the county child protective services,
all of the child victims had been interviewed by the expert on videotape;
the tapes were then reviewed by the court as part of the proceedings.
The
expert witness then pointed out various aspects or features of the actual
testimony which were felt to reflect the credibility of the allegations.
Where testimony has been rendered about false
allegations or doubtful cases, the experts report that these have all come
from post-divorce situations. Some of these cases have been family law
actions while others have resulted in criminal charges being brought
against a parent. One expert has testified in approximately twenty-five
criminal cases where the testimony was rendered during the process of
pretrial motions before a judge. These have largely resulted in the cases
being dismissed. In those which have gone to trial, the expert has been
allowed to testify before a jury but only in an educative role about half the time rather than addressing the ultimate issue.
In one case where the
expert was not allowed to address the ultimate issue, the case ended with
a hung jury, and the case was not refiled. In one case, the judge ruled
that the input from the expert would not have gone beyond the common sense
and understanding of the jury and testimony was not permitted. The case
involved a Sixteen year old who had previously made allegations in another
state against a foster parent, which had the same elements as the
allegations currently at issue, and the youngster had previously admitted
that the earlier allegations were false, but this evidence was not allowed
in as a "past bad act."
Often these SVA experts have been retained for
consultation by defense in the case of individuals who were guilty of
molestation. Typically, the expert will have reviewed the case, any
audiotape or videotape interviews of the victim(s), transcripts and other
available evidence, and then advised the defense accordingly. One of the
experts is also an expert in polygraph methods, and in some cases may have
reviewed polygraph records of the defendant in addition to reviewing
statements of the victims. Reportedly, the vast majority of cases reviewed
in this manner are judged by the experts to be guilty. In such cases, the
expert was not usually asked to testify. It has also been made explicit
that the ethical stance being taken by SVA experts that they will not
assist an attorney in applying SVA for purposes of impeaching a child
witness whom they believe to have been actually victimized.
There are also many civil actions where these methods
are being applied to sort out and assess prior statements of the victims,
and assess damages. These have included preschool, school, or youth
organizations where abuse was alleged. The defense in these cases usually was not disputing whether the abuse
occurred but there were issues of how damaged the victims were and how the
case should be settled. These were nonfamilial perpetrators, where the
experts represented the victims. In one case there were 45 victims by a
teacher and the purpose of the expert's involvement was to help assess the
impact of molestation experiences on and subsequent treatment needs of the
children and to reach an agreement on a trust fund for them.
Recent Experience with CBCA/SVA in California
I have applied CBCA/SVA to an increasing number of
cases in the past two years, most often in presentencing evaluations where
the perpetrator was still claiming not to have committed the crime. I have
used SVA in a significant number of such 288.1 PC evaluations to further
demonstrate that the alleged abuse most likely took place. In some of
these, the perpetrator ultimately admitted to me that he had, in fact,
committed the crime.
Over the years, I have seen roughly four hundred sex
allegations cases in either civil or criminal matters, with about two
dozen in which I had concluded that the allegations were false, and many
of these have been completely adjudicated at this time. Surprisingly, most
of these had not required that I testify, but all that have gone to court
were, in fact, ultimately resolved in favor of the defendants. Most were
family law or child dependency actions.
I have testified once in a criminal proceeding on
behalf of the prosecution in the case of a mentally retarded adult male
alleged to have been molested by a boarding home male caretaker. I was
able to apply the concepts from SRA to the victim statement. This was
before I had had exposure and training to SVA. In my opinion, there were
certain very unique features that strongly suggested that victimization
had in fact occurred, but ultimately this young man was judged not to be
competent and the criminal action was dropped. I remain convinced that he
was, in fact molested by his caretaker.
In none of these post-conviction or post-plea
evaluations situations had I ever identified a case in which I believed
that the criminal allegations were in fact false until last year. I was
appointed on this particular case to perform an evaluation prior to being
trained in SVA. In the course of studying this case, I concluded that the
allegations were false, using methods I have had available to me earlier,
e.g., standard developmental/clinical and forensic sequential analysis
methods commonly in use by most forensic psychologists in the United
States.
This defendant had already been convicted of multiple
counts of sexual abuse, including two allegations of force, which in
California would automatically require a state prison sentence. Subsequently, I went to West Germany and consulted with Dr. Udo Undeutsch,
reviewing the victim transcripts with him. A few months later, after
having gone through training in CBCA/SVA, I again reanalyzed all the
recorded victim statements using CBCA/SVA. These data were presented in a
Motion for New Trial, subject to not being admitted into evidence if the
evidence presented was found by the court not to meet the Kelly-Frye
standard. Nevertheless, all of the data and reasoning in the case, both
before and after the use of CBCA/SVA were presented to the court. The
conclusions were the same through the two different processes, which
corroborated one another by clear demonstrations of how the child's
statements had changed substantially over time, depending on the interview
context. These changes were not within the range of expected fluctuation
or discrepancies that would be anticipated and the actual quality of the
statements was poor, which application of CBCA/SVA made more clear.
One of the three experts described above also testified
in the proceeding, in order to provide the scientific foundations for
CBCA/SVA and also to verify my work, since my experience with these
methods was quite limited at the time.
Prior to the conclusion of the hearing, the two sides
worked out a settlement, in which the two counts which would have required
a state prison sentence would be granted a motion for new trial based on
insufficiency of the evidence. The DA agreed not to appeal and then to
move to dismiss those counts in the interest of justice. The defendant then
withdrew his motion for new trial on the non-forceful counts, accepted
three years of probation, and requirement to register as a sex offender,
continuing therapy until it is not needed, and 180 days to be served in an
in-home detention or "bracelet program"
Exactly what impact the testimony of the two
psychologists involved in this motion and the presentation regarding
CBCA/SVA of the victim statements is unknown. There were many legal issues
in this very complex case, but it seems likely that on some level, perhaps
below a formal evidentiary level, there was some additive effect that
resulted in this outcome, which was totally unanticipated. The issue of
whether SVA would been deemed to meet Kelly-Frye standards was thus
sidestepped, but in my judgment would have failed.
More recently, I was appointed in an embroiled family
law matter which had gone on for over two years, with allegations and
cross allegations of child sexual abuse, against both parents of a boy who
was about two and one-half years of age when it all
started. At age four and one-half, after numerous psychologists had been
involved and had testified in completely contradictory directions, the
court had the young boy testify in court over a three-day period. He was
cross-examined by both attorneys of the parents, as well as questioned in
chambers and in open court by the judge. The sessions were tape recorded
and transcribed. Subsequent to these hearings, the court tentatively ruled
that the sexual allegations were found not true. Some of the psychologists
involved then advised the court that it needed to take into account the
child's developmental capacities before making a final determination of
his veracity or the invalidity of the most recent allegations which were
against his father.
The court then asked both sides to submit four resumes
of psychologists they would like to see undertake such an analysis. The
materials to be analyzed included the testimony of the boy in chambers and
in court, as well as some previous tapes of evaluation and therapy
sessions. The father's attorney submitted my resume as one of his four
"entries," and the court selected me to conduct this study.
Based on prior experience in court with SVA and the fact that this child
was so young, I decided to systematically analyze the child's statements
using three separate but somewhat overlapping approaches:
1. They were reviewed from a developmental/ clinical
standpoint, e.g., given this child's age and mental maturity, and given
the context and nature of the interview questions, how shall we make sense
of what the child said?
2. They were reviewed from a more usual forensic
perspective, e.g., sequentially, over time, how do the allegations unfold
under the various interview conditions with changing interviewers? What
external influential factors may have had an impact on the statements
made?
3. They were reviewed from a Criteria-Based Content
Analysis/Statement Validity Analysis perspective.
It was interesting that the three approaches appeared
to corroborate the conclusions reached with one another well. My
conclusion was that the child, Tommy, then four years and eleven months of
age, had not been competent to render testimony due to his inability to
understand his duty to tell the truth. Like many bright preschoolers,
Tommy was well able to handle superficial inquiries of what is the truth
and what is a lie. However, he could not separate out his own thoughts or
what he had been told by significant adults from whether events actually
took place. For example, he spontaneously volunteered in court about an
event which allegedly involved his father's former wife, Brenda. Tommy alleged he had witnessed his father
throwing Brenda off a balcony of hotel in which they were staying, and
then claimed that he himself called 911 for help. The problem was that
this alleged event took place before Tommy was born. The boy continued to
insist that this was the truth, even when confronted with the fact that he
could not have been there. He finally said that it was the truth because
his mom had told him that it was true, and the mother acknowledged that
she had been the source of information about the alleged event.
Tommy's statements about the sexual abuse depended
heavily on the context of interviews and some of these same kinds of
problems in sorting things out were also evident; he appeared to lack the
ability to know what he did not know and to demonstrate independent
experiencing of events apart from what he had been told. He had been given
a great deal of information by adults in the process of being questioned,
and most of his accounts were either heavily influenced by the
interviewers or were obviously laced with fantasy productions. Thus, I
also concluded that it was unlikely that either parent had molested him,
after weighing all the available data and circumstances surrounding the
allegations. The parents were very acrimonious and quite willing to
believe the worst about one another and unable to separate out such
feelings which markedly impacted their interactions with Tommy.
At the time of the next hearing, the mother's attorney
was extremely denigrating and discounting of the findings, which had taken
over fifty hours to perform, and I began to settle in for what I
anticipated would be a brutal yet uninformed and unsophisticated
cross-exam. However, after a short time, the court cut her off, and
accepted the findings. No sexual abuse was found to have occurred at the
hands of either parent. The court requested that the three psychologists
involved in the case at the time, one retained by the father and one by
the mother, plus myself as the court-appointed psychologist, develop a
joint custody/treatment plan for the youngster. At that point, a
three-week reassessment of the child and his parents took place by me,
with input and consultation with the other two psychologists, and a plan
signed by all three psychologists was submitted to the court and accepted
by both sides of the conflict. Although the sole use of CBCA/SVA methods
would have been quite risky in this situation, the use of more traditional
methods in combination with the less well-recognized CBCA/SVA approach was
efficacious as far as bringing this case to a conclusion. Kelly-Frye
issues may be side-stepped by this approach as well as by emphasizing the
long-established tradition of statement analysis procedures as part of out
forensic knowledge base originating from Europe. Under the Court of Appeals, reasoning in
People v. Stoll, et al. (1989),
it may be that Kelly-Frye will not be so much of an issue as long as no
absolute meaning is assigned to CBCA scores, and the ultimate issues are
left to the jury.
As more professionals are trained in CBCA/SVA, a
greater body of experience will accrue in their usage in the United States
and more research will be possible. In the use of any established clinical
method or technique or in any new or unfamiliar psychological technique,
careful application for the specific purposes for which it has been
developed or validated must be kept in mind. Especially until more
research has been completed, responsible clinicians will realize that
overstating its utility or minimizing its limitations will not serve
science or justice well in the long run.
References
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