Supreme Court Of The United States
MOTION FOR LEAVE TO FILE BRIEF|
AMICUS CURIAE AND BRIEF OF AMICUS CURIAE
INSTITUTE FOR PSYCHOLOGICAL THERAPIES
IN SUPPORT OF SANDRA ANN CRAIG,
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
Ralph Underwager, Ph.D. and Hollida Wakefield, M.A.,
a partnership doing business as the The Institute for Psychological
Therapies (IPT) hereby respectfully move for leave to file the attached
brief amicus curiae. The attorneys for the petitioner and the
respondent have consented.
This brief has been requested as a response to the
amicus curiae brief submitted to the Court by the American Psychological
Association (APA) in State of Maryland v. Sandra Ann Craig. As such it
is in support of respondent, Sandra Ann Craig.
Dr. Underwager is a member of the American
Psychological Association. Ms. Wakefield is a member of the Minnesota
Psychological Association. Both are licensed as psychologists under
Based upon their clinical practice, including
diagnosis, evaluation and treatment of victims and perpetrators of child
sexual abuse for over 25 years, their research in child sexual abuse in
eight separate areas, their role as consultant in over 1000 cases of
child abuse accusations, as qualified expert witnesses in criminal and
civil trials occurring in over forty states and five countries, they
respectfully disagree with many of the claims and the argument of the
APA brief submitted to this Court(1).
Dr. Underwager and Ms. Wakefield are the authors of
two learned treatises in the area of child sexual abuse and are the
publishers of a journal dealing with child abuse.(2)
Child abuse, including child sexual abuse, is a grim
reality in human life, demonstrating the dark underside of our humanity.
Accounts from the millennia B.C. describe how children were brutalized
and savaged then. It is only a little over a hundred years ago that the
first child labor laws were passed in England.
Unfortunately our contemporary system to respond to
accusations of child sexual abuse has developed in the absence of
factual knowledge. This is the basic fact which the earlier APA brief in
Kentucky v. Stincer, 482 U.S. 730 (1987) presented to this Court and
which was acknowledged by this Court.
As is often the case in human history, the powerful
desire for social change produces shifts in attitudes and law based not
upon empirical data but rather in response to a deeply felt need. The
danger is that unintended consequences may emerge. IPT believes that
this has happened in response to child sexual abuse. An unintended
consequence is the likelihood of an unacceptable level of false
positives, that is, persons wrongly identified as abusers and victims.
The seriousness of accusations of sexual abuse is that if such an error
is made the lives of both adults and children are damaged and may be
A consideration completely ignored in the APA brief
and also overlooked by prosecutors, law enforcement, child protection,
and judges is the effect on a child if adults make a false positive
mistake. When adults treat a child who has not been abused as if the
child had been abused, it is not an innocuous or benign experience for
the child. It is devastating and may result in serious harm.
It is an
assault upon a young child's ability to develop the capacity to tell
what is real from what is not real. To miss an instance where a child
has been abused and commit a false negative error is also harmful to a
child. Although there has been some discussion of this type of error there has been no research on the
issue. In either direction, adult errors may have tragic consequences
for a child.
Various state legislatures and the courts, frequently relying upon
claims made by a variety of social scientists, have lowered the age of
competency to testify from fourteen years to three and four year olds
who may then be called upon to testify to events allegedly occurring
when the child was even younger. A predictable consequence is that
young children have been found not to be good witnesses. In order to make them
better witnesses, various new rules and procedures have been created,
including those at issue in the Craig case. The distinction between
better witnesses and reliable witnesses must be made for they are not
synonymous. In an effort to make testifying more pleasant for children,
we may inadvertently sacrifice truth on the altar of comfort.
Acceptance by the courts of social scientists' claims must also be
based upon rational examination of the status and scientific support for
the claims. Social scientists must make full and accurate disclosure of
the base and support for any claims made. The APA brief fails to do so
and this IPT brief demonstrates a more accurate presentation of the
scientific quality of the claims made to this Court by the APA brief.
For the foregoing reasons, IPT respectfully urges the Court to accept
and file the enclosed brief amicus curiae.
BRIEF OF AMICUS CURIAE
INSTITUTE FOR PSYCHOLOGICAL
IN SUPPORT OF SANDRA ANN CRAIG,
TABLE OF AUTHORITIES
Coy v. Iowa, 101 LEd 2nd 857 (1988).
Kentucky v. Stincer, 282 U.S.
Berliner & Barbieri, The Testimony of the Child Victim of Sexual
Assault, 403. SOC. ISSUES 125 (1984).
Brown & Finkelhor, Impact of Child Sexual Abuse: A Review of the
Research, 99 PSYCHOLOGICAL BULL. 66 (1986).
Burgess & Holmstrom, Rape: The Victim and the Criminal Justice System, in
VICTIMOLOGY: A NEW FOCUS (VOL. 3), pp. 21-30, (Dapkin
& Viaro, eds. 1973).
Conte & Berliner, The Traumatic Impact of Child Sexual Abuse, 55 AMERICAN JOURNAL OF ORTHOPSYCHIATRY 530.
Dawes, Faust & Meehl, Clinical Versus Actuarial judgment, 243 SCIENCE 1668 (1989).
Flin, Davies & Tarrant, THE CHILD WITNESS (1988).
Goodman, The Emotional Effects of Child Sexual Assault
Victim of Testifying in Criminal Court, Final Report to the National Institute of Justice, U.S. DEPT. OF JUSTICE (1989).
Goodman, Rudy, Bottoms & Aman, Children's Concerns and
Memory: Ecological Issues in the Study of Children's Testimony, in WHAT YOUNG
CHILDREN REMEMBER AND WHY (Fivush & Hudson).
Hill & Hill, Videotaping Children's Testimony: An
Empirical View, 85 MICH. L. REV. 809 (1987).
Kassin, Ellsworth & Smith, The "General
Acceptance" of Psychological Research on Eyewitness Testimony, 44
AMERICAN PSYCHOLOGIST 1089 (1989).
Meehl, Law and Fireside Inductions (with Postscript): Some
Reflections of a Clinical Psychologist, 7 BEHAVIORAL SCIENCES & THE LAW
Meehl, CLINICAL VS. STATISTICAL PREDICTION (1954).
Sexual Abuse and the Courts: Preliminary Findings, 1 JOURNAL OF SOCIAL WORK
AND HUMAN SEXUALITY 145 (1982).
Runyon, Everson, Edelsohn, Hunter, & Coulter, Impact of legal Intervention on Sexually Abused Children, Pediatrics, 113
Saks & Kidd, Human Information Processing and Adjudication: Trial by Heuristics, 15 LAW AND SOCIETY REVIEW, 123
INTEREST OF AMICUS CURIAE
The interest of the Institute for Psychological Therapies
is described in the accompanying Motion for Leave to File Brief Amicus Curiae.
It can be summed up as the interest to support all reasonable and sound
efforts to improve the accuracy of the way the society responds to accusations
of child sexual abuse for the protection of children and the protection of
INTRODUCTION AND SUMMARY OF ARGUMENT
Psychology and Law are both concerned with human behavior. Law has tended to depend upon what everyone knows and believes about human
behavior, upon common knowledge. Psychology distrusts common knowledge and
substitutes knowledge based on empirical data systematically gathered and
rationally analyzed. The built in conflict between law and psychology may make
their interaction unrewarding. A meeting ground may be the common goal of law
and psychology to reduce error.
While a trial is many things, it most surely is a social
invention for deciding between disputed alternatives under conditions of
uncertainty. The values this invention seeks to maximize maybe manifold and
contradictory, but one of the most important among them is accuracy or correctness.
... Whatever justice may be surely it is not error (emphasis
The only reason for psychology to be given any attention by
the law is the expectation the science of psychology may improve the accuracy
of the legal system. The first duty of psychologists who address the courts is
to be accurate and scientifically credible. Psychology is a broad and diverse
discipline. Within psychology there are differences in the level of scientific
status or credibility. The validity of specific concepts, theories,
techniques, and research domains may vary from high and clear to
low and doubtful.(4)
We strongly question the accuracy of the statement in the
APA brief that "The resulting body of research supports the proposition
that children as a class may be especially likely to be emotionally distressed
by courtroom confrontation with their alleged abusers" (pp. 3-4). This
opinion is not high and clear in the scientific support for its validity but
is rather low and doubtful. Every claim advanced by the APA brief as a basis for
encouraging this Court to change the position of Kentucky v. Stincer U.S. 730
(1987) is of low and doubtful validity. This assertion will be elaborated in
Further, the APA brief mixes together research, clinical
observation, clinical experience, and theory as if all had equal weight and
can be considered as one piece (pp.3, 10, 15). The only support offered by the
APA brief for its Point II is clinical observation and theory.
Beginning with Meehl's(5) (1954) demonstration of the
superiority of actuarial data over clinical interview and experience, down to
today, the research evidence continuously and consistently demonstrates the
greater validity and reliability of the actuarial method.(6)
accept a large and consistent body of scientific evidence over unvalidated
personal observation may be described as a normal human failing or, in the
case of professionals who identify themselves as scientific, plainly
The APA brief does not inform the Court of the highly
questionable and unreliable nature of clinical observations and clinical
experience but rather presents statements derived only from clinical
experience as authoritative and meriting serious consideration (p. 15). The
impact of the established high and clear validity of the actuarial method and
the low and doubtful validity of clinical experience on an evaluation of
the APA brief will be elaborated in Point II.
The final point in the argument of the APA brief is that
research demonstrates children may refuse to testify, or testify less
completely, and jurors may not be able to weigh children's testimony
accurately. This may then result in a disservice to the truth-seeking
rationale of the Confrontation Clause. The truth-seeking rationale is
described by Justice Scalia in a recent opinion.
It is always more difficult to tell a lie about a person
"to his face" than "behind his back." In the former
context, even if a lie is told it will often be told less convincingly. ... The
right to face-to-face confrontation serves much the same purpose as a less
explicit component of the Confrontation Clause that we have had more frequent occasion to
discuss — the right to cross-examine the accuser; both "ensur[e]
the integrity of the fact-finding process." [citations omitted]. The State
can hardly gainsay the profound effect upon a witness of standing in the
presence of the person the witness accuses. ... That face-to-face presence
may, unfortunately, upset the truthful rape victim or abused child, but by the
same token it may confound and undo the false accuser, or reveal the child
coached by a malevolent adult. It is a truism that constitutional protections
have costs. Coy v. Iowa, 101 LEd 2d 857,866 (1988).
The APA brief assumes that a child fears an accused person
and therefore the capacity to testify is adversely affected. The assumption
that the fear is caused by having been abused by the defendant already assumes
guilt and violates the presumption of innocence. This assumption ignores the
possibility that a child witness, in the interim between an accusation and
testimony, may have been taught by adults to fear the accused. Fear may he
learned from adults repeatedly telling a child the accused has hurt them, is
bad, wicked, should be punished, and is to be feared. To diminish the
constitutional right to confrontation on the basis of the APA brief's
assumptions would be to put individual rights at the mercy of either well
intentioned folly or deliberate vindictive manipulation. This point will be
further developed in Point IV.
For these reasons IPT urges the Court to view the APA brief
cautiously and to reject the claim that there is "much stronger"
evidence to support the contention that children are harmed by courtroom
confrontation. The earlier position of the APA in Kentucky v. Stincer (1987)
that there is no convincing evidence and no scientifically credible data to
support the claim that the trauma of courtroom confrontation requires an
over-riding of the individual constitutional right to confrontation remains
Point I. The APA brief does not offer evidence with
high and clear validity that serious emotional trauma may be inflicted upon children through courtroom
confrontation with their alleged abusers. The APA brief overstates the data
and fails to offer this Court the limits and qualifications that must be
placed upon the data cited.
The first citation of an authority to support the APA
brief's claim, "A recent review of studies of child victims of sexual
abuse showed that a significant proportion of victims suffer moderate to
severe emotional distress after the episode is disclosed," is the Brown
and Finkelhor (1986) article.(8)
This review was available in 1987. Further, by using the
term victims, the APA brief already assumes the reality of the abuse. Disclosure is synonymous with proof certain.
The APA brief claims the review
establishes a factual proposition, but does not inform the Court what the
review actually claims about the validity of the data reported.
However, because many of the studies lacked standardized
outcome measures and adequate comparison groups, it is not clear that these
findings reflect the experience of all child victims of sexual abuse or are
even representative of those children currently being seen in clinical
settings. At this point the empirical literature on the initial effects of
child sexual abuse would have to be considered sketchy. ... Conclusions from the foregoing review must be tempered by
the fact that they are based on a body of research that is still in its
infancy. Most of the available studies have sample, design, and measurement
problems that could invalidate their findings.(9)
The brief cites forty-nine (49) articles and presentations
in the Table of Authorities. Of these, seven (7) are post 1987 and could be
seen as relating to the issue of effects of courtroom confrontation. Of the
seven, six are unpublished papers or reports. Only one is published.(10)
The only other authority cited by the brief to claim "much
stronger" evidence is now available are two unpublished reports by
Goodman. Unpublished reports and unpublished data have minimal scientific
credibility or standing. There has been no opportunity for the broader
scientific community to evaluate the methodology and quality of the research.
Thus the assertion of "much stronger" evidence rests upon the narrow
base of one published article and two unpublished articles. It is a gross
exaggeration for the APA brief to represent to this Court that there is
"much stronger" evidence after 1987.
Note #5 (APA brief) includes, as a secondary citation,
Conte and Berliner.(11) Once again, the APA brief does not give this Court the
limits and qualifications:
... the factor analysis was somewhat disappointing ... We decided to create a series of clinical dimensions from
items on the Behavioral Profile due to the relatively poor results of the
What this means in plain language is that the authors did
the statistical analysis to prevent individual bias and subjective speculation
and did not like what they got so they decided to ignore it and go ahead with
purely arbitrary ad hoc personal choices about behaviors alleged to be shown
by abused children.
Several methodological problems deserve special
consideration. ... Measures of psychopathology do not appear to successfully
describe the behavior or functioning of many abused children. ... While the clinical dimensions and a summary total score do reliably describe the
difference, there is some question in our mind how useful these broad
descriptors are either in directing clinical practice or in research efforts.(13)
Having abandoned any pretense of scientific procedure, this
article cannot be viewed as scientific and can only be a source of possible
hypotheses to be checked by a truly empirical approach.
To support the claims that face to face confrontation with
the defendant is the chief source of trauma to children, the APA brief refers
to Goodman's Final Report to the National Institute of Justice, Runyan et al.,
Flin et al., and Berliner and Barbieri.(14)
The Flin et al. report does not
support this claim. Indeed, forty-six children were interviewed prior to
trial. Five children gave responses indicating fear of the accused.
not most children in this study. Twenty-two children were observed testifying.
Two demonstrated signs of distress. Runyan, et al.(15) concludes that
testifying in juvenile court is beneficial and suggests delay is the cause of
potential harmful effects.(16) The use of Goodman's Final Report to support the
claim most children are fearful of confronting the accused is an
overinterpretation of the reported data. Tables 14, 15, and 16 report similar
frequencies for fear of testifying in court and negative reactions to seeing
defendant in court. This data does not permit separating out which causes
which. None of the frequencies in these tables warrant the claim that most
children are fearful of seeing the defendant.
For the APA brief to offer as authority for factual,
positive statements made to this Court such weak, low and doubtful validity
material cannot advance the goal of increased accuracy and reduced error.
Kassin et al. show that it is possible to get consensus among
psychologists on what psychological topics meet the general acceptance
provision of the Frye test.(17) The APA brief in this case offers no scientific
information that meets the requirement of an adequate level of acceptance in
the psychological community.
The APA brief does not support its claim of "much
stronger" evidence with any credible and valid evidence. The APA brief
does not offer data to support the claim that fear of courtroom confrontation
is characteristic of most children. The APA brief offers only speculative
opinion, oversimplification, overinterpretation, and inflated representations
of preliminary studies. Therefore we urge the Court to disregard this argument
of the APA brief. There is no credible scientific support for it.
Point II. Speculative theories and clinical experience
cannot support assertions purporting to be factual but which have no basis in
any empirical data. The APA brief frequently commits this error.
The place of clinical observation in the science of
psychology is only as a source of hypotheses which may be built into a theory.
Until there is empirical data to establish an acceptable level of scientific
support, clinical observations are hunches and not facts. When the APA brief
proposes a "model" based on clinical experience and publications(18) without warning this Court that there is no factual basis
for the proposed "model," once again low and doubtful
being suggested to this Court as a basis for a major change in a significant
The APA Brief describes four speculative factors and then
in each paragraph adds a conclusion for which there is no evidence either in
the model or any cited research. The four unsupported conclusions are:
The fear, when present, maybe rearoused in the presence of
the defendant. ... The strong emotion of betrayal may be rekindled when the
vulnerable child confronts a formerly trusted defendant. ... When confronted by
the defendant, the child may reexperience the sense of helplessness or
powerlessness. ... confrontation may arouse these complex and powerful emotions
and interfere with the child victim-witness' ability to communicate
reasonably (APA pp.15-16).
Also, authorities cited in Note 37, p.16, do not support
these statements. Burgess and Holmstrom is not a research study at all but
field notes on adult victims of rape. They report 9 of 61 women gave
"Afraid of man taking revenge" as a reason for not pressing charges.(19)
Rogers concludes his article with this statement:
Well-intentioned yet misguided concerns for the safety and
well-being of child victims of sexual assault have led many to conclude ... too
great a risk of psychological trauma for the child victim. The alternative
view, presented here and elsewhere, is that these risks have been over-stated.(20)
No credible scientific support is offered by the APA brief
for the argument that it is possible, on the basis of speculative theory and unreliable clinical observation, to
make reliable and valid individualized determinations about the need for
protective measures for children. Therefore we urge the Court to understand
the speculative nature of these pronouncements and not rely on them as a
factor in a reasoned decision.
Point III. The APA Brief does not offer credible scientific
data to support the assertion that emotional arousal may result in unreliable
The first authority cited by the APA brief to support a
claim that a child victim-witness is "most likely to refuse to testify,
to be unable to verbalize answers to questions, or to be tearful" (p.18,
19) is an anecdote from a court record. Anecdotal accounts are not scientific
evidence and cannot be used to support a claim of scientific credibility.
In Point III the APA brief cites a study by Goodman et
al. However, in that study, reporting what is touted as ecologically valid
research, that is more closely approaching a real world interrogation, using
stressful medical procedures such as venipuncture and inoculation, the
literature review section includes "there is reason to believe that high
levels of stress are associated with better memory" (p. 34) and cites four
studies. After describing the prediction prior to collecting data that stress
would facilitate memory, this is the summary statement of the research
Our general finding was that stress had a facilitative
effect on the children's reports. Specifically, planned comparisons revealed
that children at the highest stress levels recalled more information than the
other children and were less suggestible. Interestingly, the children had to
reach a level of great distress before beneficial effects on memory were
It is difficult to understand how a research study by one
of the principal authors of the brief, Goodman, whose work is the most
frequently cited in the brief, could be overlooked or not understood. Yet, it
denies both the premise and the conclusion of the argument in APA Brief Point
III. Whatever the cause, the APA Brief presents a pattern of selective
citation and selective reporting that requires caution and wariness in
accepting any of the claims made therein.
Another problem occurring in several places in the APA
Brief is shown in the citation of Hill and Hill.(23)
One study indicated children ... are more likely to omit
information ... than children who testify in a private room without the
defendant present, as in a one-way closed circuit television arrangement (APA
This study is the only one cited for the following conclusion that children's testimony is adversely affected
by courtroom confrontation. However, Hill and Hill report that their results
do not show statistical significance:
While not significant in a one-way analysis of variance,
there was a tendency for subjects in the small room to relate more central
items in free recall than subjects in the courtroom (p <.087). (In social
science research it is generally assumed that the means of two or more
conditions are different if the probability of such an occurrence by chance is
less than or equal to five percent.)(24)
For the APA Brief not to inform the Court that a study
which is the sole basis for the climactic argument has no statistical
significance, not even to use the term marginal significance, but to present
it as a fact requires the Court to exercise cautious reserve in evaluating the
weight to be given to the brief.
Point IV. In the interim between accusation and a trial,
therapy for a child thought to be a victim is feeling-expressive, insight
oriented therapy which may well have the effect of teaching a child to be
afraid of a defendant.
Especially in criminal trials there is often a long time
between an accusation and a child testifying. During this interim, many
children are placed in therapy for having been sexually abused, a decision
made before the factual issue is determined in the courtroom. Analysis of
records of therapy given to 405 children(25) and study of 617 articles and books
dealing with treatment(26) show the therapy given to children focuses on getting
their feelings about being abused out and acting out those feelings in a
variety of techniques. However, this often includes encouraging and
reinforcing the expressing of anger and hatred toward the alleged perpetrator.
If a child has spent time in therapy talking about how bad the defendant is,
hitting a bobo doll identified as the defendant, drawing pictures of the
defendant and burning them, making clay figures of the defendant and putting
them in jail, or throwing darts at a picture of the defendant,(27) it is not
surprising if that child may talk about fearing the accused and even show fear
if seeing him or her in the courtroom. But the fear may well be caused by the
treatment rather than by the alleged abuse.
If it can be demonstrated that a given child has been
subjected to this therapeutic technique, there is no way a court can hope or
attempt to determine the cause of the fear, if it is present, other than by
confrontation. While there is no scientific data to support this specific
proposition, it may occur as it did in the trial of Robert and Lois Bentz,
when their five-year-old son, Billy, who had been in foster care and therapy
for months, was led into the courtroom by the prosecutor, he spied his
parents, waved, smiled, and in a cheery voice called out, "Hi Mom! Hi
The APA Brief submitted in Kentucky v. Stincer, 282 U.S.
730 (1987) stated as follows:
... to date there is very little social science data to
support the general proposition that face-to-face confrontation by child victims of sexual abuse with their alleged abusers
has any more negative psychological effects than such confrontation has for
adult victims ... [we] urge[s] the court to require the government to make a preliminary
showing of substantial psychological trauma to the individual
child witness it seeks to protect.(29)
The APA Stincer brief also states the following.
The view that children are especially vulnerable in legal
proceedings is based much more on emotion, intuition, and commonly held
assumptions about what children are like than on analysis of reliable
scientific data in this area.(30)
This has not changed. The present APA Brief in Maryland v.
Craig does not show any strong or credible scientific evidence to suggest a
revision of this view is needed.
For the foregoing reasons, amicus respectfully urges the
Court to continue to accept the APA Brief in Kentucky v. Stincer as the most
accurate rendering of credible scientific evidence. The current APA Brief in
Maryland v. Craig is flawed by an undeclared bias that causes a high frequency
of overinterpreted statements, partial descriptions of research,
simplification and leveling of complex outcomes, and selective reporting.
Above all other considerations, however, is the observed
fact that the current APA brief offers only material that is of low and
doubtful validity and lacks the required scientific status and level of
acceptability for the Court to consider it in reaching its decision. When
considering the issue of a state interest compelling limitations of an
individual constitutional right, only the best information, solidly
established in contact with the real world, should be able to move the state
further to limit individual personal liberty and rights.