A False Confession of Child Sexual Abuse on the Navaho Reservation: The Gudjonsson Suggestibility Scale and Expert Testimony

Mickey McMahon*

ABSTRACT Prosecutions of child sexual abuse on Native American reservations are handled by both federal and tribal courts.  Since both see significantly fewer cases than state courts, many of the practices established by precedent are lacking in safeguards against false allegations and confessions.  The psychological assessment of a Navajo man who confessed to raping a 12-year-old girl on the reservation illustrates how a previous head injury in the Marines can leave someone vulnerable to interrogative suggestibility and false confession (Gudjonsson, 1992).  Court testimony by the author also illustrates how research into the real world of child interrogations (Underwager & Wakefield (1990) can successfully offset biased presentations to the jury and contribute to a not guilty verdict.

In recent years the federal government has increasingly focused on child sexual abuse on Native American reservations across the country.  Since Arizona contains such a large proportion of reservations, a proportionally larger number of cases are prosecuted within the federal court's jurisdiction.  One might reasonably expect Arizona's expertise in dealing with child sexual abuse cases to reflect this greater caseload.  However, there are a number of practices that still exist which increase the risk of false allegations, confessions, and even convictions.  Consequently, a psychologist who becomes involved in a case of child sexual abuse on the reservation needs to understand what these practices are and make reasonable adjustments to effectively aid the adjudication process.

First, interviews are typically not audio- or videotaped so no recordings or transcripts are available to check on the degree of coercion or suggestibility in the interviews.  Second, the defense is typically blocked in its attempts to gain educational, medical, or psychological information on the alleged victim; consequently, an important source of false allegations cannot be assessed.  Third, child interviews are many and typically include parents, grandparents, school personnel, medical personnel, tribal police, FBI agents, and finally a Deputy U.S. Attorney.  Fourth, discovery requirements in the federal system do not require the prosecution or defense to turn over the material they have prior to trial.  Consequently, there is little chance to check facts and collate testimony to assess its credibility.  The overall result is an increase in the likelihood of false allegations not being detected, since the investigation of major sources of error are blocked.

In addition, the prosecution's typical focus during trial is to assert that children don't lie and that the trauma of being sexually abused accounts for a child's inconsistencies and retractions.  Since interviews are not recorded, it is not possible to know precisely how coercive or suggestible they are.  Consequently, one is left with either accepting the prosecution's assertions that the interviews are appropriate or assuming that the high base rate of coercive and leading interviews, reflected in the research of Underwager and Wakefield (1990), is the case.  However, when child interviewers believe that children don't lie about sexual allegations, the possibility of biased interviews increases at each stage of the process.

The disregard of suggestibility effects also manifests itself in the interrogations of the accused.  These interviews are also not recorded.  Interrogator summaries of what occurred in the interrogation are often quite different from what the accused says, and even what happens when a recorded transcript is available (McMahon & Underwager, in press).  The possibility of error is even greater when the interrogation is conducted in English and the accused comes from a different culture, with a different language.  In the author's experience the typical practice is to simply ask a normal, retarded, even compliant, person of any ethnic origin if they understand their Miranda rights and are willing to give a confession without an attorney present.  If the suspect says, "yes," the interrogation proceeds without any screening.

In the present case example, a 12-year-old Navajo girl accused Mr. Smith of attempting to rape her on his school bus after he dropped off all the other students.  An officer of the Navajo tribal police initially interrogated Mr. Smith, and he denied the allegations.  However, the FBI later persuaded him to take a polygraph exam and undergo an interrogation by an FBI agent who obtained a written confession that Mr. Smith later retracted.

The Phoenix Federal Public Defenders office asked the author to psychologically evaluate Mr. Smith and determine if he was vulnerable to confessing to a crime he did not commit.  Initial information obtained from the defense during their interviews with Mr. Smith, and the FBI interrogator, reflected the kind of interrogation that Inbau and his associates espouse in textbooks (Inbau & Reid, 1962; Inbau, Reid & Buckley, (1986) and that the U.S. Supreme Court criticized in its landmark Miranda v. Arizona decision (1966).

The Gudjonsson Interrogative Suggestibility Scale

The research of Gudjonsson (1992) addresses the factors that make certain individuals particularly vulnerable to confessions when subjected to the kind of interrogations recommended by Inbau and his associates.  This research is particularly relevant for the situations such as the one involving Mr. Smith.  In England, in contrast, the procedure for detecting the vulnerability of suspects is mandated and much more thorough (Gudjonsson, 1992).

Gudjonsson initially developed the Gudjonsson Suggestibility Scale (Gudjonsson, 1984) to measure the interrogative suggestibility of criminal suspects referred by the English court system.  A theoretical model of the nature of interrogative suggestibility itself (Gudjonsson & Clark, 1986) developed out of the work and continues to guide much of the research into interrogative suggestibility.  Gudjonsson went on to develop a comparable second scale, the GSS 2 (Gudjonsson, 1987), after the original scale, the GSS 1 (Gudjonsson, 1984).

The theoretical model, and its supporting research, emphasize the effect of leading questions and negative feedback on a suspect who is uncertain about his answers to questions he is expected to know.  Interrogative suggestibility is increased when the suspect adopts an avoidance strategy in which he attempts to give what he thinks is a plausible answer to a question about which he is uncertain.  Below average intelligence and poor memory (Gudjonsson, 1988b) are correlated with interrogative suggestibility, which Gudjonsson concludes is consistent with the theoretical model.  At least average intelligence is necessary to form an accurate cognitive appraisal of the interrogative situation and to resist unwarranted coercion.  An adequate memory is necessary to provide the suspect with an internal frame of reference to disagree with assertions, even lies, by the interrogator.  Without this internal frame of reference, anxiety and uncertainty are dramatically increased in the typical interrogation.  Adequate intelligence and memory, together, aid the suspect in detecting when he or she is being misled by the interrogator and allow the suspect to maintain a realistic perspective during the oftentimes confusing interrogation.

The model and supporting research, reviewed by Gudjonsson (1992), also emphasize a number of other factors that come into play when intelligence and memory are at least average, such as anxiety, self-esteem, assertiveness, and active vs. avoidant coping strategies.  Gudjonsson distinguishes between compliance and suggestibility, depending on whether or not the suspect believes the interrogator when he confesses.  If he does not believe the interrogator but complies with him for some perceived instrumental gain, he is compliant; however, if he agrees to specific suggestions because he is uncertain of his own opinion, he is suggestible.

The Gudjonsson Compliance Scale (1989) is vulnerable to self-report bias and possible faking whereas the Gudjonsson Suggestibility Scale is a behavioral measure and more resistant to faking in a forensic population.  Gudjonsson (1992) states that compliance and suggestibility scores are modestly correlated, and reports a correlation of 0.54 between the Total Suggestibility score on the GSS 1 and GCS scores (Gudjonsson, 1990).  Consequently, the use of the GSS in a forensic situation appears more effective and defensible.  Its inclusion in a battery containing intelligence testing, memory assessment, reading and listening comprehension, personality assessment, and evaluation of state and trait anxiety is even more defensible and likely to explain factors unique to each individual case.

Purpose of Psychological Evaluation

The Federal Public Defenders Office initially referred Mr. Smith for a psychological assessment to investigate his vulnerability to falsely confess to an allegation of child sexual abuse.  The federal government accused Mr. Smith of raping a 12-year-old Navajo girl on his school bus.  He subsequently signed a confession following an FBI interrogation.  However, he later retracted the confession and denied the sexual assault.  The psychological interview and testing sought to obtain cognitive and personality information about Mr. Smith's vulnerability to make a false confession.

History

Mr. Smith is a 39-year-old, married Navajo father of four children and a 14-year-old stepdaughter.  He is currently married to his only wife of 11 years and lives on the Navajo reservation in northern Arizona.  He grew up on the reservation with five siblings where his family tended sheep and horses.  He attended reservation schools until he left home and enlisted in the U.S. Marine Corps, receiving a medical discharge after three years because of a vehicle accident in which he was run over by a truck 14 years ago.  He was in a coma for three days and in the hospital for two months in a body cast.

He also fell four stories down an elevator shaft two years later in 1980 and was again knocked unconscious, being retained in the hospital for three days.  After the second head injury, he noticed that his thinking was slower, his memory was worse, and he had more difficulty expressing himself.  He believed he had a drinking problem years ago and had four public intoxication arrests off the reservation, but credited his wife with helping him resolve the problem.  He acknowledged that medical personnel said he would be more susceptible to alcohol after his traumatic brain injury.  There is no suggestion of intoxication at the time of the allegation or that the drinking problem is still active.

The 12-year-old girl lives with her mother and 13-year-old brother next door to her grandmother on the Navajo reservation.  The mother divorced the girl's father when the girl was 4 years of age and now has a boyfriend who lives in the home with his own 3-year-old son.  The mother is unemployed, and the family subsists on AFDC payments.  The father is remarried but there is no further information about his relationship with the alleged victim.

The girl is in special education at school, but no further details are available due to the court's practice of protecting the victim from further evaluations.  She is described by Mr. Smith as constantly running around the school bus, picking at other children's clothing, and saying mean things to them.  Such behavior may indicate an Attention-deficit Hyperactivity Disorder (ADHD), although such a diagnosis is admittedly speculative without further corroboration.  In addition, Mr. Smith reports that relatives previously warned him not to be alone with the alleged victim, although his bus route made it unavoidable at times.

The social worker's initial assessment focused primarily on the sexual allegation, although she did mention that the girl's "level of IQ and learning" were "slow."  She states that the girl was initially fearful and distressed by the event, feeling that she was responsible for what happened, but related in a warm manner as contact with her progressed.  The social worker saw the girl for a number of treatment sessions, although no sessions were taped and no session notes were made available.  There is one brief summary of the girl going back to school and doing well after the alleged incident.

Circumstances of the Allegation

A picture of the circumstances surrounding the allegation came from a tribal police officer's summary of the first interview with Mr. Smith, the FBI agent's summary of Mr. Smith's interrogation, Mr. Smith's written confession, the alleged victim's written statement, and various interviews of the girl by a nurse, physician, special education technician, and social worker.  No interviews with the girl were taped and the prosecution made no documents available to the defense that depicted the U.S. Attorney's three interviews with the girl.  In addition, the following information was obtained from the defense's trial folder: a) wife's testimony, b) defense interview of the FBI interrogator, and c) the polygraph report.

The girl initially told her grandmother that Mr. Smith had assaulted her on the bus after he brought her home from school.  The grandmother put her back on Mr. Smith's school bus the next morning, and he drove her to school.  The girl then told her two girlfriends that Mr. Smith had sexually assaulted her, and they in turn told the school principal.  Since the girl was in special education, the principal called a special education technician into his office and told her that two girls had seen Mr. Smith and the alleged victim alone on the bus the previous day.  He told the technician to talk to the girl.  The girl mentioned nothing about a sexual assault in this second interview but did say that Mr. Smith took her jacket off and threw it out the bus while she took his and threw it under a seat.  She jumped off the bus but got back on when Mr. Smith begged her to.  He then took her home.

The special education technician took the girl to medical personnel for an examination.  The nurses report states that the girl told her in this third interview that Mr. Smith took his pants off; tried to take her clothes off, and tried to have sexual intercourse but achieved no penetration.  The report adds that she tried to escape, but Mr. Smith told her if she didn't get on the bus the next day he would beat her.  The physician who examined the girl during the fourth interview found no semen in her vagina or on her panties.  The hymen was intact and was described as admitting only one fingertip, not two.  Although one of the girl's versions was that she struggled with Mr. Smith and successfully avoided penetration, the physician found no bruises or scrapes on her body.

The special education technician then took the girl to see a social worker for a fifth interview.  The social worker performed an initial assessment five days after the alleged assault.  The girl's story was that Mr. Smith pulled off the road because of maintenance problems with the bus.  He took his pants off, pulled her pants down to her knees, and tried to get on top of her; however, she escaped through the back emergency exit with Mr. Smith following her.  She then ran home.  The technician said she took the girl to the social worker for "several meetings," but only one is documented by the social worker, which generally says that the girl is doing well with the support of her mother and is now back in school after staying out for a time due to the assault.  By this time the girl had some undetermined number of interviews that were greater than six.

The special education technician told a defense investigator that the last time she took the girl back home from a visit to the social worker, she "demanded" to know the details of the assault, which the girl had not previously told her.  At that time, the girl said that Mr. Smith cornered her on the bus and attempted to have sex with her but "missed two or three times," never clarifying what she meant by missing.  However, in the girl's written statement she said that Mr. Smith penetrated her, "all the way in."  Finally, the girl was taken off the reservation by an FBI agent to the office of the U.S. Attorney who interviewed her three times over a span of nine days; however, no information about the content of those interviews ever reached the defense.

Circumstances of the Confession

After Mr. Smith drove the girl to school on the morning after the alleged assault, the principal called him into the office and informed him of the allegation.  One week later, an officer of the tribal police interviewed him in an empty classroom at the school where he was informed of the allegations and read his Miranda rights in English.  No attempt was made to assess Mr. Smith's reading or listening comprehension in English.  Mr. Smith denied the allegations in this first interview and stated that his sister is the girl's mother, and they "may be related."  If so, any sexual contact with the girl would have been taboo in the Navajo culture.

Prior to the interrogation, an FBI agent drove Mr. Smith off the reservation to take a polygraph exam.  Mr. Smith said the agent told him if he took the lie detector test, the authorities would drop the charges, and he could go back to work.  If he didn't, they'd have to take away his bus driver job and there would be an investigation.  Mr. Smith did not have the benefit of an attorney's advice prior to agreeing to take the test.  The polygraph examiner concluded Mr. Smith had been deceptive when he was asked if he touched the victim's private parts and if he attempted to put his penis inside her.

According to Mr. Smith the FBI agent promised him if he confessed "everything would be taken care of."  The FBI agent did not audio- or videotape the interrogation.  The interrogator told the defense he had been an FBI agent for five years and had heard "thousands" of interviews.  He said it was important to establish rapport with someone like Mr. Smith and "make them think you are their friend."  He also expressed the opinion that children don't lie about sexual allegations.

The interrogator's summary of the interrogation stated that Mr. Smith parked the bus in an isolated area and laid the girl back on a bus seat.  He allegedly said that the 12-year-old girl was mature, having pubic hair and medium-sized breasts.  He inserted his penis a half inch, intent on having complete sexual relations.  However, he pulled out after approximately half a minute because he heard a noise.  The report also stated that he knew it was wrong to do this because the victim was a student.  In Mr. Smith's own written confession, he said that he put his penis a "half inch" into her vagina.  However, after retracting the confession, Mr. Smith stated that the agent had told him to use the words "penis" and "vagina even though those were not his words.  In addition, the agent also suggested he include that he was sorry for what he had done.  Mr. Smith said that during the interview he was angry that the interrogator kept pressuring him to admit to assaulting the girl even though he knew it was not true; however, he did not say the allegations were false out of fear that the authorities would press more charges, since "they can think of anything."

Psychological Testing

Mr. Smith completed the WAIS-R, the Gudjonsson Suggestibility Scale (GSS 1), the Wechsler Memory Scale (WMS), the reading portion of the WRAT-R, the Williamson Sentence Completion test, and the MMPI Critical Items section while incarcerated in a Phoenix jail.  After his release from the jail, but prior to trial, he completed the Spielberger State Trait Anxiety Inventory (SSAI), and selected portions of the Woodcock-Johnson Psychoeducational Battery and the Memory Assessment Scale (MAS).

Mr. Smith obtained a Verbal Scale IQ of 75, a Performance IQ of 93, and a Full Scale IQ of 83 which placed him in the low-average range of intellectual functioning, although his verbal skills in English were significantly below nonverbal skills.  He read at the beginning of the fifth grade on the WRAT-R, which was insufficient to have him read and complete the full MMPI; consequently, he was administered the Critical Items and interviewed further about his response to each item.  He scored at the 5.1 grade level on the Passages Comprehension section of the Woodcock-Johnson, which was consistent with his WRAT-R score.

On the WMS, he obtained a memory quotient of 84, which was in the low-average range and consistent with his IQ.  However, he had particular difficulty on the Logical Passages section, freely recalling only 4 memories after being read the two short stories, which is estimated to be below the 10th percentile.  On the comparable Immediate Prose Recall section of the MAS (where he answered questions about a similarly read story) he scored at the 5th percentile.  Since he scored at the 2nd percentile on the Immediate Visual Recognition section of the MAS, he appears to have not only auditory but visual memory problems as well.  These results are consistent with his stated memory problems, and previous head injuries, not just an example of someone whose native language is Navajo, not English.

Mr. Smith obtained a total suggestibility score of 23 on the Gudjonsson Suggestibility Scale, which deviates more than 3 standard deviations from the mean when compared with a normal population and more than 2 when compared to a forensic population.  He was vulnerable to both misleading questions and negative feedback, which were both (Yield 1 = 13/15 and Shift= 10/15) above 3 standard deviations from the mean when compared to a normal population and above 2 when compared to a forensic population.  An immediate free recall of only 6 memories was below 3 standard deviations in a normal population and 2 in a forensic population, again confirming the kind of memory problem that is particularly relevant to giving a false confession.

On the SSAI, Mr. Smith scored at the 68th percentile on the trait anxiety measure and the 99th percentile on the state anxiety measure (when he was asked to rate himself as to how he felt during the interrogation).  Although in Gudjonsson's (1988 a) research, he had subjects rate their state of anxiety at the time they took the test, the anxiety from the interrogation was so easily retriggered by thoughts of it that having Mr. Smith rate himself during the interrogation was considered more clinically relevant.  Since the test is a rating scale and quite easily faked, it has doubtful utility during a forensic examination and can be easily attacked during cross examination.  However, it can be compared with other less easily faked data and a judgment made as to its accuracy for clinical purposes.

The Williamson Sentence Completion test revealed that he is somewhat dependent, anxious, and fearful.  He is also prone to feeling lonely and becomes quite depressed when he is away from his loved ones.  On the MMPI Critical Items, his response pattern indicated that he is somewhat immature, dependent, lacking in self-confidence, oriented toward family values, prone to dissociative phenomena, and situationally paranoid due to the allegations of child sexual abuse.  The dissociative phenomena may be nothing more than the more spiritual orientation of Native Americans, particularly a Navajo in this case.  In addition, Mr. Smith typically suppresses angry, assertive behavior and is prone to develop stress-related physical symptoms.  Finally, he tends to use a passive-avoidant coping strategy under stress because of poor self-esteem and looks to authority for direction.

Court Testimony

The court ruled that the psychological assessment could not be used by the defense at trial, since they had not listed the author as a witness within the time frame required by the "insanity" rules of procedure.  Although the defense argued that the psychological evaluation was not being used in an insanity defense, the ruling stood and was never appealed since Mr. Smith was ultimately found not guilty in a jury trial.

However, the author was allowed to testify as to the suggestibility of children to potentially error-producing (PEP) interrogation practices.  The defense believed that such testimony was critical to counter the prosecution's typical presentation, which included Summit's child sexual abuse accommodation syndrome (1983) as well as other beliefs espoused by child advocates: a) children don't lie about sexual abuse; b) the child believes that no family member will believe them so tends to keep the abuse a secret and consequently, multiple interviews are necessary to flesh out a full disclosure; c) the child is inherently helpless and fears the adult perpetrator's threats; d) good touch, bad touch education and questioning are necessary to flesh out a full disclosure.

The actual testimony relied heavily on the research presented by Underwager and Wakefield (1990) in which they analyzed real-world interviews of children alleging sexual abuse.  In addition, the research reviewed by Wakefield and Underwager (1988) was explained to the jury in order to counterbalance the prosecution's emphasis on children not lying about sexual abuse.  The following specific issues were addressed during direct testimony as part of the focus on the overall orientation toward real-world child interrogations: a) children's free recall of details is less than adults, so interrogators inevitably ask more and more questions to obtain the information they need; b) interrogators frequently are biased that sexual abuse did occur and shape children's responses in that direction; c) children are attuned to what adults expect of them and seek to satisfy their expectations; d) adults frequently do not realize the extent to which children are suggestible; e) touch is presented in the context of something bad rather than good; f) children typically fail to say, "I don't know," and will try to answer even the most bizarre questions that adults ask; g) children's memories can be changed with the wrong kind of questioning so that the child comes to believe that abuse actually occurred when it did not; h) the PEP effects of multiple child interviews, with the first interview typically conducted by an emotionally distressed parent that is not taped; i) the influence of modeling and reinforcement on sexual allegations; j) the influence of peers on the suggestibility of alleged victims; k) the effect of an English speaking interrogator on a Navajo child, including the potential for increased uncertainty in the communication process and in turn greater suggestibility; and l) procedures that decrease PEP interrogation tactics such as review of videotaped interviews, consultation with colleagues, and familiarity with the scientific literature.

These were the issues from the research that the author and the defense had previously agreed were most relevant to the circumstances of the present case.  The defense was pleased with the testimony, as was the author's later review of the court transcript.

Cross-examination by the prosecution dealt with the following issues: a) a professional body of opinion that believes it is exceedingly rare for a child to lie about sexual abuse; b) the necessity for multiple interviews to flesh out a full disclosure; c) the necessity that someone must intentionally influence a child's testimony before it can occur; d) the questions must be leading before suggestibility occurs; e) the interviewer must invariably have prior knowledge of the case to influence the child; f) the number of actual interviews the author had observed by law enforcement personnel, particularly FBI agents; g) the fact that the author didn't speak Navajo and had not lived on the Navajo reservation; and h) the belief that it is harder for a child to testify against a perpetrator who is a family member, or a trusted adult, than a stranger.

In responding to the cross-examination, the author emphasized that children can be influenced without prior knowledge of the case, or any intention to do so, if the interrogator is not aware how their own stimulus value affects children.  The danger of multiple interviews by interrogators unfamiliar with the reality of false allegations was again emphasized, as was the necessity to utilize open-ended questioning during the initial stages of an interview, only resorting to agreed-upon memory-enhancement techniques during the later stages of the interview.

Discussion

Comments by the jury after the not guilty verdict focused on their opinion that the prosecution had not proved its case.  They listed the victim's numerous inconsistencies, particularly her story about a wire across the back emergency exit that blocked her first attempt to get away from Mr. Smith.  Testimony by the school principal confirmed that no wire was ever used to close the emergency exit and all such doors were designed so that children could escape through them.  The jury was also influenced by the lack of "painful detail" in the victim's testimony as well as the absence of any torn clothing or body bruises from her alleged struggle with Mr. Smith.

The results of the psychological assessment point toward the likelihood that Mr. Smith was highly vulnerable to the kind of potentially error-producing tactics used by the FBI interrogator.  The agent's bias in believing that children don't lie, a failure to record the interrogation, and the promise that Mr. Smith could go back to his job if he took a polygraph exam and confessed are particularly bothersome.  The psychological assessment showed that Mr. Smith had all the factors Gudjonsson (1992) found consistent with giving a false confession.  His verbal IQ was in the borderline retarded range, and he displayed severe memory problems, significant anxiety, poor self-esteem, and a tendency to avoid conflict with authority figures.  On the Gudjonsson Suggestibility Scale, he was extremely vulnerable to both leading questions and negative feedback, common interrogation tactics employed by law enforcement personnel across the country.  Mr. Smith frequently spoke of the necessity to cooperate with those in authority, the need to obey orders like a good Marine, and his anxiety that authority would charge him with even more offenses if he didn't confess.  His false confession is consistent with the coerced-compliant type, since he retracted the confession after his emotional turmoil abated (Kassin & Wrightsman, 1985).  Since he did not continue to believe he had molested the girl, his was not an example of a coerced-internalized confession.

The kind of false allegation and confession illustrated above is likely to reoccur as long as the federal system continues its present practices.  Failure to record child or suspect interrogations ensures that one cannot know what occurred in the interrogations.  Underwager and Wakefield (1990) observe that in typical interviews what interrogators say happens is not what actually happens.  In addition, enormous pressure is placed on children in real-life interrogations to prove an allegation of sexual abuse.  Research by McMahon and Underwager (in press) reveal that a recorded interrogation of an adult murder suspect is just as psychologically coercive as are many child interrogations.  It can also result in a documented false confession in vulnerable adults such as Mr. Smith.

The prosecution's belief that multiple interviews are necessary to flesh out a full disclosure runs the very great risk that children will learn to give the interrogators what they expect to hear.  The court's blocking of the defense's attempts to obtain educational, medical, and psychological information on the alleged victim in all cases known to the Federal Public Defenders Office is somewhat excessive and protects the alleged victim at the cost of increasing the conviction of innocent defendants.

In Mr. Smith's case, it was not even possible for the defense to determine if the 12-year-old girl actually had medium-sized breasts and pubic hair as Mr. Smith stated during his false confession.  They were also not allowed to investigate the nature of the girl's special education handicap and were precluded from obtaining even her regular school records.  Finally, the practice of almost never granting an adverse psychological evaluation of alleged victims runs the grave risk of disturbed children making a false allegation for their own idiosyncratic reasons, or for those of a significant adult.

Expert testimony at Mr. Smith's trial regarding the suggestibility of children during multiple interviews (in the context of the belief that children don't lie) was perceived by the defense as crucial.  It offset the prosecution's explanation for the alleged victim's inconsistent statements as being due to the child sexual abuse accommodation syndrome (Summit, 1983) and allowed the jury to weigh the testimony on its own merits.

Although on cross-examination the prosecution was successful in depicting the trauma that child abuse creates, and how that trauma is treated by a large proportion of the professional community the author was able to point out that treatment is one thing and investigating the truth of a child sexual allegation another.  It is dangerous to mix the two by assuming that one can simply transfer good treatment practice to an investigation.  Therapists may ally themselves with an alleged victim to develop the rapport needed for successful treatment, but it is dangerous to go one step further and become an advocate for the veracity of a child's allegations against an accused.  In the author's own words on the stand, "You are mixing apples and oranges; the two simply don't go together."  It was the defense attorneys' perception that this last point had a significant impact on the jury, and their goal to present an alternative point of view from that of the prosecution's damned-if-you-do-damned-if-you-don't presentation was successful.

This case illustrates how a psychologist can make adjustments to determine if a false confession is likely even when a recorded transcript of the confession is unavailable.  In addition, by testifying as to the suggestibility of children, and potentially error-producing practices by interviewers, the psychologist can increase the chance that the jury will evaluate the testimony on its own merits.  The not guilty verdict demonstrated that even if multiple child interviews are not taped, and the defense is blocked at every turn in its attempt to find out even educational information about the alleged victim, a successful defense can be mounted.

In Mr. Smith's case, the story does not end here.  After being found not guilty in federal court, he still faced the same charges in Navajo tribal court.  This is akin to being found not guilty in one country, then being tried again for the same crime in another.  Fortunately, his attorney in tribal court was able to have the case disposed of through a procedural issue, although the attorney had already communicated with Mr. Smith's federal public defenders and requested the author's data in preparation for a defense in the second case.

The amount of distress these allegations caused an innocent man and his family — a man who had sustained severe head injuries while serving in the U.S. Marine Corps, and adjusted by reliably working as a school bus driver — is incalculable.  The author is assured, however, that the roadblocks the defense had to surmount in the present case are typical of the many cases the public defenders office defends on the reservations whenever sex abuse is alleged.

The author spent some time discussing the wisdom of handling allegations of child sexual abuse by the federal authorities with the Chief Justice of the Navajo Supreme Court and his wife, a translator in many of these cases.  The Navajo way is for the extended family of the guilty party to compensate the victim's family in some agreed-upon way.  The guilty parry is corrected by the community and an extended family system that doesn't exist in typical American culture.  If court action is also required, the Navajos have their own tribal courts.  If the federal courts must get involved, one would hope that they will come to accept more scientifically validated methods for assessing these kind of cases.

The above issues are particularly relevant when a psychologist is asked to consult on a sex abuse case on a Native American reservation where current federal practices are limiting and the risk of false allegations, even false confessions, can be significant.  The present case was successfully defended in part because of a two-pronged approach in which both a retracted confession by the accused and potentially error-producing practices by law enforcement and prosecution were addressed.

References

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Miranda v. Arizona, 384 U.S. 436 (1966).

Summit, R. C. (1983). The child sexual abuse accommodation syndrome. Child Abuse & Neglect, 7, 177-193.

Underwager, R., & Wakefield, H. (1990). The Real World of Child Interrogations (Hardcover). Springfield, IL: Charles C. Thomas.

Wakefield, H., & Underwager, R. (1988). Accusations of Child Sexual Abuse (Hardcover)(Paperback). Springfield, IL: Charles C. Thomas.
    

* Mickey McMahon is a psychologist in private practice at 5150 North 16th Street, Suite A-122, Phoenix, Arizona 85016.  [Back]

 

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