A False Confession of Child Sexual Abuse on the Navaho
Reservation: The Gudjonsson Suggestibility Scale and Expert Testimony
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
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.
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
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.
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.
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.
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
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.
this time the girl had some undetermined number of interviews that were greater
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
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.
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
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
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
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.
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
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.
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
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
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.
Gudjonsson, C. H. (1984). A new scale of interrogative suggestibility. Personality
and Individual Differences, 5(3), 303-314.
Gudjonsson, C. H. & Clark, N. K. (1986). Suggestibility in police
interrogation: A social psychological model. Social Behavior, 1, 83-104.
Gudjonsson, C. H. (1987). A parallel form of the Gudjonsson Suggestibility
Journal of Clinical Psychology, 26, 215-221.
Gudjonsson, C. H. (1 988a). Interrogative suggestibility: Its relationship
with assertiveness, social-evaluative anxiety, state anxiety and method of
Journal of Clinical Psychology, 27, 159-166.
Gudjonsson, C. H. (1988b). The relationship of intelligence and memory to
interrogative suggestibility: The importance of range effects. British
Journal of Clinical Psychology, 27, 185-187.
Gudjonsson, C. H. (1989). Compliance in an interrogative situation: A new
and Individual Differences, 10(5), 535-540.
Gudjonsson, C. H. (1990). The relationship of intellectual skills to
suggestibility, compliance and acquiescence. Personality
and Individual Differences, 11, 227-231.
Gudjonsson, C. H. (1992). The Psychology of Interrogations, Confessions and
Testimony (). New York, NY:
John Wiley & Sons.
Inbau, F. E., & Reid, J. E. P. (1962). Criminal interrogation and
confessions (). Baltimore, MD:
Inbau, F. E., Reid, J. E., & Buckley, J. P. (1986). Criminal
interrogation and confessions (). Baltimore, MD:
Kassin, S. M., & Wrightsman, L. 5. (1985). Confession evidence. In S.
M. Kassin & L. S. Wrightsman (Eds.), The Psychology of Evidence and
Trial Procedure ()
(pp.67-94). Beverly Hills, CA: Sage
McMahon, M., & Underwager, R. (in press) False confessions and police
deception: The interrogation, incarceration and release of an innocent veteran. American
Journal of Forensic Psychology.
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 (). Springfield, IL:
Charles C. Thomas.
Wakefield, H., & Underwager, R. (1988). Accusations of Child Sexual
Springfield, IL: Charles C. Thomas.
McMahon is a psychologist in private practice at 5150 North 16th
Street, Suite A-122, Phoenix, Arizona 85016. [Back]