United States Supreme Court: Analysis and Application of the Confrontation Clause in Regard to Cases of Child Sexual Abuse

Arthur H. Garrison*

ABSTRACT: In recent years the issues of the proper role of expert testimony on child sexual abuse, the admissibility of hearsay testimony of social workers or investigators, and the use of closed circuit video cameras for young children to testify in court has been ruled upon by the US. Supreme Court and other state supreme courts.  Some courts have reversed convictions because experts had been allowed to opine whether a child was abused or because the investigation and/or the interview techniques caused children to make false statements about abuse.  This article will discuss how the U.S. Supreme Court and other state supreme courts in several cases have addressed these issues.

The Supreme Court has addressed the issue of how the Sixth Amendment Confrontation Clause affects cases of child sexual abuse.  The court has dealt with two main issues in this area of constitutional law.  First, it has considered whether the state can establish a system in which closed circuit television or a screen can be used to separate a child witness from a defendant on the theory that the child will suffer extreme emotional distress caused by being in the presence of the defendant and that this distress will cause the child to be unable to communicate.  Second, the court has addressed the question of (if the state can override a face-to-face meeting of the defendant and the child) how this is to be done.

The Supreme Court has also considered the issue of hearsay evidence.  The main question in these cases is whether an alleged declaration of sexual abuse by a child to another person can be introduced at trial without producing the child.  The court also addressed the issue of biased interviewing and how this bias alone can provide sufficient grounds for a reversal of a conviction.  These issues of bias and suggestibility of children have been addressed in depth by the New Jersey Supreme Court and by amicus curie briefs in the United States Supreme Court and in the New Jersey Supreme Courts.

In Part One, two United States Supreme Court cases will be reviewed that address the issue of child witness testimony and the confrontation clause.  In Part Two, two Supreme Court cases that address the issue of admissibility of hearsay statements of children will be reviewed.  An opinion of the New Jersey Supreme Court that established a remedy to tainted child abuse investigations and biased interviewing techniques will also be reviewed.  In Part Three, a review of three amicus curie briefs that were presented to the United States Supreme Court and the New Jersey Supreme Court will be discussed.  These briefs address the suggestibility of children, improper interview techniques, the proper role of expert testimony, and the two American Psychological Association (APA) positions on whether children as a class suffer extreme emotional distress from testifying in court in the presence of the defendant.  (See Appendix One with a point by point comparison of two APA briefs on this question).  In Part Four, some final conclusions are drawn.


The Sixth Amendment Confrontation Clause and Child Witnesses

A. Coy v. Iowa (1988): Face-to-Face Confrontation I: Does it Mean Confront?

The Supreme Court held in Coy v. Iowa1 that an Iowa statute allowing a child to testify with a large screen between the child and the accused for the purpose of preventing the defendant from seeing the child during her testimony was a violation of the accused's Sixth Amendment right to confront his accuser in open court.  Justice Scalia delivered the opinion of the court, with Justices Brennan, White, Marshall, Stevens and O'Connor joining.  Justice O'Connor delivered a concurring opinion which was joined by Justice White.  Justice Blackmun delivered a dissenting opinion which was joined by the Chief Justice.  Justice Kennedy did not participate in the case.  The case was argued on January 13, 1988 and was decided on June 29, 1988.

The state claimed that John Avery Coy, in August 1985, entered the tent of two girls, shined a flashlight in their eyes and told them not to look at him.  He then sexually assaulted them.  Coy was brought to trial in November 1985.  Early in his trial, the state moved to allow one of the girls to testify either by a closed-circuit television or behind a screen pursuant to an Iowa statute that allowed the visual separation of the accused from the witness in cases of sexual abuse.2  The court approved of the use of a large screen to be placed between Coy and the girl during her testimony.  Coy objected, asserting that the use of the screen violated his Sixth Amendment right to be confronted by his accusers, claiming that the Sixth Amendment requires a face-to-face confrontation during criminal trials.  Coy also claimed that his right to due process was violated by the use of the screen because it would create the image of guilt on the part of the defendant and thus violate his presumption of innocence.  The trial court rejected both claims and allowed the use of the screen.  Coy was found guilty.

Coy appealed his conviction to the Iowa Supreme Court and asserted his Sixth Amendment and due process arguments as he did at trial.  The Iowa Supreme Court affirmed Coy's conviction,3 ruling that, since Coy had the ability to cross-examine the witness unimpeded by the screen, there was no Sixth Amendment Confrontation Clause violation.  The court also rejected the due process claim, asserting that the use of the screen was not inherently prejudicial.

Justice Scalia, writing for the court, held that the Sixth Amendment requires face-to-face confrontation between the accused and witnesses against him.  The court, citing Justice Harlan,4 noted that the Sixth Amendment "as a matter of English ... confers at least a right to meet face to face all those who appear and give evidence at trial."5  The court noted that the word "confrontation" itself requires such meaning, observing that the word confrontation, in its Latin roots comes from two words: the prefix "con" (from Contra meaning against or opposed) and the noun "frons" (forehead).6  The court held that it had "never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact. "7

The court noted that the face-to-face confrontation required by the Sixth Amendment serves practical purposes in the administration of justice as well as being within the culture of the society.  The court observed that it is within American history to meet one's accuser or rival face to face to settle issues or make claims against another person.  The court stated that the confrontation in court face to face is essential to the perception of fairness in a trial.  The accused and the witness see each other and as a result the witness "may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking facts."8  Face-to-face confrontation reduces the possibility of witnesses lying, for it "is always more difficult to tell a lie about a person to his face than behind his back."9  The court concluded that, although "face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; [it] by the same token ... may confound and undo the false accuser, or reveal the child coached by a malevolent adult.10  It is a truism that constitutional protections have costs."11

After determinating that the Sixth Amendment Confrontation Clause required a face-to-face encounter, the court assessed whether the Iowa statute allowing the use of a screen to be placed between a child witness and the accused violated the Confrontation Clause and held it did.  Iowa argued that the "confrontation interest at stake here were outweighed by the necessity of protecting victims of sexual crimes."12  The court agreed that the confrontation clause protection is not absolute, a concession Justice O'Connor would use to her advantage two years later, and that the protections of the Confrontation Clause may give way to other important interests."13

The court remarked that, in regard to the Iowa statute and the use of the screen separating Coy and the little girl who testified against him, it "is difficult to imagine a more obvious or damaging violation of the defendant's right to a face-to-face encounter. "14  It took issue with the Iowa statute's "presumption of trauma" caused by having child victims of sexual assault testify in court in the presence of the accused and ruled that "exceptions from the normal implications of the Confrontation Clause ... (require] something more than the type of generalized finding underlying (the Iowa statute] when the exception is not firmly rooted in our jurisprudence."15  The court specifically noted that the statute did not require a specific finding that a particular witness needed special protection, thus the judgment that the child needed protection or would suffer trauma testifying in the presence of Coy "could not be sustained by any conceivable exception."16  The court decided that it would wait for another day to determine what public policy interests could create a proper exception to the face-to-face confrontation requirement.

B. Maryland v. Craig (1990): Face-to-Face Confrontation II: Public interest exception

Two years later, the "another day, [for] the question [of] whether any exception exists"17 to the Confrontation Clause face-to-face presence requirement came in the case of Maryland v. Craig.18  In October, 1986 Sandra Ann Craig was charged with various counts of sexual assault involving a six-year-old girl who attended a kindergarten and prekindergarten center owned and operated by Craig over a two-year period.19  Before the case went to trial, the State of Maryland moved to invoke a Maryland statute20 that permitted the trial judge to allow a child witness to testify through the use of a one-way closed circuit television.  The Maryland statute required the judge to determine "that the testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate."21

The Maryland statute22 provided that only the judge, the prosecutor and the defense attorney could question the child and that only the prosecutor, the defense attorney, the operator of the closed-circuit television, and anyone, in the opinion of the court (without objection by the defense) that contributes to the well-being of the child could be in the room with the child.23  During the child's testimony, the judge, the jury, and the defendant had to remain in the courtroom, but the judge and defendant could communicate with the the defense and prosecuting attorneys.24

The state presented expert testimony asserting that each of various children who were to testify against Craig would have such an emotional reaction to the presence of Craig that they would lose the ability to communicate reasonably.  Craig objected, arguing that the use of the procedure violates the Confrontation Clause.  The trial court rejected the Confrontation Clause claim noting that, although the process takes away her right to a face-to-face confrontation, the essential elements of the Confrontation Clause — the right of cross examination, right to observe and have the jury view the demeanor of the witness-were preserved.25  The court made a finding that the presence of Craig would prevent the children from reasonably communicating in court.  Craig was convicted on all counts.26

The Court of Appeals of Maryland, although rejecting Craig's argument that the Confrontation Clause requires in all cases a face-to-face confrontation, reversed the conviction and remanded for a new trial on the grounds that the statute could only be implemented if the state (1) provided evidence that the serious emotional distress which would render the child victim unable to reasonably communicate, and, (2) the inability to communicate is caused by the face-to-face confrontation with the defendant.27  The Maryland court held that unless prevention of face-to-face confrontation is necessary to obtain the testimony of the child, the defendant can not be denied his right to fact-to-face confrontation.28  The Maryland court held that the state had not made enough of a showing that the children could not have testified but for the separation from Craig.  This appellate ruling was appealed by the state to the United States Supreme Court.

Justice O'Connor delivered the opinion of the Supreme Court.  Her decision was joined by Justices White, Blackmun, Kennedy and the Chief Justice.  Justice Scalia delivered a dissenting opinion joined by Justices Marshall, Brennan and Stevens.  The case was argued on April 18, 1990 and decided on June 27,1990.

The Supreme Court reasoned that the court in Coy held that the Confrontation Clause was not absolute and thus could be overridden by an important public policy.29  It conceded that the Sixth Amendment Confrontation Clause guarantees to the defendant a face-to-face confrontation, but, it stated that Coy made it clear that the right is not absolute and that, at least in theory, exceptions do exist.30  The court also asserted that Coy decided that an exception to the Sixth Amendment could be one that furthers an important public policy."31  The court observed that the facts of Coy were different from Craig in that in Coy there was not an individual assessment of the child witness and the need to override the face-to-face confrontation right of the defendant, while there was such a determination in Craig.32  With the two cases so distinguished, the court felt that the facts of Craig allowed for the assessment of whether the need to protect the child witness's ability to testify was an important enough public policy so as to override the face-to face right of the defendant.  The court answered in the affirmative.

Justice O'Connor began her opinion by noting that the Confrontation Clause has the central concern of ensuring "the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact."33  Thus, the right of face-to-face confrontation is less of a right of the defendant than a procedural tool to protect the integrity of evidence.

Such an assertion, by itself, changed the meaning of Coy.  The Coy decision made it clear that the right of the Sixth Amendment belonged to the defendant and was present to protect the defendant from false or incorrect testimony from a witness.34  O'Connor's opinion argued that the Sixth Amendment was present to "prevent depositions or ex parte affidavits ... [from] being used against the prisoner in lieu of a personal examination and cross examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge his demeanor ... "35

Justice O'Connor's opinion asserted, through the use of various cases, that the Sixth Amendment protects the integrity of the evidence produced in court by providing in-court testimony, witness testimony under oath, and the viewing of witnesses by the jury so that they can judge credibility.  The court stated that, although a face-to-face confrontation is part of the Confrontation Clause, it is not the beginning and end of the clause, for there are other aspects of the clause and the restriction of one aspect of the clause, face-to-face confrontation, does not establish a defendant's claim that her Confrontation Clause rights were violated.36

Justice Scalia dissented from this logic noting that the court "abstracts from the right to its purposes, and then eliminates the right."37  He noted that the Sixth Amendment "provides, with unmistakable clarity, that in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with witnesses against him.  The purpose of establishing this protection in the Constitution was to assure that none of the many public policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court."38  A true statement, but Scalia himself did not say this in Coy, and in fact he noted in his majority opinion in Coy that an important public interest could, at least in theory, make an exception to the face-to-face protection granted in the Sixth Amendment.

While Scalia may have changed his views of the Sixth Amendment,39 Justice O'Connor did not.  Her concurring opinion in Coy was based on the premise that "rights under the Confrontation Clause ... are not absolute but rather may give way in an appropriate case to other competing interests "40  She stated that the rights under the Sixth Amendment could give way, in the appropriate case, "to permit the use of certain procedural devices designated to shield a child witness from the trauma of courtroom testimony.  I would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy. "41

In Craig, Justice O'Connor found just such a trial procedure.  In her discussion of the Maryland statute, she noted in her majority opinion that the statute provided all the other elements of the confrontation clause, i.e., witness testifying under oath, full cross examination, the ability of the judge, jury and defendant to view the witness and the ability of the defendant to confer with defense counsel.  She noted that the "presence of these other elements of the Confrontation Clause ... adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. "42

Note the difference between Justice O'Connor and Justice Scalia.  O'Connor starts with the premise that the Confrontation Clause has various parts of which if a procedure negates one but maintains the rest — maintains cross examination, the defendant's ability to confer with his attorney, the ability of the jury to view the witness, and the requirement of testimony under oath — then the negation of the face-to-face confrontation is acceptable if an important public policy is asserted.  Justice Scalia maintained that the Confrontation Clause guarantees a face-to-face confrontation between an accused and his or her accuser in open court.  The other aspects of the Confrontation Clause are collateral rights.  Justice Scalia asserted that the right to face-to-face confrontation belongs to the defendant and it is not a right of the jury.  In any event, the right to face-to-face confrontation is not open to exception by public policy.43

With the issue being the important governmental interest, Justice O'Connor notes that the state "has a substantial interest in protecting children who are allegedly victims of child abuse from the trauma of testifying against the alleged perpetrator"44 and that the statute furthers that interest.  Justice O'Connor accepted the American Psychological Association's (APA) assertion on face value that there is scientific, psychological evidence to support the contention that children, as a class, can suffer trauma by testifying in open court.45

Accepting the APA's assertion that children of sexual abuse can, as a class, suffer trauma testifying in court, Justice O'Connor wrote, "we will not second guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying.  Accordingly, we hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant."46

The Maryland Court of Appeals had overturned the conviction of Craig on the grounds that, before the Maryland statute could be implemented, the trial court must make a finding that the child would suffer severe emotional trauma by testifying in the presence of the defendant.  But the court went on to hold that the trial judge made such a finding on the testimony of the expert witnesses alone.  The Maryland Court of Appeals held that the trial judge was required by the statute to (1) ascertain if such trauma would actually occur, i.e., have the child testify in the presence of the defendant and observe the reaction of the child or interview the child to determine if the child would be so traumatized by the defendant's presence that he or she could not testify, and, (2) determine if the trauma would be reduced by the use of a two-way camera before allowing the use of a one way camera.

Justice O'Connor held that, although such "evidentiary requirements could strengthen the grounds for use of protective measures, we decline to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites ..."47  The court held that, as long as the court makes a case specific finding of necessity for protective measures to protect child witnesses, the Confrontation Clause does not require any other findings.  It ruled that a trial court could hold that the state meets its burden of proving that a specific child witness needs protective measures through the use of expert testimony alone.  The court vacated the Maryland Court of Appeals on the ground that the Maryland Court decision of overturning the conviction of Craig was not clear as to whether it would have overturned Craig's conviction under the analysis of the Supreme Court holding.

The ability of experts to ascertain whether a child will suffer emotional distress due to the presence of the alleged abuser, exclusively of other factors of the courtroom experience, is open to some debate.  One commentator has noted that the:

Maryland v. Craig decision ... sets up a requirement that no reasonable nor responsible mental health professional should even attempt to meet...  The simple fact is that psychologists cannot do it.  No mental health professional can respond to this requirement with anything other than speculative, unfounded and unsupported, subjective opinion.  There is no research that approaches being able to separate the single factor of the defendant's presence from all other factors that may produce more than minimal emotional distress.  It is questionable whether there is any body of psychological research dealing with causation of human behavior that can claim to have isolated a unidimensional causal factor.  Nobody knows how to isolate or identify the specific factor of the presence of the defendant, by itself causing serious emotional distress.48


Hearsay Exceptions and Interviewing Alleged Child Victims of Sexual Abuse

A. Idaho v. Wright (1990): Hearsay I: Interviewing and Non-firmly Rooted Hearsay

On the same day the Craig decision was issued, the court also decided the case of Idaho v. Wright49 in which the issue was "whether the admission at trial of certain hearsay statements made by a child declarant to an examining pediatrician violates a defendant's rights under the Confrontation Clause of the Sixth Amendment."50

Laura Lee Wright and Robert L. Giles were each charged on two counts of lewd conduct with a minor under the age of 16 under Idaho law.51  The case involved two sisters, both of whom were the daughters of Wright.  The oldest daughter was living with her father, Louis Wright, and his female companion, Cynthia Goodman, when the oldest daughter allegedly told Goodman that "Giles had had sexual intercourse with her while [Wright] held her down and covered her mouth ... and that she had seen [Wright] and Giles do the same thing to [Wright's] younger daughter."52  Goodman reported the allegations to the police and upon medical examination of the older daughter, who was five and one-half years old, evidence of sexual abuse was discovered.  The police and welfare officials took the younger sister, who was two and one-half years old, into custody.  The younger sister was examined by Dr. Jambura who determined there was evidence that was "strongly suggestive of sexual abuse with vaginal contact, occurring approximately two or three days prior to the examination."53

Wright and Giles were tried together.  Due to the age of the younger sister, she was found by the court to be unable to communicate with the jury.  During the trial, the court allowed statements made by the younger sister to Dr. Jambura to be admitted under Idaho's residual hearsay exception, which allowed statements made by a declarant to be admitted even if the declarant is available, if the statement has "equivalent circumstantial guarantees of trustworthiness."54  The trial court allowed Dr. Jambura to testify as to what the younger sister had told him during her examination.  Over the objection of Wright and Giles, Dr. Jambura, in part, testified as follows after the prosecutor had asked about how he began his interview with the younger sister and her responses to what Dr. Jambura called "chitchat" questions:

A: She started to carry on a very relaxed animated conversation I then proceeded to just gently start asking questions about, "Well, how are things at home," you know, those sorts.  Gently moving into the domestic situation and then moved into four questions in particular, as I reflected in my records, "Do you play with daddy?  Does daddy play With you?  Does daddy touch you with his pee-pee?  Do you touch his pee-pee?"  And again we then established what was meant by peepee, it was a generic term for genital area.
A: When I asked her "Does daddy touch you with his pee-pee" she did admit to that.  When I asked "Do you touch his pee-pee," she did not have any response.
Q: Excuse me.  Did you notice any change in her affect or attitude in that line of questioning?
A: Yes.
A: She would not — oh, she did not talk any further about that.  She would not elucidate what exactly — what kind of touching was taking place ...  She did, however, say that daddy does do this with me, but he does it a lot with my sister than with me.
Q: And how did she offer that last statement?
A: That was a volunteered statement as I sat and waited for her to respond.55

Under cross-examination, Dr. Jambura admitted that a picture the younger child had drawn during the interview had been discarded and that he had "dictated notes to summarize the conversation, his notes were not detailed and did not record any changes in the child's affect or attitude."56

The Idaho Supreme Court reversed Wright's conviction as it related to sexual abuse of the younger sister on the grounds that the admission of Dr. Jambura's testimony as to what the younger child had told him was in violation of the Confrontation Clause because the testimony did not fall within a traditional exception to the hearsay rule and that the interview technique was inadequate to guarantee trustworthiness.57  The court found the hearsay evidence untrustworthy because the interview was not videotaped, the questions and answers were not open to independent review, and the questions used by Dr. Jambura were "blatantly leading" because Dr. Jambura had a "preconceived idea of what the child should be disclosing."58  The Idaho court noted that young children can be misled by leading questions and are open to suggestion, and concluded that the younger child's "statements lacked the particularized guarantees of trustworthiness necessary to satisfy the requirements of the Confrontation Clause and that therefore the trial court erred in admitting them."59

The United States Supreme Court affirmed the Idaho Supreme Court, with Justice O'Connor delivering the majority opinion.  Her opinion was joined by Justices Brennan, Marshall, Stevens and Scalia.  Justice Kennedy delivered a dissent, which was joined by the Chief Justice and Justices White and Blackmun.  The case was argued on April 18, 1990 and decided on June 27, 1990.

Justice O'Connor's opinion noted that the Confrontation Clause does not prohibit hearsay testimony in criminal trials, but the Confrontation Clause and the general rules of hearsay are not equals, for the Confrontation Clause "bars the admission of some evidence that would otherwise be admissible under exception to the hearsay rule."60  The court asserted that the Confrontation Clause operates in two ways in regard to issues of hearsay:61 first, the use of hearsay evidence must be necessary, and second, "once a witness is shown to be unavailable his 'statement is admissible only if it bears adequate indicia of reliability' ..."62  The court, citing Ohio v. Roberts (1980), held that necessity requires the state to prove the declarant is unavailable to testify in open court.63  The court stated that "indicia of reliability" can be "inferred without more ... where the evidence falls within a firmly rooted hearsay exception."64  Since the Idaho hearsay exception that allowed the statements of the younger daughter, a residual hearsay rule, is not a firmly rooted hearsay exception, the court held that the state must prove that the statement has a particularized guarantee of trustworthiness.

The court assumed, without deciding, that the younger sister was unavailable to testify as far as the meaning of the Confrontation Clause was concerned.65  The State of Idaho argued that the test for reliability is a totality of the circumstances of all the evidence produced at trial.  In other words, the state asserted that the younger sister's testimony should be judged by all the other evidence presented by the state in order to determine if the testimony of the child was reliable.

The court rejected this argument.  It agreed that a totality of the circumstances test is to be used to determine if the declaration had particularized guarantees of trustworthiness, but "we think the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief."66  The court noted that "if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross examination would be of marginal utility, then the hearsay rule does not bar admission of the statement at trial."67  The court explained that the exceptions to the hearsay rule are all based on circumstances that, on their own, establish trustworthiness of the statement and make them worthy of belief.

The court stated that the "particularized guarantees of trustworthiness" should likewise have circumstances that tend to prove the declaration is truthful and the declarant is worthy of belief.  Since those circumstances, as with firmly rooted hearsay exceptions, are based on the circumstances of the declaration alone, so should exceptions based on the "particularized guarantees of trustworthiness" standard.  It concluded that "unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement. "68

In regard to the declaration of the younger sister, the court did not agree with the Idaho court that the lack of procedural safeguards was key to the untrustworthiness of the declaration and held that the Confrontation Clause does not require fixed procedures in regard to admission of hearsay statements.69  The court noted that what was required was a showing that Dr. Jambura's testimony as to what the younger daughter said was true and that the evidence of the declaration could be considered truthful.70  It held that the circumstances of the interview by Dr. Jambura were such that the totality of the circumstances of the declaration were such that it could not be said that the declaration had particularized guarantees of trustworthiness to the point where cross examination would not add to the reliability of declarant.  This decision was based on the suggestive nature of the interview of the younger sister and the fact that Dr. Jambura had a predetermined idea of what the child should be declaring during the interview.  The court noted that, although "the spontaneity of the statement and change in demeanor suggest that the younger daughter was telling the truth when she made the statement, we note that it is possible that if there is evidence of prior interrogation, prompting, or manipulation by adults, spontaneity may be an inaccurate indicator of trustworthiness."71

Justice Kennedy dissented not to the determination that the declaration did not meet the particularized guarantees of trustworthiness standard but with the court's rule that the totality of the circumstances test to determine if the standard is met only includes the circumstances of the declaration and not other evidence presented at trial.72  He asserted that it "is a matter of common sense for most people that one of the best ways to determine whether what someone says is trustworthy is to see if it is corroborated by other evidence."73

The point Justice Kennedy misses is that hearsay evidence is the exception to the rule, that only in-court testimony can be used against a defendant in the first place, and declarations that are not rooted within a firmly rooted hearsay rule are exceptions to an exception.  The majority was correct when it held that a declaration that is not a firmly rooted hearsay exception must be shown to be at least equal in trustworthiness to a firmly rooted exception.

Firmly established exceptions are based on the totality of circumstances of the declaration itself and not all other evidence of a criminal trial.  Therefore, only the totality of circumstances surrounding a declaration that is not firmly rooted in hearsay should be considered in determining whether the statements have met the standard of showing "particularized guarantees of trustworthiness" such that "the test of cross-examination would be of marginal utility" and would add little to the issue of whether the declaration was reliable.

B. White v. Illinois (1992): Hearsay II: Unavailability and Firmly Rooted Hearsay

In White v. Illinois74 the court was presented with the issue of whether the statements of a child victim of sexual assault who did not testify at trial could be admitted under two firmly established hearsay exceptions without the state either producing the child or having to show that the child was being declared unavailable.  The case was argued on November 5, 1991 and decided on January 15, 1992.

Randall White was convicted of aggravated criminal sexual assault, residential burglary and unlawful restraint of a four-year-old girl.  On April 16, 1988, the child, S.G., screamed and awoke her babysitter, Tony DeVore.  DeVore went to investigate S.G.'s scream and saw White leaving S.G.'s bedroom and leave the house.  DeVore asked S.G. what happened and she told him that White had "put his hand over her mouth, choked her, threatened to whip her if she screamed and touched her in the wrong places."75  DeVore asked her where she had been touched and she pointed to her vagina.  Tammy Grigsby, S.G.'s mother, returned home about 30 minutes later and upon questioning her daughter as to what happened, she repeated the claims she had made to DeVore.  Grigsby noticed that S.G. had bruises and red marks on her neck.76  Grigsby called the police who arrived about 45 minutes after S.G. screamed.  S.G. repeated her claims to police officer Terry Lewis.77  After Lewis finished his interview with S.G., the child was taken to the hospital and was examined by Cheryl Reents, an emergency room nurse, and Dr. Michael Meinzen.  S.G. arrived at the hospital about four hours after she had screamed.78  S.G. told both Reents and Meinzen the same thing she had said before.

S.G. did not testify at White's trial, but DeVore, Grigsby, Lewis, Reents and Meinzen all testified as to what S. G. told them.  White objected to their testimony on the grounds that their testimony was hearsay.  The court overruled the objections and held that the Confrontation Clause does not require that the declarant be either produced in court or found unavailable before a hearsay exception declaration can be introduced.  The Illinois Appellate Court affirmed, holding that the statements of S.G. were hearsay statements allowed by the "spontaneous declaration" and the "medical examination" exceptions to the hearsay rule and the Confrontation Clause does not require the state to produce a declarant or prove unavailability to introduce hearsay evidence.

The United States Supreme Court decision was delivered by Chief Justice Rehnquist and was joined by Justices White, Blackmun, Stevens, O'Connor, Kennedy and Souter.  Justice Thomas, joined by Justice Scalia concurred in part and in the judgment.79

The court held that White misinterpreted the two cases, United States v. Inadi (1986)80 and Ohio v. Roberts (l980),81 relied upon for the assertion that a hearsay statement can not be introduced until the state either produces the witness or proves that the witness is unavailable.  It held that "Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding" and in Inadi we rejected the proposition that Roberts established a rule that no out-of-court statement would be admissible without a showing of unavailability. "82  The court noted that in Inadi, the contention that the unavailability requirement established in Roberts applied to all out-of-court statements was rejected.83

The court noted that the testimony regarding the statements of S.G. were made within firmly rooted hearsay exceptions and "where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied."84  The court agreed that the statements of S.G. were made within the confines of the "spontaneous declaration" and "medical examination," hearsay exceptions.  Since such hearsay exceptions are firmly rooted and being such "the out-of-court statements admitted in this case had substantial probative value, value that could not be duplicated simply by the declarant later testifying in court."85

C. State v. Michaels (1994): Taint Hearings: Reliability not Credibility

In State v. Michaels,86 the New Jersey Supreme Court was presented with the issue of "whether the interview techniques use by the state ... were so coercive or suggestive that they had a capacity to distort substantially the children's recollections of actual events and thus compromise the reliability of the children's statements and testimony "87 as to require a pretrial taint hearing to determine if the testimony is reliable enough to be presented to a fact finder.  The court explained that the issue of interviewing techniques is important because the fact that:

[A]n investigatory interview of a young child can be coercive or suggestive and thus shape the child's responses is generally accepted.  If a child's recollection of events has been molded by an interrogation, that influence undermines the reliability of the child's responses as an accurate recollection of actual events.88

The significance of reliability of evidence in a criminal trial lies in its usefulness to the finder of fact who will draw the ultimate conclusions of guilt or innocence.  Reliability is the linchpin in determining admissibility of evidence and if "crucial inculpatory evidence is alleged to have been derived from unreliable sources due process interests are at risk."89

The case was argued on January 31, 1994 and decided on June 23, 1994.  The decision was written by Justice Handler and joined by Chief Justice Wilenty and Justices Clifford, Pollock, O'Hern, Garibaldi and Stein.

On June 6, 1985 Margaret Kelly Michaels was charged with three counts sexual abuse of three boys at the Wee Care Day Nursery (Wee Care), where Michaels was employed.90  Michaels was hired by Wee Care in September 1984 as a preschool teacher's aide and in October was promoted to a nursery room/nap teacher and she remained in that position until she resigned on April 26, 1985.91  According to the state, parents began to notice behavior changes in their children between October 8, 1994 and April 26, 1985 — the period in which Michaels was a nursery room/nap teacher.

On April 26, 1985 one small boy in Michaels' class was being examined by a nurse due to some spots his mother found on his body, and while the nurse took the child's temperature rectally the child said "this is what my teacher does to me at nap time at school."92  The child told the nurse that Michaels was the person who took his temperature at school.  He added that Michaels undressed him and took his temperature daily.  The child, under questioning by his mother, also noted that Michaels had done the same thing to another child.  The boy's mother contacted the New Jersey Division of Youth and Family Services and the director of Wee Care in regard to her son's allegations.  On May 1, 1985 the Essex County Prosecutor's Office took over the investigation.93

The prosecutor's office interviewed various children and their parents and concluded their investigation on May 8, 1985 and pressed charges against Michaels on June 6, 1985.  In addition to the three counts in June, an indictment was returned on July 30, 1985 for 174 counts of sexual assault.  An additional 55 counts were secured on November 21, 1985.  Before trial, the state dropped 72 counts and an additional 32 counts were dropped during the trial and the jury found Michaels guilty of 115 of the remaining charges.  Michaels was sentenced to 47 years imprisonment with 14 years of parole ineligibility.94

The Appellate Division reversed the conviction and remanded the case for retrial95 and ordered that if the state sought to try Michaels again, the trial court must hold a pretrial hearing to determine if the interview techniques used by the investigators were such that the testimony of the children was made unreliable.96  The state filed for certification to the New Jersey Supreme Court for review and the court rejected the application with the exception of reviewing the Appellate Division's decision that a pretrial hearing was required before a second trial could occur.  The Appellate Division had reversed the conviction on the grounds that the techniques used by the investigators created "unreliable perceptions and memories in the minds of the children.  Since their testimony was the result of improper questioning, the introduction of these statements made the trial unfair and reversible.97

The New Jersey Supreme Court agreed.  The court noted that "children generate special concerns because of their ... impressionability and our laws have recognized ... those concerns, particularly in the area of child sexual abuse."98  After noting that children, as a class, are not viewed as inherently suspect witnesses and that age per se does not render a child incompetent to testify in judicial hearings,99 the court noted that the literature in the field of child abuse interviewing is generally agreed on what factors can undermine an investigation of child sexual abuse.  The court noted the following factors:100

1. Undue suggestiveness in questioning;
2. Lack of investigatory independence;
3. The interviewer having a preconceived notion of what the child should be disclosing or what happened to the child;
4. Use of leading questions;
5. Lack of control of outside influences on the child's statements;
6. Use of incessantly repeated questions;
7. The vilification or criticism of the person charged;
8. Subtle transmission of information through the interviewer's tone of voice;
9. Use of positive and negative reinforcement to answers by the children;
10. Use of peer pressure;
11. Prompting of allegations by investigators;
12. Nonrecording of initial interviews and destruction of interview notes;
13. Use of mild threats, rewards and bribes for "truthful" answers;
14. Lack of spontaneous recall or assertion of abuse; and
15. Use of multiple interviewers.

The court asserted that the literature makes clear that use of these techniques can cause modification of memory or creation of memories that become as real to the child as any other.  The damage that these techniques cause cannot be rectified by cross examination because the child will come to believe that the memories are true, thus credibility or possible deceit is not the issue.

The court agreed with the Appellate Division that most, if not all, of these invalidating factors occurred in the investigation leading to the conviction of Michaels101 and concluded:

[W]e note that the kind of practices used here — the absence of spontaneous recall, interviewer bias, repeated leading questioning, vilification of the defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes and cajoling, as well as the failure to videotape or otherwise document the initial interview sessions — constitute more than sufficient evidence to support a finding that the interrogations created a substantial risk that the statements and anticipated testimony are unreliable, and therefore justify a taint hearing.102

The court noted that, in a taint hearing, once the defendant makes a showing of "some evidence" that the "statements were the product of suggestive or coercive interview techniques ... the burden shall shift to the state to prove the reliability of the proffered statements and testimony by clear and convincing evidence."103  The court noted that in a taint hearing the state can attempt to meet its burden by either proving (1) "that the investigatory procedures employed in a case did not have the effect of tainting an individual child's recollection of an event" or (2) that "the reliability of the child's statements or testimony [is supported by] independent indicia or reliability"104 by the showing that the reliability of the testimony outweighs any corrupting effect of the interviewing techniques.

The court further explained that in a taint hearing the focus of the assessment of whether the testimony of the child is reliable in the light of questionable interview techniques is on the totality of the circumstances of the interviews and the statements.  The court also stipulated that in taint hearings, expert testimony can be secured by the defense and the state to provide assessment and opinion of the techniques used during interviews, but the experts were precluded from giving opinions as to the credibility of the child witness.


Psychological Evidence: Amicus Curiae Briefs in Kentucky v. Stincer,105 Maryland v. Craig,106 and New Jersey v. Michaels107

A. Two American Psychological Association Briefs

In 1987 the American Psychological Association (APA) submitted an Amicus Curiae to the U.S. Supreme court in the case of Kentucky v. Stincer asserting that the "scientific data regarding the effects on child victims of sexual abuse of confronting their alleged abusers in the court room are sparse and inconclusive."108  Three years later in Maryland v. Craig the APA submitted another brief to the U.S. Supreme Court asserting 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."109  (See Appendix One for a point by point comparison between the Stincer and Craig briefs).

The main support in the APA brief in Craig for the proposition that "the evidence is much stronger than it was in January 1987, when APA submitted its amicus brief in Kentucky v. Stincer"'110 is the work by Dr. Gail S. Goodman.  Most of the work cited that postdates the Stincer brief was by Dr. Goodman who also was one of the authors of the Craig brief.  It is debatable whether seven articles and reports constitute a major shift of knowledge in a field of child psychology,111 but the use of one study as the basis of an entire argument that children as a class may suffer from psychological trauma is not.  One unpublished study cannot support the assertion that children are more prone than adults to suffer extra trauma when testifying in court.112

The APA brief in Stincer acknowledged that other factors can cause fear in a child witness other than the presence of the defendant.  It noted that the reactions of parents, the support a child receives, and how the criminal justice system is presented and explained to the child can be a major cause of the child's fear and trauma.  But the scientific knowledge on this issue is incomplete.  Nevertheless, in Craig, the APA asserted that "research shows that the most frequent fear expressed by children awaiting testimony is fear of facing the defendant."113

The APA Craig brief noted that factors such as time spent waiting in legal proceedings and lack of cognitive sophistication of younger children can cause stress to the child witness in a confrontation situation.  Assuming the cognitive abilities of younger children make them more prone to stress in dealing with the judicial system as opposed to older children and adults, that is an issue of preparing a child and explaining to a child what the judicial system is — not an issue of fear caused by seeing the defendant in court.

Both APA briefs noted that ambiguity can cause anxiety in children and that the lack of understanding of the judicial system can increase stress, but the APA in Stincer noted that the anxiety may be caused more by children thinking about what is happening "in courtrooms from which they are excluded than by what they would experience if they were direct participants in the process."114  The Stincer brief acknowledged that, because of their immature cognitive abilities, younger children can have difficulties in dealing with the judicial process, especially when there are repeated questions by investigators and multiple court appearances, but noted that "little scientific data has been gathered on this point. "115  The APA in Craig, however, reported that when "the emotional well-being of children who testified in criminal court is compared to that of a matched group of children who were also involved as alleged victims [of child sexual abuse] but did not have to testify, children who testified evidenced significantly greater distress 7 months post-testimony as well as after the final disposition of their cases."116  But the source for this claim is Goodman's study alone.

In addition, the APA Craig brief itself notes that the Goodman "study was conducted through observation of criminal trials in three Colorado counties and interviews of child witnesses and their parents. Care must be taken, of course, in generalizing from this study to courts in other jurisdictions ..."117  I maintain that the APA statement in the Stincer brief that "little scientific data has been gathered" on the issue of how younger children deal with the social factors and circumstances involved in participation in the criminal justice system has not changed and is not rebutted by the APA brief in Craig.

I agree with the brief submitted by the Institute for Psychological Therapies118 that the APA Craig brief does not offer enough credible evidence to assert that serious emotional trauma can occur in children, as a class, who are victims of sexual abuse, who are forced to confront the defendant in open court face to face.  I also agree that the APA brief in Stincer, as noted in the Institute for Psychological Therapies' brief, is the "most accurate rendering of credible scientific evidence" as to whether children as a class are more prone to suffering emotional trauma due to face-to-face confrontation with their alleged abusers in court.  The Craig and Stincer briefs both noted that a case-by-case assessment of the child's needs should be done to ascertain if a confrontation with the accused would result in additional trauma or stress to such a degree that special procedures need to be used to allow the child to testify out of sight of the defendant.

B. Suggestibility and Interviewing: The Committee of Concerned Social Scientists Amicus Brief in State v. Michaels

The issue of suggestibility of young children was the main issue in State v. Michaels.  The New Jersey Supreme Court agreed with the appellate court that the interviewing techniques used by the state were fundamentally unfair and reversed Michael's conviction on that basis.  An amicus brief filed in the case was written by Maggie Bruck and Stephen Ceci and signed by the Committee of Concerned Social Scientists, a group of 45 social scientists, psychological researchers, and scholars.  The brief reviewed the literature on suggestibility of children and discussed how improper interviewing techniques can not only make testimony of children unreliable, but can create false memories.  The brief noted that the interviewing techniques used by the state were such that there was a "high risk of contaminating [the] young children's reports ... in the Wee Care case."119

The brief focused on factors that can influence what a child will say during an interview and noted that if precautions are not taken, the results of the interview can be unreliable.  It stated that in a variety of conditions, young children are more suggestible than adults with preschoolers being more vulnerable than any other age group."120  The brief also noted that "no longer do older maxims hold that when children are inaccurate in their reporting about such events it is because they make errors of omission ... rather than errors of commission ...  The newer research indicates that under certain conditions, young children also make errors of commission about personally experienced events involving their own bodies."121

It must be stressed that errors of commission do not mean a child is lying, because the child may be saying something he or she believes happened.  Although the statements are false, the child believes the memory is true, thus the child can be said to be testifying truthfully.  This is where reliability comes in.  In the taint hearing, the issue is not the credibility of the child, but is the reliability of the memory that the child will relay in court.  The question is whether the memory originated in the child due to an actual event or whether suggestive questioning convinced the child that the event occurred.  The origin of the memory and how the child's statements were obtained by investigators is the focus of the hearing.

The brief noted the following factors that can effect a report of abuse by a child:

1.  Interviewer bias;
2. Repeated questions;
3. Repeated misinformation across interviews;

Emotional tone of the interview (use of implicit or explicit threats, bribes and rewards);

5. Peer pressure or interaction between peers;
6. Interviews by adults with high status;
7. Use of stereotype inducement;
8. Use of anatomically detailed dolls; and
9. Source attribution errors

1. Interviewer Bias

Interview bias occurs when the interviewer "blindly pursues a single hypothesis that sexual abuse occurred.  In such interviews, the interviewer typically fails to rule out rival hypotheses that might explain the behavior of the child.  As a result, the interviewer often concludes that the child was sexually abused."122  This was the factor that caused the Idaho Supreme Court and the U.S. Supreme Court to reverse the conviction in the Wright case.  The bias of Dr. Jambura and his preconceived notion of what the child was to be disclosing made the declaration of the child suspect.  Interviewer bias is closely related to the other factors listed above123 in that the child, especially a small child, is likely to pick up on what the adult wants to hear.  The child may then incorporate these ideas into a memory and answer in the way that he or she perceives will please the interviewer.

2. Repeated Questions

The brief noted that a "number of studies have shown that asking children the same question repeatedly within an interview and across interviews, especially a yes/no question, often results in the child changing her answer. Preschoolers are particularly vulnerable to these effects."124  The reason for this is not surprising.  If an adult asks a question a second or third time, the child may conclude that: (1) the first answer must have been wrong, that is why the question is being repeated; (2) the adult did not like the first answer so a different answer should be given; or (3) the question has X fact in it, so that must be what the adult wants to hear.  The result is that the child answers to please the adult. The child's logic will be confirmed if the repeated question is no longer asked.

3. Repeated Misinformation Across Interviews

The brief noted that, when incorrect information is given, either directly or in suggestive questions, children can incorporate the misinformation into their memories and recall it as if it were based on true memories.  The brief noted an example of a study in which a group of five-year-old children were examined by a male doctor who gave them an oral polio vaccine and inoculation.125  During the visit, a female research assistant spoke to the children about a picture on the wall, read each child a story, and gave each some candy.  A year later the children were reinterviewed four times over a period of one month.  During these interviews, half of the children were given suggestive misinformation that the doctor showed them the picture on the wall, read them the story, and gave them the candy and the research assistant gave the vaccinations.  The other half was not given any information though suggestive interview techniques.

During the final interview, when asked to recall what happened during the original medical visit, children who were not given any misleading information were highly accurate in their final reports.  In contrast, the misled children were very inaccurate; not only did they incorporate the misleading suggestions into their reports, with more than half the children falling sway to these suggestions (e.g., claiming that the female assistant inoculated them rather the pediatrician), but 45% of these children also included non-suggested but inaccurate events in their reports by falsely reporting that the research assistant had checked their ears and nose.  None of the control children made such inaccurate reports.126

This study indicates that repeated misinformation can not only cause children to incorporate the information into a false memory, but "when suggestions are implanted and incorporated, young children use these in highly productive ways to reconstruct and distort reality ...  [Thus] repeated suggestive interviews could have the effect of increasing and cementing false reports."127

4. The Emotional Tone of the Interviewer

The brief noted that children "are quick to pick up on the emotional tones in an interview and to act accordingly [because] much information ... can be conveyed in the emotional tone, including implicit or explicit threats, bribes and rewards" 128 that the child will receive if certain questions by the interviewer are answered one way as opposed to another.  When the interviewer uses an accusatory tone, either against the defendant or the child, the child picks up this tone and "children ... are likely to fabricate reports of past events in cases when they have no memory of any event occurring."129  Children can pick up tone and expressions of approval or disapproval in adults and can adapt to those emotional cues to receive positive emotional feedback.130  This method of use of tone to shape a child's response has been called "successive approximation," which is the "reinforcing or rewarding the child (through smiles, hugs, or statements like 'good girl ... don't you feel better now ..  that's the way') for statements leading up to and finally including those the interviewer wants to hear. "131

5. Peer Pressure or Interaction Between Children

Although the "effects of letting children know that their friends have 'already told' [about the abuse] is a much less investigated area in the field of children's testimonial research ... suggestions or misleading information may also be planted by peers."132  Children, as do adults, tend to follow and do not like to be on the "outside looking in" about an event that has happened to their peers.  Thus children are open to influence by what they are told by their peers about an event so they can feel included.  The brief described a study133 of children who were in a playground when a sniper fired repeatedly into the playground.  Later, when the children were asked to give free recall of the event, some of the children who were not present during the sniper attack provided stories of seeing bodies or being on the playground.  These children had been in contact with those who did observe the attack and the brief noted that a possible explanation is that "children heard about the event from their peers who were present ... and they incorporated these reports into their own memories."134

The brief noted how investigators in the Wee Care case used peer pressure to get statements out of the children:135

All the other friends I talked to told me everything that happened ...  And now it's your turn to tell.  You don't want to be left out, do you?

Boy, I'd hate having to tell your friends that you didn't want to help them.

Oh, come on, we talked to a few of your buddies.  We talked to everybody now.  Any everyone told me about the nap room ... and everything.  Nothing surprises me anymore.

There's a couple of things I'd like to let you know before we start.  AIright?  That is, Kelly said a lot of things to scare kids and I think she might have said them to you too ...

Kelly was saying a lot of scary things to everybody because she knew that if she was going to get caught that she was going to be in a lot of trouble.  Kelly got caught and she is in a lot of trouble ...hanks to kids like you and all of your friends who told us the truth of the whole story.

And all the other friends I talked to told me everything that happened. ...  And now it's your turn to tell me.  You don't want to be left out, do you?

In addition to such questions by investigators, parents "also told their children that they had been named as victims by other children. [One child] disclosed to his mother after she had told him that others had mentioned him as a participant. The above evidence suggests that this strategy may co-opt children into making false reports."136

6. The Effects of Being Interviewed by Adults with High Status

The status of a person conducting the interview is closely related to the effect of interviewer bias, the emotional tone of the interviewer, and repeated questions.  Children know, intuitively, when they are being spoken to by a person of authority and position.  Thus a child is prone to answering questions in a way that will please the questioner.  Children pick up on the interviewer's status, tone of voice after an answer is given, and the repeated questions and determine what will please the person in authority over them.  The brief explained:

Young children are sensitive to the status and power of their interviewers.  As a result they are especially likely to comply with the implicit and explicit agenda of such interviewers.  If their account is questioned ... children may defer to the challenges of the more senior interviewer.  [I]t is this power differential and its recognition by the child that is one of the most important explanations for children's suggestibility.  Children are more likely ... to go along with the wishes of adults, and to incorporate adult's beliefs into their reports.137

7. The Effects of Stereotype Inducement

Suggestions do not have to be in the form of misleading suggestive questions.  If a child is repeatedly told "that a person 'does bad things,' then the child may begin to incorporate this belief into his or her reports.  [S]tereotype induction can have a very powerful effect on children's subsequent reports."138  The brief describes two studies that illustrate thisprocess.139  In both studies, the children's later responses were affected by the negative information they had been given about a person.  Not only did many children answer direct questions incorrectly, many of them embellished their responses.  Some children even insisted that they saw a person do things that never happened.

As examples noted above140 show, the Wee Care interviews are rife with examples of stereotype induction.  The interviewers explicitly repeated in various interviews that Kelly was bad.  [T]he investigator told 15 of the 34 interviewed children that Kelly was in jail because she had done bad things."141  The brief concluded that it is difficult to determine if statements by children that Kelly did bad things "reflect the fact that Kelly actually did bad things or whether these reports reflect the children's adoption of the interviewers' suggested stereotypes of Kelly."142

8. The Use of Anatomically-Detailed Dolls

The brief noted that there are two main rationales for the use of anatomically-detailed dolls.  First, the dolls "allow children to manipulate objects reminiscent of a critical event, thereby cuing recall and overcoming language and memory problems."143  Second, "their use is thought to overcome motivational problems of embarrassment and shyness."144  It is claimed that "if a child actively avoids these dolls, shows distress if they are undressed, or shows unusual preoccupation with their genitalia, this is consistent with the hypothesis that the child has been abused."145

But the anatomical dolls are controversial and their use has been met with skepticism and criticism in the scientific community.  The brief notes that there are two main reasons why anatomically detailed dolls should not be used in child sexual abuse interviews.  First, "the dolls are suggestive, that they encourage the child to engage in sexual play even if the child has not been sexually abused.  A child, for instance, may insert a finger into a doll's genitalia simply because of its novelty or 'affordance,' much the same way a child may insert a finger into the hole of a doughnut."146  In other words, a child may stick his or finger or some other object into the doll "for the same reasons they would insert a finger into the hole of a doughnut; it is there, it is something to manipulate."147  The second reason for skepticism is that "it is impossible to make firm judgments about children's abuse status on the basis of their doll play because there are no normative data on non-abused children's doll play."148  A third reason is that "these dolls ... are not anatomically correct.  The genitals of these dolls are disproportionately large.  It appears that the makers of these dolls are deliberately trying to draw the attention of the small children using [the dolls] by making the genitals so prominent.149

The brief reviewed some of the literature150 on how children react to interviews when the interviewer used these dolls and the accuracy of the answers children gave based on the use of the dolls.  To summarize, the brief noted:

1. Reviews of the literature indicate that many of the studies are methodologically inadequate and do not allow for firm interpretations about the potential usefulness or risks of using dolls.
2. Some of the play patterns thought to be characteristic of abused children, such as playing with the dolls in a suggestive or explicit sexual manner, or showing reticence or avoidance when presented with the dolls, also occur in samples of non-abused children.
3. Younger children (0-4 years old) may not have the cognitive sophistication to use a doll to represent their own experiences.
4. Some children may reject the idea that the doll represents them for reasons other than abuse.
5. Younger children are more prone to inaccurate reporting and suggestion of genital contact through the use of dolls than older children (5-7 years old).
6. "Sexualized" play of younger children can be caused by (1) the questions and props used during an examination and/or (2) normal play of children with dolls with openings in them rather than the sexual knowledge and experience of the child.
7. Anatomically-detailed dolls may serve as a nonverbal suggestive device which promotes subsequent sexualized play and sexualized verbalizations, none of which are accurate indicators of past abuse.

In regard to young children's reactions and play with these dolls it has been noted that:

Some child care professionals are offering [these dolls] to children as play material, hoping to form conclusions about possible abuse from the content of the play.  This is a very questionable technique.  Many persons working in the child protection field are untrained in play theory and do not know about the projection-evoking proprieties of toys.  The result has been material produced by children in this manner can appear to confirm suspicions of sexual abuse when it may actually be no more than a normal reaction of a child to the dolls and the situation.151

The brief noted that in the Wee Care case "anatomically detailed dolls were shown to the children before they said anything about abuse in 24 of the 39 interviews."152  Even assuming that these dolls can be valid indicators of sexual abuse, their use before the child has disclosed or even hinted at being a victim of abuse introduces issues of suggestiveness that can void any results with the dolls.  The brief gave examples of interviewers naming the dolls Kelly, berating the dolls for hurting the children after they were named Kelly, and how simulations with the dolls where fantasy content was given to the child who was then asked to finish the fantasy story started by the interviewer.153

9. Source Attribution Errors

A source attribution error refers to the errors made in identifying the sources of memories, that is, separating events that occurred in reality from those that were only imagined or talked about, or connecting the correct source of a memory to a stated memory.  Children have more difficulty than adults in this area.  The brief noted that one study154 concluded "suggestibility effects reflect young children's susceptibility to serious memory errors, namely the tendency to believe they remembered seeing details that were only suggested to them."155  The brief noted that there are no data on the issue of how source attribution and suggestibility in sexual abuse interviews affects children's reports, but studies156 that have been done provide "a theoretical and empirical framework for suspecting that [repeated questions about abuse and subtle suggestions that abuse did occur] could lead to significant source misattributions."157

C. Suggestive Interviews and the Taint Hearing

As noted above, credibility and reliability are not the same thing.158  The way the reliability of a child's account can be compromised by suggestive questioning is illustrated by a study by Ceci and his colleagues often referred to as the "Mousetrap Study."159  One child, who developed a false account of having his finger caught in a mousetrap could not be debriefed at the end of the study — the false memory was apparently too real.  This child, as were others in the experiment, constructed complete, detailed, and logical false stories as a result of repeated questioning.  Had his story been about sexual abuse, from his point of view he was telling the truth — thus credibility would not be the point at trial.  He would believe what he was saying was true and would not be lying, even if the story was false.  Reliability becomes an issue in determining how this story was created in his mind.  If the story is the result of suggestion, it has no place in a trial because the falsity of the story could not be addressed by cross examination.  The attorney could not show falsity if the child believed he was telling the truth.  This is why taint hearings, as required in Michaels, are important.  If suggestions or one of the other nine factors discussed is the source of the memory, the truthfulness of the child is not the point, but the falsity of the memory and its origin is.

It is not being claimed or implied that children's memories cannot be trusted. The brief notes there are various studies showing "that children are not suggestible, or that they are no more suggestible than adults."160  But "studies that emphasize the strengths of young children's memories do not contain the same types of suggestive interviewing procedures as described above."161  In these studies (1) the interviewer uses a neutral tone, (2) exhibits limited use of leading questions and (3) has an absence "of the induction of any motive for the child to make a false report."162  "When such conditions are present, it is common (although not a universal) finding that children are much more immune to suggestive influences, particularly about sexual details."163  The studies that emphasize the strength in children's memories support the following generalizations:164

1. Children do occasionally make spontaneous, strange and unfounded allegations.
2. Interviews by nonbiased, neutral interviewers conducted with limited leading questions with the absence of threats, bribes, rewards and peer pressure produce reports that are less tainted with risk and more reliable.
3. Interviewers should use open-ended questions allowing the child to answer in the narrative rather than yes or no.
4. Children should be encouraged to say as much as they can in their own words.
5. General questions to prompt recall should be used at the beginning.
6. General questions should be followed by specific, but not leading, questions to get the child to elaborate on the previous description.

The brief concluded that it is important for the interviewer to keep proper records on the process of the interviews.  If this shows that abuse was not suggested to the child, the report by the child and the interviewer will have much more reliability if the case goes to trial.



The Supreme Court has held the state cannot establish methods of separating a child witness from a defendant accused of sexually assaulting the child witness by assuming that all children need protection from face-to-face confrontation and children suffer trauma from in court face-to-face confrontation.  The court held that such a method was in violation to the Sixth Amendment Confrontation Clause (Coy v. Iowa, 1988).  But, the states can, without violation to the Confrontation Clause face-to-face presence requirement of the Sixth Amendment, use methods to separate a child who is an alleged victim of sexual assault from the defendant through the use of a one-way camera which prohibits the defendant from being in the same room as the child if the trial court determines that the state has made a showing of necessity (Craig v. Maryland, 1990).  The state must show that the child could not testify if he or she is in the physical presence of the defendant.  The state can meet this burden through the testimony of experts alone.  The trial court need not interview the child or view the child's demeanor in the presence of the defendant.

The state can introduce hearsay evidence of a child's declaration of sexual abuse and need not present the child in court or prove that the child is unavailable or declared incompetent.  The state can introduce hearsay evidence if the declaration was made either (a) under a firmly rooted hearsay exception (White v. Illinois, 1992) or (b) by a showing by the state that the hearsay statement, failing under a residual hearsay rule, has a particularized guarantee of trustworthiness (Idaho v. Wright, 1990).  In cases of the latter, the testimony is to be judged under a totality of the circumstances test but only those circumstances relating to the making of the declaration itself are to be considered.

The case law resulting from these cases was not supported by the entire court.  Justice Scalia has commented:

Because of this subordination of explicit constitutional text to currently favored public policy, the following scene can be played out in an American courtroom for the first time in two centuries: A father whose young daughter has been given over to the exclusive custody of his estranged wife, or a mother whose young son has been taken into custody by the State's child welfare department, is sentenced to prison for sexual abuse on the basis of testimony by a child the parent has not seen or spoken to for many months; and the guilty verdict is rendered without giving the parent so much as the opportunity to sit in the presence of the child, and to ask, personally or through counsel, 'it is really not true, is it, that I — your father (or mother) whom you see before you — did these terrible things?'  Perhaps that is a procedure today's society desires; perhaps (though I doubt it) is even a fair procedure; but it is assuredly not a procedure permitted by the Constitution.165

If one would think that Justice Scalia was being melodramatic, note the following letter:

I am so miserable, Dr. Smith, I need your help now.  As you know, I have told you how my mother and I don't like each other.  We fight and argue all the time.  But I have never told you why.  When I was little, six I think, I dearly loved my dad.  I think he and I were very close and did many things together.  I knew my mom and dad didn't get along but somehow things were all right between me and my parents.

Then one day, my mother told me my father was very sick and needed to go to a doctor to get well.  She told me I would have to say that my dad had hurt me by touching me [in] places that were nasty.  She said if I would say this dad would have treatment and get better and be a nicer dad to me and bring me more presents.

My mother rehearsed with me what I was to say and then took me to a doctor in another city and practiced with me again what I was to say and I said what she told me to say.

Later my mom said that Dad had to go to a hospital to get the help he needed, but when I was twelve I found out he was in prison because he had molested me.

Once I got to go see Dad in prison.  He told me he had written me many times, but Dr. Smith, I never received any of those letters.  I think Mom burned them.  Later Mom told me Dad was living in another state.

Just last night my mom and I got in a big fight and she told me Dad had committed suicide.  I feel so bad.  I'm to blame because I lied for my mom.  I hate her and myself.  I can't stand myself!  I can't wait to leave home when I get older.

Please help me Dr. Smith.

The next night Stephanie died from an overdose of her mother's sleeping medication.166

The point is not that children should be disbelieved or that child sexual assault should be taken lightly or that the courts should refuse to make some adjustments for child witnesses.  The point is that, as evidenced by Michaels, once an investigation of child abuse is carried out ineffectively, and suggestive and coercive interviewing techniques are used, the case can take on a life of its own.  The fact of innocence on the part of the accused can become irrelevant in the face of prosecutors and investigators seeking to get a conviction.

These four cases and the amicus brief submitted to the New Jersey Supreme Court (State v. Michaels, 1994) also provide practical examples of what not to do.  If investigators use open-ended questions and encourage a free narrative where the child tells what happened in his or her own words, use very few leading questions, watch the tone used in questioning, question the child as few times as possible, and do not panic groups of parents about mass sexual abuse in their children's school, declarations of abuse will have more reliability in criminal trials.  But first and foremost, investigators must not assume a child was sexually abused and then question the child to prove that hypothesis.  The Supreme court in Idaho v. Wright and the New Jersey Supreme Court in Michaels makes this clear.  A biased investigation with a biased interviewer, alone, can taint a case to the point of dismissal or reversal on appeal.  The goal is to investigate a claim of sexual assault, not prove it at all costs.  It should never be forgotten that the goal of the criminal trial is to convict the guilty and allow the innocent to go on his way.


Appendix One

* This article was presented at The First Annual New England Conference on Child Sexual Abuse, Burlington, Vermont, September 23, 1997.

Arthur Garrison is the President of The Foundation for Law and Equal Justice-Criminal Justice Research and Education Associates and a Senior Criminal Justice Planner for Research and Program Evaluation at the Delaware Criminal Justice Council in Wilmington, Delaware.  [top]

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