Defense Considerations in the Child as Witness in Allegations of Sexual Abuse.

Part I. Witnesses in General:
How We Measure Credibility

Louis Kiefer*

ABSTRACT: Although the false allegation of child sexual abuse does not always start with a child, the child becomes the key to unlocking the mystery of why the allegations are made, and what validity, if any, should be given to the statements made by a young child.  The following article is published in three parts: Part I deals with how we measure credibility.  The legal competency of the child witness and the manner by which a child learns through the interrogation process is discussed.  The conclusion is that children under age ten are incompetent and poor witnesses but attorneys should prepare carefully in these cases. Several practice tips are given.
  

The dogma of the child abuse industry is that children never lie about abuse.  According to Dr. Roland Summit, in a paper entitled, The Child Sexual Abuse Accommodation Syndrome, children do not fabricate the kinds of explicit manipulations they divulge in complaints or interrogations, and "... very few children, no more than two or three per thousand, have ever been found to exaggerate or to invent claims of sexual molestation."(1)

However, if a child recants, it is because they have been "manipulated" into telling something that is not true.  This, of course suggests that children do not lie about child abuse but will lie if they deny sexual abuse.  That means that all children can be pressured into telling a lie, but only to deny abuse.  This obviously is nonsense and, yet, this nonsense has become the dogma of mental health professionals who frequently investigate these matters.  The result is a Catch 22 situation for if a child says it didn't happen, it happened.(2)  This is consistent with another dogma of child abuse professionals.  Since some abusers deny being abusers, anyone who denies being an abuser is an abuser, as are those who admit to being abusers.  In fact, my experience shows that the more vehemently the client denies having abused, the stronger the presumption that he or she is guilty.

If children never lie about abuse, why is it that the figures show, as a minimum, 60 percent of all allegations are unsubstantiated and may be as high as 77 percent when associated with divorce and custody proceedings?(3,4)

If children never lie about abuse, why were over a hundred counts and all charges against five of seven defendants of the McMartin School dropped, and why were over a hundred counts and all charges against 24 of the 25 defendants dropped in Jordan, Minnesota?(5)

The following is testimony from a preliminary hearing in the McMartin Day School case, which is still pending in California.  The witness is eight years old.(6)

It begins with the judge qualifying the witness of the issue of competency:

"Good morning James," the judge greets him. "Can you hear me?"

"Yes."

"Do you promise that everything you tell will be the truth?"

"Yes."

"Miss Rubin (the prosecutor) is going to ask you some questions. Can you see me?"

"Yes."

"How old are you today?"

"Eight."

"Do you know the difference between telling the truth and a lie?"

"Yes."

"What is the difference?"

"Well. ..telling the truth is telling what happened and telling a lie is telling something that never happened."

"What would happen if you told a lie?"

"The judge would punish me."

"When we talk about telling the truth ... tell what you remember ... we don't want to know what other people told you happened."

The prosecutor begins: "When you were little, did you go to the McMartin School?"

"Yes."

"Did you go in the morning or the afternoon?"

"Morning."

"Did you ever stay in the afternoon?"

"Yes"(7)

"We were talking about places you went away from school, some houses.  Did you play games at these houses?"

"Yes."

"What games?"

"The Naked Movie Star."

"Who was there?"

"Ray and his friends."

"Ray and his friends were at the house.  Had you seen them before?"

"Yes, at the school."

"James, when you played Naked Movie Star, did anyone take any pictures?"

"Ray."

"Was there anything scary at these houses?"

"Yes."

"Tell me what."

"Ray would open this door in the floor and there would be lions."

"What did they do?"

"They would run around and roar.

"What did Ray tell you?"

"That the lions would jump up and get us if we told what happened."

"How was Ray dressed?"

"Well, there was this red ... Ray was dressed up as the devil and it was real scary."

"Wearing what?"

"A red coat, dressed up like the devil."

"More than one time?"

"Yes."

"At this house, did anybody touch you?"

"Yes."

"Who?"

"Ray and his friends."

"Did Ray put any part of his body inside you?"

"Yes."

"What parts?"

"His penis and his finger."

"Did you go anywhere else with him?"

"I don't remember."

"Do you know what a mortuary is?"

"Yes."

"What is a mortuary?"

"A place where dead people are taken to get ready for ..."

"Did you go to a mortuary with anyone from school?"

"Yes."

"Who?"

"Ray."

"Did you go in a car?"

"Yes."

"Was there anyone else?"

"Yes, his friends."

"Would you tell what you saw in the mortuary?"

"Well, he opened up some coffins and we saw some dead bodies"(8)

It should be noted that none of the children complained while enrolled at the school; and it was only after they were interviewed by therapists at the Children's Institute International were these claims made.(9)

One would think that a class trip to the local mortuary would have resulted in at least one child mentioning the event.  Nevertheless, law enforcement officials went to the school, attempted to dig up the floor to find where the lions were and when they couldn't find the underground room,(10) they brought in sonar equipment in an attempt to locate the underground tunnels.(11)  They failed to find the room, the tunnels and the lions.

Other children in that case have mentioned that they were molested by film actor Chuck Norris, (whom they had never met), and a Los Angeles City Attorney.  They claimed that they had been molested in a church by four nuns and a priest, all of whom were naked (query: how could they tell?) and that Ray took the other children to a cemetery where the children (preschool) were forced to dig up dead bodies and watch while the teachers hacked them to pieces with knives, and the bodies bled.  Other children told of having been molested in airplanes, in hot air balloons, in a supermarket, and in the walkway of a car wash.(12)

Using the above, I would like to discuss how children often come to say these things, and how to handle the child as a witness.

How does a trier of fact determine whether a person is telling the truth? Basically there are six criteria:(13)

(a) Internal consistency and consistency of accusation.

(b) External consistency with "known" facts, or with recognized laws of individual, social, sexual or physical behavior.

(c) Detail.

(d) Affect, demeanor when telling.

(e) Motive, bias, self interest.

(f) Reputation for truth and veracity.
  

Internal Consistency and Consistency of Accusation

Obviously, if a person tells various versions, they all cannot be correct and, therefore, many, if not all, will be considered to be incorrect.  Falsus in uno, falsus in omnibus.  Of all the rules for credibility, this one is the easiest to apply.  The purpose of cross examination is an attempt to elicit versions other than the one testified to in the case in chief.
  

Self-serving Hearsay and Constancy of Accusation:

The general rule is that you cannot allow a person to make declarations to others, then produce the others as witnesses.  Such evidence is considered hearsay, self serving and irrelevant, and should be objected to on those bases.  "The declarations of a party in his own favor are never evidence of the truth of what is declared, unless made so by statute."  Smith vs. Martin, 17 Conn. 399, 401 (1845).  "Generally speaking, the offer of evidence to corroborate the testimony of a party by proof of his previous statements to the same effect is properly excluded as hearsay" Baxter vs. Camp, 71 Conn. 245,252(1898), or self serving Pluhowsky vs. New Haven, 151 Conn. 337, 341, 342 (1964).  "Such prior statements are rejected as completely irrelevant.  The mere repetition of a story does not increase its probative value."  Crawford vs. Nilan 289 N.Y. 444, 46 N.E. 2d (1943).

There are several exceptions to the rule, such as res gestae, statements to physicians for treatments, and admissions.  Also, where the testimony has been assailed as a "recent fabrication," proof of prior consistent statements of the witness, made at a time when there was no motive to falsify, may be received in order to repel such imputation.  People vs. Katz, 209 N.Y. 311.

There appears to be a growing trend in this country to permit all witnesses who have been involved in the investigation to testify as to what the child said.  Sometimes this is allowed as to the "child's state of mind."  Thus, if the child has a state of mind that says she has been abused, then she was abused.  Of course, the best evidence of the state of mind is the child but the courts, attempting to make the "testifying trauma" less severe on the child, permits others to help out.  Furthermore, some judges honestly but erroneously believe that the testimony of other persons represents necessary corroboration.

Under the common law, when a person was charged with sexual assault, a traditional defense was to note the failure to make a prompt report to the police.  For example, the prostitute who waited until the check bounced was presumed not to have been raped because of the failure to have a fresh complaint.  Naturally, it was permissible to refute the conclusion that the person was not raped by showing that a report was made as soon as possible.  Thus, if a woman had been in coma for six months and her first words upon awakening were "I've been raped," this was presumed to be credible evidence that she had been raped, notwithstanding the long period of time.

There was another rule which existed at common law which was known as the consistency of accusation rule.  Thus, in paternity actions, when it was claimed that the mother had named several persons as the father of the child, it was permitted to bring in witnesses who heard the witness name one person.  This became the consistency of accusation rule, and even though the testimony was obviously self-serving, it was brought in to show that only one person (generally the person with the most money) was the father.  Before the other witnesses could testify in either the lack of fresh complaint claim, or the prior inconsistent accusation, there had to be a foundation, i.e., there had to be a claim by some competent testimony, that the allegations were either recently fabricated, or that there had been prior inconsistent accusations.

What we are now seeing is some sloppy evidentiary rulings which permit various persons to whom the tale was told to testify as to the truth of the tale.  There may be an attempt to produce this type of testimony and the attorney must be prepared to object.  This type of objection requires research and thought and should not he made off the cuff.

Thus, one state permits the proponent of the witnesses' testimony to bring in testimony of prior consistent statements as part of the case in chief, provided the victim of a sexual assault testifies.  It is not uncommon to produce testimony by the child victim, the parent or teacher to whom the incident was first reported, the social worker, and the therapist.  The Connecticut Supreme Court in State vs. Dabkowski, l99Conn. 193,506A.2d 118(1986), referred to the constancy of accusation doctrine "... admissible ... in order to corroborate" (the victim's testimony).  Taken one step further, the court has stated, "We have stated that where a sexual assault has been alleged, however, 'the trial court may presume ...' ... that the victim is impeached by a suggestion of recent contrivance."  State vs. Pollitt, 205 Conn. 61, 77 (1987).  In that case four witnesses to whom the victim complained testified that the complaint had been made along with the details of the complaint.  There had been no suggestion of "recent fabrication" inasmuch as the original complaint to the police was made as soon as the victim returned home.  Nevertheless, all were permitted to testify.  See also State vs. Daley, 11 Conn. App. 236 (1987).  In the Daley case, the teenager reported an assault the following day.  At the trial, the teacher, principal, social worker, and investigating police officer each repeated the child's alleged complaint.  The court pondered whether such testimony was substantive hearsay evidence or merely a prior consistent statement and relevant only as to credibility and then decided not to resolve that issue.  Thus, it becomes apparent that the general rule against the use of hearsay usually does not apply in child sexual abuse cases.  Self-serving hearsay statements are usually admitted to establish consistency of accusation and, in fact, becomes corroborative evidence.  It is the hope of this author that this rule be reevaluated.
  

External Consistency With "Known" Facts or with Laws of Individual, Social, Sexual, or Physical Behavior

The person who testifies that the water was running uphill, that the boy bicycled backwards down the hill, that the people were asleep at the bottom of the pool, that blood flowed from bodies buried in the cemetery; that the molestation occurred in a space ship, in a tree, in a closet (in a room which has no closets), on the floor of a supermarket, on the side of a busy public highway, in a gondola at Mt. Killington on a February Sunday afternoon, would not be believed by ordinary folk because such statements are inconsistent with known facts and with laws of physical, social, or sexual behavior.  Nevertheless, many children describe sexual situations which are believable only to persons who, one would think, have had no sexual or any other experiences of their own.  The statements should make the interviewer somewhat skeptical, but they do not.

The issue of "known facts" becomes a real problem when the investigator does not want to look at any facts.  It becomes a problem when the interviewer believes that it is unnecessary to talk to anyone other than the child.  Part of the dogma is that to be a good investigator/therapist you must be willing to "trust" and "believe" in the child.  Thus, the investigator/therapist, when confronted with descriptions of impossible events, suspends reasonable judgment and assumes, since children don't lie, that the incongruities result from the trauma of the event rather than the possibility that the event never took place.

Often a medical report indicates that "no evidence of sexual abuse was found," but, nevertheless, the findings are "consistent with sexual abuse."  Since the findings are consistent with no sexual abuse, they have absolutely no probative value.  Nevertheless, such statements frequently found in reports are intended to, and in fact, influence the trier of fact.
  

Detail

Those of us who heard John Dean testify at the Watergate hearings had to be impressed with the honesty of his testimony.  After all, it appeared that the amount of detail was such that it could not have been fabricated.  His story had internal consistency; his testimony was consistent with "known" facts and with laws of individual and social behavior.  Furthermore, he seemed to have no motive for telling anything which was not true; indeed, his coming clean was certainly a declaration against interest.  More than anything else, however, it was his attention to detail that made us believe the truth of which he spoke.  His statement was so specific that Senator Inouye, incredulously asked Dean, "Have you always had a facility for recalling the details of conversations which took place many months before?"(14)

Most of us believed that John Dean spoke the truth.  He didn't.  After the statements were compared to external facts, to wit: Tape recordings of the conversations, it became apparent that what John Dean reported was an inaccurate recollection — the meetings as he fantasied they had occurred.  Thus, the testimony reflected more wishful thinking than accurate recall.(15)

One of the techniques we use to judge credibility is the amount of detail.  The witness who "doesn't remember" frequently is not believed; the person who is quick to respond is believed.

We occasionally see the professional engineer who wants to be so precise that his delayed answers suggest evasiveness as opposed to the hysteric personality who, in one sentence, provides material for two hours of cross examination.
  

Affect, Demeanor When Telling

The psychologists call it affect, the Supreme Court calls it demeanor.  Nevertheless, it is the nonverbal clues which we think can help us to determine people who lie from people who tell the truth.  We, as are good liars, are taught to look the person in the eye in order to express sincerity.  Does this mean those people who do not look you in the eye are liars?  Of course not, but the presentation of the material is just one of the many clues to veracity.

Actors and actresses are able to "act" the part of a liar telling a lie; a truth teller telling the truth; the truth teller telling a truth to sound like a lie; and a liar telling a lie which sounds like the truth.  Since it is all fiction, obviously even the actor is lying even when telling the truth.

Some people lie better than other people tell the truth.  It is true with adults; it is true with children.

How do we expect children who have been abused to testify?  Does the child testify as we would expect a child who has been abused or one who is not abused?  The fact is that none of us knows what the proper affect should be.  If we don't know, it can be presumed that neither the judge nor the jury will have knowledge based on empirical studies and will rely on their subjective beliefs as to how a child who has been abused will act when testifying.  Thus, in preparing for trial, you must worry about two things: (1) What the child will say and how the child will say it and; (2) whether the manner be interpreted as consistent or inconsistent with one who has been abused.

I'm aware of two cases in which the affect of the child witness was the determining factor.

In one case, the young child took the stand holding a teddy bear.  She started to answer the leading questions of the prosecutor and basically said that her father had molested her.  She, incidentally, had not been able to see her father for over a year.  In the middle of her testimony, she suddenly spotted her father who was sitting quietly, holding an oversized stuffed rabbit in his lap.  She came running off the witness chair, yelling with glee, "Daddy, Daddy, I love you," and jumped into his lap, hugged and kissed him.  The jury acquitted the father because they believed that a child who had been molested would not show that kind of spontaneous affect.  Her affect was deemed more important than her words.  Remember, however, there is no empirical knowledge to show whether that conclusion is accurate.

The other case is one in which the affect of the child appeared to have been the main consideration which led to the conviction.

According to the lawyer who was representing Colleen Bennett: "... Amanda was about five at the time she testified, but relatively immature, not a very bright girl.  She testified — and she was rather bizarre in what she was saying — and they got her to say that she was touched, but it was kind of vague and didn't amount to anything.  At the end of her testimony, they had her start at one end (of the counsel table) and start identifying the defendants.  She looked at Gina Miller and she said, 'I don't know who that is.'  Then she looked at her grandmother and she said, 'That's grandma.'  Then she looked at her uncle, Wayne Dill.  She didn't recognize him either.  Then she got to Rick Pitts and when she could see Rick, I mean to tell you, that kid just cracked up!  She started yelling and screaming.  And I tell you, I've never seen anything like it before.  The kid just freaked.  And I do not believe it was phony.  The kid just shrieked.  It was as if she'd just seen her father killed and was all alone in the world.  She started running.  She grabbed the judge."   "... Up to that point, there was no evidence.  That incident was the strongest piece of evidence in the whole case.  Half the jury was in tears.  They cried for that kid"(16)

The attorney for Pitts described the scene: "And then she saw Rick and she went into hysterics and started screaming, 'Oh God!  It's Rick!  Help!  Help!'  The judge tried to get somebody to quiet her down.  She wouldn't go with the witness coordinator, she went running up to the judge, grabbed his robe, gasping and hyperventilating and said, 'Don't let him near me!  Don't let him kill me! ...'"

"That piece of testimony had more impact than anything else.  It was really disturbing because, up to that point, I didn't really care about her testimony.  She wasn't believable at all"(17)

Both attorneys stated that all witnesses prior to that time had confirmed that Amanda really liked Rick and had a good relationship with him.  They also feel that the therapists had instilled a fear into Amanda which had not been there before the therapy.
  

Motive, Bias, Self-interest

Why would a child lie about her father or mother if it weren't true?  It is so clearly against the child's interest that the child must be telling the truth.

While with younger children one can show that they are mistaken, it is almost impossible to convince the trier of the fact that the teenager has a motive to lie.  Without a motive for lying, it is likely that he or she will be believed.

Why would a teenager send her father to prison for 20 years; bankrupt him financially, destroy his happiness — if he were not guilty?  Why would a teenager falsely report a teacher, the result of which is the end of a career at the very least — merely because of a bad grade?, or because of an unreciprocated crush?

It is in this arena that the lawyer has the hardest time explaining to the jury or the judge an improper motive.

It is difficult to explain why the complaint is made in the first instance.  One Waterbury case seems to have started when the father "grounded" his daughter for eating a bag of potato chips and lying about it.  He is serving a 20-year sentence.  Having read the transcript, I am personally convinced the person is innocent (mainly because of both internal and external inconsistencies) except that there were two problems — a small injury to the hymen (which may have been self inflicted) and the lack of a credible motive — other than the potato chip problem, and that the girl was at constant war with her father and stepmother.  The inability to come up with a plausible motive was perhaps the overwhelming cause of conviction.

My theory as to why older children would lie about sexual abuse is one of a small lie getting out of hand.  The results were unforeseeable to the child at the time the false allegation first came to life.

Consequently, one should consider the motive for the little lie and attempt to learn how it goes wild.  Based upon general reading, it appears that the motives in the adolescent victim may include one or more of the following:

(a) Shift blame from a boyfriend.

(b) Get even, revenge, i.e., against a teacher for a bad grade, against a parent for perceived unreasonable punishment.

(c) Get attention — I guarantee you that there is no bigger hero or heroine among the mental health and police community than the child who claims sexual abuse.

(d) Imitation of movie scripts — A child who has watched a TV movie about incest or rape may identify with the heroine.  Check to see if such movies as, "The Trouble with Amanda," or "Kids Don't Tell" have been viewed by the alleged victim.

(e) Imitation of real accusations.  Adolescents are fad conscious, and if this becomes a fad, then other children may be prone to join the fad.  Consequently, do not discount, especially when a teacher is involved, that other teenagers want to get in on the action.  A child can become a real hero with her peers if she, too, can claim that she was the object of a teacher's affections.

(f) Psychotic delusional thinking — some children are simply out of touch with reality.

(g) Jealousy — the child is jealous of the attention given by a natural parent to a stepparent or a stepsibling.

(h) Take the heat off for doing poorly in school or for other behavior problems.  Once the false allegation is made, it is guaranteed that no one will mention the word "homework" again.

In any event, attorneys involved in this type of case must pay attention to the motive.  This requires an investigation of the child's mind, motivation, and methods.

Since the testimony of the adolescent is so clearly against the child's self-interest, there is an underlying presumption that the child is telling the truth.  The establishment of a bad motive becomes the chink in the armor of the detrimental effect of the principle of self-interest.
  

Reputation for Truth and Veracity

There was an episode in the TV series of All in the Family which shows how society will give certain witnesses more credibility than others.  Archie Bunker is being told by his attorney that the whiplash case is not valuable enough for the attorney to take it.  Archie doesn't understand.  "After all, it's my word against his."  The attorney responds: "Not exactly, there were some witnesses — a station wagon full of nuns."  Archie is told that, "you can't beat a station wagon full of nuns."

Here, again, we have a criminal rule and a civil rule.  The civil rule is that you cannot, in your case in chief, bring out evidence of character or reputation of a party.  Bosworth vs. Bosworth, 131 Conn. 389, 391,40 A.2d 86(1944), but may be produced as rebuttal testimony. Creer vs. Active Auto Exchange Inc., 99 Conn 266, 278, 279, 121 At 888 (1923).

The criminal rule permits the accused to put into issue his character or reputation in the community.  State vs. Penn 144 Conn. 148, 153, 127 A.2d 833.  When dealing with a teenage complainant, it may be necessary to bring in evidence of a bad reputation for truth and veracity.

If, early in the trial, evidence of a bad reputation for truth can be established, it may color the perception of the rest of the evidence.  Since all knowledge is layered upon prior knowledge, the first witness to testify may, if totally believed, set the stage for the trier of fact to (a) selectively perceive, i.e., listen, and (b) selectively remember. (18)

I am aware of two cases involving child abuse in which the defendants had airtight alibi defenses.  Nevertheless, they were convicted.  The only rational explanation is that the jury, after having heard the case in chief, simply did not pay attention to the defense.  If the seed of doubt as to veracity can be planted early as to reputation, perhaps the trier will keep an open mind as to any affirmative defense.  (This perhaps can be done in the preliminary examination as to competency).

Since in family matters we infrequently use evidence of reputation and character, this is one subject matter area that deserves serious consideration.
  

REFERENCES

(1) Eberle, The Politics of Child Abuse (Hardcover), p. 105, Lyle Stuart, Inc. (1986).  [Back]

(2) Id., p. 94  [Back]

(3) Child Abuse and Neglect Reporting and Investigation: Policy Guidelines for Decision Making, 10-8-87, Report of consensus-building process conducted under the auspices of the American Bar Association's National Legal Resource Center for Child Advocacy and Protection; the American Public Welfare Association and the American Enterprise Institute.  (Although the report was a "consensus," Professor Douglas Besharov indicates the real data showed 66 percent of all abuse cases are unfounded).  [Back]

(4) Dwyer, Guilty as Charged: Or are They?, Unpublished paper, University of Minnesota.  [Back]

(5) Eberle, Id. p. 90  [Back]

(6) Ibid. p. 185  [Back]

(7) Ibid. pp. 43, 52  [Back]

(8) Ibid. pp. 50, 52  [Back]

(9) Ibid. p. 52  [Back]

(10) Ibid. p. 54  [Back]

(11) Ibid. p. 66  [Back]

(12) Ibid. p.13  [Back]

(13) See gen. Nurcombe, The child as witness: Competency and credibility, Journal of the Academy of Child Psychiatry, 25. (4)473,447 (1986)  [Back]

(14) Goleman, Vital Lies, Simple Truths — The Psychology of Self-Deception (Paperback), pp. 93-95, Touchstone, (1985).  [Back]

(15) Ibid.  [Back]

(16) Eberle Id. pp. 224, 225  [Back]

(17) Ibid. p. 235  [Back]

(18) Goleman, Id. pp. 61-63  [Back]

* Louis Kiefer is an Attorney at Law and can be contacted at 60 Washington Street, Suite 1403, Hartford Connecticut, 06106.  [Back]

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