Trouble — Right Here in River City: What Happens When the Prosecutorial Urge
to Create Persuasive Video Evidence Contaminates the Child Interviewing Process
in Cases of Alleged Sexual Abuse
by Stephen Danforth
(Editor's Note: Mr. Danforth, an attorney, is currently
imprisoned in Minnesota after being convicted of child sexual abuse. He had
previously been convicted of child sexual abuse in Wisconsin. He readily
admitted his guilt in the Wisconsin case, was sentenced, served his time, and
was released. He does not deny that he abused the child in Wisconsin.
he stoutly maintains his innocence in the case in Minnesota. He believes his
past record greatly influenced the investigation and his trial, in which the
judge refused to admit his defense claims of biased investigation and
interrogation of children. This article reflects his legal training and
experience and his interest in interrogation techniques and child witnesses.
take no position on his guilt or innocence in the Minnesota conviction. However,
we consider his legal analysis of the issues raised for him by his conviction of
There is no doubt that sexual abuse of children occurs. There
is also no room for question that false accusations of child sexual abuse also
are regularly advanced. Some of these false accusations are retracted, and their
falsity admitted. However, this is not always the case.
Moreover, retractions are sometimes delayed for years, all
too often years during which the falsely accused is harshly imprisoned. Further, retractions are frequently disbelieved or ignored.
A retraction of an
earlier accusation of sexual abuse will not result in overturning of a conviction
of that crime without virtually unquestionable corroboration of the retraction.
The devastation wreaked by a false accusation is so complete that it essentially
destroys the wrongly accused's life.
There is at present no absolutely foolproof way to discern
false accusations of sexual abuse from true ones. DNA testing, for example,
applies only to cases where samples of "DNA material" are retrieved.
Obviously, in cases of completely fabricated accusations, no DNA material will
be found. Currently, deliberately concocted, false accusations are set back in
time, or include assertions of subsequent washing, etc., to excuse the lack of
DNA evidence. Thus, in most cases, sexual abuse trials come down to
word-against-word contests of conflicting testimony, at best.
There is no way to assess the comparative percentage of
sexual abuse accusations that are false, as opposed to the converse percentage
of such accusations that are true. However, it is widely acknowledged that, of
all crimes, accusations of sexual misconduct in general are those that are most
often raised falsely, for any of a wide variety of motives, ranging from highly
emotional spite motivation, all the way to sheer hope for monetary gain.
There is an inflammatory nature to such an accusation that
typically temporarily deprives its hearers of their usual powers of skepticism
and critical examination. Also, in light of the typical, 'Yes, you did', 'No, I
didn't' trial scenario, calmer heads once observed that accusations of sexual
misconduct are easily raised, and are disproved only with difficulty (State
v. Dolliver). However, most recently, extensive surveying and experiments have
concluded that the mere fact of a sexual abuse accusation, regardless of how
flimsy, now causes most mock jurors to come to a snap judgment of guilt, effectively demanding that a defendant prove his
Because of all of the foregoing, there is no case more in
need of stringent enforcement of the requirement of proof beyond a reasonable
doubt of guilt than cases of allegations of sexual abuse. Yet, astoundingly,
many (some would say suspiciously too many) cases of this type are advanced
without any testimony by the alleged victim. Only a small fraction of these
cases have involved pre-verbal toddlers or the mentally disabled.
Instead, all too often, the mere assertion of possible
traumatization through simply testifying has been used to excuse a lack of such
testimony. Indeed, the frequency of bouts of inadequately explained, purely
transient, testimonial "incompetence" on the part of alleged child
victims in the primary school range has suggested to some that there is now a secret trend of drugging such
prospective child witnesses, or of secretly instructing them to 'act stupid',
expressly to prevent them from testifying.
In place of such testimony, the prosecution typically
advances statements by, or interviews of the alleged victim (Daly). Hence,
testimony or evidence of these statements/interviews assumes a crucial legal
Unfailingly, determination of the truth in cases of sexual
abuse accusations is critical not only for the accused, but also, forensically,
for the alleged victim as well. It is known that the sequelae for non-victims
of child abuse who are falsely, chronically misrepresented as victims is, in the
long run, extremely and comprehensively adverse for the non-victim, every bit as
much so as the traumatization is for actual sexual abuse victims (Ceci, Bruck,
The child who either is a pawn of a parentally-originated false accusation, and the child who, on his or her own motion advances a false
accusation for childish motivations (e.g., of spite, or of deflection of blame for some personal misdeed) is
effectively made a profound victim of the false accusation itself. No doubt, this 'double-edged' nature of
false accusation was what
gave rise to the Judeo-Christian Ninth Commandment, enjoining the bearing of
I. Child Interviewing: Its Origins, Evolution, and Current Arrangements
Oversimplifying only a little, the traditional investigation
of allegations of child sexual abuse was almost purely in the domain of police
agencies. Even cases where the initial report of alleged abuse was filed by
medical or school personnel, all subsequent investigation was left to police.
Although by no means widely valid, criticism of police was heard, beginning in the
1970s, of over-skepticism on the part of police as to such allegations, and of
reluctance to engage in any serious investigation, or to press for prosecution.
These groups likewise publicly criticized prosecutors for similar skepticism.
Largely in response to such criticisms, both police and
prosecutors scrambled to revamp procedures and charging-decision criteria.
political pressure, the upshot was that, before long, virtually all remotely
credible sexual abuse allegations were prosecuted. Congruent to this change of
approach, police agencies, still the primary investigators throughout the 1980s, now abandoned all skepticism, and approached each case with a firm
presumption of guilt (Daly).
This in turn prompted interviewing that was intended as
supportive (at least, as to production of incriminating responses by a suspected
victim). However, in practice, interviewing tactics as to such putative victims
frequently ranged into categories that are best described as
"grilling" at length, or "browbeating" when the anticipated
accusation was not forthcoming. The New Jersey case, State v. Michaels, and the
California case, State v. McMartin, stand as historical illustration of this
overzealous, insistent style of interviewing, refusing to consider the
possibility of innocence.
Partly in an effort to defuse objections of the public to
such police excesses, prosecutors sought to 'professionalize' the appearance of such interviews by making arrangements
for investigational interviews to be conducted by members of various 'helping' professions,
notably physicians, nurses, psychiatrists, psychologists, social workers, and
"counselors" of various self-appointed types, some of which had no
reason for existence other than to conduct such ex officio criminal
investigational interviews as activist-'advocates' (Daly).
An additional benefit accrued to the prosecution by this
transfer of interviewing responsibility. Judges had always been very loath to
allow police to testify to out-of-court (hearsay) statements/responses by alleged
crime victims, apart from very limited exceptions, such as death of a victim
In contrast, a specific exception to the hearsay prohibition
had always existed (albeit infrequently used) for statements made to physicians
and nurses for purposes of treatment. A new generation of prosecutors, now
dedicated to aggressively advancing sexual abuse prosecutions, exploited this by
having suspected victims of sexual abuse examined by physicians, who would
meanwhile also be questioning the child, essentially as a police substitute
While this may have been well-intentioned, the self-selection
of physicians who volunteered for this unique work sometimes gave rise to
bizarre and even traumatizing results. One local example of this was a physician
who would digitally penetrate and protractedly probe genital and/or anal
openings of examined children, while insisting that they tell about the presumed
sexual abuse (Wakefield, Underwager, "Accusations ...').
Nationwide, efforts to bifurcate physical exams from
interviewing have sometimes assigned the latter task to psychologists. Psychologists were selected for this for two reasons.
First, courts have been
urged to broaden the specific hearsay exception for physicians to cover
psychologists, but with only mixed success to date. However, in any event,
second, psychologists could also testify as an expert about certain child
behavior patterns thought to suggest earlier sexual abuse.
While other psychotherapeutic and counseling personnel were
not covered by the specific 'physician's exception' to hearsay, courts by then
still allowed others to testify to a child's statements or responses about alleged sexual abuse, so long as the hearsay
was judicially determined to have "sufficient indicia of reliability".
However, in 1990, the United
States Supreme Court, in Idaho v. Wright, ruled that this traditional hearsay
standard was too loose to satisfy the requirements of the constitutional
guarantee to defendants to confront their accusers, in cases where the child
accuser did not actually testify. The guidelines imposed by the Supreme Court in
that case severely limited occasions when this hearsay reporting by counselors
of incriminating statements or responses by children could be deemed to present
the requisite, virtual "guarantees of trustworthiness" of the
accusation, such that cross-examination of the non-testifying child would be
Faced with the unlikelihood of mere counselor's testimony
satisfying this new, tough standard, prosecutors around the country have,
throughout the 1990s, been gravitating toward a counselor-interviewing variant
that includes video-recording of the interview that is hoped to be presented as
evidence, in lieu of child testimony. The seldom-stated appeal implicitly made to
trial judges is that, because the videotape ostensibly documents statements or
responses actually made by the child, there is no chance of perjured or
inaccurate testimony about those utterances by the interviewer. Although that
can be assumed to be true in a technical sense, for purposes of this discussion
(although perhaps not actually true, in light of recent advances in video
manipulation), it is a fallacy to conclude that the statements or responses by
the child in such videotaped interviews come with any "guarantee of
In fact, as will be seen below, such videotaped 'final
takes' obscure and belie myriad possibilities of innocence and false accusation,
and lend an unmerited, virtually unassailable imprimatur of the appearance of professionalism
to all statements 'produced' in this way, regardless of truth or falsity of the accusation itself.
Our concern is the deceptive appearance of
these 'productions', for reasons that emerge repeatedly below.
II. The Non-Forensic. Persuasive Intent of Videotaped Child
As suggested above, typically, non-governmental, non-profit
organizations produce these videotapes of child interviews. However, in doing
so, they work very closely in cooperation with police and prosecutors. "CornerHouse"
(hereinafter, "CH" for short), located in Minneapolis, is a classic
example of this model. Once a sexual abuse accusation has been lodged with a
participating police agency, police schedule an interview to be conducted by CH.
The investigating police officer then briefs CH staff on the specifics of the
accusation, including times and places of alleged sexual abuse, and the alleged
acts of sexual abuse (State v. Danforth, 42).
An assistant county attorney is permanently stationed at CH. It is specifically hoped by this assistant county attorney and CH staff that a
videotape will be produced from each child interview capable of legally being
granted admission as evidence in a subsequent prosecution. One function of CH,
under the direction of that assistant county attorney, is to adjust any and all
aspects of interviewing so that the interview appears as convincing as possible
as an accusation against the accused. In short, the videotape is a production.
CH is an 'accusation factory'; 400 cases are handled there
every year (State v. Danforth, 42). Only 10-15% of the interviews conducted
there result in a finding that no abuse occurred. The videotapes produced have
no use other than as a prosecutorial tool, in the decision to prosecute, and as
such later-proffered evidence in criminal prosecutions. (id, 43).
While the child is interviewed, police and the assistant
county attorney are present in a nearby room, watching and listening via closed-circuit TV to the ongoing interview.
At times when they desire further
information, they communicate their requests to the interviewer, who then
proceeds to verbally steer the child toward responses sought.
Because it is impossible to cross-examine a videotape of such
an interview, prosecutors deem these videotapes as superior to presenting the child as a 'live'
witness in court.
This view is aptly summarized by Mosteller (777):
"Availability of videotape evidence of statements almost
certainly will perniciously increase the chances that child witnesses will never
testify. (T)he prosecution thereby gains the advantage of denying the defense an
opportunity to challenge directly the child's testimony. This increases the
incentive for the prosecution to argue, or interested family members or advocates
to insist that the child is unavailable because he is ... Incompetent to testify
... That potential is itself a powerful policy justification for either
never allowing videotaped statements to be admitted ... Or insisting that videotape
can be received only when the child testifies at trial."
More specifically, Mosteller adds (793, 806):
"(A) finding of incompetency is strategically
advantageous in that it denies the defense the ability to test the out of court
statement through cross-examination. As a result, the prosecution's incentives to
secure the live testimony of the child have been greatly weakened ...
"Admitting videotaped statements creates an enormous incentive for the prosecutor to shield the child from adversary testimony by a
finding of unavailability."
Indeed, since the inception of such videotaped interview
production, there has been a large increase in the number of cases tried on such
videotapes without child testimony (Mosteller, ibid). From this it can be
inferred that findings of incompetency, the only legal avoidance of such
otherwise required testimony, have skyrocketed. Either there is a sudden
epidemic of idiot children, or incompetent appearance is being falsely manufactured, either by drugs or by direction to the child by parents or others
to 'act stupid and silly' when the judge is trying to assess competence. The
resulting, suspiciously convenient "unavailability" of the child as a
witness ensures that the defendant's confrontation rights are thwarted.
Especially in light of the foregoing, a reactionary movement
has arisen that demands that all such non-forensic, 'produced' interview
videotapes be banned from use as evidence, as merely "manufactured
Mosteller (776-8) expressly describing the CH scenario, where
a "social worker employed by private, nonprofit organization which assists
police in their investigation of child abuse ...", calls such videotaped
statements "inquisitorial" in production, and "ex parte
governmental statements" in nature, and flatly concludes that even
"(a) showing of trustworthiness cannot compensate for the lack of
cross-examination where inquisitorial statements are involved."
Hence, for instance, in Burke v. State a similar videotaped
statement was held inconsistent with the Confrontation Clause, the court terming
it "manufactured hearsay", which gave the state an unfair advantage in
presenting its principal witness by means of carefully prepared videotape.
particular, Burke rejected the argument to "sufficient indicia of
reliability", concluding that such reliability could only be achieved by
opportunity for cross-examination.
Burke v. State rejecting such videotapes, per se, where the
complainant was subsequently held to be "unavailable", sums up their
constitutional objectionability, whatever the appearance of 'indicia of
"It would be far easier to elicit favorable testimony
from a child with only a detective, social worker, or other type of skilled
questioner propounding questions without any confrontation or cross-examination.
We must protect the rights of a defendant to have the ability of complete and full cross-examination and to ensure that the jury has the ability to observe
the responses and the demeanor of the witness. We should not allow the state to
present a tape made with one-sided questions, by an expert questioner, who could
coach, lead and gain the required result without the defendant having his Sixth
Amendment right of confrontation."
Similarly, Gaines v. Comm (526) refused to admit such a
videotaped interview, deeming it to be tantamount to allowing the child to
testify without first finding the child to be competent and administering the oath.
It is ironic that such videotapes are admitted often when the child in the
videotaped interview has been found incompetent to testify.
Hence, in Rolader v. State (758), the videotape failed the
Idaho v. Wright analysis, in that the interview was "conducted by persons
acting in a law enforcement capacity, with clear intention of gathering evidence
for use against appellant."
At present, the United States Supreme Court has not
specifically responded to this demand that such 'production' videotaped
interviews be banned. Because these types of interviews raise numerous problems
in communication between children and adults, including in areas of the
alteration of child cognition and memory through communication as suggestion, we
must proceed to an examination of these problems.
III. The Myriad Problems of Videotaped Child Interviews as an Investigational
A. The Ever More Universal Sweep of the Technique and of its
It is now scientifically established that many aspects of
interviewing techniques employed in interviews of alleged child victims can
radically alter what the child says in the interview. (See, e.g., Ceci, Bruck,
"Child Witnesses ...; Raskin & Yuille, "Problems Interviewing ...", 184-207).
"The critical influence that can be exerted by interview
techniques is also supported by the literature that generally addresses the
reliability of children's memories. Those studies stress the importance of proper
interview technique as a predicate for eliciting accurate and consistent
recollection ..." (State v. Michaels, 1378).
CornerHouse (CH) was one of the first private agencies to be
founded for the purpose of conducting this type of child interview in
accusations of sexual abuse. From its founding in 1989, it has consistently produced the kind of videotapes of concern here.
In addition to
this local role, it has also been extremely active in urging other metropolitan areas to found
similar private entities, and to use them in child sexual abuse prosecutions (State v.
Danforth). For all who are interested in doing so, or who have already
begun to do so, CH offers training services that essentially 'clone' the CH
model onto such other non-profit agencies elsewhere. By now there are similar
videotaped interview production facilities and staff in various cities
throughout the country, all taking similar advantage of the superior evidentiary
appearance of such videotapes, as compared to 'live testimony by child
Along with this widespread duplication of such facilities and
methods come each of the specific problems mentioned below that render the
responses of the interviewed child doubtful and perhaps meaningless in reality
(although appearing otherwise to the untrained and overly-receptive average
juror). Hence this is not a local problem; it is a national problem.
overwhelming conviction rate in child sexual abuse cases (over 90% of cases
tried, Mosteller), and in light of just the local number of cases each year, the
number of convictions based on these unaided videotapes each year must be
staggering, and can be reasonably speculated to be in the range of 20,000.
the terrible impact can be felt, if these videotaped interviews are not a
reliable truth-getting device. Horrifically, it will be seen below that they are
anything but that, and indeed, function effectively as a truth-stifling, and
B. The Specific Problems
1. The Isolated 'Tip of the Iceberg' Effect
One of the most seductive elements of the persuasive
appearance of these child interview videotapes is that they appear to be
completely spontaneous, that is, without any preceding predicate. It thus
falsely appears to an observer that the child, unprompted, simply came of
his/her own motion to the interview, out of purely altruistic, moralistic motives, seeking justice for
a wrong. This icon is emphasized by popularized terms such as "coming forward" that,
perhaps deliberately, purvey an image that is almost never an accurate
descriptor of an abuse accusation's emergence/creation. This, of course, is a
fallacious myth, but one that has persistently seductive power in our society.
We simply want very badly to believe this.
The reality almost invariably is that the video-recorded
interview has been preceded by at least several conversations between the child
and family members, police, social worker(s), physician(s), and perhaps
psychologist(s) (Mosteller). Even in the case of a true accusation, there is an
inherently contaminating effect of all these prior conversations (see below).
cases of false accusations, the undisclosed antecedents of the video-recorded
interview include the actual, non-abusive scenario, the nature and origins of
the motivation for the false accusation, the coaching used to teach and to refine
the accusation in the child's mind, the means of influence that were brought to
bear on the child to force or coax cooperation in advancing the false
accusation, and innumerable further aspects (id). A videotaped interview,
especially because it is a production intended to support the accusation, will
to show, and indeed attempts to obscure, and even deliberately to cover up these
strongly exonerative antecedents.
Hence, such videotapes are only isolated 'tips of the
icebergs' of the actual facts behind as accusation of sexual abuse. What's
worse, they may be highly unrepresentative of the actual historical facts of a
given accusation, and indeed may cast a completely erroneous impression of it.
This is an inherent problem when such videotapes are presented as a substitute
for child witness' testimony. The inability to cross-examine a videotape leaves
the accused with no effective means to pierce behind the misleading, monolithic
facade of the carefully crafted (see below) interview itself.
2. "Taint": The Overwhelming Impact on a Child of
Prior Suggestion and Misinformation
There is no doubt that "children incorporate
misinformation from early interviews into subsequent reports." (Adams, "Investigations
...", 123). "A committee of
social scientists have reported that suggestions planted in a first interview session can be
quickly taken up and mentioned by the interviewed child in a subsequent
interview." (Amicus Brief, State v. Michaels; Bruck, Ceci, et al, "I
This problem of taint from prior suggestion impacts younger
children disproportionately. In State v. Wright, the Idaho Supreme court
concluded: "The problem of tainted memory is much more severe in young
children. See, e.g.: Cohen & Harnick, "The Susceptibility of Child
Witnesses to Suggestion", 4 Law and Human Behavior 210 (1980).
Yet, ironically, the common image represented by the phrase,
"out of the mouths of babes" appears to be responsible for professional
interviewers' lack of control for outside influences on the
child's statements, such as previous conversations with parents or peers (State
v. Michaels, 1376); Younts, "Evaluating ...").
Hence, any examination of the accuracy of child interviewing
must begin by examining the antecedent influences on the interviewed children.
a. The Ubiquitous, Curious Childhood Phenomenon of
"Confabulation on Command"
The risk with young children is that they may be unable to
distinguish a memory of something which actually happened from a memory
of something they imagine happening (Johnson & Foley). If an interview
technique leads a child to imagine an event, the child's memory of that imagined
event will be indistinguishable from memories of events which the child actually
experienced. Loftus & Davies, "Distortions in the Memory of
Children" 40 J. Soc. Issues 51, at 2-3 ..."
"Children, like adults, tend to be more suggestible if
memory is weak ... Under this circumstance, either substitution of memories or
the masking of memories is more likely to occur. In either case, testimony about
the memory is more likely to be inaccurate." (Perry, Wrightsman, 187).
Even average "six and nine-year-olds have greater trouble
than adults in differentiating whether they had performed an action or imagined themselves doing
so." (Johnson, Howell, 221).
Unlike adults, children are craven for adult attention and
approval. This need is strongest with regard to a child's parents, and also is
very pronounced to those who are either designated by parents as, or appear to
the child personally as, persons in authority. Hence, when a parent or authority
figure asks a child for an account of some occurrence, the most important thing
from the child's point of view is compliance, i.e., fulfillment of the
parent/authority's request for a narrative. In the child's mind, especially with
younger children, truth of the narrative either is a distinctly secondary
concern to that of pleasing the requesting adult, or is of no consequence at
all, as compared to that goal of being pleasing.
Even just the way a question is asked, when a child assumes
the interviewer is knowledgeable about the substance of the accusation, has been
shown to result in inaccurate or false responses (Perry, Wrightsman, 191-193).
"Children are generally oriented to please adults in an
interview setting, and the younger they are the more this is true. All too often
they provide the interviewer with what they think the interviewer wants to
hear." (Raskin, Yuille, 192).
For this reason, the business of narrative in the mind of a
small child always includes confabulation, that is, the impromptu fabrication
of fictional events, simply to create a narrative on the fly. This is not
deceit; the child is not usually specifically trying to deceive for the sake of
deceit. The child's only goal is to present a pleasing narrative.
Unless the inquiring parent/authority figure persistently
indicates to the child that the only narrative that will be pleasing is one that
actually happened, the child's narrative will likely follow the easier and freer
path of fictional confabulation. Small children essentially learn by pure
behaviorism. In this instance, this means that a child may learn that a parent,
who inquires whether what the child just said is the truth, will be pleased if
the child says it was, and may well be displeased if the child says that it was
not. The child, having already stated a confabulation, simply takes the road
less troubling as an immediate matter, answering "yes" to its truth.
The child may even be oblivious to the fact that, by endorsing untruth as truth, a deceit has been set
in motion. Alternatively, the child more likely
will simply be indifferent about this 'collateral damage'. What was all-important then to the
child was simply giving the immediately pleasing affirmation (Wakefield,
Underwager, "Accusations ...').
Videotaped interviews are typically held long after such
initial confabulations were made, and after they have been refined by embellishments.
Especially where no strong effort is made to specifically
challenge such confabulations as untruths, they will simply be recited again in
their refined form, obscuring and contradicting historical fact.
b. Parents, as High-Status First Interviewers
A major problem is interview status. "Interviewer status
may be especially troublesome in child sexual abuse cases because the child's
first conversation about the abuse is often had with a parent, the child's ultimate status symbol.
The parent may harbor hard feelings toward the suspected
abuser, or have preconceived notions of what "abuse" may have
occurred. Studies show that when interviewers entertain such notions, the
accuracy of the interview suffers. Parents, lacking the requisite training, will
not be able to avoid supplying significant suggestion. The first discussion
about the abuse is the most influential, and as such, the most potentially
devastating to defendants." (Feher, "the Alleged ...", 232).
What has been said in the section immediately above also
illustrates the crucial role played by parents and other, older family members.
The child defers to them, giving them a high status of authority. When a parent
deliberately, maliciously teaches a child a false accusation of sexual abuse, as
a practical matter the child will have no choice but to accept this teaching,
and to parrot it back on demand. However, the child, especially if very young,
will probably not see this learning experience as a wrongful imposition, but
simply as yet another parental tutoring session, with later testing. By the
nature of childhood and parenthood, this will happen reflexively. The same
principle applies when the parent simply holds an emotionally loaded, honest
suspicion (although incorrect) of sexual abuse of his/her child. The parent's
inquiry is very likely to border on confrontational with the child. The child is
very likely to see this agitated inquiry as a request for confirmation, and to comply with
that perception by giving confirmation, regardless of the truth.
c. A Child's Acceptance of Parental Lies; Assertions to the
Child that Abuse Occurred
Hand in glove with the foregoing is the further fact that
young children, as part of their view of parental authority and infallibility,
do not conceive of their parents as liars, or even as capable of lying. A child
believes that if a parent makes an assertion, it must inherently be true, even
if it runs contrary to the child's own memory and perceptions. Hence, e.g., a
parent, in an effort to 'flush out' the suspected (but nonexistent) molestation,
may well engage in what the parent believes is simply an innocent deceit in
service of getting at the truth, thus: "I know about how ________ (the
accused) touched your __________ (pertinent anatomical part). So you should tell
me how it happened." A young child hit with this assertion, having only an
absence of any memory of this nonexistent deed, will likely assume that parental
knowledge is superior, and again will simply confabulate to fill in the 'missing
Experiments have consistently confirmed that in a contest
between what a child actually witnessed, versus a suggestion by a parent or
authority figure, the suggestion will win most times.
"A well known phenomenon in cognitive psychology is the
'misinformation effect', in which subjects who are misled about previously
witnessed events often integrate that inaccurate post-event information into
their accounts of the event ..
"Even memory for central actions can be changed ..." (Garry & Loftus, "Pseudomemories
Honts describes research designed to test children's
willingness to lie about serious matters in profoundly serious situations.
Children between 4 and 11 years old were placed in one of three scenarios.
In one of these, a 'thief' steals a book, and asks the child
to keep the theft secret. In a second alternative scenario, no one sees who
stole the book, but the child's parent is accused of stealing the book while the
child was not present. The parent then asks the child to lie to protect the
parent by saying that the child witnessed another take the book. In the last
alternative, the child actually witnesses the parent 'steal' the book (as an
The child was later interviewed by a 'policeman'. In the
first case, the children correctly identified the thief 80% of the time. But, in
the second scenario, 69% of the children lied as their parents had requested.
Even where the children had seen the 'theft' by their parent, 56% falsely
accused another to protect their parent. Not one child revealed to the policemen
that their parent had requested a cover-up lie!
The conclusion is inescapable that children will lie under
circumstances they perceive as profoundly serious when requested to do so by
In the now famous 'mouse trap' experiment, 58% of children
tested asserted non-experiences had occurred after false suggestions of such
fictional events (Sales, VandenBos, 31-2). The most startling fact in this
experiment was that, even after persistent debriefing attempts after the
experiment's end, the children continued to insist on the truth of those
fictional suggestions, swearing that their fingers had indeed been pinched in
the non-existent mousetraps, despite being confronted by the video evidence to
the contrary. Still another, distinctly chilling result was false assertions
(after suggestion by interviewers) of genital contact by examining physicians,
once again contrary to surreptitious video surveillance (id, 38-9).
In a scientific study using a false suggestion to a child
that the child's mother had said that an event had occurred, involving the
child, Ceci found that children immediately agreed and elaborated upon this false
in an alarming percentage (28 and 40%). With further repetitions of this
assertion over tune, the rates increased. Ceci, Loftus (315) concluded that:
"It is possible to mislead preschoolers into believing
that they experienced fictional events, and to do so with increasing conviction and vividness over time.
An examination of
the children's videotaped statements reveals internally coherent, detailed yet false,
narratives. Adults who were naive to the validity of the children's claims about
fictional events often professed confidence in their accuracy ..." (emphasis
Younts, "Evaluating and Admitting", 724, adds:
"Other researchers have found that children's
definitions of what it means to lie can distort their testimony. Twenty-nine
percent of a group of preschool children told a misleading story when
interviewed by policemen after their mothers told them to tell the misleading
story. The researchers concluded that a child's understanding of what it means
to lie is incompatible with the possibility that their loved ones would lie.
other words, because children believe that their mothers are not liars, they
believe their mother's version of the event must be the accurate one.
"Because this research indicates that children do modify
their stories to fit adult perceptions, courts should pay particular attention
to whether the abuse investigator had a preconceived notion of what happened to
the child, and then sought the child's confirmation. It also means that the
investigator needs to have examined the family situation to see if the child is
perhaps endorsing the preconceived ideas of a parent or other significant
About this confusion of memory and endorsement of
suggestion, State v. Wright goes on to quote from the testimony of an expert in
child psychology who testified for the defendant thus:
"A question that implies information that was not
actually the world of reality may become part of the memory of a child, who
believes that information fully occurred in the world of reality (sic).
"What I'm saying is that a child who was five years
eight months chronologically but has a mental age 15 months or so below that,
will have even more severe problems in terms of retrieving memories, and prone
to be influenced by leading questions, will have problems distinguishing
imagery, what they think about from the outside worlds ...
"... It's especially the case in events that imply action. So if you describe for a four- or five-year-old child some kind of an action-related behavior on the part of other
people, the child has particular problems in distinguishing the discussion, the information
presented verbally, from an actual experience, and may confuse the two. And this
comes from a lot of research at New York University in regard to children and fantasy versus reality."
Suggestions of entire episodes, even traumatic ones, with the
complex, nested structure of an autobiographical memory, is possible,
particularly in the case of young children, and particularly in the case of
those with weak and not particularly accurate memory (Ceci, Loftus, 365,
368-9, 372). The inverse relationship of susceptibility to misinformation to
ability to notice discrepancies is so well known by now that it is termed in
psychology the "Principle of Discrepancy Detection" (id, 367).
been shown that even a small suggestion from a trusted family member can
trigger the creation of false memory in the case of a child. (id, 375).
Interestingly, when the introduction of misinformation is delayed for a
significant period after an occasion used as its setting, actual event memory fades, and comparatively, misinformation memory is strong enough to bias 'recall'
toward itself (id, 368).
d. Urging a Child to "Think Real Hard"
In cases where a parent's (typically emotional) inquiry is
met by a denial (typically by a somewhat older child), a parent may be tempted
to believe that the child is simply 'blocking' a traumatic memory. So the parent
may urge the child to "think real hard" about it, or words to like
effect, and then to answer again. This, to a child, has a profound, twofold
effect: It telegraphs that the desired answer was the one not given, and it
blatantly asks for the child to reverse the response. In cases of non-abuse,
this unwittingly asks the child for a compliant deception.
This type of appeal to a child happens so often that it has
been the subject of specific comment in the professional literature. Even merely
"thinking about past events" can change a child's memories (Perry, 75).
"Repeatedly encouraging a child to 'think real hard' about
an alleged event may create multiple sources of memories, some actually experienced and some only
imagined, in the attempt at retrieval of nonexisting memories." (Ceci,
Loftus, "The Possible Role", 308).
e. Explicit Vilification of the Accused, "Stereotype
Inducement", and Signaled Bias of Guilt
A parent or authority figure need not actually assert false
knowledge of the accused's guilt to bias a child's account. Studies have shown
that simply a broader vilification of the accused by a parent or authority as
just being a bad man, or someone who does bad things, is sufficient. Similarly,
creating for the child verbal imagery and labeling of the accused as someone
with given propensities will frequently induce the child to give a false account
purportedly illustrating this furnished propensity.
"The explicit vilification or criticism of the person
charged with wrongdoing is another factor that can induce a child to believe
abuse has occurred ... Similarly, an interviewer's bias with respect to a
suspected person's guilt or innocence can have a marked effect on the accuracy
of a child's statements ..." (State v. Michaels, 1327).
Ceci, Bruck Jeopardy, 81, 127-135 define "stereotype
inducement" as where 'the interviewer gives the child information about
some characteristic of the suspected perpetrator.", and they give numerous
examples, as where the suspect is described to the child as a bad man or that he
"tries to scare children". At 128-9, they describe two experiments where
one confederate was described to children as doing bad things, and the next was
described as clumsy. In the first experiment, the children readily agreed to
subsequent questions that essentially accused the bad confederate of doing
sexual acts with them. In the second, the children furnished various accounts
of the 'klutz' doing clumsy things, such as breaking or dirtying various
objects. The moral of the story is that children have a profound need to ratify
impressions they are given with illustrative stories, true or not.
In another experiment, children produced a high percentage
(72%) of false accounts, where the supposed actor of the nonconduct had been
presented earlier as a stereotype to the children (Sales, VandenBos, 38-39).
The conclusion is inescapable that such stereotypification greatly increases the
temptation to the child to confabulate in conformity with their perception of
Lastly, if an inquiring parent/authority intimates any
personal bias that the accused has done some act, the child is likely to agree
that such an act occurred, even when the child, as purported victim, knows that
nothing of the kind transpired.
The concept of taint was judicially recognized in Minnesota
in State v. Huss. Huss involved suggestion by the child's mother, using a book on
child abuse for children, urging disclosure, "Green Light, Red Light
People", which included beguiling children's songs that vilified men who
touch children in unspecified ways, whenever a child is made uncomfortable.
course, a child being given untrue suggestions of sexual abuse is very likely to
become uncomfortable. The Minnesota Supreme Court reversed the defendant's
conviction, noting that such suggestion "may have improperly influenced the
child's reporting of events." (Huss, 293).
Even such an ardent champion for the sexually abused as Gail
Goodman, in her article (Goodman, Clark-Stewart, "Suggestibility ...",
101), describes a startling experiment in which children witnessed certain
staged, unusual, but harmless behavior by a "janitor", and who then were
subjected to a suggestive interview. Not surprisingly, "90% of the children
who heard an interrogation that was inconsistent with the scenario they had
witnessed answered at least four (of six) questions in line with the
interrogation rather than the scenario ..."
"[I]f the investigator does not maintain a neutral
position, the child is likely to pick up on the evaluator's bias and provide the
information the child believes the evaluator wants to hear or is seeking."
These kinds of suggestive phenomena occur regularly in
questioning sessions of children in cases of suspicion of sexual abuse.
f. Urging a Child to "Visualize" a Scenario,
"Guided Imagery", "Memory Work", and "Cognitive
"Another professional technique involves "guided
imagery" or 'memory work'. Interviewers sometimes ask children first to try
to remember or pretend if a certain event occurred and then to create a mental
picture of the event and to think about its details." (Ceci, Bruck,
A related technique more recently is that of the 'cognitive
interview'. This likewise consists of a number of mnemonic instructions or
specific suggestions designed to facilitate witness' recall of specific details
of an event." (Powell, Thomson, 211).
Two scientific surveys showed videotapes of final interviews
of children to psychological clinicians and researchers. Half of the children
were reciting real events, while the other half were merely reciting events they
had 'visualized' in response to requests of experimenters that they do so.
results consistently showed that these professionals were less accurate than
chance at discerning true from false (visualized) accounts in those videotaped
interviews. (Ceci, Loftus, et al, 315). Another, virtually identical study
confirmed this 'no better than chance' result (Honts, "Assessing....",
886). This profoundly drives home the point that, if professionals cannot
discern true accounts from those that were merely 'visualized', neither can any
lay juror or judge do so.
Ceci, Crotteau-Huffman, Smith & Loftus, "Repeatedly
Thinking ... ", added that there had been no attempt whatsoever to mislead the
subject children, only to ask them to mentally visualize what might have taken
place, thus presenting a "fairly conservative test" of the hypothesis.
By the eleventh week, when interviewed, fully 58% of the preschool subjects
produced false memories to at least one fictitious event. The narratives then
obtained were frequently elaborately embellished with internally consistent
accounts of the context and emotions associated with such utter non-events.
Ceci, Loftus, at p. 317, quoting a reviewer, observes:
"If these results are found in the austere context of
the experiment, it is likely to be found in spades in a field situation. Most
readers are aware of horrific cases such as Kelly Michaels, where the fears and
fantasies of distraught parents might magnify innocent events into monstrous
stones ... So, perhaps it should be stressed that the data reported probably represent minimalist figures."
g. The Cumulative Impact of Factually Incorrect Responses
It is beyond question that the foregoing phenomena have long-lasting corrupting impact on a child's memory.
"Ironically, it appears
that the mere act of providing a false response appears to create its own
memory, which is then perceived to be true." (Adams, 218). Schooler, Foster
& Loftus, ("Some Deleterious ...", 249) report showing subjects a
slide presentation of an event, then questioning them with misleading
information, concluding that "the act of committing to an incorrect response
causes subjects to falsely remember that information ... Which later causes
interference that impairs the subjects' ability to remember the original
1. The Effect of "Concertizing"
State v. Babayan cited the impact of 'concertizing'
(repetitive, leading discussion) creating false memories in the child. While
studies have not focused on this cumulative impact, on an intuitive level it
stands to reason that the greater number and unanimity of suggestive sources and
occasions, the more profound and directional their combined effect.
2. The Persistence/Permanence of False Answers Based on Prior
Referring to the 'klutzy' janitor experiment involving
children's acceptance of adult suggestion at odds with what the children
themselves witnessed, more surprisingly, Goodman pointedly adds: "Nor did the
children change their stories when questioned by their parents at the end of the
session. All the children answered the questions posed by their parents
consistently in line with the interrogator's interpretation of the janitor's)
activities, and one week later, on the follow-up questionnaire, the children
generally retained these interpretations." (ibid). Such is taint.
Other courts have recognized that, once tainted, the
distortion of the child's memory is irremediable. See State v. Wright, 116 Ida
382, 775 P. 2d 1224, 1228 (1989). ("Once this tainting of memory has
occurred, the problem is irredeemable. That memory is, from then on, as real to
the child as any other.')" State v. Michaels, 1378). Especially in light of
this troubling aspect of taint, interviewers must be very careful to counteract
it in every way possible. As will be seen below, however, interviewers,
particularly the partisan interviewers represented by those at CH, never engage
in any meaningful taint counteraction, and, indeed, they appeal to it to obtain
incriminating, but incorrect accounts from children.
3. Interviewers' Departure From the Role of Forensic
a. The Assumption of Truth of the Accusation and of All
Several types of "contamination errors" have been
judicially recognized as occurring in or before such interviews of children in
abuse cases. Among these specifically, is outside information gained by the
interviewer from police. State v Babayan.
Younts ("Evaluating ...') noted that factors that can undermine the neutrality of an interview and create undue suggestiveness include
a lack of investigatory independence, with reliance instead on such outside
And Powell and Thomson (206) add that "the interviewer
should be aware, however, that the more information about the event under
question (particularly inaccurate information), the more misleading are the
questions he or she is likely to ask ... [I]t may be that preconceptions about an
event bias the interviewer's perceptions of the progress that is being made
throughout the interview. For instance, if the professional is convinced prior
to the interview that the child has been sexually abused, almost anything the
child says or does will probably be regarded as evidence of abuse. Also, the
biased interviewer may be more likely to create an atmosphere of accusation or
urgency, reassuring the child that "it's OK to tell", and "you'll
feel better soon". The potential damage caused by misleading the child
should not be underestimated."
b. Following a Preconceived Agenda to Gain
"It has become common practice for interviewers to
assume that the allegations are true, and the purpose of the assessment is to obtain information that can be used to arrive
at that conclusion ... Many social workers, psychiatrists and psychologists assume
certain behaviors of the child are definite indicators that abuse has occurred.
Their goal is to provide an atmosphere of support and encouragement to assist
the child in describing the abuse the therapist is certain has occurred. Almost
anything the child says and does is interpreted as being consistent with the
trauma associated with sexual abuse." (Raskin, Yuille, 186-7).
State v. Babayan found impact on a child's responses,
originating in the assumption by the interviewer that abuse incidents occurred,
and because the interviewer followed a preconceived agenda.
State v. Michaels, 1376, observes:
"That an 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.
"... [A]mong the factors that can undermine the
neutrality of an interview and create undue suggestiveness are ...; the pursuit
by the interviewer of a preconceived idea of what has happened to the
Younts ("Evaluating ...') found that the pursuit by the
interviewer of a preconceived notion of what has happened to the child likewise
affected answers given by the interviewed child.
At trial in State v. Danforth, for example, the CH
interviewer admitted that the very goal of the interview was to draw forth an
accusation of abuse, on the assumption that one was present to be adduced.
"One of the hallmarks of interviewer bias is the
single-minded attempt to gather only confirmatory evidence, and to avoid all
avenues that may produce negative or inconsistent evidence. Thus, while
gathering evidence to support his hypothesis, an interviewer may fail to gather
any evidence that could potentially disconfirm his hypothesis." Ceci,
Bruck, "Jeopardy ...", 79). In sum, the tendency to follow such agendae
may well obscure or cover over the truth, where the truth is exonerative.
C. The 'Annon List' of Fundamental Interview Failings
Annon, "Recommended Guidelines ..." includes not
less than seventeen specific fundamental flaws in interviewing children in cases
of sexual abuse accusations, including, conceptually: (a) failure to ask any
competency / basic knowledge questions, including inquiry into the interviewed
child's understanding of truth and falsity and imagination / fantasy and reality;
(b) failure to explain or encourage the validity of admissions of ignorance or
confusion; (c) failure to ask questions to probe suggestibility /
to leading questions / tendency to confabulate when confused or ignorant; (d)
failure to encourage assertiveness in the face of questions with erroneous
premises; (e) failure to explain the non-significance of repeated questions; (f)
failure to invite open-ended responses and free recall / free narrative accounts or
even to obtain a narrative, chronological account at all; (g) failure to follow
up on contradictions; (h) failure to test for alternative hypotheses, such as
maternal coaching, thus, e.g.: "Some mothers might have told you what to
say, is that what happened in your case?" (id. 137).
Such problems with sexual abuse accusation interviews have
been the subject of much professional research and scientific conclusion. See,
e.g.: Ceci & Bruck, Child Witness...."; Younts, Evaluating and
Admitting ... "; State v. Babayan). Each of these flaws serves to perpetuate
and to increase the impact of prior contamination of a child's memory, and to
put the child on a one-way linguistic street toward making an accusation.
d. Ignoring or Covering Up Child Incompetency
In State v. Danforth the CH interviewer indicated in testimony
that an assessment of competence is one function of an early stage of the interview.
Yet, in the actual
interview videotape admitted as evidence, when she received inaccurate and ignorant responses
from the child as to questions about how many siblings he had, their names and
ages, the interviewer immediately dropped all efforts to ascertain competency.
The inference is clear that this was done deliberately to avoid demonstrating
the actual incompetence of the child (who was in fact ruled incompetent as a
In contrast, in other cases where the child is in fact
competent, CH interviewing practice is to ask competency questions virtually ad
nauseam, to demonstrate that competence beyond all question. (State v.
Danforth). Yet, because a videotape of an incompetent does not state that the decision to
abandon competence questioning was deliberate, and does not, by itself, tell the
viewer that the child's answers to these basic questions were incorrect, the
videotape creates a deceptive appearance of competence.
e. Ignoring 'Pat' or 'Blurted-Out' Statements as Signs of
Rote-Learning of Fictions
Webb v. Lewis (1084) concluded that any seeming 'spontaneity'
from the fact that the core of the accusation was essentially 'blurted out'
within two minutes after the interview began was suspect:
"Such a precise statement to a stranger, a person
(complainant) had never seen before, invites reflection on what had prepared
(complainant) to be so candid." In many cases of rote-learning by a child of
a false accusation, this behavior betrays the source of the accusation. Yet an
interviewer may utterly disregard this 'tell', and blithely proceed on.
f. Disregarding 'Pointers' Away from Abuse
"[O]ne of the hallmarks of interviewer bias is the single-minded
attempt to gather only confirmatory evidence and avoid all avenues that may
produce negative or inconsistent evidence. Thus, while gathering evidence to support their prior hypothesis
they may fail to gather any evidence that could disconfirm the hypothesis."
Hence, other 'pointers' that indicate explanations other than
abuse can also be ignored by interviewers. This can include ignoring or
discounting a child's denials, expressions of ignorance, or other statements
pointing away from abuse. (State v. Babayan).
g. Failure to Challenge Responses as Fictional
Johnson, Howell (221) note that interviewers do not challenge
the responses of a child by asking, "Is this real or pretend?", or any
similar wording. Ceci and Bruck (Jeopardy, 79-80) also express doubt about
accounts obtained without this challenging. They add that interviewers also do
not ask questions that would provide alternative explanations for the
allegations, nor do they ask questions about events that are inconsistent with
the hypothesis of sexual abuse. "When children provide inconsistent or
bizarre evidence, it is either ignored or interpreted within the framework of
the interviewer's initial hypothesis."
4. Specific, Suggestive Interview Techniques
State v. Spreigl described children as being "witnesses
who are manifestly susceptible to influence and suggestion" to make
accusations of sexual molestation.
One extensive study found that children quite regularly make
sexual abuse allegations that factually can be conclusively proven false. The
study found that in most of these cases, interviewing style "leads the
child gradually to construct a mental picture of abuse. This picture then
becomes the 'child's memory'." (L. Coleman, P. Clancy, "False
Allegations ...", 18).
a. Suppression of Free Narrative
It is important to "allow the child to provide a free narrative account
of the event" to maximize accuracy of the child's memory of an event.
(Perry, Wrightsman, 122).
Perry, Wrightsman (242) point out that, in interviewing sexual abuse
complainants, "it is important to ask for a free narrative first to avoid
the possibility of — or even the appearance of — planting suggestions."
partisan interviewers, including CH interviewers, completely shun free
b. Constant Narrowing of the Discussion to the Topic of Sexual Acts
In State v. Danforth, the CH interviewer conceded that, as a matter of
deliberate interviewing protocol, the interviewer first introduces naked,
detailed diagrams, and later, anatomically correct dolls, and simultaneously leads the child through a lesson in the nomenclature of sexual parts, and
follows this with a discussion of places and types of touches, progressively
focusing in on sexual areas.
Only after all this does the interviewer pointedly ask the child (assuming as
fact that there was a touch at all) who might have touched the child in any
sexual zone, and in what way. This is suggestion in action, a very obvious and
heavy-handed hinting, from the child's perspective.
This tactic is reminiscent of the earlier Jordan sexual abuse cases, in which
one of the children, later confessing to fabrication of detailed stories of
sexual abuse, explained, "I could tell what they wanted me to say by the
way they asked the questions." (Benedek, "Problems....", 915).
c. 'The Distinctive Language Game'
As Wakefield & Underwager (Accusations ..., 316-17)
explain, "When a child is asked, 'Did Daddy touch you?, and everybody,
the child, knows the question and answer is about sexually abusive genital
fondling or penetration, the speaking is within the distinctive language game of
the sexual abuse system. In ordinary discourse, that question would have no
meaning about possible sexual abuse.
"... When children and adults show verbal behaviors that
can be identified as a shared language game, there has been some learning and
mutual acceptance of the tacit assumption defining the act ... Actual sexual
abuse occurring within the customary language game of most people does not
require a different language game in order to do it or to talk about it."
As mentioned above, the interviewed child has been prepared
in advance by immersion in a linguistic framework of sexual abuse. The child
knows that, in this language game, all responses are to be couched in such
terms, regardless of the accuracy of the response.
d. Use of Dolls and Diagrams
"The use of dolls can provide modeling to the child. One
of the most powerful ways of teaching a child is by modeling. Interviewers
model handling the dolls, suggest that they be undressed (or undress them for
the child), and label them for the child. They may say, 'Let's pretend that this
is you and this is Daddy', which invites the child to confuse fact and fantasy.
They ask the child to show with the dolls what Daddy did, and they place the
dolls in sexually explicit positions for the child. This is a teaching
experience for the child." (Wakefield, Underwager, "Techniques for ...").
Researchers have consistently found that non-sexually abused
children actively explore and manipulate the dolls' genitalia in the same way
and to the same extent as sexually abused children. (Jampole, Weber, "An
Assessment ..."; Cohn; Younts, "Evaluating ...').
In the chilling experiment involving false assertions of
genital contact by a pediatrician (Ceci, 42, in Sales, VandenBos), children who
were provided with an anatomically correct doll made progressively more false
assertions of having been touched in the genital area.
In cases of the 'final take' video-recorded interviews under
discussion, these dolls serve as prompts to prior rote-learning, and at the same
time add an air of abstraction and 'game playing' to the child, that encourages
the child to make irresponsible, fantasy-imbued responses.
e. Selective Reinforcement by Overt Praise, Tone of Voice,
Subtle Body Language, and/or Selective Attentiveness
Ceci & Bruck (Jeopardy, 81) note that interviewers
provide much encouragement during the interview . These, however, "can
quickly lose their impartial tone when a biased interviewer selectively
reinforces children's responses by positively acknowledging statements (e.g.,
through the use of vigorous head nodding, smiling, and statements, such as
"Wow, that's great!') that are consistent with the interviewer's beliefs or
hypotheses, or by ignoring other statements that do not support the
Powell & Thomson (205) confirm this, cautioning that
"such reinforcement should not be contingent on the quality or content of
the child's answers." However, in the real world, interviewer's responsive,
feedback behaviors bear this biasing aspect constantly.
The transmission of suggestion can also be subtly
communicated to children through more obvious factors, such as the interviewer's
tone of voice ... (and) praise ... (State v. Michaels, 1327).
"... One of my colleagues ... has found that by simply
nodding the head and saying "um-hum", he can shape, so to speak,
gradually shape behaviors in young children that border on the sexually bizarre,
and these are children who have had no sexual abuse in their background. Now
these are very young children, I might mention, from the four- to six-year old
"So an interviewer must be very, very aware that very
subtle cues such as a nod or saying, "um-hum" can reward young
children, in effect, and can shape and determine responses that the interviewer
is going to see.
"Attention, as such, is also a very important factor. If
an interviewer has decided that a child has been sexually abused, for example,
the interviewer will likely attend when the child responds in a way that is
consistent with the assumptions, and will not attend if the child responds in a
way that is contrary to the preexisting presumption.
"We could go on and on. There are multitudinous problems
in interviewing children." (id. 1228); (accord: Perry&Wrightsman,
The Child Witness, 72.
f. Use of Questions Assuming Facts Not Stated
On this point, Powell & Thomson (209) state that
"The most detrimental type of leading questions are those containing
definite articles, such as 'Did you see the car?', rather than 'a' car, or those
implying that a correct answer exists, such as "Where did he touch you?'
when the child did not state that he or she had been touched. Subsequent probing
is unlikely to undo the damage caused by erroneous suggestions during previous
Ceci, Bruck, The Suggestibility ..., at 432-3, states:
"Our review of the literature indicates that children
can indeed be led to make false or inaccurate reports about very crucial,
personally experienced, central events. In Oates and Shrimpton's (1991) study,
4- to 6-year olds were disproportionately impaired by misleading questions
having to do with actions (e.g., having their arms held behind them) compared
with older children ...
"Ceci, Lechtman, Putnick, and Nightingale (1993) have shown that
children can be led to falsely report whether they had been kissed while being
"In their anatomical doll study, Goodman and Aman (1990) found that the
3- and 5-year-old children frequently gave false answers to abuse related
questions such as "Did he touch your private parts?"
g. Use of Leading/"Direct" Questions
State v. Michaels cited the use of leading questions as being inimical to
obtaining truth in child interviews.
Walker (519) states that answers obtained by "direct" (closed-ended)
questions tend to be far less accurate than free narrative accounts from a child.
Citing numerous studies and experiments, she concludes that "direct
questions are fraught with suggestive potential".
Powell & Thomson (208-9) note that higher rates of error in answers is
associated with specific questions and probes designed to elicit greater detail.
In contrast, they note nonleading questions are associated with the lowest error
rates, especially when they are open ended, e.g.: "What did he say to you?
Or "What did the lady look like?"
h. Use of Repeated Questions for Unfavored Responses Given
"When a child is asked a question and gives an answer, and the question
is immediately asked again, the child's normal reaction is to assume that the
first answer was wrong or displeasing to the adult questioner.
"... The insidious effects of repeated questioning are even more
pronounced when the questions themselves over time suggest information to the
children ..." (State v. Michaels, 1376)
"When children are asked the same question more than once, they often
change their answers presumably because they interpret the repeated question as
'I must not have given the correct response the first time; therefore, to comply
and be a good conversational partner, I must try to provide new
information.'" (Ceci & Bruck, "Suggestibility ...", 419).
In State v. Danforth, the CH interviewer engaged in question repetition no
less than seventeen distinct times. This is a constantly abused form of child
i. Mis-Stating Responses Back to Child, and/or Going Forward, based on
Misinterpretation of Responses
Walker (519) defines a modification as an instance in which an interviewer
rewords a child's response in a way that changes its meaning, although perhaps
only barely perceptibly to an outsider, in ways that contribute in the end to a
substantial distortion of the actual historical fact being inquired about.
CH interviewers, for instance, frequently engage in this behavior. In State
v.~ Danforth, e.g., the CH interviewer appeared to misinterpret the child's
responses on numerous occasions, stating the inaccurate paraphrase immediately
after the child's response, and then going forward with the interview down an
avenue of inquiry that was based on the assumption that the misinterpretation
was in fact an accurate understanding. In this way, every further answer
the child gives, having been verbally dragged down this path, seems to endorse
the interviewer's misinterpretation, even though that was not the truth.
j. Forced Choice Questions
Walker also addresses the all-too-common practice of using forced-choice questions.
This type of question offers only a limited number of
responsive choices, that may not necessarily include the correct one. For
instance, a question such as "Was her coat red or blue?" may provoke
an incorrect response if in fact the coat was yellow. Walker notes that many
studies have produced high rates of erroneous responses from children when this
kind of questioning is employed.
k. 'Safety Message' Prompting (Hinting/Cueing)
Most shameful of all improper, suggestive techniques, this
technique involves providing a 'safety message' to the child, in order to hint to
the child that a sexual abuse accusation is awaited. A 'safety message' advises
a child not to let anyone touch him or her in sexual zones, and to tell a parent
if anything like that happens. This message is intended to be given to the child
at the end of an interview. However, its deliberate premature misuse as a hint
was admitted and described by the CH interviewer in State v. Danforth, thus:
"[A] common practice I do with children, if I ask a
question about whether they had been touched in those places they don't like ...
and they say no, I typically ask children what you would do if that happened or
words similar to that, and see what their response is ... It's an attempt to get
a disclosure out of the child.
Q: It's an attempt to get a disclosure?
Q: And I take it it's a choice you do because you found that
it tends to maximize the potential of getting statements to that effect?
A: That's true to an extent."
5. Other Interviewing Techniques in Videotaped Interviews
Functioning to Create the Unwarranted Appearance of Veracity of the Accusation
a. Disregard of Denials, Retractions, Self-Contradictions, and
A major problem in child interviewing is that interviewers
tend to completely disregard or ignore any denials or retractions made by a
child, and a related failure to probe any inconsistencies with external facts of
little or no doubt. Responses obtained in interviews where these omissions
occur are very likely to be inaccurate and skewed by this. (Annon,
"Recommended Guidelines ...", 137).
In State v. Danforth, the CH interviewer confirmed that the
only checking for consistency done by the interviewer is as to internal
inconsistencies within a statement itself. Ceci & Bruck (Jeopardy, 132)
recite an even more riveting example from the Little Rascals case in North
Carolina where the interviewer hears the child make a complete and credible
retraction, and then amazingly proceeds with questioning on an assumption of
sexual abuse, utterly ignoring the retraction.
b. Disregard, or 'Glossing-Over' Unexpected Ignorance or Lack
of Detail in Responses
Similarly, suspicious lack of detail in children's accounts
is almost universally ignored as a sign that the account may not have originated
in real events, but rather in a coaching experience. Hence, e.g., Wakefield and
Underwager (Accusations, 834) state that "External (i.e., real) events
should contain more temporal and spatial information, and should also contain
more sensory information and detail in comparison with internal (i.e. imagined)
Obviously a sexual abuse experience will not be merely
mundane to a child, and hence can be expected to be imbued with extraordinary
(albeit unpleasant) memorability and vividness. Hence, vagueness and lack of
detail should pose a red flag to interviewers; yet it goes largely ignored by
interviewers who are convinced ahead of time that abuse actually occurred.
c. Acting as if an Ignorant Response or Frustrated
Uncooperativeness Instead Connotes Emotional 'Choking Up'
In State v. Danforth, one misleading technique repeatedly
used in the child's interview by CH was this interviewer reaction to what was in
fact nothing more than an honest expression of ignorance by the child to a
question without application to the actual facts inquired about. On other
occasions, the interviewer gave a like reaction, assuring the child that it was
all right if the subject matter was hard to talk about. While this suggested to
viewers that the child was emotionally 'choking up', and needed reassurance to
go on, in point of fact, the child simply sat there impassively, waiting for the
next question, after giving a response of ignorance.
Later, this happened again, when the child simply became
peevish over the tedious interminability of the interview, in which he obviously had no interest
(having already asked
what time it was twice). Again the interviewer gave the same reaction, as if the
child's discomfort was emotionally wrenched, instead.
Finally, when the child behaviorally protested the
continuation of the interview by simply ceasing giving answers, the interviewer
again repeated the line about how it is all right that it is hard to talk about.
But in reality, the child simply wanted to leave to go out and play. The reality
was that the child saw the interview as being of no particular significance, and
simply as something to finish off like any other pointless task, while the
interviewer tried desperately to misrepresent the child's reaction as being
that the interview is too emotionally 'heavy' to bear.
d. Inaccurate Summarization
CH interviewers also engage in another technique that is
related to repeating back to the child misinterpretations of the child's
responses. This technique is for the audience, however, and consists of inaccurately summarizing what the child has actually said, by repeating the
various misinterpretations, paraphrased into a succinct, but wildly inaccurate
version of what the child said. By this time, children who have given rote
recitations of non-events as false accusations are almost invariably bored to
tears, and m a hurry to leave. So they do not take issue with what the
interviewer is saying. Children are not aware they are being videotaped, and
have no idea of the significance of the interview, so they simply disregard any
significance of the interviewer's misunderstandings, simply brushing it off with
the same nod that the interviewer indicates will signal the end of the
interview. In this way, the child is made incorrectly to appear to be agreeing
with the summary, as a price of being dismissed by the interviewer (Perry,
All of these last additional techniques in videotaped
interviews serve as further attempts to make an accusation convincing to a
viewer, e.g., to a judge or juror. They have no other purpose. In concert with
all other misleading factors cited above, they constitute forensic fraud in
service of extremist ideology.
IV. What Needs to Be Done
1. Ban Videotaped 'Interviews' as Substitute for child
The argument for this outcome has already been set forth in
the above text. While the Unites Sates Supreme Court has not yet spoken as to
admissibility of these interviews, given everything we have surveyed above,
there is no room for doubt that they do not and inherently cannot arise to the
stringent level required of presenting "guarantees of trustworthiness, such
that cross-examination would be pointless. These interviews are in fact no
substitute for a child's testimony, and they should not be allowed to function
2. Where Child Testifies, Allow Only Videotaped Statements,
Only Where Inconsistent with Child's Testimony, and Only If Accused Can Challenge It
with Expert Psychological Testimony about the Above Phenomena
The foregoing conclusion does not have the same force, in
cases where the child testifies. In these cases, the child can at least be
questioned in an effort to get at the truth, where such interviews may have
distorted the truth.
However, these interviews are not necessary where they are
simply consistent with, and cumulative to a child's testimony. In this use, they
would simply be a bolstering of credibility, as if showing that the child's
story had not changed. This, of course, would only serve to obscure the facts
where a child's account, both in the interview and at trial, was simply a
rote-learned fiction coached to the child by a spiteful parent or by others,
before the interview.
So use of such interviews, even in that case, should only be allowed where the
interview is inconsistent, and hence is needed for an effective cross-examination
challenge to the child's testimony.
In any event, such statements should only be admitted that they can be
challenged as to procedure or psychological impacts on the child by an expert
1. Reverse All of the Above Trends, and Account for the Above Inevitable
Obviously, as a starting point, each of the foregoing problems with
interviewing needs to be addressed before these interviews should be accepted as
forensic evidence for those involved in diagnosis and treatment of victims of
sexual abuse. In light of the above observation of the harm inflicted by attempting to treat a non-victim as a victim, this is of crucial importance.
2. Use Other, Counteracting Interviewing Techniques
A. Stacking and Counterstacking
Perry & Wrightsman, (245) urge the use of "stacking and
"With this method, the interviewer first asks questions that call for a
positive reply. This is followed by questions calling for a negative reply to
achieve the same answer. Use of stacking and counterstacking enables the
questioner to ascertain whether the child truly understands what is being asked."
B. Narrative in Reverse Order
Wakefield and Underwager counsel the use of questions that
essentially require a narration in reverse order starting at the end of an
alleged incident, and working backward, stage by stage. With each later stage
described, the interviewer then asks, '"What happened just before that?"
This technique is based on the observation that a rote-learned false account is
far more difficult to keep straight in reverse, but a real story can be recited
by recall of individual stages without difficulty, regardless of chronology.
Hence this technique should be used aa a screening device universally.
In light of the observation above, it is strenuously urged
that child interviewing should be seriously reexamined for its propensities to
cast suggestion and its use of other techniques that both mislead the child into
giving a substantially fictionalized or incorrect account, and that tend
to mislead the viewer/listener, who, as in the cases of jurors or therapists may be
about to make life-altering decisions based on that interview. Especially because of the profound impacts and the
many areas of erroneous influences, the specific type of videotaped
interview prepared only for use in criminal trials should simply be banned from
that use altogether.
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