Confrontation Clause Revisited: Supreme Court Decisions Idaho v Wright, and Craig v Maryland - A Psychologist's Response

Ralph Underwager^*

These two Supreme Court decisions relating to questions of constitutional constraints and requirements for the justice system in handling allegations of child sexual abuse demonstrate the great difficulties in the relationship between the legal system and the science of psychology.  The Maryland v. Craig decision particularly sets up a requirement that no reasonable nor responsible mental health professional should even begin to attempt to meet.  The impact of this ruling and the contretemps it will create for psychologists must be discussed.

The Syllabus summarizes the requirement "(c) The requisite necessity finding must be case specific.  The trial court must hear evidence and determine whether the procedure's use is necessary to protect the particular child witness's welfare; find that the child would be traumatized, not by the courtroom generally, but by the defendant's presence; and find that the emotional distress suffered by the child in the defendant's presence is more than de minimis."

This ruling appears to demand that there be an evidentiary hearing, prior to the trial, at which there will be testimony, most likely by experts, about the effect on the specific child of testifying in the presence of the person accused.  A judge may, of course, question a child but it is a rare judge who will say "I alone can determine the questions raised by the Supreme Court's rulings."  If the judge decides the child will, indeed, be so harmed by the appearance of the defendant in the presence of the child, then the judge may order the use of a videotape process so that the child testifies but is not able to see the defendant.  However, the prosecution apparently must elect to try to get videotaped testimony before the fact finder rather than place the child on the stand to testify in the presence of the defendant.  Then there will be the hearing on this issue.

The experts, therefore, who will be asked to offer opinions on this question are most likely psychiatrists, psychologists, and social workers, the professionals who currently offer expert opinions in child sexual abuse cases.  While some law enforcement professionals may now give expert opinions in sexual abuse cases, it is highly unlikely that a court would qualify law enforcement officials to give an opinion on the future effects of testifying on a young child.  Psychologists supposedly are the more reliable diagnosticians and assessors in the mental health team.  It is both psychologists and psychological research that is going to be used in trying to meet this requirement.

The simple fact is that psychologists cannot do it.  No mental health professional can respond to this requirement with anything other than speculative, unfounded and unsupported, subjective opinion.

There is no research that approaches being able to separate out the single factor of the defendant's presence from all other factors that may produce more than minimal emotional distress.  It is questionable whether there is any body of psychological research dealing with causation of human behavior that can claim to have isolated a unidimensional causal factor.  In spite of decades of effort, we still have no data to tell us whether intelligence is a single general factor or a multidimensional capacity.  Nobody knows how to isolate or identify the specific factor of the presence of the defendant, by itself, causing serious emotional distress.

The Supreme Court's ruling also requires psychologists to make a prediction that the presence of the defendant alone will cause serious emotional harm.  The ruling clearly states that this must be "more than mere nervousness or excitement or some reluctance to testify."  How can this prediction be made?  What kind of data is necessary to present in a court of law the prognosis of severe emotional trauma to a child?  The attempt to establish the etiology, nature, treatment, and prognosis of childhood disorders continues to leave most of the major questions unanswered.  The most that can be claimed on the basis of empirical data is that there are two broad-band syndromes, "undercontrolled" and "overcontrolled" behavior.  The narrow-band syndromes of hyperactivity, aggression, and delinquent behavior form the "undercontrolled" syndrome.

Anxiety, depression, somatic complaints and obsessive-compulsive behavior covary to form "overcontrolled" behavior (Ross & Pelham, 1981; Achenbach & Edelbrook, 1984).  Where in this limited area of child psychopathology concepts is there anything permitting the prediction of serious emotional trauma as required by the Supreme Court?

It is also likely to be the case that the effort to protect children from harmful effects of testifying will focus primarily on younger children.  It seems reasonable to expect prosecutors to conclude that the older the child the less need there is for protection, although again there is no scientific data to permit a psychologist either to give that advice or express that opinion.  There are two problems psychologists must consider in response to the Supreme Court's expectation and requirement.  The first is simply the issue of predicting anything given the current state of our science.  The second is the ability of psychology to measure or to assess the level of trauma in young children with any validity or reliability.

No psychologist can deny that we are not very good at prediction.  In order to arrive at any prediction, it is necessary to meet two prerequisites.  There must be a sound and empirically-supported theory about the causal variables involved in whatever phenomenon we are interested in predicting.  Secondly, we must have an adequate and reliable method for measuring those variables (Meehl, 1973).  We are nowhere near meeting those requirements in relationship to the Supreme Court's ruling that a case specific finding must be made on the effects of testifying caused by the presence of the defendant.

For most of the contexts in which prediction has been studied, predictability is low for both clinical and actuarial methods (Dawes, 1990a).  Nevertheless, statistical prediction has been shown to be more accurate and more valid than clinical prediction.

There is no controversy in social science that shows such a large body of qualitatively diverse studies coming out so uniformly in the same direction as this one (the relative value of actuarial versus clinical prediction).  When you are pushing 90 investigations, predicting everything from outcomes of football games to the diagnosis of liver disease and when you can hardly come up with a half dozen studies showing even a weak tendency in favor of the clinician, it is time to draw a practical conclusion (Meehl, 1986, p. 370).

The practical conclusion is that psychologists had better keep their mouths shut about clinical impressions, clinical observations, and clinical interviews.  Given the current status of the research evidence, any psychologist who bases an opinion, a diagnosis, or a decision on clinical data alone is vulnerable to serious challenge, possible embarrassment, and a potential for charges of unethical behavior.  Unfortunately, psychologists, as well as psychiatrists and social workers, are not likely to accept the reality that a simple linear model does better than their years of training, their highly intelligent, sophisticated, richly experienced observations and cognitions and their powerful intuitions (Dawes, 1988).

But simple linear models outperform experts in every study (Dawes 1990).  If clinicians attempt to inject some form of subjective judgment or fiddle with weighting factors the only effect is to reduce the accuracy of the simple actuarial procedure (Dawes, 1988, 1990).  If psychologists did the honest thing and told the justice system a jury or judge can do better with a $2.95 hand calculator than by attending to the pontification of experts, the cherished beliefs about mental health experts' ability to see inside other people and understand them better than they do themselves would have to be abandoned.  In spite of the highly reinforcing cocktail party experience of frequently being asked for counsel, advice, or being feared as a soothsayer, psychologists most forthrightly should make clear the limitations and the qualifications of their wisdom and competence.

The second issue of assessing the future trauma to young children must also be considered realistically in light of the best scientific information available on the ability of mental health professionals to make valid and reliable assessments of young children.  A basic principle is that adult criteria of psychopathology cannot be applied to children (Bemporad & Schwab, 1986).  Achenbach (1980) observes that most adult disorders have no clear counterpart in children and adult-oriented diagnostic constructs cannot be indiscriminately transferred to children.  Children must be assessed in terms of their need for return to and continued normal development.  The number of mental health professionals who may be qualified by the court as experts and both understand and are guided by this reality is likely to be very small.  Therefore opinions expressed on the possible serious emotional trauma caused by testifying in the presence of the defendant are apt to be influenced by imposition of constructs of adult psychopathology on children.  This is what the Supreme Court does when it requires that a child must exceed mere nervousness, excitement, or a reluctance to testify.  These are adult concepts applicable to adults but there is no basis for an uncritical and unreflective transfer to young children.

Meeting the Supreme Court requirement demands a taxonomic category that must demonstrate acceptable validity and reliability.  The DSM-III and III-R represent the best effort thus far to produce taxonomies for childhood and adolescence disturbance. There has been severe and continued criticism of the DSM-III childhood and adolescence section.  The major issue is the extent to which DSM-III meets accepted criteria for a good classification system for behavior.  Quay (1986) summarizes multivariate analytic studies bearing on this section and concludes "... it is clear that DSM-III has far more categories than have been empirically validated" (p.158).  He states "There is very, very little evidence from the multivariate literature that supports separate and distinct syndromes of anxiety and depression in children" (p.154).  Yet these are the very behaviors which are most likely to be predicted as showing a young child cannot testify in the presence of a defendant.  In examining the research on reliability Quay (1986) reports an overall kappa for the major category of Anxiety Disorders in children of .52.  Chance level is .50.  Note that this reliability estimate is for the yes or no classification of Anxiety Disorder, not the subtypes.  He concludes "The major category of Anxiety Disorders is below the rather minimal level of .60 for the Conduct Disorders" (p. 161).  If the best effort of the mental health professions to produce taxonomic categories that are useful and meaningful for describing and predicting childhood and adolescent behaviors cannot demonstrate anything better than chance, how can any psychologist go into a court of law and give an opinion predicting a young child's response to testifying in the presence of the defendant?  The data show that a judge would likely do just as well by flipping a coin and saving a great deal of time and expense.

Assessment requires some form of measurement.  For psychologists, this comes down to psychometric procedures showing sufficient reliability and validity to be used as psychological tests.  For young children there are very few procedures that have demonstrated acceptable levels of validity and reliability.  McReynolds (1989) reviews tools for clinical assessment and presents three tests for children with supportive research showing acceptable levels of validity and reliability.  They are the Child Behavior Checklist and Profile (Achenbach & Edelbrook, 1983); the Personality Inventory for Children (Wirt, Lachar, Klinedinst, & Seat, 1984); and the Brief Psychiatric Rating Scale for Children (Gale, Pfefferbaum, Suhr, & Overall, 1986).  None of these procedures provide information useful for predicting a child's response to testifying.

One of the more astonishing facts about psychology and children is that psychologists continue to use procedures for which there is no demonstrated validity or reliability.  These unsupported procedures include drawings, projective tests, clinical interviews, and dolls (Wakefield & Underwager; 1988, Underwager & Wakefield, 1989).  Melton (1989), in reviewing the Child Abuse Potential Inventory, a device he regards as psychometrically acceptable, makes a statement that is applicable to the widespread use of unacceptable procedures as well.

First, although the qualifications in the manual are well specified, my experience in conducting continuing education workshops leaves me virtually certain that such qualifications about the application of base rates will seldom he provided in practice, and, if provided, rarely understood or heeded (p. 154).

There is little basis to think that psychologists who use procedures that are completely devoid of any demonstrated acceptability will either understand their mistaken and unethical behavior or change it.  "What has happened is that the public is awed, and — worse yet — many practitioners pay little or no attention to the reviews. (If they did, none would have given a draw-a-person test or a Rorschach Ink Blot test since the early 1970s)" (Dawes, 1990b).  Nevertheless, when psychologists use such unacceptable procedures in an attempt to meet the Supreme Court's requirement, any prediction including information alleged to be based on these procedures can be objected to or clearly impeached.

Can experience enable a psychologist to meet the Supreme Court requirement for case-specific prediction on the effects of testifying?  An American Psychological Association (1982) Task Force concluded there was no evidence that professional competence is in any way related to years of experience as a psychologist.  Garb (1989) reviewed the research on clinical experience and accuracy of judgments and decisions.  There is no relationship to accuracy.  There is no relationship of accuracy to expressed confidence in judgments or decision.  The only effect experience has comes from mastering techniques that demonstrate acceptable validity and reliability.  There is no increment from experience with a technique beyond that of the validity of the technique itself when it is properly used.  "The results on validity generally fail to support the value of experience in mental health fields.  However, the results do provide limited support for the value of training" (p. 391).  There is no evidence that an experienced clinician can somehow overcome the weaknesses of invalid and unreliable techniques and do a better job than the shoddy technique.

In describing his experience on the American Psychological Association Ethics Committee Dawes (1989) states that the most common complaint against psychologists who gave testimony was that a diagnostic or predictive conclusion had been reached without having interviewed the person.  There was one practice about which there were no complaints, that is the claim that experience alone qualifies a person to express expert opinions:

That was the assertion that the testifying clinical psychologist was qualified to make diagnostic or predictive judgments with "reasonable certainty" on the basis of "experience" with people similar to the person about whom the judgment was made.  If, of course, such experience (e.g., "30 years of dealing with abusive parents in my private practice") was unrelated to the validity of the judgment made, then citing it as justification would constitute incompetence, and according to the rules of the American Psychological Association, incompetence is unethical (Ethical Principles of Psychologists, Principle 8e, 1981).  Moreover if the research evidence indicates that experience is not a valid ground for claiming expertise, the psychologist is ethically mandated to be aware of that research and to act in accord with its findings (Ethical Principles of Psychologists, Principle 8e, 1981) (Dawes, 1989, p. 458). 

Given all these considerations, a psychologist cannot in good conscience and as a responsible professional go into a court of law and give testimony that a child will be so seriously damaged by the sole factor of the presence of the defendant that the use of a videotaped testimony procedure is mandated.  Any psychologist who does offer such testimony is behaving in an unethical manner.  A psychiatrist or social worker who may elect to offer such an opinion demonstrates the weakness of psychiatric and social work training and is subject to rational and irrefutable impeachment.

For the psychologist not only is the ethical principle cited by Dawes involved, but the fundamental ethical requirement not to harm people or to abridge or deny their individual or civil rights is involved.  When there is an allegation of sexual abuse, this is an highly charged environment in which the lives of individuals are markedly and dramatically affected.  Children who have been abused are liable to be missed.  Children who have not been abused may be victimized by adults who teach them to believe they have been abused.  Persons accused may be wrongfully convicted and spend years or a lifetime in prison.  Families that may have been responsive to treatment may be permanently destroyed.  Psychologists must very carefully and thoughtfully ascertain that any testimony proffered in an evidentiary hearing prior to a trial to determine if videotaped testimony of a child is permitted at trial is based upon sound and credible scientific data that can be provided to the court and to the public and to peers.  If that cannot be done, the psychologist must avoid giving testimony.  If other mental health professionals do offer the court opinions on this issue, the psychologist must be wiling to offer evidence showing the impossibility of meeting the requirements of the Supreme Court Ruling.

The Supreme Court majority ruling in Maryland v. Craig twice cites the American Psychological Association Amicus Curiae brief and refers to authorities cited in the APA brief.  Justice O'Connor accepted the claim of the APA Brief that there is a "growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court."  The Amicus Curiae brief of Underwager, Wakefield, and Kiefer (1990), submitted in response to the APA brief, asserts that low and doubtful validity material is presented to the Supreme Court by the APA brief as if it were high and clear validity material.  The APA brief's claim that there is now strong scientific evidence relating to effects of testifying is highly questionable.  The citation of material boils down to a single study by Goodman, who is also author of the brief, purporting to show evidence of trauma.  One study does not constitute strong evidence.

When a high status professional association of psychologists claims to speak for the science of psychology and gives opinions that are questionable and do not represent the highest standards of the profession to one of the most powerful institutions in our society, it is not surprising that decisions and policies then elaborated by that institution may be flawed and unrealistic.  Rather than properly informing the Supreme Court of the limitations of the application of the science of psychology to vexing and troublesome social issues, the APA brief encourages and advances overinflated and overly optimistic concepts of what psychology and psychologists can do.  The choice by Psychology and Law, Division 41 of the American Psychological Association, to sponsor and recommend this brief and the decision by the APA Chief Executive Officer, Raymond Fowler, to submit it to the Supreme Court as an Amicus Curiae brief of the American Psychological Association must share the onus of abetting the establishment of a procedure which psychologists cannot ethically perform.

A further instance of the tension between the justice system and psychology is the unquestioning acceptance by the law that physical presence, oath, demeanor of witnesses, and cross-examination can assure the reliability of evidence presented.  The Supreme Court majority opinion in Maryland v. Craig relies upon these elements of confrontation and asserts that videotaped testimony preserves and presents these factors and is therefore acceptable.  Face-to-face confrontation is not necessary for these purportedly effective variables to be available to the fact finder.  Therefore, the goal of the most accurate and reliable decision may be met through the use of a videotaping procedure.

When the Supreme Court accepts and relies upon these concepts in Maryland v. Craig, it is an example of what Meehl (1989) calls "fireside inductions."

... I mean those commonsense empirical generalizations about human behavior which we accept on the culture's authority plus introspection plus anecdotal evidence from ordinary life.  Roughly the phrase, "fireside inductions" designates here what everybody (except perhaps the skeptical social scientist) believes about human conduct, about how it is to be described, explained, predicted, and controlled. ... That the psychological presuppositions underlying the criminal law should be subjected to merciless armchair scrutiny and quantitative research is not said pro forma, but expresses a sincere conviction (p. 522-523). ... In thinking about law as a mode of social control, adopt a healthy skepticism toward the fireside inductions, subjecting them to test by statistical methods applied to data collected in the field situation ... (p. 540).

Meehl (1989) also draws a distinction between psychological theories, techniques, and procedures with high and clear validity and those with low and doubtful validity.  Only those with high and clear validity should be used to challenge and hopefully correct "fireside inductions."  Testimony in court by psychologists should be limited to high and clear validity material or at the very least the limits and qualifications of low and doubtful validity statements must be described.

There is a body of scientific research that bears upon one of the four factors, demeanor.  Demeanor is often referred to in the justice system.  The belief is that judges, juries, and attorneys can discern truthfulness and deception by observing the demeanor of a witness.  A recent review of the available research on deception (Hyman, 1989) concludes "Although I have managed to read only a small fraction of the literature, I have become optimistic about the possibility of a coherent psychology of deception in the strong sense" (p.151).  Deception may be deliberate and willful as in the behavior of a con man.  It may also be unwitting and the consequence of error, stupidity, or dogmatism.

Children practice deception.  Triplett (1900) observed frequent deceptions among young children.  DePaulo, Stone, & Lassiter (1985) report that young children frequently lie.  However, they do not do it very well.  First graders do not fool their peers but by fifth grade children fool their peers, strangers, and sometimes their parents.  Deception appears to require a minimum set of cognitive capacities to be effective.  There is a developmental process so that by early adolescence children are reasonably effective in deceiving others (Hyman, 1989).  Some theorists claim there is an adaptive benefit to being skilled at deception and that it is one of the factors in the natural selection process (Bond, Kahler, & Paolicelli, 1985; DePaulo, Rosenthal, Green, & Rosenkrantz, 1982).

Human beings are not at all good at detecting deception.  The confidence of the law that demeanor of witnesses can be successfully read to permit a finder of fact to reliably assess truthfulness or deception is erroneous.  The relevant research shows many of the false ideas common sense enshrines and maintains.  The common-sense concept that people who look you in the eye are being truthful while those whose gaze is shifty and indirect are being deceptive is false.  It is liars who look you in the eye (Bond, et al. 1985).

There are behavioral cues to deceit but "observers who are exposed to the usual interpersonal input, the full audio-visual presentation, ignore these behavioral clues and instead rely upon those aspects of voice and speech which do not differentiate deceptive from honest behavior" (Ekman, 1989, p. 79).  This study suggests that the Supreme Court's assumption that video-taped testimony can provide a finder of fact with all the cues of a live presence is questionable.  It may well be that videotaped testimony does not increase accuracy and reliability of assessment of evidence by a fact finder but may increase error.

Bull (1989) examines the question of whether training can increase the ability to detect deception and concludes on the basis of published studies that on the job experience and training does not increase ability of law enforcement officers to detect deception.  There are many hazards in the detection of deceit described by Ekman and O'Sullivan (1989) who also present a 39 item checklist for the lie-catcher.

In deadly deceits, when a truthful person could be falsely imprisoned or executed for a crime or a lying murderer could escape conviction, every legal attempt should be made to discover the truth.  But the process of interpreting clues to deceit or truthfulness should be more explicit, more deliberate, and more careful (Ekman & O'Sullivan, 1989; p. 329).

Research related to deception and the detection of deception demonstrates across a large number of diverse studies that there is no basis to assume a better than chance performance by either trained or untrained persons.  There is some suggestion that use of audiovisual presentation may increase the unreliability of assessments by observers of the behavior.  The "fireside induction" of the Supreme Court that observation of demeanor through a videotape process can assure reliable assessment of evidence and this meets the constitutional requirement for confrontation is not supported by the empirical research available.

The other side of the situation is the possibility of a fact finder having a predisposition to see a certain kind of witness as more accurate or credible than they are.  An examination of this question in the review chapter by Dunning (1989) concludes that "If the relevant case involves sexual abuse, a child is likely to be seen as particularly credible" (p. 235).  If there is little evidence to suggest jurors can detect deception and some evidence to suggest jurors are more likely to find a young child in a sexual abuse case as particularly credible, a reasonable conclusion is that child sexual abuse cases may have a disproportionate level of false positives, wrongful convictions of innocent people.

This is the kind of information that psychology ought be making available to the justice system rather than presenting low and doubtful validity material that may result in further extension of concepts without empirical referents into establishing policies or procedures.

An important kind of expert testimony should consist of a scholarly showing that no trustworthy expertise exists (either side!) in certain areas.  But because of widespread scientific incompetence among practitioners, such critical testimony will collide with the customary legal standard ... If our evidentiary rules do not permit this critical, consensus challenging role for the expert ... then the idea of greatly restricting areas of psychological expertise ... becomes regrettably more appealing (Meehl, 1989, p. 547).

The other factors of the Supreme Court ruling, i.e., physical presence, oath, and cross-examination, that are asserted as aiding in the establishment of accurate and reliable testimony may also be subject to challenge.  Briefly, there is evidence showing that jurors respond to physical attractiveness and overrate good-looking persons and judge more harshly ugly persons.  Physical presence, therefore, is not likely to be a clear advantage for reliability.  The oath taking is problematical because young children often are not even asked to take an oath.  The research on cognitive development clearly demonstrates young children do not have the cognitive capacity to understand the concept of oath.  There is no guarantee that cross examination can be trusted to assure reliable evidence is presented to the fact finder.  Too many variable factors may affect cross-examination to diminish any effectiveness to simply accept it as characterized in the Supreme court ruling "the greatest legal engine ever invented for the discovery of truth."

But this does not mean that children cannot provide evidence in a manner to assist a fact finder in reaching a reasoned decision.  Children can be sources of reliable information for adults.  Adults need to know and understand the strengths and weaknesses of children, the possibilities and limitations imposed by the developmental process, and the impact of their own behavior on children.  The problem is not so much with children but rather with adults who do not know how to behave so as to permit a child to produce the most reliable information they can (Garbarino & Stott, 1989).  The account of the three-year-old Colorado girl who was found in the bottom of an outhouse in a National Forest recreational area shows that children can give credible and reliable information (Jones & Krugman, (1986).  The difference was that adults knew nothing about the girl and therefore had no preconceived notions or hypotheses.  They had to be open ended and allow free recall statements from the child.  She was able to provide an account that resulted in the arrest and conviction of the assailant.

The Supreme Court Ruling in Maryland v. Craig does not encourage the development of effective means to permit children to provide the best and most reliable information they are capable of.  Instead, it sets up impossible procedures and goals that cannot be met by any reasonable person.  It can only have the effect of further complicating and confusing the attempt to reduce the frequency of child sexual abuse.
  

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