Interviewing Methods and Hearsay Testimony in Suspected Child
Sexual Abuse Cases: Questions of Accuracy
Judith K. Adams
ABSTRACT: It is difficult to obtain accurate information from young children. The potential inaccuracies in hearsay testimony are a crucial issue because of the likely due process violations created by inaccurate and
unreliable hearsay. The current research on interviewing techniques which may compromise the reliability of children's testimony is summarized and methods of increasing the accuracy of interviews and hearsay testimony are discussed. It is particularly important to videotape all interviews with the child.
In the past two decades, the United States has seen a dramatic increase in the number of sexual abuse reports. The trend has continued during the past 10 years, with the number of reports of sexual maltreatment of children rising steadily from 325,000 in 1985 to nearly half a million in 1992 (Lamb, 1994). Unfortunately, because of its very nature, child sexual abuse usually occurs in private with no witness other than the alleged perpetrator and the victim. Investigators must depend on children's accounts or physical evidence in order to determine whether or not allegations of sexual maltreatment are valid. Medical evidence, however, is seldom sufficient to identify a specific perpetrator, and many forms of sexual abuse do not leave any physical signs. When physical evidence is absent, the only remaining alternative is to obtain information from the child witness.
Questions concerning the reliability and credibility of children's accounts are often raised in adversarial legal proceedings, and these have fostered a highly contentious debate concerning the value and limitations of children's testimony (Lamb, 1994). Bruck and Ceci (1995) observe that the
field of interviewing children, with concerns about the suggestibility of children's testimony, is a rapidly expanding area and reviews of the literature that were published only a few years ago are now out of date. Assertions about research methodologies and results made as recently as 1991 may no longer be valid.
Bruck and Ceci (1995) note that the current research indicates that certain interview conditions have a high risk of contaminating young children's reports. Contrary to previously-held beliefs, errors made by children in reporting sexual abuse are not limited to errors of omission (i.e., failure of the child to report important events). Under certain conditions, young children can also make errors of commission about personally experienced events involving their own bodies i.e., reporting that an event occurred, which, in fact, did not occur. Ceci and Bruck make no distinction between interview and investigation and they define an "interview" as any discussion with any person, whether it is a parent, a teacher, a social worker, an attorney, or a law enforcement officer. Their research calls into question the validity of the axiom that "children never lie about sexual abuse." Several researchers in the
field of children's testimony say the assumption that children never lie about sexual abuse is unwarranted (e.g., Ceci & Bruck, 1995; Wakefield & Underwager, 1989).
Several factors affect the likelihood of children giving misinformation about personal events. Foremost among these are the interviewing methods which are used in obtaining the testimony. Repeated questioning, delayed questioning, suggestive and misleading interviewing, the emotional tone of the interview, and the status of the person conducting the interview can all have a significant negative impact on the testimony which is obtained from the child. Furthermore, if the interviewer has a bias that sexual abuse has occurred, the interviewer's methods of questioning will be adversely affected and the child's response or testimony will be consistent with the interviewer's bias.
Improper Interviewing Methods and Their Negative Affect on Children's Testimony
Interviews with children in suspected sexual abuse cases far too often are conducted using improper interviewing techniques. Mapes (1995) has identified a continuum of questioning methods, ranging from spontaneous disclosure by the child with non-leading techniques, through minimally leading, moderately leading, to maximally leading techniques. Mapes notes that if the child is presented with inaccurate post-event information, interpretations, or explanations, the misleading information will modify the child's memory of the event being recalled. Generally speaking, the younger the child, the more likely the child will accept someone else's interpretation of an event if it bears a resemblance to the original event.
Numerous studies demonstrate that improper interviewing methods may negatively affect the reliability of children's testimony. The New Jersey Supreme Court, in State v. Michaels, relied on the social science literature on child witnesses and "accepted as its central inquiry whether the
interview techniques used by the State in this case were so coercive or suggestive that they had a capacity to distort substantially the children's recollections of actual events and thus compromise the reliability of the children's statements and testimony based on their recollections" (McGough, p. 371).
Although a full discussion of the relative strengths and risks of various interviewing methods is beyond the scope of this review (for a complete review of recent literature see Adams, 1995), the following discussion summarizes techniques that can potentially contaminate the child's testimony.
Several studies show that asking children the same question repeatedly within an interview and across interviews often results in the child changing his or her answer (Ceci & Bruck, 1995; Poole & White, 1991). Preschool age children are particularly vulnerable to the contaminating effects of repeated questioning. Bruck and Ceci (1995) note that children seem to reason, "The
first answer I gave must be wrong, that is why they are asking me again. Therefore, I should change my answer" (p. 279). They cite studies in which children who were questioned in a contradictory manner quickly changed their stories to conform to the suggestions and beliefs of the interviewer. Suggestions planted in the
first interview session were quickly taken up and mentioned in the second interview session. This means that if a child is originally interviewed using improper methods, the "testimony" of that child can be contaminated through all subsequent interviews.
In the highly publicized Wee Care case, Ms. Kelly Michaels was accused of hundreds of counts of sexual abuse and later convicted of 115 counts of sexual abuse against 20 three- to
five-year old children. She was said to have licked peanut butter off children's genitals, played the piano while nude, made children drink her urine and eat her feces, and raped and assaulted these children with knives, forks, spoons, and Lego blocks. She was accused of performing these acts during regular school hours over a period of 7 months. During this time, none of the alleged acts were noticed by staff or reported by children to their parents. Ms. Michaels was later sentenced to 47 years in prison, but was released on bail after 5 years (Ceci & Bruck, 1995).
In addition to conversations likely held between the children and their parents, the children were repeatedly interviewed by a child therapist, by an investigator for the Division of Youth and Family Services, and by an expert for the prosecution. Bruck and Ceci (1995) analyzed available audiotapes of the interviews and describe the highly suggestive, coercive, and inappropriate interview techniques. They note that the children who ultimately became witnesses in court were interviewed dozens of times before they "testified." The risks of contamination of the children's testimony were mammoth. The interviewers' misconduct in conducting the interviews furnished the pivot of the New Jersey appellate's decision to reverse Kelly Michaels' conviction (McGough, 1995). (For a more detailed description of that case and other famous day-care cases, see Bruck and Ceci  and Ceci and Bruck ).
Unfortunately, repeated interviewing is far more likely to be the rule rather than the exception in suspected sexual abuse investigations. Until the recent past, the potential risks of contamination of the child's testimony by improper, in this case, repeated questioning has been widely overlooked.
Suggestive or Misleading Questioning
A number of studies show that repeatedly giving children misleading information in a series of interviews can have serious effects on the accuracy of their later reports. Not only can misinformation become directly incorporated into the children's subsequent reports, it can also lead to fabrications or inaccuracies which do not directly mirror the content of the misleading information or questions. It is now known that misinformation presented in initial or early interviews can taint the testimony that the child gives later. In other words, as Bruck and Ceci (1995) note, the "primary evidence has been destroyed" (p. 272). After the use of improper interviewing methods, a determination of what, in fact, actually happened to the child becomes virtually impossible.
Investigators approaching a crime scene are taught not to touch objects, weapons, or features of the surroundings because of the imminent risk of destroying the evidence. Yet investigators in repetitive child sexual abuse cases appear to have no knowledge whatsoever of the potential of their own interviewing methods in destroying the evidence, i.e., the child's testimony.
Emotional Tone of the Interview
Children may give incorrect information to misleading questions when the interviewer creates an emotional tone of accusation (Bruck & Ceci, 1995). In some studies, when an accusatory tone is set by the examiner, children may fabricate reports of past events even in cases when they have no memory of any event occurring. Goodman, Wilson,
Hazan, and Reed (1989) demonstrated that "an atmosphere of accusation" can be created, in which children will produce reports of abuse when none has occurred.
Effects of Peer Pressure
In some cases, interviewers have told children that their friends have "already told" about being abused, even when this is not true. Bruck and Ceci (1995) note numerous examples of the use of peer pressure in the Wee Care case, both by telling the child what other children had allegedly reported, and by threatening to tell other children that the child being interviewed had been uncooperative. In one example, the interviewer said, "Oh, come on, we talked to a few more of your buddies. We talked to everyone now. And everyone told me about the nap room, and the bathroom stuff and the music room stuff and the choir room stuff and the peanut butter stuff and everything. Nothing surprises me anymore."
Effects of Being Interviewed by Adults with High Status
Young children are sensitive to the status and power of their interviewers (Bruck & Ceci, 1995). As a result, they are especially likely to comply with the implicit and explicit agenda of such interviewers. Children are more likely to believe adults than other children, they are more willing to go along with the wishes of adults, and are more apt to incorporate adults' beliefs into their reports.
Children's testimony is susceptible to contamination from several factors. The legal system, according to McGough (1995), does little to insulate a child from this susceptibility; on the contrary, it compounds and undermines a child's resistance. Substantial intervals often occur between the observed events and testimony at trial. Multiple pretrial interviews are conducted. Interviewers who are authority
figures (police officer, prosecutor, parent, or counsel) may consciously or unconsciously influence the child's accounts. In light of these factors, substantial impairment and distortion of a child's memories seem inevitable.
Effects of Interviewer Bias on Children's Reports
Several researchers note a distinct "confirmatory bias" on the part of interviewers, i.e., that abuse has occurred and the purpose of the interview is to get the child to admit the abuse. Bruck and Ceci (1995) observe that some interviewers blindly pursue a single hypothesis that sexual abuse has occurred and fail to explore rival hypotheses that might explain the behavior of the child. When Bruck and Ceci reviewed tapes in the Wee Care case, they found them replete with interviewer bias. They report that when children said something that was not part of the interviewer's hypothesis, the interviewer ignored it.
When interviewers of the children in the Wee Care case were asked how they conducted their interviews, one admitted that "her goal was to induce the children to discuss sexual abuse" (Bruck & Ceci, 1995, p. 278), while another primary interviewer stated, "The interview process is in essence the beginning of the healing process" (p. 279). A third of the primary interviewers said, "So you open the interview in an effort to disempower (the accused person) of these super powers that she allegedly has . . . and also to let the children know that telling about these things was okay and they would be safe" (p. 279). Such statements reveal a clear assumption that abuse has occurred and demonstrate that these interviewers held preconceived biases that pervaded their interviewing methods and subsequent conclusions.
In a study conducted by Pettit, Fegan, and Howie (1990), children who were interviewed by biased interviewers gave the most inaccurate information. If an interviewer's belief was contrary to what the child had experienced, interviews were characterized by an overabundance of misleading questions which resulted in children providing highly inaccurate information.
It is generally recognized that the most reliable and accurate information is obtained from children who are responding to open-ended questions designed to elicit free narrative accounts of events that they have experienced. When direct questions are asked, they should be formulated as non-suggestively as possible, using developmentally and individually appropriate vocabulary and sentence construction. Repeated, highly-leading, or suggestive questions asked in an accusatory manner are most likely to promote distortion on the part of the child and may introduce details that are incorporated into and contaminate subsequent accounts (Lamb, 1994, p. 155).
In short, a great deal of emerging literature reveals that the credibility and reliability of testimony obtained from children may be compromised when improper interviewing methods are used. Several major concerns emanate from this discussion. As noted above, repeated interviews or interviews employing improper questioning methods can irreversibly taint the evidence, i.e., destroy the original testimony of the child, as early as the second interview. Improper questioning, even if the interviewer is unaware of using improper methods, can also destroy the primary evidence. Any attempt that is made to re-evaluate, re-examine or cross-examine the testimony of the child for presentation to a jury after several interviews may fail, since accurate information may no longer be obtained. The more interviews to which the child has been subjected, the greater the likelihood that the child's testimony has already been contaminated.
Risks of Inaccuracies in Hearsay Testimony in Child Sexual Abuse Cases
Hearsay testimony from mental health and other professionals plays a key role in many child sexual abuse cases. Compounding the risks of contamination from improper methods of securing testimony from the child, the resultant hearsay testimony is fraught with dangers of inaccuracy. Mental health practitioners or others who testify on behalf of the child are not necessarily accurate in their statements about what the child testified and may misinterpret what the child said.
McGough (1995), addressing the issue of hearsay in cases of child abuse, notes that most child abuse trials do not depend solely on in-court testimony of the child witness. Although rules of evidence prefer in-court testimony, many types of
"hearsay" out of court statements are admissible. In a great number of cases, the child does not testify directly, but a medical or mental health practitioner testifies regarding alleged reports obtained from the child, which is hearsay testimony. In such cases, the child is considered, by legal criteria, to be "psychologically unavailable" to testify directly. According to McGough (1995), there are four primary dangers when hearsay is received as trial evidence:
1. Faulty memory the danger that the declarant will forget key material;
2. Ambiguity the danger that the meaning intended by the declarant will be misinterpreted by the witness, and hence, the fact
3. Misperception the danger that the declarant misjudged, misinterpreted, or misunderstood what she heard or saw;
4. Lack of candor the danger that the declarant will consciously lie.
The first potential danger to the accuracy of hearsay is the faulty memory of the
declarant. A number of researchers (Bruck & Ceci, 1995; Ceci & Bruck, 1993; Loftus & Davies, 1984; Loftus & Ketcham, 1991) have provided scientific evidence which bears on the potential danger of faulty memory on the part of the child witness. A complete discussion of children's memory difficulties could
fill and has already begun to fill volumes. Summarizing the memory literature in a few sentences is difficult, but generally, memory can be seen as constructive, often inaccurate, and susceptible to numerous influences which reduce accuracy. The reader is directed to the published works of these authors for more complete analysis. Such studies are intriguing from the scientific standpoint, but appalling from the legal standpoint, with heavy implications for the judicial system.
Here the possibility of faulty memory on the part of the hearsay
declarant, i.e., the mental health professional, must also be considered. Bruck and Ceci (1995) have pointed out that hearsay declarants' statements are likely to be affected by faulty memory. According to these authors, adult interviewers are often inaccurate in recalling what was said or what took place in an interview. Neither the interviewer's remembrance of the interview nor the written documentation of the interview may be accurate. In general, adult remembrance of interviews is inaccurate. When asked to recall conversations, most adults may recall the gist, but they cannot recall the exact words used, nor the sequences of interactions between speakers. Bruck and Ceci (1995) observe that written summaries of unrecorded interviews may be subject to a number of distortions, and conclude that summaries of missing interviews do not substitute for an audio or video recording.
The second danger affecting hearsay testimony, ambiguity (McGough, 1995), is also prominent in child sexual abuse investigations. For example, for mental health professionals to ask a four-year-old child if someone "touched" him or her invites inaccuracy. The child who is four years old often cannot distinguish a general, affectionate touch from a sexualized touch. The child may honestly relate, on the basis of a concrete interpretation of the word "touch," that he or she was "touched." The investigator may interpret this as meaning that the child was touched in a sexual way, whereas the child may have been referring to a non-sexual touching. Immediately, an allegation of sexual abuse arises, with tremendous personal and social costs to all involved.
Other terms such as "private parts," "bottom," or "rubbing," may be interpreted differently by the interviewer and the interviewee. Ambiguity is also present in questions such as, "Did he/she hurt you?" "Was it a good touch or a bad touch?" or "Did the hug make you feel yucky?" When hearsay testimony is given on the basis of such ambiguous questioning, the risks of inaccuracy are increased.
Ceci and Bruck (1995) provide several examples of ambiguity, one being the fact that some summaries of interviews are written in such a way as to make one believe that children made spontaneous and detailed statements about sexual abuse. But review of transcripts reveals that children only responded "yes" or "no" to a barrage of leading questions.
The third danger to the accuracy of hearsay identified by McGough (1995) is the risk of misperception, the danger that the (hearsay) declarant misjudged, misinterpreted, or misunderstood what he or she heard or saw. Recent social science literature indicates that "if the interviewer has a bias that the child was sexually abused, this can color his interpretation of what the child said or did; and it is this interpretation that appears in the summary rather than a factual account of what transpired" (Ceci & Bruck, 1995; p. 243).
Bruck and Ceci (1995) note that the failure to have audio- or videotaped records of the initial interviews with children makes it impossible to determine the accuracy of their subsequent statements. In reviewing the methodologies used to interview children, when repeated or other improper questioning methods may have been used, it is crucial to know whether and how often the interviewer asked the child leading questions. We must know whether the interviewer "prodded the child's report" (p. 307).
Lack of Candor
During the past several years, investigators have focused a great deal of attention of the last potential danger, lack of candor. The issue of whether children can, will, or do lie has been hotly debated. Debate has also taken place over whether children are capable, i.e., have the intellectual or emotional capacity to lie. The argument is made that children do not have the intellectual ability to "conspire" and they could not possibly have the knowledge base upon which to base a lie about sexual abuse.
Inaccuracies in children's testimony are not likely to be the product of a methodical conspiracy or a premeditated plan to dissemble. Wakefield and Underwager (1989) indicate that "unless there is strong evidence of deliberate, intentional dissembling, it is foolish to spend much time or energy on the question of children lying." Yuille et al. (1993) also indicate that "false allegations" can take a variety of forms. Older children, such as adolescents, may deliberately make false accusations, while under other circumstances a false allegation may arise without a deliberate and willful attempt to dissemble on the part of the child.
Several studies now suggest that children as young as four years old can differentiate a lie from a truthful statement (Haugaard & Crosby, 1989), can keep secrets, at least part of the time
(Bussey, Lee, & Rickard, 1993), and may lie to conceal a misdeed (Stouthamer-Loeber, 1987). An inaccurate report can arise as the result of other factors, which are far more productive to explore.
However, in the current discussion, the lack of candor is not on the part of the child, but on the part of the hearsay
declarant. Dawson (1996), in documentation to the Texas Legislature, alleged falsification of records and investigative impropriety by the child protective agency. A recent address to the Annual Conference on Child Abuse and Neglect
(McAlexander, 1996) claims that "system professionals" may be motivated by
financial and personal (job-retention) motives. This author has heard of child protective service workers falsifying under oath, with the rationalization that "I will say anything I have to say to protect a child." Such inferences are shocking in consideration of possible lack of candor in hearsay.
McGough (1995) argues that all four of these dangers are inherent in statements volunteered by a child. The reliability risks escalate dramatically when the children's statements are the product of an investigative interview. Pretrial hearsay statements obtained through the use of improper interviewing techniques may be irreparably tainted by suggestive influences.
Due Process Considerations Related to Improper Interviewing and Inaccurate Hearsay
The preceding discussion has shown that questions can be raised about the techniques used to obtain or elicit testimony of abuse from the child. Additional questions can be raised about the hearsay declarant's account of what the child disclosed, since such hearsay may be inaccurate. The unreliability of the interviewing methods and the accuracy of the hearsay then can lead to subsequent questions regarding due process of law.
According to Riffe (1993), child abuse cases present a delicate balance of conflicting interests, those interests being the protection of the alleged victim from further harm and the accused's right to confrontation of the accuser. Legislatures have attempted to provide the courts with means to reach that balance by broadening allowable evidence to include more than the child's live courtroom testimony. Such legislative efforts, notes
Riffe, run dangerously afoul of the accused's right under the Confrontation Clause of the United States Constitution which requires that the accuser testify face-to-face before the accused and the jury in the courtroom.
Smallwood (1992) provides an in-depth discussion of admissibility of hearsay statements in criminal and juvenile child sexual abuse cases. Smallwood noted that the "Evidence" section of the Oklahoma Evidence Code, Title 22, Criminal Procedure (22 O. S. Suppl
§ 752 and 753) prescribes the manner in which testimony from an alleged child victim can be presented to a jury other than by the traditional in-court face-to-face witness/accuser setting. Initially, the hearsay statement (from a mental health professional) could only be admitted if there was corroborative evidence of the act, in cases where the child is unavailable as a witness. However, Section 752 has been amended, deleting the requirement that there must be corroborative evidence of the act.
Section 2801.3 defines the manner in which the court is to determine whether a hearsay statement of a child under the age of twelve (12) in either a criminal juvenile proceeding or in a sexual abuse case can be admitted. That section provides that the hearsay statement can be presented if the court
finds, in an out-of-court hearing, that the statement provides sufficient indicia of reliability and that the child either testifies or is available to testify at the proceedings, or is unavailable as defined by the Oklahoma Evidence Code (Section 2804). Smallwood notes that, in order to admit an out-of-court (hearsay) statement, the court is required to
find that the "time, content, and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability as to render it inherently trustworthy." Riffe (1993) provides clarification of the constitutional application of "indicia of reliability" from Britt v. [Oklahoma] State, explaining that:
(t)he manner the prior testimony was taken sufficiently assured reliability (as follows:) the
(witness's) statement at preliminary hearing had already been given under circumstances closely approximating a trial; (the witness) was under oath; (the defendant) was represented by counsel . . . ; (the defendant) had every opportunity to cross-examine (the witness) as to the statement; and the proceedings were conducted by a judicial tribunal, equipped to provide a judicial record of the hearings" (parentheses in original).
The Supreme Court of the United States ruled in Idaho v. Wright that admission of child's hearsay statements violated the Confrontation Clause of the Sixth Amendment. The Supreme Court decision held that the court must determine "particularized guarantees of trustworthiness," requiring that such "trustworthiness guarantees must be shown from the totality of those circumstances that surround the making of the statement and render the declarant particularly worthy of belief." Statements admitted under hearsay exceptions must be "so trustworthy that adversarial testing would add little to its reliability."
The overarching question is whether statements obtained from a child prior to a judicial proceeding and offered as hearsay declarations can indeed meet the requirements of "sufficient indicia of reliability." The emerging social science literature suggests that improper interviewing and investigation methods may seriously impugn the trustworthiness or reliability of the "evidence" itself. Moreover, the literature suggests that improper questioning can, in effect, destroy the primary evidence the testimony of the child such that cross-examination of the child can no longer produce reliable information.
Admissibility of hearsay testimony should also be carefully considered in light of the dangers inherent in such hearsay. Professionals providing hearsay testimony may have unknowingly misjudged, misinterpreted, or misunderstood the statements of the child. It can be argued that such hearsay testimony does not meet criteria of "sufficient indicia of reliability" and very likely fails the test of "particularized guarantees of trustworthiness." The due process rights of the defendant could therefore be violated by the admission of such hearsay. All persons in the legal and judicial arena should be aware of the powerful impact the recent social science literature has on this issue.
Rationale for Videotaping of All Interviews with Children
Several authors have argued that one possible answer to the question of reliability is to videotape all investigatory interviews with children. Arguments in favor of videotaping have been made by a several authors (e.g. Bruck & Ceci, 1995; Ceci & Bruck, 1995; Gardner, 1995; Wexler, 1995). These authors argue that videotape records of the interviews allow later review of questioning methods, shelter the child from subsequent stressful court proceedings, and are useful from a legal perspective. However, in the past, videotape recording of interviews did not have substantial support from a legal viewpoint. McGough (1995) notes that there is little authority from U.S. Supreme Court precedent that would support an assertion that a prosecutor has a constitutional duty to (mechanically) record and preserve an account of a pretrial interview with a potential child witness. In fact, failure to record interviews (Idaho V. Wright) or discarding of investigators' notes (Arizona v. Youngblood) were not found by the Supreme Court to violate due process.
While there have not been U.S. Supreme Court determinations requiring videotape recording, several states have moved closer to such requirements. For example, the Supreme Court of Florida decided that
Experts generally agree that contacts between a child and an expert evaluating the child for sexual abuse should be videotaped to ensure the trustworthiness of the communications and to ensure that the expert did not lead the child during the evaluation . . .
[W]e can only hope that in the future greater care will be taken to properly preserve testimony in this type of case and that judges will carefully adhere to the trustworthiness and reliability requirements set forth in [our statutes] (McGough, 1995, p. 379).
Similarly, the Idaho Supreme Court considered the failure to preserve any reviewable record of an evaluative interview with the child to be unprofessional conduct, and that failure clearly inclined it to
find the hearsay report of the child's allegation to be untrustworthy and inadmissible (Idaho v. Wright; State v. Giles). On the basis of these decisions, it would appear that the reliability of hearsay testimony is seriously questioned.
Professionals who advocate for video or audio recording of all interviews with children argue that taping will reduce dual risks of improper interviewing and inaccurate hearsay. McGough (1995) states that hundreds of cases can be used to illustrate the hazards of distortion when there is no taped record of an investigative interview. She has proposed legislation which outlines the criteria for a "qualifying videotape," including interviewing promptly, requiring the interviewer to be a neutral professional not aligned with either the prosecution or the defense, and taking measures to assure privacy to the child, and to communicate the seriousness of the purpose of the interview (footnote # 48, p. 380-381).
From the scientific as well as the legal standpoint, videotaping is advisable. Bruck and Ceci (1995) assert that failure to tape record initial interviews with child witnesses rules out the possibility of ever reaching any
firm conclusions as to whether any abuse actually occurred, because the primary evidence has been destroyed. We must also know the verbatim statements and questions of the interviewer as well as the verbatim responses of the children. Absent a videotaped record, the fact
finder cannot discern what actually happened at the critical pretrial interview.
Videotaping of interviews with children is also recommended for the sake of the child. Videotaping can reduce the number of interviews to which the child is subjected, with each interview likely to produce some stress to the child (Lamb, 1994). Therefore, videotaping should be viewed as advisable by child advocates who are interested in protecting the child from the trauma of repeated, confusing, and possibly suggesting or coercive questioning.
Some states, notably New Jersey, have been hesitant to enact statutes authorizing or requiring videotape recording requirements for fear that the use of a videotape as trial evidence would be held as unconstitutional. The account of the interview, if under oath, is an ex parte, or out-of-court, affidavit purposely created as a testimonial memorial for use at trial (McGough, 1995). However, the appellate courts of six states (Kansas, Louisiana, Minnesota, Missouri, Texas, and Wisconsin) have upheld the constitutionality of their state videotaped evidence statutes when faced with confrontation or due process questions.
Some professionals, McGough (1995) points out, have urged that interviews not be recorded due to their misgivings that a videotape could be used inappropriately to discredit a child and to exaggerate inconsistencies. McGough counters that argument by stating that the desire to protect a child cannot justify the suppression of information simply because it might somehow detract from the child's credibility.
These arguments are not particularly new and the utility of videotaping of pre-trial interviews was assessed by the California Child Victim Witness Judicial Advisory Committee. Beginning in 1988, two pilot programs tested the effectiveness of the use of multidisciplinary teams and videotaping of interviews. Results were reported in 1994, with remarkably positive results (Myers, 1994). The California Pilot Project found little to support the fear that defense attorneys received "too much ammunition" to attack the child. The professionals surveyed believed that when interviews were conducted competently, there was nothing to hide. The second argument against videotaping is that the recording shifts the focus away from the child's account to the interviewer's mistakes. The Pilot Project found little support for this claim. The third and fourth arguments against video recording involved relatively minor technological criticisms. When adequate protocols were established for insuring videotape quality, fears about the adequacy of the record disappeared. Finally, confidentiality issues pertaining to videotapes are quite easily addressed (McGough, 1995; Myers, 1994).
Discussion and Conclusions
Both from the scientific psychological community and from the legal community, serious concerns have been raised about the accuracy and reliability of testimony pertaining to children in suspected sexual abuse cases. A host of improper interviewing techniques have been identified, all of which can seriously compromise the reliability of testimony obtained directly from a child. Improper questioning methods may irreversibly contaminate the evidence from the child, making determination of what really happened impossible. Equally troubling concerns have been raised about the accuracy of hearsay testimony presented by mental health and other professionals on behalf of the child in suspected sexual abuse cases. Hearsay testimony based on the mental health practitioner's recollection or by means of written summaries have been found to be notably inaccurate. Considerations of due process of law are noteworthy, particularly when it might be argued that improper interviewing methods as well as ambiguity and misperception in hearsay can compound other risks to accuracy. Given these concerns, hearsay testimony may be unable to meet judicial criteria of "sufficient indicia of reliability."
Videotaping all interviews can be advocated on several grounds. Videotaping not only allows review of the interviewing methods and accuracy in recounting what transpired, but also may protect the child from the trauma of repeated, suggestive, and possibly even coercive interviews. The arguments against videotape recording do not stand up well, especially in light of the recent pilot project conducted in California.
In suspected sexual abuse cases, the manner in which interviews have been conducted and testimony handled has not been good science, good clinical practice, and perhaps not even good law. Methods of interviewing lack scientific objectivity and insight. Hearsay which lacks "sufficient indicia of reliability" would then fail to meet criteria for admissibility. Both improper interviewing and inaccurate hearsay could very well fail to ensure due process of law. These concerns are understandably troubling to all concerned. The time for thoughtful consideration of the process of investigating and trying suspected sexual abuse cases has undoubtedly come.
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