FORENSIC INTERVIEWING IN SEX ABUSE CASES:
The State of the Art
By Michael Brock MA, LMSW
as appeared in the Detroit Legal News and the Oakland County Legal News
In the book, Investigative Interviews of Children, the basis for the Michigan Protocol for Interviewing Children Suspected of Abuse, the authors, Drs. Deborah Poole and Michael Lamb, report the following distinctions between forensic and non-forensic interviewing beginning at p. 106:
"Many professionals who work with children were trained primarily to provide services after the need for intervention had already been identified. Unfortunately, procedures and terminology in mental health, medical, and educational settings developed somewhat independently of the literature on cognitive development and forensic issues, creating communication difficulties that continue to foster controversy. For example, research shows that procedures that might make sense in therapeutic settings (e.g., playroom environments, props for reenactment, or directive questioning about pain or harm) are not always appropriate for forensic purposes. Furthermore, the underlying assumptions of therapeutic interviews often undermine or contradict those that guide investigative interviews, and thus most authors warn against professionals assuming dual roles with individual clients."
The importance of this particular passage is that we have no way of knowing what kinds of questions were asked in a therapeutic process that results in the allegations of sexual abuse. The earlier the interview, the more important that forensic procedures be followed in order to obtain accurate information. Once inaccurate information has become part of the alleged victim’s narrative, it will remain so and become increasingly credible with succeeding interviews.
I have seen records of treatment that resulted in allegations of abuse in which the therapist actually stated in the progress notes that the purpose of therapy was to help the child cope with and recover from the traumatic effects of abuse. Such presumptions may be acceptable in treating a client suspected of being depressed, anxious or suffering from the difficulty adjusting to a highly stressful event. However, they are antithetical to proper forensic practice, which, like proper scientific research, and proper criminal law procedures, should begin without a presumption, but with alternative hypotheses, or with a presumption of the innocence of the accused.
Further on, Pool and Lamb state, "C. B. Fisher (1995) echoed this sentiment in her review of ethical problems that arise when helping professionals confuse abuse validation with child advocacy. Consequently, the first task in understanding current interview protocols is to distinguish investigative approaches from therapeutic or clinical approaches."
Regarding assumptions of honesty, Pool and Lamb state, "Non-forensic interviewing often is concerned with narrative truth rather than historical truth. Narrative truth is a term use to describe a social consensus about truth that evolves in the context of a specific relationship. For example, some therapists concern themselves primarily with the client's reality and operate on the assumption that clients are telling the truth, at least as they currently perceive it. Indeed, some authors have argued that therapists help to “invent” narrative truth by organizing information from their clients into consistent themes by way of their interpretations and summaries (Spence, 1984)."
The specific techniques and assumptions of the therapist to whom these allegations were originally disclosed are extremely relevant, as they would provide evidence of whether or not the child was led to disclose, either by a working presumption of the therapist, or by the failure of the therapist to attempt to distinguish between objective truth and the child’s tendency to self-dramatize.
Further, on page 108, the authors note, "In contrast, forensic interviewing should be characterized by fact-finding and the assumption of neutrality. The forensic interviewer should serve as a neutral conversational guide who provides as little feedback aspossible for fear that may direct the witness."
On page 115, Pool and Lamb discuss the issue of videotaping; "Few topics are as controversial as the issue of videotaping interviews. Eyewitness researchers generally favor videotaping all interviews (e.g., Ceci and Bruck, 1995; Lamb, 1994), a policy that has been in practice in some locations for years."
On page 117, the authors report, "In a survey, many professionals emphasized that the availability of the videotapes permitted them to defend the quality of their interviews and allowed them to capture the children's initial emotional responses before these could be blunted by repeated interviews in hearings. The researchers did not obtain much evidence regarding recantation, but many professionals commented that the tapes help induce confessions. (Further) Most important, the tapes did not appear to provide defense counsel with evidence to impeach children, or opportunities to focus unduly on interviewer errors."
The authors state that the Child Victim Witness Investigative Pilot Project, which included mental health professionals, prosecutors and defense counselors, concluded with a clear consensus that the videotaping helps lower trauma for children and “contributes to the search for truth.”
In Jeopardy in the Courtroom, by Stephen J. Ceci and Maggie Bruck, on page 112, the authors state, "In the Little Rascals daycare Case, there are no electronic records of the initial interviews with the children. On the basis of the available evidence, it seems that many children denied during initial interviews that anything sexual happened." On page 242, the authors report, "Surprisingly, with the exception of Country Walk, much of this information is not available for the daycare cases. In certain instances, it appears to have been destroyed or missing. In other instances, the interviews were never recorded in the first place. In the Little Rascals case, Bob Kelly, Dawn Wilson, and Betsy Kelly were sent to jail for crimes against children. However, none of the crucial evidence provided by the children was electronically preserved… some of the early interviews were recorded in the (Kelly) Michaels case, and in some of these the child gave a coherent report of abuse in response to investigator’s neutral questions. However, because we do not have the details of the first interview, it is impossible to evaluate the reliability of these children’s statements.” (Further) “Written summaries of unrecorded interviews are subject to a number of distortions..."
It is worth noting that every one of the above convictions was overturned on appeal, with the exception of Betsy Kelly, who plea-bargained for a one year sentence after her husband had served six years prior to his conviction being overturned. Her valid concern was that her child would grow up without either parent. It is also important to note that Betsy Kelly's plea-bargaining did not require a description of any the criminal activity of which she was accused and convicted—a practice that I am told is very unusual in serious criminal cases. Moreover, in none of these cases was there any physical evidence; all of the evidence was obtained through interviews with the alleged victims. Dawn Wilson was offered—and refused—a plea bargain, which included no incarceration time if she would testify against the other defendants. At no time did any defendant in this case give testimony against himself or anyone else.
On page 249, the authors state, "It is crucial that videotaping interviews include the first and all subsequent interviews. Providing a videotape of the session in which the child makes a disclosure is useless unless we know how this disclosure came about, what preceded it, and what succeeded it. Thus, we have a real concern that if a videotape of the child's disclosure is required, previous interviews may go unrecorded or even unreported."
On page 251, the authors conclude, "This said, it is also important to emphasize that in response to questions of a neutral, unbiased interviewer, young children can give very accurate reports, although these may contain few details. It is also true that although there are age differences in suggestibility, older children and adults’ memories can be tainted by a number of suggestive influences. We emphasize the fallibility of adults memories of conversations, which underscores the importance of electronically recording forensic interviews, particularly with the children."
In the book, Expert Witness In Child Abuse Cases, edited by Ceci and Hembrooke, chapter 5, entitled, “The Expert Witness in Child Sexual Abuse Cases: the Clinicians View,” Richard J. Lawlor states on page 113. "A forensic evaluator needs to always keep in mind that in addition to revealing factual information the child may the present material that has been distorted through some extraneous influence, or may in fact actually be lying. The clinical literature is replete with suggestions that young children are incapable of lying, at least in any sophisticated way; yet the research literature (Ekman, 1985, 1987) does not confirm this view."
On page 114, Lawlor continues, "This example essentially demonstrates the need to constantly test alternative hypotheses in the course of interviewing as a forensic evaluation–something that is almost never done in the course of therapy."
On page 119, "Under ideal circumstances, when appropriate documentation and, hopefully, recording of the initial interviews are available, it may be possible to either confirm or criticize the techniques used and suggest on the basis of this type of information that the initial responses show signs of having been produced in a nonsuggestive, nonleading atmosphere. Other than this kind of information, however, evaluators who are coming in late to a case are unlikely to be able to present definitive information in court."
In chapter 8, entitled, “How Valid Are Child Sexual Abuse Validations?” by Cecelia B. Fisher and Katherine A. Whiting, the authors make the following statement on page 174, "The third characteristic of these interview protocols is an emphasis on integrity of the investigation to meet judicial evidentiary standards. One means of accomplishing this is by keeping careful records, including an audiotape or videotape of the interview. An additional integrity safeguard is to avoid taking an advocate position by assuming an impartial stance. Such efforts are facilitated when a validator is able to interview all involved parties, including the child, the alleged offender, and accusing adults (Bresee, Stearns, Bess, & Packer, 1986; Walker, 1990; White and Edelstein, 1991) Some examiners, like Gardner (1994), strongly encourage court orders requiring all of the parties to be involved in the examination. Unfortunately, obtaining interviews of all parties involved in the allegations in not the norm. In their survey of child abuse validation experts, Conte, etc., al. (1991) found that only 42 percent of respondents periodically interviewed alleged abusers.
In reading through the relevant literature, it has become apparent to me that what is ideal psychological forensics is not always possible in the courts, given the current parameters of our legal system. This is particularly true in the criminal court. In family court I frequently have the opportunity to interview all the parties, often together as well as separately. In such situations it is easier to understand the relationship dynamics between the parties, and the probability of truth or fallacy of any individual's report.
When I have not had the opportunity to interview the alleged victim in a criminal case, I cannot offer a valid opinion as to whether they are telling the truth. What is apparent to me, however, is that the most relevant evidence in many of these cases—specifically what transpires in the child’s therapy leading up to allegations of sexual abuse, and exactly what occurs in the initial unrecorded forensic interview—is often not available. The fact is that the absence of this evidence represents forensic practice which is not up to the current standards of the art.
Mr. Brock also provides consultation to attorneys and the courts regarding current standards of mental health evidence, and has provided assistance with case preparation for attorneys by assessing the psychological evidence for and against their clients, reviewing psychological treatment records, and assisting in the cross-examination of expert witnesses.