Inaccuracies in Children's Testimony

Memory, Suggestibility, or Obedience to Authority?

Letitia C Pallone, Jon'A F Meyer

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781136375156
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Inaccuracies in Children's Testimony combines the literature on obedience to authority with that on suggestibility to create a third literature. This book examines children's testimony from several perspectives and gives you insightful suggestions for increasing children's abilities to testify accurately about traumatic things that have happened to them. In doing so, you'll learn how to ensure that those who abuse or sexually exploit children are brought to justice while those falsely accused are adequately protected.How children are questioned to learn what they have witnessed is crucial due to the effects the questioning sessions may have on their testimonies--improper questioning may lead to inaccurate answers. This is just one of the many areas of children's testimony covered in Inaccuracies in Children's Testimony. In each of the chapters you'll discover new ways for increasing the accuracy and dependability of children's testimony as you read about:

• factors that affect children's testimonies
• suggestibility--definition and research, including sources of suggestibility
• how obedience to authority can explain children's behavior as witnesses
• children's memory in the courtroom and what they are able to remember
• how children's involvement in the courts can be problematic
• free versus prompted recall--which is more accurate and why the "worst" method is often used with children
• Milgram's theory of obedience to authority tied to children as witnesses
• review of the literature on the effects of stress, prompting, and imagination on children's recall
• ideas for future researchExperts in the field of legal testimony, legal personnel, child counselors, psychologists, social workers, and faculty and students of related courses will find Inaccuracies in Children's Testimony an essential resource for understanding the importance of making the child victim/witness more believable and reliable.

Chapter 1
Children's Memory in the Courtroom: What Do Children Remember?

Generally, children's honesty is only of concern to their parents, teachers, or others who have authority over them. Occasionally, however, the state becomes interested in the accuracy of children's statements, especially when they provide testimony in legal cases. This book reviews research that explores whether children may give false testimony when provided with leading questions. It argues that an overlooked literature in the study of children's testimony may be research on obedience to authority and that adding this perspective may provide researchers with a new paradigm through which to view and understand children's behavior when they testify or provide other legally relevant statements.

Identifying A Social Problem

The current anxiety about the validity of children's testimony in courts stems from heavily publicized cases of child molestation during the 1980s. By far the most widely known incident was the McMartin Preschool case in Manhattan Beach, California.¹ The owners of the school, Raymond Buckey and his mother, Virginia McMartin, and five former teachers were charged with 208 counts of child molestation and conspiracy after the police were inundated with a sea of complaints that began when a two-year-old sodomy victim named Raymond Buckey as his assailant. The nation was shocked as the story, covered daily in the media, began to unfold into one of the most heinous crimes of the time. Some children told of forced participation in "naked games," fondling, penetration, photography sessions, and ritualistic behavior, including animal sacrifices to frighten the young victims into silence about the clandestine activities in which they were key participants.

The defense argued that the young victim-witnesses had been coached into testifying as they did about the incidents. They further alleged that the children were questioned in a suggestive manner that led them to invent the false charges of abuse: "We believe that perhaps a method . . . used in questioning these children and in having them discuss what occurred and who was involved (may have resulted in) preconditioning these children" (Los Angeles Times, April 21, 1984). To bolster their theory, the defense questioned the first young witness, a seven-year-old boy, who admitted during trial that he had testified as he did to please some of the adults involved in the prosecution of the case (Los Angeles Times, January 25, 1985):

Defense: "They told you they wanted you to say that Ray [key defendant Raymond Buckey] touched the kids on the penis and the butt?"

Child: "Yes."

Defense: [Did you say Virginia McMartin watched the molestations] "so that he [Deputy District Attorney Glenn Stevens] wouldn't be sad?"

Child: "Yes."

Defense: "This is just telling the story these people want you to tell? You're not nervous, but just telling the story that Shawn [Shawn Connerly, a therapist who questioned the child], Mr. Stevens [the prosecutor], and your mom—that everybody—wants you to tell?"

Child: "Yes."

Indeed, the original questioning of the children was full of legal difficulties. Often, the interviewers coaxed the children into telling "yucky secrets." Interviewing techniques employed by social workers may be therapeutic in nature, that is focusing on helping the child deal with the trauma of abuse. The Vermont Sexual Abuse/ Assault Protocol for investigating possible incidents of abuse of children and adolescents states: "While the primary goal of both is to protect the child, the police officer remains concerned with the investigation of criminal activity; the Social and Rehabilitative Services worker with such issues as family dynamics and treatment" (Young 1988, p. 255). Ann Burgess and her associates (Burgess, Holmstrom, and McCausland 1978, p. 183) state:

The most important technique [when counseling young victims of sexual traumas] is to encourage the child to talk about the incident. If the child does not bring the subject up in discussion, the counselor should tell the child it is important to discuss it. . . . If the child talks, the counselor encourages discussion.

This fundamental distinction certainly dealt the prosecutors in the McMartin case a traumatic blow. When a lack of evidence to corroborate the children's sometimes fanciful accounts was coupled with the controversial techniques used in questioning the young witnesses, charges were dropped against five of the defendants, leaving only Raymond Buckey and his mother to stand trial. In the end, a chagrined Los Angeles District Attorney Ira Reiner concluded: "The evidence against the others is weak" (Los Angeles Times, January 18, 1986).

After the longest and costliest trial in U.S. history, both defendants were acquitted on all but fourteen of the charges and the jury deadlocked on these remaining charges (twelve sex-abuse charges against Raymond Buckey and a conspiracy count against both Raymond Buckey and his mother). The conspiracy charges were dropped before a new hearing date was set for the remaining counts against Raymond Buckey.

The jurors based their inability to convict either defendant on their belief that the interviewers had led the children to their stories. One juror summed up this concern with the questioning process: "The interviewers at Children's Institute International [where the children were interviewed] asked questions in such a leading manner that we never got the children's stories in their own words" (Orange County Register, January 19, 1990). The case was essentially lost, then, before the charges were even filed due to the way the child victims were asked about their experiences.

The later trial of Raymond Buckey on the remaining counts resulted in a hung jury; the district attorney chose not to proceed further with the case (Los Angeles Times, July 28, 1990). Thus ended the infamous McMartin trial. Future prosecutors now know the lesson learned by District Attorney Ira Reiner pay particular attention to how accounts are obtained from young witnesses.

The Wee Care Day Nursery case in Maplewood, New Jersey, also focused attention on the questioning of children. In May, 1985, an investigation was launched into the possibility that one of the nursery's teachers, Kelly Michaels, molested a number of her students. Several factors in the case, which were disclosed during the heat of the McMartin preliminary hearing, worked to the prosecution's benefit: the discovery of some corroborating evidence, including an unusual poem written by Michaels in her grade book; the ability of the children to validate each other's testimony through seemingly consistent reports; and the careful video recording of many interviews with the child witnesses.

As in the McMartin case, the methods used in questioning the child witnesses came under fire by the defense in an attempt to get the 235-count indictment involving thirty-one children against their client dismissed. The methods used to interview the children possessed elements present in the McMartin case (which, at the time of the Wee Care investigation, still seemed very strong for the prosecution²). In her book on the Wee Care case, Lisa Manshel (1990, pp. 55–56, 80) presents several exchanges between child and interviewer that demonstrate some of the methods used to question the children.

Interviewer: "Okay, ... I hear that you want to help me investigate and crack this case wide open. Come on, you were so brave last time."

Interviewer: "How did it feel when she hit you on the penis? I can't hear ya, buddy."

Boy, age five: "Bad."

Interviewer: "You feel better now that you started talking, it's not a big secret anymore?"

Boy, age five: "Yeah."

Interviewer: "We talked to a few more of your buddies. We talked to everybody now . . . And everyone told me about the nap room stuff and the bathroom stuff and the music room stuff and the peanut butter stuff and the pee stuff and everything. So nothing surprises me anymore."

Boy, age four: "I hate you."

Interviewer: "No you don't

Boy, age four: "Yes I do."

Interviewer: "No you don't

Boy, age four: "Yes I do."

Interviewer: "You just don't like talking about this, but you don't hate me. Did Kelly [the defendant] ever tell you that she could turn you into a mouse?"

Boy, age four: "Yeah."

Interviewer: "She did ...?"

Boy, age four: "Yeah."

Interviewer: "And what did she say she wouls turn into?"

Boy, age four: "A monster."

Interviewer: "Did she say she would turn you into a ... monster?"

Boy, age four: "Yeah."

Interviewer: "You didn't believe that stuff, did you?"

Boy, age four: "No."

Interviewer: "But it scared you a little bit?"

Boy, age four: "Yep."

Interviewer: "Yeah, it scared me too.

Boy, age four: "Bluh, I'm big. Ha ha, I'm almost five."

Interviewer: "When are you gonna be five? When's your birthday?"

Boy, age four: "In the fall."

Interviewer: "In the fall? Oh come on, you gonna help us out?"

Boy, age four: "Yeah."

Interviewer: "Do you want to help us keep her in jail longer? Huh? Do ya, huh?"

Boy, age four: "Uh, ooh."

Interviewer: "Do you want to help us keep her in jail longer?"

Ultimately, the judge hearing the case did not agree with the defense's argument: "I see no overreaching by the State ... no evidence that individual testimony was tainted. . . . The children were not brainwashed or forced to do anything. . . . There is absolutely no reason to dismiss any of the counts in this indictment on the grounds sought by the defense" (Manshel 1990, p. 125). The jury also failed to find the questioning techniques so tainting that they prevented accurate testimony, and Michaels was convicted.

The conviction was appealed to the New Jersey Supreme Court, however, based on the defense's concerns regarding the manner in which the children were interviewed. In a unanimous verdict, the state's highest court reversed the convictions and ordered the trial court to hold a pretrial taint hearing to assess the reliability of each child's testimony before allowing him/her to testify in court (State v. Michaels. [1994]. 136 N.J. 299; 642 A.2d 1372). The court took issue with the manner in which the interviews were conducted, arguing that the prosecutors and investigators substantially shaped the children's accounts:

In conclusion, we find that the interrogations that occurred in this case were improper and there is a substantial likelihood that the evidence derived from them is unreliable.

(State v. Michaels 1994, p. 50)

At that point, the prosecution dropped all charges against Michaels (Ceci and Bruck 1995, p. 13). In addition to the Wee Care case, a number of other cases involving children as witnesses are discussed and analyzed in detail by Stephen Ceci and Maggie Bruck in their 1995 monograph, to which the interested reader is referred for additional material.

Questioning of Children

Because of cases such as Wee Care and McMartin, the methods used to question children have changed. Inger Sagatun and Leonard Edwards (1988, p. 3) report that child witnesses were once subjected to being interviewed twenty or more times by individuals from different agencies seeking the same information. Now, authorities try to see that sessions are videotaped to spare the child additional interviews. These videotapes can then be viewed by numerous individuals on different occasions without the necessity of asking the child what happened each time, thereby reducing the trauma to the child and chances of the child changing his or her testimony to fit each interviewer's mode of questioning.

The State of California Guidelines for the Investigation of Child Physical Abuse and Neglect, Child Sexual Abuse and Exploitation (The Commission on Peace Officer Standards and Training, 1986, guideline number 59) specifically address minimizing the number of interviews conducted with child victim-witnesses. The guidelines suggest working with other agencies that may be interested in the child's accounts and conducting thorough interviews, as well as the use of audio and/or video recording of the interviews. The Guidelines (1986, guideline number 62) recommend three important precautions: (1) allow the child to describe the incide...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• Chapter 1. Children's Memory in the Courtroom: What Do Children Remember?
• Chapter 2. The Effects of Stress, Prompting, and Imagination on Children's Recall
• Chapter 3. Suggestibility: Is the Witness Telling the Truth or Reacting to Suggestion?
• Chapter 4. Realities in the Research on Children's Suggestibility: Criticisms, Increasing Accuracy, and Situational Sources
• Chapter 5. Research on Authority: Can It Help Explain Children's Testimony?
• Chapter 6. Why People Obey: Milgram's Theory
• Chapter 7. Conclusions and Future Directions: How Can We Bolster Children's Testimony?
• Notes
• References
• Index