Max R. Selver∞
- Evaluations of her performance were commendatory.6 During the time that Michaels was at Wee Care, there were no allegations or indications that anything abusive or untoward was occurring there. In fact, during the year that Michaels was at Wee 1 State of New Jersey v. Margaret Kelly Michaels, Jersey Superior Court, Criminal Division Essex County.
- In one of the most sensational cases, 24-year-old Margaret Kelly Michaels, who had worked at Wee Care Nursery in Maplewood, New Jersey, was convicted in 1988 on 115 counts of molesting 20 children.
- A major was the one in 1988 when Margaret Kelly Michaels was accused of sexual abuse on children of her daycare centre. Children reported having been abused with knives, forks and spoons. Six years later she was released. 35 33 2knowmyself.com (2017). What causes Mass Delusion and Mass Hysteria.
A jury convicted Michaels. She spent the next seven years of her life in prison. The trouble was Kelly Michaels was 100% innocent. Discussion of Case. Kelly Michaels' nightmare began on Apil 30, 1985 when a four-year-old boy who was a student of hers at the Wee Care Day Nursery said, when a nurse put a thermometer in his rectum, 'That's what my.
I. Introduction
New York Family Courts routinely admit “validation testimony” in cases involving allegations of child sexual abuse. Validation testimony consists of a mental health professional’s opinion that a child’s behavior is consistent with the occurrence of sexual abuse, and is often accompanied by a diagnosis that the child suffers from Child Sexual Abuse Syndrome (“CSAS” or “SACS”) or Child Sexual Abuse Accommodation Syndrome (“CSAAS”).
Since the development of these theories in the 1980s, mental health experts have concluded that they lack scientific merit. A treatise synthesizing the literature on the subject explains that “[t]here is no psychological symptom or set of symptoms observed in all or even a majority of sexually abused children,” and “[t]here is no sexually abused child syndrome that detects or diagnoses child sexual abuse.”[1] Accordingly, several state high courts have found validation testimony to be inadmissible under their standards for admitting expert testimony.[2]
Surprisingly, no New York court has ever scrutinized validation testimony under Frye v. United States[3]—the state’s standard for admitting expert testimony. The standard requires scientific theories to have gained general acceptance in the relevant scientific community to be admissible.[4] As a result, parents in New York Family Courts regularly face the prospect of erroneous findings of guilt in maltreatment cases, the stigma of being labeled sex abusers, and, most gravely, having their children removed from their care on the basis of scientifically unsupported evidence. The total absence of scientific support for validation testimony makes its continued use in New York Family Courts inconsistent with Frye and especially concerning when a parent’s right to care for his or her own children is at stake.
This article encourages lawyers representing parents in family court to challenge validation testimony under Frye and argues that family court judges should exclude it from their courtrooms. It begins by reviewing the scientific theories behind validation testimony and their emergence in the context of a nationwide panic that led to numerous wrongful convictions for child sexual abuse. It then examines an extensive body of academic literature that rejects the validity of those theories and concludes that validation testimony does not pass muster under the Frye standard.
II. History Of Validation Testimony
CSAS and CSAAS were developed in the early 1980s to explain common behaviors among victims of child sexual abuse. Dr. Suzanne Sgroi introduced CSAS in 1982 as a “theoretical model” consisting of five phases of behavior seen in children who have been sexually abused: (1) non-sexual engagement by the offender; (2) sexual activity occurs; (3) the offender uses rewards or threats to keep the child quiet; (4) disclosure by the child; and (5) suppression by the child.[5] A year later, in 1983, Dr. Roland Summit introduced CSAAS, which similarly aimed to describe the most frequent behaviors among sexually abused children. It also consists of five categories of behavior: (1) secrecy; (2) helplessness; (3) entrapment and accommodation; (4) delayed, conflicted, and unconvincing disclosure; and (5) retraction.[6] Crucially, both Dr. Sgroi and Dr. Summit clarified that CSAS and CSAAS were not diagnostic tools and could not consistently be used to assess whether a given child was abused.[7]
Despite the caution expressed by their creators, the theories’ power to paint people as child abusers—sometimes erroneously—quickly entered the national spotlight. In 1988, Margaret Kelly Michaels, a twenty-six year-old teacher at a New Jersey day care center, was convicted of 115 counts of sexual abuse against twenty children—acts she never committed. She was sentenced to forty-seven years in prison.[8] An in-depth article about the trial in Harper’s Magazine explained that “[p]erhaps the most important witness for the prosecution” was a psychologist, acting as validator, who testified that each of the twenty children suffered from CSAS. This testimony was offered as proof that Ms. Kelly Michaels sexually abused them.[9] According to the psychologist, children who repeatedly denied abuse were in Dr. Sgroi’s “suppression phase,” and children who showed affection toward Ms. Kelly Michaels were in Dr. Sgroi’s “engagement phase.”[10]
In 1992, a New Jersey appellate court overturned Ms. Kelly Michaels’ conviction. The basis of the reversal was the state’s improper use of the psychologist’s validation testimony as substantive evidence that the children were abused. “She was permitted to lead the jury to believe that the process was rooted in science and thus was a reliable means of determining sexual abuse,”[11] even though the “syndrome was not created as a diagnostic tool, and children who display signs of the syndrome may not have been abused.”[12]
Ms. Kelly Michaels’ wrongful conviction was not an isolated incident. Rather, it was part of a “wave of hysteria” in the 1980s and early 1990s that “tarred innocent people” as child sex abusers.[13] The wave of hysteria included an “investigation in Wenatchee, Washington, in which forty-three adults were arrested on more than twenty nine thousand charges of sex abuse involving sixty-eight children”[14] and several wrongful convictions that were eventually overturned because they involved the use of validation testimony.[15] Multiple books have documented the wrongful convictions and unfounded investigations that arose out of the nationwide paranoia around child sexual abuse in the 1980s and 1990s.[16] Expert testimony regarding CSAS and CSAAS emerged in courtrooms nationwide out of this same context of panic and fear.
III. The Scientific Consensus Against Validation Testimony
The wave of hysteria that led to Ms. Kelly Michaels’ conviction is over.[17] In its place is an overwhelming consensus among mental health experts that validation testimony is not based in science. A comprehensive set of studies has concluded that there is no single set of characteristics shared by sexually abused children and that CSAS/CSAAS cannot diagnose the occurrence of sexual abuse.
A 2005 literature review led by two Johns Hopkins University psychologists explained that “there are no gold standard psychological symptoms consistent with sexual abuse.”[18] Affirming that conclusion, a study of 122 appellate decisions found that testimony regarding the characteristics of sexually abused children “is inconsistent and often contradictory.”[19] Some experts said delayed reporting and conflicting accounts were consistent with abuse; others said that children were always forthcoming and did not lie about abuse.[20] Some experts said abused children were preoccupied with sex; others said they exhibited aversion to sex.[21] The author of the study posited that these “sharp contradictions” may arise because “the expert is tailoring the list [of characteristics] to suit a particular child.”[22] With or without such an explanation of deliberate tailoring, the consensus of mental health experts today is clear: “There is no psychological symptom or set of symptoms observed in all or even a majority of sexually abused children,” and “[t]here is no psychological symptom that is unique to sexually abused children.”[23] Numerous other studies have reached a similar conclusion, establishing a consensus among mental health experts against the existence of a set of common characteristics shared by sexually abused children.[24]
Because sexually abused children do not exhibit a single set of characteristics, mental health experts have forcefully rejected the notion of any recognized diagnosis that can detect the occurrence of abuse. To date, not a single scientific research study supports the validity of the CSAS or CSAAS diagnosis.[25] They are not included in the most recent edition of The Diagnostic and Statistical Manual of Mental Disorders, a manual published by the American Psychiatric Association that “contains a listing of diagnostic criteria for every psychiatric disorder recognized by the U.S. healthcare system.”[26] A literature review by three University of New Hampshire psychologists finds an “apparent lack of evidence for a conspicuous syndrome in children who have been sexually abused.”[27] Mental health experts are united in the view that “[t]here is no psychological test that detects sexual abuse” and “no Sexually Abused Child Syndrome that detects or diagnoses abuse.”[28]
Even the creators of CSAS and CSAAS recognize that they are not valid tools to detect sexual abuse. In her book introducing CSAS, Dr. Sgroi explained that “[v]alidation of child sexual abuse depends upon recognizing behavioral indicators . . . Behavioral indicators of child sexual abuse may be helpful but are rarely conclusive.”[29] Nine years after the introduction of CSAAS, Dr. Summit was more direct: “The accommodation syndrome is neither an illness nor a diagnosis, and it can’t be used to measure whether or not a child has been sexually abused.”[30]
IV. Validation Testimony in New York Family Courts
Despite the overwhelming scientific consensus against it, validation testimony continues to be routinely admitted in New York Family Courts.[31] When first confronted with validation testimony in the 1980s, New York Family Courts called for its evaluation under Frye. [32] Remarkably, thirty years later, no New York court has ever held a Frye hearing to determine the admissibility of validation testimony.
One reason for this is Matter of Nicole V., a 1987 New York Court of Appeals case that has created confusion on the issue.[33] A statutory exception to the hearsay rule in New York Family Courts permits out-of-court statements made by children to support findings of child abuse or neglect if those statements are corroborated by “[a]ny other evidence tending to support [their] reliability.”[34] The question before the Nicole V. Court was whether a validator’s testimony was sufficient to meet this corroboration requirement[35]—a requirement that has been interpreted liberally.[36] The case involved the testimony of a therapist who relayed a child’s out-of-court statements and discussed behavior such as “uncommunicative, withdrawn demeanor” and “severe temper tantrums or depression inappropriate for a child of her age,” which “led her to conclude [the child] was sexually abused.”[37]
The attorney for the respondent father in Nicole V. did not challenge the admissibility of the testimony under Frye, and the Court of Appeals did not mention Frye in its opinion.[38] The Court noted that SACS “is a recognized diagnosis,” but cited only two publications to support that assertion—Dr. Sgroi’s book and a 1982 compilation of state statutes and decisions concerning child abuse.[39]Frye, meanwhile, requires a court to assess whether a scientific method is generally accepted as reliable in the relevant scientific community.[40] The Court in Nicole V. made no attempt to assess the views of the community of mental health experts regarding the validity of SACS—the only mental health professional it cited was Dr. Sgroi, who created SACS. It did not have to do anything more because the standard for corroboration of a child’s out-of-court statements—unlike Frye—is not an issue of admissibility. The Court could not have been clearer in stating its holding: “We conclude expert testimony was properly used to satisfy the corroboration requirements of section 1046(a)(vi) in this case.”[41]
Despite the clarity of that conclusion, some courts have misconstrued the case as endorsing validation testimony under Frye. A 2015 decision by the Bronx County Family Court, for example, denied a respondent’s application for a Frye hearing on validation testimony because “Nicole V. . . . concluded that expert opinion on ‘sexually abused child abuse syndrome’ is admissible on the issue of whether a child is the victim of intra-familial sexual abuse.”[42] Similarly, in 2011, the Fourth Department affirmed the denial of a Frye hearing on a validator’s testimony that “utilized the Sgroi method,” citing Nicole V. for the proposition that “[t]he Court of Appeals has cited to Dr. Sgroi’s ‘Handbook of Clinic Intervention in Child Sexual Abuse’ . . . .”[43] As a result, the court shielded itself from the numerous studies finding validation testimony to be unscientific. Instead, it credited the testimony of “the court-appointed counselor at the hearing that the Sgroi method was used by ‘all’ counselors in the field to validate allegations of sexual abuse.”[44] Thus, New York courts continue to uncritically admit validation testimony without evaluating it under Frye.
V. Validation Testimony and Frye
Frye asks “whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally.”[45] General acceptance by the scientific community should not be confused with past acceptance by courts. The Appellate Division has explained that general acceptance must be demonstrated by “controlled studies, clinical data, medical literature, peer review, or supportive proof.”[46] Past acceptance by courts figures nowhere in this analysis.
Frye applies to “novel” scientific methods.[47] The Frye opinion itself describes the distinction between novel and non-novel science as that between science that is “experimental” and that which is “demonstrable.”[48] Accordingly, a theory or methodology does not have to be recently developed to be “novel.” For the purposes of Frye, “novel” means unproven or unreliable, not newly coined. Applying Frye to old but unproven or disproven scientific evidence is necessary to effectuate the test’s core purpose of keeping unreliable science out of the courtroom. Otherwise, “the admission of long-relied upon but ultimately unproven analysis . . . may unwittingly perpetuate junk science.”[49] In that vein, New York courts have evaluated scientific evidence under Frye when that evidence has previously been admitted by a large number of courts and was at one time accepted as reliable in the scientific community.[50] The fact that New York Family Courts have admitted validation testimony in the past does not preclude a court from evaluating it under Frye today.
The consensus in the scientific community could not be clearer: validation testimony is unscientific. It purports to describe behaviors in children consistent with the occurrence of sexual abuse and to diagnose the occurrence of abuse. Yet a comprehensive set of studies concludes emphatically that there is no set of behaviors in children consistent with abuse, nor any diagnosis that can detect abuse. Frye requires general acceptance of a scientific method. The view of mental health experts on CSAS and CSAAS is more accurately described as general rejection. With the stakes as high as a parent’s right to care for his or her own children, New York Family Courts should follow the lead of other states and exclude validation testimony from their courtrooms. Otherwise, validation testimony will continue to tarnish the accuracy and fairness of abuse and neglect proceedings, where our state’s most vulnerable parents—disproportionately poor[51] and of color[52]—face the risk of erroneous findings of guilt in maltreatment cases, the stigma of being labeled as child sexual abusers, and the removal of their children from their care based on this unscientific testimony.
∞ J.D., New York University School of Law, 2016. I want to thank Professor Chris Gottlieb for her invaluable advice and constant encouragement throughout the writing of this article. I also want to thank Patrick Clark and Avi Springer for giving me access to research and training materials they developed while litigating this issue in New York Family Court.
1. John E.B. Myers, Myers on Evidence of Interpersonal Violence: Child Maltreatment, Intimate partner Violence, Rape, Stalking, and Elder Abuse § 6.09 (5th ed. 2011).
2. See Hadden v. State, 690 So. 2d 573 (Fla. 1997); Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky. 1996); State v. Michaels, 625 A.2d 489 (N.J. 1993); Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992).
3. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
4. Id. at 1014.
5. Suzanne M. Sgroi, Handbook of Clinical Intervention in Child Sexual Abuse 12–36 (1982).
6. Roland Summit, The Child Sexual Abuse Accommodation Syndrome, 7 Child Abuse & Neglect 177, 181 (1983).
7. See Avi Springer & Patrick Clark, Challenging Validation Testimony Through Frye Hearings (2015) (describing how both Dr. Sgroi and Dr. Summit “qualified their theories in important ways”); Sgroi, supra note 5, at 78 (“Behavioral indicators of child sexual abuse may be helpful but are rarely conclusive.”); Mary Meinig, Profile on Roland Summit, 1 Violence Update 6, 6 (1991) (“The accommodation syndrome is neither an illness or a diagnosis, and it can’t be used to measure whether or not a child has been sexually abused.”).
8. Dorothy Rabinowitz, From the Mouths of Babes to a Jail Cell, Harper’s, May 1990, at 52.
9. Id. at 61.
10. Id.
11. Michaels, 625 A.2d at 502.
12. Id. at 499 (quoting Jill Birnbaum, Nat’l Ctr. on Women and Family Law, Inc., Expert Testimony in Custody and Visitation Cases Involving Child Sexual Abuse 699 (1990)).
13. Susan Chira, Recovered Reputations, N.Y. Times (Apr. 6, 2003), http://www.nytimes.com/2003/04/06/books/recovered-reputations.html [https://perma.cc/UZF4-5J3L].
14. Richard Beck, We Believe The Children, xxii (2015). Eighteen of the accused, “nearly all of whom were poor and on welfare and some of whom were illiterate or mentally handicapped,” were convicted in the mid-1990s. Id. The last of them was not released from prison until 2000. Id. City and county officials were found negligent in their conduct of the investigation in a civil lawsuit in 2001. Mike Barber & Larry Lange, Jury Finds City, County Negligent in Child Sex Ring Case, Seattle Post-Intelligencer (July 31, 2001), http://www.seattlepi.com/local/article/Jury-finds-city-county-negligent-in-child-sex-1061384.php [https://perma.cc/Y87N-4RB7].
15. See Hadden, 690 So. 2d at 581; Newkirk, 937 S.W.2d at 699 ; Dunkle, 602 A.2d at 844.
16. See Beck, supra note 14; Dorothy Rabinowitz, No Crueler Tyrannies (2004).
17. Chira, supra note 13 (“The sensational accusations of mass abuse have faded away. Reputable lawyers and judges have declared many of these cases travesties . . . .”).
18. Kamala London, Stephen J. Ceci & Daniel W. Shuman, Disclosure of Child Sexual Abuse: What Does Research Tell Us About the Way That Children Tell?, 11 Psychol. Pub. Pol’y & L. 194, 194 (2005).
19. Mary Ann Mason, The Child Sex Abuse Syndrome: The Other Major Issue in State of New Jersey v. Margaret Kelly Michaels, 1 Phsychol. Pub. Pol’y & L. 399, 401 (1995).
20. Id.
21. Id.
22. Id. at 401–02.
23. Myers, supra note 1, at § 6.09.
24. See, e.g., David Faust, Ana J. Bridges & David C. Ahern, Methods for the Identification of Sexually Abused Children: Issues and Needed Features for Abuse Indicators, in The Evaluation of Child Sexual Abuse Allegations 3, 7 (Kathryn Kuehnle & Mary Connell eds., 2009) (“A perfectly differentiating indicator would be uniquely associated with child sexual abuse–it would occur only if a child has been sexually abused and would never occur for other reasons–but such indicators are extremely rare in psychology.”); Esther Deblinger, Julie Lippmann & Robert Steer, Sexually Abused Children Suffering Posttraumatic Stress Symptoms: Initial Treatment Outcome Findings, 1 Child Maltreatment 310, 310 (1996) (“Approximately one third of sexually abused children demonstrate no apparent symptomology, and no single symptom or syndrome is characteristic of the majority of sexually abused children.”); Marian D. Hall, The Role of Psychologists As Experts in Cases Involving Allegations of Child Sexual Abuse, 23 Fam. L.Q. 451, 463 (1989) (“Children’s reactions to sexual abuse vary dramatically and, to date, the methodological problems involved in compiling results of the scores of diverse studies have led only to lists of very general symptoms . . . .”).
25. See Gerstein v. Senkowski, 426 F.3d 588, 600 (2d Cir. 2005) (quoting a leading psychologist for the conclusion that “the child sexual abuse accommodation syndrome . . . has no validity and is not regularly accepted in the scientific community”).
26. Diagnostic and Statistical Manual of Mental Disorders (DSM-5), Am. Psychiatric Ass’n, http://www.dsm5.org/about/pages/default.aspx [https://perma.cc/X5Y4-QBFT].
27. Kathleen A. Kendall-Tackett, Linda Meyer Williams, & David Finkelhor, Impact of Sexual Abuse on Children: A Review and Synthesis of Recent Empirical Studies, 113 Psychol. Bull. 164, 173 (1993).
28. Myers, supra note 1, at § 6.09; see also Mark D. Everson & Kathleen Coulbourn Faller, Base Rates, Multiple Indicators, and Comprehensive Forensic Assessments: Why Sexualized Behavior Still Counts in Forensic Child Sexual Abuse Evaluations, 21 J. Child Sexual Abuse 45 (2012) (arguing that sexualized behavior in children is not necessarily consistent with the occurrence of abuse); Jill Birnbaum, Nat’l Ctr. on Women and Family Law, Inc., Expert Testimony in Custody and Visitation Cases Involving Child Sexual Abuse 699 (1990) (“Unlike some other syndromes, such as battered women’s syndrome or rape victim’s syndrome, the child sexual abuse accommodation syndrome was not created as a diagnostic tool, and children who display signs of the syndrome may not have been abused.”).
29. Sgroi, supra note 5, at 78.
30. Meinig, supra note 7, at 6.
31. N.Y. Bar Assoc., Focus on Family Court: Holistic & Effective Family Representation 14 (June 5, 2015), https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=
56886 [https://perma.cc/74P4-FDJY]; Springer & Clark, supra note 7.
32. See In re E.M., 520 N.Y.S.2d 327, 331–32 (Fam. Ct. 1987).
33. In re Nicole V., 518 N.E.2d 914 (N.Y. 1987)
34. N.Y. Fam. Ct. Act § 1046(a)(vi) (McKinney’s 2015).
35. Nicole V., 518 N.E.2d at 914 (“The proof of abuse rests principally on out-of-court statements of each child, evidence which is not legally sufficient to make a fact finding of child abuse unless corroborated in accordance with . . . section 1046(a)(vi) of the Family Court Act. The common issue presented is whether the corroborative evidence in each proceeding is sufficient . . . .”).
36. In re Kaitlyn R., 700 N.Y.S.2d 533, 536 (App. Div. 3d Dep’t 1999) (describing Family Court Act § 1046(a)(vi) as a “broad and flexible rule”).
37. Nicole V., 518 N.E.2d at 918.
38. Id. at 914.
39. Id. at 917 (citing Irving J. Sloan, Protection of Abused Victims: State Laws & Decisions 110–13 (1982)).
40. Parker v. Mobil Oil Corp., 857 N.E.2d 1114, 1119–20 (N.Y. 2006); People v. Wesley, 633 N.E.2d 451, 454 (N.Y. 2004).
41. Nicole V., 518 N.E.2d at 918 (emphasis added).
42. In re Wendy P., 2015 WL 1380220, at *8 (N.Y. Fam. Ct. Jan. 30, 2015).
43. In re Bethany F., 925 N.Y.S.2d 737, 738 (App. Div. 4th Dep’t 2011).
44. Id.
45. Parker, 857 N.E.2d at 1119–20 (quoting Wesley, 633 N.E.2d at 454).
46. Saulpaugh v. Krafte, 774 N.Y.S.2d 194, 196 (App. Div. 3d Dep’t 2004).
47. Wesley, 633 N.E.2d at 461 (Kaye., C.J., concurring).
48. Frye, 293 F. at 1013.
49. United States v. Lewis, 220 F. Supp.2d 548, 554 (S.D. W. Va. 2002).
50. See, e.g., People v. Collins, 15 N.Y.S.3d 564, 570 (Sup. Ct. 2015) (holding Frye hearing and finding “low copy” DNA analysis inadmissible, even though two trial courts had admitted this form of analysis as early as 2010); People v. Anderson, No. 06060051, 2006 WL 3452407, at *2 (N.Y. Just. Ct., Monroe Cty. Nov. 30, 2006) (holding that the proper foundation for the reliability of a sobriety test had not been established and scrutinizing it under Frye, “[d]espite the fact that various lower courts in the Third Department . . . concluded that [it] is reliable” as early as 2001).
51. A 2006 study found that “half of the caregivers of children entering out-of-home care have trouble paying for basic necessities.” Richard P. Barth, Judy Wildfire & Rebecca L. Green, Placement into Foster Care and the Interplay of Urbanicity, Child Behavior Problems, and Poverty, 76 Am. J. Orthopsychiatry 358, 361 (2006).
52. In 2014, 46% of children in foster care in New York state were black; 22% were white. N.Y. Office of Children and Family Servs., Annual Report 2014 18 (2014), http://ocfs.ny.gov/main/reports/OCFS%20Annual%20Report%202014.pdf [https://perma.cc/73LC-KBA5]. The state’s overall child population that same year was 17% black and 59% white. Children Characteristics: 2010-2014 American Community Survey 5-Year Estimates, U.S. Census Bureau, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=CF (last visited Dec. 4, 2016).
Immigration at the Supreme CourtReview of Immigration-Related U.S. Supreme Court Cases: Challenges, Ramifications, and What to Expect
Scholars discuss the most significant immigration-related cases before the U.S. Supreme Court, their ramifications, and what to expect in 2020.
Identifying and Correcting Problems With Forensic Interviews of Alleged Child Sexual Abuse Victims: A Holistic Environmental Approach
Kenneth R. Pangborn, MS*
ABSTRACT: Forensic interviewers are inadequately trained to conduct child sexual abuse interviews. A poorly conducted interview can change the child’s recall of events. This article suggests ways to improve forensic interviewing techniques, the interview environment, and the training of interviewers. It describes major problems in the way many interviews are conducted and recommends ways to increase the reliability of children’s statements and assure quality control.
Introduction
In the 1980s there was a substantial increase in reporting of child sexual abuse allegations in cases all across the United States. Media attention to highly charged cases, such as the Jordan, Minnesota incident and the McMartin preschool trials, rode the wave of popular and media hysteria. The result led to intense criticism of the methods used by those conducting the interviews. Articles by attorneys criticized the heavy-handed and leading questions used by the interviewers. The McMartin case was notable in the way the defense was able to demonstrate that the procedures used by Kee MacFarlane of Children's Institute International were faulty.1 The videos of the child interviews in these cases provided ammunition for defense attorneys who criticized these techniques. The problems outlined in this article aren’t confined to the United States, but appear to be common throughout much of the world.
Margaret Kelly Michaels Today Thirty Years Lateral
The number of reported incidents of child abuse in the United States is now roughly about 3.6 million assaults per year (National Center on Child Abuse and Neglect, (2007).2
Training of police and child protective investigators since the 1990s has improved with respect to the heavy-handed leading questioning and badgering of children in which interviewers, consciously or unconsciously, prompted children to give the answers the interviewer was looking for. However, 'confirmatory bias,' while less obvious today, continues to dominate prosecution-oriented interviews by police and social services agencies. Today, the interviewer is less likely to confront or bribe the child to give the desired answers; instead interviewers talk over the child or change the subject when the child begins to give answers not favorable to the interviewer's objective. Interviewers may ignore contradictory responses that don’t fit their view of the case. In this process, interviewers may see their mission as confirming or validating the key allegations needed to prosecute the case. Information that contradicts the allegations is ignored or discarded.
The process begins to go wrong when forensic examiners are in contact with investigating detectives, or other officers, agency workers, and/or family members with definite agendas. Police and social services agencies ignore the fact these contacts tend to contaminate, or “taint,” the interviewer's attitude toward of the case. Close personal working alliances tend to confound the process and taint the information obtained. To date, however, research on the impact of this problem is lacking.3
PURPOSE AND METHODOLOGY
This article reviews professionally accepted literature on forensic interviews of children within child psychological and child psychiatric professions, and contrasts them to observations of the methods presently used by many law enforcement and social services agencies in the United States as seen in videotaped documentation of the interviewing from those agencies.
From what I can observe from the videos provided to me, most agencies that conduct forensic Interviews tend to “over interview” children. Mental health professions now recommend interviewing children a minimal number of times. Most experts suggest no more than three interviews; a small number accept a maximum of six. The consensus is that more than three interviews of a child who was allegedly victimized, including informal interviews by a parent, risk modifying the child’s statements, thus making them unreliable.4
It takes great effort to compensate for problems associated with multiple interviews of children. However, they can be ameliorated by limiting the number of interviews to three. Law enforcement contact with the child should be confined to one well-trained specialist. Parents should be cautioned against satisfying their curiosity by repeatedly questioning the child.
The problems of the police-child contacts go beyond the number of interviews; a police station isn’t an appropriate place to interview a child. The setting can be intimidating and send misleading signals to the child, especially if the officer is in uniform, or wearing a badge, and carrying handcuffs and a gun. These factors are problematic and should be avoided. Ideally, there should be as few distractions as possible.
Some interviewers have video cameras in the room. They seem to believe that they should tell the child they’re “making a movie,” which is a very bad idea. This introduces an element of play acting to the interview. Does the child say what really happened, or has the child adopted make-believe, as if it’s a movie? Children don’t have an intrinsic need to know why the session is being taped. Young children lack the skills to make that kind of cognitive distinction between reality and play. By the same token, it’s important not to clutter up, and further contaminate, the interview by concluding that it’s necessary to do this so that “child testimony can be avoided.” That’s not why we're here today! Most experts agree that ideally children should not be made aware that a video is being made.
CONFIRMATORY BIAS
We tend to see what we expect to see. This is especially true of forensic interviews when the interviewer has a collegial relationship with other members of the agencies who have had contact with the child, as well as family members. A work dynamic forms in a police or social services agency in which other individuals involved in the process feel compelled to 'fill in' the interviewer on the “background” of the case. This only serves to enhance confirmatory bias. A clear agency or inter-agency policy against this should be posted for all forensic interviewers to see. The forensic interviewer should have only basic information as to what is alleged and some demographic information on the child. The person conducting the forensic interview should be as unbiased and uncontaminated as possible.
Nothing contaminates a forensic interview of a child as much as a bias that prompts someone to become a “validator” on a mission to extract information necessary to successfully prosecute the accused. They ignore or reject all information that doesn’t fit in with their preconception of the case and focus the interview toward getting information to support charges against the accused. They ignore children’s exculpatory statements because their sole mission is confirm the allegations, not to elicit the child’s own statements.
A common and severe problem for forensic interviewers is the danger of becoming jaded. Interviewers who become involved in these cases will, over time, build a set of prejudices based on their experiences. This causes them to project their past experiences into the contemporary interview. As well-intentioned as the individual interviewers may be, by filtering how they conduct a forensic interview based on their extensive past experience, they are likely to contaminate the present interview by confirmatory bias.
While total objectivity is impossible, we need to find some mechanism to identify this condition before it becomes irredeemable. New testing techniques are needed to determine the level of the contamination of interviewers’ objectivity, and some manner to tell us if and when they can be rehabilitated to resume the work. When interviewers detect in themselves that they are 'anticipating' the child's responses, and arrive at a point of, 'I know what you mean' in their own minds (because they have done this so many times before) the risk of contamination eventually becomes inescapable. The problem is that you can arrive at a point where you are seeing things that aren’t really there.
FLAWED ENVIRONMENT (LAW ENFORCEMENT)
The process within most agencies is problematic because the premise they start out with doesn’t help find out the truth. It’s aimed at securing a conviction, whether justified or not. The process is designed as a tool for prosecuting the accused, not for finding the truth. It is outcome oriented, a process in which truth becomes secondary to getting information to support the prosecution’s goal.
In most communities, law enforcement forensic interviews are done in police stations. The interviewers are typically police officers, either in uniform or plain clothes but generally visibly equipped with the usual police paraphernalia — badge, guns, handcuffs, police radio and the like. This is likely to further contaminate the interview. Children are eager to please adults of 'high status' and nothing is as impressive to a small child as being alone with a police officer. Sometimes social services workers can be equally intimidating.
Most agencies reason: “It’s not our job to do the work of the defense.” So if exculpatory information comes up in an interrogation, the interviewer will ignore it and get away from it as quickly as possible. If the child starts to make exculpatory statements, the interviewer then talks over the child and reverts back to a point where the child gave “helpful' responses.
When we examine police interviews today, we commonly see the total absence of any effort to ascertain whether the child might have been coached by someone prior to the interview, or the extent to which such contacts may render the child’s statements unreliable. There are a number of ways to detect and overcome such external influences. Dr. William O’Donahue from the University of Nevada at Reno outlined these techniques in a training program he developed under a grant from the United States Department of Human Services.5 But forensic interviewers all too often ignore these problems because they lack the training and skills to use them. And they go against the mission they have undertaken.
One suggestion is to ask the child if there is anything important that they need to tell. In many cases a child who has been coached will blurt out details they were told, because which they don’t want to forget what they were told. Sometimes the coaching is well intentioned, sometimes it isn’t. The forensic interviewer should separate one from the other.
The interviewer should pay close attention to things the child may say, such as comments about what is going to happen to the accused. 'Will he be arrested?' 'Will he go to jail?' The interviewer should explore these areas to determine how much influence has been exerted on the child. The goal is to ascertain how much information might have been transferred to the child. Children may also give clues by saying, '(naming a person) said that ...” This should be, but often isn't, a red flag that should be pursued.
A good forensic interviewer needs to begin with this information in order to have quality control over what is to come later — the meat of the allegations. A good forensic interview should have a solid foundation; the job should be seen not as only to get statements to aid the prosecution, but to get statements that are accurate. Forensic interviewers need be aware of any external influences on the child, such as a divorce, child custody proceedings, or an overly involved grandparent or other family member.
I have reviewed several hundred videos of forensic child interviews in the past 30 years of my profession. Most of the time the problems begin with an agenda to use the video in lieu of the child's testimony. It is hard to cross-examine a DVD. The belief is that the video makes cross-examination impossible. However, a skilled defense attorney can demonstrate to the court the need to cross-examine the child. Thus, an improper interview can be used against the child. It can subject the child to rigorous cross-examination to exploit vulnerabilities found in the interview. The result in many jurisdictions has been 'Taint Hearings' to rule the child's testimony inadmissible because the forensic interviewer ignored critical information during the interview. (See State of New Jersey v. Margaret Kelly Michaels 642 A.2d 1372 and its copious progeny.)
In a recent example, a Midwestern city police detective who does the forensic interviews was dealing with a case in which a specific charge was indecent exposure. The child gave contradictory statements about the events as to whether the alleged perpetrator knew she was in the room or not. The interviewer ignored the child's description of the man's penis being flaccid. The arrest documents, however, claimed he had an erection. In that state an essential element of the crime is that the exposure was deliberate, the purpose being for his sexual gratification or to induce a sexual interest in the child. Not only did the interviewer ignore the child's statement and talk over it and change the subject, she missed completely the child's flat affect. There were many clues that screamed for further follow-up. But these were ignored, most likely because the interviewer knew it was a black hole. It was a situation that in all probability would have made the child's statements unreliable and sunk the case.
Ideally, the forensic interviewer is neutral. This is sometimes virtually impossible, as people who work in the field of child protection often become jaded and bring their expectations into the room with them as they conduct the interviews. It is a form of wish fulfillment or a self-fulfilling prophecy. They find what they expect or want to find. They lose professional detachment and assume an advocacy role. The only way to guard against this is to rotate people in the job frequently, and not assign them to do field investigations of child abuse if there is any hope to bring them back after a break.
It is also a matter of economics. Most departments don't feel they have the budgets to do things right. Actually, in the final analysis, lack of adequate training and facilities will be an increasing burden on budgets.
CONCLUSIONS
To this day, many law enforcement and social services don't provide child-friendly settings. This can intimidate children and cause them to focus on the police aspect of the setting. When children start talking about police work they demonstrate they have gotten the wrong message. This should be a red flag to the forensic interviewer. The child-friendly atmosphere should be in another building without the drama of a police station or social services agency. The wrong environment can contaminate the interview. The message the child gets is of being a crime victim, which can affect what the child says and may even come to believe.
While a police station or social services facility has bad connotations for the reliability of a child's interview, so does the opposite extreme employed by social workers when they create a fantasy playhouse environment. Yes, the child loves the staggering array of toys but it establishes an atmosphere beyond the cognitive capacity of young children and sends the wrong message. This isn't 'play time' or 'pretend.' The environment should be neutral, even bland. An ideal is something familiar to a child, something non-threatening that doesn't send the child messages of any kind. A good environment might be a room resembling a living room or kitchenette; something that is neutral and comfortable and less challenging for the child.
An additional problem comes with the questionable practice of using the anatomically-detailed dolls. Many agencies continue using the dolls, but controversy persists that they also add an element of contamination.6
Margaret Kelly Michaels Today
The main issue, however, is the training of the forensic interviewers who work with the children. It is important they have interviewing skills and recognize their own biases. They must zealously guard against being contaminated with too much biased external information, such as through fellow police officers or case workers who want to help by giving them information they feel is important. This 'team' concept is flawed when it comes to the child interview. The interviewer needs to know minimum facts as to what is alleged and minor demographics on the child. Too much additional information may result in confirmatory bias unless the interviewer is aware of this danger and consciously explores all possible hypotheses. But few real world interviewers do this. Perfect neutrality is probably the impossible dream, but perfect bias is the perfect nightmare.
The entire environment of the forensic interview is important. It needs clear definition and clear strategies. This should start with the appearance of forensic interviewers themselves. We should pay attention to this detail so that the appearance of the interviewer is non-threatening to the child. It can be things uncomfortable for us to address, such as the interviewer being too tall or too large. The way the interviewer is dressed is important. The facility is important as was previously noted. It needs to be as free from distractions as possible. This includes visual distractions and auditory distractions. Most safeguards should go without saying, but like all warning labels, they come because some people will make them necessary, even professionals.