An Historical Perspective: Defending Against False Allegations of Sexual Molestation
Sexual abuse has been around since mankind first walked on this planet. It certainly is a scourge and we wish to rid ourselves of it, but we wish to do so with the proper respect for constitutional rights and appropriate adjudication. For this reason we’re going to talk a little bit about the science and the history of sexual abuse allegations and defending against false allegations of sexual molestation. We’re going to start by tracing some of it’s history.
In order to properly defend against allegations of sexual molestation we need to understand the history surrounding the child protection movement. There are many things that contribute to false allegations. It all started with the Mondale Act. This law was passed by former Vice President Mondale, then Senator Mondale and was designed to help the prosecution of allegations of sexual molestation. The law was extremely well intended, however, it had adverse consequences because of some of his provisions. One of those provisions is that it established immunity for reporters. However, it did not establish a means for accountability which meant that if frivolous allegations were made and reported the person whose was damaged by these frivolous could not recover in a court of law. I’ve had doctors come and tell me that they were afraid that they were going to get criminally prosecuted if they didn’t report and yet they didn’t believe an allegation that they had heard. What happens is if you report you get civil immunity. If you don’t report you can be criminally prosecuted and that put teachers, doctors, ministers under extreme pressure to report, but under no pressure not to report. Therefore, what happened following the Mondale Acts was that people started reporting everything, no matter how frivolous in order to protect themselves. The other problem with the Mondale Act which exists in every county in the United States, was that money was provided for prosecution of these cases, millions and hundreds and hundreds of millions of dollars. However, not one dime was provided for the public defenders. This led to a total imbalance of power between the people that were prosecuting these cases and the public defender, in charge of defending most of the people charged.
One of the things that we need to remember in the application of the Mondale Act is that although there have been mental health professionals involved in these cases for many, many years they were not really heard from until we began to see the outrageous kinds of cases that we saw in the late 1970’s and the 1980’s. The point Mr. Clancy makes is well taken - although there’s penalty for not reporting, most courts look past the provision of the law that says that suspicions should be reasonable to be supported - and look past the science which requires only reasonable reports.
Mental health professionals have been involved with these cases for a long, long time. Unfortunately some of the things that have been done by mental health professionals, such as this early book on child sexual abuse were particularly misguided. This particular book was not based on good science and it was not based on good empirical evidence. In another example of junk science - the child psychiatrist Roland Summit - put out an article entitled The Child Sexual Abuse Accommodation Syndrome. He explained that this article was designed to discuss some things that he was seeing in child sexual abuse treatment. Unfortunately, the article was fastened upon by the true believers, shall we say - the folks that say that children never lie about things of this nature - as a diagnostic tool – and “indicator list”. The child sexual abuse accommodation syndrome has been used in a number of courts as an explanatory tool when in fact it has no empirical basis.
One of the quotes from Dr. Summit which has become a maxim of child sexual abuse intervention counselors and investigators was that children never fabricate the kinds of explicit sexual manipulations they divulge in complaints or interrogations. This was simply stupid. Anyone that has children knows that that simply isn’t true. Children can fabricate all sorts of things.
Roland Summit also went on to state that his method was “state of the art, highly evolved, intensely specific and largely unknown outside the fledgling specialty of child abuse diagnosis”. What was he quoting when he made that statement? - the interviews done by Key McFarland in the McMartin case - the most notoriously bad investigation that has occurred. He was also quoted as saying that “it was an amalgam of several roles, the knowledge of a child development specialist to understand and translate toddler language, a therapist to guide and interpret interactive play, a police interrogator to develop evidentiary confirmation and a child abuse specialist to recognize the distinct and pathetic patterns of sexual victimization.” These were the quotes from an article in which Roland Summit discussed the interviews of Key McFarland. In fact, there was no scientific basis for what they were doing.
What happened to scientific methodology?? There were no control groups. There were no validity studies - reliability was not even considered - error rates were simply over looked. According to the child sexual abuse accommodation syndrome - if a child is sexualized they’ve been molested - if they are withdrawn they’ve been molested - if they have consistent stories they’ve been molested - if they have inconsistent stories they’ve been molested - if they retract they’ve been molested - if they don’t retract they’ve been molested. In other words, all roads lead to ROME. All outcomes are that molestation occurred. No where in the wrtings about the child sexual abuse accommodation syndrome - do we see anything that could be interpreted as being a false allegation.
One of the biggest problems of the child sexual abuse accommodation syndrome and a lot of the work that the early mental health professionals were doing is that they forgot their scientific training. They forgot to look at the difference between diagnostic sensitivity and diagnostic specificity. Sometimes known as the logical error of affirming the consequent. Let me give you an example: All pregnant people are female. This person is a female, therefore, she is pregnant. Total illogical and yet that’s exactly the premise upon which the early work was done and the child abuse accommodation syndrome in particular was founded!
Here’s another example of the fallacies of this type of logic.
Let’s assume that there’s a head of surgery at a hospital and his orientation is that prostate cancer is the scourge of the world. He develops a new surgical protocol. The surgical protocol is that he will perform surgery on all men over 40 and remove their prostate. This is a very sensitive test for curing the perceived scourge. By simply removing the prostate the every man over 40 we eliminate 99% of all prostate cancer. Okay - would all men over 40 in the audience please stand up and go the waiting ambulances - - of course not! Why? - because most of us do not have and will not develop prostate problems. The problem is that this test or protocol is very sensitive, however, it is not specific. 95% of all males over 40 do not and never will develop prostate cancer. Can we operate on 100% of them? Should we operate on 100% of them? If we did that would be a 95% error rate because that test fails to look at the issue of specificity. Would you let a surgeon with this type of protocol work on you? Would this be good public policy with a 95% error rate? The test is sensitive but it’s not specific and that is the problem with the child sexual abuse accommodation syndrome.
As we chart some more of the history of the child advocacy movement - in the early years of the child advocacy movement after the passage of the Mondale Act - we see the influence of child advocacy of mental health professionals spread. Let me show you what I mean. This text and its treatment protocol was by developed by the Giarretto Institute on the Peninsula in the San Francisco area. This text had a protocol for doing investigations. In fact, it became the protocol in the early days followed by police departments. Here’s some quotes that show you what’s wrong with this document. “We explained that there is help for parents united, the officer interrogates the victim, we want them to know that they are victims that haven’t done anything wrong, the child may deny it to us at first, then we approach them with daddy may have a sickness, you would want him to get help for any of those things are wrong wouldn’t you. We’ve been told that maybe daddy has a little sickness in his head so we finish in getting information about how the perpetrator touches her, whether he bribed her, etc.” Notice the writers start assuming that a molestation has occurred and are going to get the allegation out of the child no matter what. The writers go on: “we want to get the family hooked into CSATP as soon as possible. A volunteer will pick up the mother and the victim, there is never any question that they will make a connection with CSATP, who let them know that this is part of the way they will cooperate with us.”
How many of us have heard stories about CPS workers saying if you don’t do it our way we’ll inform the court you’re not cooperating. As you can see, these folks begin with the assumption that every allegation is true. And there’s more: “Sometimes a man will come in, the department must use whatever it has available to get a confession. There are generally two kinds of fathers, the ones who confess everything and the ones who deny.”
How many times have we heard oh he’s in “denial”. Nowhere in this text do the writers discuss the fact that a person may be innocent. And there’s more: “the process of investigation and connecting the family to CSATP is compressed into a few hours. We get a confession from the father, he is persuaded to stay out of the home and to not have contact with his child. A connection to CSATP is made, the police go right to the district attorney with the evidence and a complaint is filed.”
Wham, bam, that’s the way it was set up to be. Nowhere does this protocol even contemplate an innocent person being pulled into this net. Through misguided mental health professionals - many of these mistaken ideas spread out across the country in programs which were referred to as “good touch/bad touch” programs or child assault prevention programs.
The CAP program is another example of misguided mental health material. The CAP program was written by a Minnesota woman who’s work against rape was well known. If you examine the program - it contains a script. In the script you have an “uncle” and the writers talk about the uncle. They never get specific, it’s like “well do you have yucky feelings about Uncle Harry?” or “when you sit next to him do you feel weird or upset” and then the script leads the listener around to “this is something you should report” without ever telling the child what a molestation is.
Research was done on this at a later time at the Department of Social Sciences at Berkeley and they found that these programs were highly suggestive and led to false allegations. That same year the governor of California stopped the funding for these programs.
The effect of these misguided mental health professionals and their protocols is seen most in the training of police officers. Training of police officers is done by POST, Police Officers Standard of Training. This is the POST manual from 1985. It had one sentence in the entire manual having to do with false allegations. It said “don’t ask leading questions.” It didn’t bother to say what a leading question was and there are hundreds of different types of leading questions. When you think of it, it is the police officers who should be taking the lead in how to conduct these investigations. In fact, the child advocate mental health professionals took over and started writing the police manuals. This is the list of the people who contributed to the drafting of the post training manual, the training manual from police. Most of it is made up of MFCC’s and psychologists. The same ones that were following the child sexual abuse accommodation syndrome and other misguided theories of the day. What happened is that the police officers looked to the mental health professionals to give them the answer and they abandoned their tried and true methods of police investigations. Much to our loss! In fact, they did not have to rely upon this misguided, unscientific - advocacy articles. There had been 85 to 90 years of research done on child suggestibility prior to the beginning of the child advocacy period. Dr. Lorandos.
Certainly it’s easy to take pot shots at mental health professionals and a great deal of it is deserved. But there is a great deal of research that’s been done concerning the issue of suggestibility and the influence of questioning upon children. For example, as long ago as the early 1900’s, in 1911 - the Belgian psychologist Varendonck examined the influence of suggestibility on children. He conducted some classroom experiments where children were asked specific questions about non-events and gave misleading and inappropriate answers. More recently we’ve seen that the mental health professionals who began to speak out about the McMartin case abuses and the Margaret Kelly Michaels case abuses - were attacked by the true believers. Who were they? Roland Summit, Kathleen Faller, Kee McFarland, the McMartin people, and the “children never lie about these things” folks.
For example, a Ph.D psychologist and former minister Ralph Underwager and his colleague Hollida Wakefield did a great deal of very important research in Minnesota concerning sexual abusers – and the manner in which one should go about questioning children about whom we believe sexual abuse has occurred. Underwagger was in the Netherlands and gave an interview, as they often do, to a group of folks who misrepresented themselves. It turns out that the folks asking for the interview were from a journal called PADIKA - the man/boy love association and they proceeded to misquote and completely misconstrue the comments of Dr. Underwager. Soon, each time Dr. Underwager would come and testify as an expert in one of these cases, the prosecutors would whip out this journal article and confront him with it. The smear tactic that was used, we call it sliming, was used to try to get rid of Dr. Underwager and stop good empirical science from coming into court. We need to remember that sexual abuse is an event, it is not a diagnosis, it’s something that happens to someone, it’s not a diagnosis of an illness.
The early child advocates actually tried to make “sexual abuse” a diagnosis. David Corwin came up with the child sexual abuse syndrome, a list of symptoms that, if you found them to be true, you could then make a diagnosis of sexual molestation. The problem was that everybody in the world fit within the definition. It was totally unscientific. He tried to get it published in respected journals and was not able to. I found an article published in Nebraska law journal in which he talked about the problem of getting it published and that he had to form his own organization, which later became known as APSAC, in order to get it published. What happened next in the history of the child abuse movement, was that people, like David Corwin, who had unscientific theories, in order to get them published bypassed the regular scientific journals that had peer review and required scientific standards - and published it in their own little APSAC journal. It took quite a while for the real scientist to come to the forefront. As you see, when they did, they would be what we call slimed. This is basically a practice that continues to this day. I’ve seen investigations more in-depth on my experts that are coming to testify than on the prosecutions key witness, the child.
It’s important to remember that when the early cases that made front page news across the country McMartin, Margaret Kelley Michaels, the various preschool cases came about, primarily empirically trained - psychologists, began asking themselves why the devil would children say these kinds of things if it had not occurred. The same question that we all ask, why do they say these things. The first national conference about this sort of issue was held at Cornell University. It’s accumulated papers was published by Ceci, Toglia, and Ross and entitled “Children’s Eyewitness Memory” in 1987.
The next Cornell conference occurred in 1988 and again Ceci, Ross and Toglia published the results of this conclave of experts from around the world which described the newest research answering the question, “why would children say these things”
The researchers began to discover that the interviews, the preconceived bias on the part of the examiners, and a variety of other interviewing artifacts had extremely telling effects on children and their recollection of events. Thereafter they published yet another Cornell conference. John Doris edited this one and it was published by the American Psychological Association. It dealt specifically with the suggestibility of children’s memories and recollections - and how they could be altered and skewed.
A very important early work in this regard was published by Steve Ceci of Cornell and Maggie Bruck of McGill in Toronto. They categorized nearly a hundred years of research, discussed it and then described some of their new research concerning suggestibility of children. In this important article, they gave a historical review and this in many ways was a precursor to a text they were later to publish with the American Psychological Association.
I would suggest to all of you that you get this article. If you can imagine basically 90 years of research put in one place it saves an enormous amount of time going out and trying to find it. I’ve never found a single piece of research prior to the time that this was published that was not mentioned and discussed in this article.
It’s also important to remember that the same kind of slime tactic that happened to Underwager and to some extent Wakefield - began to happen to other empirically based scientists. One of the researchers that’s done important work in this area is Steve Ceci of Cornell. We’re going to show you a little bit from an ABC 20/20 program that interviewed Dr. Ceci and his colleague Dr. Bruck and we will show you Steven Ceci’s sense of what they discovered when they read the actual transcripts from the McMartin preschool investigation and the transcripts from the Margaret Kelley Michaels case investigation. We will also show you a little bit of the Sam Stone experiment. In the Sam Stone experiment they were studying the effect of questioning upon children. This was a very benign circumstance where a gentleman named Sam Stone came to the school, walked around, looked at the kids and left, didn’t do anything else. But the children were questioned by interviewers who had an idea about what had happened that was wrong. The researchers discovered that they were able to change the children’s ideas about what had occurred and change their reports by merely questioning them with a misconception that something had happened, when in fact it hadn’t. In addition to that, we going to show you just a little bit of some of the actual footage from the Margaret Kelly Michaels examination and investigation where the investigators were putting ideas into the children’s heads.
The problem is that from a research standpoint we are now discovering that if you put kids who were not abused through the same kind of highly leading repetitive interview some of those children will also disclose events that seem credible but in fact are not borne in actuality. Now here’s a little bit from the Sam Stone experiments. Do you remember when Sam Stone came to the school and he broke that toy, did he do it on purpose or was it an accident. Well he didn’t break a toy so it’s highly suggestive, erroneously suggestive questioning. Watch closely to the kids and their reaction. I wasn’t there that day and I want to know everything that happened that day that Sam Stone came to visit, can you tell me what happened. He was doing it so fast that he ripped one of the pages. Really. Uh huh. Well when your teacher saw that he was throwing things in the air what did she say. That he’ll need to go. Need to go. Yeah ________ looking at stuff. What we do is a pale version of what happens in real cases. It doesn’t come close for example to what was done in the Kelly Michaels case. Do you remember that time when Mr. _________ stick his penis in your mouth. Okay. Your pressing your peepee against _______. It feels good when you do that. ___________ butt. Is that what they did too. They say to the child we want you to tell us what Kelly did, the kid says I don’t remember, oh yes you do you remember, no I don’t remember, you do so, we know you remember. At this point the child is crying, I want to get out of here, you’re going anywhere until you tell us what we know you know.
These are actual vignettes from the research tapes. Ceci is recounting and paraphrasing there - from the interview transcripts in an actual case. This is not contrived, this stuff actually happens and that’s the way that they built their original research paradigm, to test their hypothesis about whether their questioning would have an impact on the kids. It’s important to remember that these researchers did a great deal of additional research concerning the effects of questioning on kids. In fact, while interacting with kids with very benign questioning about events that didn’t occur the researchers found surprising results. In the mousetrap experiments they simply came to kids and asked them week after week if they ever caught their finger in a mousetrap. Okay Derrick this one says have you ever seen a baby alligator eating apples on an airplane. No. No. Have you ever had your finger caught in a mousetrap and had to go to the hospital. No. No. All the kids were screened to determine in fact – that none of them had any experience with a mousetrap. Just watch the effect of repeated questioning. Did it hurt. Yeah. Yeah. Who took you to the hospital. Hmm, my daddy, my mommy, my brother. So where in your house is the mousetrap. It’s up at our, down in the basement. Down in the basement. What is it next to in the basement. It’s next to the firewood.
Anyway, what you see here is a child who has given you a lot of perceptual detail. He’s telling you where the mousetrap was, it was next to a wood pile in the basement. He had gone down there because he wanted to tell his dad who was down there collecting firewood that he was ready for lunch. He gets in an argument with his brother Colin which he later goes on to describe they were fighting over some action figure. Colin pushes him next to the wood pile, he doesn’t see where his hand’s going and it gets caught in a mousetrap. I think it’s fair to say that my colleagues and I were absolutely shocked that by the tenth week not only were they assenting to some of these things that didn’t occur but they were giving very coherent narratives, highly elaborated narratives that are I think quite persuadable.
John Stossel and the ABC news crew were shocked as well and so they found one of the children who like all of the children had been debriefed by the experimenters and their parents, debriefed and told that no mousetrap thing ever happened - no it was all just a game - none of this ever happened – and they were shocked to discover that after specifically debriefing the children, on the follow up visit the children still had very strong memories of events that never occurred. Listen to this little boy after Stossel debriefed him.
My mom and my dad and my brother Colin, but not my baby, he was in my mom’s tummy. _____ a story, it really happened. This really happened, you really got your finger caught, this really happened. Yeah. I think they’ve come to believe it, it is part of their belief system.
Well, it wasn’t a story, it really happened. This is an example of source monitoring. The children - just by being repeatedly questioned - forget the source of their memory. For example, will that little boy, remember where he got the idea about an alligator eating an apple. Will these little children ever remember the source of the memory for the mousetrap, probably not. They will have numerous source monitoring errors of the experiments. It’s important that you also try to get copies of this reported research by Ceci – Cottreau – Smith & Loftus - It’s available to you. At the end of this presentation we’ll give you some website information for where you can get some of these. Now we would like to show you a bit of research by Maggie Bruck. She was studying the impact of anatomical dolls on children. Dr. Bruck had the idea that anatomically detailed dolls, these are the ones that have little vaginas and breasts and penises, which is of course much different than the dolls you’ll find at Toys R Us - would in and of themselves be suggestive and sexualizing to the children. She carried out some research where she tried to use these anatomical dolls and determine if they had an influence on children’s reports of about a visit to a pediatrician. She discovered very shocking things about the influence of the dolls on the children’s recollection of the visit to the pediatrician.
Dr. Bruck also discovered that just merely questioning children about their visit to the pediatrician caused them to have rather skewed sense of things. In this experiment, the confederate physician, did nothing more with the children than measure their wrist with a ribbon, put a sticker on their tummy and tickled their foot with a stick, but listen to the reports that the experimenters got from the children. Can you show me on the doll how Dr. ____ touched your vagina. No, he didn’t ____ my vagina. He didn’t. With direct questioning usually able to say no he didn’t touch me. But after repeated questioning watch what happens. He did this. He put, you put that around your wrist. _______ tight, so tight. Watch what she does with the stick. So what did he do. He put his stick in my vagina. He put a stick in your vagina. Yeah. Just like that he did that. On my hiney. He did look in your hiney.
All this doctor did was measure the child’s wrist with a ribbon, put a little sticker on her tummy and tickle her foot with a stick. But just the questioning of the child with anatomically detailed dolls – and this child had radical stories about what the doctor had actually done to her, none of which were true.
We want to give you an overview today of the kind of quality research that’s gone into debunking some of the myths about children and lying and their memories and the effect of interviewers in these cases. Much of this work can be found in Ceci and Bruck’s book for the American Psychological Association, “Jeopardy in the Courtroom”. It’s a scientific examination of children as witnesses. But there is a great deal of additional research that’s available to you published by reputable journals, not APSAC or the journals that Corwin publishes or those newsletters, but reputable journals concerning the effects on children of the kinds of questioning that you’ve seen today. We’ll talk more about this in our specialized seminar on suggestibility.
Some of the greatest research in this area on both children and adults has been done by our friend Elizabeth Loftus. Professor Loftus is a distinguished professor of psychology at the University of California at Irvine. Professor Loftus has carried on research with adults and with children and demonstrated that the role of source monitoring and misattribution, just like you saw in the vignette with the child and the eating an apple and alligator and so on, has a tremendous role to play in children’s confabulation or mistaken memory of events.
Loftus as well as Ceci and Bruck and their numerous colleagues have carried on this kind of research for many years. Lindsey from the National Institute of Mental Health and his colleague Debra Poole of Central Michigan University have carried on a great deal of research into how to question children to get accurate reports of what has occurred.
Poole and Lindsey publish some of this early work in the mid 1990’s and went on to publish a book with the American Psychological Association detailing how to conduct appropriate interviews with children. Some of this material has been developed into protocols used by a number of states which at the absolute minimum requires video taping and appropriate questioning of children.
Debra Poole has also, unfortunately, been the victim of some of the kinds of slime when she’s been asked to testify, therefore, she’s quite reluctant to do so. Dr. Campbell whose written an authoritative text called Smoke and Mirrors about false sexual abuse claims is another researcher whose work has found it’s way into the courtroom. We had the child advocacy mental health professionals who brought in unscientific materials. We then have to take the scientific materials to counter the unscientific materials and start transitioning them into the courtroom. One of the other researchers WAS Dr. Richard Gardner. He came up with what would be the flip side of the concept of the child sexual abuse accommodation syndrome and that is the parental alienation syndrome. It’s a syndrome describing how children can be influenced in high conflict divorce cases and all of the different factors that can go into alienating a child from one parent to favor the other. The whole concept is - to in essence - destroy the bond between the one parent and the child. This leads to false allegations. His work is well known and is accepted in many of the courts in the country. He wrote “True and False Allegations of Child Sexual Abuse”. It’s has come out in several editions. I would recommend it for those who are handling cases of false allegations, in particular, cases which arise out of a family where there is a high conflict situation.
Most people believe that false allegation comes from one of the parents telling the child to falsely accuse the other parent. In fact, his research showed that that’s probably one of the least likely ways. The most common technique has to do with a campaign of denigration, of breaking the bonds of the child with the other parent, and in essence of teaching them to hate. As you teach them to hate they become fertile ground for false allegations.
The prosecution also has their favorite researcher and her name is Gail Goodman. They will quote her in almost all cases. What is interesting in looking at her work - you can’t look at an isolated piece of it. What you’ll find is that the prosecution will bring in one isolated piece, one line, one statistic, “you know only 2% of the children. . ” are led to make false allegations with leading questions.
Her methods were so mild that they created very, very low numbers. But as she increased the severity of the suggestions in her experiments - the numbers rose higher and higher it was found that when you use multiple methods of suggestion in combination, which is what usually happens in a case of false allegations, the number of children who will pick up on a false allegations can get up in the 80 and 90 percentiles. So if Gail Goodman is quoted you need to be prepared to look at her entire body of work. What’s interesting is when her work has the same ecological validity as the work of Elizabeth Loftus in terms of the severity of the suggestion - her numbers start coming out the same as Elizabeth Loftus, so you need to look at the complete body of work.
The next organizations that weighed in on issues of false allegations actually turned out to be government entities. The one that you’re seeing here was a research article put out by the department of social welfare, University of California, Berkeley. They looked at the good touch/bad touch programs and found that the good touch/bad touch programs were so suggestive that they were leading children to say things that had never occurred.
The follow up article was actually done as a book, the one I just showed you - you can’t find anymore it’s not in print. However, with “The Best of Intentions” is a book which talks about the fact that the child protection movement set up these good touch programs with the best of intentions. The problem was that the programs led to false allegations. Children were being taught that they had been victimized when they had not. You should read this book if you have any case in which good touch/bad touch programs are used.
The next group that weighed in, of all people, having to do with false allegations were prosecutors and police agencies. The report on the Scotts County investigation in Minnesota is interesting. This became known as the Minnesota Seventeen. There was a large group of people who had been falsely accused. The investigation later discovered that a prosecutor was giving favors to felons to get reports of sexual molestation. The entire thing turned out to be false and caused by an overzealous prosecutor. They did a research project or wrote a report on it and the person who wrote the report is the son of Hubert Humphrey.
One of the other government reports of value, is San Diego Grand Jury report #8. This was an investigation by the San Diego grand jury of false allegations. Again, it had to do with the preconceived idea that a child had been molested when in fact they had not - and repeated questioning and the refusal to accept denials that a molestation had occurred.
In Kern County we had a series of what were called “sex rings”. People were getting sentenced to 400 years and up. Most of those convictions have now been overturned. Again, at the bottom of this mess was an overzealous prosecution and no critical examination of the people who were making accusations. Basically the investigation was an out of control witch hunt and the report we’re showing you, covers that.
The next big issue that we want to talk about are medical investigations. Like the mental health issues we discussed earlier, the early work in the medical field after the Mondale Act was of poor quality and very unscientific. Child advocates again went into these areas and everybody was rushing to jump on the band wagon to prosecute people for child molestation. Millions of cases were being reported because of the Mondale Act and they needed assistance in the prosecutions so they turned to the medical professionals.
One of the key articles was “Sexual Misuse, Rape, Molestation and Incest” by Woodling and Kossoris. What was interesting about that article was that it concerned a pediatrician who had children who were brought to him, where there were suspicions of abuse. The co-author was a deputy district attorney. The article came out with various ideas such as: an indentation on the hymen is a sign of sexual molestation - if the anus winks it’s a sign of molestation - if there’s bumps on the hymen, it’s a sign of molestation. This article came out, spread across the country and doctors and nurses were coming in and testifying and sending people to prison based upon this work. The problem was there was no controlled study. No real empirical data! They didn’t know what a normal anus and a normal hymen looked like. Can you imagine somebody saying I found the cure for cancer and then after they do that, when you ask well where are your controlled studies, they say I don’t have any. They would be laughed out of town. But when it was to prosecute people accused of molestation, oh it was just accepted.
The types of things the report covered was ecchymoses, which is a discoloration; erythema which is a redness; healed lacerations at six o’clock; a hymen with rounded edges. They thought the edge of a hymen should be like a blade and that if a finger or penis passed the hymen, it was as if the edge was sand papered off and make it rounded. They also discussed irregularities of the hymen, hymenal remnants, mounds, bumps and again the infamous anal wink and they talked about vaginal tone. These were all said to be proof of molestation. Without controlled studies they were accepted and doctors and nurses testified that these findings were signs of molestation. It was accepted dogma.
Finally, empirical scientists from the medical field weighed in. The first one was a Dr. Jean Emons from Harvard, she wrote Genital Findings in Sexually Abused Symptomatic and Asymptomatic Girls. She did the study where they looked at what normal non-abused girls hymens looked like. They also looked at girls who had not been molested, but who had had vaginal infections and then they looked at girls who had been molested. There was also a group of non molested girls in the study. What they found is that the findings in the children that had been molested were roughly the same as the children who had had other medical problems and the children that had never been molested. This was a small study but it was one of the first scientific studies. Dr. Emons is still working in the field.
Next - one of the leading research articles in the field. It exposed the earlier work as being unscientific and just plain wrong. It was the first large study done to determine what non-abused hymens looked like. There were hundreds of subjects involved in the study. It was done by Dr. McCann who at the time was working in Fresno, he’s now at Sacramento.
Look at what they found. Erythema exist in 56% of non-abused girls. Remember, earlier they were saying erythema was proof of molestation. Periurethral bands in 50.6%, again previously thought to be a sign of molestation. Labial adhesions 38.5% of normal non-abused girls have them. Posterior forchette midline avascular area was at 25.6%. What does that mean? The posterior forchette is probably the easiest place to cause damage with a penile insertion or penetration and it could create a tear. When the tear heals it leaves like a white line or a scar. What they found out, is that in 25.6% of non abused girls that there is a blanching or white line. As the medical staff spread the majora labia minora you will get a blanching or a white line that looks identical to that of what would be caused by a tear. This is genetic and it is not caused by molestation. They found projections in 33.3%, midline tags 18.5%, vaginal ridges were extremely high numbers at 90.2%. What had previously been reported as a proof of molestation was in fact normal anatomy.
Now I’d like to show you some actual slides from actual cases so that some of these terms can be illustrated. These are graphic slides.
This is what is referred to as an irregular edge. At one time it was believed that the hymen was perfectly crescent shaped. What they found out is the edge of normal hymen’s are highly irregular.
The other thing the research described was the narrow hymenal material. Sometimes the introital diameter is very small, other times very large, depending upon the width of the hymenal material or membrane. They now have statistics that will show you for each amount of width, what percentage of the population fits in that category.
This is the quote that I read over several times and never noticed. It was on page 437. It is the quote where they are talking about finding the midline avascular area that blances. That is what I’m referring to when I refer to the white line, the white line caused by genetics, not by trauma. It’s also at the same location where one would expect to find a white line caused by trauma or a healing scar. That quote is probably the most important quote for you to know in the study. Here is an example of the white line that we were referring to. The vagina is on the top of the photo and the anus on the bottom. When this research articles came out, this finding was completely the opposite of what was accepted dogma at the time.
There was editorial article accompanying the publication of McCann’s study called, Predictive, Accuracy and the Diagnosis of Sexual Abuse, A Big Issue About A Little Tissue, and they admitted that they had made a mistake and were wrong and were trying to become more scientific about the issue of medical examinations in child molestation cases.
This slide is from an actual case, a SART nurse who had approximately 20 hours of training had said that this was proof of molestation. I went and talked to an expert researcher in the field and without hesitating she reached into her desk pulled out this photo of a non-abused girl which has almost the exact same shape. So do not accept what you have been told by the prosecutor expert examining these children. There are now CD’s out with photographs of hundreds non-abused hymens to use for comparison when you’re doing trials.
Researchers are now coming out with more recent articles of what changes you would expect to find if there had been a molestation. Berrinson did a control study of what changes they saw when there was actual documented sexual abuse. There are only around ten research centers in the entire world that have done research in this field. This is one from Perth, Australia. Basically what has happened is that the researchers are all coming up with the exact same results because they are finally following scientific standards of methodology in their testing. As they have done so you’ll find there are fewer and fewer cases in which anyone is making a claim of physical evidence of sexual molestation.
There are also longitudinal studies. The question became, if there was physical damage caused by trauma would it go away to where you couldn’t see it. Those are called longitudinal studies. This is one that was done by McCann. They are basically coming to the conclusion even if there was penetration, even if there was trauma in the not too distant future after that there is healing and it does not show. You need to remember that when this field first started, they were claims of finding physical injuries of alleged molestation that had happened three, four, five years ago. Now they are claiming that in three, four, five weeks the signs of molestation would be gone and healed.
The other area of the human body that is being studied is the anus. The first major study with a large population was again done by Dr. McCann when he was in Fresno. It is entitled Perianal Findings in Prepubescent Children, Selected for Non-Abuse. It is not the most recent research, but it is the beginning of the actual scientific basis in this area and there is the cite for you.
Now, let’s talk about an actual case. This is a case that I had in Nevada, it was rather an interesting one. If you look at the bottom of the photo, there is a line at the area of the posterior forchette, this was described as being a tear and you can see the glove on the right hand of the physician. The SART nurse claimed that this was a trans-section and strong erythema. The individual was facing life in prison. However, what you should always do is order all the photographs. They had only turned over one or two of the photographs to me. When I got all the photographs, here’s another picture of the same area and there is no such line. I flew over to Nevada and as I was flying over the mountains and looking down you would notice you would see shadows created by mountains and what I believe we were looking at in these photographs is that there was a wrinkle of the skin caused by an uneven pulling by the doctor as he was spreading the lips, thereby creating a wrinkle, thereby creating a shadow, thereby creating the illusion of a trans-section.
But it got worse than that. As I said you should subpoena all of the records. Again, there is no trans-section here. There was tampering with evidence, can you see it, it’s right there staring you in the face. If you look closely in the top left hand corner you will see a curved line. There is nothing in the human anatomy that is curved like that.
Here you can see it again it’s on the left hand side and on the right hand side. See the curved line. There is the one you can see it in the most. On the left hand the lip you can see two different colors and it’s a perfectly concentric line. What is it, well the photographs have been tampered. What you have is a round filter that has been placed over to make it look redder than it actually was. This was pointed out to the prosecution along with the no trans-section.
Now when we return to the first slide, we can see what caused that appearance of a trans-section. In the lower left hand corner you’ll see a little bit of the glove. Again we’re having an uneven spreading of the lips creating the wrinkle in the membrane.
One thing I think that everyone needs to think about, think about seriously, child molestation is a terrible thing, but is it in the best interests of children to find and vote that a child molestation actually occurred when it did not. I think a judge showed a lot of insight in the case of People v. Kaplan when he said “we presume the best interests of the child covers more than the mere allegation of wrongdoing against a particular person, seeking the truth of these allegations would appear to be in the best interests of the child for appropriate treatment.” He was pointing out that it’s important to find if a molestation occurred, it’s also important to find out if no molest occurred.
There is another area where false allegations have been a major problem and that’s within what was called the recovered memory movement. Dr. Lorandos will talk to you about that.
One of the difficulties with recovered memories is that the people that believe that one can be badly sexually molested and then simply forget about it - have no scientific underpinnings to their theoretical approach. It’s really sensationalism – and it appears in the popular press. For example, you’ll remember that there were movies made about Sybill and a national campaign of marketing for the book about Sybill. The research demonstrated many years later that it was an entirely false - hoax.
In addition to the Sybill hoax - we find books like Michelle Remembers, where Michelle was satanically and ritually abused and so on. Also, no empirical evidence whatsoever about Michelle – only contrived memory developed through psychotherapy. In addition we find folks who have been abducted by aliens and , so called professionals, who believe that these things in fact occurred.
In addition to alien abductions and why are those pesky aliens always looking up people’s rear ends anyway, we have an interesting text that really started the whole repressed memory and psychotherapy discovered memories movement. This was a text by Ellen Bass and Laura Davis who were not scientists. They encouraged woman to actively imagine that they had been abused and actively imagine what they were going to do to their abuser and actively imagine a variety of responses to these difficult imagined events.
Too many people have taken this approach to court and used “recovered memories” of abuse to attempt to suggest that people have committed murder, have committed violent sexual acts and unfortunately, there is a great gulf between the research in this area and the popular press.
Fortunately, the scientific research in this area is fairly well described by Loftus and Ketchum in this important book. If you face any repressed memory case in addition to looking to the false memory syndrome foundation for information about these kinds of claims you should certainly get a copy of Professor Loftus’s and Dr. Ketchum’s book the Myth of Repressed Memory, because in fact memory just doesn’t work like that.
Remember that in repressed memory claims the idea is that the patient has been badly violated and that the trauma has been so significant that they have simply forced the idea out of their awareness. They use energy to keep it from their awareness and only in psychotherapy is the energy lock on the door removed so that the memory can flood back into the consciousness. Well (a) memory doesn’t work that way and (b) there is a great deal of psychological research data that demonstrates how memory actually does work and it’s chronicled in this important text by Loftus and Ketchum. The difficult insidiousness of this claim was outlined by Loftus in one her of peer reviewed publications. What she suggested is that often these are patients who have a very difficult time coping with day to day living. And the idea that they’ve been abused and they’ve just forgotten it - is an orienting idea around which they can explain to themselves why they can’t balance their checkbook, can’t keep a job, can’t stay in a relationship, etc, etc. All because of this event that supposedly occurred. That’s the seductiveness of this false claim. It’s important to remember that peer reviewed scientific journal articles such as these give you the best basis to counter claims such as “repressed memory”. It’s important to remember that when looking at repressed memory claims or suggestibility claims the resort to scientific literature as opposed to popular press articles is your best tactic for case planning.
We’d like to close by telling you that researchers have found while investigating claims of ritual satanic abuse - that they seem to only occur in the minds of therapists and their patients. Many of us are reminded about what occurred in Bakersfield and what occurred in New Jersey and what occurred in a variety of communities with claims of ritual satanic abuse. We’d like to close by leaving you with the study conducted by the FBI. Mr. Lanning an FBI agent, of some repute, investigated claims of ritual satanic abuse for many years and his report indicated that he simply couldn’t find any valuable data supporting any of these claims other than the fact that the people making the claims all had therapists that attended seminars and training promoting this idea. That was the common factor, not satanic cults. This prompted Professor Ofshe and his co-author Ethan Waters to write a text called Making Monsters which is another resource. It describes the way in which psychotherapy, false memories and the hysteria that Professor Gardner talked about in his early work - lead to creating monsters among us.
Thank you very much, we’ve enjoyed presenting this for you and we hope that the resources that we’ve developed have been valuable for you.
This was an overview. This was an historic overview of the child protection movement and some of the problems that it has created. In further presentations and seminars we’re going to take each of these issues and break them down in detail. Thank you.
At the end of this production you’ll see some website information that will give you more resource data on these important concerns. Thanks very much.
Seminar 1 A Historical Perspective :Seminar 1 Seminar 1 An Historical Perspective: Defending Against False Allegations of Sexual Molestation Sexual abuse has been around since mankind first walked on this planet. It certainly is a scourge and we wish to rid ourselves of it, but we wish to do so with the proper respect for constitutional rights and appropriate adjudication. For this reason we’re going to talk a little bit about the science and the his
Coerced Confessions and Investigations
Today we’re going to talk about police interrogations and defense investigations. Psychlaw is proud to present the faculty for today: Attorney Patrick Clancy, Retire Sherriff’s Detective Harvey Shapiro, Professor Richard Leo from the University of California at Irvine and myself, Dr. Demosthenes Lorandos.
We’re going to talk about defending against our own client’s statements either in police interrogations or worse, in coerced confession circumstances. We’ll also discuss pretext phone calls and things of that nature. We’re also going to talk about the proper investigation of cases of alleged child abuse. We’ll discuss the investigations that we conduct and key on how proper investigation is critical to the development of the natural history of an allegation. We will show how these circumstances are critical to an understanding of the strength and weaknesses of our client’s case.
The first thing that you need to do in circumstances such as these - when you’re thinking about interrogations or things that the police have done - is to find out: has the client talked to the police. In fact, we need to find out immediately all of the people the client talked to right at the outset of our representation.
You really need to grill them about this because often they will think that benign conversations don’t hurt them. They don’t know about admissions. It’s important that they understand this. Also, it is important that we understand the difference between an interview by the police and an interrogation. Both certainly have the capacity for admissions against interest, but the difference you will learn - is really important.
To get right into this - I’d like to introduce Professor Richard Leo. Professor Leo did his doctoral degree on police interrogations, on witnessing them, on researching them and he has published a number of articles in this field. In fact, professor Leo is one of the foremost investigators of police investigation techniques in the United States today. He teaches interrogation techniques to police, to judges, and to attorneys. He testifies as an expert witness for both the prosecution and the defense on the issue of proper and improper interrogation techniques. We’re very pleased that Richard is going to speak to you about this important subject right now.
I’m Dr. Richard Leo. I want to thank those at Psychlaw for inviting me to speak as part of their continuing education program for criminal law specialists. I’m an associate professor of criminology and psychology at the University of California at Irvine. I’m obtained by PhD doctorate degree from the University of California, Berkeley. My doctoral thesis was a study of the techniques used by American police agencies in the interrogation of suspects.
In brief, I was allowed to attend 122 police interrogations at the Oakland Police Department in Northern California and witnessed another 60 interrogations by video tape in two other Bay Area police departments. I also attended five introductory and advanced interrogation training courses, including an advanced interrogation training course at the federal law enforcement training center in Glencoe, Georgia where all federal police, with the exception of the FBI are trained as well as the introductory and advanced interrogation training courses from the Chicago based training firm Reed and Associates. I have published numerous research articles, book chapters and books on police interrogation and confession. It was because of one of those articles that I was invited to attend the federal law enforcement training center.
My research has been found to be scientific in numerous state, federal and military courts. As of July, 2004 I have testified more than 100 times in 17 different states. On each occasion I have been required to establish the scientific foundation for my research. On two occasions I have testified for the California state attorney general’s office for a case in which the defense was alleging that their client was innocent because three juveniles had confessed to the same crime. My role was to explain to the jury how police interrogation works and can lead to false confession from factually innocent individuals. I have given dozen of lectures on police interrogation and false confession to numerous professional organizations, including judges, prosecutors, police, psychologists and criminal defense attorneys. I have taught interrogation training courses to police investigators in Florida, Louisiana and Texas.
The Reed method is the primary method of interrogation in the United States. It was created by an individual named John Reed in the 1940's who co-wrote a textbook entitled Criminal Interrogation and Confessions which has become the bible of all interrogation training in America. It is now in it’s fourth edition. The Chicago based training firm Reed and Associates goes around the country putting on seminars to teach police officers and detectives the Reed method of interrogation. Virtually every detective in America has either been trained in the Reed method directly through Reed and Associates or through similar interrogation training put on by someone else or by the police department to which they belong. The Reed method was not based upon scientific or systematic research, it was created to replace the third degree or the rubber hose in the basement of a police station when the courts put an end to the third degree in the early 1940's.
Now, the first thing to know about the Reed method is that there is a big difference between interviewing and interrogation. Interviewing is something police do to witnesses, victims and potential suspects. It involves asking friendly open ended questions in a non-accusatorial and non-confrontational manner. The purpose of an interview is to get the truth and as much information as can be helpful in figuring out the truth and investigative leads. The idea is ask questions in a manner that is not leading, suggestive or manipulative. The interviewee should feel at ease and should do most of the talking in an interview.
By contrast an interrogation is a very different activity. Police interrogate criminal suspects only when the presume the guilt of a suspect and the purpose of the interrogation is to get incriminating statements, an admission or a confession. It is not necessarily to get the truth. Remember, the idea is that police detectives already know the truth or the detective thinks he knows the truth, i.e. that the suspect is guilty and so the purpose of interrogation is to confirm what the interrogator believes.
As a result, the interrogation is accusatorial and confrontational. The detective is supposed to do most of the talking and the detective uses specialized interrogation techniques whose purpose is to manipulate a suspect’s perception and includes leading and suggestive, sometimes even coercive questioning methods. The ultimate goal of an interrogation is to move the suspect from denial to confession. The Reed method is simple to understand. The main idea as put forward by the Reed school is that the interrogator needs to change the suspect’s mind set by raising their anxiety and changing their perceptions about what will happen to them depending on whether they confess or not. The Reed method seeks to accomplish through a few primary interrogation techniques.
First, the interrogator seeks to isolate the suspect from the environment in which the suspect feels comfortable and from any social networks or outside support. So the interrogator takes the suspect to the interrogation room, which is typically in a remote room in the police station and sometimes lets him stew before questioning. The idea here is to isolate the suspect and eventually to show the suspect that he, the interrogator, dominates and controls the interaction.
Second, the interrogator accuses the suspect of committing the crime in a confident unwavering manner. As mentioned earlier, once the detective decides to interrogate, he has made up his mind that the suspect is guilty and the sole purpose of the interrogation is to get incriminating statements, an admission, and/or a confession. Not to entertain the suspect’s alibi, denial or even reconsider whether the suspect is innocent or guilty. As a result, the interrogator will not only repeat his accusations often, but he will also cut off the suspect’s denials, the idea being that the less the suspect is able to verbalize his denials, the more likely he will eventually be able to break.
Third, the interrogator will attack the suspects alibis or denials as illogical, impossible, inconsistent and/or contradicted by case facts even if it is not and confront the suspect with real or fabricated evidence, a technique that is known as the “evidence ploy”. The purpose of attacking the suspect’s alibi or denial and confronting the suspect with real or fabricated evidence is to convince the suspect that he is caught. That there is no way to escape the fact that everyone will think he is guilty and no one will believe his alibis or denials. In short, is to convince the suspect that he has no choice but to cooperate with the interrogator.
Fourth, the interrogator in the Reed method confronts the suspect with what are called “themes”. A theme is a psychological excuse or justification for why someone would have committed an act. So, for example, in a murder case the interrogator may suggest the theme of an accident or self defense. That the suspect committed the crime accidentally or in self-defense to make the suspect feel that he is less blame worthy or culpable for the underlying act, i.e., the death of the victim and therefore make it easier for the suspect to admit to the killing. The technique of using a theme culminates in the use of a good theme and bad theme which in some ways is like the technique good cop/bad cop. The idea is to contrast the good theme, for example killing in self defense or as an accident with the bad theme, for example, being a first degree premeditated cold blooded murder, to give the suspect the sense that there are only two choices in terms of how the crime will be defined and what will be the consequences to the suspect and that is in his best interest to take the good choice. Sometimes the good theme and bad theme even imply that if you accept the good theme you might have no culpability or minimal culpability. For example, the officer will state that all he needs to know is whether the defendant raped the woman or was it consensual sex. The officer will want to know if you molested the child intentionally or were you so drunk that you weren’t aware of what you were doing and it was unintentional. The officer keeps repeating that if you chose the good theme we can understand. Everyone makes those kinds of mistake or accidents. The officer never offers the choice that the alleged event didn’t occur. He keeps portraying the good thing as being in the suspect’s best interest.
The Reed method of interrogation can lead individuals who are completely innocent to sometimes either come to doubt themselves and their memory and/or to make false statements, false admissions or false confessions. When an innocent individual comes to doubt their memory or make a false confession it is of course highly counter-intuitive. What can clearly see how this can happen if one understands the process of interrogation because the Reed method of interrogation if misused on an innocent suspect can lead the innocent suspect to perceive their situation in a way that makes sense to question their memory or agree to a false account. How can this happen? It happens because the Reed method of interrogation is intended to cause a suspect to think they are caught, they are trapped and there is no way out of the interrogation. They will inevitably be arrested, prosecuted and convicted no matter what they say or do in the interrogation room. This is why the interrogator exudes confidence, repeats the accusations often, cuts off or rejects any denials, attacks the suspect’s alibi, sometimes relentlessly or explanations and confronts the suspect with real or false evidence. The idea is to convince the suspect that the case against him is air tight, objective and irreversible. No matter what the suspect says or does he is going to be arrested and prosecuted. Individuals who are naive or inexperienced with the police or who have no idea that police can lie and make up evidence as well as individuals low intelligence or high suggestibility may come to doubt their memories in the interrogation room especially in response to false evidence ploys because they may come to believe that despite the fact that they have no memory of committing the crime they must have done something because the police are unrelenting, attacking their explanations and alibis mercilessly and the police say they have all the objective evidence that everybody is going to believe, makes them look guilty.
Common false evidence ploys include the police having the suspect’s fingerprints or saying that they have the suspect’s fingerprints, the suspect’s DNA was found on the alleged victim or telling the suspect that his DNA was found on the alleged victim, telling a suspect that an eyewitness can identify him or her, telling the suspect that their alleged accomplice has blamed them to the police, or whatever else the police want to make up and insist falsely incriminates the suspect. The reason the Reed method can lead innocent suspects not only to doubt their memory, but also to make false statements or a false confession is because once a suspect is moved to the point of hopelessness as a result of the accusations, attacks on his alibi and explanations and the evidence ploys. He may come to perceive he really has very little choice in the matter. If the suspect believes the interrogator, whether or not he continues to deny committing the crime, he will perceive that he is trapped, caught and powerless that no matter that he is innocent he will get convicted. If a suspect believes this then the good choice and bad choice offered by the interrogator’s use of themes may be persuasive. Given the fact that the suspect perceives he is caught and there is no way out even if he is innocent he may feel compelled to take the good choice making him appear less culpable in order to avoid the bad choice which would make him appear more culpable since he believes he is going to get convicted anyway and as the interrogator is either implying or explicitly suggesting the good choice will led to less punishment, a lower a charge and/or a lower sentence or possibly no charges at all, than the bad choice which will lead to more punishments, for example a higher charge and/or higher sentence. If the detective’s use of the Reed method of interrogation is successful in moving someone to this mind set then it may make sense indeed the suspect may perceive it as in his self interest to make a false admission or confession to avoid an inevitably higher charge or sentence even though he or she is completely innocent.
An innocent suspect can be led to say and possibly believe that it must have happened while he was asleep because he has no memory of it, it must have happened while he was blacked out drunk because he has no memory of it or is led to believe or can be made to believe that if he just agrees that something accidentally happened it will be in his self interest. The Reed method of interrogation can be very psychologically coercive on both suspects that are guilty and suspects that are innocent.
Thank you Richard that was really informative. It’s particularly important when you have the first opportunity with your client’s admissions that you transcribe that tape. If you’ve got a tape of the interview get it transcribed. Mark out the evidence ploys in the tape, Mark the themes, with different color sticky notes or put them in a different color marker, if necessary, but mark them as distinct from the evidence ploys. Mark the implied or overt offers of leniency as distinct from the themes or the evidence ploys that you notice in your transcript. Mark the implied or overt threats that you find in the transcript. Make sure that you’ve got each one of those things, evidence ploys, themes, implied or overt offers of leniency, implied or overt threats, distinctly set aside and marked.
What if you don’t have a tape? Well, debrief your client immediately. Make sure that your client takes notes in their own handwriting. I had a circumstance once where I took notes when an expert was talking and then the expert lost his and took a copy of mine up on the stand - The other side tried to pretend that I was telling the expert what to say. Mr. Clancy had a circumstance in which he took notes when the client was talking and the client used his notes to refresh his memory. The prosecutor tried to make it seem that Mr. Clancy was putting words in the client’s mouth. Don’t do that.
Have the client take notes in his own handwriting, but debrief him, ask the client every single question that was asked of him. Ask the client how he responded, try to get the client to tell you about themes, ploys, overt and covert offers of leniency, overt and covert threats, but don’t put words in his mouth. First try to get the information directly from him or her and try to make sure that you understand how the client responded to each of those themes, or evidence ploys or overt offers of leniency or threats.
It’s important that you understand that to get an expert in on coerced confessions or on the confession process in general - you face Daubert and/or Frye issues. Dr. Leo has qualified for his testimony under both the Daubert standard and a Frye standard in California and in a variety of courts around the country.
The motions located in our californiamotions.com website will help you get an expert like Dr. Leo or Dr. Leo if you’re lucky enough to get him - involved in your case, on the stand - to offer testimony and into evidence.
Mr. Clancy has made a video for you about how to access these motions and others.
Okay now in order to get testimony in concerning police interrogations, we need a motion that shows why that’s admissible. We go to californiamotions.com, you can obtain a password here if you don’t already have one. I have mine so we come over and enter my address, my password logs in automatically and there we are. Now using the drop down we’re talking about the admissibility of a defense expert and it’s right here in three formats. Admissibility of expert witness on coerced confessions, it can be done in wpd wordperfect or word. Let’s take a look at it as a pdf file in Adobe and that’s what it looks like and then you can just hit save a copy and you can put it directly on your own computer wherever you want it. That’s it.
What happens if you can’t get these motions granted before trial? Salt the record - talk about this outrageous confession - talk about this outrageous process every chance you get. Bring it up in opening, bring it up in your examination of witnesses, talk about it, beat it to death and then run your motions again.
There are a number of judges, whose persuasion we all know about, who are not going to give us any help whatsoever pretrial. So you make your record and make it appear so clearly that they are going to be reversed for denying this crucial evidence - that they begrudgingly let you get an expert like Dr. Leo on the stand. So if you don’t win in pretrial, salt the record, bring it up every chance you get.
It’s important to realize that there are other opportunities for your client to step on his own case.
Several times we have to defend against our own client’s statement. One of those is when he undergoes an interrogation by the police, but the other one is called a pretext phone call. What is a pretext phone call. Well it is legal to have an individual call the suspect and question him. Usually this is done by the a child, if the child’s old enough, if not by a relative of the child. They then call and confront and try to get the defendant or the suspect to make incriminating statements.
If you just say you’re sorry we won’t go to the police, my daughter is upset we know it’s true, why did you do this, things of that nature. The theory behind it is that the individual is caught off guard and does not have time to fabricate a story and will give admissions to try to avoid this going to the police. What do you do with this type of statement? Well several things.
The first thing is you have to look at it as to whether or not it is a coerced statement. Most people, most attorneys do not realize that private parties, not just the police, have been held to be the cause of coerced statements and the statements have to be suppressed. We have been successful in getting a number of pretext phone calls suppressed, we have even gotten a pretext phone call which was done when the defendant was a police officer. Why, because there are cases which have held that in the area of coercion under unlike search and seizure that a private individual can also be the cause of coerced statement and coerced statements are inherently unreliable and therefore are not used.
The second theory, in looking at a pretext phone call and doing a coerced statement analysis, is that a private party can also be held to be the agent of the police. One of the things that you want to do when looking at a pretext phone call is subpoena the notes of the police officer. I’ve gotten notes of police officers where they have written down-- jack him up, threaten him with this, you know, make him think he is going to get away with it, – all sorts of statements that prove that the statements that were being made were intended, either as threats or as a offers of leniency. So go for those notes. Then you need to analyze the statement as you would any other coerced statement. You would also take a look within the pretext statement the same type of techniques that are used in police interrogations. Look for the same types of themes, look for evidence ploys, things of that nature, look for offers of leniency, express or implied, look for threats, express or implied. You can then run a motion to suppress the statement if you believe that it a coerced statement. Here is some help for you...
Okay we want to keep a statement out of evidence, we believe it that it’s been coerced. This can be from a police interrogation or it can actually occur even during a pretext phone call. So we go to californiamotions.com, you can obtain your password here, I already have a password and I have memorized my password, now using the drop down category this was an in limine that was miscellaneous and what we’re looking for is a motion to exclude coerced confession and that’s right here. Let’s take a look at it’s in pdf and word document and wordperfect, let’s look at the pdf, there it is and you can scroll through it and the points and authorities. To save a copy to your own computer, there’s your own computer. All you have to do is pick out a location where you want it and save it.
The second thing in analyzing a pretext phone call is that it can be used as an open door. Many times these statements are ambiguous. The individual says when confronted, I’m sorry. Well what does I’m sorry mean. If somebody says if you do it again I’ll go to the police, if you don’t say you’re sorry I’ll go to the police – well I’m sorry. Well why did they make that statement. You are allowed to introduce the suspect’s or the defendant’s state of mind. Let me give you an example. One time I had a case where a U.S. Air Force Sgt made one of these statements of I’m sorry. His commanding officer was the father of the child. So things that would not normally be allowed in I was able to get in this through this open door. Why did you say you were sorry? Well he’s my commanding officer, if I talk back to him I could get in trouble. I could lose my position in the Air Force, I could lose my pension. I was within a couple of months of retiring and getting my pension. I was afraid I was going to lose everything unless I said yes sir, yes sir. Well normally you’re not allowed to talk about the consequences of a charge of this nature with the jury, but here his state of mind was placed into issue and we were able to show he was conforming to the military commander that he was afraid of the loss of his pension, that he was close to retirement, all sorts of additional things that we could not normally be able to get into evidence, we were able to get into evidence through this open door. And think of a pretext phone call as an open door. You get to explain what you said and why you said it and that gets in a lot of very favorable material that you would not be able to introduce otherwise.
The next area that I want to talk about is investigations. With investigations we have a system to keep track of what we’re doing on a number of different cases. Now, we have a color coding system and a means of communicating with our investigator so that we don’t have to drive 30 miles to be at each other’s office and a client doesn’t have to drive a couple hundred miles to be with us. Let me show you a video on how we conduct our investigation, work list or our investigation meetings with the attorney, the investigator and the client.
Part of being properly prepared is coordinating your investigation meetings. Because my investigator lives about 30 miles from where I do, we’re doing this on the internet. What I suggest you do is go to GotoMeeting.com and download their program. It’s very reasonable, they charge about $40 a month.
This program will allow you to have ten people looking at the same screen at the same time. We have multiple investigators, so I call and have two investigators in on the meeting and we actually have the client who may be in another part of the state in on the meeting.
Now I already have that on my computer so let’s go down here and launch gotomeeting. I’m going to host a meeting and show you what it looks like. I log in with my e-mail and I log with my private password. Now I can schedule a meeting to happen in the future and send out notices to people or I can do it now. We’re going to go ahead and do it now and we’re going to start the meeting.
Okay this is the screen of the host. I want people to join my meeting and so I can send them an e-mail and when the click on the e-mail they see the same screen that I see. They then call in at 641-497-7010, that is a toll free number, and a computer will answer and ask for the meeting number. There is the meeting number, you punch that in and you are connected. Ten people can be in on it at the same time. I then click show my screen so that others can see my screen and one other thing, I can give people access to use the keyboard and the mouse, I can pick one person to have access or everyone or two or three, whatever I want. Then by hitting this little button everything goes out of the way.
Now what’s on the screen is seen by everybody whose in the meeting and we’re all talking on the phone through a conference number. What we do then is we go over the investigator checklist that we have for each client. A few things, all our ideas that everyone has is put on one document. This way there is no misunderstanding about what it is I’m looking for in the investigation. Recently I had to testify at a writ hearing and a testimony wanted to know wanted to know if I had done certain investigations, it was four or five years later and I couldn’t remember if I had thought of an idea and then cancelled it so we came up with color coding, green we cancelled that part of the investigation, maybe for tactical reasons, maybe for other reasons. We yellow color code anything that’s a high priority and when it’s done we red color code it without deleting it. Then if years later you are required to testify as to what went on you know exactly what happened with your investigation. Remember, each person can type on this so I may talk about a neighborhood canvas and my investigator may have a few ideas he can take over the keyboard and the mouse, hit it, right down his ideas of what he would like to do under that. Records that we are going to have the client, issues on alibi, other things of that nature. So everyone sees the same screen at the same time, everyone can modify it, the client’s love it because they understand what’s going on and we can coordinate multiple investigations then we have that client or we disconnect them and have another one come online and we have another meeting. That’s how we conduct our investigation meetings.
You’ve now seen how we have investigation meetings. We have our clients involved in it, we have the investigator and the attorney, sometimes we have two investigators that are located in different parts of the state, all working together on the investigator checklist. By doing this everyone knows precisely what it is that we’re looking for, what the theories are and the types of questions that I want to have handled. Too many times I have seen cases where an attorney goes to the investigator and just says well go out and investigate this, you know it’s one of the first of these types of cases I’ve done, see what you can find. Well that is the misuse of your investigator. There are certain areas that have to be investigated in a child molestation allegation case and in particular if it’s a false allegation.
The first place we can start with is not what you would normally expect. We investigate our own clients. Since the passage of evidence code section 1108 the prosecution has been able to introduce other allegations of sexual molestation made against the client or rape or any other type of sex crimes. Sometimes the clients get a little upset that we are investigating them, but we have to explain to them that the DA will eventually get around to investigating their background. We start this investigation out with our intake form and on the back of it we have a series of questions for the client to tell us about any prior allegations. Now they don’t want to disclose this to you, so the form covers it in many ways. Have you ever been accused before, have you ever been falsely accused before, have you ever been accused of something you didn’t do and no charges were filed. By asking it a number of different we hope that they will disclose to us if there were any allegations every made. Further, if they fail to tell you about it and this pops out in a later part of the trial and they tell that they did inform you, you can take out the form and show them that you had not. You need to know what’s bad out there that you can bump into. Now where do we look when we’re looking at our own client. Well the first place is we look at our client’s other children. Many times I have found that a client has two or three former wives and there is only one child accusing, an offers been made, it’s a bad case, it’s a reasonable offer and the client says I didn’t do anything. We’ve gone out and we’ve investigated the prior marriages and the children from the prior marriages and the stepchildren and low and behold what do we find out, same types of accusations were made. Well I want to know that before the DA knows it, if possible. It can definitely affect how the case proceeds. We want to know about these other allegations whether they are false and whether or not they were ever filed because under 1108 they could still come into evidence and in evaluating your case this is an important thing to know up front. Now, good character witnesses, you don’t need a private investigator to investigate them. If they are good character witnesses they are willing to come to your office and you can interview them and evaluate them yourself. Or if they are from out of state you can talk to them on the phone.
The next part of the investigation is we investigate the alleged victim. There are two major questions that must be answered by the defense in one of these cases. If you don’t answer these questions before a jury, your client is going to be found guilty. By knowing what these questions are it helps direct your investigation. The first is sexual knowledge. What if a four year old makes a statement about oral copulation. The jury will believe that it’s true because how would a four year old know about oral copulation. Well you’re going to need to establish through an investigation whether or not they heard it from other little children, maybe somebody that they knew that had been molested, maybe an other brother talked about it, maybe a concerned parent questioned them about it. You need to do an investigation to determine where they got their sexual knowledge. As the child gets older you know especially if they are up 16 or 17 years old, that’s not as important. But it’s important with the younger ones up to even 13, 14, sometimes 15. It’s amazing how some older jurors believe that a 13 or 14 year old knows nothing about sex. We need to establish that they know.
The most important thing that you have to show a jury is the motive for a false allegation. Now, when you’re doing a case this is really the key to the case. What is the motive, there could be hundreds of different motives. I can’t give you a list that would even begin to include all of the motives. But that is what you must be looking for. Now, suggestibility is a motive. It explains why the false allegation was made. Third party culpability -- maybe it’s a 15 year old that thought they were pregnant by a boyfriend and want to blame someone else so that their boyfriend doesn’t get in trouble. The alienation of one of the parents by the other parent during a divorce is a motive. In fact, it is probably the single most common motive. There are adult type of motives, hate, jealousy, maybe the person accused married the child’s parent and they didn’t want the loss of the other parent. Another motive which I’ve seen in a number of cases is children that are neglected who are seeking attention. We have done cases of that nature numerous times and in fact what you are doing then is showing the lack of attention, the lack of concern of the relatives, the child reaching out and trying to find attention by acting out negatively. That is way of doing it. Another type of motive is the “me too” motive. I had a case in Modesto where 13 girls in a kindergarten class accused the teacher of molesting them. The actual defense had to do with the kids basically all going “me too, me too”, all of these little girls, a group hysteria. We were able to show this because the 13 girls also saw each other being touched day after day after day. What was surprising to me is that there were no statements from the 13 boys. We went and got the 13 boys and they said they had never seen anything. Finally one of the girls cracked, one of the 13 came forward and said that she had just gone along with it because everyone else was and it was fun,-- “me too”. There can also be a situation in which you have what I would call children type of motives. I had a case in which a day care provider was accused of putting a lotion on a child’s penis from a green bottle. We found out through our investigation that a week before this child had been out on a camping trip with his parents and his sister. The sister had gotten into some poison oak or poison ivy and had touched herself in her private area and the mother had applied lotion on the child to get the child cured. The lotion had come from a green bottle. The other little child had seen it. Well parents know that if a young child falls down and scuffs their knee and you have two young children-- you get out two band aids. You put one on the knee of the child who was scuffed and you put one on the knee of the other child. I had loaded the jury with parents. When I made this argument the DA, who was a single person, laughed. She laughed right up until the not guilty verdict came back. Motives have to be viewed through the eyes of a child, not through eyes of an adult.
The next thing I would like to talk about is what I call specific investigations. Why is it that you can win a trial in which 13 people are accusing your client, which I have done, and lose a trial in which two people are accusing him. It has to do with whether or not you have independent sources or are the sources linked. In the example of the 13 children they all knew each other. They were in the same class, they all talked, that’s one form of linkage. In the case where it was lost there were two children – independent-- at other ends of the state who had never met and who were not interviewed by the same interviewer and they told nearly identical stories of having been molested. You therefore must determine whether or not the sources are independent or if they are linked. If they know each other as in a class it’s easy. There are other ways that there can be linkage though. We had a case in which there were five students in one class, seven in another and there was no showing that there was any cross-contamination between them During the course of the trial we found out the children in the earlier year class went to a swimming pool party which was attended by the students in the other class and that they had talked about the teacher and that the rumors has spread. In essence, we had one source, not two sources. We didn’t find this out until the middle of trial.
The other way that you can have linkage and in essence have one source rather than multiple sources is the investigator. Take the classic case of the McMartin case. There were hundreds of different children interviewed, from a number of different years of attending the school. What do they have in common, they were all interviewed by Key McFarland who used suggestive and leading interview techniques.
Are there other ways that you can link what might appear to be independent sources. Well, another one I can think of is therapists. Now especially in adult cases-- we had cases where there were 10,000 reports of satanic cults and people were being molested by satanic cults across the United States and baby sacrifices. This was investigated by the FBI and found to be totally bogus, but during their investigation, what they found out was that the accussors all went to therapists who had all received training about satanic cults and how to interview your clients about satanic cults. The common factor was the story was being spread by the therapists and training manuals and courses. The individuals had never met each other.
Okay, what would you look for next in terms of guiding your investigation. Corroboration. You must check out all allegations that have some means of corroboration. You need to know both the good and the bad. Recently I had a case where a child was claiming this neighbor saw a certain touch, that neighbor saw a certain touch, another one saw porno videos, the story was just overwhelming until we went and interviewed all of these children who said they had never see any such thing and the little girl had a tendency of making up stories. We had one in which an e-mail was sent in which our client was professing love and wanting to be with her and a whole number of other things. When we went to check the corroboration we went to our client’s send folder in his e-mail and found out that he had sent an e-mail --one sentence long. She had added two or three more sentences and then saved it. When confronted with the original e-mail and the fact that we could prove that it was original from the computer hard drive she confessed to adding statements to the e-mail, the corroboration in fact did not exist.
You also must look for the lack of corroboration where there should be corroboration. If the person claims that an event occurred and there were witnesses present, there should be corroboration even if the police haven’t interviewed them. If you go out and find out that there is no corroboration, it undermines the credibility of the complainant.
The next area I would like to talk about is investigating the alleged victim’s background. A case we handled at trial was just recently overturned after a conviction based upon a writ. And in doing that a complete background investigation was done. As it turns out the 15 year old had lied about a rape, a molestation. What was discovered after the trial is that she had admitted that she had lied to a friend of hers who at the time of the trial was stationed overseas in the military. A year later when a follow up investigation was being done on the writ going down lists and lists of names of people who knew her, literally 30, 40, 50 people were interviewed, the individual had returned from Saudi Arabia and Iraq and was there and had the story ,not only, that she had admitted that she had fabricated the rape but also why she had done it.
She was upset because the person had used her. She had voluntarily had sex with this young man, but then when he left the party and went off with someone else she was mad. She actually told somebody about this. It was turned up through a background investigation. The other thing that we have found out is that they definitely will talk about the events different to their friends than to their parents. So find the friends that they have talked to.
There is another type of background investigation. You can almost spot it, it’s need. I hear that the child came forward because she was afraid that she was pregnant and that she was molested by her next door neighbor and she was a virgin. Then I looked through reports and statements and she mentions she was a virgin again and then she mentions she was a virgin again and I think about she has protested too much. We went out and did an investigation and within one day we found out that on Tuesdays and Thursdays she was with a young little boyfriend having sex while mom was at work and she didn’t want him to get in trouble. We found the boyfriend and he owned up to it. Was that an isolated case, no. We’ve had that five or six different times where third party responsibility has been the defense. What’s nice about those cases is they normally never go to trial. Find their friends and more importantly children have enemies, find their enemies, they will tell you what’s going on.
Next, I’d like to introduce you to our investigator, Harvey Shapiro. Mr. Shapiro teaches POST, advanced officer courses. POST as you know is Police Officers Standard of Training. He was a consultant on the latest POST training video on the investigations of allegations of child molestation. He’s handled a couple of thousand child molestation allegations in his career because he was a child molest investigator for the Riverside Sheriff’s department. Not only that he was trained by Steven Ceci himself on issues of suggestibility. Harvey is going to talk to you about what the role of a investigator is. I’m proud to introduce to you Harvey Shapiro.
My name is Harvey Shapiro and I'm an investigator for the Clancy Litigation Group. I want to thank Psychlaw for inviting me to speak here today. From 1974 until I retired, I was a detective in the Riverside California Sheriff's Department assigned to the Crime Pattern Analysis unit, the Law Enforcement Intelligence Unit, and the Crimes Against Person's Unit. Child molestation cases were handled by the Crimes Against Person’s Unit.
During this time the country was rocked by sensational cases such as the McMartin Preschool case, the Bakersfield Sex Ring cases, and many more. These cases were based on investigations that were out of control.
Fortunately, we didn't have problems like these in Riverside County. Certainly we had our share of accusations. So how did we avoid the problems created by investigations that were out of control?
Command instructed us to do investigations as if we were "defense investigators". That's right - - I was told to conduct my investigations as if I were the defense investigator. If you are searching for the truth you must be as concerned about those that are innocent as you are about those that are guilty. This is that attitude that helped us avoid approaching a case with a single hypothesis and not exploring other possibilities of how something could have occurred. Today, I do investigations for the defense. I am encouraged by the law firms I work for to conduct an investigation as if I were the police. Why? Because good defense attorneys are concerned with what is out there and what facts a good investigation will uncover.
Good defense counsel wants to know what is out there that can effect their case - - and they want to know ASAP. They want the bad news as well as the good news. Today, I want to talk about what a competent investigation entails, whether the investigation is conducted by law enforcement or by the defense.
The information I'm going to give you today comes from, in large part, from the presentation that I give to law enforcement when I do training programs for the Police Officers' Standards of Training. It doesn't matter whether the audience is made up of law enforcement professionals or defense investigators, the message is the same. The investigator is supposed to be the finder of fact in the search for the truth. It is important that the investigator assist the attorney at trial, whether that attorney is the defense attorney that he/she is assisting or the district attorney that he/she is assisting. This assistance is based on the investigator's search for truth. In the search for truth - - RELIABILITY is the key.
For us, reliability means: 1. Are there sufficient corroborating facts supporting a conclusion? 2. Will it hold up to scrutiny? 3. Will it hold up over time?
It's important to understand that when any investigator looks at a case, they want to look at and be concerned with the reliability of the information contained in the case file. Bias affects that reliability. One of the most important kinds of bias an investigator needs to watch for is called "confirmatory bias". In its worst form, this means driving towards a specific conclusion - no matter what the evidence may be. Confirmatory bias or confirmation bias is widespread. It can be overcome only with specialized training. It is especially important to learn to ask the right questions. We must guard against focusing only on "he did it" or "he didn't do it" kinds of information. We can guard against confirmatory bias by trying to look at the whole picture.
1. Who made the initial allegation? 2. What were the circumstances of the initial allegation? 3. Who stands to gain by the allegation and so on. This is the groundwork an investigator will lay down to help guard against confirmatory bias. We must also consider "coercion". This can mean "manipulation" by someone with something to gain by the allegation. It can mean an overzealous interviewer miss-hearing a child or worse, It can mean covert threats - which almost any investigator will work to uncover.
Investigators should also carefully review audio or video taped interviews, whether they be of witnesses or of the victim or of the suspect. I teach that good investigators must interview the suspect to see if confessions may or may not have already been made, either in the interrogation arena or in the pretext arena. The pretext arena refers to a "pretext" telephone call made by the alleged victim to the suspect that is recorded by police investigators. The competent investigator must cover the possibility of confessions or admissions in both of these areas.
We find that chronologies and witness lists are of great value. It is the client and the investigator that put the chronology of relevant facts together for the trial attorney. This helps create a context for events and serves to guide the investigation and the trial preparation process. This is of great importance because, absent the context of how and when something occurs, it is very difficult to form an accurate picture.
Another important factor in any good investigation is to investigate the credibility of the key witnesses. Do they have any motives to lie? Do they have any motives to get back at someone?
We also take a look at issues of source monitoring, and this generally goes to source attribution and source mis-attribution. Dr. Lorandos talks more about this in the seminar on suggestibility. Let me just say here that source monitoring refers to the process of identifying the origin of one's knowledge of events.
Maybe someone has a memory, but did that memory come from an actual event or from just thinking about the event or being repeatedly told about an event? My friend Dr. Elizabeth Loftus has done a great deal of important research in this area.
It is also very important to remember that as people, we tend to look for things that support our personal point of view. As investigators, we must look at the interviews that have occurred for indications of such a bia. These indications of confirmatory bias will become apparent by a complete lack by the interviewers - of any attempt to think about any alternative hypothesis. Is he guilty? Is he innocent? Remember I talked about guarding against focusing only on "he did it" kinds of information. It is critical in a good investigation to determine whether interviewers looked at any hypothesis other than "he did it."
We look for as we say in psychology "the pursuit of alternate hypotheses". Are there other possibilities of how this event could have occurred? In general, we try in our interview process, to examine all other possibilities.
The investigator will also consider confessions and ask: " Do we have a coerced confession?" Professor Leo has spoken a good deal about this. I would add that the objective investigator will not take a "confession" at face value but will investigate whether the suspect was scared? Or look into the possibility that maybe they said what they said because they thought they would have less jeopardy. Is there any information in the interrogation that came only from the suspect? If not, how do we know that the information we are getting is from the suspect rather than the interrogation process? These are but a few of the important issues for psychologists - and good investigators to answer.
Let me also say - that we must carefully look at medical reports. Medical reports may or may not confirm that which is alleged. We maintain a strong medical library which we use to examine medical reports. Don’t be mislead by the phrase “consistent with”. “Consistent With” does not mean “proof of”. I have seen too many investigators not realize the difference. Why does that cause a problem. Having heard that the medical examination is “consistent with” child molestation, many investigators stop looking for the alternative hypothesis. This is a mistake.
We all know that a good investigator will investigate issues of opportunity - motivation and sexual knowledge. It's how an investigator looks into these important concerns that I want to talk about now.
When conducting interviews, the skilled investigator will be concerned with the RELIBILTY of information provided.
There is significant research regarding issues of memories and the malleability of memory. One of these important malleability issues is coercion. An investigator should work to determine if coercion was used with any witness and if so, as a result, the individual may assent or accommodate and give the story that they gave to minimize a possible negative outcome.
The concerned investigator will also work to determine whether the information provided by any of the witnesses or victim was based in any way on the suggestibility of that person. Also, the investigator should look at the possibility of implantation of non-events.
Analyzing interviews, the objective investigator will look at issues of misunderstanding that which may have occurred, or the misinterpretation of what actually did occur. Cultural differences should be explored and how events might be viewed differently or misinterpreted by other nationalities.
Remember, it's important to maintain excellent communication with the family, the accused, the witnesses and their family. When interviewing people, we need to show empathy and sensitivity to their situation.
It's important to stay in contact with the defense attorney when working with the defense or if you're law enforcement officer to stay in contact with the district attorney. Let me talk a little more specifically about FORENSIC interviewing. The role of the forensic interviewer is to be objective, and that means that the interviewer is committed to eliciting facts without imposing his or her own beliefs on the person being interviewed. The objective interviewer needs to be neutral and consider alternative hypotheses. The interviewer needs to be friendly, and not present as an authoritarian or a disciplinarian. This will aide in free recall of the interviewee. It's important to attempt to interview the alleged victim or victims. This may not be allowed or available to the defense, but it's important for the law enforcement to maintain excellent communication with those folks.
In these important interviews, some helpful things to say are: 1. I wasn't there, so…. 2. Even if you think I know it, tell me anyway. 3. Even if you think it does not matter, tell me anyway. 4. It is ok to tell me that you do not remember. 5. It is ok to say that you do not want to answer my question. 6. If I make a mistake, please correct me.
Note – the questions are designed to start the flow of information. It is actually easy to do a neutral interview but you must control yourself and not allow leading questions based upon your own bias to ruin the interview.
Another very important issue for the competent investigator is the difference between the therapeutic interview and the forensic interview. There is an enormous difference between a forensic interviewer and a therapeutic interviewer. Here are some examples: 1. A therapeutic interviewer assumes the child is telling the truth. The forensic interviewer interviews for the purpose of fact finding. 2. In a therapeutic interview, the interviewer is an advocate. 3. In a forensic interview, the interviewer must be neutral. 4. In a therapeutic interview, subjective reality is accepted. 5. In forensic interviewing, alternative explanations are explored. 6. In a therapeutic interview, accepting of general descriptions of abuse are accepted. 7. In forensic interviewing, details of abuse are imperative. 8. In therapeutic interviews information can be obtained by using a variety of techniques. 9. In the forensic interview, the interviewer follows a set of guidelines that are generally accepted within the interview community.
What we do as interviewers, whether we be law enforcement or the defense interviewers, is to attempt to find out how people know or what they think they know. Just because they think they know something is so, doesn't make it a fact. What's important to understand is that if a person doesn't know what the truth is, how can they possibly tell a lie?
Remember - RELIBILITY is the key issue. And don't forget that the thorough investigator will also carefully review the work of all previous investigators. The investigator, along with the attorney, should review the training records of law enforcement officers and child protective service people to see if they have had the specialized training as required by law in California under Penal Code 13516. As you know, this law requires law enforcement people to have specialized training on sex crimes. When we review the medical and psych reports, as well as any photographs, we may find that there is conflict between what the reports show and what the evidence shows. While interviewing, it's important to get as much information as you possibly can. Like the little dots or pixels of a picture, the more pictures that you have and the more pixels in those pictures, helps determine how clear the story will become. So, it's important to get as much information as you can, with as much detail as you possibly can. Remember, the greatest impediment to progress is not ignorance, but the allusion of knowledge. Just because someone thinks that they are correct does not mean that they are.
Let me give you an example with a few slides. Take a look at this slide, it's called the "sign painter". In viewing the first slide, I want you to think about what the sign painter is painting. You will see on the left there is some information, and on the right, the sign painter has provided additional pieces suggesting a vivid idea of what is to come.
Now we take a look at the second slide, and we see the picture on the left with more detail and more information. Now we're getting a clearer idea of what the sign painter is painting. Take a look again, on the right hand side, more detail, a better look at what the picture is all about.
Taking a look at slide three, we see a lot of detail, and now we probably have a good idea of what this sign painter is painting. All too often we stop at this level, and we do not wait to get more information. We proceed with a single hypotesis.
If we would have continued further without forming an opinion, we would see that what we thought the sign painter was painting, was in fact not what he was painting at all! So, as we can see by this example, the details are very important for investigators, whether they be defense or whether they be prosecution. It's important to obtain the most pixels of information that you possibly can so that you can see the clearest picture. You cannot do this if you are following a single hypothesis.
Most importantly, the investigator is not an advocate. The competent and thorough investigator must look at both inculpatory and exculpatory information. This means we must look for information that tends to show that a crime has been committed and information that tends to show that a crime has not been committed in a search for the truth.
In my observation as a retired detective and my observation as a private investigator doing child abuse cases for many years, when the investigator keeps an open mind, tries to obtain as much information as possible, investigates all reasonable alternative hypotheses, they will get the information they need to help prove or disprove that the one that has been arrested is innocent or guilty. What is done with that information is up to the attorney, it is our job to make sure that the attorney, whether for the defense or for the prosecution, knows the truth.
We want to thank Harvey for explaining to you the role of the defense investigator. And in fact it really even shouldn’t be called a defense investigator because a true investigator goes after the truth, goes after the facts, whether they are a police investigator or whether they are hired by the defense. Now you should realize that an investigation is the backbone of the case. It’s not attorneys, it’s not expert witnesses, it’s investigators.
On behalf of Harvey Shapiro, Professor Leo and Dr. Lorandos, I want to thank you very much.
Seminar 2 Coerced Confessions and Investigations :Seminar 2 video Seminar 2 Coerced Confessions and Investigations Today we’re going to talk about police interrogations and defense investigations. Psychlaw is proud to present the faculty for today: Attorney Patrick Clancy, Retire Sherriff’s Detective Harvey Shapiro, Professor Richard Leo from the University of California at Irvine and myself, Dr. Demosthenes Lorandos. We’re going to talk about defending against
90 Years of Research on Child Suggestibility
In this seminar we are going to talk about suggestibility.
What is suggestibility? Years ago Gudjonsson wrote that “Suggestibility” is the extent to which individuals come to accept and subsequently incorporate post-event information into their memory recollections. More recently than that Ceci and Bruck in their important textbook Jeopardy in the Courtroom, wrote that suggestibility refers to the degree to which the encoding, storage, retrieval and reporting of events can be influenced of a range of external factors. More recently still, Poole and Lamb defined suggestibility as generally referring to errors that arise when witnesses are exposed to information that is false or to social pressures that encourages particular types of answers. How is suggestibility studied?
Suggestibility has been studied for hundreds of years. In fact Ceci and Bruck teach that Varendonck a Belgian psychologist conducted a number of interesting studies on young children’s testimony many years ago.
In one study seven year old children were asked about the color of a teacher’s beard. Sixteen of eighteen children provided a response where as only two said they did not know. The teacher in question did not have a beard.
In another demonstration a teacher from an adjoining classroom came into Varendonck’s classroom and without removing his hat, talked in an agitated fashion for approximately five minutes. Not removing one’s hat in that day and time was considered quite rude. Only three of the twenty seven students claimed that the hat was not in his hand.
In another demonstration Varendonck asked the children in his class to name and describe the person who had approached Varendonck in the school yard that morning, although there was no such person. Seventeen out of twenty-two of the children actually gave a name to the suggested person.
Since then suggestibility has formed an important basis in defending against false allegations of child sexual abuse. Probably the most important place to start after we have a general sense of suggestibility is in obtaining a natural history of the allegation. Wakefield and Underwager suggest that understanding the natural history of an allegation - that is paying close attention to the origin, nature and timing of the allegation - is incredibly important and you’ll learn why as we go through this seminar. In fact this is particularly important because there are lots of validators and evaluators doing work for the courts. What is a validator? The term validator was coined by Professor Richard Gardner when he was at Columbia. A validator in the context of allegations of child sexual abuse, is distinct from an examiner or an evaluator - because validators tend to reason from preconceived notions and commit numerous errors of causism and hyperclaiming. Causism means that they are attributing a cause to something where there is no causative relationship established. Hyperclaiming means making a claim based upon two little information to justify that claim.
The first thing that we need to examine when we’re looking at the natural history of an allegation of child sexual abuse, are parental effects. We have to first be cognizant of the effects of parental anxiety. You see parents who worry that their child may have been sexually abused experience elevated levels of anxiety while they deal with the ambiguity of the circumstances. They don’t know actually what happened. As long as a child denies abuse a worried parent typically struggles with anxious uncertainty because it’s logically impossible to prove a negative. Anxious parents can never know for sure that nothing happened to their child. A parent in these circumstances wonders if their child is intimidated into denial or if the child is too embarrassed or too traumatized to tell the truth. Research tells us that these ambiguous situations increase the probability of people seeking out and relying on the judgments of others. When anxious parents and concerned others discuss the likelihood of their child having been sexually abused, parental anxiety tends to dominate the interchange. In these circumstances a situation rapidly develops where two or more people share the same anxiety while struggling with ambiguous circumstances and limited information. The intense need of people to obtain information under these circumstances usually causes them to speculate about what has happened and speculate with each other. Research tells us that this is the kind of situation that readily facilitates rumor formation and rumor transmission.
Researcher Terrance Campbell describes parental anxiety in terms of expressed emotion. Campbell teaches that parents who worry that their child may have been sexually abused experience elevated anxiety levels while contenting with considerable ambiguity. They don’t know what - exactly happened. Campbell claims that as long as a child denies any abuse, a worried parent struggles with a gnawing and unrelenting sense of anxious uncertainty. We could certainly see how this might come about. Any of us that are concerned about children confronted with an allegation of sexual abuse - would be struggling with ambiguity and naturally if we care about children our anxiety would increase. Campbell writes that because it is logically impossible to conclusively prove a negative - anxious parents can never really know for sure that nothing traumatic happened to their child. When we look at the effects of parental anxiety we see that interpretations become biased immediately.
We all know that young children often respond to questions in a vague open ended manner. That kind of response invites considerable amounts of interpretation and speculation. But in the allegation context - these ambiguous responses invite worried, anxious parents to leap to improbable, but plausible sounding conclusions. These are usually ill advised interpretations of what the child may mean. In particular, parents who are worried and anxious misinterpret their children’s behavior.
Researchers Frick, Silverthorn and Evans explained that maternal over reporting of their child’s anxious symptoms - was related systematically to the level of maternal anxiety. What they are getting at here - is that the higher the level of the anxiety the more over reporting of symptoms they found in their study. In their study they went on to report that this anxiety related over reporting - seemed to account for the presence of children who received diagnoses solely from the parents report. Research demonstrates that anxious people interpret ambiguous sentences in threatening ways. In response to the following sentence – “the doctor examined little Emma’s growth” - an anxious parent will interpret “growth” to mean a tumor rather than how tall little Emma was or how big she was that day.
Research also demonstrates that people who are distressed will miss interpret the homophones morning or mourning. In other words, when hearing the homophone, they conclude that it means mourning. With the ambiguity characteristic of children’s verbal behaviors – “he touched me” - for example, the anxiety level of a worried parent can rapidly lead them into bias interpretations of what their child says. In other words, they expect to discover the worst case scenario and as a result of this expectation, that is exactly what they usually discover. Goethe once said “we look for what we know, we find what we look for”. More about that when we talk about interviewers.
When parents conclude that their child has been sexually abused, their anxiety level will cause them to interpret - to the child - what they assumed to have happened. The anxious parent turns “he touched me” into “he touched me bad” - and so does the child. Consequently parents who are worried and anxious as a result of assuming their child has been sexually abused distort and taint the memory of that child usually without any intent to do so.
I used to tell parents when I saw their children in therapy that if they respond to little Johnny hitting himself on the thumb with a hammer, oh my goodness, oh no call the ambulance, everything’s going to be terrible, oh little Johnny, oh amputation, Johnny would have one kind of reaction. But if they responded to little Johnny hitting himself in the thumb with a hammer, oh boy that stinks let’s put some ice on it, hey want an ice cream, let’s watch some TV, Johnny has a totally different reaction. So we can see that anxiety in parents drives up false allegations even when they don’t mean to do so. This is all the more reason to understand the natural history of an allegation before we leapt to conclusions.
Let’s talk about denial and what happens with the parents questioning when a child denies. If a child continues to deny having been sexually abused despite a worried parent’s growing anxiety, the parent’s anxiety usually increases when the child doesn’t acknowledge what the parent assumes. The anxious parent has to struggle with his or her own open ended and unsubstantiated assumptions. In an attempt to reduce their own anxiety level the anxious parent increases the frequency with which he or she questions the child about issues of sexual abuse.
I can’t tell you the number of times that I’ve seen an accusation arise when a parent, who is very anxious, questions the child about whether or not dad touched their vagina after each and every visit with dad. Some of them have gone so far as to actually physically exam the child after each and every visit. What kind of message does that send to the child? This is truly a bad situation. Research documents that over the course of their development - especially by the age of six children learn that repetition of the same parental question indicates that they have previously responded incorrectly. Otherwise, why would their parent continue asking the same question over and over. This was studied by Siegal, Waters and Dinwiddy in their important article Misleading Children: Causational Attributions for Inconsistency. Otherwise, why would their parents continue asking the same question over and over. In these circumstances children will attempt to answer adult questions even if the questions are bizarre.
Mr. Clancy’s right, in fact researchers Hughes and Grieve demonstrated that when asked non-sensical questions such as is milk bigger than water, most five and seven year olds replied yes or no. These children rarely replied I don’t know.
In abuse allegation circumstances, parents are seeking information. They seek the information by questioning their children repeatedly about sexual conduct. According to researchers of child language acquisition - the children assume that their parents are testing their knowledge. Consequently children will alter their answers looking for parental approval. This is particularly damaging because parental questions provoke vivid images in children’s minds. What did the pebble in your shoe feel like when you were walking or alternatively, what did it feel like when he touched you. Often the critical imagery is planted via suggestive questions and it can provide children with alternative responses they think their anxious parents are seeking. We must also be aware that research has demonstrated that children interviewed by parents have less accurate recall.
Ricci, Beal & Dekle reported on two experiments conducted with kindergarten children. They found that children interviewed by their parents had less accurate recall than those interviewed by an experimenter. They explained - and I’ll quote “the results of both experiments also indicate that many young children will respond to an interviewers query by changing their initial identifications”. The researchers concluded that young children interpret adult questions such as, are you sure or what about this one, as a cue that their first answer must have been incorrect and that they should produce a different response. This is critical when we think about how many times kids are interviewed in these anxiety dominant situations.
Parents influence on children’s memory and recall should not be underestimated. One of our friends, Debra Poole, teamed up with David Lindsey and tested parental influence in a unique way. In their research - children between the ages of three and eight participated in a session that involved four science demonstrations conducted by Mr. Science. Immediately after the demonstration children were interviewed non-suggestively about what they had seen. The children responded with a great deal of accurate information and minimal inaccurate information. Three months later a storybook was mailed to the parents of these children. Each storybook was specially constructed and designed specifically for each child. The storybook described two science demonstrations the children had seen and two demonstrations they had not seen. The storybook also described an instance of non-experienced touching involving Mr. Science having put something yucky in the child’s mouth. After the Parents read the storybook three times to each child the children were interviewed again - in a non-suggestive manner and then in a leading manner. In response to the non-leading portion of this second interview - a hundred and fourteen children reported a total of fifty-eight events they never experienced - including seventeen reports of non-experienced touching. The older children reported as many non-experienced events as the younger children in this study. In response to the leading & suggestive portion of the interview - thirty-three or forty-two percent of the children in each group falsely reported that Mr. Science (1) put something yucky in their mouth, or (2) hurt their tummies.
I want to talk for a moment about maternal recall of the conversations they have with their children. When attempting to recall conversations with their children, mother’s reports may not be complete and the reports may omit important details. In a study by Maggie Bruck and her colleagues the experimenters demonstrated that mothers have difficulty recalling
(1) how they elicited information from their children,
(2) whether the children’s statements were spontaneous or prompted and
(3) whether specific utterances were spoken by themselves or their children. The research team reported and I’ll quote:
“... if probed about the contexts of certain utterances (for example, when a mother reports, ‘My child said that a man touched him’), our data indicate that the mother may not be able to accurately recall whether these were the child’s own words or if her statement is a reconstruction of a conversation in which the child provided one word answers to a series of direct and possibly leading questions from the mother.”
Sobering, especially for proponents of hearsay testimony. Remember that research has demonstrated that compared to an unfamiliar interviewer children demonstrate less accurate recall of an event when interviewed by one of their parents. Recall that Ricci and colleagues demonstrated that seventy-one percent of the parents in their research used at least one ineffective questioning technique, such as rapid fire questions, repetitive questions or pressing for a response. When parents and children agree there is endorsement of many more symptoms.
Frick and colleagues demonstrated that when parents and children agree many more symptoms like anxiety or depression or trauma are reported. The researchers studied consecutive referrals to a university based out patient clinic and concluded that the reports of mothers that their kids were anxious was directly related to the mothers own anxiety level. They also found that when kids agreed with their moms far more symptoms were endorsed by both.
Anxious parents, endorsement of symptoms, parents not accurately remembering what they say, incredible use of leading and probing questions by anxious parents, this is fertile territory for altered memory. Remember, the natural history of the allegation is of the utmost importance. What happens next in a natural history?
Kids are interviewed by others as well. In network formation we’re looking at the way that social surrounds impact on the kids. You see by the time a child is initially interviewed regarding allegations of sexual abuse she is frequently surrounded by a network of adults who already assume that the alleged abuse did occur. Grandma, grandpa, boyfriend, etc. When surrounded by a network of adults who believe that she’s been abused a child is under enormous pressure to conform for reports to what this trusted network of adults believes.
From an early age children perceive that their adult conversational partners are cooperative, truthful and not deceptive, so why not conform to what they already believe. Thus, the expectations of the adult network demand conformity in the child’s mind. What about peer influences?
As long ago as 1900 Benet reported that children alter their responses to conform to the influences of their peer group - even when the altered responses are mistaken. Researchers have determined that children’s recollections of a sniper attack on a school in February, 1984 were profoundly influenced by their peers. Interviewing children who were present and not present during the attack, Pynoos and Nader found that even these non-witnesses reported memories. These researchers reported – and I’ll quote ““One girl initially said that she was at the school gate nearest the sniper when the shootings began. In truth, she was not only out of the line of fire, she was half a block away. A boy who had been away on vacation said that he had been on his way to the school, had seen someone lying on the ground, had heard the shots, and then turned back. In actuality, a police barricade prevented anyone from approaching the block around the school.” The researchers concluded that wanting to define themselves as part of the in group that experienced this attack - these children subsequently revised their memories of what they had witnessed. Were they lying? No they had revised memories by the peer influences, by the network influences, maybe even by parental influences. We should not underestimate the effect of rumors and stereotypes.
Rumor formation and rumor transmission thrive in atmospheres of negative stereotypes. He’s an abuser, he hurt you, obviously negative stereotypes. Research tells us that stereotypes motivate people to leap to premature conclusions about other people that they don’t know well. The late Gordon Allport who for many years a distinguished member of the Harvard, faculty spoke of stereotypes as labels. At one point he explained labels act like shrieking sirens deafening us to all finer discriminations that we might otherwise perceive. In response to stereotypes the exchanges of anxious parents and concerned others frequently converge into stereotypes and shared theories. Research in social psychology teaches that people in these circumstances rapidly reach consensus via a process called sharpening and leveling. In their interactions they “sharpened” or emphasize impressions that are consistent with their pre-existing stereotypes. At the same time they “level” or de-emphasize any information which is not consistent with their pre-existing stereotypes. The effects of sharpening and leveling are very important in the network involvement and rumor transmission that surrounds the natural history of any allegation of sexual abuse and should never be underestimated. In response to the effects of sharpening and leveling - the developing agreements can convince children that they have discovered important facts and can convince the adults that they have discovered important facts, they say to themselves we agree therefore we must be right. In this way rumor formation and rumor transmission driven by the effects of stereotyping will often cause two or more people to verify for each other that some imaginary event actually transpired. Consequently, what originated as a worrisome possibility - sexual abuse - acquires the untoward status of fact.
The next critical event that transpires in the natural history of sexual abuse allegations is the interview process. In this context we’re discussing an interviewer other than a parent. Let’s talk about the stereotyping effects of interviews. For example in a study called the Incrimination of Dale. Researchers Lepore and Sesco demonstrated the negative effects of stereotyping with children. In their experiment, children between four and six years of age played with a man named Dale. Dale also asked the children to help him take off his sweater. Half the children were then interviewed in a neutral manner about their interactions with Dale. The remaining children encountered an interviewer who spoke in an incriminating way about Dale. The incriminating interviewer made statements such as: he wasn’t supposed to do or say that, that was bad, what else did he do that was bad and statements such as those. All the children were then asked a series of direct questions about what happened with Dale. The children in the incriminating condition, that’s the stereotyping condition remember, gave significantly more inaccurate responses than the children in the neutral condition. One-third of the children in the incriminating condition embellished their incorrect responses in an incriminating manner. For example, asked if Dale ever touched other kids at school the children reported (1) he touched Jason, Tony and Molly, (2) he touched them on their legs, (3) he kissed them on their lips, (4) he took their clothes off. One child even reported: “ yes my shoes, my socks, my pants, but not my shirt”. In this way Lepore and Sesco found that in comparison with children in a neutral condition children in the incriminating condition were more likely to make negative statements about Dale. (1) the guy came in and did some bad things, (2) these children also agreed that Dale intended to be bad, intended to fool around, to not do his job and to be mean.
Next I would like to talk about interviewer bias. Bruck and Ceci have proposed that and I’m quoting: “... interviewer bias is the central driving force in the creation of suggestive interviews.” Bruck and Ceci went on to explain that “Interviewer bias characterizes an interviewer who holds a priori beliefs about the occurrence of certain events and, as a result, molds the interview to elicit from the interviewee statements that are consistent with these prior beliefs.”
How many times have you seen in a CPS interview or in the police interview that the interviewers start the interview out believing that the allegation’s true. They don’t conduct an interview to determine the truth, they act as though they know the truth. Interviewers insist that they carefully avoid directing any statements or questions at children that are leading and suggestive. Research does not support these claims. In fact, research documents that during their interviews, interviewers typically question interviewees in a manner that biases the information that they obtain. The expectations of interviewers can also lead them to believe that evidence consistent with their initial impressions were exhibited during an interview when in fact they were not. It reminds me of an interviewer who had decided that a mother had sexually brushed her hair, against her young four year old during a monitored visit. When I saw that interpretation, it was interesting because I always thought that was rather nice when my wife would play with our children that way and brush them with her hair. It was simply a matter of biased interviewing. The research has also demonstrated that interviewers are less likely to recall evidence actually presented during an interview, which is not consistent with their original impressions. These judgmental errors are known as “confirmatory bias”. Next let’s talk about demonstrations of interviewer bias. One study in particular has demonstrated the frequency and extent of interviewer bias when interviewing young children. In this study Petit, Fagen and Howie - examined how an interviewer’s information about events would effect the style of questioning and the accuracy of the child’s report. Here’s how it works. The researchers had three to five year olds participate in a staged event. The children were questioned two weeks later. Three sets of interviewers were used. By the way the interviewers did not realize that they were the true subjects of the test. Some interviewers were given full & accurate knowledge of the event. Some were given inaccurate & misinformation and others were given no information about the event. Now going back to police interviews of children which kind of interviewer pre-information do they usually have? Usually , they are given an inaccurate account or an incomplete account. In the Petit, Fagen & Howie study, all interviewers were told to question each child until they found out what happened and they were warned to avoid the use of leading questions, they were flat out told avoid the use of leading questions. The researchers noted that the children were asked an average of fifty questions during the twenty to thirty minute interview. These short interviews put a great deal of pressure on interviewers and interviewees to provide information. Despite the warning to avoid leading questions, thirty percent of all questions were leading and half of them were misleading. Interviewers with inaccurate knowledge asked four to five times as many misleading questions as the other interviewers. Over all the children agreed with forty-one percent of the misleading questions. And children who were interviewed by misled investigators, gave the most inaccurate information. Interviewers with no knowledge should marked rise in their use of leading questions as additional children were interviewed. These interviewers extracted more inaccurate information from the children as their interviews continued (the later as opposed to the earlier interviews). The results of this experimental demonstration showed that interviewer knowledge influences their style of questioning and this influence effects the inaccuracy and accuracy of the children’s testimony.
Next I want to talk to you about the Chester study. This is a study that examines interviewers’ preconceived notions. In a set of experiments conducted by Clark-Stewart, Thompson and Lepore - five and six year old children viewed a staged event that could be considered either abusive or innocent, in other words it was ambiguous. The experimenter’s stooge, Chester, interacted with sets of children by either (1) cleaning some of the dolls in a play room, or (2) handling the dolls roughly in a mildly abusive manner.
The children were interviewed about this event several times on the same day by interviewers who were:
(1) Accusatory - suggesting that Chester had been playing with the toys rather than working;
(2) Exculpatory - suggesting that Chester had been working rather than playing, or
(3) Neutral - nonsuggestive.
When questioned by a neutral interviewer, or by an interviewer whose interpretations were consistent with what the child viewed, the children provided factually accurate reports. But, when the interviewers contradicted what the child had seen, the reports of those children promptly conformed to the beliefs and suggestions of the interviewer.
By the end of the first interview, 75% of the children responded in a manner consistent with the interviewer’s point of view. Ultimately, 90% of the children answered questions in a manner suggested by the interviewer. After some of the children in this study were told that Chester would lose his job if his boss found out he had played with the dolls. 69% of the children maintained “a secret” when interviewed by a neutral interviewer, but they eventually revealed the secret when asked suggestive questions.
Grice - the philosopher of language described children as cooperative conversationalists. Grice created a theory that he called the principle of cooperativity and we’ve talked a little bit about this before. At the same time researchers have found that children perceive adult conversation partners as truthful and cooperative and researchers have also discovered that children provide their adult conversation partners with the type of information that they think the adult wants. You can see in this slide that we’re giving you a number of scientific citations to help you find some of this research like: Ervin Trips research on wait for me my roller skate and on the acquisition of language. Also citations to the very important linguistic journal Discourse Processes.
Let’s talk for a minute about repeated questions. We know that over the course of their development children learn that the adult questions asked repeatedly - often cause children to believe that they haven’t responded correctly. In other words, prior learning experiences motivate children to change what they say in response to questions repeatedly asked by adult authority figures. In these interactions children test out various possibilities attempting to identify the reply which brings adult approval. Now in a validator interview - we’ve all seen this on tape - when the child makes incriminating statements the validator wants to hear more about that, but when the child makes impossible outrageous statements the validator doesn’t want to hear anything about that at all. When we watch the video tapes of these interviews, hopefully we video tape, we can tell the difference between an evaluator, they want to know what’s happened and they want to know about the fantastic stories, and the validator. I had a case of multiple life counts in the State of Hawaii where the validator was sitting there with the child and the child repeatedly wanted to talk about her sister. The child was three years old and she wanted to talk about how her sister died and so on and so forth. The child never had a sister and every time the child came back to the sister - the validator shut her down and manipulated the child back to incriminating stories about how her daddy had touched her. Maybe this is why – as I was told – the prosecution had never lost a case! We won the case, all three counts.
You see in the repeated question context, children are testing out various hypotheses by picking up the adult cues. These interactions create vivid mental images for the kids. Consequently kids may initially deny that an experience of sexual abuse happened at one point in time but acknowledged themselves as victims later because of repeated questions. Obviously in response to leading and suggestive question directed to them by a trusted adult, children contaminate their memories with imagination. Soon children who have been through this process can no longer differentiate the source of the memory, did it actually happen, from their mental image of it from the repeated questioning. This is what’s called source monitoring. In fact Ceci and Bruck teach that to the degree that children are subjected to repeated questioning that arouses their imagination they are very likely to confuse actual events and imaginary events. Professor Elizabeth Loftus teaches that confusion between actual events and imaginary events transpires because of what is known as the post-event information effect. You see after witnessing an important event people are sometimes exposed to new information that can actually change their memory even causing non-existing details to become incorporated into the previously acquired memory. To repeat: children change their stories when repeatedly questioned.
Siegal and colleagues describe four experiments with four to six year old children where the kids viewed or did innocuous tasks. Later the children were questioned about the things they did. Across all four experiments they found that children were highly influenced by the social requirements of their experiments. The researchers reported that repeated questioning conveys ambiguity and misleads children to be inconsistent. Garvin and colleagues demonstrated that when children were subtly pressured to express unfounded allegations they complied fifty-eight percent of the time. After exposure to improper interviewing techniques for only 4.5 minutes the children in Garvin’s study had error rates closer to sixty percent. When exposed to improper interviewing techniques the children became more compliant as the interview proceeded. These researchers found that children responded more compliantly in the second half of a suggestive interview compared to the first half. In this way we can see that suggestive interviewing techniques have a cumulative effect. These techniques make children more compliant to suggestion as the interview proceeds.
Validators counter that one can’t make children say that they were touched, but Ceci and Bruck have demonstrated that skewed interviews can indeed cause children to say that they were touched in ways that they were not. In the pediatrician study children five years old visited their pediatrician. During the visit a male pediatrician gave each child a physical examination, an oral polio vaccine and an inoculation. During the same visit a female research assistant talked to the child about a poster on the wall, read the child a story and gave the child some treats. One year later the children were interviewed four times over a period of one month. During the first three interviews some of the children were falsely reminded that
(1) the male pediatrician showed them the poster,
(2) the male pediatrician gave them the treats,
(3) and the female research assistant gave them the oral vaccine and the inoculation. During the fourth and final interview the children were asked to recall what happened during their medical visit one year previously. The children who had been misled responded in a very inaccurate manner. More than half of them endorsed one or more misleading suggestions, thirty-eight percent of these children also included non-suggested but inaccurate events in their reports. For example, they reported that the female research assistant checked their ears and nose.
I’d like to talk a little bit more about memory for touching. Pedzek and Rowe demonstrated in another study - that four and ten year old children can be convinced that they were touched on the shoulder when they were actually touched on the arm and vice versa. In another study researchers investigated memories for performed actions compared to imagined actions. For example, did you really touch her nose or did you just imagine yourself touching her nose. Compared with adults - six year old children were far more likely to confuse memories of imagining doing and memories of actually doing. Now still another study illustrated that eight year old children had difficulty discriminating actions that they imagined another person doing from actions they saw another person doing. These were all source monitoring difficulties.
Let’s turn for a second to the very best suggestive media - anatomically detailed dolls. Anatomically detailed dolls are sold by different manufacturers and as a result - the various dolls are not always comparable to each other. Some of the dolls have oral, anal and vaginal openings, where others do not. Moreover, there is no generally recognized and accepted method for using anatomically detailed dolls when interviewing children. Some professionals video tape children’s interactions with anatomical dolls, but others do not. How children respond to dolls can be influenced by the particular doll used or how the child is interviewed as by whether or not the child has been abused. Different professionals can reach different conclusions relying on anatomical dolls when interviewing the same child. So there’s no inter-rater reliability, very important concept – with anatomically detailed dolls. A 1989 study by Glaser & Collins systematically reported how ninety-one non-abused children ages two to six responded to anatomical dolls. With little or no encouragement - seventy-four percent of these children spontaneously undressed the dolls. Trained observers concluded that sixty-four percent of the children exhibited various kinds of emotional reactions to the dolls when undressing them. Seventy-one percent of the children touched the anatomical dolls penises, thirteen percent touched the anus, four percent touched the vaginal opening. None of the children in the experiment had been sexually abused. Another study examined how thirty five children between the ages of two and six referred for evaluation of possible sexual abuse interacted with anatomical dolls. The responses of these children were compared with thirty-five children the same age who had not been sexually abused. Of the children referred for possible sexual abuse - thirty of them touched the anatomical dolls genitalia at least once during the interview. But twenty-five of the non-referred children also did the same. Nine of the referred children engaged in sexually explicit play with the dolls, however, five of the non-referred children also responded in this manner. This study found no evidence indicating that anatomical dolls can reliably differentiate between children referred for sexual abuse evaluations and children who have not been abused.
The frequency with which anatomical dolls can lead to these kinds of errors has resulted in one researcher instructing and I’ll quote – “ anatomically detailed dolls are not useful and should not be used for determining whether or not abuse has occurred”. Other reviewers have also deplored the use of anatomical dolls and I’ll quote from Woldner, Faust and Dawes – “We are left with the conclusion that there is simply no scientific evidence available that would justify clinical or forensic diagnosis of abuse on the basis of doll play.”
In a 2000 study by Bruck, Ceci and Francouer, the experimenters took advantage of seventy naturally occurring pediatric visits to study the effects of anatomically detailed dolls during a post event interview. The visits included an exam in which 35 - three-year-olds were given a genital exam, and 35 others were not. None of the non-genital exam group had their underclothing removed or had their genitalia or buttocks touched during their exam, unlike the former group. Later, the children were interviewed suggestively and were then asked to explain where the doctor touched them. Then, the children were given an anatomical doll and were asked with suggestive questioning to show where the doctor touched them. Before the doll was presented, only 45% of the children receiving genital exam correctly reported that they had been touched on the buttocks or genitals. In contrast, only 50% of the children receiving a non-genital exam said they had not been touched on the buttocks or genitals. When the dolls were presented, the children became even less accurate. Only 25% of the children given a genital exam correctly demonstrated on the doll where they had been touched. 55% of the children who received a non-genital exam incorrectly demonstrated genital insertion and other inappropriate sexual actions. This type of commission error was more prevalent among the girls in this group; 75% of the girls who did not receive a genital exam demonstrated that the pediatrician touched their buttocks or genitals.
If this is not bad enough - it gets even worse when we think about interviewer documentation.
One of the real problems with forensic interviewing is the myth that they are accurately documented. Research has demonstrated that experienced therapists do not accurately recall their own behavior during interviews. This comes out of a long line of research attempting to determine whether psychotherapy is of any value. The research also grows out of psychotherapist training programs where the students are video taped and then are asked later about what they said. The research has clearly demonstrated that therapists don’t accurately recall their own behavior during the interviews.
For example, - the accuracy of verbatim notes. In a 2000 study the accuracy of verbatim notes was investigated with trained experienced interviewers when they were recording verbatim notes of their interviews. Specifically, this study by Lamb and colleagues, compared the audio-taped recordings of 20 forensic interviews of alleged sexual abuse victims (5 male and 15 female 4- to 14-year-olds with the investigators’ verbatim accounts (notes) of the same interviews. 25% of the forensically important details provided by the children were not represented in the investigators’ notes. The investigators’ notes reflected a total of 806 substantive interviewer utterances, whereas the audio recordings of the same interviews included 1889 substantive utterances, leaving 1083 utterances (57.3%) unaccounted for by the interviewers’ supposed verbatim notes.
The interviewers’ notes misrepresented the utterances used to elicit information from the children. Only 44% of the interviewer utterances were accurately identified in the notes. In particular, there was a systematic tendency to mistakenly characterize interviewer questions as open-ended when, in fact, the questions were close-ended. And, these interviewers specifically failed to record 53% of their suggestive statements, Researcher Michael Lamb and colleagues noted: “Even when they made contemporaneous verbatim notes, these investigators tended to understate their role in eliciting information and to ignore many of the details, including central details, reported.” The researchers reported that their study raises “... serious questions about the ability of interviewers to recall the content and structure of their interviews with the degree of precision needed for forensic purposes.”
It’s very interesting how this research came about. These interviewers were very well trained interviewers in Israel and they were mandated and taught how to take very good verbatim notes of their interviews. Then the Israeli legislature passed new laws that required every single interview to be audio taped and there was a time period when they weren’t sure should they do verbatim or should they do audio tapes. So they did both and this gave Lamb, Orbach, Sturnberg, Herskowiz and Horowitz plenty of data to compare verbatim notes to actual tape recordings and again their conclusion was that their study raises quote, serious questions about the ability of interviewers to recall the content and structure of their interviews with the degree of precision needed for forensic purposes.
Interviewers and therapists often overestimate the clarity with which they are interacting with the people they see. A 1999 study by Warren and Woodall examined how accurately twenty-seven experienced interviewers could recall details of their interviews with children between the ages of three and five, those are the ages that we typically seen in these cases. The ages of these interviewers ranged from 28 to 53, average age of 40.59. Their experience in forensic/child protective work ranged from 4 to 21 years, averaging approximately 10.9 years. More than half of these interviewers (57%) had earned masters degrees, 30% held bachelor’s degrees, and one had a doctoral degree.
These interviewers reported a range of 3-400 training hours, or a range of 4-6 training days. These interviewers conducted videotaped interviews of children who one month earlier had witnessed two events:
(1) a magic show and
(2) a silly doctor visit.
The interviewers were given one of two cue questions for beginning their interviews:
(1) “I understand that a magician came to visit your school. Tell me what the magician did?” or
(2) “Tell me about the time you went with Tracy to play silly doctor.”
Except for these cue questions, the interviewers knew nothing else about these two events. After their videotaped interviews with the children ended, the researchers audio-taped their interviews with the interviewers. In comparison to the amount of information children related during their videotaped interviews, the interviewers’ hearsay accounts involved significant information loss. Warren & Woodall explained: quote “We asked our interviewers during the audio-taped session what kinds of questions they had asked to elicit information from the children. Most answered that they had asked primarily open-ended questions.” Unquote But the researchers reported that: quote “We found that most (over 80%) of the questions were specific or close-ended (and 16% were leading). Thus, it is clear that interviewers are incorrectly remembering their actual questioning styles.” unquote
Warren and Woodall concluded: quote “In summary, our results suggest that the hearsay testimony of children’s interviewers is degraded. Even immediately after an interview, important content was omitted by hearsay accounts, and the majority of the verbatim (specific wording and content of questions and answers) was lost. Our results also suggest that interviewers are unlikely to be able to accurately reconstruct verbatim information later.” unquote
Let’s talk for a moment about interviewer modifications. What happens when interviewers mishear what kids say. Walker and Hunt analyzed the types of questions used by protective services workers personnel when interviewing children in cases of alleged sexual abuse. Walker and Hunt found that modifications occurred in approximately three quarters of the interviews they reviewed. With each interviewer making approximately 2.5 modifications per interview. These are modifications found the interviewers re-saying to the child what they thought the child said but were wrong. The children then conformed their statements to the modification.
Following up on the research of Walker and Hunt, Hunt and Borgida used experimental interviews to ascertain how young children ages three to five respond to interviewer modifications. In their study about twenty-three percent of the children incorporated the interviewer modifications into their subsequent responses. Hunt and Borgida explained and I’ll quote, “... in the present study, each piece of modified information was presented only once, in the context of a single interview question. Given this subtle manipulation, the fact that even a small percentage of the modifications were incorporated into subsequent answers should be seen as consequential.” They went on to conclude: quote “This study is consistent with a new trend in research on the testimony of child witnesses, using controlled experiments to investigate specific interviewing techniques found in analyses of actual forensic interviews of children. Such research has demonstrated that commonly used interviewing techniques can have serious, deleterious effects on children’s testimony. Likewise, this study suggests that, despite the possibility that many modifications may reflect accidental mistakes made by interviewers, they can have important effects on investigatory interviews.”
At the end of the whole suggestibility process is therapy. Unfortunately the commonly used play therapy - can distort and confuse the recall of children by creating source monitoring problems associated with memory. In cases of distorted memory the therapist becomes a source of what the child remembers rather than the event in question. Foley and Johnson investigated memories for performed actions compared to imagined actions. As I explained earlier, they asked questions like - did you really touch your nose or did you just imagine yourself touching your nose and as I said before compared with adults six year old children were far more likely to confuse memories of imagining doing something than memories of actually doing.
Lindsey and colleagues found that eight year old children had difficulty discriminating imagine events from real events and in addition to that pretending is seen as an activity in play therapy that has a significant impact on contaminating children’s memories. These are the result of source monitoring problems. Campbell has explained that a play therapist can profoundly distort the memory of a child by suggesting interpretations of what the child supposed encountered or experienced. In response to the therapist influence accept these interpretations as legitimate. They then resort to their imaginations though convinced they are searching for their memories and they invent anecdote about past events which appear to validate the therapist interpretations.
Dr. Lorandos have given you a good overview of the field of suggestibility and the scientific articles that are of real importance. The question however is how can you use these materials.
The first thing you have to do is map out the natural history of the allegation. Your expert doesn’t do this for you, you must do it. It starts with discovery - getting all tapes the audio tapes, video tapes, notes, anything that you can from the prosecution. Next you may have to fill in some gaps through investigators going out to gather more information. You may be able to gather more information at a preliminary hearing by questioning the individuals. And lastly you need to prepare transcripts of all of the tapes and video tapes that you have for your experts. When you have all this material together and put in order - this is what you present to your expert.
The next thing is you have to be able to get it into evidence. Not every judge is immediately going to say that you can introduce this testimony. So we have created two motions to assist you. One is a motion to conduct a taint hearing. A taint hearing is a hearing that is held before the trial out of the presence of the jury for the judge to determine whether or not the child should be allowed to testify or whether or not the taint is too great. It also serves the secondary purpose of allowing you to gather more information that can be used at the trial. Both on the issue of suggestibility and on the issue of the case in chief. We have a motion for that as well. We also have a motion having to do with the introduction of suggestibility expert evidence. All of these can be found on our website and they are updated periodically. Let me show you a short film on how to get onto our website to get these motions.
Okay you’ve got your motions, you have your natural history, you’ve got your expert, let me ask you what do you think this is going to look like at trial. To be honest, when you talk about multiple researchers and hundreds of statistics and multiple studies - it becomes boring to a jury. Nevertheless, it all needs to be introduced. So how do you make your presentation powerful, it’s very simple. What you have to do - is have at least one video demonstration of what you’re talking about to show the jury. It is even more powerful if you can integrate the video of actual experiments being conducted - with your expert’s testimony. He talks about something and then shows a clip from the video, showing it actually happening. When they see a child changing their story under a certain type of leading questioning it is powerful. But as attorneys you have a problem, where do you get the video. The actual studies are nearly impossible to get. Why? Because most of the studies have been done at universities and the subjects identities and the tapes are protected, privileged material, confidential material of the universities and they don’t just give it out to anybody. If you’re lucky enough to obtain some of this information which we have then you’re sworn to not give it out to other attorneys or other individuals. There’s a secondary source where you can get a video. Television documentaries have aired on a number of the Researchers who have worked in this field. Perhaps you can take clips from those documentaries – and by careful editing, getting rid of the speakers from the television program - just show those portions that have to do with the actual experiment. In this way, you can create a very powerful presentation.
A short time ago Dr. Lorandos was my expert witness in a trial. We had planned on using cutouts from a news program featuring Dr. Stephen Ceci, one of the leading researchers in this area. When we got to court unbeknownst to us there was NBC. They were filming the entire three week trial and then reducing it to a one hour television show called Crime and Punishment. We have taken some clips from the show Crime and Punishment to show you from a real case - how you can integrate the testimony having to do with the research along with the video. Take a look at this, Crime and Punishment from NBC and Dr. Lorandos is the expert witness.
Dr Lorandos, I want to focus you on whether you studied suggestibility.
We had to. When I say we, I mean organized psychology. We were shocked at what occurred at some of the famous cases that we’ve all seen on television.
Are you referring to McMartin?
Well, I wasn’t going to name names………
I asked you to get some footage from the original experimenters.
Yes; this is a study called “The Mousetrap Study” and in this experiment they demonstrated that they could create the memory of events that never happened. What the examiners did was they went to preschools and they’d play a little question game with them and the questions would change from week to week. But, there’s one question that is the same every week to week; for ten weeks. And so, this first little piece illustrates the little trap being asked if you ever got your finger caught in a mousetrap.
Have you ever seen a baby alligator eating apples on an airplane?
Have you ever had your finger caught in a mousetrap and had to go to the hospital?
Okay, stop. We noticed if you just ask them, they’ll tell you the truth. You don’t have to pound away and say “Tell me more, tell me more, tell me more.” Just ask them. But, what happens when they’re asked again and again.
You went to the hospital because your finger got caught in a mousetrap.
And it, and it.
Did that happen?
Did it hurt?
So where in your house is the mousetrap?
It’s up at our … down in the basement.
Down in the basement.
It’s next to the firewood.
Stop. The experiment is reported. When they did this, they were shocked at the level of detail that the kids would spontaneously create. And they said, “Whoop; time out, we’ve got to debrief these kids. We’ve got to tell them that it’s just a game; it was just pretend”.
In your opinion, does that put to rest whether or not it’s possible to implant a belief that you’ve been sexually molested as a suggestion?
All of these experiments demonstrate quite clearly that we can implant ideas of sexual abuse created as false memories.
I have no further questions at this time.
Good afternoon Doctor. How are you doing today?
Fine, thank you.
You talked a lot about false accusations. What about the concept of “false denial”? You would agree with me Doctor that in the area of child sexual abuse, that’s a pretty common thing; that kids deny abuse when it actually happens.
No, I would not agree. I think that to say that denigrates children that have been sexually abused. Children that have been sexually abused can tell us if they’ve been abused. To suggest that they’re denying it unless we harangue them and uncover it, harms them and harms us. I wouldn’t say that.
Aren’t there other reasons though, Doctor that… suggest that the child might not want to tell about sexual abuse – like being ashamed?
Certainly, and no amount of suggestive leading, haranguing question is going to get an accurate story out of them.
Well, what happens then when a kid then turns with a blank stare to you and says, “I don’t know what you’re talking about.”
You mean to the question “What do you mean?”
When a child has already said, “He touched me in my privates.”
Okay, and then you say, “What do you mean?”
And what if they don’t tell you anything”?
Then they don’t tell you anything. You want to stick a suggestible artifact in front of their face and try to manipulate them into testifying about what it is? Like a picture of a naked little girl – How often do they see naked little girls? They don’t.
Doctor, if I understand this correctly, you did not review any of the three video tapes in this case at all. Correct? The two with Adrian or the one with David.
That would have adulterated the purpose for me being here.
And you did not review any of the transcripts that discussed what was on these video tapes, correct?
I specifically asked to be kept out of all that and to only talk about the science.
But you can’t apply it all to the facts of this case.
That’s their job, not mine.
Why didn’t you watch the videos?
Because my job is to be as neutral as possible – to help you, to help him, to help this jury understand what the science is. I’ll answer any questions that you have about the science to try to help… but to advocate for one side or the other? I’m not here to do that.
Doctor, wouldn’t it be an understandable thing if there were problems in these videos, you could point them out to this jury, couldn’t you?
I could do that. I’ve done that in other circumstances.
And you didn’t look at the videos in this case, correct?
I believe that was my answer.
Thank you. Nothing further at this time.
If you were to evaluate a tape, and it was the sixth time the child was interviewed, would you want to have the first five interviews also taped, so that you could see them?
I’ve no further questions at this time.
We’ll take our break at this time, ladies and gentlemen.
I don’t know if any of this is making sense. Am I making any (unintelligible).
I think so. He’s starting to get really defensive.
I know, but am I coming off bitchy?
No; that’s him. I’d say (unintelligible)
Well was that our 15 minutes of fame, we hope you enjoyed it and we hope that this presentation encourages you to use this research to demonstrate suggestibility in every circumstances in which you encounter it. Thanks very much.
Seminar 3 90 Years of Research on Suggestibility :Seminar 3 video Seminar 3 90 Years of Research on Child Suggestibility In this seminar we are going to talk about suggestibility. What is suggestibility? Years ago Gudjonsson wrote that “Suggestibility” is the extent to which individuals come to accept and subsequently incorporate post-event information into their memory recollections. More recently than that Ceci and Bruck in their important textbook Jeopardy in the Cou
Syndrome Evidence and Junk Science Attacking Child Sexual Abuse Accommodation Syndrome Evidence
In this seminar we are going to talk about Junk Science.
What is junk science? Well everybody has a different idea, but the hallmarks of junk science are two things, causism and hyper-claiming. What is causism, c-a-u-s-i-sm, causism is inferring a cause when no causal relationship actually exists. For example, it was one time believed that because the child had erythema of the vestibule, sex abuse has happened here. That's implying a cause, sex abuse, for the symptom, erythema of the vestibule. Scientific research has now show that a majority of non abused female children have erythemia.
Let's give a simpler example. Person #1 is pregnant. An examination reveals Person #1 is a woman. Person #2 is a woman, therefore she must be pregnant. Pretty silly isn't it. That is junk science.
Causism implies a cause, when no causal relationship necessarily exists. In our medical example, we now see in the newer research that claims such as these have been thoroughly researched and the causistic or the junk science underpinnings of some of those claims have come to light.
What is hyper-claiming? Hyper-claiming is going too far with data. For example, probably one of the best examples of hyper-claiming is the child sexual abuse accommodation syndrome. Roland Summit saw a number of children about whom allegations of sexual abuse have been made and he noticed similarities. He noticed that the children often seemed helpless, he noticed that the children often seemed to retract statements of allegations that they have made, he noticed a variety of symptoms that you would expect in children who were quite anxious.
Dr. Summitt said that his experience caused him to believe that if children exhibited these symptoms, it showed that sexual abuse had happened. He later denied that this was his intention. Because of this population he believed you can generalize that these symptoms indicates sexual abuse has happened. This is hyper-claiming. This is generalizing from two small a sample.
Junk Scientists do not know the importance of numbers, namely lots and lots of people in a sample from which we can generalize. Junk Scientists don't understand the issue of base rates. They fail to learn that all of these kinds of symptoms or signs actually occur in the general population. They don't know the difference between incidents and prevalence. This lack of knowledge of scientific standards is hallmarks of the junk scientist. They are there to make a claim.
The junk scientists gets an idea about what's happened and then works very hard to get data to support that idea. That's called pursuing a single hypothesis. They ignore all data to the contrary. They are driving down one road.
The child sexual abuse accommodation syndrome is a classic example of junk science. All roads lead to the conclusion that the allegations are true. These are the hallmarks of junk science.
There is more information about junk science in a book that my co-author Dr. Campbell and I wrote for judges, it's called the Benchbook in Behavioral Science. We spent a great deal of time trying to educate judges as to how to determine what is good science and what is bad science. Causism, hyper-claiming and then if you want to get a little bit more in to detail, validity and reliability.
There are many examples of Junk Science being used by the child advocacy movement. We are going to use Child Sexual Abuse Accommodation Syndrome to demonstrate to you how to approach this type of evidence.
Over the last two decades we have read transcripts of trials and watched how different lawyers have unsuccessfully struggled to handle Child Sexual Abuse Accommodation Syndrome. Let me tell you of my own experience.
About 15 years ago I hired one of the most qualified expert witnesses in the country. He had been the chair of the ethics committee of the American Psychological Association. The ethics committee defines the standard of care for Psychologist. His committee addressed the issues of junk science in the mental health field.
The prosecution called an MFCC. When the witness stated that she was going to tell the jury about the Child Sexual Abuse Accommodation Syndrome, all of the juror's grabbed for their notepads and pencils. It was obvious they believed that they were going to finally get the key to deciding the case. The prosecution witness even cried during her testimony. I looked over and saw two jurors with tears in their eyes.
Next, my top gun expert testified. He testified about causism, hyper-claiming, validity and reliability, The hallmarks of good science. He testified about the lack of scientific research supporting Dr. Summitt's Child Sexual Abuse Accommodation Syndrome. As a prior Chemical Engineer I completely understood his testimony and its significance. The problem was the jury was not made up of 12 scientists. The jurors all appeared that they were going to sleep.
The DA's approach on cross examination was simple:
Question: Do children that have been molested, sometimes retract?
Question: Do children that have been molested, sometimes delay reporting?
Question: Do children that have been molested, sometimes accommodate the adult's that molested them?
And on and on through each element of Child Sexual Abuse Accommodation Syndrome.
I debriefed the jury following the verdict. The juror's impression was that my expert was very smart and very scientific but he had admitted to everything that Roland Summit had said. If it is true, why are you calling it "junk". Why are you making such a big deal about it. What difference does that make. The defense had won the "junk science" battle but the DA won the war for the hearts and minds of the jury.
After more than a decade of getting beat up by Child Sexual Abuse Accommodation Syndrome, I had a 15 second epiphany. I was working with an expert witness on attacking a police interview of a child witness. The officer was asking only questions that would prove that molestation had occurred. The officer failed to ask any question on the issue that the allegations might be false. Further, the officer ignored all statement by the minor that indicated that nothing had occurred. We were trying to figure out how to explain to a jury it was not just leading questions that were suggestive. The entire interview was highly suggestive because it was a "Confirmatory Bias Interview". A confirmatory bias interview is dangerous because it is not an investigation for the truth. It begins with the belief that the truth is already known and only looks for data supporting that view.
Child Sexual Abuse Accommodation Syndrome is a" confirmatory bias model". The question was could we show that in a visual presentation without relying on technical scientific jargon. Could we show with a visual presentation that a "confirmatory bias model" or "advocacy model" was highly dangerous. We wanted it as understandable for the juror with a six grade education, as the juror with a PhD. The solution came fast once we defined the problem as a "confirmatory bias model".
We are going to demonstrate to you how this can be done. We are going to use testimony from a trial where the expert witness was Dr. Urquaza. We have been up against Dr. Urquaza many times inNorthern California. He was later the expert witness for the prosecution in the Michael Jackson case. We have paraphrased some of the answers and deleted some of the issues that are not needed for this demonstration. The transcript of Dr. Urquaza can be found on our web site that we will talk about later.
The first step in attacking the junk science known as Child Sexual Abuse Accommodation Syndrome is to anticipate how the prosecution expert will counter attack. The counter attack is always the same. They rely upon another area of junk science. The bogus claims that only a 2-6 percent of the allegations of child sexual molestation are false. There are two methods to counter the junk science of the percentage of false allegations. First, we have developed a system for disproving that false assertion and to expose the junk science on which it is based. However, do to the length of this seminar; we will save that method of another seminar. The second method is simple. We have developed a motion in limine to exclude opinion testimony on what percentage of allegations of sexual molestation are false. This motion in limine is based on the fact that the opinion is improper and irrelevant opinion testimony. We have won this motion every time we have filed it up to this date. At the close of this presentation we will show you where you can get our most up to date motion to exclude this evidence.
OK. We are ready to start. Let's start the demonstration by looking at the prosecution's direct testimony from a Child Sexual Abuse Accommodation Syndrome expert witness.
Dr. Randy Rand will play the role of Dr. Urquaza.
Scene 2 – Prosecutions Direct Testimony –
DR RANDY RAND WILL PLAY THE ROLE OF DR URQUIZA
CARIN JOHNSO WILL PLAY THE ROLE OF THE PROSECUTOR
PROSECUTOR: People call Dr. Anthony Urquiza.
Clerk: Do you swear to tell the truth the whole truth and nothing but the truth so help you God.
URGUIZA: I do.
THE CLERK: Thank you. Please be seated. State your name and spell, your last name for the record.
URGUIZA: Anthony Joseph Urquiza, U-r-q-u-i-z-a.
PROSECUTOR: Good morning, Dr. Urquiza.
URQUIZA: Good morning.
PROSECUTOR: Can you tell the jury what you do for a living?
URQUIZA: Sure. Actually I have a couple of titles. I'm a psychologist licensed in the state ofCalifornia. I am a member of the socio-clinical faculty in the department of pediatrics at UC Davis Medical Center inSacramento,California. And last title, I'm director of mental health services for a program called theCAARECenterwhich is a medical and mental health service program, specifically for children who are sexually abused, physically abused, and neglected in their families.
PROSECUTOR: Is thatCAARECenterpart of UC Davis?
URQUIZA: It is a part of the department of pediatrics.
PROSECUTOR: Would you describe what you do in your present occupation? What kind of things you do?
URQUIZA: A few things. I, as a psychologist -- I have historically conducted therapy, done therapy. Again, my area of expertise is child abuse, so I've done therapy with children who have been abused. I stopped doing that probably about three years ago. Prior to that time, I had seen several thousand children in therapy. I continue to do psychological evaluations of families and children. I conduct research as I'm faculty. That's part of the mission of the university is to do research in some area, my area being child abuse is the area I do research and have been doing research on child abuse for the past twenty years. And last thing I do -- almost the last thing I do is teaching. I teach in conferences. I don't teach a classroom setting. I teach -- we have an internship program where we teach people to be social workers and psychologists. I teach at seminars, workshops, training that we do. And then the very last one is some administration where, as director, I have responsibility to manage some budgets, personnel, those types of things.
PROSECUTOR: Okay. Would you describe your educational background including any internships you've done?
URQUIZA: Sure. I have three degrees, all from theUniversityofWashingtoninSeattle. I have undergraduate degree in child development. I have a master's degree in clinical psychology. And doctorate degree in psychology, or Ph.D. in psychology.
PROSECUTOR: And would you tell the jury what internships you've been a part of or you've completed?
URQUIZA: As a part of the education in theUnited Statesto be a psychologist and to be licensed, you have to have an internship. I had an internship that was approved by the American Psychological Association at primary children's medical center which is inSalt Lake City,Utah, probably 1987, 1988, about that time.
PROSECUTOR: Okay. Can you describe for the jury specifically what teaching experience you've held?
URQUIZA: Sure. Well, the beginning teaching experience I had was as a preschool teacher back in the seventies. I was a preschool teacher for a couple of years. As a graduate student at theUniversityofWashington, I taught several classes related to child development and child abuse and problems -- emotional and psychological problems that children and families have. I held for about a year and a half, teaching position or faculty position atSan DiegoStateUniversityin the department of family studies. And then I assumed my current position as faculty in pediatrics in January of 1990. So about thirteen, fourteen years ago.
PROSECUTOR: Okay. Would you describe your training and experience as it relates to any expertise in the field of child sexual abuse and/or child sexual assault accommodation syndrome?
URQUIZA: I entered graduate school with the expectation that my career decision was going to be as faculty, someone who taught, did research, and had a clinical expertise in child abuse. So I started graduate school in 1983, and so all of my training, really, has been specifically geared to that so through graduate school, I was very focused on seeing clients who had a history of abuse and research and teaching. Since graduate school, since I received my degree, I regularly participate in conferences and trainings, and at my level now I often give trainings at conferences, so I often present at workshops and conferences nationally, and I'm usually in a position to teach courses, I do that on a regular basis. The typical pattern is for me to attend a conference, usually it's one I'm presenting at, and while I'm there I go to workshops and training for my own continuing education.
PROSECUTOR: Can you describe any clinical or research experience that you have?
URQUIZA: Clinical experience is I started seeing clients in 1983 when, in undergraduate school, at that time under somebody else's supervision. Now, as a licensed psychologist, I don't need that supervision. And so from about 1988, while I received my license in 1990. So 1990 until currently, I have been seeing children in either therapy or evaluations on a regular basis. I now supervise both faculty -- sorry --psychologists and social workers. I supervise intern --psychology interns, and also supervise six supervisors. We have a staff of about fifty people, and I have six clinical supervisors. So I'm their direct supervisor. So a lot of my clinical responsibilities currently are involving supervision rather than providing direct services. With regard to research experience, again, that started in 1983. My areas of research have been primarily related to what are the effects of child abuse, either sexual abuse or physical abuse, on a child. And secondarily, what are the strategies that we can adopt to ameliorate or alleviate a lot of the problems kids have. What happens with the kids psychologically or who's been abused and probably over the last eight years, what can we do to return them to as best mental health state as we can. So to alleviate mental health states they have incurred as a result of their abuses.
PROSECUTOR: Can you tell the jury if you've authored papers related to the subject matter or closely related?
URQUIZA: I have.
PROSECUTOR: Can you give us a ballpark, how many or what topics, you've covered?
URQUIZA: Articles that have been published, I don't really keep track. I'd estimate maybe thirty-five or so; of presentations, probably a few hundred presentations at
conferences or workshops over the last twenty years.
PROSECUTOR: Can you give me a little insight into what kind of groups you've presented to over the years?
URQUIZA: Sure. American Psychological Association; American Society on the Abuse of Children; the California Department of Education; numerous community child abuse prevention organizations or national child abuse prevention organizations. There's an international society on the abuse of children. I've presented f o r them in several countries. The National Institute of Mental Health, the Center for Disease Control, the National Science Foundation. There's a few others but those are some of the primary organizations that I've presented to.
PROSECUTOR: Okay. Have you had occasion to produce any types of professional videos?
URQUIZA: I have.
PROSECUTOR: And can you tell me a little bit about that?
URQUIZA: Again, I think I said earlier that probably around eight years ago, I started shifting from what are the effects of abuse to how can we treat children who have been abused? And there's a part of that developed and adapted a child treatment program and currently involved in disseminating -- training other organizations how to use that program. And concurrent with that has been the development of about five training videos. I say "about" because we're still working on one. Currently, I think there are three that are English, two in Spanish, and we're just finishing up the third one in Spanish.
PROSECUTOR: And can you describe for the jury any honors you've received?
URQUIZA: I've received honors for work that I've done related to child abuse, from the American Professional Society on the Abuse of Children. I used to be one of the Board of Directors and now advisory board from the Department of Education for the Danforth Compton Fellowship. It's a national program related to ethnic minorities who achieve academic excellence and a few others.
PROSECUTOR: And have you had occasion to receive various grants?
URQUIZA: Grants? I have.
PROSECUTOR: Can you give me an estimate of the total dollar amount of grants that you obtained?
URQUIZA: I don't think I can do that other than it's a few million dollars, but I couldn't tell you how many, exactly how much.
PROSECUTOR: Okay. Do you serve on any advisory boards?
URQUIZA: I do.
PROSECUTOR: Can you just name a few?
URQUIZA: APSAC American Professional Society on the abuse of Children; California Department of Social Services --CaliforniaDepartment of Social Services related specifically to adoptions. I'm currently, inSacramentoCounty, on the advisory board for the Department of Mental Health Sacramento County Department of Mental health, and also the Victims Compensation Program, which, essentially, oversees a large amount of mental health services throughout the state ofCalifornia, providing funds for children who have a history of being abused and neglected.
PROSECUTOR: Can you describe any affiliations that you hold, professional affiliations?
URQUIZA: APSAC. There are a few others, the international version of --not APSAC but there's a CAPSAC, which is the state version of APSAC. There's the international child abuse organization and, again, a couple of others. But I don't have a copy of my C.V. in front of me. So my memory might not be complete.
PROSECUTOR: Okay. Are you familiar with a theory called Child Sexual Abuse Accommodation Syndrome?
URQUIZA: I am.
PROSECUTOR: Can you describe how it's you're familiar with that concept?
URQUIZA: My recollection is that I read that article when it was first published in 1983. The purpose of that article is to provide a description of what commonly occurs with a child who has been sexually abused. So since that time, I have been involved in training, related to teaching people about what happens with kids who have been sexually abused and a lot of the foundational research that has gone into to support the Child Abuse Accommodation Syndrome. I currently teach psychology interns and social work interns about sexual abuse by explaining Child Abuse Accommodation Syndrome.
PROSECUTOR: And in the thousand or so kids that you have personally treated have you had occasion to utilize the theories of Child Sexual Abuse Accommodation Syndrome?
URQUIZA: Yes, I have. The Child Sexual Abuse Accommodation Syndrome is really developed to educate people, to inform them about what happens, and so I think that information that is contained within the accommodation syndrome has been very helpful to me and something, certainly, I have seen repeatedly in children I've evaluated or treated. It is foundational to my understanding about what happens to kids who have been sexually abused.
PROSECUTOR: Have you ever qualified in court in the state ofCaliforniaas an expert in Child Sexual Abuse Accommodation Syndrome?
URQUIZA: I have.
PROSECUTOR: How many times have you so qualified?
URQUIZA: Maybe eighty, eighty-five times would be an estimate. Including in the Michael Jackson case.
PROSECUTOR: And have you ever qualified as an expert in child sexual abuse?
URQUIZA: Yes. I have testified a few hundred times in juvenile court where I have been asked by the judge to address a specific issue, often to evaluate either a child or an adult, and then to report back to the Court.
PROSECUTOR: Your Honor, I'd offer Dr. Urquiza as an expert in Child Abuse Accommodation Syndrome and child sexual abuse.
JUDGE: He is accepted as an expert.
PROSECUTOR: Dr. Urquiza, What is C.S.A A.S.?
URQUIZA: That phrase comes from the title in an article by Dr. Summit. The purpose of that article, was specifically for people who would be doing therapy with children who had been sexually abused. And the purpose was to educate them, to dispel any misunderstandings or distortions or misperceptions that they had about what commonly occurred with a child who had been sexually abused, and to provide them with a framework to understand what, the research said about what happened with sexual abuse. It's still being used for that same purpose.
PROSECUTOR: Can you talk about some of the myths or misunderstandings that it's directed towards dispelling?
URQUIZA: Yes. One of the myths was we know that very few children are sexually abused by a stranger. Sometimes it happens, but most children are sexually abused by someone with whom they have an ongoing relationship. One of the misperceptions, if a child is sexually abused, she'll run and tell mommy, daddy, teacher. Again, we know from research sometimes it happens, but it is much more typical for there to be some strategy placed upon the child to be quiet, sometimes throughout their whole childhood. Sometimes kids sexually abused don't disclose until adulthood.
PROSECUTOR: Are there any myths associated with how a child presents, in effect, when they disclose sexual abuse?
URQUIZA: The common expectation is that if you're going to talk or disclose being sexually abused, you will be crying, distraught. In fact there appears to be a lot of
evidence to support the fact that kids, accommodate, or get used to the experience of being sexually abused. I don't want to say they become normalized -- but they're not as traumatized or those feelings aren't as acute. As a result, when they make the disclosure, it's usual for kids to make it in a somewhat matter-of-fact or detached way, they don't look acutely distraught and crying. Clearly, there are kids who disclose and are distressed. I think what Dr. Summit is trying to present is that child who makes that disclosure and they're not crying and upset; is not atypical.
PROSECUTOR: Let's talk a little bit about the theories that Dr. Summit announced in his paper. Is the first, called secrecy?
PROSECUTOR: And would you describe for the jury what Dr. Summit meant when he talked about the concept of secrecy in his paper?
URQUIZA: In order to understand secrecy, it's important to understand the context in which sexual abuse happens. It occurs in a relationship. Usually children are sexually abused by somebody they know. That's important because children tell us there's been some strategy imposed upon them to keep them quiet about the abuse, hence the term "secrecy". The strategy can be lots of different things. It can be an overt threat. It can be, "if you tell, then you'll go to jail" or "I'll kill you" or "I'll kill your mom or dad or you".
Dr. Summit says in his uses an example "you'll go to an orphanage", "your parents will get divorced". Some type of coercive strategy imposed upon the child to keep them quiet about the victimization.
PROSECUTOR: Did Dr. Summit discuss things that are other than direct threats. Kids also tell us that they are bribed and provided special gifts. It doesn't necessarily have to be an overt threat. What I often explain to parents and children who come to therapy is clearly if a child is being threatened, then a smart thing to do if you're that child would be to comply if the person who's threatening is bigger and stronger. But sometimes it can be a covert threat. If you see somebody beat up your mom and that person comes into your bedroom at night and wants to do something, then you know you should comply. Kids often feel like they could get in trouble if they were to disclose, and it's a topic that is not easy to talk about. Kids keep the secret about kids being abused because they're embarrassed, disgusted, or ashamed of what they've participated in.
PROSECUTOR: And is the next theory called helplessness?
PROSECUTOR: Would you describe for the jury what Dr. Summit meant when he talked about helplessness?
URQUIZA: Sure. Essentially, the misperception is if you're a child and somebody approaches you, with some overture to sexual abuse, you'll be able to do something about it, protect yourself, fend them off, prevent yourself from being sexually abused. Dr. Summit points out the fact that, that's not reasonable. In the face of a perpetrator who was bigger, stronger, smarter, more worldly, has more experiences, a child is not able to ensure their own sexual safety. They're not able to do anything to protect themselves, so Dr. Summit talks about the fact they're relatively helpless or vulnerable and relatively powerless.
PROSECUTOR:Does Dr.Summitdiscuss kids being less able to protect their sexual safety?
URQUIZA: Yes. Kids are relatively powerless when there's somebody who's in a position of authority or somebody bigger, stronger, and they are subordinate or submissive or weaker position than that person.
PROSECUTOR:Does Dr.Summittalk about the causes of helplessness in the context of a known assailant or unknown assailant?
URQUIZA: There's a context to the abusive relationship. Children abused by somebody with whom they have an ongoing relationship and that person is bigger and stronger and inherently has more control over their life. If those two things are happening – acquaintance -- means there's ongoing contact and the person is bigger, stronger, more authoritarian, that really serves to reinforce the strategies that are imposed upon kids. That is, if you're threatened to be quiet and you have ongoing contact with somebody who is both bigger, stronger, more powerful, and who has access to you, then that reinforces the notion that it's a really good idea for you to be quiet about the abuse.
PROSECUTOR:Does Dr.Summittalk about abuse takes place in the context of a loving relationship, whether that makes the child even more vulnerable?
URQUIZA: That would be a situation where a child would be perhaps most helpless because if the perpetrator is somebody who's bigger, stronger, and in their family, then they have a fair amount of control over what the child does or says or to be able to reinforce any type of threat that was made. And so even though the child may care about or may even love the person with whom they're being abused, that doesn't negate the accommodation syndrome. It's not uncommon for kids to love the person that is abusing them, and to be sexually abused by that person.
PROSECUTOR: Is there anything discussed in Dr. Summit's article about whether helplessness is exaggerated or increased when the caretaker is someone who has a substance abuse problem?
URQUIZA: We know from research that children who have a caregiver who is in some way incapacitated are at greater risk to be sexually abused. An example I often use is a mother who is an alcoholic, may do a relatively poor job of supervising the child, may fraternize with people who have problems or are somewhat unseemly, so the child would have more contact with someone like that. And so if there is some incapacity in the ability of the care-giving environment, like a mom or dad or baby-sitter, that would put the child at greater risk, make the child more vulnerable or more helpless.
PROSECUTOR: Is there another topic in Dr. Summit's paper called entrapment in accommodation?
URQUIZA: There are five parts to the accommodation syndrome. The third one is entrapment and accommodation.
PROSECUTOR: Would you describe for the jury what Dr.Summitmeant by that?
URQUIZA: Entrapment and accommodation, the entrapment part is pretty simple. If the child is sexually abused and can't do anything to stop it, that's helplessness, and can't tell anybody, that's the secrecy. They're trapped. Summitgoes on to talk about how a child copes with or adjusts with or deals with experiences that they are forced to endure. He goes on to speak about some of the coping strategies that kids go through, to be able to manage the unpleasant feelings that he experiences as a result of being abused.
PROSECUTOR: Can you describe that a little bit?
URQUIZA: One of the things that happens with kids when they're sexually abused, there are a lot of unpleasant feelings like being ashamed, a sense of humiliation, or disgust, sometimes fear, sometimes even confusion, not being old enough or appreciating what's happening to them. These are difficult feelings for them to experience and to tolerate. And what we're finding in the mental health field, for kids who are sexually abused, especially kids who are sexually abused at least a few times, they become somewhat numbed to those feelings because it's too difficult to tolerate them. We've seen that in other types of people who experience traumatic events, and the most common, frequent one is veterans where they have a numbing of the feelings that they have relating to the experiences that were too difficult for them to bear at the time. Even twenty years later, they still have some numbing. And so this process of accommodation really is this experience of trying to maybe compartmentalize a lot of the feelings that they have about the victimization experiences.
PROSECUTOR: You talked a little bit about the concept of entrapment. Is it a "myth" that a child who's being sexually abused would not want to go back and see the person who's abusing them?
URQUIZA: I think it's something that is not easily understood by people. If you're being sexually abused why would you go back over their house? Why would you want to spend time? Why would you appear to enjoy time with that person? It's common for kids to have a relationship outside of victimization with the perpetrator, and as a result, it's common for kids to like the person who's abusing them, especially if that person is somebody who they care about, spend time with, do fun things with. Sometimes if you're being sexually abused by mother, father, or big brother, it's common for kids to love that person because they need to love caregivers. That's what we do in families.
PROSECUTOR: And is there a fourth theory from Dr. Summit, called delayed unconvincing disclosure?
URQUIZA: There is.
PROSECUTOR: Would you describe what Dr.Summitmeant by that concept?
URQUIZA: Sure. Delayed disclosure is quite simple, that if -- the misperception is that if you are sexually abused, you'll tell somebody right away. Sometimes that happens. Sometimes kids are approached, they're sexually abused, and immediately go and tell somebody. That actually happens a minority of times. The research shows that it is quite common for kids to have a delay in time from when they are first sexually abused to when they disclose that they have been sexually abused. What that means is a couple of things: the strategy that was imposed upon them to keep it a secret, must be pretty effective if they can keep kids quiet about their sexual abuse for a significant period of time. So the idea that kids will tell right away is really not a common thing. It is really uncommon that kids tell right away. The third part of the accommodation syndrome is "delayed and unconvincing disclosure". The best way to describe this is to think of sexual abuse as a process that is really hard to talk about. Victimization is difficult. And if you are a child, who perhaps was threatened or perhaps felt embarrassed or humiliated about the experiences you participated in, it's really hard to put yourself in a position to tell somebody about that. And so what we found is that kids who go through this process of disclosure are often somewhat vague in providing some information. If they're responded to positively or supportively, they may say more, and as time goes on, they may tell more about their victimization experience over different iterations. They also may make some minor mistakes about disclosure. If you have somebody that says five or four different times, they're not exactly alike every single time, then they may look unconvincing. That is, Dr. Summit was talking about the fact that this process which we now have research to support, this process of disclosure may ultimately look like the child was not telling the truth or was unconvincing in their description of what happened to them because their disclosures are not identical every single time.
PROSECUTOR: Is the concept of consistency taken into consideration in that disclosure process by Dr. Summit?
URQUIZA: I think that's part of the process. The child may not be completely consistent, may not be able to articulate clearly the first time what happened. It may take a couple of times before a child is able to provide some kind of description about what happened to them in their victimization.
PROSECUTOR: What studies, if any, were relied upon with regard to the proposition that a child might not disclose immediately about sexual abuse?
URQUIZA: Well, there are actually about four or five studies. The one that I usually use is by Elliott Briar or Briar Elliott. They found, basically, about three quarters of kids failed to disclose the first twelve months from when they were abused. Essentially, two things: We shouldn't expect that kids will disclose right away although some kids do. Some kids have some significant delay by the time they're able to disclose.
PROSECUTOR: And is it also fair to say some kids never disclose?
URQUIZA: That's a reasonable assumption to make. In research that I have done with adults, there were a fair number of adults who never disclosed in their childhood, so if you were to say there are children who never disclose -- understanding that when they hit eighteen, they're no longer children -- I would agree with that. There may well be, and probably are, people who never disclose throughout their entire lifetime.
PROSECUTOR: Okay. And the last theory that Dr. Summit talks about something called retraction?
PROSECUTOR: Would you briefly talk a little bit about that?
URQUIZA: Sure. Again, we're talking about children who have been sexually abused, and what he found was there are a small percentage of children who have been sexually abused, who made a disclosure, who then took back the allegation of the abuse. Summitgoes on to talk about some of the reasons why a child who was abused would take back the allegation. He essentially, points to the child having access to the perpetrator, presumably the perpetrator reinforces the threats or coercion, so the child keeps quiet. Sometimes other things like pressures put on by the family about the abuse for a variety of reasons, results in the child retracting allegations of abuse.
PROSECUTOR: Okay. Did Dr. Summit write a second article about nine, ten years later called "Abuse of the Child, Sexual Abuse Accommodation?
URQUIZA: Yes. It was either 1990 or '92, somewhere around there.
PROSECUTOR: And what was the premise of that second article?
URQUIZA: He felt at that time that there was some misuse of the Child Sexual Abuse Accommodation Syndrome. He felt people were using the Child Sexual Abuse Accommodation Syndrome as a way to diagnose child abuse. If you have these five things, then you're sexually abused. And he was arguing that that would be an improper use of the Child Abuse Accommodation Syndrome because it's not the place of mental health professionals to say whether a particular person is a perpetrator or not, or a particular child has been sexually abused. That's a criminal issue and a jury issue. So he was arguing if anybody is using that that purpose, is inappropriate. This is not a diagnosis. It's really an educational tool to explain what happens with sexual abuse. The other thing that he was trying to explain is, that there's a lot of discussion about what the definition of a syndrome is. Because it is called Child Sexual Abuse Accommodation Syndrome people often equate syndrome with diagnosis or medical condition, and there has been a lot of arguments or discussion about whether Child Abuse Accommodation Syndrome is really a syndrome or not. I actually think it is, in my opinion, but his position is that he wishes we would not use the term "syndrome" because it detracts from the overall idea, which is just to explain what happens with kids who have been sexually
abused. He says in the follow-up, it would have been probably better if he had called it Child Sexual Abuse Accommodation Pattern because that would have avoided the controversy with the term "syndrome".
PROSECUTOR: So the premise of the second article was to suggest that perhaps "syndrome" wasn't an appropriate word to use; that "Pattern" is the word he would have rather used?
PROSECUTOR: And that C.S.A.A.S. is not something to be used for purposes of diagnosing or saying whether a child has, in fact, been abused?
PROSECUTOR: It is, instead, a tool used to dispel myths and to look at some things that typically might be associated with behaviors of the child sexual abuse victim?
URQUIZA: I think that was its initial purpose, to dispel myths and misperceptions for therapists. I think in its current use in the courts, it's use is to essentially do the same thing: to dispel myths or misunderstandings that the jury may have about sexual abuse.
PROSECUTOR: During the course of your personal work with about a thousand or so kids, have you specifically worked with kids who were victims of sexual abuse?
URQUIZA: I have.
PROSECUTOR: And were those sort of victims that you could ascertain as known victims of sexual abuse, if you will?
URQUIZA: For the most part, yes.
PROSECUTOR: And in working with that large number of children over the years, have you been able to personally observe some of the theories that were announced in
Dr. Summit's papers?
URQUIZA: For clinical purposes, I think Dr. Summit's article has done a very good job of initially providing me with an understanding or foundation of what happens with sexual abuse, and so I use that for that purpose and now I use it for training also. I also use it to try to explain to parents who come in with their child with questions like: "why didn't they tell me sooner", or "how could this have happened to my child"? So it provides me with the framework to try to explain to parents about some of the dynamics that occur with sexual abuse and why it is that a child would have difficulty describing or disclosing victimization.
PROSECUTOR: And in treating a thousand or so kids, have you formed a personal opinion about whether you agree with the theories that Dr. Summit has put forward?
URQUIZA: I have.
PROSECUTOR: What is your opinion?
URQUIZA: It's consistent with what it I see in children who have been abused. I think probably more importantly, my opinion is that the research supports the concept of the Child Sexual Abuse Accommodation Syndrome by Dr. Summit.
PROSECUTOR: I have no further questions.
Scene 3 Comments Explaining Defense
You have now had an opportunity to see what you are facing when a Child Sexual Abuse Expert Testifies. We can assure you that if not countered properly, this testimony has a profound impact on the jury. Days later at the close of the trial the jury is read Jury Instruction CALJIC 10.64 which state:
"Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt. You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with her having been molested."
What do you think goes thought a juror's mind when they hear one to two hours of testimony about a syndrome? What do you thinks goes through the minds of a juror when they hear that this is a "pattern of reactions" that children who have been molested demonstarte? Do you think they understand "You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with her having been molested."
We have debriefed many juries and the fact of the matter is that jurors don't get the jury instruction. Instead they are swept away in the emotion of the prosecution expert's testimony. The juror's use the child sexual abuse accommodation syndrome to find that a molestation did in fact occur. That is the danger of not countering this junk science.
We have developed a set of visual aids to teach the jury that Child Sexual Abuse Accommodation Syndrome is not only junk science but is DANGEROUS. By the end of the trial we want the jury to associate the name Child Sexual Abuse Accommodation Syndrome with bias, one sided, unfair, dangerous, and as an attempt to mislead the jury. In other words we want the prosecution to wish they had never introduced this piece of junk science
Dr. Lorandos is one of the leading experts in the nation on junk science. He has written numerous articles on books on the subject. He has written a judges bench book entitled Benchbook in the Behavioral Sciences published by Carolina Press . The thrust of the book is to explain what is junk science in the mental health arena and how to correctly apply Daubert / Kelley Fry. The problem is that in People v. Bledsoe (1984) 36Cal.3d 236 , the Calfornia Supreme Court held that Child Sexual Abuse Accommodation Syndrome does not have to comply with either Daubert or Kelly/Frye.
If Dr. Lorandos was testifying for you or someone with his credentials, you might want to consider a two prong attack on CSAAS.
Prong One: The jury could be taught the concepts of causism, hyperclaiming, incidents, prevelance, validity, reliability, and statistics such as "standard deviations." This would be a scientific approach to countering child sexual abuse accommodation syndrome.
Prong Two: The jury is presented with a visual demonstration with minimal reliance on scientific jargon. They are taught the concepts not in an abstract way but in a visual manner. If you don't have a Lorandos as your expert to testify on your behalf, this second prong alone will do.
To conduct the cross examination you will need to create a series of "model boards" with mylar overlays.
Here is an example of one of a series of five.
You also need to create a series of "Child Sexual Abuse Accomodation Quotes" also on display boards. We will provide you will Microsoft Publisher Files that you can use to create these display boards.
I recommend that they be approximately 30 " by 24". The large "model boards" will not be used for cross examination. They will be saved for the defense expert.
An artist display case can be used to help you carry the boards. I found these cases at Arron Brother's Art Mart but most art supply stores carry them.
Here is a trial strategy that you need to use. You are going to be confronting the prosecution expert with quotes from the Article – Child Sexual Abuse Accommodation Syndrome. The expert will not be able to find the quotes and the presentation will bog down and loose its snap. What you do is that you present a copy of the article to the prosecution expert to use and have all of the quotes in boxes so that they are easy to find while on the stand. A copy of the article with the red boxes around the important quotes will be provided to you in Adobe PDF format.
The "model boards" can be modified to address the issues in your case. For example they might be modified based upon whether your case involves a parent that is being accused during a divorce case or if the client is a non parent that is being accused. The charts are designed to show the jury that CSAAS is a confirmatory bias model and to teach them why such a model is DANGEROUS.
If you have a large color printer, you can make changes with each case.
If you don't have a large format color printer, I recommend that you take your Microsoft Publisher file to Kinko's. They have the printer and it accepts Microsoft Publisher.
You will also need a second set of the "model boards" but this time about 8 ½ by 11 inches pieces of paper.
During the cross examination of the prosecution expert witness, you will use the small 8 ½ by 11 "model boards" to guide your questioning of the prosecution expert. The prosecution expert will not see the large model boards, they are being saved for your experts presentation. A copy of 8 ½ by 11 inch model boards will be provided to you.
During the cross examination of the prosecution expert you will use the large display boards for the jury to see quotes form CSAAS.
The idea will be to get the prosecution expert to agree to as many details form your display boards as possible and to keep him from going off track into false claims of percentages.
The prosecution expert is in fact being used to set the stage for your expert's testimony.
Here is how it goes.
I will be playing the role of myself. Again Dr. Randy Rand will again be playing the role of Dr. Urqueza.
Scene 4 Cross Examination of Prosecution Expert
CLANCY: Good morning Dr. Urquiza.
URQUIZA: Good morning.
CLANCY: We've met before?
CLANCY: . I'd like to go over what it is that you're doing at this time, starting with the treatment. You indicated that you were no longer doing treatment; is that correct?
URQUIZA: That's correct.
CLANCY: And you had not been doing that for three years?
CLANCY: In the last year that you were doing treatment, how much of your time was spent per week giving treatment?
URQUIZA: Rough estimate, perhaps f i v e to ten hours a week.
CLANCY: How long have you been operating at the level of maybe five hours to ten hours a week?
URQUIZA: I don't know that I could tell you that. A few years. Most of my career has been carrying, roughly, a full-time caseload until we had a significant increase on our staff about six years ago.
CLANCY: So six years ago is when you started decreasing the amount of treatment that you were doing; is that correct?
CLANCY: And then over a period of three years – six years ago to three years ago, you went down to zero; is that correct?
URQUIZA: About three years ago, I stopped doing treatment therapy.
CLANCY: Now, you talked about also doing working on boards or advisory boards. How much of your time, say per week or per month, do you spend working on advisory boards?
URQUIZA: Probably not very many; probably not more than two or three hours a week. Most of the boards are national organizations so they meet quarterly or twice a year or once a year. And so if you average, on a weekly basis, how much time I'm involved, it's not a lot.
CLANCY: Do you do interviews of children where abuse is suspected?
URQUIZA: Not usually. Usually, the children that we see, some method has been used to determine whether the child has been abused already.
CLANCY: Do you, at the request of the district attorney's office or the police, conduct interviews of children where abuse is suspected and then turn your results over to the police, say?
URQUIZA: No, that's not something I do.
CLANCY: Have you done that in the last five years?
URQUIZA: No. It's not something I do. I don't do evidentiary interviews or evaluations whether abuse has occurred.
CLANCY: So you don't do evaluation interviews to determine if abuse has occurred, correct?
CLANCY: Now, how many times have you testified concerning Child Sexual Abuse Accommodation Syndrome?
URQUIZA: I would estimate 75 to 85 times would be a rough estimate.
CLANCY: Would those be in criminal cases?
URQUIZA: Those would be criminal cases.
CLANCY: And would those normally be for the prosecution?
URQUIZA: Most of the time, yes.
CLANCY: Have you ever testified for the defense?
URQUIZA: I have.
CLANCY: And approximately how many times?
URQUIZA: About three times.
CLANCY: And you're paid for your time, correct?
CLANCY: And you're paid one seventy-five an hour?
URQUIZA: One seventy-five an hour.
CLANCY: What's an average amount that you get paid when you take on one of these cases such as you did?
URQUIZA: It's purely on an hourly basis, depending upon the time I have. So if I am testifying, I come fromSacramento, about an hour and fifteen minutes, an hour and a half fromSacramentoto here. So let's say two and a half hours. And depends how long I take, so if I take two hours of time here, then four and a half hours might be, I don't know, 7, $800, if my math is good. My math is not that good, but $175 per hour for the time I'm involved in the case.
CLANCY: Now, when one does an evaluation isn't it important for that evaluator to be unbiased?
URQUIZA: Usually, yes.
CLANCY: Isn't it important for you to not be an advocate for one side or the other but really do a fair evaluation?
URQUIZA: Those are not mutually exclusive. I think it's important to be unbiased. I think of myself as an advocate for the child and family. One of the things that I think I advocate for most strongly is a healthy relationship and a safe relationship, but within that context, certainly I usually advocate, as I believe, that children should be raised by their parents in a healthy way.
CLANCY: What is a "confirmatory bias model"?
URQUIZA: Confirmatory bias model, it's more of a statistical term really meaning, bias or err that may result from someone having a predisposed opinion about the outcome. So if you have a preliminary opinion about an outcome going into something, you may be more likely to find that than if you had a completely neutral opinion.
CLANCY: Is that sometimes referred to as a single-hypothesis model?
URQUIZA: It could be.
CLANCY: And -- well, let me -- do you have a copy of Child Sexual Abuse Accommodation Syndrome?
URQUIZA: I do not.
CLANCY: Well, we have one made for you.
URQUIZA: This is your copy?
CLANCY: Taking a look at the document that's been given to you, is that a copy of "Child Sexual Abuse, Child Abuse Accommodation Syndrome"?
URQUIZA: Yes. A copy of the article that Dr. Summit wrote in 1983, yes.
CLANCY: I would like to go through some of the quotations that are contained in that article. I've blown these quotes up and put them on boards. I would like to go through the first board and read the first quote: "Acceptance and validation are crucial to the psychological survival of the victim". Is that a quote from Child Abuse Accommodation Syndrome?
CLANCY: Validation means letting the child know that they're being heard, correct?
URQUIZA: I think that's a reasonable explanation of validation in this context, that they're being heard, being understood, being supported.
CLANCY: SoSummitis promoting acceptance and validation, right?
URQUIZA: I would agree with that, yes.
CLANCY: Let's go to the next one. "The validation of the child's perception of reality, acceptance by adult caregivers, and even the emotional survival of the child may all depend on the knowledge and skill of the clinical advocate."
CLANCY: So he's talking about a clinical advocate, not an evaluator?
URQUIZA: He's talking about somebody who would be supportive and advocating for the child.
CLANCY: He's talking about individuals coming in and testifying and advocating for the child, right?
URQUIZA: I'm not sure that he's necessarily talking about that. I mean, if you remember from my prior testimony, we have an assumption that the child has been sexually abused because the Child Abuse Accommodation Syndrome describes what happens as a result of being sexually abused. So what we're talking about is advocating for a child who has been sexually abused. Not presuming that maybe the child has been or hasn't been. We're providing advocacy for a child who has been sexually abused.
CLANCY: SoSummitstarts with the position that the child he is talking about in the article has, in fact, been sexually abused?
URQUIZA: That's the assumption, and then he describes what commonly occurs.
CLANCY: Okay. "Clinical experience and the expert testimony can provide advocacy for the child?" That's a quote from the Child Abuse Accommodation Syndrome?
URQUIZA: Yes, it is.
CLANCY: And again, he refers to providing advocacy, correct?
CLANCY: Next quote, is this accurate? "They need an adult clinical advocate to translate the child's words into an adult acceptable language."
URQUIZA: That's from Dr. Summit's article.
CLANCY: And again, he's talking about an advocate?
URQUIZA: An advocate for a child who has been sexually abused, yes.
CLANCY: Let's go to the next quote. Is this an accurate quote? "Without a consistent therapeutic affirmation of innocence, the victim tends to become filled with self-condemnation and self-hatred for somehow inviting and allowing the sexual assault?"
So you have to keep supporting the child in their story so they don't feel that it's their fault?
URQUIZA: Correct. That you would support the victim so they don't feel it's their fault.
CLANCY: Let's go to the next one: "As an advocate for the child, both in therapy and in court, it's necessary to recognize no matter what the circumstances, the child had no choice but to submit quietly and keep the secret." That's an accurate quote from Child Abuse Accommodation Syndrome, isn't it?
URQUIZA: That's correct.
CLANCY: And he's talking about advocating, not just in therapy but in court, correct?
CLANCY: Let's go down to the next one: "The more illogical and incredible the initiation scene might seem to adults, the more likely it is that the child's plaintive description is valid." That's an accurate quote, isn't it?
URQUIZA: That's correct.
CLANCY: So, if what the child says is illogical and incredible, it's more likely that it's valid?
URQUIZA: That's what his statement is. That's what it says.
CLANCY: He's advocating that no matter what the child says, you're supposed to believe
it, isn't he?
URQUIZA: What we're talking about is a child who has been sexually abused and sometimes situations arise where the circumstances of their victimization may not seem logical or may not seem critical. And so I believe what Dr. Summit is saying, even in those situations where they're illogical or incredible, for a child who has been sexually abused he thinks it's important to recognize the validity of their experience.
CLANCY: Let's look at the next quote: "Unless there is expert advocacy for the child in the criminal court, the child is likely to be abandoned as the helpless custodian of a self-incriminating secret which no responsible adult can believe." Isn't Dr. Summit asking the reader to be an advocate in the courtroom.
CLANCY: Let's look at the next quote on page 188: "The psychiatrist or other counseling specialist has a crucial role in early detection, treatment intervention and expert courtroom advocacy. The specialist must help mobilize skeptical caretakers into a position of belief, acceptance, support and protection of the child." So he's advocating this theory from the time of earliest detection, isn't he?
URQUIZA: Right. As soon as a child who has been abused is identified and treated and even to the point of supporting them if the case goes to court, that it would be important to provide a sense of belief, of acceptance, and support and protection of that child.
CLANCY: So he's advocating believe the child, isn't he?
URQUIZA: He is advocating the belief that they are sexually abused.
CLANCY: He's advocating believe the child?
URQUIZA: Right. And I think what I said earlier, we're starting from the assumption that this describes what happens with a child who has been abused. He's advocating that we should support the child's assertions or statements or disclosures.
CLANCY: Next quote: "Unless there's a special support for the child and immediate intervention to force responsibility on the father, the girl will follow the normal course and retract her complaint. The girl admits she made up the story." That's a direct quote?
CLANCY: So he's basically saying when they retract the story, the retraction is false?
URQUIZA: With a child who has been sexually abused, yes.
CLANCY: The next quote: "The clinician with an understanding of the child sexual abuse accommodation syndrome offers the child a right to parity with adults in the struggle for credibility and advocacy". That's a direct quote, isn't it?
URQUIZA: That is correct.
CLANCY: So he's encouraging people to be advocates on credibility, correct?
URQUIZA: And again, assuming that the child has been abused which is what accommodation syndrome is about, then he is advocating or for their credibility; that people believe that they have been abused and advocate for them.
CLANCY: So he's advocating using this -- a courtroom to advocate for credibility?
URQUIZA: I think you could use it -- if your perception is the accommodation syndrome should be used to make a determination about whether the child is abused or not – which I previously said I don't agree with -- then I think that issue of credibility would have one interpretation. That is, we're looking to see if they're credible, if they're telling the truth or not telling the truth. But here we're talking about the fact that we've assumed the child has been abused. Child sexual abuse accommodation syndrome is all about what has happened with a child who's been abused. In that case, we're providing support or credibility f o r the child in their disclosure.
CLANCY: The last quote, "it has become a maxim among child sexual abuse intervention counselors and investigators that children never fabricate the kind of explicit sexual manipulations they divulge in complaints and interrogations." That's a quote from the Child Abuse Accommodation Syndrome in 1983?
URQUIZA: Right. That's a quote from the Child Abuse Accommodation Syndrome. That was taken from Elmer Dean Muldoon, an article in 1979, "Incest: Confronting the Silent Crime," Minnesota Program for Victims of Sexual Assault.
CLANCY: He incorporated it into his article?
URQUIZA: That is correct.
CLANCY: Near the conclusion section, correct?
URQUIZA: It is in the second to the last page of text.
CLANCY: Isn't it true that the Child Sexual Abuse Accommodation Syndrome is an advocacy model?
URQUIZA: I would agree with that. It advocates for some characteristics with children who have been sexually abused.
CLANCY: Have you taught CPS workers?
URQUIZA: I have, yes.
CLANCY: CPS workers do investigations for court, correct?
URQUIZA: That's correct.
CLANCY: Have you talked to them about Child Abuse Accommodation Syndrome?
URQUIZA: I have talked about child abuse and talked about accommodation syndrome as a part of that and some of the characteristics of accommodation syndrome as a part of that.
CLANCY: Secrecy was the first of the five categories that Roland Summit talked about correct?
URQUIZA: That's correct.
CLANCY: Now, if a child fabricates an allegation of molestation, they can say that it occurred right now, it's happening right now, he's touching me right now, or it happened sometime in the past, correct? Those are the only two choices?
URQUIZA: That's correct.
CLANCY: And if they say it happened right now, the witness would be able to look and see it, correct?
CLANCY: So if they say it happened a month ago, six months ago, a year ago, that would give the appearance that they have kept a secret for six months or a year, wouldn't it?
URQUIZA: It could give that appearance.
CLANCY: And Dr. Roland Summit never talked about that in the article, did he?
URQUIZA: Dr. Summit did not talk about false allegations in his article.
CLANCY: Now, an investigator might ask a child in a suggestive way "did he tell you to keep a secret". That can happen, can't it?
URQUIZA: It could happen, yes.
CLANCY: Does Roland Summit talk about how that questioning might be an explanation for secrecy?
URQUIZA: Again, that issue of suggestibility or that the allegation was false was not a part of Dr. Summit's focus or intent in talking about the Child Sexual Abuse Accommodation Syndrome.
CLANCY: You talked about helplessness?
CLANCY: You talked about how children being molested are helpless, right?
URQUIZA: Helpless, vulnerable, relatively powerless.
CLANCY: Isn't it true that all children are helpless, whether or not they've ever been molested?
URQUIZA: That characteristic is, consistent with many children who are younger or smaller or in some ways less powerful than others.
CLANCY: Now, he also talked about "entrapment"?
CLANCY: And he talks about how children accommodate to abuse due to an imbalance of power, would that be fair to say?
URQUIZA: Generally because of the circumstances that they're in.
CLANCY: Children can also accommodate an adult who wants to falsely accuse someone, can't they?
URQUIZA: I'm not sure I understand.
CLANCY: Domestic case, husband and wife fighting over custody, can't a parent have an influence on a child's statement?
URQUIZA: Certainly a parent could have an influence on a child's statements.
CLANCY: And if the child went along with a false accusation, that would be accommodating that parent, right?
URQUIZA: I think you could use the word "accommodating." But I think he is being quite unique in talking about accommodating as related to symptoms or mental health problems or sources of coping that a child who has been sexually abused would engage as a result of their abusive experience.
CLANCY: Well, being raised in a family that has an alcoholic in it, would children accommodate that?
URQUIZA: There would be some element of learning how to cope with an experience or modify the way in which you live your life or think or feel if you came from a family where one or both parents were alcoholics.
CLANCY: The same is true if you came from a family where there was violence, isn't it?
URQUIZA: I think there's an element of learning how to cope or adapt to violence if you have somebody who is just a violent person. If there's an issue of domestic violence, kids learn to make adaptations or changes in the style in which they think or feel, based upon a lot of different types of dominant themes, particularly aggressive ones.
CLANCY: And Roland Summit never talked about, in a false allegation case, how children might accommodate, did he?
URQUIZA: No, he didn't. Dr. Summit's article was not about false allegations. It was, quite simply, about what commonly occurs with a child who has been sexually abused.
CLANCY: Number four, delayed conflict and unconvincing disclosure. That was one of his four areas?
URQUIZA: That was the fourth.
CLANCY: He talked about children can delay because they're embarrassed, right?
URQUIZA: That could be one reason, yes.
CLANCY: A delay can also be because, in a false allegation case, they point to a time in the past, and it happens six months ago, a year ago, giving the appearance of a delay even though there wasn't?
URQUIZA: An appearance of a delay, I would argue isn't applicable to the accommodation syndrome. The accommodation syndrome is about children who have been sexually abused. So you can't have a delay in disclosure about being sexually abused if you haven't been sexually abused.
CLANCY: It would give the appearance of one?
URQUIZA: If you made a false allegation about something that happened in the past, you could have that.
CLANCY:Summitalso talks about "incredible stories". Isn't it true that "incredible stories" can be the result of false allegations?
URQUIZA: It is possible that if you were going to make up a story, you're going to have a false allegation of abuse, it is quite possible that that story could be incredible.
CLANCY: Did Roland Summit write about how an "incredible story" could be caused by a false allegation?
URQUIZA: Dr. Summit wrote an article about what commonly occurs to children that have been sexually abused. It was not his intention to write about false allegations.
CLANCY: It was a single-hypothesis article?
URQUIZA: He wasn't using it to make a determination about whether the child was abused or not. He wasn't using it with regard to a hypothesis. Actually, I think his 1990 article goes specifically to that point – and when he uses the term "pattern," he's not making a determination about whether the child is abused. He's describing the pattern of behavior that sexually abused children exhibit.
CLANCY: And these patterns can exist in false allegations cases also, right?
URQUIZA: Well, I would argue and perhaps agree with you to some degree. There are certain characteristics that are consistent with kids that have not been abused. But I would disagree with the basic position of that question because the accommodation syndrome is used to provide a description of a child who has been sexually abused. So if they have not been sexually abused, then there is no issue of secrecy. What would secrecy be about if you have not been sexually abused? What would you delay in disclosing about if there was no abuse to have a disclosure about? I mean the question you're asking me sort of leads to the issue of using accommodation syndrome as a means to make a determination whether somebody is abused or not.
CLANCY: He indicated under the section called delayed conflict and unconvincing -- that the inconsistencies may be caused by the trauma of the abuse, correct?
URQUIZA: That would be one of the reasons, yes.
CLANCY: But he never talked about how inconsistencies can be caused by the allegation being false?
URQUIZA: Dr. Summit's article was not about false allegations. It was about describing what commonly happened with a child who was abused.
CLANCY: And the fifth section was called retraction, correct?
CLANCY: He wrote about children can retract stories of abuse to preserve the family?
URQUIZA: That would be one of the reasons.
CLANCY: Isn't it also true that a retraction can be true? In other words, they retract a false allegation?
URQUIZA: That could be the case, but that wouldn't be consistent with accommodation syndrome. It is possible that a child can make an allegation that is not true and retract that allegation which would then be true. That could be the case. But that wouldn't be an applicable part of the accommodation syndrome because, again, we're dealing with the assumption that the child has been abused.
CLANCY: Roland Summit came out with an article years later saying C.S.A.A.S. was being misused, right?
CLANCY: Do you see any danger in teaching -- whether it's a jury or the police or CPS workers -- Child Sexual Abuse Accommodation Syndrome without, at the same time, teaching them the flip side having to do with false allegations?
URQUIZA: Well, my understanding of what Child Abuse Accommodation Syndrome is as presented by Dr. Summit has been fairly well supported. I don't see a danger of presenting to any group -- whether it's law enforcement, social workers, teachers or members of a jury -- what research has to say about what happened with kids who have been sexually abused. It's my opinion that people in the community, their perception of what sexual abuse is and how kids respond, is usually taken from newspaper accounts, magazines, sort of sensationalistic television stories, not what research has to say. And so I don't see the danger of providing information about what research has to show about sexual abuse.
CLANCY: You don't see a danger of them not seeing both sides of the story?
URQUIZA: To the best of the knowledge that we have with regard to what research has to say, I don't know that there is a different side of the story. I'm presenting to you what research has to say about child sexual abuse, the effects of child sexual abuse. If there's another side of the story, then I don't know what that is. I don't know quite what would be the example. If the other side of the story would be most children are sexually abused by strangers, I think it would be dangerous if you had somebody come and say most children are sexually abused by strangers, because that's not what the research shows. It shows somebody they have an acquaintance with. That's what I said, and that's what the research supports.
CLANCY: Nowhere in the Child Abuse Accommodation Syndrome, which uses the word "advocacy" over and over and over again, does it discuss issues of false allegations. Correct?
URQUIZA: That's correct. That was not Dr. Summit's intention and that wasn't the focus
of the article.
MR. CLANCY: I have no further questions.
Scene 5 Comments to Explain What Defense has Accomplished
What has been accomplished during the cross examination of the prosecution expert?
First, the prosecution expert has been forced in front of the jury to discuss "false allegations".
Secondly, in every case that I have used this method the prosecution expert has repeated had to explain to me over and over and over that Dr. Summit was not concerned with false allegations. Child Sexual Abuse Accommodation Syndrome was not concerned with false allegations. Child Sexual Abuse Accommodation Syndrome did not discuss that each element of Child Sexual Abuse Accommodation Syndrome can also appear in false allegation cases becauseSummitwas not concerned with false allegations.
Every time I have done this the prosecution expert gets upset with me that he keeps having to repeat over and over that Dr. Summitt didnt's address false allegations. NOW LOOK AT THE IMPACT OF THAT TESTIMONY AND SEE WHAT IMPACT IT HAS AS COMPARED TO SAYING THE SAME THING WITH A JURY INSTRUCTION.
Jury Instruction CALJIC 10.64 which state:
"Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.
You should consider the evidence concerning the syndrome and its effect only for the limited purpose of showing, if it does, that the alleged victim's reactions, as demonstrated by the evidence, are not inconsistent with her having been molested.
THE JURY WILL NOW UNDERSTAND THAT INSTRUCTION WHEN IT IS READ AT THE END OF THE TRIAL.
But the jurors have learned a lot more.
Third: The juror have learned about causism, hyperclaimng, incidents v. prevelance, validity, and reliability without the scientific terms even being used. They have learned on a common sense level that all jurors can understand. They have learned on a visual level rather than with scientific jargon.
The jurors are starting to learn why Child Sexual Abuse Accommodation Syndrome is dangerous. They are learning that CSAAS is a totally one sided model. We are later going to teach them one scientific term, Confirmatory Bias Model. The basic theory to quote an old saying "All Road Lead toRome".
Fourth: the prosecution expert witness has been forced to agree to all or most of the elements that the defense expert witness will be testifying to next. This enhances the credibility of the defense expert.
Fifth: the advocacy quotes that were shown on the display boards have exposed the Child Sexual Abuse Accommodation Syndrome for what it is. A non scientific advocacy model that is not designed to search for the truth.
Now, let's see how all these parts are put together. In the next courtroom reenactment, Dr. Lorandos is going to play the part of the defense expert witness. He was not the expert in the case that we are using as the model for this skit and the questions and answers are not his. In fact they are from the same trail that the questions and answers of Dr. Urquaza are taken. I am certain that Dr. Lorandos would have handled the testimony with a more scientific presentation. However, there are few qualified experts on junk science available to testify in your cases. We wanted you to see what the testimony would appear like using a local defense expert.
THE COURT: The record will indicate that all members of the jury are present, the alternates and the attorneys and the Defendant are present.
MR. CLANCY: Call Dr. LOCAL y LOCAL.
THE COURT: Okay. Dr. LOCAL,
THE CLERK: Do you swear to tell the truth, the whole truth and nothing but the truth.
Dr LOCAL: I do.
THE COURT: All right. Go ahead.
Q. Dr. LOCAL , what kind of doctor are you?
A. I'm a forensic psychologist.
Q. And can you tell us briefly what your educational history is. I am referring to schooling.
A. Yes. I received a bachelors degree, California State University of Los Angeles.
Q. In what?
A. In psychology and sociology. It was in 1969. In 1971 I earned a masters degree in social work from theUniversityofCaliforniaatBerkeley, and in 1987 I earned my doctorate degree in psychology from theUniversityofSan Francisco.
Q. Can you give us a brief overview of your work history, please.
A. Primarily I devoted my entire career to a variety of services for children and families.
Q. Are you in private practice at this time?
Q. Before going into private practice, did you work for some organizations?
Q. And can you tell us what those were.
A. Let's see, I worked for Santa Clara County Department of Mental Health. I worked for Marin County Community Mental Health Child and Adolescent Outpatient Services. Actually, I've been in private practice all along, and I worked for county agencies part time.
Q. Okay. Were you ever a court evaluator?
A. Yes. I have been appointed as a court evaluator for conducting custody evaluations for performing special master work.
Q. As part of that work, are you involved in doing evaluations in custody cases where allegations of abuse have been made?
Q. How many years have you been working in the mental health field?
A. Since like my masters degree inBerkeleyin 1971, so my first license was in 1973, so over 30 years.
Q. Have you done control research?
A. I have conducted research yes, control groups.
Q. So do you understand the principles of scientific research?
Q. Have you worked for the national center for missing and exploited children?
Q. What kind of work do you do for them?
A. I get called in by them to conduct interventions with recovered, abducted children, and called to do the family reunification intervention when these kids are picked up.
Q. Are you on the board of commissioners for the oral examination for psychology in the state ofCalifornia?
A. Yes, I was until they stopped the oral boards for licensure.
Q. Now, have you developed an area in the field of forensic, working in forensic cases.
Q. And in that field, have you dealt with the issues of child abuse?
Q. How many years have you worked in that field?
A. I have been involved in working child abuse really my entire career.
Q. Is the Child Sexual Abuse Accommodation Syndrome a subset within the field of child abuse?
A. Yes, well, it's a category of terms of the knowledge base and the science having to do with child sex abuse.
Q. So people who are knowledge – if you wanted to talk to people who know about Child Sexual Abuse Accommodation Syndrome, you would talk to people who are in the field of child sexual abuse?
Q. Have you worked you entire career in the area of child sexual abuse?
Q. Now, when did you first learn or where were you when you first encountered the Child Sexual Abuse Accommodation Syndrome?
A. I was working for Marin County Community Mental Health Child and Adolescent
Outpatient Services in the early '80's.
Q. Have you followed the literature of having to do with the critiquing of Child Sexual Abuse Accommodation Syndrome?
A. Yes, I have.
Q. Have you read any of the empirical research having to do with Child Sexual Abuse Accommodation Syndrome?
A. Yes, I have.
Q. Have you testified before concerning the Child Sexual Abuse Accommodation Syndrome?
MR. CLANCY: Now, I would move that he be accepted as an expert in Child Sexual Abuse Accommodation Syndrome, Your Honor.
THE COURT: He is accepted as an expert in Child Sexual Abuse Accommodation Syndrome.
MR. CLANCY: Thank you.
BY MR. CLANCY:
Q. What is your opinion about the Child Sexual Abuse Accommodation Syndrome?
A. Well, that it's a dangerous theory because it is a powerful suggestibility process. It uses a confirmatory bias model.
Q. Can you explain what a confirmatory bias model is.
A. Yes. Confirmatory bias is the hallmark behavior of interviewer bias and it's a basically; a one sided model. It's is based on one sided assumptions.
Q. Has the Child Sexual Abuse Accommodation Syndrome been rejected by the scientific community?
A. Yes, it has.
Q. Who within the scientific community has rejected it?
A. It's been rejected by the American Psychiatric Association, the American Psychological Association, the American Psychological Society, a host of 40 or 50 prominent researchers in the field, Conte, Berliner, Cece, Bruck, Poole, Lamb, and many more.
Q. Are these some of the top researchers in the field of psychology in the nation?
A. Yes, they are.
Q. Has some research come out even just recently from Stephen Cece?
A. Yes. Dr. CeCe atCornellUniversityjust published a piece of research looking at the Accommodation Syndrome assumptions.
Q. Now, who is Steven CeCe?
A. Steven Cece is the head of the psychology department at Cornell. He's internationally renowned for his expertise work and his research in the field of suggestibility and memory and child abuse.
Q. Does the Child Sexual Abuse Accommodation Syndrome teach one set of definitions to be applied to a number of symptoms or events?
A. Yes, it does.
Q. Is there any danger in teaching one set of definitions when there's more than one set of definitions?
Q. Have you come up with a bit of a humorous example of the danger of only knowing one definition?
A. Yes. I have an example.
Q. Can you please give it to us.
A. Sure. If we have two college students sitting across from one another at the library, one is a girl and the other is a boy, the girl is from England, the boy is an American, and the girl asks the boy for a rubber and the college boy starts to get excited and is about to get himself in a whole lot of trouble because he doesn't realize that in England a rubber is an eraser.
Q. So you can get in trouble if you only know one definition to a word that has more than one definition.
Q. Have you developed a set of charts that demonstrate that the Child Sexual Abuse Accommodation Syndrome is a confirmatory bias model?
Q. Now, are these charts that you developed to explain what a confirmatory bias model is?
Q. Showing you the first chart, can you explain what that chart represents.
A. Well, it's an assumption that children are told to keep secret children that have been molested, and that the secrets have some significance as an indicator of abuse.
Q. Okay. Is this representing Roland Summit's theory of this first element of secrecy?
Q. And is the arrow pointed over molestation the representation of one point of view or one side?
A. Yes, the assumptions having to do with molestation.
Q. Now, the title is changed to Forensic Factors. What does the word forensic mean?
A. Forensic refers to the legal arena and it refers to a scientific framework methodology, you know, investigating using hypotheses testing, looking for alternative explanations.
Q. Okay. In forensic work, are there alternative hypothesis such as a molestation did occur and another hypostesis that a molestation did not occur?
A. Yes. That is correct.
Q. Is this what representation of the arrow pointing to the left is referring to?
Q. The alternative hypothesis?
A. It's referring to the alternative examples and considerations.
Q. Have you listened to some ideas about different things that could point to the other side of the equation?
Q. Can you pick out a couple of them and explain what you mean.
A. Well, if it's a false allegation if it didn't happen, then it's not secrecy. The idea of secrecy is a time level between an event and a report of an event.
Q. How about number four?
A. Number four, the idea of secrecy, children can get exposed to this idea of secrecy and suggestive by this interview.
Q. Is this a complete list or are these just a few?
A. No, those are just a few.
Q. Now, helplessness, is this a representation, graphic representation
Q. Of Roland Summit's theory of helplessness?
Q. And on the notations to the right pointing in the direction of molestation, are there some of the ideas that he put forward in the Child Sexual Abuse Accommodation Syndrome?
Q. Can you briefly go over what those are.
A. The assumption is that in respect to molestation, the children are helpless or that because children are helpless they're more vulnerable to molestation and to being manipulated. Summit's assumption is that children can't resist adult sexual advances. It's considered a myth now, but one idea was that children think that adults will not believe them, and the position of Dr. Summit in the accommodation model is to teach other professionals to advocate for children or to help make others believe, believe the child.
Q. Is this more of a forensic model or scientific model?
Q. Can you explain what's on the left-hand side or pick a couple.
A. Well, an alternative assumption is helplessness is common in all children, that just because a child is helpless doesn't mean that they were abused and that children have an expectation of assistance from authority.
Q: Is this a forensic model?
A: Yes. A forensic model is designed to find the truth without a bias, to use multiple evaluation techniques.
Q. Well, let's go on to the next chart.
Q. Okay. Let's go to the next chart, entrapment. Does this at all represent the theories of Roland Summit on entrapment?
A. Yes. It's the assumption that children accommodate abuse due to the power imbalance between children and adults.
Q. And does that show a one-sided view or confirmatory bias model?
A. Yes. And the problem with the assumption is it's not something that you can observe or can be measured.
Q. Looking at a forensic model or balanced model, does this represent a balanced model?
Q. Can you – you don't have to go over all of them, just pick one or two out on the other side for demonstration purposes.
A. That children tend to accommodate an interviewers bias. In an interview by anybody, parents, teacher, children will accommodate a bias and that interviewer bias will have a powerful effect on children's statements. Children naturally seek to preserve relationships, children want to please adults, children are sensitive to the agenda of an interviewer.
Q. Okay. Is this a visual depiction of the Child Sexual Abuse Accommodation Syndrome element referred to as delayed and conflict and unconvincing?
A. Yes. These are – so these are reasons for or ideas or assumptions about why say that the report of a child might be delayed. Accommodation Syndrome thinks that delay is caused by a child or children being embarrassed to tell, that children do not report abuse to preserve and protect the family unit. That denial, denial is caused by a child's inner reluctance to tell. The assumption here is also that all allegations are true so there are delayed reports, conflicted, unconvincing, inconsistent reports that those all indicate abuse occurred.
Q. Is this a forensic model?
Q. Can you pick a couple of them out and explain.
A. Sure. An alternative explanation, there will always be an appearance of a delay in a false allegation case. Otherwise the child would have to say he was being molested right at that moment. One of the reasons for a denial in a false allegation case is just that. It is false.
Q. Can an incredible non believable allegation be because they're not real?
A. Because they're not real, yes. If it's not credible it might not be real. That would appear to be the most logical explanation.
Q. The last element, retraction. Is this a visual representation of Roland Summit's theories on retraction?
A. Yes. His idea is that all children's reports are true, and that children do not lie, and that if children retract that, that the retraction is an indication of abuse.
Q. Do they advocate preventing retraction?
A. Yes, they advocate preventing retraction, they advocate isolating children from people who may not believe that abuse occurred.
Q. Is this a forensic model of the same factor?
Q. What is the first one?
A. The retraction – an alternative explanation for retraction is that a retraction could be true. There may never have been a molestation. Adults should listen to and evaluate retractions. Basically adults should be looking for the truth and considering all alternative explanations.
Q. Let me ask, between all five of these boards that are up here, a forensic model doesn't tell you to ignore what Roland Summit has said, does it?
A. Absolute not, no. However, you need to have a balance unbias method of looking at these factors which Dr. Summit failed to do in his article.
Q. Thank you. I've got just a few more questions. Does theAmericanAcademyof Child and Adolescent Psychology come out with a policy statement concerning whether to use a confirmatory bias as a forensic model?
A. Yes. They came out with a policy statement suggesting that it is important to always consider the possibility of false allegations. They stated that multiple evaluations techniques should be used and not to rely just on the child's account.
Q. Has the California State Department of Social Services, the people in charge of protecting children, come out with a policy statement on whether to use a forensic or confirmatory bias?
A. Yes, they do state that it's very important to always consider the possibility of a false allegations, that they found that false allegations occur among children and adolescents who make very, very convincing reports out of boredom to gain attention, vindictiveness to cover up their own sexual acting out, and these also occur in the context at a higher rate than the general population in the context of looking at divorce in families.
Q. Now, does Child Sexual Abuse Accommodation Syndrome violate the scientific standards of specificity and sensitivity?
Q. Can you explain what that means?
A. Yes. Diagnostic sensitivity and diagnostic specificity are basic standards of science that need to be met. Sensitivity means that the method detects all or most acts of acts molestation. Diagnostic specificity refers to the same assessment, the same instrument to be able to accurately characterize those children that have not been abused – as not having been abused.
Q. Let me ask you this, one that is sensitivity, is it the more sensitive tests the more likely it is that they won't miss anyone?
A. Yes. The highly sensitive test diagnosis everyone with the disorder.
Q. Okay. What percentage of the children in theUnited Statesusing the sensitivity of Child Sexual Abuse Accommodation Syndrome behaviors are consistent with having been molested?
A. All children in the world would be found to have been molested using the Child Sexual Abuse Accommodation Model. It has no ability to detect those that have not been molested. That is what is referred to as Specificity.
Q. Did Roland Summit come out with a second article about the misuse of Child Sexual Abuse Accommodation Syndrome?
A. Yes, he did. In 1992 he published an article. He didn't intend for it to be used forensically. He meant for it to be used only clinically.
Q. Are there any empirical studies supporting Child Sexual Abuse Accommodation Syndrome?
A. No, there are none.
Q. Are there empirical studies which have studied the dangers of Child Abuse Accommodation Syndrome?
A. Yes, there have.
Q. Do you understand that at the end of the trial, the judge will read a jury instruction that tells the jurors that they are not to use Child Sexual Abuse Accommodation Syndrome for purposes of determining whether molest occurred or did not occur?
A. Yes, I understand.
Q. Have there been studies what effect this information has on a fact finding body even if they have been warned not to use the information to determine if a molestation occurred?
A. Yes, there's a piece of research.
Q. What is that research?
A. The authors are Covera, Penrod, Vordeta and Levy, and the research involved using this Accommodation Syndrome testimony on research subjects and measuring the effects. The effects were that the subject became more inaccurately – well, they made the wrong decisions because of exposure to this confirmatory bias model. In other words their accuracy rate for determining the truth went down rather than up.
Q. Were the subjects told not to use it in making their determination of whether the molest occurred or not occurred and did they use it anyway?
A. Yes, that's correct.
Q. Is that the problem with teaching one definition to a symptom or a event
Q. Is the Child Sexual Abuse Accommodation Syndrome an advocacy model?
A. Yes. It's – yes, it's considered an advocacy model.
Q. I am not going to go through each because the jury has already been shown them. But did you prepare a set of charts which gave quotes directly from the Child Sexual Abuse Accommodation Syndrome to demonstrate that it was an advocacy model?
Q. What is the first recorded case in which a confirmatory bias model was used?
A. Well, the first case in the history of American juris prudence was the Salem Witch trials which children testified.
Q. In that model, were all the symptoms that anyone exhibited found to be symptoms of a witch?
Q. Were there any symptoms found not to be symptoms of a witch?
A. I don't believe so.
Q. Was the Child Sexual Abuse Accommodation Syndrome the model used in the McMartin case?
A. Yes, it was.
Q. And did Roland Summit train the individuals who did the interviews and the investigation in the McMartin case?
A. Yes, he trained them and he was also involved in that case.
THE COURT: Why don't you explain what the McMartin case was.
THE WITNESS: The McMartin case was a preschool – a preschool case. It's a situation where a mentally disturbed mother of a two and a half year old child claimed that her child had been molested. In the process of the investigation of this one child, the district attorney's office informed the police department that they really needed to have more evidence. So letters went out to more than 200 parents or families saying that a molestation event may have occurred at the McMartin preschool and your child may have been molested. They named some of the possible kind of molest events. And pretty soon in a short period of time 360 children came forward to claim that they had been molested. It turned out to be a hysteria. None of the allegations were ever shown to be true.
Q. Did Keith McFarland do the interviews of those children?
Q. Was Keith McFarland a student of Roland Summit, the author of the Child Sexual Abuse Accommodation Syndrome?
Q. Does the empirical research shown that being exposed to the Child Sexual Abuse Accommodation Syndrome decreases the trainees ability to make reliable evaluations?
A. Yes, because it's a disclosure based model.
MR. CLANCY: Okay. I have no further questions. Thank you.
Scene 7 Comments Handling Prosecution Rebuttal Blue Background
This training seminar is trying to handle a very complex presentation. We would like to have a skit on how the prosecution would cross examine the expert for the defense but there is not enough time. Instead we will summarize the various attacks.
We have now successfully won the war on the scientific battle. The prosecution cannot prove that Child Sexual Abuse Accommodation Syndrome is not a confirmatory bias model. They will not even try. They will resort to the same line of questioning as before.
So Dr. you agree that children who have been molested will retract their statements.
So Dr. you agree that children who have been molested will delay reporting.
So Dr. you agree that children who have been molested will have inconsistent statements.
Your expert's response will also be…. Yes, that happens in both true and false allegations of child molestation.
Since that form of attack does not work they will resort to the standards:
Isn't it true that you usually testify for the defense?
Isn't it true doctor that you are being paid?
Isn't it true Dr. that unlike Dr. Urquza you haven't been published by APSAC?
Isn't it true doctor that you haven't treated as many children for molestation as Dr. Uquaza.
Isn't it true that you previously testified to ….. (followed by a quote taken out of context.)
Isn't it true that ….etc, etc.
These are the standard rebuttal questions. Just give them the standard answers.
The final hiding place for those whose position is "scientifically bankrupt" is the "slime" attack on your expert.
Isn't it true Dr. that Hustler magazine wrote an article about you?
Isn't it true that you were not qualified to testify one time? (1 out of 200 times with a former DA as the judge.)
Isn't it true that a porno newspaper called you the expert for the defense?
Isn't it true that you were the expert witness for Ted Bundy? Hitler? Atilla the Hun?
Isn't it true that 25 years ago your spouse called 911 on you? (More time was spent investigating my expert than was spent investigation the case.)
Isn't it true that you teach defense attorney how to get child molesters off?
Isn't it true that you are not a child advocate?
Isn't it true that … etc.
When you are scientifically bankrupt, this is where the DA's go every time.
The California DA's Association keeps files on defense experts witnesses. If you expert has testified in the past, he or she will know what type of slime questions they will be asked. Make sure to debrief your expert on earlier slime attacks so that you can be ready. Make appropriate motions in limine and defuse any remaining slime issues by addressing those issues with your expert witness in front of the jury first.
My last thought on this issue is whether to "counter slime" the prosecution expert. I have been sorely tempted in the past but I think that the better method is to take them on in a scientific manner. What do they say? If you wrestle in the mud, your going to get muddy?
Scene 8 Commentary – Explain What Was Accomplished – Blue Background
Well, now that you have seen our visual method, what do you think?
Here is what we were trying to accomplish.
First and foremost we want the juror's to understand that Child Sexual Abuse Accommodation Syndrome is a "confirmatory bias model" and "Junk Science". We want them to see that it is an "all roads lead toRome" model. Not only does it not help in the search for the truth, it gets in the way of determining the truth.
We want them to see Child Sexual Abuse Accommodation Syndrome is a dangerous and designed to mislead juries.
We have accomplished that. Now let's hit them over the head with it. During closing argument you might say to the jury:
"If you had a son, a brother, a father, a husband, or a loved one that was falsely accused of child molestation, would you want someone trained in Child Sexual Abuse Accommodation Syndrome conducting the investigation or would you want someone that is trained as an evaluator." You must emphasize that their job is to search for the truth. They are not advocates.
Now that the jury clearly understands what a confirmatory bias model is and why it is dangerous, you need during closing argument to expand on that understanding and show that the prosecutions entire case was built on a confirmatory bias model.
What else in the case was done on a confirmatory bias model.
Start with the CPS interview of the child. They were not concerned with asking questions that would expose that the allegations were false. They just kept asking for more and more incidents of molestation. Did he do anything else? How many time? How many weeks? Where did he touch? Any where else?
Next look at whether the police interview was a confirmatory bias interview. The jury has now seen where a confirmatory bias model is dangerous. It is not a search for the truth.
Next you can look at the medical testimony and the use of the "unscientific term" – "consistent with".
Each stage of the prosecutions case must be examined to see if it was truly a "confirmatory bias" model. If it was, the jury now know the danger of such a model. Use the term "one sided" interchangeablely with 'confirmatory bias model". Juror don't like to have been tricked or manipulated. You might want to point out how they all picked up their pencils and took notes when they heard the term "child sexual abuse accommodation syndrome." You might want to point out how they were being manipulated and mis-informed.
I would close out this area of your closing with the following type of statement:
"If you had a son, a brother, a father, a husband, or a loved one that was falsely accused of child molestation, would you want someone trained in Child Sexual Abuse Accommodation Syndrome conducting the investigation or would you want someone that is trained as an evaluator." You must emphasize that their job is to search for the truth. They are not advocates.
Scene 9 Ending – More Resources
We have developed more resources to assist you in defending against junk science and false allegations of sexual molestation.
In the area of Junk Science I recommend that you look at the resources on my web site at www.pshchlaw.net.
Earlier we said we would show you where you can get our motions on excluding the junk science claims that only a small percentage of allegations of sexual molestation are false. We have a short clip to show you were to get this motion and other motions concerning cases involving child molestation allegations.
If you log on and have problems, please don't call us. Send an email to the tech support listed on the page.
Now, lets take a moment and show you a resource that we have developed to share transcript of prosecution experts in cases involving allegations of molestation. If you want a copy of the transcript of Dr Urqeza that we used for this skit, this is how you can get it.
Mr. Clancy and I hope that this presentation will assist you in counter the junk science of Child Sexual Abuse Accomodation Syndrome. This is the fourth seminar in our series of six seminars on Defending Against False Allegations of Sexual Molestation. Now to attack the junk science of the percentage of allegations that are false is not part of our original six part series. Maybe when we are done with the original six we will do one on that issue. If we do, you will be able to find it on our web site where all six seminars are available.
Seminar 4 Syndrome Evidence and Junk Science :Seminar 4 video Seminar 4 Syndrome Evidence and Junk Science Attacking Child Sexual Abuse Accommodation Syndrome Evidence In this seminar we are going to talk about Junk Science. What is junk science? Well everybody has a different idea, but the hallmarks of junk science are two things, causism and hyper-claiming. What is causism, c-a-u-s-i-sm, causism is inferring a cause when no causal relationship actually exists. For exa