ARNV703-CP30-13 ARI 20 February 2007 19:5

ARNV703-CP30-13 ARI 20 February 2007 19:5

Unwarranted Assumptions about Children’s Testimonial Accuracy Stephen J. Ceci,1 Sarah Kulkofsky,1

J. Zoe Klemfuss,1 Charlotte D. Sweeney,1

and Maggie Bruck2 1Department of Human Development, Cornell University, Ithaca, New York 14853; email: sjc9@cornell.edu 2Department of Psychiatry & Behavioral Sciences, Johns Hopkins University, Baltimore, Maryland 21287

Annu. Rev. Clin. Psychol. 2007. 3:311–28

First published online as a Review in Advance on January 2, 2007

The Annual Review of Clinical Psychology is online at http://clinpsy.annualreviews.org

This article’s doi: 10.1146/annurev.clinpsy.3.022806.091354

Copyright c© 2007 by Annual Reviews. All rights reserved

1548-5943/07/0427-0311$20.00

Key Words

suggestibility, open-ended questions, false reports

Abstract We examine eight unwarranted assumptions made by expert wit- nesses, forensic interviewers, and legal scholars about the reliability of children’s eyewitness reports. The first four assumptions mod- ify some central beliefs about the nature of suggestive interviews, age-related differences in resistance to suggestion, and thresholds necessary to produce tainted reports. The fifth unwarranted assump- tion involves the influence of both individual and interviewer factors in determining children’s suggestibility. The sixth unwarranted as- sumption concerns the claim that suggested reports are detectable. The seventh unwarranted assumption concerns new findings about how children deny, disclose, and/or recant their abuse. Finally, we examine unwarranted statements about the value of science to the forensic arena. It is important not only for researchers but also expert witnesses and court-appointed psychologists to be aware of these un- warranted assumptions.

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Contents

INTRODUCTION. . . . . . . . . . . . . . . . . 312 Unwarranted Assumption 1:

Suggestive Interviews Can Be Indexed by the Sheer Number of Leading Questions . . . . . . . . . . 313

Unwarranted Assumption 2: Suggestibility Is Primarily a Problem for Younger Age Groups . . . . . . . . . . . . . . . . . . . . . . . 314

Unwarranted Assumption 3: Multiple Suggestive Interviews Are Needed to Taint a Report; Milder Forms of Suggestion Do Not Produce Tainted Reports . . . . . . . . . . . . . . . 316

Unwarranted Assumption 4: Children’s Spontaneous Reports Are Always Accurate . . . . . . . . . . . 317

Unwarranted Assumption 5: Erroneous Suggestions Ineluctably Lead to Erroneous Reports by Children . . . . . . . . . . . 318

Unwarranted Assumption 6: False Reports Produced by Suggestive Interviewing Are Distinguishable from Accurate Reports . . . . . . . . . . . . . . . . . . . . . . . 320

Unwarranted Assumption 7: Children’s Disclosures of Traumatic Events Are Delayed, Denied, and Often Recanted . . . 322

Unwarranted Assumption 8: Laboratory Research Is Not an Accurate Reflection of Child Witnesses’ Experiences in the Real World . . . . . . . . . . . . . 323

CONCLUSION . . . . . . . . . . . . . . . . . . . . 324

INTRODUCTION

In recent years, an increasing number of chil- dren have entered the legal system to pro- vide testimony in a broad range of cases. In the United States alone, hundreds of thou-

sands of children are deposed, interviewed, and examined each year as part of civil and family court proceedings, abuse/neglect in- vestigations, and other types of criminal in- vestigations. Before the early 1980s, children rarely were permitted to testify in criminal cases1 (see Ceci & Bruck 1993, p. 408). Now, however, it is so common that most English- speaking nations have developed special inter- viewing procedures and techniques to mini- mize children’s discomfort (e.g., video links that allow them to testify remotely, barri- ers between them and the defendant) and in- crease the reliability of their statements (e.g., Home Off. Dept. Health 1992, Natl. Soc. Prev. Cruel. Child. Childline 1993, Smith & Goretsky-Elstein 1993).

Given the recent ubiquity of children’s par- ticipation in forensic matters, it is not surpris- ing that beginning in the 1980s researchers turned their attention to the sensitive issues that arise when children enter the legal arena. This research has made significant contribu- tions to the theoretical and applied science of child development. It has provided new and often surprising insights into the capa- bilities and weaknesses of children’s cognitive, linguistic, social, and emotional development. This research also has dispelled myths or com- mon beliefs about aspects of child develop- ment both in and out of the forensic arena. In this review, we first outline how some of the current research has challenged miscon- ceptions about the reliability and credibility of children’s statements. Given that many of the issues concerning children in the court- room revolve around cases of suspected sex- ual abuse, it is not surprising that having the science accepted in the courtroom has been

1An anecdote from the John Grisham novel The Last Ju- ror underscores the scientific research. It concerns a cross- examination of a newspaper publisher set in Mississippi in 1970: Attorney: Mr. Traynor, how many cases did you find where children aged five or younger were allowed to testify in a criminal trial? Newspaper Publisher Traynor: None. Attorney: Perfect answer, Mr. Traynor. None. In the his- tory of this state, no child under the age of eleven has ever testified in a criminal trial.

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a difficult process. To illustrate this point, we end the article with a misconception of the usefulness of the science to the forensic arena and show how scientists attempt to deal with efforts to keep the current science out of the courtroom.2

Unwarranted Assumption 1: Suggestive Interviews Can Be Indexed by the Sheer Number of Leading Questions

The suggestiveness (and thus the risk of elic- iting false information) of an interview is not adequately reflected by the number of lead- ing questions. Rather, one must consider how the concept of interview bias plays out in the current interview, as well as in all pre- vious interviews. Interview bias characterizes those interviewers who hold a priori beliefs about what has occurred and mold the inter- view to maximize disclosures that are consis- tent with such beliefs. The means by which the bias is communicated to the child goes well beyond the use of misleading questions; other suggestive techniques include provid- ing positive and negative reinforcement (e.g., praising the child for disclosing information consistent with the interviewer’s beliefs, crit- icizing the child or withholding benefits such as trips to the restroom for not disclosing), utilizing peer or parental pressure (e.g., telling the child that his or her friends or parents have already disclosed), creating a negative or ac- cusatory emotional tone (e.g., urging the child to help keep the defendant in jail), and re- peating questions or interviews until the child provides a desired answer.

The following testimony of an expert in a trial illustrates this point. She testified that her questioning was not suggestive because technically speaking she did not ask sugges- tive questions. But as seen from her testimony,

2In preparing this review, we drew upon several examples from a recent article of ours (Bruck & Ceci 2004), but have gone considerably beyond it.

her approach is characteristic of interviewer bias:

I usually say, “Mama talked about that some- body did some bad touching.” And that’s still pretty open ended. I’m not saying who and I’m not saying exactly what. I’m just introducing the subject. Or I will say, “I see many children, and children come and tell me when bad things happen to them, and I’ve heard other kids tell me when bad things happen. So it’s okay if you want to tell me.” (In the Matter of Riley, Shelby, and Austin Blanchard v. John Blanchard 2001, p. 876)

A number of studies have demonstrated the negative effects of interviewer bias (see Ceci & Bruck 1995 for a review). In one type of study examining interviewer bias, children witness a staged event and are then inter- viewed by an individual who is given misinfor- mation about what has occurred. The inter- viewer is allowed to interview the child in any way he or she deems appropriate; that is, the interviewer is simply told to find out what hap- pened. These studies have found that children who are interviewed by an individual who has been misinformed (or who has a bias) about what has occurred begin to report this misin- formation themselves (e.g., Bruck et al. 1999, White et al. 1997). For example, if the inter- viewer has been misinformed that the child had her knee licked by another child, she ends up getting the child to assent to this false claim (White et al. 1997).

Another set of studies has examined the ef- fects of combining multiple suggestive tech- niques in eliciting false reports from children. These studies demonstrate that misleading questions asked by a neutral interviewer do not have the same effect as multiple sug- gestive techniques, implying that misleading questions alone are not sufficient to expose an interviewer’s bias. For example, Garven and her colleagues (1998, 2000) examined how the techniques used by investigators in the infamous McMartin Preschool case (State of Calif. v. Buckey 1990) can taint children’s

www.annualreviews.org • Unwarranted Assumptions 313

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testimony beyond the damage that mislead- ing information alone can cause. In one study (Garven et al. 2000), the researchers asked kindergarten children to recall details from when a visitor named Paco came to their class- room and read a story, gave out treats, and wore a funny hat. Half the children were given interviews that included misleading questions about plausible events (e.g., Did Paco break a toy?) and about bizarre events (e.g., Did Paco take you to a farm in a helicopter?). Be- tween 5%–13% of the children falsely agreed with the misleading questions. A second group of children was also questioned, but these children were given feedback after their an- swers to the misleading questions. “No” re- sponses were negatively evaluated, whereas “yes” responses were positively evaluated. For example,

Interviewer: Did Paco take you somewhere in a helicopter? Child: No. Interviewer: You’re not doing good. Interviewer: Did Paco break a toy? Child: Yes. Interviewer: Great, you’re doing excellent now.

This latter group of children provided the desired but false answer to 35% of the plausi- ble questions and to 52% of the bizarre ques- tions. This study demonstrates that a simple count of misleading/leading questions would not reflect the suggestiveness of the interview. It was the added use of selective reinforcement that provided the child with sufficient infor- mation about the interviewer’s bias—to make “yes” responses for all statements regardless of their plausibility. In a follow-up interview two weeks later, when children were simply asked nonleading questions with no selective reinforcement feedback, the same level of be- tween group differences was obtained. Thus, interviewer bias in a prior interview can pro- duce false reports in a later unbiased/neutral interview. This is an important point to bear in mind when analyzing transcripts of an in- terview: Just because that particular interview

may be neutral, prior interviews may have been suggestive, seeding false claims made in the neutral interview. The bottom line is that the number of leading or suggestive questions deployed in an interview is neither a good in- dex of how suggestive it is, nor a good index of whether prior (nonrecorded) interviews that were more suggestive are responsible for false claims by the child.

Unwarranted Assumption 2: Suggestibility Is Primarily a Problem for Younger Age Groups

The erroneous view that preschool children are the only population vulnerable to sugges- tion can be found in many experts’ testimony. Consider the following example: “Well, in vir- tually all these studies, two and three-year olds do not do well in suggestibility, and the four and five-year olds. . . [d]o pretty well” (ex- pert testimony by prosecution witness In the Matter of Riley, Shelby, and Austin Blanchard v. John Blanchard 2001). “It’s true that the sorts of questioning that were asked of the children are not supported by basic research into sug- gestibility, but these children were all over the age of 6, the cut-off for suggestibility- proneness in scientific studies” (transcript, p. 1441).

This view that only the youngest children are vulnerable to suggestive questioning re- flects the disproportionate attention to the study of preschool children at the end of the twentieth century. This practice was directly motivated by forensic concerns. During the 1980s and 1990s, there were a number of high-profile criminal cases in which preschool children’s horrific claims about sexual abuse by day-care workers, parents, and other unfa- miliar adults were presented to the jury (see descriptions of several of these cases in Ceci & Bruck 1995). Although the case facts showed that these children had been subjected to highly suggestive interviews, at that time there was no relevant body of scientific literature to indicate the risk of these interviewing tech- niques in producing false allegations about

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a range of salient events. When researchers began to fill in this empirical void, most of the studies focused on preschoolers, with few examining age-related differences. Those that did include age comparisons usually found ceiling effects for the older children, leading to the conclusion that only preschoolers are suggestible (e.g., Ceci et al. 1987) and that there is little need for concern when older children are subjected to suggestive interview- ing practices.

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