“Child witnesses are highly susceptible to suggestion and often undergo severely suggestive interviews.”
— (Dugas, State of New Jersey v. Michaels: The Due Process Implications in Interviewing Child Witnesses, 55 Lou.L.Rev. 1205, 1226 (1995))
We are all familiar, from “Law and Order” and other TV shows, with suspect “lineups.” This is where a witness — usually a victim — come in to look at several people, usually behind a one-way mirror, and select the one who “did it.” Why is it done this way? Because in order to help ensure that justice is done, the witness needs to decide who the “right man” is on his or her own, without any hints or suggestions. Prior to this becoming standard practice — i.e., when the police would only produce one person and insistently ask, “It was him, right?” — many wrongful convictions were the result. This is because the improper suggestion has now irrevocably contaminated the witness’s memory of what actually happened.
In the same way, if victims/witnesses are not interviewed properly, their memory of what really occurred can also be irreparably damaged. The degree to which people’s memories can thus be distorted is known as “suggestibility.” Though this can affect people of all ages, children are particularly susceptible to it. And the courts have acknowledged this:
“’[A] sufficient consensus exists within the academic, professional, and law enforcement communities … to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child’s recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.’ State v. Michaels, 136 N.J. 299, 642 A.D.2d 1372, 1379 (1994) … An emerging consensus in the case law relies upon scientific studies to conclude that suggestibility and improper interviewing techniques are serious issues with child witnesses …” (Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001))
Law review articles and legal treatises have come to similar conclusions: “An interviewer may introduce elements of fantasy, exaggeration, or distortion through the use of improperly leading questions.” (Myers, Evidence in Child Abuse and Neglect Cases 114 (1997)) “Because … children do modify their stories to fit adult perceptions, courts should pay particular attention to whether the abuse investigator had a preconceived notion of what happened to the child, and then sought the child’s confirmation.” (Younts, Evaluating and Admitting Expert Testimony in Child Sexual Abuse Prosecutions, 41 Duke Law Journal 691, 724 (1991))
This is precisely what happened in the Jeffrey Nickel case. Investigator Bates testified that he “recognized” the persons depicted in a pornographic photograph as Nickel and Arthur. Following this alleged recognition, Bates then showed the photo to Arthur, who then confirmed the former’s “preconceived notion.”
How were witness interviews conducted in the Jeffrey Nickel case? That is difficult to say, mainly because the police failed to record any of them, either on videotape or audiotape. And although there are notes for some of the interviews, they do not indicate what questions were asked, how many times a given question was asked, whether any answers changed, or the general circumstances surrounding the interviews.
It has been noted that “the interviewing process is also a learning process and can actually change what exists in the child’s memory. Once such a change takes place, it is virtually irreversible.” (Footnote 109: [Thomas L.] Feher, The Alleged Molestation Victim, the Rules of Evidence, and the Constitution: Should Children Really Be Seen and Not Heard?, 14 Am. J. Crim. L. 227 (1987), at 232-33)) Stephen J. Ceci, Ph.D., and Maggie Bruck, Ph.D., authors of Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, published by the American Psychological Association, write that:
“[C]hildren may be questioned by adults, who have great authority over them, about events that are neither essential nor salient to the child. In these circumstances, the child will attempt to compliantly revise his memory, making his report consistent with the question. ‘If the respected person who is questioning me expects such an answer then it must be the right one.’ (Lipmann, 1911, pg. 253) Thus, rather than simply answering ‘I do not know,’ the child accepts any material that comes to mind to fill these gaps, whether it is imaginary or real. That is, the child fails to differentiate fantasy from reality.” (at 57-58)
Ceci & Bruck also report that when children are asked the same question more than once, they often take this as an indication that their original answer was not “correct,” and thus change their answer. “The accuracy of a child’s report decreases when the child is interviewed in highly leading and suggestive ways by interviewers who are uninterested in testing alternative hypotheses; such interviews may tarnish the evidence to such a degree that markers of truth may be buried forever.” (Id., at 85) “[C]hildren’s inaccurate reports or allegations do not always reflect a confusion of events and details of an experience, but may at times reflect the creation of an entire experience in which the child did not participate.” (Id., at 133)
In the Jeffrey Nickel case, as can be seen from Arthur’s testimony, he does in fact answer questions according to what he perceives the questioner desires, and shows a marked difficulty in differentiating fantasy from reality.
“Maximally leading techniques engender in the mind of the child a specific image, which has been referred to as seed planting (Gardner, 1992). A maximally leading technique significantly reduces the universe of possible responses a child might make and draws the child’s attention to the focus of the investigation. These techniques tell the child what the investigator wants to discuss and very often imply the desired response. For example, presenting the child with a picture containing a naked adult and child would be a maximally leading technique in a sexual abuse investigation because this technique is quite likely to focus the child’s attention upon the genitalia and interactions between a nude adult and child.” (Mapes, Child Eyewitness Testimony in Sexual Abuse Investigations, `1995, at 51. [Emphasis original.]) Again, this is exactly what happened in the Jeffrey Nickel case when Investigator Bates showed the sex photo to Arthur. The total lack even of any contemporaneous notes of that interview make it impossible to determine anything about the manner in which it was conducted.
It should be stressed that traditional trial strategies available to the defense, such as cross-examination, are of little or no use when the child’s memory has already been contaminated by the investigative process itself: “The effects of suggestive pre-trial identification procedures, as with suggestive or coercive interview practices, are exceedingly difficult to overcome at trial … Witnesses in both situations are quite likely to be absolutely convinced of the accuracy of their recollection. Thus their credibility, understood as their obvious truth-telling demeanor, is unlikely to betray any inconsistencies or falsehoods in their statements.” (Michaels, supra, at 319) Social scientists agree that “When a child has been taught a fabricated story, repeated it enough to produce subjective certainty, for that child a non-event has become reality. This is not a benign or innocuous experience. It may result in long-term damage to a child. This also means that the child will appear truthful, credible, and reliable because for the child it is a real story.” (Wakefield & Underwager, Interrogation of Children, Issues in Child Abuse Accusations, 1989, 1, 14)
“Repeated interviewing reinforces these altered perceptions. The repeated reinforcement of these ideas creates in the child a ‘subjective reality’ that an event did happen even if it never did. This enables the child to relate such experiences on the witness stand without ‘lying.’ She actually believes the event happened, and no conventional trial tactics [would] be able to show she is ‘lying,’ because she is not.” (Feher, supra, at 232. [Emphasis added.])
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