2. United States Constitution Amendments V, VI, and XIV. Federal and state case law have consistently upheld the principle that reliability is the linchpin of due process and that convictions built on unreliable evidence cannot stand. e. g., Maryland v. Craig, 497 U. S. 836, 110 S. Ct. 3157 (1990) ("the central concern of the Confrontation Clause is to ensure the reliability of the evidence against a defendant"); Manson v. Brathwaite, 432 U. S. 98; 97 S. Ct. 2243 (1977) ("standard is that of fairness as required by the Due Process Clause of the Fourteenth Amendment....."); California v. Green, 399 U. S. 149, 90 S. Ct. 1930, (1970) (due process may prevent conviction where reliable evidentiary base is lacking); Wray v. Johnson, 202 F. 3d 515 (2d Cir. 2000) (reliability of evidence is the primary determinant of admissibility); United States v. Maldonado-Rivera, 922 F. 2d 934 (2d Cir. 1990); People v. Blackman, 488 N. Y. S. 2d 395 (1st Dept. 1985) ("fairness...certainly requires that the proponents of the evidence meet threshold of at least minimum reliability").
3. Kentucky v. Stincer, 107 S. Ct. 2658, 2665 (1987), citing, Moore v. Commonwealth, 384 S. W. 2d 498, 500 (Ky. 1964).
4. 75A Am. Jur. 2d Trial § 742 (1991) ("it is the province of the court to determine as matter of law the competency of witness to testify...").
5. E. g., Manson v. Brathwaite, supra, ("[r]eliability is the linchpin in determining admissibility of identification"); Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375 (1972) ("likelihood of misidentification...violates defendant's right to due process)"; Foster v. California, 394 U. S. 440, 89 S. Ct. 1127 (1969); Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967 (1968); Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967 (1967) (identification procedure can be so suggestive as to deny due process); Wray v. Johnson, 202 F. 3d 515 (2d Cir. 2000) (use of identification produced through suggestion violated due process).
6. Rock v. Arkansas, 483 U. S. 44, 107 S. Ct. 2704 (1987); State v. Hurd, 432 A. 2d 86 (NJ 1981).
7. White v. Illinois, 502 U. S. 346, 112 S. Ct. 736 (1992); Idaho v. Wright 497 U. S. 805, 110 S. Ct. 3139 (1990); Ohio v. Roberts, 448 U. S. 56, 100 S. Ct. 2539 (1980).
8. Suggestive tactics employed in these experiments are often based on the tactics found in the record of investigative interviews in actual criminal cases. Hunt, J. S., & Borgida, E., Is that what I said? Witnesses' responses to interviewer modifications. Law and Human Behavior, 25 583-603 (2001); Garven, S., Wood, J. M., Malpass, R & Shaw, J. S. (1998). More than suggestion: Consequences of the interviewing techniques from the McMartin preschool case. Journal of Applied Psychology, 83 (3), 347-359.
9. Bruck, Ceci and Hembrooke, (this volume); Ceci, S. J., Crotteau-Huffman, M., Smith, E., & Loftus, E. W. (1994). Repeatedly thinking about non-events. Consciousness and Cognition, 3, 388-407.
10. See, e. g., Ceci & Bruck, The Suggestibility of the child witness: A historical review and synthesis. Psychological Bulletin, 113, 403-439 (1993), and Ceci, S. J. & Bruck, M., Jeopardy in the courtroom: A scientific analysis of children's testimony. American Psychological Association Press: Washington, DC. (1995); State v. Michaels, 642 A. 2d 1372 (N. J. 1994).
11. Poole, D. A., & Lindsay, D. S. (2001). Children's eyewitness reports after exposure to misinformation from parents. Journal of Experimental Psychology: Applied, 7, 27-50.
12. For discussion of "interviewer bias" see, e. g., Ceci, S. J., & Bruck, M., Jeopardy in the Courtroom, supra, pp. 87-105.
13. For discussions of the effects of interviewer status and the tendency of young children to confirm the expectations of adults, see, Ceci, S. J., Ross, D., & Toglia, M. (1987). Age differences in suggestibility: Psychological implications. Journal of Experimental Psychology: General, 117, 38-49; White, T. L., Leichtman, M. D., & Ceci, S. J. (1997). The good, the bad and the ugly: Accuracy, inaccuracy, and elaboration in preschoolers' reports about past event. Applied Cognitive Psychology, 11, 37-54; Thompson, W. C., Clarke-Stewart, K. A., & Lepore, S. (1997). What did the janitor do? Suggestive interviewing and the accuracy of children's accounts. Law & Human Behavior, 21, 405-426.
14. For a discussion of the effects of repeated questioning, see, e. g., Poole, D. A., & White, L. T. (1995). Tell me again and again: stability and change in the repeated testimonies of children and adults. In M. S. Zaragoza, J. R. Graham, G. C. N. Hall, R. Hirschman, & Y. S. Ben-Porath (Eds.), Memory and testimony in the child witness (pp. 24-43). Thousand Oaks, CA: Sage; Fivush, R., Peterson, C., & Schwarzmeuller, A. (2002). Questions and answers: the credibility of child witnesses in the context of specific questioning techniques. In M. L. Eisen, J. A. Quas, & G. S. Goodman (Eds.), Memory and suggestibility in the forensic interview (pp. 331-354). Mahwah, NJ: Lawrence Erlbaum.
15. For a discussion of the effects of techniques known to alter the emotional tone of an interview, see, e. g., Garven, S., Wood, J. M., Malpass, R. S., & Shaw, J. S. III. (1997). More than suggestion: The effect of interviewing techniques from the McMartin Preschool Case. Journal of Applied Psychology, 83, 347-359; Garven, S., Wood, J. M., & Malpass, R. S. (2000). Allegations of wrongdoing: The effects of reinforcement on children's mundane and fantastic claims. Journal of Applied Psychology, 85, 38-49; Ceci & Bruck, Jeopardy in the Courtroom,, supra, pp. 139-146.
16. Walker, N. E., & Lunning, S. M., & Eilts, J. L. (1996, June). Do children respond accurately to forced choice questions: Yes or no. Paper presented at the NATO Advanced Study Institute, Recollections of Trauma: Scientific Research and Clinical Practice. Port de Bourgenay, France; Brady, M. S., Poole, D. A., Warren, A. R., & Jones, H. R. (1999). Young children's responses to yes-no questions: Patterns and problems. Applied Developmental Science, 3, 47-57.
17. Roberts, K. P. (this volume). Children's ability to distinguish between memories from multiple sources: Implications for the quality and accuracy of eyewitness statements.
18. Bruck, M., Ceci, S. J., Francoeur, E., & Barr, R. J. (1995). "I hardly cried when I got my shot!": Influencing children's reports about a visit to their pediatrician. Child Development, 66, 193-208; Ceci, S. J., Loftus, E. F., Leichtman, M., & Bruck, M. (1994). The role of source misattributions in the creation of false beliefs among preschoolers. International Journal of Clinical and Experimental Hypnosis, 62, 304-320; Bruck, M., Ceci, S. J., & Hembrooke, (this volume).
19. For an example of stereotype induction, see Leichtman, M. D., & Ceci, S. J. (1995). The effects of stereotypes and suggestions on preschoolers reports. Developmental Psychology, 31, 568-578.
20. For discussion of the effects of peer pressure, see, e. g., Ceci & Bruck, Jeopardy in the Courtroom, supra, pp. 146-152; Principe, G. F., & Ceci, S. J. (submitted) "I Saw It With My Own Ears": The Influence of Peer Conversations and Suggestive Questions on Preschoolers' Event Memory.
21. Garvin, S., Wood, J. M., Malpass, R. S., & Shaw, J. S. (1998). More than suggestion: the effect of interviewing techniques for the McMartin Preschool case. Journal of Applied Psychology, 83, 347-359
22. Ackil, J. K., & Zaragoza, M. S. (1998). Memorial consequences of forced confabulation: Age differences in susceptibility to false memories. Developmental Psychology, 34, 1358-1372; Ackil, J. K., & Zaragoza, M. S. (1995). Developmental differences in eyewitness suggestibility and memory for source. Journal of Experimental Child Psychology, 60, 57-83; Manning, C. G., Loftus, E. F., & Sherman, S. J. (1996). Imagination inflation: Imagining childhood event inflates confidence that it occurred. Psychonomic Bulletin & Review, 3, 208-214.
23. These studies involve showing to professionals, who work with children, videotapes of children reporting on their staged experience after they have been subjected to either a suggestive or a neutral interview. The studies also show that the professionals are unable to distinguish the accurate from the inaccurate reports. Further, when asked to rate their confidence in their opinions as to whether the children's reports are accurate or result of suggestion, the professionals are most confident in their incorrect analysis, e. g., Bruck, Ceci, and Hembrook (2002) (this volume); Leichtman, M. D., & Ceci, S. J. (1995). The effects of stereotypes and suggestions on preschoolers' reports. Developmental Psychology, 31, 568- 578. Another line of study suggests that even well-trained professionals cannot accurately differentiate between true and false reports of sexual abuse (Realmuto, G., Jensen, J., & Wescoe, S. (1990) Specificity and sensitivity of sexually anatomically correct dolls in substantiating abuse: A pilot study. Journal of the American Academy of Adolescent Psychiatry, 29(5), 743-746); even when they are provided with extensive background information about the case (Horner, T. M., Guyer, M. J., & Kalter, N. M. (1993a). Clinical expertise and the assessment of child sexual abuse. Journal of the American Academy of Child and Adolescent Psychiatry, 32, 925-931; Horner, T. M., Guyer, M. J., & Kalter, N. M., The biases of child sexual abuse experts: Believing is seeing. Bulletin of the American Academy of Psychiatry and Law, 21, 281-292.
24. To be sure, there are studies showing that certain types of suggestive questions do not compromise children's reports. Goodman, G., & Aman, C. (1990). Children's use of anatomically detailed dolls to recount an event. Child Development, 61, 1859-1871; Goodman, G. S., Hirschman, J. E., Hepps, D., & Rudy, L. (1991a). Children's memory for stressful events. Merrill Palmer Quarterly, 37, 109-158; Rudy, L., & Goodman, G. S. (1991). Effects of participation on children's reports: Implications for children's testimony. Developmental Psychology, 27, 527-538; Pezdek, Kathy; Hodge, Danelle, (1999). Planting false childhood memories in children: The role of event plausibility. Child-Development, 70, 887-895. But these are not studies of interviewer-bias driven interviews in which various methods of questioning are used in pursuit of a subjective hypotheses. Rather, the methods shown not to be suggestive involve very neutral interviewing about disconnected subjects in which suggestions are not repeated or offered with incentives. Thus, these studies do not challenge the research literature that is the focus of this article. They are the study of an entirely different method of questioning children.
25. See e. g., Neilv. Biggers, 409 U. S. 188, 196 197, 93 S. Ct. 375, 93 S. Ct. 375, 380 (1972) (for a review of Supreme Court cases condemning suggestive identifications); Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967 (1967) (identification procedure can be so suggestive and conducive to irreparable mistaken identification as to deny due process of law); Wray v. Johnson, 202 F. 3d 515 (2d Cir. 2000) (identification produced through suggestion and used against defendant violated defendant's due process rights); Dickerson v. Fogg, 692 F. 2d 238 (2d Cir. 1982) (identification did not possess sufficient indicia of reliability to overcome suggestive pretrial identification); Solomon v. Smith, 645 F. 2d 1179 (2d Cir. 1981) (due process violated by admission of identification obtained through suggestive means).
26. Rock v. Arkansas, 483 U. S. 44, 57 59, 107 S. Ct. 2704, 2712 2713 (1987) (collecting cases).
27. e. g., Beck v. Norris, 801 F. 2d 242, 244 245 (6th Cir. 1986); and State v. Wren, 425 So. 2d 756 (La. 1983); and State v. Glebock, 616 S. W. 2d 897, 903 904 (Tenn. Crim. App. 1981), cited in Rock v. Arkansas, supra.
28. Idaho v. Wright, 497 U. S. 805, 110 S. Ct. 3139 (1990) (reversing conviction because of absence of specific guarantees of trustworthiness); White v. Illinois, 502 U. S. 346, 112 S. Ct. 736 (1992) (Sixth Amendment requires firmly established guarantees of trustworthiness); Lee v. Illinois, 476 U. S. 530, 106 S. Ct. 2056 (1986); Ohio v. Roberts, 448 U. S. 56, 100 S. Ct. 2539 (980); United States v. Deeb 13 F. 3d 1532 (11th Cir. 1995) (admission of hearsay is constitutionally impermissible absent indicia of reliability surrounding declaration); United States v. Acceturo, 966 F. 2d 631 (11th Cir. 1992) (only circumstances surrounding the declaration may be considered for particularized guarantees of trustworthiness).
30. See, Idaho v. Wright, supra; State v. Michaels, 642 A. 2d 1372, 1384 (N. J. 1994), People v. Michael M., 618 N. Y. S. 2d 316 (Sup. Ct. Kings Co. N. Y. 1994), and People v. Hughes, 466 N. Y. S. 2d 255 (1983) for discussion of similarities between suggestive identifications, coerced confessions, hypnotically refreshed testimony and suggestive interviews.
31. Ackil and Zaragoza (1998); Poole, D. A., & Lindsay, D. S. (2001). Children's eyewitness reports after exposure to misinformation from parents. Journal of Experimental Psychology: Applied, 7, 27-50; Poole, D. A., & Lindsay, D. S. (1995). Interviewing preschoolers: effects of nonsuggestive techniques, parental coaching, and leading questions on reports of nonexperienced events. Journal of Experimental Child Psychology, 60, 129-154. Garvin (2000).
32. State v. Wright, 116 Idaho, 382, 775 P. 2d 1224, 1228 (1989), aff' d. Idaho v. Wright, supra ("[o]nce this tainting of [a child's] memory has occurred, the problem is irredeemable. That memory is, from then on, as real to the child as any other").
33. Crane v. Kentucky, 476 U. S. 683, 688, 106 S. Ct. 214, 2145 (1986) (challenge to legal admissibility of evidence does not undercut defendants prerogative to challenge its credibility at trial), citing Jackson v. Denno, 378 U. S. 368 (1964).
34. See Bruck, M., Ceci, S. J., & Francoeur, E. (1999). The accuracy of mothers' memories of conversations with their preschool children. Journal of Experimental Psychology: Applied, 5, 89-106. Lamb, M., Orbach, Y., Sternberg, K., Hershkowitritz, I., & Horowitz, D. (2000). Accuracy of investigators verbatim notes of their forensic interviews with alleged child abuse victims. Law & Human Behavior, 24, 699-708; Warren, A. R. & Woodall, C. E. (1999). The reliability of hearsay testimony: How well do interviewers recall their interviews with children? Psychology, Public Policy and Law, 5, 355-371.
35. Note that these studies have also shown that interviewers' recall of the content of the interviews is inaccurate not only because they omit important facts -- like the use of suggestive tactics -- but because they insert statements into their recall that were never uttered. That is, the interviewer may add to a report of child's statements additional claims that comport with the interviewer's theory. e. g., Bruck, M., Ceci, S. J., & Francoeur, E. (1999). Thus, if courts are interested in historical accuracy, there is no substitute for an electronic recording that can verify the investigative methods used and the details of the interview that took place.
36. Bruck, M., Ceci, S. J., & Francoeur, E. (1999); Warren & Woodall (1999). The reliability of hearsay testimony: How well do interviewers recall their interviews with children? Psychology, Public Policy and Law, 5, 355-371; Warren & Woodall (1999).
37. e. g., Lamb, M., Orbach, Y., Sternberg, K., Hershkowitritz, I., & Horowitz, D. (2000). Accuracy of investigators verbatim notes of their forensic interviews with alleged child abuse victims. Law & Human Behavior, 24, 699 708; Warren, A. R. & Woodall, C. E. (1999). The reliability of hearsay testimony: How well do interviewers recall their interviews with children? Psychology, Public Policy and Law, 5, 355 371.
38. Court orders impounding or sealing transcripts prevent providing citations for the following examples which are taken from the records of cases litigated in several jurisdictions.
39. Obviously, if the only evidence against defendant is the suggestion-induced accusations, the instruction that the jury may not consider them would require that the charges be dismissed for lack of evidence.
40. Some commentators classify the assessment of proposed expert's qualifications as a competency determination. See, e. g., McCormick on Evidence, 4th Ed. Strong, J. W. (ed.). West Publishing (St. Paul) 1987 § 69. But, as explained above, the term competence in the legal setting refers to the personal characteristic of witness, i.e., the ability to perceive, recall, and recount and event and can appreciate the oath. Thus, it seems more helpful to consider whether a purported expert is indeed an expert as a reliability determination than to apply a second meaning for the term "competence" in this context.
41. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 585, 113 S. Ct. 2786, 2792 2793 (1993) ("in the 70 years since its formulation in the Frye case, the general acceptance test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. Although under increasing attack of late, the rule continues to be followed by majority of courts...).
42. The literal authority of the Daubert ruling applies only to federal cases. Nevertheless, in the years since the Daubert decision, an increasing number of states have adopted the standard articulated in that case rather than the Frye "general acceptance" criteria. Some courts in jurisdictions that have not officially adopted Daubert have begun to move away from "general acceptance" and toward a "reliability" based approach, e. g., Hoenig, M., Gatekeeping Experts: Supreme Court Speaks Again, NYLJ, 3/ 13/ 00, p. 3.
43. See, footnote 24, supra.
44. See Psychology, Public Policy and Law, vol 2, no. 1 pp. 312-314.
45. For discussion of the common arguments offered in opposition to the presentation of suggestibility research in the courtroom, see pp. 364-369, infra.
46. In addition to using this showing to gain admission of the expert testimony about the suggestibility research literature, ensuring that the court understands these scientific principles should assist in preventing the admission of the kinds of clinical observations and pseudoscientific opinions such as "behavioral indicators of abuse" or claims that a particular expert is capable of determining whether child's report is accurate -- despite suggestive questioning -- that prosecutors often try to inject into trials. If this type of evidence cannot survive the Daubert criteria for admission -- which it cannot -- it should not be admitted at trial.
47. Garvin, S., Wood, J. M., Malpass, R.S., & Shaw, J. S. (1998).
48. For cases holding that expert testimony concerning the use of improperly suggestive methods of interviewing children, see e.g., State v. Sloan, 912 S. W. 2d 592, 595 (Mo. App. E. D.1995) (expert testimony on suggestion is beyond the ken of the jury and admissible); State v. Floody, 481 N. W. 2d 242, 248 249 (S. D. 1992) (admission of expert testimony on investigative techniques held no error); State v. Malarney, 617 So. 2d 739, 740 (Fla. App. 4 Dist.1993) (reversible error to exclude defendant's expert psychological testimony regarding unreasonably suggestive interviewing techniques used with child witness). See also State v. Erickson, 454 N. W. 2d 624, 626 (Minn. App. 1990); and State v. Hadfield, 788 P. 2d 506, 508 (Utah 1990).
49. Courts in other jurisdictions have handed down rulings in accordance with Michaels. These include: In the Matter of the Application for Relief From Personal Restraint of Manuel Hidalgo Rodriguez (Unpublished Opinion), No. 17600-2-III, Washington, Court of Appeals, Division III (Dec. 9, 1999); In the Matter of the Dependency of A. E. P. and W. M. P., 956 P. 2d 297 (S. Ct. Wash. 1998) (holding that "defendant can argue memory taint" at a "competency hearing" and at hearsay admissibility hearing); State v. Carol M. D. and Mark A. D., 983 P. 2d 1165 (Wash. App. Div. 1999); Commonwealth v. Callahan, 9 Mass. L. Rptr. 228, 1998 Mass. Super. LEXIS 586 (Mass. Super. 1998) (conducting pretrial Michaels hearing and excluding portions of child-witness testimony which were tainted by suggestive questioning.
50. The Michaels decisions provide excellent guidance for attorneys and experts as they prepare presentation and argument on the suggestibility issue. It is important, however, that particularized presentation be made in each case indeed for each child in each case. Michaels is the result of proper concern and respect for well-settled constitutional principles. Those must be presented to each court considering the issue.
51. For a history of the Michaels case, see, Rosenthal, R., State of New Jersey v. Margaret Kelly Michaels: An Overview, Psychology, Public Policy and Law, (1995), Vol. 1, No. 2, 246-271.
52. New Jersey, like many states, has two levels of appellate court. The highest court is the Supreme Court. The Appellate Division is the first level. Trial verdicts are first appealed there.
53. State v. Michaels, 525 A. 2d 489, 510 (N. J. Super. A. D. 1993). Providing an example of the ease with which reliability is confused with competence, the New Jersey Appellate Division actually phrased the issue as: whether the interviewing of the children was so suggestive and coercive that they were rendered incompetent to testify.
54. State v. Michaels, 525 A. 2d at 511 515.
55. State v. Michaels, 525 A. 2d at 516 517.
56. State v. Michaels, 525 A. 2d at 517.
57. State v. Michaels, 642 A. 2d 1372, 1375 (N. J. 1994).
58. State v. Michaels, 642 A. 2d at 1375.
59. State v. Michaels, 642 A. 2d at 1375 1382.
60. The Michaels court recognized that the investigative methods sufficient to taint a child's statements would render the child's direct testimony as well as repetition of the child's out of court statements by hearsay witnesses at trial inadmissible. Michaels, 642 A. 2d at 1381 ("[w]e are equally concerned about the reliability of anticipated in-court testimony that may be derived from the out-of-court statements and antecedent interrogations. The considerations that are germane to the assessment of the reliability of in-court testimony parallel those that inform the determination of out-of-court statements").
61. Note that the Supreme Court in Michaels recognized that the issue is one of reliability.
62. State v. Michaels, 642 A. 2d at 1383.
63. State v. Michaels, 642 A. 2d at 1382.
64. Simmons v. United States 390 U. S. 377; 88 S. Ct. 967 (1968).
65. As in the case of hypnotically refreshed testimony, there remains an issue of whether suggestive interviewing conducted after the child's freely reported accusation might enhance the child's accusation, making the child appear more credible than would be the case absent the suggestion, or render the child impervious to cross examination. Rock v. Arkansas, 483 U. S. 60 (acknowledging memory hardening caused by hypnosis, which gives the subject great confidence in both true and false memories, making effective cross-examination more difficult).
66. State v. Michaels, 642 A. 2d at 1380 (internal citations omitted).
67. State v. Michaels, 642 A. 2d at 1383 1384.
68. Myers, J. E. B. (1995). New Era of Skepticism, Psychology Public Policy, and Law, 1 (2),387-398 (1995); Lyon, T. D., (1999) The New Wave in Children's Suggestibility Research: A Critique, 84 Cornell L. Rev. 1004, 1084.
69. See, e. g., Ceci, S., Bruck, M, & Rosenthal, R. (1995).
70. See, e. g., Michaels, supra (suggestive interviews have the potential to taint accusations rendering them unreliable and inadmissible) and Foster v. California, (suggestive identification procedures have the potential to taint eyewitness identification, rendering them unreliable and inadmissible).
71. Ornstein, Peter, A., Haden, Catherine, A. (2002). The development of memory: toward an understanding of children's testimony. In M. Eisen, & J. Quas (Eds.), Memory and suggestibility in the forensic interview (pp. 29-61). Mahwah, NJ: Lawrence Erlbaum.
72. For an example of this criticism of the application of the suggestibility research to the courtroom, see, Lyon, T. (1999).
73. Schacter, D. (2001). Seven Sins of Memory. New York: Houghton Mifflin; Ceci, S. J., Bruck, M., Poole, D. A., & Lamb, M. E., (998); see pp. 356-357, supra, for discussion of admissibility of the suggestibility research literature under the Frye standard.
74. See, pp. 357 358, supra, for discussion of Daubert.
75. Daubert, supra, 509 U. S. at 593 594, 113 S. Ct. 2796-2797.
76. Myers, J. E. B. (1994, pp. 891-893).
77. See, pp. 344-348, supra, for discussion of the similarity of legal arguments in suggestive-interview and suggestive-identification cases.