Suggestibility, Reliability, and the Legal Process

[NOTE: Copyright 2002 Elsevier Science (USA). All rights reserved. In accordance with Title 17 U.S.C. section 107, this material is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml.

Abstract

Courts have long excluded evidence that has been exposed to corrupting or tainting evidence. For example, eyewitness identification testimony obtained by police; through suggestive means is excluded because suggestion is known to be capable of corrupting witness ability to make an identification reflecting personal experience rather than the suggestion. This article is intended to help lawyers and expert witnesses understand how well-established legal principles demand the exclusion of suggestion-induced accusations in child abuse cases just as they do suggestion-induced identifications. The article provides discussion of legal arguments that support the exclusion of accusations obtained through suggestion, an overview of the relevant scientific research literature, and discussion of the admissibility of this research literature. It also dispels some of the more common arguments offered against the use of relevant scientific research literature to educate courts and juries about the corrupting effects of suggestive interviews. Copyright 2002 Elsevier Science (USA). All rights reserved.

[Courts have] a responsibility to ensure that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact who will draw the ultimate conclusions of guilt or innocence. That concern implicates principles of constitutional due process. "Reliability is the linchpin" in determining admissibility of evidence under standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment. Competent and reliable evidence remains at the foundation of a fair trial, which seeks ultimately to determine the truth about criminal culpability. If crucial inculpatory evidence is alleged to have been derived from unreliable sources, due process interests are at risk.

--State v. Michaels (1994) citing Manson v. Brathwaite, 432 U. S. 98, 97 S. Ct. 2243
(1976)

This article explores the use in legal proceedings of scientific research regarding the impact of suggestive questioning on children's testimonies. It is written for two audiences: attorneys who litigate cases that involve suggestion-induced accusations and researchers and other professionals who might be asked to appear as experts in legal proceedings.

After defining relevant legal concepts and principles, this article briefly summarizes the scientific literature showing the corrupting effects of various suggestive interviewing techniques on children's reports. The article then presents relevant legal arguments based on this literature that may be used to defend against allegations elicited through suggestive interviewing techniques. This article explains that well-settled constitutional principles hold that post-suggestion statements should not be admitted in legal proceedings for the same reason that other types of unreliable evidence are legally and constitutionally inadmissible. Specific arguments and procedural mechanisms that could be used to challenge the use of suggestion-tainted testimony are then explained, as are the legal bases for admission of expert testimony regarding the relevant scientific literature. The article concludes by rebutting criticisms of courtroom use of research on the corrosive effects of suggestive interviews.

Definition of legal terms

Trial as a means for determining truth

In theory, legal trial is method by which the truth about a particular dispute is discovered. According to our system of jurisprudence, the truth is derived in criminal trial when the state presents its evidence, the defendant challenges that evidence (through cross-examination and presentation of contradictory evidence), and the finder of fact (be it a judge or jury), considering both sides, renders verdict that is presumed to reflect the truth. ¹

Our judicial system does not require a defendant to present any evidence or to challenge the state's evidence at a criminal trial. The state bears the burden of proving its case and establishing, beyond a reasonable doubt, that each and every accusation against a defendant is true. Thus a defendant may sit through a trial without uttering a word. The jury, having been instructed by the trial judge about the elements of the crime charged (i.e., factors necessary to establish that the crime was committed by the defendant), may afterward find that the state did not meet its burden of proof (i.e., that the elements of the crime were not satisfied). In reality, however, it is generally necessary for defendants in criminal trials to challenge every piece of evidence offered against them.

The right to present evidence, call witnesses, and challenge evidence and testimony presented by the state are all guaranteed to every criminal defendant by the United States Constitution. To ensure that every defendant is able to do these things, the Constitution guarantees that counsel will be provided to defendants who cannot afford it. One of the most critical constitutional rights assured every defendant is the right to be prosecuted only by reliable evidence. ² This constitutional right requires that all evidence presented against criminal defendant must be what it purports to be.

Absent an assurance that a jury will be permitted to consider only reliable evidence, it is impossible to know whether the result of the jury's deliberations is reliable. Just as a conclusion based on bad data cannot be supported, jury verdict based on bad information, such as tainted or adulterated evidence, cannot be supported.

Reliability, credibility, and competence

Understanding the meaning of reliability in the legal context has proven difficult for many lawyers and jurists, as well as scientists attempting to be heard and understood in a courtroom. A primary source of this difficulty is the frequent confusion between "reliability" and two other legal terms: "credibility" and "competence."

"Competence" refers to the capability or capacity of a particular individual to serve as a witness. Persons are deemed competent if they are sufficiently intelligent to observe, recollect, and recount an event, and have a moral sense of obligation to speak the truth. ³ The determination regarding a witness' competence is a legal one, made by the trial judge before testimony is given. ⁴ The competence standard is not very demanding. The vast majority of people offered as witnesses are deemed -- and are -- competent to testify in a trial. Competence is presumed, and therefore it only becomes an issue in cases involving young children or individuals whose capacity to observe, recollect, and recount is impaired or undeveloped.

"Credibility" refers to how believable a witness is. The credibility of a witness' testimony is an assessment made by the jury's it considers each witness' statements and the challenges to those statements made through cross-examination and contradictory evidence. The jury's responsibility to determine the credibility of each witness' testimony is no different than any listener's judgments about whether a speaker is telling the truth. In the context of a trial, credibility determinations are not matters of law to be decided by the trial judge. Rather, the jury is solely responsible for making these credibility assessments.

Whether evidence is "reliable" is a legal matter that is decided by the trial judge before the evidence is presented to the jury. Unlike "competence," reliability does not concern the personal characteristics of witness. Unlike "credibility," reliability does not concern the believability of witness. "Reliability" concerns the inherent quality of evidence.

Evidence is reliable if it is what it is purported to be. For example, photograph is reliable as evidence at trial if it accurately represents the scene that it purports to represent; that is, the scene of the crime at the time it occurred. Similarly, if a witness sees the occurrence of crime and then identifies the perpetrator, that identification testimony is reliable because it is what it purports to be: n identification of the person who committed the crime. If, however, the witness could not positively identify suspect until investigators suggested that a particular person was in fact the perpetrator, the witness' identification may not be what it purports to be. It may be reflection of the suggestion rather than the witness' own identification. Because there is no way to differentiate between the two, the identification that is made after suggestion is deemed unreliable and inadmissible at trial as a matter of law, and the jury would never hear about it. ⁵ Other examples of evidence deemed inadmissible for want of reliability include testimony produced through hypnosis, which may be the product of the hypnotic suggestion rather than reflection of the witness' experience, ⁶ and out-of-court statements elicited through suggestive or coercive questions. ⁷

Each piece of evidence offered at trial is subject to a reliability determination by the judge. For example, if the prosecutor in a trial involving cocaine possession wishes to present bag of cocaine, the prosecutor must establish that the bag of cocaine presented in court is the same as the bag of white powder taken from the defendant at the time of his arrest. To do this, the prosecutor must demonstrate a "chain of custody" documenting the whereabouts of the bag of powder from the time it was collected by the police through the trial. The chain of custody provides an assurance that the cocaine presented at trial is what it purports to be: the bag of white powder confiscated from that particular defendant at the time of the arrest.

Research concerning the effects of suggestive interviewing on children's reports

Cases involving charges of child abuse are often decided solely on accusations made by children. Absent physical evidence, n adult witness, or a confession, the only evidence of abuse may be the claims of the child complainant. In these cases, it is important to understand how the accusations of abuse became known. Sometimes child spontaneously reports abuse. Other times, accusations of abuse do not arise until a child is questioned, for one reason or another, by an adult.

When accusations are not freely or spontaneously disclosed by child, it is crucial to know the methods by which they were produced. This is because, as the scientific research shows, certain methods of questioning have the power to compromise the accuracy of children's reports and even cause children to report having experienced events that never occurred.

For more than a decade, social scientists have generated an ever-growing body of scientific research literature documenting that certain types of suggestive questioning methods may cause children to make inaccurate reports. The research has also revealed that inaccurate reports resulting from those suggestive methods are often indistinguishable from accurate reports. That is, there is no way to determine a true report from one created by interviewer suggestion. Thus, absent indicia that the post-suggestion statements are reliable, there is no way to support claim that they are what they purport to be: reflection of the child's experience rather than the interviewer's influence.

Commonly, in suggestibility experiments children experience a scripted event. Some of the children are then questioned by adults who are provided with misinformation about the child's experience (creating biased interviewers) or who are instructed to use various suggestive tactics. ⁸

Other children are questioned by unbiased interviewers who do not use suggestive methods. Following the interviews, the children are asked to report their experiences regarding the scripted event. In other studies, children are suggestively questioned about an event that never occurred. ⁹ These experiments show that children subjected to biased interviewers or suggestive tactics often make false reports that are consistent with interviewer biases and suggestions rather than their actual experiences. ¹⁰

Interview characteristics known to have the potential to taint reports and accusations

Although children's reports can be tainted even when suggestions are not embedded in interviews, ¹¹ most of the data on the impact of suggestions comes from studies in which suggestive techniques were woven into conversations between children and adults. There are several characteristics of suggestive interviews, namely interviewer bias, interviews by adults with high status, repeated questions, selective rewards and punishment, specific questions, leading/ misleading questions, repeated interviews, stereotype induction, and peer pressure.

The term "interviewer bias" characterizes interviewers who hold a priori beliefs about the occurrence of certain events and, as a result, consciously or unconsciously mold the interview to elicit statements from the interviewee that are consistent with these prior beliefs. Studies have documented that interviewer biases can result in the generation of false reports from children. ¹²

Adults with high status include interviewers such as police or parents who, by virtue of their status in society or in the eyes of the child, possess an authority that is difficult for the child to resist. Also included are interviewers who approach the child with the appearance of information concerning the matter about which the child is being questioned. Thus an interviewer who tells the child that he knows what happened and merely wants the child to confirm the interviewer's version of the "facts" is an interviewer of high status. Several studies have shown that children are likely to be impressed by adults and will incorporate adults beliefs into their reports. ¹³

Biased interviewers sometimes repeat the same question until the child provides a response that is consistent with their hypothesis. A number of studies have shown that asking children the same question within an interview can result in children changing their original answer (particularly if questions are simple yes/ no format or involve terms that are ambiguous to children). ¹⁴

Interviewers may intentionally or inadvertently instruct children that they will be punished if they provide information that is inconsistent with the interviewer's beliefs, but rewarded if they provide answers consistent with those beliefs. Negative feedback, refusing to accept a child's answer, or repeating the question when the child does not provide responses consistent with the interviewer's theory are examples of punishment. Praising a child, outright bribing a child, or even moving to the next question or another subject in response to an answer that is consistent with the interviewer's theory are examples of rewards. These positive responses to a child's statements tend to reinforce behavior, thus increasing their frequency. When children receive praise for a particular response that is consistent with the interviewer's theory, they are more likely to provide similar responses later. ¹⁵

Forced-choice and yes/ no format questions are a type of specific question that provides answers from which the child is asked to choose. Asking a child whether abuse took place in the bedroom or the bathroom is an example of a forced-choice question because it presupposes that the abuse occurred and suggests an answer. It also deprives the child of an opportunity to tell the interviewer that abuse never occurred. Numerous studies have shown that children's answers to this type of question can be highly inaccurate. ¹⁶

Because children are susceptible to interviewer bias and adults of high status who claim to have information about particular events, interview questions that provide suggestions of events are likely to influence children's reports. More importantly, young children have special difficulty remembering where they learned specific information. Therefore, they're more prone than older children and adults to confuse information they heard about with information they know from actual experience. Thus there are several developmental reasons why questions suggesting information can result in reports consistent with those suggestions. ¹⁷

When a child does not provide information sought by an interviewer during single interview, additional interviews are sometimes conducted until the child provides reports that are consistent with the interviewer's bias. Several studies have shown that when misleading questions or inaccurate information are repeated across multiple interviews, children's final reports become highly tainted. ¹⁸

Stereotype induction is the process of conveying negative characteristics of a suspect. With stereotype induction, the interviewer tells the child that the suspect is a bad person. Telling a child that the suspect "does bad things" or "tries to scare children." Stereotype induction can powerfully influence a child's ability to make an accurate report. ¹⁹

Peer pressure is the strategy of telling a child that another child already talked to the interviewer or that another child provided specific information that the interviewer then repeats. Several studies are available to show that this tactic may lead children to provide inaccurate reports consistent with that information. ²⁰

False reports can be quickly produced through a combination of suggestive tactics. Indeed, multiple suggestive tactics in single 10-minute interview have been shown to lead preschool children to make inaccurate reports. ²¹

Although much of the research has focused on the degree to which suggestive techniques comprise the accuracy of young children's reports, these same tactics can also influence the accuracy of reports provided by older children and adults. ²²

Reports created by suggestive methods are indistinguishable from accurate reports

Some studies have shown that once children have been subjected to suggestive interviews, their inaccurate reports are indistinguishable from accurate ones. As they come to incorporate interviewer suggestion as truth, they relate it as an actual experience. For this reason, once the child has been subjected to a suggestive interview, there is no way to determine from the child's report, demeanor, or affect whether the child's report is accurate or a reflection of interviewer bias and suggestion. ²³

Findings of the suggestibility research are consistent and replicable

The above-mentioned findings are the product of more than decade of study. In the face of hundreds of studies confirming the corrosive effects of suggestions on children's memory and recall ability, there have been no studies suggesting that the methods described above cannot corrupt a child's report or produce false reports under circumstances that are typical of many cases (e. g., interviewer bias, delayed interviews, and normalization of conversation about sexual events via exposure to adults who talk frequently about such issues). Thus, scientific research showing the effects of suggestion on children's reports is uncontroverted. ²⁴

The application of the social science research to the judicial setting

Suggestive influence undermines the legal reliability of children's reports

The research literature described above reveals that when children are subjected to suggestion, their reports may reflect the bias and suggestion of the interviewer rather than their own experiences. The research also shows that it is impossible, from observation of the child or review of the child's statements, to determine whether a child's post-suggestion report is the product of suggestive influence or an accurate report of the child's experience.

These suggestibility findings bear directly on the legal reliability of a child's statement or accusation. As discussed above, evidence is inadmissible at trial unless it is what it purports to be. An interviewer's use of suggestion to elicit accusations from a child raises a question about whether the report is the child's own or the product of adult influence. Thus, once it is established that suggestive methods were used to obtain a report, absent some independent indicia of reliability (e.g., some showing that the child's statement has not been tainted by suggestion), statements elicited pursuant to suggestive questioning should not be admitted. Their use at trial would violate constitutional due process protections against conviction by unreliable evidence.

The legal basis for excluding testimony and accusations elicited through suggestive influence

It was not until the early 1990s that the implications of suggestive interviewing on the admissibility of children's statements and accusations were addressed by a court of law. However, the legal principles requiring exclusion of testimony tainted by suggestion are well-settled.

Common instances of exclusion of testimony elicited through suggestive means

Courts have long recognized that the use of coercion or suggestion to elicit testimony can taint witness' statements. Accordingly, statements elicited through suggestion or coercion have long been deemed inadmissible because their use at trial would violate defendant's due process or Confrontation Clause rights.

In United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926 (1967), the United States Supreme Court considered the effect of suggestion during pretrial identification procedures, including line-ups (when a witness to a crime is asked to identify the perpetrator from a group of individuals) and show-ups (when a witness is shown a single person and asked if he is the perpetrator). The Court recognized that these procedures are "peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially derogate from fair trial." Wade, 388 U. S. at 229, 87 S. Ct. at 1933. The Wade Court found that "a major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification" and the "suggestibility inherent in the context of the pretrial identification." Wade, 388 U. S. at 229, 236, 87 S. Ct. at 1933, 1936. Thus the Wade Court acknowledged that suggestion applied to a witness can undermine the accuracy of the resulting identification.

The Wade Court also found that the effect of suggestion may be long-lasting, if not irremediable. The Court wrote, "once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may...for all practical purposes be determined there and then [at the line-up], before the trial." Further, because a witness exposed to suggestive identification proceeding becomes so confident in the identification, cross-examination may be an insufficient mechanism to ensure "accuracy and reliability" of identification testimony. Wade, 388 U. S. at 235 236, 87 U. S. at 1937 1938.

Similarly, in Foster v. California, 394 U. S. 440, 89 S. Ct. 1127 (1969), the police conducted several confrontation proceedings, showing witness the same suspect in each. Eventually, the witness identified the suspect as the perpetrator of a robbery. The Supreme Court held,

the suggestive elements in this identification procedure made it all but inevitable that [the witness] would identify petitioner whether or not he was in fact "the man." In effect, the police repeatedly said to the witness, "This is the man." This procedure so undermined the reliability of the eyewitness identification as to violate due process.

Foster, 394 U. S. at 443, 89 S. Ct. at 1129.

The Foster Court found that the identification had been so tainted by suggestion that it was constitutionally inadmissible, even though there was an accomplice confession that corroborated it. Foster, 394 U. S. at 442, 89 S. Ct. at 1128.

Since Wade and Foster  courts have continued to recognize the fact that suggestive identification procedures can compromise the accuracy and reliability of identification testimony. Because there is no way to determine whether the witness' identification of a particular person is the product of the suggestion or the witness' experience, the identification elicited through suggestive means is inadmissible as violative of due process. ²⁵

Testimony that is induced or refreshed by hypnosis is another example of evidence that is traditionally excluded for want of reliability. Several jurisdictions have established per se rule, excluding hypnotically enhanced testimony from trials because it may be the product of -- or enhanced by -- the hypnotic procedures, rather than a reflection of an actual experience. Other jurisdictions have established scientific protocols -- designed to reduce the risk of memory taint -- to be used by the state if it hypnotizes a witness. The failure to utilize these protocols results in the exclusion of the witness' testimony based on presumption of unreliability due to hypnosis. Moreover, because the protocols require careful recording of the entire hypnotic session, a criminal defendant has the opportunity to demonstrate, even if the protocols are followed, that the hypnosis tainted the witness' testimony.

Other courts conduct an individualized inquiry in each case to assess the reliability of hypnotically induced or enhanced testimony to assess its reliability and admissibility. These jurisdictions look to whether the post-hypnosis testimony was corroborated by statements made by the hypnotized witness and memorialized prior to the hypnosis or whether other evidence corroborates the post-hypnosis statements, thus providing some indicia of reliability. ²⁶ While some jurisdictions hold that the effects of hypnosis concern credibility, rather than legal reliability, cases from those jurisdictions often in fact look to indicia of reliability when considering admissibility. ²⁷

Hearsay -- an out-of-court statement of declarant presented at trial through a witness (other than the declarant) and offered for the truth of the matter asserted by the declarant -- is another example of testimony that is inadmissible unless the party seeking to introduce it can prove that the out-of-court statement is reliable. To establish sufficient indicia of reliability, the proponent of the hearsay statement must prove that the circumstances through which the statements were obtained possessed "particularized guarantees of trustworthiness...drawn from the totality of the circumstances that surround the making of the statement and that make the declarant particularly worthy of belief." ²⁸

In Idaho v. Wright, supra, the issue before the United States Supreme Court was whether the out-of-court statements of a child witness in an abuse case were sufficiently reliable to be admitted as hearsay. The child's statements were made in response to mild encouragement (four questions about abuse) offered by a pediatrician during medical examination. The statements would be admissible only if they possessed "adequate indicia of reliability." The Court found that the physician's encouragement rendered the circumstances in which the statements were made devoid of any "special reasons for supposing that the incriminating statements were particularly trustworthy." Thus the child's statements were constitutionally inadmissible. Wright, 497 U. S. at 827, 110 S. Ct. at 3152. ²⁹ The Idaho v. Wright Court also found that conviction by unreliable hearsay evidence violates Confrontation Clause rights (Id, at 814).

The principles requiring exclusion of accusations elicited from children

The due process ground for excluding a child's post-suggestion statements is based on the fact that once a child is subjected to suggestive interviews, there is no way to determine whether the child's resulting accusations are the product of actual experience or the suggestion. This is the same basis as that which requires the exclusion of suggestion-induced identifications, hypnotically induced testimony, and out-of-court statements elicited in circumstances devoid of guarantees of trustworthiness. ³⁰

The Confrontation Clause basis for excluding a child's post-suggestion statements is that because post-suggestion inaccurate reports are indistinguishable from accurate reports, and subsequent questioning cannot distinguish true from suggestion-induced reports, ³¹ cross-examination is rendered ineffective by the use of suggestion. Likewise, the statements from the child do not achieve reliability by being introduced through someone other than the child as hearsay, in which case the defendant has lost even the opportunity to cross-examine the child. Simply, when cross-examination is impossible or is known to be rendered ineffective by some investigative method then the unreliable testimony must be excluded. ³²

When accusations have been produced through suggestive interviews, a defendant should make these legal arguments before trial, seeking the exclusion of suggestion-induced statements because they are legally unreliable and thus should not be presented to the jury. If the trial court denies the motion to exclude the statements, the defendant must make the same showing during trial. The purpose of the presentation to the jury differs from the pretrial presentation to the judge in that it is not aimed at excluding the accusations. Rather, it is to explain to the jury that the scientific research literature illustrates that once a child has been subjected to suggestive interviews, there is no way to determine whether the child's statements are the product of the child's experience or the interviewer's bias and suggestive methods. Accordingly, the investigator tactics compromised the trustworthiness of the child's post-suggestion statements to the point that they should be disregarded and accorded no weight. ³³

Presenting the legal arguments for exclusion of accusations and statements elicited through suggestive interviews

There are several issues that deserve consideration when making an argument to exclude tainted accusations and statements.

The pretrial suggestibility issue is a matter of law

When moving to exclude suggestion-induced statements, it is important to keep the court focused on the fact that the challenge is to the legal reliability of evidence. As explained above, reliability is legal issue to be decided by the trial judge. The argument is based on the fact that the use of suggestive methods to elicit accusations raises the concern that the content of those accusations is not based on the child's experience but, rather, on the suggestions. Accordingly, there is no way to determine whether the accusations are what they purport to be. Absent some showing of reliability, the testimony or accusations -- like any evidence -- are legally inadmissible.

The concepts of reliability, competence, and credibility may seem obvious, but in practice they are easily confused and muddled, even during legal proceedings. Thus, it bears repeating that the party seeking to exclude statements made pursuant to suggestive interviewing must make clear to the court that this is an issue of legal reliability. Reliability is not within the province of the jury -- as credibility is -- and it has nothing to do with the personal characteristics of witness -- as competence does. The reliability issue in these cases is based on the corruption of evidence. Tainted evidence is inadmissible. The jury should never know that it exists.

Establishing that suggestive methods were used to develop accusations.

Several sources may provide evidence of suggestion applied during the development of accusations. Some are obvious. Others require investigation and inquiry of various people involved as accusations arose.

The most obvious source for evidence of suggestion is a verbatim record of an interview. This might include an electronic recording of the interview, such as an audiotape, videotape, or transcript. These sources also provide the most accurate information about the conduct of pretrial interviews.

Unfortunately, many investigators do not permit a verbatim record of an interview to be produced. Oft-cited reasons for this include that recordings are of poor quality, recording equipment distracts children, or that it is too difficult or expensive to record interviews. In fact, the portability, low cost, and high quality of tape recorders, as well as the hundreds if not thousands of research experiments in which children are recorded without being distracted by the equipment, undermines these justifications for refusing to record interviews with children.

It is important also to understand that recordings of interviews can assist the prosecution when the interviews are well-conducted and accusations are the product of free-recall rather than suggestion and coercion. Indeed, an electronic record of an investigation properly conducted could undermine defense challenge that child's accusations were the product of suggestion and thus obviate the need for pretrial hearings concerning suggestive interviews. Accordingly, the refusal to record appears to be all but a concession that improperly suggestive methods are an accepted and condoned component of the investigative process.

At this time, the United States Supreme Court has not articulated a Federal constitutional requirement that investigative interviews must be electronically recorded. The scientific research literature, however, reveals that, for several reasons, the absence of electronic recordings makes it impossible to support a claim that suggestive methods were not applied during an interview.

First, it is well documented in the scientific literature that when asked to recall conversations, most adults may recall the gist of an interview, but are unable to recall exact words used or the sequence of interactions between the speakers. This is because the linguistic information rapidly fades from memory, minutes after the interactions have occurred. ³⁴ Thus, the research undermines an interviewer's claims that no suggestive methods were used. ³⁵

Second, studies reveal that it is difficult to avoid the use of leading questions and suggestive methods during an investigative interview. That is, even interviewers who think they do not use suggestive techniques tend to use them anyway. ³⁶

Third, as demonstrated above, the exact wording of each question asked of a child during an investigative interview, as well as the number of times questions are repeated and the tone of the questioning, is necessary to determine whether strategies recognized as capable of affecting the reliability and accuracy of a child's reports were used by the interviewer. These details of the interview cannot be preserved through interviewer notes or description of the interview. ³⁷

Given the tendency to use suggestive methods, the significant variety of suggestive methods that have been shown to influence children's reports, and the inability of interviewers to accurately recall the content of the interview, the only way to support claim that accusations were collected from a child rather than produced through suggestion is with an electronic recording.

Even in those circumstances when investigators have not carefully kept records of interviews, however, powerful evidence of the use of suggestive tactics can be gleaned from other sources. Questioning anyone who was present during an interview can reveal the use of suggestion, as in the following examples: ³⁸

• Describing the first time a child complainant said he had been molested, the boy reported that his aunt asked him if he had been molested and that when he said he had not, "she said, 'Are you sure? and I says, yes.' She says, 'Have anybody touched you?' And then I said 'alright.' And then she finally got it out of me after she asked me hundred times [sic], hundred times asking me, and I said okay."

 
• Several sibling child complainants in case in which not one interview was recorded and interviewer notes were destroyed described various suggestive methods used during their interrogations. One 16-year-old revealed that the investigator said to her: "We know your dad raped you. Why don't you just admit it?" Other children revealed -- as they testified for the prosecution -- numerous other manipulative tactics applied by police, therapists, and other adults.

 
• Two child complainants, sisters, revealed that their mother and grandmother had questioned them about abuse repeatedly, for hours at time, all the while suggesting to them acts of abuse that they might have experienced.

 
• In a case involving eight related child complainants, several of them revealed that their siblings and their mother had told them what claims of abuse to allege.

So subtle are the suggestive methods that have been shown to cause children to make false reports that interviewers often seem unaware that they have used improper methods. Thus, they will reveal their use of suggestive methods when they discuss their own interviews.

• Revealing his use of the suggestive application of peer pressure to produce accusations from child who had not provided one, n interviewer stated that he told the girl that her brother had already accused their parents of molestation.

 
• A foster mother with whom one child complainant had been placed conceded that she had discussed abuse with the girl. The girl also said that she recalled that the foster mother told her that she had been molested by her parents.

 
• A physician conceded that even though the child complainant had never mentioned it, she asked the boy if his penis had been touched by the defendant.

 
• A therapist, acting as investigator, revealed that she had conducted group sessions with several child complainants in which she instructed them to share accusations, leading them through "sensory input of the abuse" during which she told them to "conceptualize what they remembered and saw during the abuse; what they heard during the abuses; what kind of tastes they thought of when they thought about the abuses; what kind of touch, texture, touch that they remembered during the abuses. And...smells during the abuse."

Thus a tremendous amount of information about the conduct of investigative interviews can sometimes be gleaned from the children interviewed and the interviewers. Therapist and police notes can also be helpful in recreating a record of an interview or course of interviews. It is often the case that the therapists and police who use the most suggestive methods believe that they are actually providing the child with the support necessary to disclose the occurrence of abuse. These well-intentioned but misguided interviewers may create a record of their methods in their notes. These records can be used to demonstrate to the court the suggestive methods applied to the children in a given case as accusations of abuse were elicited.

The problem with having to glean information about the pretrial interviews from those present in the interviews is that absent pretrial discovery, most of the facts about the interviews will not be revealed until the various witnesses testify at trial. Thus, it is important to review every police or therapist report prior to trial and to request grand jury transcripts for the purpose of assessing whether suggestive methods were used as the accusations
were developed.

Ideally, as result of the motion attacking the reliability of accusations, the court will conduct pretrial hearing -- similar to a Wade hearing -- at which the relevant witnesses (e. g., investigators, therapists, and child interview subjects) can testify about the conduct of the interviews. A request for such a hearing is sure to meet objections that it would be too burdensome to conduct this type of hearing prior to the actual trial and that requiring child to testify twice would cause undue stress and trauma. However, the subject matter of such hearing would not be the accusations. Rather, the inquiry would be limited to the conduct of the interviewers. Further, the same complaints about additional burdens could be made about a Wade hearing held to determine the reliability of suggestion-induced identification, but those hearings are regularly held without disruption to the judicial process.

If no pretrial opportunity to investigate the methods through which accusations were elicited from children is made available, and it becomes clear through trial testimony that such methods were in fact used to obtain accusations, motion for mistrial should be made based on the ground that the accusations, produced through suggestive means and devoid of indicia of reliability, should never have been presented to the jury. In the event that the mistrial motion is denied, motion to instruct the jury to disregard the suggestion-induced accusations would be appropriate. ³⁹ Regardless of when evidence of suggestion comes to light, whether the jury should be permitted to hear that evidence -- and whether the state has sufficient evidence to proceed to verdict -- is one for the trial judge to make as matter of law.

Educating the court about suggestibility research

There are several ways to educate the court about scientific research documenting the corrosive effects that suggestive interviews have on children's memory and recall. A memorandum explaining the research is one method that does not involve the expense of retaining an expert witness. The book Jeopardy in the Courtroom (Bruck & Ceci, 1995) provides a very accessible explanation of the more prominent research literature and breaks the material down into the various interview characteristics that have been shown to be suggestive.

Presentation of an expert witness, however, is probably more effective way to educate the court. The best expert for the purpose of explaining the scientific research literature to judge or jury is a researcher with strong credentials in the area of the effects of suggestion on memory and recall ability. Because the purpose of the expert is to provide education and information about the scientific research literature, the expert witness should not be a clinician who would assess individual children's responses to questions in an attempt to determine whether a child's report during and following suggestive interviews is accurate. These issues are not relevant to a reliability assessment. Indeed, the research literature illustrates that these assessments cannot be accurately performed.

Regardless of whether a memorandum of law or an expert witness is used to support a motion to exclude testimony for want of reliability, the objective of the moving party is the same: to provide the court with an explanation of the documented corrosive effects of each of the suggestive interview methods used in the case at issue and to provide the court with examples of the use of each of those in the interviews that resulted in the accusations.

A motion to exclude accusations produced through suggestive interviews is based in sound and well-settled legal principles and the conclusions of sound and well-conducted scientific research. Thus, the presentation of scientific claims through an expert or memorandum should explain that: (a) it has been shown through scientific studies that certain interview methods can cause children to make inaccurate reports, (b) it is not possible to distinguish inaccurate reports wholly produced through suggestion from accurate reports by assessing the affect of the child or the child's responses to particular questions, (c) the research literature is uncontroverted, (d) the very methods shown to cause children to make inaccurate reports were used in the case at issue, and (e) there is no way to determine whether the resulting claims are what they purport to be. Having made this showing, the principles of law that require exclusion of unreliable testimony -- testimony that cannot be demonstrated to be what it purports to be -- require exclusion of the suggestion-induced accusations at issue.

Legal standards for the admissibility of expert testimony

Determination regarding the appearance of a proposed expert witness

One assessment that occurs when a party wishes to present expert testimony concerns the person offered as an expert. Before a proposed expert witness is permitted to testify at trial, the trial judge must determine if that individual is an expert in the area about which he or she is being asked to offer testimony. To satisfy this burden, the proffered expert will be subjected to voir dire, preliminary examination during which the witness provides information about his or her relevant background, including education, professional experience, and familiarity with the matter at issue. The trial judge's determination of whether the witness will be permitted to testify as an expert is a legal one, concerning the qualifications of the expert. This determination is necessary to assure that the jury will not be presented with a witness bearing the guise of expertise, but who in reality does not possess the necessary expertise; in other words, whether the person purported to be an expert is in fact an expert. ⁴⁰

Determination regarding the substance of the expert's claims

In addition to considering the qualification of an expert, the trial court must assess the substance of the expert's proposed testimony to determine whether it is admissible. The admissibility standard is also founded in concerns for reliability of evidence. For most of the last century, courts have relied on a single criteria to assess the admissibility of expert testimony. This criteria, the Frye or "general acceptance" test, is based on a 1923 federal case, Frye v. United States, 293 F. 1013 (1923).

In Frye, the defendant attempted to present the results of a "systolic blood pressure deception test," which was based on a theory that "truth is spontaneous, and comes without effort, while the utterance of falsehood requires conscious effort, which is reflected in the blood pressure." The court held that expert testimony about the "deception test" was inadmissible because it "ha[d] not yet gained such understanding and scientific recognition among physiological and psychological authorities as would justify...admitting expert testimony deduced from the discovery, development, and experiments thus far made." Thus, the Frye court held that because the novel theory had not been recognized by a community of experts, it was not sufficiently reliable to be admitted in a criminal trial.

The Frye ruling was soon coopted into rule holding that absent a community of "experts" who have recognized a particular theory, that theory was inadmissible at trial. The converse of this rule was also adopted: where a particular theory or conclusion is recognized by a community of "experts," it would be admitted. The Frye, decision became the principal -- if not sole -- standard for considering the admission of expert testimony. ⁴¹ If the proponent of expert testimony could demonstrate "general acceptance," it would be admitted. Absent "general acceptance, " the testimony would be excluded.

This is not, of course, logical application of the Frye decision. The existence or absence of acceptance of a community might be one factor in determining whether a proposition is reliable, and thus admissible, but community acceptance alone cannot establish reliability. A community of astrologers, for example, might agree on principles they deem "scientific" but which are in no way based in science or reliable. Admission of these astrological claims, although they satisfy the "general acceptance" standard, would violate the constitutional reliability requirement. On the other hand, even the most soundly based novel scientific theory or fact may not have had time to be accepted by a community of any size, even though it may be firmly based in science and thus constitutionally reliable. Accordingly, inquiry beyond "general acceptance" is necessary to achieve the ever-present constitutional requirement that a jury be provided only with reliable evidence and that a defendant be able to put on witnesses to exonerate and defend himself.

In 1993, the United States Supreme Court addressed the reliability requirement of expert testimony in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 113 S. Ct. 2786 (1993). ⁴² The Daubert Court held that the admission of expert testimony turns on the "scientific validity -- and thus the evidentiary relevance and reliability -- of the principles that underlie the proposed submission." The Court made clear that the focus of the determination of whether an expert's testimony is admissible "must be solely on the principles and methodology [through which the expert testimony and opinion is derived], not on the conclusions they generate." The rationale of Daubert is straightforward: to ensure that only reliable expert testimony is admitted at trial. If the party intending to introduce expert testimony can prove that it is what it purports to be, it is admissible. Pursuant to Daubert, for scientific expert testimony to be admissible, it "must be derived by the scientific method." In other words, "it must be supported by appropriate validation...based on what is known." This requirement that an expert's testimony pertain to scientific knowledge, the Court held, establishes standard of evidentiary reliability. Daubert, 509 U. S. at 591, 113 S. Ct. at 2795.

Pursuant to Daubert, admissible expert opinion must be the product of testing pursuant to the scientific method. The Court explained, "[s]cientfic methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguished science from other fields of human inquiry." Rates of error of a particular scientific technique as well as "the existence and maintenance of standards controlling the technique's operation" should also be considered.

The Daubert Court also recognized that general acceptance in the scientific community is relevant to reliability -- although not dispositive, as the Frye standard claims -- finding that peer review and publication is a "pertinent consideration" in determining reliability. This is because, the Court explained, "submission [and publication] or the scrutiny of the scientific community is a component of 'good science,' in part because it increases the likelihood that substantive flaws in methodology will be detected...." Daubert, 509 U. S. at 593-594, 113 S. Ct. at 2796 2797 (internal quotations and citations omitted).

Thus, the Daubert decision provides paradigm for assessing the admissibility of expert testimony based on the methodology through which the particular opinion was derived. Daubert demands that only expert opinions based on legitimate scientific methods be admitted. A community of experts subscribing to the same hunch, intuition, or beliefs are insufficient to satisfy the Daubert admission criteria. Accordingly, application of the Daubert standard helps to ensure that the constitutional requirement that only reliable evidence be admitted at trial is observed.

The suggestibility research literature discussed in this article satisfies the criteria for admission of expert testimony set out in both the Frye and Daubert standards.

Frye

For more than a decade, the world's leading scholars and researchers who study the effects of suggestion on memory and recall ability have produced a body of literature documenting the adverse effects that suggestive methods have on the reliability of children's reports. Hundreds of experiments have been conducted and articles published documenting this phenomenon. As this work has been produced, the community of experts conducting and publishing research has grown markedly. All the while, there has been no scientific research showing that the same types of suggestion cannot compromise the reliability of reports or that subsequent to suggestive interviews, accurate reports can be consistently distinguished from inaccurate ones. ⁴³ Thus, the unanimous conclusion reflected in such vast number of studies by such large group of experts, especially in the absence of any scientifically grounded dissent, reveals the overwhelming acceptance in the scientific community of the suggestibility research literature.

The bibliography of a book like Ceci and Bruck's Jeopardy in the Courtroom and the list of experts who signed the Amicus Brief submitted to the New Jersey Supreme Court in State v. Michaels ⁴⁴ constitutes documentary proof of the acceptance of this research literature by the relevant scientific community in 1995.

Additional proof of the acceptance in the scientific community is the absence of scientific disagreement with the research literature. Indeed, most, if not all, of the disagreement with the literature is posed by lawyers who object to its use in the courtroom not because of division in scientific scholarly thought, but because the revelation of the effects of suggestion on children's reports in the courtroom would derail prosecutions built on suggestion-induced accusations and lower conviction rates in cases in which crimes against children are alleged -- regardless of the reliability of those accusations. ⁴⁵

Daubert

The scientific suggestibility research literature falls squarely within the Daubert requisites for admission. The literature is the product of experiments conducted according to the scientific method, as required by Daubert. Experiments are designed and conducted with control groups, alternate hypotheses are tested and results are replicable. Rates of error are recorded. These are exactly the standards for admission listed by the Supreme Court in Daubert. (see pp. 355-356 supra.) Acceptance in the scientific community and the absence of contrary research only enhances the admissibility of the suggestibility research literature under the Daubert standard.

To show that the research literature satisfies the Daubert standard, the party seeking admission should be prepared to explain to the court, through the expert witness, the methodology used to design and conduct the experiments on which the research literature is based. Fundamental scientific principles, such as the "scientific method," "empirical research," "control groups," "rates of error," and "replicability" should be defined. Then, the adherence to these principles in the suggestibility research should be demonstrated. ⁴⁶

Beyond the ken of the average juror

If the expert testimony is to be presented at trial rather than in a pretrial hearing the final showing that must be made to satisfy the admission requirements under Frye or Daubert is that the findings of the scientific research regarding the effects of suggestion on memory and recall ability are beyond the ken of the average juror.

In opposition to the presentation of the suggestibility research in court, the argument may be made that the findings are nothing more than what one would expect: that using coercion to make any witness provide particular statement would be expected to taint the witness' report. The defense is free to reveal the methods used during investigative interviews, this argument proposes, and the jury can then determine how much weight to accord the resulting accusations. This argument fails for several reasons.

First, many of the findings of the research literature would not even occur to the average juror, let alone be understood. For example, the research shows that very mild amounts of suggestion can produce wholly inaccurate reports from children. Studies show that in single ten minute interview, children can be induced to make false reports. ⁴⁷ It is unlikely that the average juror would be aware of that. Likewise it is unlikely that an average juror would be aware of the particular corrosive effects of interviews by adults of high status or be able to recognize the subtle suggestion imposed by investigators who conduct their interviews with a priori beliefs about what a child has experienced or might report. One simply cannot expect an average juror to be aware of the litany of suggestive methods discussed above that have been shown to cause children to make false reports. Absent this information, jurors and judges are simply unequipped to make determinations about the credibility of accusations produced through suggestive interviews.

Second, the average juror cannot be expected to be aware of the research literature showing that inaccurate reports produced through suggestive interviews are indistinguishable from accurate ones. That is, there is nothing juror can do to reliably determine whether accusations produced through suggestive interviews are accurate or the product of suggestion. Indeed, this is why accusations produced through suggestive interviews should be excluded rather than presented to jury.

Third, arguments against admission of the expert testimony explaining the research literature often illustrate that the research findings are beyond the ken of the jury. Prosecutors in abuse cases, who presumably have studied the research literature, represent very sophisticated jurors. Accordingly, a prosecutor's argument that the use of suggestion has no effect on the accuracy of reports, or that a jury can observe a child during his or her testimony and make any necessary credibility assessments, actually contradicts the research literature. If the prosecutor does not understand the research, or -- contrary to the literature -- disagrees with it, expert explanation is necessary.

Further, when accusations are obtained through suggestive methods like those described in the research literature, an argument that the corrupting effects of those methods are well known may be a concession that the methods used to produce those accusations are exactly those that render resulting reports unreliable. In the face of such a claim, the suggestion-induced accusations should be excluded for want of reliability, in which case the use of an expert becomes moot.

Thus, the scientific suggestibility research literature satisfies the requirements for the admission of expert testimony, regardless of the admissibility standard applied in the particular jurisdiction. It is hard science, developed through rigorous protocols and is roundly accepted in the scientific community. It is admissible. ⁴⁸

Application of traditional legal arguments to the exclusion of accusations and testimony elicited through suggestive interviews

One of the first decisions to deal with the exclusion of children's direct testimony as well as out-of-court statements was State of New Jersey v. Michaels, 525 A. 2d 489 (N. J. Super. A. D. 1993) and 642 A. 2d 1372 (N. J. 1994). ⁴⁹ The Michaels case provides one example of the application of well-settled law to the admissibility of accusations derived through suggestive interviews. The following is discussion of the facts of the Michaels case and the decisions handed down by the New Jersey Appellate Division and Supreme Court in that case. ⁵⁰

Facts of State v. Michaels

In 1988, Kelly Michaels was convicted of 115 counts of molesting 21 children in preschool class she taught in Maplewood, New Jersey. She was sentenced to incarceration in maximum security prison for 47 years. ⁵¹

The first comment that was deemed an accusation in Michaels was made by a child in a pediatrician's office. Before the doctor saw the child, the doctor's assistant conducted preliminary examination. The assistant inserted a rectal thermometer into the child and began to rub his back as she explained to him that she was taking his temperature. After a moment, the child said, "That's what my teacher does to me at nap time at school." The child then identified Michaels as his teacher.

The child's statement was interpreted as an accusation that Michaels anally penetrated the child rather than rubbed his back at nap time. State investigators were soon alerted about the child's accusations. Within weeks, investigators began interviewing additional children who attended the school at which Michaels taught. Dozens of children were interviewed by police, therapists, and other investigators. Accusations against Michaels grew as children were subjected to investigative interviews.

By the time of trial, many of the allegations coming from the mouths of the children were simply impossible, given the absence of any corroborative medical findings. Children testified to having the blades of knives inserted into their rectums, vaginas, and penises. Children also reported having had sticks and wooden spoons inserted into their various orifices. One child said that Michaels put a lightbulb into her vagina. Others told of the tine end of forks being inserted into their vaginas while the back end of the silverware was inserted into their rectums. Not a single injury was reported on a single child that indicated any of these alleged acts.

The record of the Michaels investigation contained audiotapes and videotapes of interviews in which investigators, Department of Youth and Family Services workers, social workers, and therapists elicited from the children the accusations that would lead to the conviction. Those tapes revealed that the interviewers relied on all of the suggestive methods discussed above.

The Michaels Appellate Division decision

In its opinion reversing the conviction in Michaels, the New Jersey Appellate Division -- an intermediate appellate court ⁵² -- considered the issue of the effects of the interviewers use of suggestive questioning methods to elicit accusations from the children. These accusations had been presented at trial through direct testimony of the children and through hearsay testimony of adult witnesses. The Appellate Division did not reverse the conviction based on the improperly suggestive interviews. However, the court considered the need for hearing to determine whether the questioning of the children was so suggestive and coercive that their accusations were legally unreliable in the event of retrial. ⁵³

The Appellate Division examined the methods of questioning that were used by interviewers as accusations were elicited from the children. The court then looked to the research literature available at the time, noting the "consistent concern about the interview process and the possibility of distorting recollections by suggestive or leading questions" and discussed the scientific literature documenting the corrupting effects of suggestion on children's ability to make accurate reports. ⁵⁴

The Appellate Division also looked to other types of testimony that have traditionally been excluded because of suggestive conduct on the part of investigators and interviewers. Specifically, the court cited pretrial identification procedures that are "so impermissibly suggestive that the prior identification lacked reliability" and "hypnotically induced testimony." ⁵⁵ The Appellate Division held that although it "found no direct precedent for applying 'taint' analysis to child-witness testimony in sex abuse cases...courts must provide remedy where the record demonstrates that an accuser's testimony is founded upon unreliable perceptions, or memory caused by improper investigative procedures if it results in defendant's right to a fair trial being irretrievably lost." ⁵⁶ Accordingly, the Appellate Division held that in the event of retrial, pretrial hearing must be held to assess whether the children's statements had been tainted by the investigative procedures employed by the state.

The Michaels Supreme Court decision

The prosecution led an appeal in the New Jersey Supreme Court challenging the Appellate Division's order of pretrial hearing. As an initial matter, the Supreme Court recognized that the issue raised by suggestive interviews is one of "reliability." The Michaels court wrote: "the focus in this case is on the manner in which the State conducted its investigatory interviews of the children [and]...whether the interview techniques employed by the state could have undermined the reliability of the children's statements and subsequent testimony to the point that hearing should be held to determine whether either form of evidence should be admitted at re-trial." ⁵⁷

The court then acknowledged that consideration of whether suggestive interviews might render resulting reports inadmissible for want of legal reliability is rooted in traditional principles of law. The court wrote:

The question of whether the interviews of the child victims of alleged sexual-abuse were unduly suggestive and coercive requires highly nuanced inquiry into the totality of circumstances surrounding those interviews. Like confessions and identification, the inculpatory capacity of statements indicating the occurrence of sexual abuse and the anticipated testimony about those occurrences requires that special care be taken to ensure their reliability. ⁵⁸

Recognizing that "a variety of factors bear on the kinds of interrogation that can affect the reliability of a child's statements concerning sexual abuse," that "a fairly wide consensus exists among experts, scholars, and practitioners concerning improper interrogation techniques," and that improper techniques had been used during the investigative process in that case, ⁵⁹ the Michaels court set out paradigm for determining whether the investigative interviews have so tainted the reliability of child's report that it is legally inadmissible for want of reliability. ⁶⁰

The Michaels court found that because children "are to be presumed no more or less reliable than any other class of witness, ⁶¹ the initial burden is on the defendant," who "must make a showing of 'some evidence' that the victim's statements were the product of suggestive or coercive interview techniques." ⁶² The court found that defendant can meet this threshold burden by showing that the children were subjected to the suggestive methods described in the scientific research literature.

Once the defendant makes that showing, the Michaels court held, "the burden shall shift to the state to prove the reliability of the proffered statements and testimony by clear and convincing evidence." Hence, "the ultimate determination to be made is whether, despite the presence of some suggestive or coercive interview techniques, when considering the totality of the circumstances surrounding the interviews, the statements or testimony retain degree of reliability sufficient to outweigh the effects of the improper interview techniques."⁶³

This is precisely the analysis applied to suggestive identification cases. Once defendant has shown that suggestion was used during the identification proceeding, the state must show that the identification is reliable and not the product of the suggestion. To do this, the state would attempt to show the court that the witness had prior opportunity to identify the suspect, and did so, prior to the suggestive identification proceeding. ⁶⁴

In the context of suggestive interviews, the state might attempt to show the court that some statements were made by the children prior to the suggestive interviews. These statements would be admissible because they could not have been produced by suggestion. In such case, only the statements obtained from the children during or subsequent to the suggestion would be excluded. Accordingly, an accusation based on freely disclosed statement could proceed to the jury, even though additional statements elicited through suggestion would be excluded. For example, in Michaels the first child's comment in the pediatrician's office would have been admissible under this analysis, because it was made prior to the suggestive interviews. ⁶⁵

It is important to note that the analysis set out by the Michaels court was directed at the conduct of investigators rather than the characteristics of children as class of witness or child abuse as class of crime. Making this clear, the Michaels court wrote:

This Court has responsibility to ensure that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact who will draw the ultimate conclusions of guilt or innocence. That concern implicates principles of constitutional due process. Reliability is the linchpin in determining admissibility of evidence under standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment. Competent and reliable evidence remains at the foundation of fair trial, which seeks ultimately to determine the truth about criminal culpability. If crucial inculpatory evidence is alleged to have been derived from unreliable sources, due process interests are at risk. ⁶⁶

It bears repeating that the focus of the pretrial hearing is on the coercive and suggestive questioning of each child and whether that questioning, examined in light of all relevant circumstances, gives rise to the substantial likelihood that the child's recollection of actual events has been irremediably distorted and the statements and the testimony concerning those events are unreliable. ⁶⁷

Arguments offered to oppose courtroom use of scientific literature demonstrating the effects of suggestive interviews

There has been opposition to the use of the scientific suggestibility research literature in the courtroom. This opposition has not generally been mounted by scientists, however, nor is it based on scientific criticism of the methodology employed to conduct the experiments or the results of those experiments.

The critics of the use of the suggestibility research in the courtroom are generally prosecutors and legal commentators, not scientists. These critics express frustration at the notion of excluding unreliable evidence from trials. Arguing against applying constitutional reliability protections in child abuse trials, critics complain that respecting these protections in every case would: color the public perception of children; lump children into class of inferior witness; be too time-consuming; and focus on children's weaknesses. Generally, these complaints rely on misdirection and misstatements of legal principles, as well as plea to the universal desire to protect children from harm. The following section addresses the complaints against the use of the research in the courtroom.

Children as a special class of witness

One overarching theme of the criticism against the application of social science research to the courtroom is based on the notion that presentation of the research in court will result in public impression that children are, as class, noncredible witnesses. ⁶⁸ This argument fails for several reasons. First, as is discussed above, the application of suggestibility research does not concern the "credibility" of child witnesses per se. Nor does the research concern children as class of witness. Rather, focusing on investigator conduct, the research shows that some suggestive methods have the potential to cause children to make reports reflecting the interviewer suggestion rather than their actual experience. The same can be -- and has been -- shown for adults who have been subjected to suggestive identification procedures or hypnosis designed to refresh recollection. Thus, this criticism is based on confusion of reliability with credibility. ⁶⁹

Second, criminal trial is a forum for adjudicating the guilt or innocence of particular individual. If the evidence that the state would use to gain conviction was manufactured through suggestion, the Constitution requires that it be excluded from trial. Whether revealing that investigators in a particular case relied on suggestive methods known to taint accusations results in society at large forming an impression about children as witnesses is irrelevant to the fair administration of justice.

Third, it is only the characterization of the research offered by the opponents of its use in the courtroom that could foster any sort of generalized impression about children as class of witness. It is the conduct of adult interviewers that is the focus of a taint hearing and that is the basis for excluding accusations elicited through suggestive interviews. ⁷⁰ The research does not reveal that children are poor witnesses. The relevant researchers have not expressed an opinion that children are not good witnesses or should not be believed. Indeed, the research holds that children should be believed, unless they have been subjected to tactics known to have the capacity to compromise their memory or factors that generally erode accuracy regardless of age. ⁷¹

Generalizing research findings

Another criticism argues that the research literature highlights atypical cases in which suggestive techniques are used to elicit accusations, but most investigators do not employ suggestive methods. ⁷² This claim fails for several reasons. First, absent electronic recordings from representative sample of interviews nationwide, it is impossible to support a claim about what is "typical" of child abuse investigations or about the methods used by "most" investigators.

Second, even if it could be established that most investigative interviews of children do not include the use of the suggestion shown to produce inaccurate reports, that finding would be irrelevant to individual cases in which accusations were in fact elicited pursuant to suggestive interviews. If the record of an investigation reveals that suggestive interviews were used to elicit accusations from child, other situations -- whether typical or not -- have no bearing on the case at issue. No one suggests that line-ups are typically conducted by police who rely on improperly suggestive methods to obtain witness identification testimony, yet well-settled constitutional principles require that particular identification shown to be obtained through suggestion must be excluded.

The admissibility of suggestibility research in court

The claim that suggestibility research should be inadmissible in court due to conflicting results, lack of ecological validity, or other limitations is not likely to carry as much weight now as it might have decade ago. At the time this article is being written, hundreds of publications have documented the effects of suggestion on children's recall and memory ability. Projects funded by agencies that support scientific research, published in peer review journals and books, and authored by leading researchers from around the world document that the research findings discussed here have indeed been accepted by the relevant scientific community. ⁷³

In addition to enjoying widespread acceptance among the scientific community, the research also satisfies the Daubert requirements for admission. ⁷⁴ The literature documenting the corrosive effects of suggestion on children's reports is the product of empirical studies conducted pursuant to well-established scientific methods. These studies are based on hypotheses that are tested to determine if they can be falsified. The results are replicable and potential error rates are reported (or can be computed from reported data), as are standards for controlling the operation of the techniques that are tested. These studies are indeed product of the "good science" referred to by the Daubert Court. ⁷⁵

The potential for needless litigation

Another claim is that use of the suggestibility literature in the courtroom will result in substantial amounts of needless litigation and create unnecessary avenues for appeal. ⁷⁶ This argument ignores the fact that the Constitution provides protection from conviction by unreliable evidence. Litigation that ensures that a particular defendant is afforded that protection cannot be needless. Moreover, it is the prosecution that has the most control over the number of cases in which the scientific research literature will play a part.

Investigations in which the interviews of children are videotaped and conducted without resorting to suggestive means to elicit accusations will leave defendants without the ability to make the necessary showing to require taint hearing. Thus by conducting proper investigations and providing evidence of the conduct of the investigation, the prosecution can avoid the need for taint hearing and provide assurances that evidence is reliable.

When the prosecution's case is based on accusations produced through suggestive interviews that were recorded, a taint hearing like the one set out by the Michaels court would be brief and would not unduly burden the legal system. Either there exist accusations made prior to the investigators corrupting procedures or there is no reliable evidence available to proceed to trial. Indeed, a taint hearing in that circumstance would greatly reduce the burden on the judicial process by prohibiting full-blown prosecutions based on unreliable evidence.

The most elaborate taint hearings would occur in those cases in which the state did not record its interviews with children or in those cases in which accusations were elicited by therapists or parents who did not record their encounters with the children. In such cases, the defendant might be granted a hearing at which the adults involved would be questioned about the types of questions they asked or children would be questioned, not about the accusations of abuse, but about the way they were questioned.

Arguments that taint hearings create new and unnecessary avenues for appeal are nothing more than an expression of distaste for the rights a ordered criminal defendant by the Constitution. Meritorious appellate issues occur pursuant to breakdown of the judicial process in trial court. Where defendants are deprived of rights guaranteed them or of process due, there arises claim for appeal. A defendant whose conviction is based on unreliable evidence, whether it is tainted eyewitness identification, hypnotically induced testimony, or accusations elicited through suggestive interviews, is entitled to appeal. That the facts of the appeal vary from case to case are irrelevant. It is the principle of law on which an appeal is based. And, the principle of law at the heart of suggestion-induced accusations in child abuse case is well-settled. ⁷⁷

Focusing only on the weaknesses of children's memories

Another criticism is that the research literature focuses only on the weaknesses of children's memories. ⁷⁸ The research literature shows that children subjected to suggestive interview techniques can be influenced to the point at which they provide inaccurate reports. However, the focus of the research is on the suggestive influence rather than on the character of children as class. The point of the research in the legal context is that investigative methods can taint evidence -- children's reports -- and that there is no way, by observing the child or analyzing the child's statements, to determine whether the report of child who has been subjected to suggestive methods is the product of that suggestion or of the child's actual experience. The success of studies designed to show that children can resist a single suggestive question bout disconnected events, offered in a neutral situation, is not pertinent to circumstances in which child has been subjected to interviewer-bias driven interviews with suggestive tactics reflecting a single subjective hypothesis. See, footnote 24, supra.

Derailing child abuse prosecutions

Essentially, the critics argue that providing defendants with their full array of constitutional rights would make it more difficult to obtain conviction in case of child sexual abuse. This argument necessarily rests on a presumption favoring convictions in cases concerning abuse accusations, regardless of whether the accusations are reliable or whether the defendant has in fact committed the alleged act. This is not due process by any measure.

Other types of prosecution are aborted when crucial evidence is excluded from trial. In Foster v. California, supra, for example, the prosecution's only evidence was the identification made by the witness. Nevertheless, the Supreme Court deemed this evidence constitutionally inadmissible for want of reliability. Further, exclusion of the entirety of the state's evidence in a case like Foster might be a more drastic remedy than in an abuse case in which the only evidence is the suggestion-induced report of a child. In Foster there was no question that crime occurred. In the abuse case in which the only evidence that any abuse ever occurred is the report of a child who had been subjected to suggestive interviews prior to providing investigators with those reports, the suggestion brought to bear has far greater potential to cause injustice. After all, the occurrence of the crime may have its basis not in reality, but solely in the suggestion used to elicit an accusation from the witness.

Summary

Through their arguments, some prosecutors and commentators reveal their intent to make child abuse a special type of crime and consider children, as a class, a special type of witness. Although protection against prosecution by unreliable evidence is a right granted to all defendants, these commentators would have those accused of child abuse deprived of that right. Juries in child abuse cases, their arguments hold, should be free to consider any evidence, regardless of whether it was discovered or manufactured. Indeed, the argument goes, the court should not concern itself with whether the only evidence of guilt, or even the occurrence of crime, in a case was manufactured or produced through suggestive or coercive means. Regardless of the origin of the accusations, these commentators would have it, children should be permitted to make accusations in court even when it is documented that they had no accusations to make until they were subjected to suggestive questioning proven to cause children to make false reports.

Research literature shows that cross-examination cannot distinguish accurate reports from those wholly created by suggestive questioning. Yet, some commentators argue that guilt or innocence should be determined by a jury charged with the impossible task of making an assessment as to the veracity of child's suggestion-induced accusations.

But our judicial system is based on the Constitution and is designed to apply the law with an even hand, providing an assurance of fundamental fairness, equal protection, and due process to every defendant, regardless of the particular passions or prejudices of any given moment. Just as the law does not permit children who have been victimized to be ignored, it does not allow unequal access to constitutional protections.

Acknowledgments

This article could not have been written without the assistance of Rita Mella, Esq.; Amy Gershonfeld Donnella, Esq.; and Michael Snedeker, Esq., who read several drafts and shared with me their valuable comments and criticisms.

78. See, Ceci, S. J., Bruck, M., & Rosenthal, R. (1995).