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The
Journal of the American Judges Association
Volume 38, Issue 3 Fall 2001
On the Importance of Suggestibility Research in Assessing the Credibility of
Children’s Testimony
David A. Martindale
In the spring of 1999, Professor Thomas Lyon of the University of Southern
California Law School published a lengthy law review article in which he
argued that the introduction into evidence of research on the suggestibility
of child witnesses was not of assistance to triers of fact. [1] Lyon’s
article has found its way into judicial training packets and has been posted
to electronic bulletin boards sponsored by organizations with interest in
custody evaluations, psychology and law, and related topics. Because judges
are soon likely to encounter arguments based upon Lyon’s article, I wish to
alert judges to what I believe to be significant fallacies in his critique of
children’s suggestibility research.
Lyon is critical of what he refers to as the “new wave in children’s
suggestibility research.” As the term is used by Lyon, the new wave refers to
a body of research conducted by Stephen Ceci, Maggie Bruck, and others. [2]
It is my contention that the new-wave research has added much to our earlier
understanding of memory processes. The professional recognition that the
new-wave researchers have received suggests that the contribution made by
their work to our understanding of children’s suggestibility has been widely
appreciated.
Although Stephen Ceci, the developmental psychology professor who has
spearheaded research in this area, and law professor Richard Friedman have
already responded to Lyon’s cri-tique, [3] my perspective on this matter is
somewhat different and, I believe, much like a judge’s might be. I am not a
researcher - rather, I am a “consumer” of research data. For 15 years, I have
been a court-appointed evaluator of comparative custodial suitability; in
that capacity, I have encountered a significant number of abuse allegations.
Knowledge of the cognitive dynamics demonstrated in the new-wave research has
been helpful to me on many occasions. It is for this reason that I believe it
to be information of potential use to triers of fact.
Lyon’s primary criticisms are:
1)
that the new-wave researchers have overstated the frequency with which
suggestive questioning occurs and, in their proposals for methodological
changes, have failed to address the risk that abusers will be acquitted;
2)
that new-wave research conditions have failed to replicate real-world
phenomena closely enough, thereby making it unreasonable to presume that we
have gained meaningful knowledge of the real-world phenomena through the
research on their artificial analogues;
3)
that Maggie Bruck in particular has erred in statements made during
testimony and that her decision to offer didactic as opposed to case-specific
testimony is flawed; and, finally,
4)
that jurors are already aware that children are suggestible and that
testimony concerning the new-wave research causes jurors to overestimate the
probability that testimony from a particular child witness has been distorted
by suggestive questioning.
How
serious is the problem?
Though Lyon asserts in his opening that the new-wave researchers assume that
highly suggestive interviewing techniques are the norm, he later acknowledges
that Ceci and Bruck have alerted their readers to the possibility that
materials reviewed by them may not be representative. The various researchers
mentioned by Lyon are surely aware that where their involvement has been
sought it was because someone believed that the interviews being brought to
their attention were conducted improperly. There is no basis for suggesting
either that the researchers are unaware that they have been examining an
unrepresentative sample of interview transcripts or that they have endeavored
to conceal this fact from their readers.
As we contemplate the relative risks associated with different interview
techniques, we must be mindful of the fact that some of the emotional
distress experienced by children involved in sexual-abuse investigations is
attributable to the methods we employ in the course of our interactions with
them. It is, I believe, recognized that some children are unable to ascertain
the difference between events that have actually occurred and events about
which they have been involved in detailed discussions. It is, therefore,
likely that in our well-intentioned (but sometimes incompetent) attempts to
protect children, we have left some nonabused children with memories of abuse
that, in fact, never occurred.
Unfortunately, there is no foundation for the sanguine view held by some that
the practitioners whose tactics have been discredited in highly publicized
cases represent a small minority of the mental health professionals who have
become involved in evaluating children believed to have been the victims of
sexual abuse. In a study of appellate court decisions handed down in
sex-abuse cases between 1980 and 1990, it was found that 46% of the
interviewing experts had been treating the child who was the focus of the
case. [4] Within the mental-health professions there is general agreement
that the performance of each activity (conducting therapy and conducting a forensic
assessment for the purpose of formulating an objective professional opinion
with respect to abuse) compromises one’s effectiveness in the performance of
the other activity. [5] The presence among the testifying experts of so many
treating practitioners suggests that many of the mental-health professionals
who have been performing investigations of alleged sexual abuse are not among
those who are familiar with generally accepted standards of practice.
Is
the new-wave research applicable to real-world cases?
An assessment of the applicability of research to a particular case must be
based upon the amount of overlap between the characteristics of the
situations created by researchers and the characteristics of the real-world
situation that is the focus of the case. To borrow from the Supreme Court’s
ruling in Daubert v. Merrell Dow
Pharmaceuticals, Inc.,[6] vigorous cross-examination and the introduction
into evidence of opposing views are the traditional means by which to address
such issues.
It is Lyon’s position that if children are suggestible, they are also
counter-suggestible and that false allegations arising from leading questions
can be ferreted out through effective cross-examination. He cites data from a
study in which an attempt was made to convince three and four year olds that
they had witnessed the theft of money from a purse. According to Lyon, under
cross-examination only one of the five children maintained that he had
witnessed the theft. This finding does not persuade me that suggestive
interviewing is a tactic the consequences of which are minimal.
Few would argue that some very serious errors have been made in some
high-profile cases. In discussions of the new-wave research and its
applicability, attention frequently shifts to the case of State v. Michaels, [7] a case in which
the investigative techniques employed by Eileen Treacy, the state’s expert,
were criticized in an amicus brief submitted by Ceci, Bruck, and 43 other
researchers. [8] The New Jersey Supreme Court declared.that no amount of
cross-examination could have undone the harm caused by Treacy’s interviews.
Lyon implies that cases like the Michaels
case are to unpublicized evaluations as airplane crashes are to routine air
travel. He seems to suggest that, for that reason, our energy is misdirected
when we scrutinize such cases. While I acknowledge my lack of expertise in
the area of flight safety, it is my impression that in its examination of
disasters, the NTSB frequently uncovers problems the solutions to which make
day-to-day air travel relatively uneventful, as we wish it to be.
Is
Maggie Bruck doing it right?
Lyon has faulted Bruck for offering didactic testimony without familiarizing
herself with case-specific details and has criticized her testimony in two particular
cases. The offering of expert testimony intended to educate triers of fact
concerning phenomena with which they may be insufficiently knowledgeable is
generally considered to be among the most useful of the types of testimony
offered by mental-health professionals. Such testimony provides a context
within which evidence can be evaluated. The applicability of the anticipated
framework testimony can be considered in pretrial proceedings, can be alluded
to in a judge’s instructions to a jury, and can be contemplated by the
jurors. Though Lyon suggests that Bruck’s desire to simply function as an
educator is inappropriate, many seasoned experts would endorse her position.
Immersing oneself in case-specific details can compromise one’s objectivity.
Though experts are reasonably expected to be effective communicators, an
analysis of an expert’s testimony provides more information about the
expert’s performance under pressure than it does about the expert’s findings,
theories, and conclusions.
When we prepare our thoughts for publication, we choose our words with care:
we have ample time in which to review and contemplate what we have written;
we are able to obtain input from respected colleagues; and, when our words
appear in print, we are not required to disclose how many drafts we
discarded. When offering testimony, the situation, as we are all well aware,
is quite different. An accurate picture of a researcher’s position with
respect to her own work or the work of others is better obtained by examining
the researcher’s writings than by reviewing transcripts of her testimony in
the course of an emotionally charged trial.
Testimony
concerning new-wave research: prejudicial or probative?
Ascertaining what evidence has been critical in juror decision making is not
as simple as it might appear. Even if we presume that jurors endeavor to be
forthright when responding to inquiries concerning the manner in which they
arrived at their decisions, the best they can do is share with us those
aspects of their decision making of which they are aware. Even among trained
professionals, decision making can be influenced by factors of which we are
not consciously aware. [9]
Even undisputed facts can, under certain circumstances, be more prejudicial
than probative. Lyon correctly calls attention to the fact that when asked to
estimate the frequency with which an event occurs, individuals conduct a
mental search for instances of that event. Our estimate of the frequency is
strongly influenced by the number of and/or the impact of examples that come
to mind. To illustrate, ever since the May 1979 disappearance of Etan Patz on
his first unaccompanied two-block walk from home to school, child abduction
has received widespread publicity. It is likely that people asked to quantify
various risks to the health and well-being of children would overestimate the
incidence of abduction—particularly by strangers.
In an apparent endeavor to minimize the importance of suggestive interviewing
techniques, Lyon cites studies from which the data indicate that
approximately 10% of interviewers’ questions are suggestive. The deleterious
effect of one strong suggestion from an authoritative source is not likely to
be diminished simply because it is followed by numerous non-suggestive questions.
Thus, we should endeavor to ascertain the percentage of interviews that are
undistorted by any suggestive questions. That figure would have more meaning.
It has been well established that a proffer of evidence must be accompanied
by confirmation of its authenticity. It must be shown that it is what it is
presented as being. If the prosecution wishes to introduce testimony
concerning what is purported to be a memory of an actual event, the defense
should be afforded the opportunity to question the authenticity of the
memory.
Should
new-wave research guide policy making?
Lyon argues that we should not permit our concern with regard to tactics such
as those of Eileen Treacy to influence policy decisions that might set
standards for all child interviews. As we consider whether or not we should
permit our discomfort concerning one evaluator’s actions in one case to
influence policy decisions, we should bear in mind that the Michaels case was
neither Eileen Treacy’s first case nor was it her last. Treacy functioned as
the state’s expert in many uncomplicated cases that were adjudicated without
fanfare and without offsetting expert testimony concerning the new-wave
research. It would be naive to presume that the methods employed by her in
the Michaels case were unique to that case.
Lyon suggests that investigators must move beyond open-ended questions when
asking young children about possible abuse because of the powerful
disincentives to disclosure. Accused felons, when being interrogated by
police, are strongly motivated not to confess. Should we, therefore, accept
the use by police officers of coercive tactics when they are confident that
the individual being questioned is guilty?
Lyon opines that the interview strategy changes suggested by the new-wave
researchers would hamper the detection of true cases of abuse. Those who
share Lyon’s concern might consider the arguments that were mounted against
Miranda warnings. There was widespread concern that advising individuals of
their rights prior to questioning them would alter the interrogation process
in such a way as to make it more difficult to gather evidence, secure
indictments, and prosecute wrongdoers. We have lived with the terms of the
Miranda decision since 1966 and I believe it safe to say that our country is
comfortable with the concept.
While accepting the validity of one of Lyon’s concerns (that testimony
concerning the new-wave research may cause juror’s to overestimate its
importance in evaluating the testimony of a particular child witness), it
remains my strongly held view that the probative value of such testimony far
outweighs any prejudicial effect that it might cause.
Footnotes
[1]. Thomas D. Lyon, The New Wave in Children’s Suggestibility
Research: A Critique, 84 CORNELL L. REV. 1004 (1999).
[2]. The new-wave research is represented in the following works:
Maggie Bruck, Stephen J. Ceci, &
Helene Hembrooke, Reliability and
Credibility of Young Children’s Reports: From Research to Policy and Practice,
53 AMER. PSYCHOL. 136 (1998);
Stephen J. Ceci & Maggie Bruck,
The Suggestibility of the Child
Witness: A Historical Review and Synthesis, 113 PSYCHOL. BULL. 403
(1993);
Stephen J. Ceci & Maggie Bruck,
Child Witnesses: Translating Research
into Policy, SOC. POL’Y REP., Fall 1993 at 1;
Stephen J Ceci & Maggie Bruck,
JEOPARDY IN THE COURTROOM: A SCIENTIFIC ANALYSIS OF CHILDREN’S TESTIMONY
(1995);
Stephen JCeci & Helene Hembrooke,
EXPERT WITNESSES IN CHILD ABUSE CASES: WHAT CAN AND SHOULD BE SAID IN COURT
(1998);
Stephen J. Ceci, David F. Ross, &
Michael P. Toglia, Suggestibility
in Children’s Memory: Psycholegal Implications, 116 J. EXPERIMENTAL
PSYCHOL.: GEN. 38 (1987);
Stephen J Ceci, Michael P Toglia &
David F Ross, , CHILDREN’S EYEWITNESS MEMORY (1987);
John Doris, THE SUGGESTIBILITY OF
CHILDREN’S RECOLLECTIONS (1991); and,
Elizabeth F. Loftus & Graham M.
Davies, Distortions in the Memory
of Children, 40 J. SOC. ISSUES 51 (1984).
[3] Stephen J. Ceci &
Richard D. Friedman, The
Suggestibility of Children: Scientific Research and Legal Implications,
86 CORNELL L. REV. 33 (2000).
[4] Mary Ann Mason, A Judicial Dilemma: Expert Witness
Testimony in Child Sex Abuse Cases, J. PSYCHIAT. & LAW, Fall/Winter
1991 at 185.
[5] Stuart A. Greenberg
& Daniel W. Shuman, Irreconcilable
Conflict between Therapeutic and Forensic Roles, 28 PROF. PSYCHOL.: RES.
& PRACTICE 1 (1997).
[6] 509 U.S. 579 (1993).
[7] 625 A.2d 489 (N.J. Super. Ct. App. Div. 1993), aff’d, 642 A.2d. 1372 (N.J. 1994).
[8] Maggie Bruck & Stephen
J. Ceci, Amicus Brief for the Case
of State of New Jersey v. Michaels Presented by Committee of Concerned Social
Scientists, 1 PSYCHOL. PUB. POL’Y & L. 272 (1995).
[9] Randy Borum, Randy K.
Otto, & Stephen Golding, Improving
Clinical Judgment and Decision Making in Forensic Evaluation, 21 J.
PSYCHIAT. & LAW 35 (1993).
The
Author
David A.
Martindale, Ph.D., holds a diploma in forensic psychology from the American
Board of Professional Psychology. He is an adjunct clinical professor of
psychiatry at the State University of New York at Stony Brook and an adjunct
clinical supervisor at the John Jay College of Criminal Justice of the City
University of New York. Dr. Martindale lectures regularly for the American
Academy of Forensic Psychology on the topic of evaluating custodial fitness
and is the senior author of Providing
Expert Testimony in Child Custody Litigation, a chapter in the 1991
edition of the Innovations in Clinical
Practice series published by Professional Resource Exchange. His practice
is limited to consulting with psychologists and attorneys with respect to
custody matters. He can be contacted at [email protected].
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