In J. Ziskin (ed.), Coping with psychiatric and psychological testimony, Supplement to the Fifth Edition (Out of Print) (pp. 136-147). Los Angeles, CA: Law and Psychology Press.

In the fifth edition, 1995, we mentioned several conclusions about the child witness that are generally accepted by the scientific community and could be said to meet the traditional Frye standard, as well as the newer Daubert. These conclusions, which were summarized by Ceci and Bruck (1993), are of sufficient importance that we will repeat them in this supplement. Any mental health professional who makes contrary claims is vulnerable to cross-examination. Ceci and Bruck's major three conclusions are:

First and foremost, contrary to the claims made by some...there do appear to be significant age differences in suggestibility, with preschool-aged children being disproportionately more vulnerable to suggestion than either school-aged children or adults (p. 431).

Ceci and Bruck also observe that the literature does not support the claim that children are not suggestible concerning central events:

Our review of the literature indicates that children can indeed be led to make false or inaccurate reports about very crucial, personally experienced, central events (p. 432).

Ceci and Bruck's next major conclusion is:

The second major conclusion is that contrary to the claims of some, children sometimes lie when the motivational structure is tilted toward lying (p. 433).

Finally, they state:

Third, notwithstanding the aforementioned two points, it is clear that children-even preschoolers-are capable of recalling much that is forensically relevant (p. 433).

They add that is is extremely important to examine the conditions prevalent at the time of the child's original report:

• If the child's disclosure was made in a nonthreatening, nonsuggestible atmosphere, if the disclosure was not made after repeated interviews,
• if the adults who had access to the child prior to his or her testimony are not motivated to distort the child's recollections through relentless and potent suggestions and outright coaching,
• and if the child's original report remains highly consistent over a period of time,
• then the young child would be judged to be capable of providing much that is forensically relevant.

The absence of any of these conditions would not in and of itself invalidate a child's testimony, but it ought to raise cautions in the mind of the court (p. 433).

Since this 1993 article, credible scientific research has continued to accumulate regarding the suggestibility of children to adult social influence.

Ceci and Bruck's 1995 book published by the American Psychological Association, Jeopardy in the Courtroom, contains the best general discussion. This book should be read by any attorney or mental health professional who is involved in any way with child witnesses and sexual abuse allegations. The book is built around seven actual cases and the relevant scientific research is discussed in terms of the interviews and investigation of these cases. The research is current and includes several studies that more closely approximate what happens in the real world, which meets the plea for more ecologically sound research and increases the generalizability of the findings.

Several studies described by Ceci and Bruck (1995) indicate that suggestively interviewed children may produce false statements about fictitious events, including central events and errors of commission

• (Bruck, Ceci, Francoeur, & Barr, 1995; Ceci, Crotteau-Huffman, Smith, & Loftus, 1994; Ceci, Loftus, Leichtman, & Bruck, 1994; Leichtman & Ceci, 1995; Lepore & Sesco, 1994).

These false reports may be coherent, detailed and believable.

Leichtman and Ceci (1995) showed videotapes of the statements of three children in their study to researchers and clinicians at two professional conferences to see if they could discriminate between the erroneous reports and the accurate ones. The majority of both audiences could not reliably tell whether the events reported by the children had occurred or not and could not tell which children were the most accurate. In fact, the one child who had described the events accurately was rated the least credible while the most inaccurate child was seen as the most credible.

This demonstration of the inability of mental health professionals to discriminate true and false accounts on the basis of hearing a child's report makes it difficult to support an ability, based on experience alone, to give an opinion on the ultimate issue. Leichtman and Ceci (1995) observe that this suggests the accuracy of children's reports is extremely difficult to discern when children have been subjected to repeated erroneous suggestions.

The conclusions from the current research are clear:

• When children are interviewed skillfully and appropriately and supported and encouraged to tell their story in their own words, they can provide accurate and forensically useful information.
• But when interviewers use suggestive, leading, specific, and coercive questioning to get the child to confirm preexisting biases about abuse, they risk eliciting false statements about abuse.

Despite growing knowledge about how interviews should be done to increase the reliability of the information elicited, many interviews in actual cases continue to be inappropriate and contaminating

• (Underwager & Wakefield, 1990; Warren, Woodall, Hunt, & Perry, 1996).

Although Myers (1996) maintains that there is no universally agreed-on protocol for interviewing children, there are general principles that the scientific community accepts for conducting a noncontaminating interview and attorneys and experts for both sides need to be familiar with this literature. We discuss this in the fifth edition.

• (In addition to the references cited in the fifth edition see Adams, 1996; Bull, 1995; Davies et al., 1996; Myers, 1996; L. D. Reed, 1996; Warren & McGough, 1996; Wood, McClure, & Birch, 1996; Yuille, Hunter, Joffe, & Zaparniuk, 1993 for discussions of general principles for conducting effective, noncontaminating interviews of children.)

As we stated in the fifth edition, although young children can provide forensically useful information, adults must let them do this. The free recall of young children is limited but accurate. But, since young children provide limited information in free recall, the tendency is for interviewers to start using leading and suggestive questions, which can influence the child and distort the story. In addition, young children may try to tell the interviewer what they believe the interviewer wants them to say and they may answer questions they do not understand and about which they have no information.

Because of this, there is general agreement in the scientific community that

• interviewers should encourage children to tell in their own words what has happened by asking open-ended questions and encouraging free narratives. Questions such as, "and then what happened" may encourage more details.
• Children should be told not to try to answer questions when the answer isn't known and
• pressure and coercion and selective reinforcement of responses must be avoided.
• If closed questions must be asked, they should come only at the end of the interview, and
• the interviewer should not provide information that has not been previously mentioned by the child.
• Repeated questions should be avoided since this tells children the previous answers were not acceptable. 
• All interviews should be videotaped, or at least audiotaped, since a tape is the only means whereby the procedures and information obtained during the interview can be accurately documented.
• Discussions of "good touch" and "bad touch" should not be used since these are confusing and potentially contaminating.
• Also, as discussed below, anatomical dolls should be avoided.

Deficiencies in interviews can be pointed out in trial and defense experts can testify concerning appropriate interview techniques and critique the techniques in the instant case. (See the above references along with those in the fifth edition.)

Since such testimony is concerned with the behavior of the interviewers rather than the credibility of the child, it does not invade the province of the finder-of-fact. Two recent appellate rulings have dealt with the admissibility of testifying about how children should be interviewed.

• In State v. Gersin (1996), the Ohio Supreme Court ruled that the defense expert should have been allowed to testify as to the proper protocol for interviewing child witnesses regarding alleged abuse. The court noted that, rather than infringing on the fact finder's role, such testimony by an expert assists the trier-of-fact.
• In United States v. Rouse et al. (1996), the Eighth Circuit ruled that the defense expert should have been allowed to testify that the children's evidence and testimony became tainted by suggestive influences to which the children were subject in the investigation and trial. However, this decision was later reversed by the Eighth Circuit.

In some instances persons who claimed to be wrongly convicted have relied upon the development of this research evidence to claim there is now new evidence available. We have supplied affidavits describing the recent research and they have won new trials and subsequently been acquitted.

The Taint Hearing

The New Jersey Supreme Court in State v. Michaels (1994) created a procedure allowing defense attorneys to request a pretrial hearing - called a "taint" hearing - to challenge the investigative interviews of the children.

The highly publicized Kelly Michaels preschool case resulted in a conviction that was overturned by New Jersey's intermediate Court of Appeals five years later (State v. Michaels, 1993). In overturning the conviction, the court noted that

• "the questioning of the children was so suggestive and coercive that they were rendered incompetent to testify" (p. 493).

It ruled that, if the prosecution wanted to retry the case, it would have to hold a pretrial taint hearing. The prosecution appealed to the New Jersey Supreme Court for reconsideration of this specific holding and the court upheld the requirement for a taint hearing.

Myers (1996) observes that, although the Michaels decision creates official policy only for New Jersey, the taint hearing procedure is likely to spread to other states as defense attorneys request such hearings, and he mentions other states including Delaware, Massachusetts, New York, Ohio, and the military where such hearing have taken place. We have been been involved in cases involving taint hearings in Wisconsin and Pennsylvania.

Defense attorneys should request a taint hearing whenever they believe suggestive and coercive interviews may have destroyed the child's ability to testify truthfully or when they believe that the child's statements to others are unreliable because of defective interviewing.

The New Jersey Supreme Court states,

• "The initial burden to trigger a pretrial taint hearing is on the defendant; defendant must make showing of 'some evidence' that victim's statements were product of suggestive or coercive interview techniques" (p. 1372).

If the judge then believes that the pretrial interviews were seriously suggestive and coercive, he may rule that any statements the child has made to others are tainted and cannot be used in court to support abuse. The judge can also rule that the child's memory is so distorted that any testimony will be unreliable and the child should not be permitted to testify at trial.

Many people believe that taint hearings provide a much-needed safeguard to defendants and a remedy for defective interviews. We think they are a step forward and provide a fair way of handling suggestive and coercive interviews. But it must also be clear that the presence of suggestive, coercive interview procedures in the development of an accusation does not in itself make the accusation false. The totality of the information about a given accusation needs to be assessed carefully before determining that leading and coercive questioning invalidates an accusation.

Others are disturbed about this ruling. Myers (1995, 1996) fears taint hearings will perpetuate unwarranted skepticism about child witnesses, be overused by defense attorneys, and undermine the state's ability to protect children. He concludes that the disadvantages of taint hearings dwarf the benefits and recommends that children's statements should be suppressed only in rare circumstances. However, this anxiety is speculative conjecture and Myers presents no data to suggest such a concern.

Taint hearings will involve expert testimony by mental health professionals. Both prosecutors and defense attorneys must be familiar with the current literature on child witnesses in order to examine effectively mental health experts who are either defending or criticizing the interviews. All interviews will have some elements of suggestiveness in them and suggestiveness alone does not necessarily violate the defendant's due process rights. Defense attorneys must persuade the judge that the interview was so unnecessarily suggestive that the child's statements cannot be considered reliable. Prosecutors must present evidence that the interview was not so suggestive as to make the child's statements unreliable.

The role and function of mental health professionals in taint hearings is somewhat new and may be unusual for many forensic mental health professionals. Professional ethical considerations should be carefully reviewed and any opinions in a taint hearing should be able to be supported by credible scientific research that meets the current standards of admissibility. This raises the issue of the U.S. Supreme Court's most recent ruling on the nature of scientific evidence and its admissibility.

Daubert vs. Merrell Dow Pharmaceuticals

• "Understanding the implications of the Daubert decision will most likely require significant effort since this is a revolutionary change that shifts the entire enterprise into new and untried ground . . .
  The process of working out the implications of this decision will likely take many years, countless cases, and a multitude of confused attorneys and irate judges . . .
  One thing is certain. Scientists who offer expert testimony in the courtroom need to be knowledgeable and skilled in dealing with the philosophy of science and the issues raised by the establishment of the criterion of falsifiability as the determinant of science" (Underwager & Wakefield, 1993).

The United States Supreme Court decision in Daubert vs. Merrell Dow Pharmaceuticals in June, 1993 was discussed in the fifth edition, chapter 23. This ruling changed the criteria by which scientific testimony is admitted as evidence in court.

In summary, the ruling states that the major criterion of the scientific status of a theory is its falsifiability, refutability, or testability. Justice Blackmun identified four factors that the court should consider in determining whether an expert's opinion is valid under rule 702:

1. Whether the expert's theory or technique has been or can be tested or falsified.
2. Whether the theory or technique has been subjected to peer review or publication.
3. What the known or potential rate of error is for any test or scientific technique that has been employed.
4. Whether the technique is generally accepted in the scientific community.

Although general acceptance in the scientific community (the Frye test) is one consideration, the lack of such by itself does not preclude the proposed testimony. At the time the ruling was rendered, there was disagreement as to whether its major effect would be to make admissible new scientific evidence that was excluded under Frye or whether it would render inadmissible testimony based on such concepts and theories as the child sexual abuse accommodation syndrome and repressed memories (see Chapter 1).

Since the decision in 1993 there have been numerous cases that have reached the appellate court level

• (see Chapter 1 for Daubert and the Child Sexual Abuse Accommodation Syndrome).

Several journal articles have dealt with the ramifications of the ruling

• (e.g., Imwinkelried,1993, 1994; Gless, 1995; Faigman, 1995; Melton, 1993; Richardson, Ginsburg, Gatowski, & Dobbin, 1995; J. E. Reed, 1996; Solomon & Hackett, 1996; Urban, 1996).

Most of the rulings and the articles have applied the criteria to specific issues in determining the scientific status of evidence and thus admissibility. However, these decisions and analyses are somewhat short sighted and none have yet dealt with what may be the most powerful new principle set forth in the Daubert decision-the understanding of the nature of the scientific enterprise.

Most professionals in the justice system, law enforcement, and social work assume that the nature of science is systematic discovery of the unchanging laws of nature that are the basis for an orderly universe and a stable existence. Many mental health professionals also view science in this way and assume that science, including social science, proves various propositions.

Not only does the Daubert decision change that somewhat unsophisticated concept to the acceptance of the criterion of falsifiability, Justice Blackmun also sets forth the limits of science. Science does not produce theories that are "immutably true." Justice Blackmun also asserts:

• "Of course, it would be unreasonable to conclude that the the subject of scientific testimony must be 'known' to a certainty; arguably, there are no certainties in science" (Daubert vs. Merrell Dow Pharmaceuticals, 1993, p. 2795).

The Supreme Court's recognition of the uncertainty of the scientific venture will have consequences far beyond the limited issue of the admissibility of evidence claimed to be scientific and the role of expert witnesses. This perception will likely affect diverse issues such as invoking judicial notice, hearsay, and whether a party has established an evidentiary case able to avoid a directed verdict. It will likely affect the recognition and incorporation of statistical information, the understanding and interpretation of reasonable doubt and preponderance of the evidence (Imwinkelried, 1996). It may well shift the network of epistemological assumptions undergirding the entire justice system and all of jurisprudence. The best efforts of mental health professionals and legal scholars must be drawn into the clarification and development of the implications of this decision. It will be both exciting and exasperating, but whatever the process or the outcomes, it cannot be ignored.

Medical Evidence

As noted in the fifth edition, initial claims about medical evidence suggestive of child sexual abuse were often overstated and mistaken. But research on the appearance of the genitals in normal, nonabused children performed by McCann and his colleagues (McCann et al., 1989, 1990a, 1990b) has dramatically changed this situation.

These researchers found a high incidence of nonspecific findings such as erythema, tags, fissures, scars, adhesions, notches, thickening, and anal relaxation in their sample of nonabused children. They also found that the vertical and horizontal hymenal orifice diameters varied, both by age group, and according to the technique and position used to measure them.

These findings are well known in the medical community and competent pediatricians are now much more cautious about concluding that nonspecific findings indicate sexual abuse. But some pediatricians continue to testify that such findings are "consistent with" abuse-testimony that is apt to be given more weight in a trial than it deserves. The attorney must therefore be prepared to vigorously cross-examine the medical expert who testifies that nonspecific physical findings indicate sexual abuse.

Although there is agreement in the scientific community that medical examinations are important, it remains the case that most victims of verified abuse have normal or nonspecific findings

• (Adams, 1995; Adams, Harper, Knudson, & Revilla, 1994; Lamb, 1994).

Therefore, normal findings cannot be used to rule out abuse unless the allegations are of abuse that would be expected to result in noticeable physical findings. An excellent resource is an atlas and guide by Heger and Emans (1992). This book contains 120 color plates illustrating the many variations in the genitalia of nonabused children and showing the types of findings in abused children. Also, some researchers have attempted to systematize the research findings using a classification scale for genital findings (Adams, 1992; Bays & Chadwick, 1993). These should be helpful resources for attorneys.

Dolls and Drawings

The use of anatomical dolls remains extremely controversial, with some professionals claiming they are useful and others contending that they are too suggestive. They cannot be said to be generally accepted in the scientific community and the anatomical doll techniques are unlikely to meet Daubert.

There remains general agreement that if the dolls are used, it must be with great care, that the child's interaction with the dolls should not be the basis for an opinion or conclusion about sexual abuse, and that they should not be used with very young children who are unable to use dolls as symbols or representations (see fifth edition for references and a discussion of this).

Efforts to support continued use of the dolls include recognition of the problems and the limitations on their usefulness (Boat, & Everson, 1996; Simkins, & Renier, 1996). Attorneys should be familiar with the literature cited in the fifth edition and be prepared to use it to cross-examine examiners who have used the dolls.

In the fifth edition, we concluded that Children's drawings, such as the House-Tree-Person (HTP) and Kinetic Family Drawings, as well as free drawings, cannot be used diagnostically to substantiate sexual abuse. The literature since then continues to support this conclusion.

Smith and Dumont (1995) state that research spanning four decades has failed to provide any compelling evidence in support of the validity of human figure drawings in assessing personality, behavior, or intelligence (p. 299). They note that the confirmatory bias that is expressed in anchoring errors predisposes clinicians to find support for their initial opinions in whatever material the client provides. Any conclusions about sexual abuse based on a "sign" interpretation of drawings should be vigorously challenged in cross examination. Mental health professionals should be asked to provide supportive data for such interpretations and to describe contrary data.

A recent New Zealand research report also calls into question the utility of drawings during an interrogation as a prompt or priming technique (Rawls, 1996). Drawings are reported to have increased errors and confabulation in children's accounts.

Evaluations of the Effects of Child Sexual Abuse

In the fifth edition, we noted that the major error we see in plaintiffs' experts is the assumption that sexual abuse inevitably causes alleged victims severe and long-lasting psychological problems.

We cited the literature that discussed the fact that not all victims of childhood abuse show later adjustment problems. Since then, there have been three important articles dealing with this issue.

Levitt and Pinnell (1995), in a comprehensive article, examined the relationship between childhood sexual abuse and adult psychopathology. They maintain that empirical investigations of childhood sexual abuse conclude that not all victims are emotionally injured and a majority of victims suffer no extensive harm.

They examined four reviews of the literature, comprising 94 studies that investigated the impact of childhood sexual abuse. Some reported that most victims have been harmed; a few reported no harm; and most found that a minority of victims had been harmed. A dysfunctional home is more likely to result in emotional disturbance than is any single type of sexual abuse. Levitt and Pinnell state that

• "the traditionally accepted link between childhood sexual abuse as an isolated cause and psychopathology in childhood lacks empirical verification" (p. 151).

Bauserman and Rind (1997), in a review of the nonclinical literature, report that research with nonclinical samples reveals a broad range of reactions, with most reactions being either neutral or positive. They also observe that the effects of boys' early sexual experiences with older persons cannot be accurately inferred from clinical research alone or from girls' experiences.

Rind and Harrington (undated) examined the psychological correlates of early sexual experiences and the validity of inferring that childhood sexual abuse causes later psychological maladjustment. They note that the assumption that child sexual abuse destroys adult mental health is a fundamental assumption of many child sexual abuse "experts" and that notions such as repression and recovered memory therapy rest upon this basic assumption.

However, the studies supporting these assumptions suffer from a number of methodological problems. When family dysfunction is controlled and nationally representative samples and college samples are used, the assumption that sexual abuse typically damages mental health is not supported. Family background and other factors are more strongly related to later psychological adjustment than is sexual abuse per se.

Attorneys who are involved in cases concerning alleged emotional damage due to sexual abuse should be familiar with this information. Any mental health professional who makes broad claims that current emotional damage has been caused by childhood sexual abuse must be able to respond to the points raised in these articles.

Conclusion

The continued accumulation of scientific research remains supportive of efforts to increase the accuracy of determinations and opinions expressed in response to accusations of sexual abuse. Legal scholarship and philosophy of science are likely to produce marked changes in jurisprudence and development of different procedures in the justice system.

References

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Adams, J. A., Harper, K., Knudson, S., & Revilla, J. (1994). Examination findings in legally confirmed child sexual abuse: It's normal to be normal. Pediatrics, 94(3), 310-317.

Adams, J. K. (1996). Investigations and interviews in cases of alleged child sexual abuse: A look at the scientific evidence. Issues in Child Abuse Accusations, 8, 120-138.

Bays, J., & Chadwick, D. (1993). Medical diagnosis of the sexually abused child. Child Abuse & Neglect, 17(1), 91-110.

Bauserman, R., & Rind, B. (1997). Psychological correlates of male child and adolescent sexual experiences with adults: A review of the nonclinical literature. Archives of Sexual Behavior, 26(2), 105-141.

Boat, B. W., & Everson, M. D. (1996). Concerning practices of interviewers using dolls in child protective services investigations. Child Maltreatment, 1(2), 96-104.

Bruck, M., Ceci, S. J., Francoeur, E., & Barr, R. J. (1995). "I hardly cried when I got my shot!": Influencing children's reports about a visit to their pediatrician. Child Development, 66, 193-208.

Bull, R. (1995). Innovative techniques for the questioning of child witnesses, especially those who are young and those with learning disability. In M. S. Zaragoza, J. R. Graham, G. C. N. Hall, R. Hirschman, & Y. S. Ben-Porath (Eds.), Applied Psychology, Individual, Social, and Community issues: Vol. 1. Memory and Testimony in the Child Witness (Hardcover)(Paperback) (pp. 179-194.). Thousands Oaks, CA: Sage Publications.

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Lepore, S., & Sesco, B. (1994). Distorting children's reports and interpretations of events through suggestion. Journal of Applied Psychology, 79(1), 108-120.

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