Child Abuse Taint Hearing
Waiting for the criminal trial, the judge granted a pre-trial competency and taint hearing. This was a small victory. In Pennsylvania law, Taint Hearings have become more frequent thankfully to a Pennsylvania Supreme Court ruling in Commonwealth v. Delbridge. Gerald John Delbridge and his attorneys in their appeal to the state Superior Court, argued the children’s testimony was “tainted” by numerous questions posed to them by their mother, investigators, psychiatrists and attorneys. From the beginning, my attorney strongly suggested the need of a forensic psychologist as an expert witness for the alleged child sexual abuse and the desire to have a Taint hearing.
A Taint Hearing is a crucial element of any child sexual abuse case. The hearing can show that a child has been so unduly influenced that it has impaired the child’s ability to testify reliably and truthfully. Moreover, Rule 602 of the Federal Rules of Evidence requires that a witness must have personal knowledge in order to testify in the proceeding.
There are several reasons why a child witness may be incompetent to testify: Because of immaturity resulting in the inability to accurately perceive events; an impaired memory of events; failure to comprehend the duty to tell the truth; taint; the implantation of false memories or the distortion of real memories caused by interview techniques of law enforcement, or other adults. The core belief underlying the theory of taint, is that a child’s memory is peculiarly susceptible to suggestibility so that when called to testify a child may have difficulty distinguishing fact from fantasy.
Prior to the hearing, my forensic psychologist put together the following thoughts that I wished to share.
Child Sexual Abuse Investigatory Interviews
The goal of investigatory interview in causes of suspected child sexual abuse is to gather uncontaminated data. Contamination occurs when a child’s recollections become altered through poor interview techniques, an adverse interview environment, the interviewer’s inappropriate behaviors, or influences outside the interviewer’s control. The child’s memory of any actual experience may be significantly altered by the questions about the incident and the child may develop a memory for events that may have never happened.
There are more contributing factors to Taint that need review. Misuse of techniques and methodological tools, multiple interviews by different people and their multiple repetitions, the use of leading questions, and adoption of unreliable techniques by professionals are examples of factors that lead to the distortion of the child witnesses’ memory and decrease the reliability of his/her testimony.
Moreover, the interviews conducted by the various other individuals (i.e., different people stated above) should be examined, including counselors or therapists who may have worked with the child. An assessment of the following issues would be relevant whether or not this individual had come to any conclusions regarding the child’s claims: what questions were asked of the child; what books, tapes, or other types of information about sexual abuse were given or shown to the child; the qualifications and experience of the interviewers/therapists; and the methodology utilized by the interviewers/therapists.
Allowing the children to simply talk about what happened to them increases the possibility of collecting significant information, which might be missed in a strictly structured interview.
Leading Questions Psychology
To minimize the risk of distortions of memory, it is important to avoid posing leading and misleading questions, repeating questions that have already been answered and techniques that slip information into the memory of the child with the intention of distorting it.
Even if children have a sufficient memory ability to answer simple, direct (non-leading) questions about an incident, the possibility remains that they may have difficulty in conceptualizing complex events, identifying relationships, recognizing feelings and attributing intentions. In each of these circumstances, the accuracy of their reporting depends on their ability to order and interpret perceptions. It is widely recognized that this ability is influenced by age. Generally speaking, this ability is a gradually acquired attribute that does not reach the standard of adult reliability until about the age of twelve.
Interview Questions Techniques
It is important to encourage the child to elaborate on his or her answers. Encouraging the child to talk may reveal unexplored aspects of the case that can be pursued. It is also important to follow the child’s lead as they explain details of what happened, as the child and the interviewer may not be working from the same frame of reference or attaching the same meaning to the terms used by the child.
Suggestive Questioning. What are Leading Questions.
Multiple interviews increase the likelihood that successive adults will consciously or unconsciously induce subtle changes in the child’s version or events. The child’s recollection of what happened may be supplanted with information suggested by adults. The risk is that the interviewer may-purposely or inadvertently-lead the child into an inaccurate version of the facts. The child may be willing to agree to what the interviewer says happened, whether or not the interviewer has the facts.
This has been observed time and again in such major cases.
Young children have not developed the general knowledge schema which are necessary for interpreting and organizing early autobiographical memories. This refers to the fact that the process of information is strongly influenced by pre-existing knowledge and experiences. That is what is encoded and stored in memory is interpreted or organized within the context of existing mental representations. That is why meaningful and familiar material is easier to remember than material that cannot be easily interpreted or organized around previous knowledge and experiences. There is growth in general knowledge with age that helps children to place the new experiences or observation in the context of what they already know. As children become older, they learn more efficient and effective strategies for encoding information. Children have more limited world knowledge of course. As such, they have limited encoding strategies as compared to adults which makes them less able to take in and retain new information.
Cued Recall Psychology
Cued recall may be particularly dangerous with children because they are much more dependent on external cues than are adults.
Child Testimony Reliability
The above research applies to the problems with reliability of a child’s testimony in a court room. The most interesting and damaging for the false accused is a child’s relative inability in some children to distinguish reality from fantasy. Children are prone to fantasize. Children have an inherent suggestibility. Moreover, children have the tendency to confabulate. In psychology, confabulation is a memory disturbance defined as the production of fabricated, distorted or misinterpreted memories about oneself or the world without the conscious intention to deceive. Confabulation is not lying as there is no intent to deceive and the person is unaware the information is false. Individuals who confabulate present incorrect memories ranging from subtle alterations to bizarre fabrications. They are generally confident about their recollections despite contradictory evidence. Confabulated memories of all types most often occur in autobiographical memory, and are indicative of complicated and intricate process that can be led astray at any point during encoding, storage or recall of memory.
Potential sources of suggestibility among children include:
Demand characteristics of the interview setting and its participants.
The credibility of the misleading information.
The linguistic form of the question.
Most noteworthy, children appear significantly more responsive than adults to the expectations and instructions of people in authority. Children generally recall less of observed events and this makes them potentially more suggestible. Even the mere fact that questions are repeated may communicate to the child that their first answer was wrong and that they should give another one.
When a child witness is unable to remember relevant facts, it may be necessary to refresh the child’s recollection. Before the child’s memory may be refreshed however, the interviewer must attempt to elicit the child’s testimony through the normal process of questioning. Refreshment is proper only when examination reveals that the child’s memory is exhausted. Absent such showing, there is no need to refresh recollection. The child whose memory has been refreshed testifies from the present recollection of the past events. Thus, there is the danger that the testimony is nothing more than a repetition of the information gleaned (for the first time) through the process of having his or her recollection refreshed.
False Allegations Child Abuse
In cases where fabrications have been documented, the following are often to be involved: parental influence, suggestive questioning, highly excessive and repetitive interviews, and questioning about peripheral detail. While young children rarely fabricate incidences on their own, they may succumb to suggestive coaching and questioning by adults with preconceived notions about what happened. To the extent to which interview techniques lead a child to imagine or believe that an event took place, that child’s memory of that event will be indistinguishable from memories of events to which the child actually did experience. Once the tainting of memory has taken place, the problem is irremediable. That memory is, from then on, as real to the child as any other memory.
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