MEETING DORTHY

1. MEETING DORTHY Wonderful and Terrible Methods of Interviewing Complainants Ann Dell Duncan-Hively, Ph.D., J.D. Wells Hively, Ph.D. June 5, 2009 Albuquerque, New Mexico

3. WHAT IS GOING ON? It may all be in the eye of the beholder: when is a touch just a touch, or sometimes it is just a cigar

4. WHEN IS A TOUCH JUST AN EXPLORATION Children learn by imitation and repeating the actions of others.

5. INTERVIEWING “COMPLAINANTS” • When you refer to the accuser as a “victim” you affirm the prosecutor’s case. • They aren’t “Victims” yet until the defendant is convicted. • By the time you get to interview them, most will have been interviewed on an average of 20 previous occasions, mostly informal and not documented. • Their stories will be well rehearsed and they may be contaminated in numerous ways.

6. SUGGESTIVE QUESTIONS • Yes-No Questions: “Did grandpa take your panties off?” • Explicitly Leading Questions: “Grandpa took your panties off, didn’t he?” • Imaginary questions: “If grandpa took your panties off, what would you do?” • Other forms of suggestion: • Repeated questioning - not accepting “no” for an answer • Differential reinforcement – You’re doing great” or “You’re not answering my questions very well.” • Stereotyping – “Sometimes old men like grandpa do bad things to children like you” • Peer pressure – “Some other kids told me that your grandpa took their panties off. Did that happen to you?”

7. SOME KEY SUGGESTIBILITY STUDIES • Garvin et al. (2000) – Suggestive questions about children’s memories of plausible and bizarre events, plus differential reinforcement of children’s answers (“that’s great”, “you’re not doing very well”) produced 35% assent to plausible, 52% to bizarre events that children did not actually observe. These false memories persisted into neutral interviews two weeks later.

8. REPEATED INTERVIEWS • Bruck et al. (2002) Four repeated interviews (once a week for four weeks) using a combination of suggestive techniques (leading questions, peer pressure, imagining, encouragement and praise for talking about the event, disapproval for not talking about it, and repeated questioning,) caused nearly all the children to say that they had experienced certain events whether they had or not.

9. How Young Can You Interview? At this age the behaviors reflect the experience and are often inaccurate and misinterpreted

10. ALL AGES SUSCEPTIBLE • Geddie et al. (2000) Age appears to be the single best predictor of suggestibility with pre-schoolers the most susceptible, but older children are also significantly susceptible under conditions of poor interviewing procedures, motivation to misrepresent, or “me too itus” a disease that tends to strike the young adolescent girl when she wants to join the drama of a life event.

11. KIDS TALKING TO EACH OTHER CAN GENERATE SUGGESTIBILITY • Principe et al. (2008) Rumors spread among peers led to false reports in which many children claimed to have actually seen the false events themselves. • Be sure to determine if the school has just had a program on sexual assault or abuse as that triggers reporting.

12. WHICH CHILD IS THE MOST VULNERABLE? Older children are not necessarily reliable

13. FALSE MEMORIES AREN’T RESTRICTED TO MINOR DETAILS • Burgwyn-Bales et al. (2001) Suggestive interviews influence children’s reports not only of objective observations but also of central details to negative and painful events such as emergency room visits.

14. HOW LONG DOES THE EFFECT OF SUGGESTIBILITY LAST? • London et al. (2008) Suggestive questioning affected children’s reports during unbiased interviewing following a delay of 15 months. • Most criminal trials take longer than six months from indictment to jury selection, therefore the effects of poor interviewing can carry over into trial.

15. CAN’T YOU TELL THAT THEY ARE LYING? • Leichtman& Ceci (1995) Legal and psychological experts do no better than chance in distinguishing between children’s true and false memories when they watch videos of children telling stories that emerged as a result of suggestive techniques. • Jurors base their opinions on their own sexual experiences. One in three women assaulted below age 18, one in five men.

16. The Behaviors of the Person Emotional, intellectual, language age of complainant dictates how interview is to be conducted

17. AGE 2 TO 5 • Limited ability to focus, often uncomfortable with strangers, appear to understand more than they do. • Jury’s tendency to disbelieve their testimony depends on the quality of the interviewer rather than the child’s characteristics • Good ability to respond to open ended questions and accurately report limited information about events unless contaminated procedures used in interview

18. DEFENSE STRATEGY • Make the time line for first disclosure • Document the multiple interviews • Assess transcript of child advocacy center interview for leading questions etc. • Highly suggestible children matched with interviewer’s insertion of information • Answer Juror’s question “But why would she say that if it wasn’t true”

19. AGE 6 TO 11 • Difficulty understanding abstractions • Does not have numeration or time concepts • Compound sentences or concepts confusing • Often affirms the end of the sentence rather than clarify misunderstandings • Jury’s tend to believe this age group even if testimony confused and inadequate • Given the opportunity will provide additional information that appears to be fantasy

20. DEFENSE STRATEGY • Look for other factors in the case i.e. mother’s history of being sexually assaulted at same age as child • Motivation of parent to add factor of abuse allegations before, during, and after divorce • Inappropriate questioning for age and developmental status of child • Most often first report is to emotional connection (mother or grandmother)

21. AGE 12 TO 15 • Language skills similar to adult but limited elaboration on events • Can accurately report time, frequency, location and duration • Emotions interfere with/or contaminate memory • Jury’s tend not to believe reports as ascribe motivation to complainant • Easily influenced by internet pornography and peer pressure to perform

22. DEFENSE STRATEGY • Look at schedule of educational programs at school for sexual content • Find the best friend or neighbor who just made similar allegations • Determine motivation to get rid of step parent • Subpoena internet and cell phone records i.e.MySpace or FaceBook records • Most often first report is to peer or school teacher

23. AGE 16 TO ADULT • Failure to report events immediately • Emotional constriction misread as “it didn’t happen” versus emotional flooding • Evidence of PTSD (dissociation, splitting) • Personality disorders effect descriptions of events (narcissism/sociopathy/ borderline) • Jury’s search for inconsistencies, vote for endorsing the complainant if defendant not “attractive”

24. DEFENSE STRATEGY • Look for inconsistencies in descriptions over time • Analyze relationship dynamics for mistake • Assess degree of force or threat used • Focus on consent by history or verbally • Determine presence/absence of personality disorder in complainant and your client • Most often first report is to friend

25. NON-SUGGESTIVE QUESTION TYPES • Free Narrative: “Tell me everything about when you go to grandpa’s house.” • Open-ended questions: “You said you had to poop and you were crying. Tell me all about that, from the beginning to the end.” • Specific, non-leading questions: What did grandpa do when you were crying? • Closed, multiple-choice questions: When you went to the hospital, did you talk to a doctor or a to nurse or to someone else?

26. BEST PRACTICE INTERVIEWS • Key researchers in the development of interview protocols (See “References” in your handouts): • Debra Poole • Michael Lamb • Phillip Esplin • Thomas Lyon • Combining developmentally appropriate questioning with minimum suggestibility. • In your handouts: “Speaking With Children: Advice from Investigative Interviewers” by Thomas D. Lyon

27. LYON’S “TIPS” • 1. Begin with instructions • 2. Ask for practice narrative • 3. Keep questions as general and open-ended as possible (one thing at a time) • 4. Use “wh” questions - what, when, where, who, how (watch out for why) • 5. Ask time-segmentation questions, e.g. “What happened just after he…” and cue questions, e.g. “You said he … Tell me more about that.”

28. LYON’S TIPS CONT’D • 6. Avoid recognition (yes/no) questions, - did, was, were. If you ask a recognition question, follow up with an open-ended question. • 7. Replace pronouns with names – “Steve” instead of “he” • 8. Replace deictics with nouns - “In the garage” instead of “in there” • 9. Don’t ask how many times an event occurred, but whether it happened once or more than once. Follow up by focusing on individual episodes (e.g. first time, last time, worst time) • 10. Don’t ask what time or date an event occurred, but about concurrent events that enable you to estimate the time

29. EXAMPLE: INTERVIEW INSTRUCTIONS • I’m going to ask you some questions • Maybe, sometimes you won’t know the answer, like if I asked you what’s the name of my dog, what would you say?... (I don’t know.) • But most of the time you probably will know the answer, like if I asked you what’s the name of your dog, what would you say? … (Dog’s name, or I don’t have a dog) • What if I asked you “Was it mimsy in the burrogrove?” What would you say? … (I don’t know what you mean, or I don’t understand) Practice until the options are clear

30. EXAMPLE: PROMISING TO TELL THE TRUTH • A well-researched form for eliciting a promise: “It’s very important that you tell me the truth. Can you promise that you will tell me the truth? … Will you tell me any lies?...” Lyon, Malloy, Quas and Talwar, “Coaching, Truth Induction and Maltreated Children’s False Allegations and False Denials,” Child Development, July/August 2008, Volume 79, Number 4, pp. 914-929

31. EXAMPLE: PRACTICE NARRATIVE • Based on complainant’s “transitional object” • What’s the name of your bear? • Who gave her/him to you? • Where did you get her/him? • Tell me all about the first time you got him…. • What is your favorite thing to do with him • What is your biggest scariest worry about your bear • What do you talk to your bear about

32. EXAMPLE: OPEN-ENDED CROSS-EXAMINATION • To find out how much the complainant was coached in preparation for today’s testimony: • Who brought you here today? • Where is she/he right now? • Tell me about her/him. • How does she/he help you? … • The last time you talked to her/him, what did you talk about? What did she/he say? Tell me all about it. • Now look at the other people here in this room. Who else do you know?...

33. KEEP QUESTIONS SIMPLE! • The linguistic complexity of the defense attorney’s questions to the complainant has been shown to be strongly related to the outcome of the case. • The more complex the questions, the more likely the defendant will be found guilty. See Evans, Lee and Lyon, “Complex questions by Defense Lawyers But Not Prosecutors Predicts Convictions in Child Abuse Trials,” Law and Human Behavior, 2008

34. IT MAY LOOK EASY, BUT IT ISN’T • The open narrative approach works in spite of: • It goes against your legal training, takes too much time, and may create more harmful information that the prosecutor will use. • So, practice, practice, practice by finding a child and using free narrative instead of question answer format! You might discover your child knows how to talk at the dinner table.

35. BUT IT’S WORTH THE TROUBLE • A protocol with free narrative will (almost) fit all ages and types of offenses • You’ll find out more information by using the protocol with a cognitive interviewing approach (see handout from FBI) • And the jury will like you better, because you won’t be perceived as confusing or bullying the complainant

36. Go with the flow Children can tell you what you need to know, just learn to listen