LEE R. KERR

ROSEBUD COUNTY ATTORNEY

Rosebud County Courthouse

P.O. Box 69

Forsyth, MT 59327

(406) 356-2236

Attorney for Plaintiff

MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

STATE OF MONTANA, ) CAUSE NO. DC 97-05

)

Plaintiff, )

) EXPERT TESTIMONY ON

vs. ) CHILDREN’S SUGGESTIBILITY

)

NEIL TEETH, a/k/a, )

NEIL JONES, )

)

Defendant. )

Prosecutors are increasingly confronting expert witness testimony attacking the reliability of children’s disclosures of sexual abuse and the interview techniques of investigators. The Michaels , decision is frequently cited as authority for this form of expert testimony. Defense experts routinely rely on psychological research examining children’s memory and suggestibility as foundational support for their opinions, and often refer to these research findings during their testimony.

Defense experts claim improper interviewing techniques can produce both inaccurate statements from children and also cause them to incorporate suggested information into their memory of the event. In the latter circumstance, the defense claim is thattraditional methods of cross-examination will not be effective in uncovering the truth because the child’s original memory has been replaced by the suggested information. Accordingly, the child’s reliability as an historian is compromised to such an extent that the only alternative is to exclude the child’s statements and testimony. Reliance on the child’s statements to investigators under a “hearsay” exception may increase the likelihood of defense expert testimony in an effort to establish the statements are not “reliable.”

Several challenges can be made to this body of scientific research and expert testimony incorporating it. Prosecutors should first challenge use of the Michaels decision as precedent. The Court’s decision relied extensively on the scientific research outlined in an amicus brief filed by psychologists Stephen Ceci an Maggie Bruck. Significant limitations on the application of thisresearch were not disclosed to the court. Additionally, the Court did not analyze this scientific evidence to determine whether it met legal standards for admissibility under Frye or Daubert. Subsequent decisions relying on Michaels have likewise not conducted this analysis.

In Daubert, the Supreme Court found Frye’s test of “General acceptance” in the scientific community was incompatible with the provisions of the Federal Rules of Evidence (FRE). Instead, the court held the provisions of FRE 702 governing expert testimony and the general relevancy provisions of FRE 401 and 403 were controlling. To meet these standards, the expert testimony must be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Additionally, FRE “702's ‘helpfulness’ standard requires a valid scientificconnection to the pertinent inquiry as a precondition to admissibility.”

The Court also outlined five factors for consideration in determining the admissibility of scientific evidence and expert testimony. Those factors are outlined below as they apply to research on children’s memory and suggestibility. Most of these points impact multiple Daubert criteria, and each represents an area in which prosecutors can challenge the admission of this scientific research and expert testimony.

WHETHER THE THEORY OR TECHNIQUE HAS BEEN TESTED

(1) Little research has been conducted on children over six. Research on younger children has no direct application to older children which comprise the majority of child victims testifying in court. (2) There are no base rates for suggestibility factors for children at different ages. Most research generalizes reporting of data across age groups, lumping 4-6 year olds together in the statistics. (3) Little research examines the emotional component of disclosure and its relationship to suggestibility factors, e.g. the extent to which the child’s affection for an abuser may inhibit disclosure and/or the influenceof suggestive questioning procedures. (4) There is little recognition in research of how the child’s initial disclosure may influence the effects of suggestive questioning at a later time. (5) Few research studies have examined the effects of one or two improper interviews as compared to multiple suggestive interviews. (6) Little research tests children’s resistance to suggestibility factors where children are told they can answer questions with “I don’t know” or “I can’t remember” responses, rather than being forced to give an answer to the question posed by the researcher. (7) No testing has been conducted on actual abuse populations. (8) Studies have not been replicated to confirm results. Replication is a principle tenet of scientific methodology.

WHETHER THE THEORY OR TECHNIQUE HAS A KNOWN ERROR RATE

(1) Research data generally are not reported by a specific age or developmental level, and studies do not differentiate between developmental age and chronological age. (2) Studies evidence conflicting data within a specific research project and across studies. Error rates are not fixed or necessarily indicated by the percentage of erroneous responses quoted in research findings. (3) Suggestibility and reliability in research is gauged by the child’s response to target questions, not in terms of the overall reliability of data provided by the child. Jurors and investigators evaluate the totality of circumstances in deciding the truth. Statistically significant results may occur on target questions that are peripheral to the core issue, or oninsignificant events. (4) Studies cannot predict the efforts of confounding variables for multiple suggestibility factors, or potential mitigating factors to suggestive influences. (5) Suggestibility is not a “trait” that remains constant but a complex phenomenon determined by various situational factors and personality variables. An individual may be highly suggestible in one setting and highly resistive to suggestion in another.

ARE THERE STANDARDS CONTROLLING THE TECHNIQUE’S OPERATION

(1) Divergent methodologies characterize the research studies. Factors that vary across studies include: the type of recalled event (participatory vs. observed, significant vs. insignificant); form of remembering task (free recall vs. recognition); length of delay between event and recall; single or multiple interviews; setting for experienced event or interview; age of children; types of questions posed to child (leading, suggestive or forced choice). (2) The ecological validity of research methodologies remains a significant issue for application of results to forensic situations. (3) Methodological differences in studies reflect the bias or focus of researchers rather than a neutral scientific approach. One school focuses on weaknesses in children’s memory and the impact of suggestibility factors, the other highlights children’s strengths. Results largely reflect the objectives of researchers and the methodologies used to test their underlying hypothesis. (4) There is little control in researchprotocols for the potential effects of linguistics in the questions posed to children.

WHETHER THE THEORY OR TECHNIQUE IS GENERALLY ACCEPTED

(1) Researchers acknowledge discrepant findings within and between studies; many acknowledgment a lack of scientific consensus. (2) Researchers acknowledge the need for further research in the conclusions to virtually every study. (3) Researchers disagree over whether suggestibility effects lead to erasure of the child’s original memory. (4) There are extensive peer critiques in the professional literature.

This body of research has several other significant limitations which should bar its admission in court. First, research cannot replicate either the circumstances of the abuse or the circumstances of the disclosure. Nor can research studies replicate the variety of circumstances characterizing the investigative interview subject to challenge. Second, research cannot account for individual differences in children’s responses. Within individual studies, children’s responses vary widely reinforcing the notion that the victim’s responses vary widely reinforcing the notion that the victims’ responses in the particular case cannot be predicted by group data from research. Third, the percentage of false responses to suggestive questions in research is generally not greater than 50%. Consequently, the data do not suggest that “more probably than not” the use of similartypes of questions during the investigative interview would likely result in a false response.

The inability of research findings to directly correlate with the specific case facts or an individual child substantially diminishes the probative value of such research in a forensic context. Any such application through expert testimony would amount to little more than “subjective belief or unsupported speculation” which fails to satisfy Daubert’s criteria of a “valid scientific connection to the pertinent inquiry.”

Any competent and ethical presentation of expert testimony on this topic should encompass a thorough discussion of the conflicting methodologies and results in the research, including limitations in generalizing from these results to specific circumstances. Jurors who lack backgrounds in psychology, child development, scientific research and statistical analysis can hardly be expected to sift through the myriad of complexities implicit in any such discussion, or decide between conflicting expert testimony. These points support exclusion of such research and expert testimony under FRE 403, since its slightprobative value is likely to be “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Similar difficulties result from expert testimony which critiques particular interviewing methods or specific questions, and generically provides information regarding factors which may influence children’s suggestibility. Such testimony necessarily draws upon this same research as foundational support for the expert’s opinions. Prosecutors face the dilemma of either accepting such testimony at face value, or of opening the door to introduction of the research on cross-examination in an effort to demonstrate the problems with the science. Additionally, there is no scientific consensus on what is or is not acceptable practice in interviewing children. Expert testimony critiquing the use of leading questions due to the risk of generating false information ignores the reality that most professionals recognize the need for such types of questions, and respected scientific research supports this position. Again, any foray into these issues is more likely to lead to confusion rather than provide helpful information assisting jurors to determine relevant issues and facts.

Traditional arguments that expert testimony in this area improperly invades the province of the jury to determine credibility have unfortunately not fared well. A disturbing trend in the case law suggests that expert testimony critiquing interview techniques is both outside the general knowledge of jurors, and does not constitute a direct or indirect comment on the credibility of the victim. Typically courts comment that such testimony does not concern the victim’s “veracity, but rather the method and technique used by prosecution witnesses to elicit [her] story.” Such conclusions draw distinctions without meaning.

An expert testifying that the use of leading questions is ‘inappropriate’ because they “set up the response and you cannot judge the validity of the response” is clearly offering an opinion which concerns the child’s veracity. When such opinions are combined with testimony to the effect that children may incorporate suggested information into their responses and memories, one can hardly expect that jurors will not be significantly influenced to discredit the child’s statements or testimony. As one court has noted:

“Scientific and expert testimony with their aura of special reliability and trustworthiness... courts the danger that the triers of fact will abdicate [their] role of critical assessment and surrender... their own common sense in weighing testimony.”

Defense expert testimony in this area has neither an “aura of special reliability” or “trustworthiness.” Prosecutors must vigorously challenge such testimony to insure that jurors make reasoned decisions, not misinformed ones.