FOLLOW THE YELLOW BRICK ROAD

The Credibility DanceAnn Dell Duncan Hively, Ph.D, J.D.

Wells Hively, Ph.D.Albuquerque, New Mexico

June 5, 2009

Are you up a tree?Competency or Reliability or Credibility

COMPETENCY OF WITNESS

• No longer related to age of child where allegations of sexual abuse

• Can have a separate hearing on child’s competency if special circumstances

• Suggest having psychological evaluation done to determine mental, emotional, developmental status

• Elimination of tender years doctrine

Criteria for CompetencyLanguage, Verbal Interaction, Responsiveness, Ability to Understand, Demeanor, Non bizarre behaviors

RELIABILTY

• Young children can be trained to produce very reliable descriptions

• Therapists specialize in consolidating the details into a story that does not waiver

• Lay persons and Judges believe that if the story is repeated, it must be accurate

• Reliability often confused with credibility

ReliabilityDoes the music/story sound the same the second time around

INDICIA OF WITNESS CREDIBILITY

• Corroborated by facts and other witnesses• Initial interviews properly done• Developmentally consistent• Culturally consistent• Words may vary, but content stays similar over

repeated interviews• Not attached to “helpful” therapist• Meets the Judge’s bias and expectations (eye

contact, responsiveness, speech pattern)

INDICIA OF NON-CREDIBILITY

• Minimal responses to leading questions (but free narratives may also be false. It’s hard to tell)

• Description expands over repeated interviews.• Top heavy stories (the power of social reinforcement

where elaboration becomes bizarre)• Histories of sexual abuse in other family members• Presence of mental illness, conflict, violence in the

extended family• Psychological profile of complainant: need to hurt

someone versus the need to please the interviewer• Munchausen’s by proxy

WHICH WOULD YOU PREFER: FLY A KITE OR TAKE A CHILD’S DEPOSITION

Necessary Information Before Talking to the Child

• The basics:– Names of family members– Grade level and school performance– Current concerns– Psychological qualities– History of traumas

• See handouts: “Discovery Checklist” and “Peters’ sample pleadings”

Credibility: First Disclosure

–Critical Analysis• Where did the conversation occur• When during the day, during bath time • Condition of child before disclosure• Circumstances surrounding the description• Frequency of the story• Time interval between disclosure and interview• Time line of other interviews and critical events

TIME LINE IS ESPECIALLY IMPORTANT

• Exactly what had been going on before the first concern?

• When, where and exactly what was the first concern? To whom was it first reported?

• With whom, when and where did all subsequent interviews of the child take place?

• Did the story change from one interview to the next, exactly how?

TIME LINES HAVE TIPPING POINTS

• For example:– Up to the CAC interview, mom is worried but uncertain,

thinks grandpa might have done something wrong, but there might be a mistake.

– When CAC reports reason to suspect, mom’s fears are confirmed• Puts child immediately into therapy• Cooperates with police to try to entrap grandpa

– Conflict flares and grandparents stop babysitting– As a result, by the time she is called to testify, child has

been thoroughly exposed to suggestive influences.

CHILD ADVOCACY CENTER INTERVIEWS

• Determine the time gap between first disclosure and formal interview

• Get copy of training manual for CAC procedures• Type the transcript, do not rely on summary

letter from interviewer• Depose on training, experience, failure to

follow protocols, and use of poor interview techniques

A TALE OF TWO PROTOCOLS

- Michigan Forensic Interviewing Protocol- Go to www.michigan.gov/DHS and search for Forensic

Interviewing Protocol- Produced by Dr. Debra Poole and a statewide committee- Fully documented and explicated

- RATAC (Rapport, Anatomy Identification, Touch Inquiry, Abuse Scenario, Closure)- Go to www.ndaa.org/pdf/finding_words_2003.pdf- Available only through “Finding Words” training. Not

available in published form- Produced by CornerHouse and the American Prosecutors

Research Institute

A Few Comparisons

• Michigan: makes no assumptions; puts child in control, presents interviewer as concerned but uninformed; adapts questioning to child’s narrative; follows child’s leads; avoids yes-no questions; entertains alternative hypotheses from the start.

• RATAC: cuts to the chase; puts interviewer in control, presents interviewer as knowledgeable authority, sticks to interviewer’s script; uses many yes-no questions; persists until an allegation is obtained; entertains alternative hypotheses only at the end.

What the CAC interview tells youFormal procedures do not necessarily make a credible witness

Daubert Requirements

Can the theory be tested and has it been? The acceptability of the science.

Have the procedures been subjected to peer review and publication? The reliability of the application to a particular case. Is there a potential rate of error?

What are the standards used? The qualifications of the expert.

Does the technique enjoy acceptance within the scientific community? Can the methodology be applied to a particular set of facts.

Are the offerings more probative than prejudicial?

Daubert Challange

• Prosecutor wants to get rid of expert and rely on his/her interviewer

• States not uniform in following Crawford• About half of states allow appeal when expert

denied • Prosecutor’s grounds for Motion in Limine

include invasion of the court’s responsibilities, comments on credibility of child witness and poor science.

INITIAL STEPS FOR STRATEGIC LEGAL ANALYSIS

• Misunderstanding• Motivation to eliminate targeted person• Coaching from family member• Suggestion from interviews• Fruit of the poisonous tree• “Wannabee”• SODDIT• Good for it

TYPES OF ATTACK ON CREDIBILITY

• Impossibilities– Visit the scene, take pictures, make measurements– You said Mr. Peters put his penis into your vagina

when you were in his car. Tell me more about that: Exactly where in the car were you? Where was Mr. Peters?

TYPES OF ATTACK (2)

• Misunderstandings– Interview other witnesses who were familiar with

grandfather’s baby-sitting routine– You said it hurt when you went poop. Tell me

again all about that. What did grandpa do?

TYPES OF ATTACK (3)

• Contradictions–Check corroborations of described events– You said Mr. Peters was with you at the

park. Tell me again all about that… But I know Mr. Peters was at work that day, so tell me all about that…

TYPES OF ATTACK (4)

• Escalations– Examine sequence of interviews for elaborated

descriptions and people’s reactions to them. See if you can get the complainant to add more during the interview

– Who was the first person you talked to about what grandpa did?... (e.g. mom) Tell me all about that. What did you say? What did mom say? What did mom do then?

– You said that grandma held you down while grandpa did things to you. Tell me all about that… Really? What else happened? Be sure to tell me everything.

TYPES OF ATTACK (5)

• Motivations– Examine the family system carefully for motivation

and/or coaching for false allegations– You said your dad may give you a four wheeler. Tell

me all about that.

TYPES OF ATTACK (6)

• Associations– Make a careful analysis of possible ways the

complainant might have been exposed to sexual material and design the interview to reveal them.

– I know that sometimes you watch movies with Mike. Tell me all about that… Tell me the names of some of the movies… What were the movies about?

TYPES OF ATTACK (7)

• Alternate perpetrators– Examine the history for other possibilities– I know you and your mom lived with Mike. Mike’s

son lived with you, too. His name is Josh. Tell me all about Josh… What did Josh like to do?... Tell me all about that…

YOU MAY WANT TO USE AN EXPERT

• To review time line prepared by attorney• To suggest additional information gathering to

establish the context of the accusations• To evaluate previous interview(s) for

suggestibility• To prepare report for Court summarizing

findings and/or serve as a consultant to attorney

Follow the yellow brick road

Contact us atwww.duncanhively.com