a critical look at the child welfare system

Investigative Techniques

Although the methods typically employed in an abuse or neglect investigation have long been discredited, they continue to be used in many child protective services agencies. Children are often kept from their parents only to be threatened, coerced or otherwise intimidated into providing the responses deemed appropriate.

Coercive interviewing techniques such as these have recently resulted in the overturning of several high-profile cases. While some child advocates argue that such reversals are the result of a mere “technicality,” in reality these so-called technicalities involve the near complete lack of reliability on the part of the child witnesses, as a direct result of the methods used in the interogations.

In a recent ruling on the Margaret Kelly Michaels case, the New Jersey Supreme Court wrote:

We therefore determine that a sufficient consensus exists within the academic, professional, and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child’s recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.[1]

In a 1995 decision overturning the wrongful conviction of Donna Sue Hubbard, the 5th District Court of Appeals in Fresno came to a remarkably similar conclusion:

We conclude that the interrogating techniques used in this case were suggestive and coercive, and there is a substantial likelihood that the children’s resulting trial testimony was false and thus unreliable in violation of her constitutional right to due process of law.[2]

Exploration into the reliability of child testimony obtained by these methods is not a new field of research. Diane K. Schetky, M.D. and Harold Boverman, M.D. cited some examples of coercive interviewing techniques during the Annual Meeting of the American Academy of Psychiatry and the Law held in Albuquerque, New Mexico, in 1985:

According to one of the therapists treating a child in the Jordan, Minnesota case, an 8-year-old child alleged to have been sexually abused was kept in foster care for one year and told by a psychologist that he wouldn’t be allowed to return home until his mother admitted that the sexual abuse had occurred.

In case no. 3 an 8-year-old boy was told by his mother that he could never return home, never ride his bike, never see his father again and would have to go to the hospital where they would stick needles in him unless he admitted that his father had touched his bottom. The child’s eventual admission resulted in father receiving a life sentence.[3]

Promises are often made to children by child protective caseworkers that they will be allowed to leave, and return to their parents, once they “disclose” the alleged abuse.

“Just tell us what happened, and you can go home,” and similar phrases are in common use today. The desired effect is to elicit disclosure by offering the frightened child a thinly veiled opportunity to end the interrogation.

The Committee of Concerned Social Scientists described this process as it was used on children in the Michaels case, in a brief submitted to the New Jersey Supreme Court:

The interviewer comes close to bribing the child for a disclosure, by implying that the aversive interview can be terminated as soon as the child repeats what he said earlier. Popsicles and playing with a tape recorder are offered as rewards.

“If you tell me real quick, we can go get popsicles,” was among the promises made by interviewers to one child. [4]

Duress and coercion continue to remain central elements in such investigations, whether delivered by prosecutors, police, therapists or child protective caseworkers.

Psychiatrist Lee Coleman and attorney Patrick Clancy describe in detail the process whereby children’s false accounts of sexual abuse are often created through coercive interviewing techniques.

Writing in the law journal Criminal Justice, Coleman and Clancy argue that child protection workers are not expected to be impartial investigators searching for evidence of wrongdoing. Rather, they perceive themselves as advocates for children, and commonly act on the presumption that children have been victimized.

Coleman and Clancy’s examination of videotapes of the interaction between therapists and children being interviewed found that overzealous investigators often use leading questions, the cuing of desired responses, praise for desired answers, and manipulated fantasy play.

Should the child deny having been involved in sexual acts, it is taken as evidence that he or she is repressing memories of terrifying abuse which the child protection worker is morally obligated to bring out. If the child exhibits anxiety, the anxiety is often regarded as evidence of repressed memories, rather than anxiety due to the circumstances of being interrogated by unfamiliar child protection workers.

Coleman and Clancy argue that the results of all this can be devastating. Children “may come to believe in these inventions with all the sincerity that real events would call forth,” potentially compromising not only the investigation, but the child’s emotional well-being as well.

In our experience, which adds up to hundreds of allegations and about fifteen hundred hours of audio- or videotaped interviews with children being investigated for possible molestation, children quite regularly make allegations that can be factually proven not to be true. When this happens, it is rare for the child to be the true initiator of the false statements. In most cases, the child’s false statements are the product of an interviewing style that leads the child gradually to construct a mental picture of abuse. This picture becomes the child’s “memory.” The result can be disastrous, not only for the justice process, but also for the child’s emotional well-being…[5]

Douglas Besharov, founding director of the National Center on Child Abuse and Neglect, explained the inherently coercive nature of these interventions during his testimony before the Select Committee on Children, Youth and Families, arguing that “the CPS process is a coercive often traumatic one that should be limited to situations in which the danger to the child overrides our traditional reluctance to force services on unwilling parents.”[6]

LEADING AND REPEATED QUESTIONING

The use of leading and repeated questions is typical in abuse investigations, due in large part to the predisposition on the part of many workers that children deny or repress memories of abuse. Repeated denials on the part of a child often result in continued questioning until the child finally “discloses” the alleged abuse.

Children often recant disclosers obtained by these methods once removed from the duress imposed on them by the the relentless questioning. Rather than raising doubts as to the validity of the disclosure obtained by the use of coercion, social workers typically view a recantation as having been subsequently coerced by a parent, or as part of an “accommodation syndrome”.

In addition to the issue of coercion, the use of leading and repeated questioning was directly addressed by the New Jersey Supreme Court in the Margaret Kelly Michaels case:

The use of incessantly repeated questions also adds a manipulative element to an interview. When a child is asked a question and gives an answer, and the question is immediately asked again, the child’s normal reaction is to assume that the first answer was wrong or displeasing to the adult questioner.

The insidious effects of repeated questioning are even more pronounced when the questions themselves over time suggest information to the children.

In the now infamous McMartin preschool case, interviewers led by Kee MacFarlane of Children’s Institute International used similar techniques.

MacFarlane, together with her social workers at her Children’s Institute, interviewed nearly 400 children between August 1983 and March 1984, concluding that 369 of them had been molested.

Before the interviews, which were videotaped, none of the children except one had said that anything had happened to them at the preschool. The lone girl making accusations was dropped from the case by prosecutors because her claims were too bizarre.

The jury ultimately concluded that the interviews had not only hopelessly contaminated the case, but were so suggestive and coercive that the children were in reality taught their stories of abuse from a script.[7]

Gail S. Goodman, Ph.D., Professor of Psychology at the University of California, has been cited in several U.S. Supreme Court decisions and has published widely on children’s testimony and memory development.

“Although there may be times when one needs to ask specific questions of children, several important caveats must be heeded,” writes Goodman in Children Today. She continues, providing a framework for conducting proper investigations:

First, in actual practice, leading questions should be avoided when possible: Even if the child can maintain an accurate report, his or her and the interviewer’s perceived credibility are likely to suffer. Second, there is a broad range of suggestion and coercion that can characterize an interview, and probably almost everyone would agree that some interviewers and parents go too far. Browbeating a child through repeated suggestive questioning is quite different from asking a few specific questions.[8]

Stephen J. Ceci, Ph.D., and Maggie Bruck, Ph.D., authors of Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, found that suggestive interviewing techniques and repeated questioning can lead children to get wrong not only peripheral details, but the central gist of events they experienced, even events affecting their bodies that could have sexual implications.

Ceci and Bruck explore in depth these and the many other factors that may influence the outcome of an investigation, including interviewer bias, the predisposition toward a specific outcome, and the lack of independence on the part of the investigator.[9]

Significantly, these were all factors in the Margaret Kelly Michaels case. Writes the New Jersey Supreme Court:

We note that a fairly wide consensus exists among experts, scholars, and practitioners concerning improper interrogation techniques. They argue that among the factors that can undermine the neutrality of an interview and create undue suggestiveness are a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child’s statements, such as previous conversations with parents or peers.

Diane K. Schetky, M.D. and Harold Boverman, M.D. illustrated these points during their presentation during the Annual Meeting of The American Academy of Psychiatry and the Law:

In Massachusetts a case against a daycare center was overturned when the judge refuted the social worker’s investigation saying, “I found her methods so suggestive, coercive, and repetitious and that any information obtained by her from the children was so tainted as to be totally unreliable.”

Their presentation also encompassed interviewer bias, the use of leading questions, coercive tactics, failure to take family dynamics into account, and inadequate investigations.

DIVIDING THE FAMILY

One of the techniques commonly used by child protective caseworkers is to cast the person thought to have perpetrated the abuse in an unfavorable light in the eyes of the child. Repeated critism of a parent may result in the desired disclosure. Similarly, this technique is reportedly often used to divide parents, effectively pitting one against the other through the technique of the social workers presenting their findings or suspicions in an authoritative manner.

The New Jersey Supreme Court examined the use of these techniques in the Margaret Kelly Michaels case:

The explicit vilification or criticism of the person charged with wrongdoing is another factor that can induce a child to believe abuse has occurred. Similarly, an interviewer’s bias with respect to a suspected person’s guilt or innocence can have a marked effect on the accuracy of a child’s statements.

Threats, bribes, promises of rewards, and other forms of psychological duress are often applied by social workers as the seek disclosure from children. The New Jersey Supreme Court addressed these issues directly in its ruling:

The transmission of suggestion can also be subtly communicated to children through more obvious factors such as the interviewer’s tone of voice, mild threats, praise, cajoling, bribes and rewards, as well as resort to peer pressure.