Defense counsel is frequently presented with the problem of a client protesting their innocence and accusers, perhaps multiple accusers, leveling allegations of sexual assault against the client. Of course, with defendants facing severe legal consequences, complaints need to be evaluated as to their reliability and validity.
One problem to be addressed is that jurors assume that when accusers say that a deviant act occurred, then it must have occurred. Presenting information from the science and analysis of the complaints at multiple levels can be effective and persuasive.
One important issue in child investigative interviews is was the interview being conducted correctly. There is a Gold Standard for Child Investigative Interviews. The National Institute of Child Development (NICD) protocol is described by Michael Lamb, Ph.D. (an international expert in child investigative interviews). This approach stresses open-ended questions, a non-leading and non-suggestive approach, and the use of developmentally appropriate language. Some investigators, rather than conducting a true investigation of the complaint, resort to leading questions, "did he touch you here?", "we know he did it, and I really need your help," "did he hurt you when he did that?" Police are a significant source of authority. The higher the source of the authority, e.g. law enforcement, the more likely they are to be a source of significant suggestibility and influence on the accuser.
Another factor in assessing the reliability of investigative interviews is which individuals and how many individuals an accuser spoke with prior to speaking with the police. The more individuals who speak with an accuser about allegations, the greater the probability of distortion of what was originally stated to the investigator. Moreover, suggestibility and interviews, frequently utilized by law enforcement (Lamb, 2008) can actually result in pseudomemories or false memories (Lamb, 2008. Frequently, accusers tell police what they think they want to hear. Elizabeth Loftus, among others, demonstrated that false memories can be implanted in others. The FBI Investigative Interview Protocol also notes that leading and suggestive questioning can taint interviews. In some states, a pre-trial hearing can be conducted if a defendant alleges suggestive interviewing. The validity of investigative interviews can be tested just like blood or DNA testing.
Trend analysis of police interviews frequently reveals the phenomenon of shaping, viz, successively reinforcing certain responses to elicit a desired response. (Lamb, 2008) states that despite training in child investigative interviews, police revert to prior suggestive techniques.
The magnitude of the problem in eliciting errors and information from subjects in suggestive interviews was demonstrated by (Lamb, 2008) who conducted child investigative interviews in Israel, France, and the U.S. Results of using closed-ended, leading, suggestive questioning resulted consistently in significant errors in information obtained across all cross-cultural populations.
Co-witness contamination is yet another factor conducive to distortion of information from accusers in investigative interviews. A witness can cause distortion of memories or implant memories in another witness. A forensic psychologist is needed to assist in assessing these complexities.
A factor of considerable importance to evaluate is whether the accuser spoke with a therapist prior to an accusation. There is a large body of literature on recovered memories from therapy. Therapists will make suggestive comments to patients in the absence of validated external information. This in turn can create false memories.
There exists good information in the research literature about child memory, viz, what types and kinds of information can be remembered and in what areas. The (British Psychological Society, 2008) published developmental guidelines about what types of memory can be recalled with what accuracy at different developmental stages.
Memory is not a video recorder. As time progresses, the memory trace decays. Research tells us which aspects of scenarios can be recalled and which characteristically are not recalled. Moreover, recent research on the effects of trauma on memory indicates the phenomenon of dissociation during traumatic events. The individual is, so to speak, in a fog. There is a detachment from one's surroundings and consciousness and painful memories are suppressed. Encoding of the memory trace is adversely affected by stress. Analysis of behavioral symptoms of PTSD are useful. Individuals who profess traumatization tend to avoid fearful objects and situations and demonstrate other characteristic behaviors.
Characteristics of witnesses are critical factors to examine. Children tend to be highly suggestible. What investigators assert are "credible" aspects of information for witnesses may well be the witness telling the investigator what they want to hear.
There are some practitioners who use procedures for assessing child sexual abuse allegations that are not supported by the research. (Kuehnle, 2011) outlines some of these unsupported techniques, eg, play therapy, use of anatomical dolls.
It is critical for the aforementioned factors to be considered in assessing child sexual abuse and sexual assault allegations. Photographs of the crime scene are important sources of information for the forensic psychologist to evaluate. The tendency of memory to decay over time, distortion on memory due to interrogative pressure, and and the effects of suggestion are fertile fields for investigation and assessment. All of this must be done in tandem with evidence-based research to comprehensively and responsibly inform the Courts and juries.
Conway, Martin, and Holmes, Emily (2008). Guidelines on Memory and the Law, British Psychological Society
Kuehnle, K. (2011). Assessing allegations of child sexual abuse. Professional Resource Press/Professional Resource Exchange.
Lamb, M. E., Hershkowitz, I., Orbach, Y., & Esplin, P. W. (2008). Tell me what happened.