Interviewing the Child Witness: The Do's and the Don't's ...

1587

INTERVIEWING THE CHILD WITNESS:THE DO'S AND THE DON'T'S, THE

HOW'S AND THE WHY'S

NANcy E. WALKERt

MATrHEW NGUYENt"

INTRODUCTION

Children who are asked to provide testimony encounter adultstrangers who use language they often do not understand and whodemand information they may be reluctant to give. Should they beunable to relate their accounts in the way adults expect, children maybe considered unreliable and therefore may be excluded from furtherproceedings, or they may be discredited publicly at trial. Yet the re-sults of empirical studies clearly demonstrate that the nature of theinterview process itself likely contributes at least as much to the ve-racity and completeness of the account obtained as does the sophisti-cation of the child who is interviewed. In recent years, psychologistshave conducted a variety of investigations in order to determine whichtechniques for interviewing child witnesses produce the most completeand reliable testimony. The purpose of this Article is to recommend toattorneys guidelines for interviewing child witnesses based uponthose empirical findings.

Imagine the plight of the nine-year-old child who was confrontedwith the following questions at deposition:

You don't know if any of your brothers or sisters or if I wasyour brother - well, any of your brothers or sisters didn'treally tell what happened, didn't quite tell the truth once, youdon't know of any of that happening in your family?... Didyou just pick that up just because you talk - plan your timeto fill your space, the spacing off or riding your bike, or didanybody tell you you should read license plates? ... Prior toseeing Mr. B. in his front yard on that night - on that day -And the individual in the car, did you ever see Mr. B. get intohis car before that, or get out of his car?1

t Professor of Psychology at Creighton University; A.B. Psychology, StanfordUniversity 1970; M.A., 1973 and Ph.D., 1982, University of Nebraska-Lincoln. The au-thor has published formerly as Nancy W. Perry.

tt Undergraduate student at Creighton University pursuing double majors inpsychology and biology.

1. Nancy W. Perry, et al., When Lawyers Question Children: Is Justice Served, 19LAw & HuMAN BEHAV. 609, 610 (1995).

CREIGHTON LAW REVIEW

As these examples illustrate, children who give testimony in legalcases often encounter intimidating adults who use language they can-not understand. 2 Under such circumstances, how can we expect childwitnesses to provide useful responses?

With education regarding child development and proper, non-sug-gestive questioning techniques, adult interviewers can learn to elicitreports from children that are more complete and accurate. Familiar-ity with those recommendations may encourage judges to require theuse of developmentally-appropriate questioning techniques when at-torneys examine children in court-related proceedings and may en-courage legislators to enact statutes that mandate the use of suchmethods.

Recent research clearly shows that the skill of the interviewer di-rectly influences whether a child relates a true memory, discusses afalse belief, affirms details suggested by others, embellishes fantasies,or provides no information at all.3 In other words, the specific tech-niques employed by an interviewer have a direct effect on the qualityof the report. Thus, the interviewer is the controlling party in thequestioning process and, as such, needs to be familiar with those tech-niques for interviewing child witnesses which produce the most com-plete and reliable accounts.

Recent appellate court opinions have heeded this empirical find-ing.4 For example, in State v. Michaels,5 the New Jersey SupremeCourt considered whether the state's interview techniques in this casehad been "so coercive or suggestive that they had a capacity to distortsubstantially the children's recollections of actual events and thuscompromise the reliability of the children's statements and testimonybased on their recollections." 6

Recent psychological studies have investigated both the assess-ment of individual questioning techniques and the development ofnew structures for the interview. 7 Although professional disagree-

2. Id.; MARK BRENNAN & ROSLIN E. BRENNAN, STRANGE LANGUAGE: CHILD VIc-TIMS UNDER CROSS EXAMINATION 69 (4th Printing 1990) [hereinafter BRENNAN & BREN-NAN]; Karen J. Saywitz, et al., Children's Knowledge of Legal Terminology, 14 LAw &HUMAN BEHAV. 523 (1990); AMYE WARREN-LEUBECKER, ET AL., WHAT DO CHILDRENKNOW ABOUT THE LEGAL SYSTEM AND WHEN DO THEY KNOW IT? FIRST STEPS DOWN ALESS TRAVELED PATH IN CHILD WITNESS RESEARCH in PERSPECTIVES ON CHILDREN'S TES-TimoNY 159 (Springer-Verlag 1989) [hereinafter WARREN-LEUBECKER].

3. NANCY W. PERRY AND J.S. HUNT, Interviewing Child Witnesses: What You AskIs What You Get (CP Thompson et al., (forthcoming 1996)) [hereinafter PERRY & HUNT].

4. See Maryland v. Craig, 497 U.S. 836 (1990); State v. Michaels, 625 A.2d 489(N.J. Super. A.D. 1993), aff'd, 642 A.2d 1372 (N.J. 1994).

5. 642 A.2d 1372 (N.J. 1994).6. State v. Michaels, 642 A.2d 1372, 1377 (N.J. 1994).7. See Carolyn J. Boyd, Questioning Techniques of Child Protective Service Work-

ers (May 1993) (unpublished master's thesis on file with the University of Tennessee at

1588 [Vol. 29

INTERVIEWING CHILD WITNESSES

ments have been aired with respect to certain aspects of interviewingpractice, experts' recommendations for proper interviewing of childwitnesses are remarkably consistent.8

Despite the general consensus of psychological experts, however,statutes are notably weak regarding permissible procedures for inter-viewing children.9 Table 1 provides a summary of state statutes thataddress the issue of questioning child witnesses. As the table indi-cates, statutes vary widely across jurisdictions. For example, only Illi-nois, New Mexico, Utah, and Washington specifically require specialtraining for individuals who interview child witnesses.10 Although anumber of states address the general issue of creating a positive inter-view climate for children, considerable variation exists regarding thespecifics of developing such an environment. For instance, somestates, including Connecticut and Massachusetts, require that chil-dren be protected from harassment, whereas other states, such as Del-aware and Washington, mandate that legal procedures be explainedto child witnesses.'1 Just two states, Alaska and Iowa, have enactedstatutes that recommend limiting the amount of time that a childspends on the witness stand. 12 Surprisingly, only seven states - Del-aware, Florida, North Dakota, Pennsylvania, Rhode Island, Washing-ton, and Wisconsin - have laws requiring that proceedings beexplained to children in age-appropriate language. 13 And only onestate, California, specifically requires that questions posed to childrenbe developmentally appropriate; that is, phrased in language that thechild can understand!14

Chattanooga); J.S. Hunt, et al., Faulty and Non-Productive Questioning Techniques:Potential Pitfalls of the Child Interview (1995) (unpublished manuscript on file withCreighton University); DEBRA A. POOLE & STEPHEN LINDSAY, Interviewing Preschoolers:Effects of Nonsuggestive Techniques, PARENTAL COACHING AND LEADING QUESTIONS ONREPORTS OF NONEXPERIENCED EVENTS (forthcoming 1996); Debra A. Poole & LawrenceT. White, Tell Me Again and Again: Stability and Change in the Repeated Testimoniesof Children and Adults reprinted in 1 MEMORY AND TESTIMONY OF THE CHILD WITNESS,(ed. Maria S. Zaragoza, et al.) (Sage Publications 1993); Anne G. Walker QuestioningYoung Children In Court: A Linguistic Case Study, 17 LAw & HUMAN BEHAV. 59 (1993);RONALD P. FISHER AND R. EDwARD GEISELMAN, MEMORY ENHANCING TECHNIQUES FORINVESTIGATIVE INTERVIEwING (Charles C. Thomas, Pub. (1992)) [hereinafter FISHER &GEISELMAN]; Guenter Koehnken, A Phased Approach to Interviewer Trianing (July 15,1995); J.C. Yuille et al., Interviewing Children in Sexual Abuse Cases, reprinted inCHILD VICTIMS, CHILD WITNESSES: UNDERSTANDING AND IMPROVING TESTIMONY (GailGoodman & Bette L. Bottoms ed.) (Guilford Press 1993) [hereinafter YUMLE].

8. PERRY & HUNT, supra note 3.9. Id.

10. See Table 1, Appendix.11. See Table 1, Appendix.12. See Table 1, Appendix.13. See Table 1, Appendix.14. See Table 1, Appendix.

1996] 1589


Because statutes provide scant guidance regarding appropriatemethods for questioning child witnesses, this Article suggests that at-torneys and other professionals who interview children follow the em-pirically-based recommendations offered below. This Article willdiscuss both the "do's" and the "don't's" of interviewing child wit-nesses. For each specific recommendation, this Article will provide arationale and a description of relevant empirical findings.

THE DO'S: EMPIRICALLY-SOUND PRACTICE

PREPARE FOR THE INTERVIEW

Adults who interview children need to understand some basicprinciples of child development. For example, interviewers need tounderstand that there are differences in language comprehension andusage between child and adult. Without that foundation, interviewersrisk obtaining either contaminated information or poor quality reportsfrom children. In this regard, the comprehensive guidelines for inter-viewing child witnesses in criminal proceedings, developed by theUnited Kingdom's Home Office in 1992 and known as the Memoran-dum of Good Practice, caution that "all interviews should be under-taken only by those with training, experience and an aptitude fortalking to children."15

A number of basic textbooks and articles tailored to legal profes-sionals offer summaries of child development.' 6 A few hours of read-ing can provide a good foundation for attorneys who must prepare tointerview children.

CREATE AN APPROPRIATE CLIMATE FOR THE INTERVIEW

Interview climate is an especially important consideration, be-cause atmosphere affects the quality of the report obtained. An inter-viewer who is overly friendly and reassuring may unwittinglyencourage a child to fabricate details. 17 On the other hand, a hostileor accusatory context can produce increased errors in children's re-

15. Memorandum of Good Practice at 3 (U.K Home Office 1992) [hereinafter Mem-orandum of Good Practice].

16. See HELEN BEE, TIH DEVELOPING CHILD (7th ed. 1995); MICHAEL COLE &SHEILA R. COLE, The Development of Children (2d ed. 1993); JOHN E.B. MYERS, CHILDWITNESS LAW & PRACTICE (1987); Nancy W. Perry & Larry L. Teply, Interviewing, Coun-seling and In-Court Examination of Children: Practical Approaches for Attorneys, 18CREIGHTON L. REV. 1369 (1984); NANCY W. PERRY & LAWRENCE S. WRIGHTSMAN, THECHILD WINESS: LEGAL ISSUES & DI.EMMAs (1991).

17. Michelle D. Leichtman & Steven J. Ceci, The Effect of Stereotypes and Sugges-tions on Preschools Reports, 31 DEVELOPMENTAL PSYCHOLOGY 568-78 (1995).

1590 [Vol. 29


ports.18 A neutral environment - that is, one which is warm but noteffusive, and professional but not intimidating - is most likely to pro-duce accurate reports from children.' 9

A professional who interviews children should be warm andfriendly. It is appropriate, for example, to welcome the child with asmile, to chat about the child's interests and hobbies, to provide a com-fortable child-sized chair, and to offer the child a glass of water or acan of soda. However, it would be inappropriate to buy the child a giftor a meal, especially in exchange for providing the "right" answers toquestions posed. During the interview, it is tempting to smile and nodapprovingly while the child is talking. However, such an approachmay be interpreted by the child as reinforcement for the words utteredrather than general support for the child's willingness to cooperate.Therefore, it is preferable for the adult to smile while he or she is talk-ing and simply to listen intently, but without a scowl, while the childis talking. Remember, too, that children, especially those who arequite young, may require frequent breaks from the interviewingprocess.

USE DEVELOPMENTALLY-APPROPRIATE LANGUAGE

An interviewer would not consider using English to question anadult whose sole language is Swahili. Why, then, would an attorneyconsider questioning a child using language that is complex, develop-mentally sophisticated, or even obfuscating? Yet, a number of re-searchers have documented attorneys' use of confusing language whenquestioning children. 20 More importantly, researchers have demon-strated convincingly that complex question forms have deleterious ef-fects on answers provided by both children and adults. 2 ' In one study,kindergartners, fourth-graders, ninth-graders, and college studentswere questioned about a videotaped scenario. Some questions werephrased in "lawyerese" (i.e., including negatives, double negatives,multiple parts, difficult vocabulary, or complex syntax). Other ques-tions, matched for content with the "lawyerese" forms, were phrased

18. Stephen J. Lepore & Barbara Sesco, Distorting Children's Reports and Inter-pretations of Events Through Suggestion 79 J. OF APPLIED PSYCHOL. 108, 108-09 (1994);A. Tobey & G.S. Goodman, Children's Eyewitness Memory: Effects of Participation andForensic Context, 16 CHILD ABuSE & NEGLECT 779 (1992).

19. Amye Warren & Peggy Lane, Effects of Timing and Type of Questioning onEyewitness Accuracy and Suggestibility, reprinted in MEMORY AND TESTIMONY IN THECHILD WrrNEss 44 (1995) (M.S. Zaragoza, et al. eds., 1995).

20. BRENNAN & BRENNAN, supra note 2, at 68-70; Vicky K. Kranat & Helen L.Westcott, Under Fire: Lawyers Questioning Children in Criminal Courts, 3 EXPERT EvI-DENCE; INT'L DIGEST OF HUMAN BEHAV. SCIENCE & LAW 16-17 (1994); Perry, 19 LAw &HUMAN BEHAV. at 610-11; Walker, 17 LAw & HUMAN BEHAV. at 62-75.

21. Perry, 19 LAW & HuMAN BEHAV. at 610-11.

1996] 1591


simply. Across age groups, participants correctly answered twice asmany simply-phrased questions as "lawyerese" questions. Moreover,participants of all ages accurately judged how well they understoodand could answer the simply-phrased questions ninety percent of thetime, but the "lawyerese" questions only fifty-five percent of thetime.2 2 This research concluded that attorneys risk miscarriage ofjustice when they use complex question forms when interviewing bothchildren and adults. 23

An attorney may use several specific strategies for increasing thelikelihood that an interview of a child will be developmentallyappropriate:

1. Use active voice. Children have difficulty comprehendingthe passive voice. For example, it is better to say, "You saidthe red car hit the blue car" than "You said the blue car washit by the red car." A child is likely to interpret the lattersentence as meaning that the blue car inflicted the resultingdamage on the red car.2. Avoid negatives. Attorneys are renowned for using nega-tives and even double negatives when questioning wit-nesses.2 4 This approach is definitely counterproductive withchildren. 25 Phrase all questions positively. Instead of say-ing, "Is it not true that you went to the store?" say, "Did yougo to the store?"3. Include only one query per question. The most difficulttype of question for children to answer involves multipleparts such as "Were you happy [no] or was your dad mad[yes]?"2 6 Children do not know how to respond if the answersto the question's subparts are not the same. It is more pro-ductive to ask separate questions.4. Use simple words. Avoid big words and legal jargon; chil-dren simply do not understand them.27

5. Use simple phrases. Avoid "front-loading" questions."Front-loading" involves using a number of qualifyingphrases before asking the crucial part of the question.28 Forexample, an attorney might say, "On the evening in question,before you went to the store and after you returned fromschool, while no one else was home but you, did your motherstrike you?" A better approach would be, "Did your motherstrike you after school that day? [If yes] Did your mother

22. Id. at 625-27.23. Id.24. BRENNAN & BRENNAN, supra note 2, at 62-64.25. Perry, 19 LAw & HUMAN BEHAV. at 622-23.26. Id. at 622-25.27. Saywitz, 14 LAw & HUmAN BEHAV. at 534.28. ANNE G. WALKER, HANDBOOK ON QUESTIONING CHILDREN: A LINGUISTIC PER-

SPECTIVE 21-51 (1994).

1592 [Vol. 29


strike you before you went to the store? Was anyone else athome when your mother struck you?" Keep each questionsimple and separate.6. Use the child's terms. Because children do not necessar-ily use words in the same ways that adults do, it is importantto define each child's vocabulary. 2 9 Once the terms have beenclearly defined, use the child's words to describe people, ac-tions, and objects.7. Be alert to any signals of comprehension difficulty. Chil-dren are not likely to disclose to adults when they do not un-derstand a question. 30 In fact, children generally are taughtto answer questions, even if they do not comprehend them.Therefore, professionals need to take the initiative in activelysearching for clues that a child does not understand a partic-ular question. Watch for a puzzled look, knitted eyebrows,downcast eyes, long pauses, and irrelevant responses. Thosebehaviors may signal something other than lack of compre-hension, of course, but they also serve as red flags that a childis confused. Pause, and if no appropriate response is forth-coming, rephrase the question.

ESTABLISH RAPPORT

Britain's Home Office wisely noted:The main aim of the first phase of the interview is to build upa rapport between the interviewer and the child in which thechild is helped to relax and feel as comfortable as possible inthe interview situation. However, this phrase serves anumber of important additional functions. If used correctly,it should supplement the interviewer's knowledge about thechild's social, emotional and cognitive development, and par-ticularly about his or her communication skills and degree ofunderstanding.... A rapport phase, however brief, shouldnot be omitted even if the child has had significant previouscontact with the interviewer. 3 1

Recent research found that, when child abuse interviewers spent ade-quate time on rapport-building activities, the first substantive open-ended question regarding abuse produced four times as much informa-tion as when inadequate time was spent on rapport-building.3 2 De-spite the importance of the rapport-building phase, however, Perryand Hunt reported that, in forty percent of the Child Protective Serv-ices transcripts they analyzed, interviewers made no attempts to es-

29. Saywitz, 14 LAw & HuMAN BEHAV. at 531-34.30. Perry, 19 LAw & HuMAN BEHAV. at 625-27.31. Memorandum of Good Practice, supra note 15, at 15-16.32. See MICHAEL E. LAMB, ET AL., Effects of Investigative Utterance Types on Israeli

Children's Responses 5 in IN'L. J. OF BEHAVIORAL DEV. (forthcoming 1996).

19961 1593


tablish rapport with the child being questioned. 33 Furthermore, thoseinterviewers who did try to build rapport primarily used specific ques-tions (e.g., "What is your dog's name?") rather than open-ended ques-tions (e.g., "What do you like to do when you play with your dog?").Consequently, interviewers talked three times more than childrenduring the so-called rapport-building phase.

Koehnken advised, "Before you begin to ask the child about theevent it is very important to create a relaxing atmosphere and to makethe child feel secure and confident."34 For example, the attorneymight ask the child to talk about friends, hobbies, favorite subjects inschool, and so on. Avoid emotionally-charged topics which, for somechildren, might include questions related to school. Ask some ques-tions that can be answered positively, thereby creating a positivemood. It is essential that the professional interact meaningfully withthe child, "contributing as an interested party, not simply asking aseries of census-like questions .... ,,35 Remember that the adult is ask-ing the child to disclose personal information, so the adult should dothe same. For example, if the child talks about a favorite hobby, theadult could reciprocate by mentioning a similar, enjoyable pastime. Ifthe child discusses a pet, the interviewer could offer a short vignetteabout an animal.

EXPLAIN INTERVIEW PURPOSE

Koehnken offered the following perspective:The child may not exactly know why he or she is being inter-viewed. However, unless it is clear what the purpose of theinterview is it will be difficult to get the requiredinformation.36

Tell the child why you are conducting the interview. For example,you might say, "I am going to talk to you about some things you said to-," or "I want to talk to you about how sad you've been feeling lately."In this regard, the Home Office explained:

At some early point during the rapport phase the reason forthe interview should be briefly explained in a way that takesaccount of the child's needs, and which does not refer to thealleged offence .... It will be permissible for the interviewerto say that he or she wants to talk about something the childhas told someone else but the interviewer should not mention

33. See PERRY & HUNT, supra note 3.34. See Gunter Koehnken, The Cognitive Interview: A Step-by-Step Introduction 8

(June, 1993) (unpublished Training Materials, on file with Creighton University) [here-inafter KoEHNKEN].

35. Id.36. Id. at 9.

1594 [Vol. 29


the substance of the previous disclosure. If no such disclosurehas been made the interviewer might say that he or shewished to talk to the child because something seemed to bemaking the child unhappy.37

Make it clear to the child that he or she is the one who has all theinformation. Explain to the child that you were not present at theevent(s), and so you do not know what happened. Therefore, you needto count on the child to tell you everything that happened.

Discuss INTERVIEw GROUND RULES

Imagine a situation in which you have been asked to perform adifficult and emotionally trying task. Imagine also that you have beentold that you must perform the task perfectly on the first try. How-ever, the powerful figure making these demands of you refuses to pro-vide any information about how the task should be performed, whatmight happen in the course of performing the task, and what pitfallsyou might encounter. To top it off, the authority figure cautions youthat perfection is required because your performance could have seri-ous life consequences for others. Feel any pressure? Of course! Yetthis Kafkaesque scenario is replayed time and time again when chil-dren are interviewed in forensic contexts. Children have a right toknow what will happen to them in legal proceedings, includinginterviews.

In addition, children need to know that it is permissible for themto tell adults when they either do not understand a question or do notknow an answer. Children spend most of their waking hours inschool, where providing answers to questions is expected and saying,"I don't know" is typically strongly discouraged. In a laboratory study,researchers found that kindergarten, second-grade and fifth-gradechildren who had been trained to use the "I don't know" response gen-erally used it appropriately and used it significantly more often thanchildren who had not been so trained.38

Several specific approaches help to establish the ground rules fora productive and less stressful interview.

1. Emphasize the importance of truth-telling. For example,you might say, "I'm going to ask you some questions, and Iwant you to tell me what really happened. I don't want you toguess if you are not sure or to make anything up. Just tell mewhat really, really happened."

37. Memornadum of Good Practice, supra note 15, at 16.38. Nancy E. Walker, Shelby Lanning & Jennifer Eflts, Do Children Respond Ac-

curately to Forced Choice Questions?: Yes or No, presented to the NATO AdvancedStudy Institute: Recollections of Trauma, Scientific Research, and Clinical Practice(Port de Bourgenay, France June 1996) [hereinafter LuNmING & EILTS].

1996] 1595


2. Explicitly indicate your need for detailed information.Ask the child to tell you everything that happened, even thesmallest details that do not seem important.3. Teach the child how to use the "don't know" response.You might say, "If you don't know the answer to my question,that's Okay; just say, 'I don't know.' For example, if I ask youthe question, 'How many wogs are in a wug?' and you don'tknow the answer to that question, you should say, 'I don'tknow.' Let's practice that. 'How many wogs are in a wug?'[Child responds, 'I don't know.']" Use additional examplesuntil you feel certain that the child understands when to pro-vide a "don't know" response.4. Give the child permission to tell you when he or she doesnot understand your question. You might say, "If you don'tunderstand my question that means I didn't do a very goodjob of asking it. Just say, 'I don't understand that question'and I will try to ask it a different way." Be aware, however,that most children, especially those who are very young, willhave difficulty identifying questions they do not compre-hend.39 Be sure to role model for the child that it is permissi-ble to say "I don't understand." If you do not understand thechild's response, you might say something like this: "Mybrain's not working very fast today, so I didn't understandwhat you just said. Maybe you could tell me what you said ina little different way."5. Some practioners even suggest conducting a practice in-terview.40 This approach helps the child to experience whatthe real interview will be like. For example, you might con-duct a practice interview about the child's pet. During thepractice interview, use the ground rules discussed above. Thepractice interview also is beneficial because it can providevaluable information about the child's competency andcredibility.

REQUEST A FREE NARRATIVE

Children's spontaneous, free recall reports, although typically lessdetailed than those elicited by specific questioning, tend to be moreaccurate than reports obtained through direct questioning. 4 ' How-ever, Perry and Hunt found that only two percent of the Child Protec-tive Services interviews in their sample began the incident-relevantportion of the interview with open-ended questions. 4 2 Although chil-

39. Perry, et al., 19 LAw & HuMAN BEHAV. at 613.40. FISHER & GEISELMAN, supra note 7, at 189.41. See Helen R. Dent, Experimental Studies of Interviewing Child Witnesses, in

M. GRUNEBERG, ET AL., PRACTICAL ASPECTS OF MEMORY 138, 141-42 (1991).42. See PERRY & HuNT, supra note 3.

1596 [Vol. 29


dren may be reluctant to provide free narrative accounts, an adultwho creates a comfortable atmosphere for the interview and who ex-hibits patience and calm is more likely to elicit free narrativeaccounts.

Second, as Koehnken emphasized, "[i]t is essential not to inter-rupt the child during his or her narration or to ask specific questions!The single most important skill an interviewer can learn is not to in-terrupt the child in the middle of a narrative response!"43 Fisher andGeiselman reported that judicious use of pauses typically leads to theinterviewee providing significantly more details.44 Indeed, interview-ers' pauses can produce far more relevant information from a childthan asking direct questions.

Several specific steps may be taken to encourage the production offree narrative:

1. Ask only general, open-ended questions. Britain's HomeOffice recommended:

[The free narrative] is the heart of the interview andthe interviewer's role is to act as a facilitator, not aninterrogator. Only the most general, open-endedquestions should be asked in this phase, for example:"Why do you think we are here today?"; "Is thereanything that you would like to tell me?" If the childresponds in a positive way to such questions then theinterviewer can encourage the child to give a freenarrative account of events. Every effort must bemade to obtain information from the child which isspontaneous and free from the interviewer'sinfluence. 45

2. Use narrative prompts. Steller and Boychuck recom-mended using narrative prompts such as "I understand some-thing may have happened to you. Tell me as best you canabout that so I understand."46

3. Stress again that the child should provide as much detailas possible. Koehnken recommended, "[Alsk the child to de-scribe in narrative style his or her general recollections of theevent(s). You might say, 'Tell me everything you can, eventhe little things you think aren't important.' 474. Tolerate pauses, even if they are long.48

43. KOEHNKEN, supra note 34, at 11.44. FisHER & GEISELMAN, supra note 7, at 78.45. Memorndum of Good Practice, supra note 15, at 17.46. See Max Steller & Tascha Boychuck, Children as Witnesses in Sexual Abuse

Cases: Investigative Interview and Assessment Techniques, in Helen Dent & RhonaFlin, Children as Witnesses 50 (1992) [hereinafter STELLER & BoYcHUK].

47. KOEHNKEN, supra note 34, at 11.48. FISCHER & Gx.sMmAN, supra note 7, at 78.

1996] 1597


ASK DIRECT QUESTIONS ONLY IF NECESSARY

It may be appropriate, and even necessary, to ask direct questionsfollowing the free narrative portion of the interview. Warren and Mc-Gough explained the problem as follows: "The major issue confrontedby interviewers is likely to be the paradox that young children needhelp recalling experiences, but that direct, specific questions and otherrecall prompts may produce distortions and suggestibility."49 There-fore, many experts wisely urge practitioners to ask direct questionsonly if necessary - that is, if the free narrative does not provide suffi-cient information. 50

Interviewers should continue to ask open-ended questions con-cerning a particular topic until they produce no further information.For example, it often is productive simply to ask, "What else?" or "Idon't think I understand yet - what else can you tell me about that?"Another strategy is to make statements that encourage the child tocontinue, such as, "Tell me more about that," or "I'd like to hear moreabout that." Steller and Boychuck suggest that cue questions maytrigger the child's memory of an event or the production of additionaldetails related to a memory. For example, if the interviewer asked,"Where did something happen?" and the child replied, "In the bed-room," the interviewer should follow up with another general ques-tion, such as, "Tell me as much as you can remember about whathappened in the bedroom." 5

EXPLAIN LEGAL PROCEEDINGS

Just as it is vital to delineate the ground rules for an interview, sotoo it is important to tell the child what will happen during legal pro-ceedings. Fear of the unknown is a common experience for childrenand adults alike, especially in circumstances that are inherently in-timidating. Children should be literally walked through the legalsystem.

Because children tend to be literal, concrete thinkers, a picture isworth a thousand words. You can describe accurately what will hap-pen, but the child's mental picture may look nothing like your carefuldepiction. If possible, therefore, arrange a field trip to the courtroomwhere the child will testify. Allow the child to see, touch, hear, andsmell the courtroom. Encourage the child to sit in the witness chairand to try using the microphone. Point out where the judge, attor-

49. See Amye R. Warren & Lucy S. McGough, Research on Children's Suggestibil-ity: Implications for the Investigative Interview, (unpublished manuscript, on file withthe University of Tennessee at Chattanooga).

50. PERY & HUNT, supra note 3.51. STELLER & BOYCHUCK, supra note 46, at 50.

1598 [Vol. 29


neys, defendant, jurors, and spectators will be seated. Use these cuesas springboards for answering specific questions the child might have.

FORMALLY CLOSE THE INTERVIEW

Perry and Hunt reviewed the recommendations offered by nineexperts on interviewing children.52 Seventy-eight percent of those ex-perts specifically noted that the interview's closing phase is critical.Yet, an analysis of the transcripts from Child Protective Service inter-views of alleged child sexual abuse victims revealed that fifty-ninepercent of the interviewers abruptly ended the session and dismissedthe child without any closing remarks at all.53 One interviewer sim-ply stated, "The end!"

If you attended a dinner party, ate wholeheartedly at the meal,and then abruptly left without a further word, you would be consid-ered odd at best. Most likely, the host would be baffled, incredulous,and/or offended. The same is true for a child whose interview omits aclosing phase.

Closing the interview gracefully has many advantages. First, itprovides an opportunity to thank the child for participating in whatmay have been an emotionally wrenching event. Second, it allows theinterviewer to recap what the child disclosed and to ask once again forverification of the veracity of the interviewer's summary. Third, it al-lows the interviewer to explain what may happen next in legal pro-ceedings and for the child to ask any remaining questions.

It is important to open the interview during the rapport-buildingphase in a positive manner. So, too, it is essential to close the inter-view on a positive note. In this regard, the British Home Office noted,"Every effort should be made to ensure that the child is not distressedbut is in a positive frame of mind."5 4 These steps may be helpful:

1. Recap the child's account, using the child's language andterminology. Ask for verification after each statement.2. Explain what will happen next, both immediately thatday and over the next few days or weeks. Be careful not tomake promises that you may not be able to keep.3. Ask if the child has any questions, and answer them ifyou can. If you cannot answer the questions, explain why.Offer to research the answers if you are able and willing to doSO.4. Give the child and/or the accompanying adult a contactname and telephone number in case the child decides laterthat there is further information to discuss.

52. PERRY & HuNT, supra note 3.53. PERRY & HUNT, supra note 3.54. Memorandum of Good Practice, supra note 15, at 21.

1996] 1599


5. Return to some of the neural topics discussed during therapport phase - pets, hobbies, the weather, and so forth.This step is important because it constitutes a "wind-down"phase that encourages each party to separate from the moreintense interview process.6. Thank the child for his or her time, effort, andcooperation.Attorneys who follow the interview practices recommended above

should avoid many interview "dont's." For example, by using brief,clear, age-appropriate questions that are phrased positively and in theactive voice, attorneys steer clear of the pernicious "lawyerese" thatoften confuses children.55 By including each of the interview steps de-scribed above, attorneys increase the likelihood that rapport will beestablished, ground rules will be understood, terminology will be com-prehended, detailed free narratives will be provided, and high qualityreports will be obtained. A few additional caveats, however, are inorder.

THE "DON'T'S"

AVOID DEMONSTRATIVE AIDS IF POSSIBLE

Several states permit the use of demonstrative aids. For example,children sometimes use anatomically-detailed dolls to provide evi-dence in cases of alleged sexual abuse. The New York statute is illus-trative: "A child witness should be permitted in the discretion of thecourt to use anatomically correct dolls and drawings during his testi-mony."56 Despite common legal acceptance of the practice, however,widespread concern exists regarding the potential suggestiveness ofanatomical dolls.5 7 As a result, some jurisdictions have banned theiruse,58 and many researchers have suggested using such props only asa last resort.59 In Perry and Hunt's sample of experts, only the Ameri-can Professional Society on the Abuse of Children fully endorsed theuse of demonstrative aids with child witnesses. 60

55. Perry, 19 LAw & HuMAN BEHAv. at 627.56. See Table 1, Appendix.57. Glenn Wolfner, David Faust & Robin Dawes, The Use of Anatomical Dolls in

Sexual Abuse Evaluations: State of the Science, 2 APPLIED AND PREvNTrIVE PSYCHOLOGY1, 1-11 (1993).

58. Maggie Bruck, Steven Cici, Emmett Francouer & Ashley Renick, AnatomicallyDetailed Dolls Do Not Facilitate Preschoolers' Report of a Pediatric Examination Involv-ing Genital Touching, 1 J. OF EXPERMENTAL PSYCHOLOGY APPLIED 95, 95-104 (1995).

59. See L.S. McGough & A.R. Warren, The All-Important Investigative Interview,45 Juv. & FAM. CT. J. 1, 13-29; Yun=Lx, supra note 7, at 109.

60. PERRY & HUNT, supra note 3.

1600 )[Vol. 29


AVOID DISCUSSIONS OF "GOOD" AND "BAD" TOUCHES

Some researchers argue that discussions of the difference between"good" and "bad" touches do not elicit useful information. 61 In addi-tion, such discussions may diminish perceptions of a child's compe-tency. Before adolescence, most children do not possess the reasoningabilities required to process abstractions, particularly in the legal con-text.62 Discussion of "good" and "bad" touches, incorporate two ab-stract concepts: (1) touch and (2) good versus bad.

As used by adults, the word touch encompasses a variety of ac-tions (e.g., fondling, patting, probing). A child, however, may under-extend the meaning of the word. Thus, for the child, touch may notinclude vaginal penetration by a finger.63

Even if a child understands such nuances with regard to the wordtouch, she or he still may not comprehend the abstract concepts ofgood and bad. As a result, children may answer "good" touchl"bad"touch questions in a way that underestimates their true understand-ing of what constitutes an inappropriate action. None of the expertsin Perry and Hunt's sample advocated the assessment of children'scomprehension of "good" versus "bad" touches, yet one-fourth of theChild Protective Service interviewers in their sample initiated suchdiscussions.

64

AVOID LEADING AND SUGGESTIVE QUESTIONS

Leading or suggestive questions imply the desired answer or as-sume facts that are likely to be in dispute. It is tempting to use suchquestions, particularly with younger children who need help recallingand relating experiences. However, research has repeatedly demon-strated that young children tend to be more likely to go along withunwitting or intentional suggestions than adults. 65 Recent studies

61. Nancy W. Perry and Larry L. Teply, Interviewing, Counseling and In-CourtExamination of Children: Practical Approaches for Attorneys, 18 CREIGHTON L. REV.1369, 1373-76 (1984).

62. Walker, HANDBOOK ON QUESTIONING CHILDREN: A LINGUISTIC PERSPECTIVE(ABA) (1994).

63. PERRY & HUNT, supra note 3.64. W.S. Cassel, Child Eyewitness Testimony; The Search for Truth and Justice in

the American Way (1991) (unpublished masters thesis, Florida Atlantic University(Boca Raton, Fl.)) Steven J. Ceci & Maggie Bruck, The Suggestibility of the Child Wit-ness: A Historical Review and Synthesis, 113 PSYCHOL. BULL. 403, 433 (1993); see GailS. Goodman & Rebecca S. Reed, Age Differences in Eyewitness Testimony 10 LAw ANDHuMAN BEHAV. 317, 328 (1986); PERRY & HUNT, supra note 3.

65. See Steven J. Ceci, Michelle D. Leichtman & T. White, InterviewingPreschoolers: Remembrance of Things Planted, reprinted in THE CHILD WITNESS IN CON-TEXT: COGNITIVE, SOCIAL, AND LEGAL PERSPECTIVES, (D. Peters (ed.), Deventer, Nether-lands: Kluwer (forthcoming)); Alison Clark-Stewart, W. Thompson & Stephen LePore,Manipulating Children's Interpretation Through Integration, Address Before the Bien-

1996] 1601


have also revealed that children's free recall reports can be distorted ifinterviewers repeatedly ask misleading questions, particularly if neg-ative expectations about a person have been created in the child'smind.66 Thus, use of leading and suggestive questions with childrencan open a Pandora's Box that is better left sealed.

Of course, children are not wholly malleable. They seem betterable to resist suggestions concerning central details as opposed to pe-ripheral details, 67 as well as those involving event details they findsalient.68 Laboratory studies permit isolation of such variables. In areal-world interview, however, what the child considers to be centraland/or salient may not be particularly helpful to the legal investiga-tion at hand. In that situation, it is tempting to ask leading or sugges-tive questions to get at the heart of the matter. The interviewer, then,is caught in the conundrum depicted by Saywitz and Goodman:

Because children often say little in free recall and becausemore specific questioning can be controversial, in an actualcase, "to lead or not to lead" becomes a crucial question.Those who argue that specific questions should not be askedof children want to reduce errors of false reports; however,errors of nonreporting of abuse, that is errors of omission,must also be considered. 69

Leading and suggestive questions should be avoided if at all possi-ble. Instead, use open-ended questions that encourage free narrativeand pauses that indicate that more information would be helpful. Useleading questions only as a last resort and, in that event, use onlymildly leading questions. 70

AVOID MODIFYING THE CHILD'S STATEMENTS

Modifications occur when an interviewer rewords a child's state-ment in a way that changes its meaning, or claims that the child madea statement that he or she has not made.71 For example, a modifica-tion occurs if a child says, "Daddy touched me down there," and the

nial Meeting of the Soc'y for Res. in Child Dev. (Kansas City, MO April 1989); AlisonClark-Stewart, W. Thompson & Stephen J. LePore, MANIPULATING CHILDREN'S INTER-PRETATIONS THROUGH INTERROGATION (April 1989).

66. Goodman & Reed, 10 LAw & HUMAN BEHAV. at 328.67. See Mary Ann King & John C. Yuille, Suggestibilility and the Child Witness,

reprinted in CHILDREN'S EyEwrrNEss MEMORY, 24, 26-27 (S.J. Ceci, et al., eds., (NewYork: Springer (1987)).

68. See Karen J. Saywitz and Gail Goodman, Interviewing Children In and Out ofCourt: Current Research and Practical Implications, reprinted in ASPAC HANDBOOK ONCHILD MALTREATMENT, 8 (L. Berliner, et al., eds., (Sage, 1993)).

69. See JOHN E.B. MYERS, LEGAL ISSUES I CHILD ABUSE AND NEGLECT, 60 (1992).70. PERRY & HUNT, supra note 3.71. R. Edward Geiselman, et al., Effects of Cognitive Questioning Techniques on

Children's Recall Performance, reprinted in CHILD VICTIMS, CHILD WITNESSES: UNDER-

[Vol. 291602


interviewer responds, "So Daddy put his finger in there." Clearly, thechild's statement has been modified. Although the modification isplausible, certainly it is not the only possible interpretation of thechild's words - nor may it be the correct interpretation.

An interviewer's modifications may be unintentional or acciden-tal. Sometimes they occur when the adult wants the child's state-ments to match information from other sources or the interviewer'sown biases or preconceptions. 7 2 Sometimes an interviewer uses modi-fications to speed up an interview that is dragging. However, inter-viewers who attempt this practice run the risk of introducingmisinformation into children's memories.

In their analysis of Child Protective Service interviews, Perry andHunt found that children explicitly agreed with interviewers' modifi-cations forty-six percent of the time, disagreed twenty-six percent ofthe time, and ignored the modifications twenty-eight percent of thetime. 73 More importantly, the interviewers treated ignored modifica-tions as if they were true. In other words, interviewers appeared tointerpret children's silence following modifications as tacit agreementwith the modified statements. As a result, the interviewers continuedto use the modified statements throughout the interview, whether thechildren explicitly agreed with the changed statements or whetherthey ignored the changes. Interviewers stopped using the modifica-tions only when the children explicitly disagreed with the modifica-tions. Perry and Hunt noted, "We therefore conclude that unlesschildren explicitly correct interviewers, which younger children do notseem to be willing and/or able to do, interviewers are likely to continuerepeating modifications, potentially driving misinformation deep intochildren's memories."7 4

ELIMINATE MULTI-PART QUESTIONS

Multi-part questions occur when two or more inquiries with po-tentially different responses are contained within the same query:

Interviewer: Would it be a special time when you would go upthere with [him], or would there by anybody there at his house?

STANDING AND IMPROVING TESTIMoNY, 71, 88 (Gail Goodman & Bette Bottoms, eds.,1993).

72. PERRY & HuNT, supra note 3.73. Id.74. See Jennifer S. Hunt, et al., Faulty and Non-Productive Questioning Tech-

niques: Potential Pitfalls of the Child Interview, reprinted in COMMUNICATUNG WITH

CHILD WITNESSES; UNDERSTANDING AND IMPROVING TESTIMONY, 4 Address Before theSoc'y for Applied Res. in Memory and Cognition (Vancouver British Columbia July 16,1995) [hereinafter Hunt].

1996] 1603


Child: Yes. 75

Children, and even adults, have difficulty attending to multipleideas at one time. It is not surprising, therefore, that multi-part ques-tions stump almost everyone.7 6 In fact, researchers found that morethan seventy percent of children's responses to multi-part questionsdid not appear to answer the questions asked by the interviewer.Therefore, avoid multi-part questions like the plague.7 7

AVOID FORCED-CHOICE QUESTIONS

Forced-choice questions occur when questions are phrased in away that presents a limited number of response options. For example:

Interviewer: Did he do it real real hard or real real fast?Child: Fast.78In Perry and Hunt's sample of Child Protective Service inter-

views, children chose one of the forced-choice answers suggested bythe interviewer more than sixty-five percent of the time.7 9 Similarly,in a laboratory investigation of children's reactions to forced-choicequestions, researchers found that, when interviewers asked forced-choice questions in which neither response was correct, younger chil-dren, especially females, were particularly likely to select one of theincorrect responses offered by the interviewer.8 0 Thus, research sug-gests that forced-choice questions should be avoided because theylimit and inappropriately direct children's responses.

CONCLUSION

The process of interviewing child witnesses can be improved whenattorneys and other adult interviewers understand both the funda-mentals of child development and research findings that bear uponproper questioning techniques. When interviews of children are con-ducted in a developmentally-appropriate and nonsuggestive manner,the quantity and quality of the information obtained is enhanced, afact noted in recent appellate decisions. However, statutes provide lit-tle guidance regarding appropriate methods for questioning children.Therefore, this Article encourages professionals who interview chil-

75. Perry, 19 LAw & HUMAN BEHAV. at 627; Walker, HANDBOOK ON QUESTIONINGCHILDREN: A LINGUISTIC PERSPECTIVE (1994).

76. PERRY & HUNT, supra note 3.77. HUNT, supra note 74, at 3-4, 12.78. PERRY & HUNT, supra note 3.79. Lanning & Eilts, supra note 38.80. Nancy E. Walker, Shelby S. Lunning & Jennifer L.Eilts, Do CHILDREN RE-

spoND ACCURATELY TO FORCED CHOICE QUESTIONS?: YES OR No, presented to the NATOadvanced Study Institute: Recollections of Trauma, Scientific Research and ClinicalPractice (Port de Bourgenay, France June 1996).

1604 [Vol. 29

1996] INTERVIEWING CHILD WITNESSES 1605

dren in legal contexts to follow the empirically-based interview tech-niques discussed in this Article, as well as to avoid the faultyquestioning techniques this Article has described.

CREIGHTON LAW REVIEW1606

0

0

Zr

[Vol. 29

INTERVIEWING CHILD WITNESSES1996] 1607


'-4CI)

1608 [Vol. 29

1996] INTERVIEWING CHILD WITNESSES

CD~

co

80

0

cd. .

A.44 J 0

840

~ ) eq

010

U) * .

o 8o0

t)

U)0

C.0

w

000

Qq

lz00

ooo

UU 0

.a

1609

CREIGHTON LAW REVIEW1610 [Vol. 29


.2

b-o 0

4i0+'

U,

w cd

CD'f A _

V.alog'.I

CD0 )

'U

.0

ii

82,.2rnc

CID

06 0cq mq

00 mU Ce 0 F9

4 4a

040

1996] 1611

INTERVIEWING CHILD WITNESSES1996] 1613

INTERVIEWING CHILD WITNESSES19961 1615


-. tt..

cD,. c

0 0 0:

I: r

1616 [Vol. 29

1996] INTERVIEWING CHILD WITNESSES

600

O 0

~0 0)

0 0 € bDo 4'

C-)

0 am8

10 0 0 0-6O 66 U

E.ri 0

1617

Interviewing the Child Witness: The Do's and the Don't's ...

Documents

Transcript of Interviewing the Child Witness: The Do's and the Don't's ...