On cross-examination by the defense, the State’s witnesses conceded false memories are a real danger when small children report they have been molested.
The accusation: That Roy molested three-year-old Patty while she was at the in-home day care his son attended.
The charges: Rape of a Child in the First Degree and Child Molestation in the First Degree
The possible sentence: from ten years to life in prison.
The defense David Marshall presented: Patty’s mother misheard a remark Patty made and feared she had been molested. With suggestive questioning, the mother unintentionally elicited a false allegation that over time became a false memory.
The trial result: The jury acquitted Roy of both charges.
What helped win the case: Testimony from the State’s witnesses, on cross-examination, that false memories are a real danger when small children report they have been molested.
“Now everyone has a false memory.” Thus did the prosecutor caricature my closing argument in his rebuttal argument.
But his derision probably spoke the truth. This probably was a case in which at least four witnesses’ memories had been altered.
I’ll call my client Roy. He is forty years old and single.
Roy has two children, a son and a daughter. The son was three years old when he attended an in-home day care with three girls, including Patty, another three-year-old. The day care was run by Tammy, Roy’s girlfriend for some of the time Patty attended. Roy and his son occasionally spent time at Tammy’s home when Patty was there for day care.
On Sunday evening, March 29, 2009, Patty and her seven-year-old sister, Wanda, were playing and bathing together in their family’s bathtub. Their mother, Ginger, was also in the bathroom, looking at herself in the mirror. As Ginger testified at trial, she heard Patty say to Wanda, “You wanna lick my ‘gina?” She immediately scolded Patty for talking that way. Then, she testified, she reflected further and said to Patty, “No one is allowed to touch your vagina but mommy.” This led to Patty’s telling Ginger that Roy had touched her vagina and had put his finger in her “hole.” As Patty spoke, she demonstrated by inserting her own finger there.
The next day, a sexual assault nurse examiner interviewed both Patty and Wanda. Patty repeated her report that Roy had touched her vagina. The sheriff’s office began an investigation the same day.
During the next several weeks, Ginger gave several written reports to the sheriff’s office of things Patty had told her about being molested by Roy. In one of the first, Patty was reported to have said that Roy licked her vagina, as well as putting his finger in it. In almost every report, Ginger said that Patty had spoken of her abuse by Roy with no prompting. As Ginger described the follow-up questions she had asked, they were not leading.
A sheriff’s deputy attempted to interview Patty but could not get her to attend to his questions. He decided to have a child forensic interviewing specialist interview her. He did not manage to make that happen, though, until ten weeks had passed. Patty then told the specialist, too, that Roy had put his finger in her vagina and had licked her vagina.
In the weeks after Patty’s initial allegations, her parents also reported that she had begun displaying many disturbing behaviors soon after she began in Tammy’s care and had persisted in them during the six more months she was in her care. Patty had been sullen and “clingy,” they said. She often wet the bed. She frequently complained of vaginal irritation. She had many nightmares. She often touched her genitals. She would scream not to be left at Tammy’s house in the morning, and she would scream while being driven away in the afternoon.
Roy was charged with Rape of a Child and Child Molestation, both in the first degree.
The Defense Theory of the Case
The fundamental challenge for the defense was to explain why Patty would say to her sister, “You wanna lick my ‘gina?”—except because Roy had introduced her to that activity. I believed the most likely explanation was that Patty had not really said that. In my opening statement, I pointed out that when Wanda had been asked by the sexual assault nurse examiner the very next day to describe the conversation in the bathtub, she had said nothing about being asked any such question. And it was to Wanda, not Ginger, that Patty had been speaking. Further, Ginger’s attention had been in the mirror at first, not in the tub.
Why would Ginger report that she had heard such a question if she had not? Mostly because of excessive vigilance about possible abuse of her daughters. Ginger had herself been molested as a child. She had taught her daughters the word “vagina” partly so that, if molested, they could accurately report the event. She was primed to misconstrue words she did not hear clearly as words concerning child molestation.
My theory of the case began with that mishearing. In response to it, I contended, Ginger had asked Patty questions from which Patty could detect her mother’s suspicion that a man had molested her. Like the three-year-olds in the classic studies of child suggestibility, Patty had responded with answers confirming her mother’s fears. Over the following weeks, I contended, Patty’s false answers had become her memory. Her subsequent statements about Roy were completely sincere, and completely false.
But what about Patty’s disturbed behaviors during the months she was in Tammy’s care? Here, too, I rejected the premise. The evidence would show, I said in opening statement, that her behavior had not been as her parents described it. Rather, she had been showing merely the sorts of behaviors that any three-year-old could display. It was only after her parents came to believe she had been molested at Tammy’s that they decided her behavior during those months had been quite unusual.
I had planned to describe in opening statement the expert testimony about false memory I was ready to elicit from psychology professor Daniel Reisberg of Reed College. Just before I gave my opening statement, though, the judge granted a prosecution motion to exclude that testimony. As the judge reasoned, Ginger’s accounts of her conversations with Patty showed no leading questions, so there was no basis to believe false memories had been created. I had argued that I disputed the accuracy of Ginger’s recollections. I had presented results of a study in which mothers’ abilities to recall their conversations with their small children had been poor. But the judge had not been persuaded.
I still asserted in opening statement that the evidence would show Patty had a false memory. But I could not promise testimony from a psychologist to explain how that could happen.
The Prosecution’s Case
The judge had found Patty incompetent to testify, so she never appeared before the jury. The jury did, though, see photos of her—over my objection—and she looked quite darling in them. The charming innocence of a small child is, of course, one reason child abuse defense is so difficult.
Patty’s statements, though, gave us one big break. She said Roy had molested her in two places at Tammy’s house: inside the playhouse, and under the porch steps. During my cross-examination of State’s witnesses, the court admitted a photo of Roy sitting next to the porch steps. The photo made plain that Roy would find it difficult and uncomfortable to get under the steps alone—and that it would require impressive contortion for him to lick a child’s genitals while both were under the steps.
I knew the prosecutor would argue that Patty might have meant that only Roy’s head had been under the steps. At her competency hearing, I had been able to ask her, “Was it hard for you and Roy to fit under the steps?” No, she answered. “It was easy for you and Roy to fit under the steps?” Yes, she confirmed. At trial I was able to impeach Patty’s hearsay with those statements at the hearing.
Wanda, Patty’s older sister, did testify at trial. She testified that in the bathtub Patty had asked her to lick her vagina. But the jury learned that Wanda had not said that the next day when the sexual assault nurse examiner interviewed her.
Ginger’s testimony would be the heart of the prosecutor’s case in chief. In interviewing her and cross-examining her at a pretrial hearing, I had seen her reluctance to give straight answers, her unconvincing attempts to explain away inconsistencies, and her over-dramatization of events she had witnessed. I hoped she would perform like that at trial, too.
I was not disappointed. The best example concerned Ginger’s testimony that, in the March 29th bathroom conversation, she had asked Patty, “Did Tammy’s dad ever touch your vagina?,” and Patty had answered, “No… but Roy did.” This was a centerpiece in the prosecutor’s case. It demonstrated, in the prosecutor’s view, that even a leading question could not mislead Patty from telling the truth.
On cross-examination, I put in front of Ginger the account of the March 29th conversation she had written on a sheriff’s statement form dated March 31st. She admitted that she had not written there that she had mentioned Tammy’s dad in the conversation. On redirect examination, the prosecutor showed Tammy her statement for the sheriff of April 13th. There, she had indeed written that she had asked about Tammy’s dad in the bathroom. Ginger explained that her March 31st statement had just been a summary, without the details. The March 31st statement was only four pages, she pointed out, while the April 13th statement was eight pages.
My turn came to recross Ginger. I showed her both the statements she had written. I pointed out that in the eight-page April 13th statement, only the first four pages described events that happened between March 29th and March 31st. Hence the number of pages devoted to events during those three days was exactly the same in the two statements. It wasn’t believable that she had omitted mentioning Tammy’s dad in the first statement because she was just summarizing.
The prosecutor chose to address my contention that Patty had a false memory in his case in chief. He had the sexual assault nurse examiner testify that she had seen no signs that Patty had a false memory. He elicited similar testimony from Mary Dietzen, a psychologist he had brought in to testify that Patty’s reported words in the bathtub showed precocious sexual knowledge.
In cross-examining Dr. Dietzen, I was able to read into evidence a long passage from a book—a book Dr. Dietzen had identified as one on which she herself relied—detailing the problem of false memories in children, especially pre-schoolers. The passage reported some surprising things about these young children. For one, they often don’t understand that an adult questioner cannot know what happened when the adult wasn’t present. Partly because of that, they are inclined to believe the event—even an event they experienced—happened as the adult believes it happened. And a pre-schooler often confuses the source of a memory; the child will believe he or she experienced something that, in truth, he or she learned about from someone else.
Since the prosecutor had introduced expert psychological testimony on false memory, the judge granted my motion to reverse his ruling barring false memory testimony by Daniel Reisberg.
The Defense Case
Many defendants have some blemishes that present problems in their cases. Roy did not. Unless one believed Patty that he had molested her, his history of living a decent life was uninterrupted.
My most surprising witnesses for him were the mothers of his two children—his two “ex”es. These women, whom one would expect to have a keen eye for his faults, had nothing but praise for him as a father and a man who treated everyone well. One worked at the same government agency where Roy did. She testified that Roy had an excellent reputation for sexual morality both at work and in the small town where they lived.
Dr. Reisberg explained that false memories can be as detailed and as vivid as true memories. The brain embellishes false memories with detail contained in other memories.
This case seemed to provide a good example. Patty had reportedly told her mother the day before Easter that Roy had made a trail of Easter candy to lead her to a “spooky place with spider webs.” The story of Hansel and Gretel, and themes from Halloween, seem to have melded with Patty’s anticipation of a visit by the Easter bunny to form this memory.
I knew Roy well enough to know that he kept anger bottled up. I was worried that his obedient, even polite behavior when a deputy told him of the allegations would make him look guilty. Wouldn’t an innocent person show outrage at such an accusation?
I made sure the jury heard the reason Roy had kept his outrage inside. He testified that when he was a boy, his father would beat his mother and him. He had learned the hard way that if he showed his outrage, things would only get worse. “You wanna cry? I’ll give you something to cry about,” his father would threaten. That training from childhood had stuck.
Roy had provided me lots of records—debit card statements, travel records, time sheets from his work—showing that the number of days he could have been in Patty’s presence at Tammy’s house was much smaller than the number of days Ginger testified she had seen him there. After much debating with myself, I decided not to offer any of those records in evidence. I could imagine the jury wading through all that paper as it deliberated. I could imagine the jury losing sight of the right question—”Does the evidence show Roy did this?”—and letting its place be taken by the wrong question—”Was it possible for Roy to do this?”
In closing argument, I stepped back from the disagreements between Dr. Dietzen and Dr. Reisberg to focus on a few simple points. When I discussed false memory, I quoted, not Dr. Reisberg, but the prosecutor’s witnesses. Even Ginger had testified that she knew inept questioning of small children could produce false memories. And I did not analyze the disagreement between Dietzen and Reisberg about whether the extreme behaviors Patty’s parents had reported showed she had been abused. I just pointed out that those reports had to be false, because any parent seeing them would have sought another day care facility for Patty; her parents had actually increased her time at Tammy’s during the period they now said Patty was showing those behaviors. “Actions speak louder than words,” I argued.
So yes, there were false memories all around… Patty, Wanda, and both of their parents.
The jury deliberated a bit more than a day, then acquitted Roy of both counts.