From the 1970’s to the 1990’s, the United States suffered an epidemic of convictions of innocent people based on suggestive investigative interviewing of children. That nation-wide scandal prompted hundreds of studies of the hazards of investigative interviewing of children and of techniques to minimize those hazards.
We keep up to date on this on-going research and write about it for other lawyers. We also engage experts in this research to testify at trial about errors that investigators have made in our clients’ cases, and about the risks that they have elicited false allegations from children.
While the worst excesses of the 1970’s to the 1990’s seem to have disappeared, many child interviewers still base their interviewing methods on folk wisdom instead of science. We make sure juries sitting on their cases learn this.
In some states, including Washington, the lawyer for the accused is permitted to interview the child complainant before trial. In those states this is often the most important event of the case. Many of the cases against our clients have collapsed because of our success in this interview, sometimes because of the child’s answer to a question that the prosecution’s interviewers should have asked but didn’t.
We approach this interview eager to hear what the child has to say, not to trick the child into saying something he or she doesn’t want to. For that reason, we seek conditions for the interview that will put the child at ease. We have found this the best way to get to the truth.
A special set of skills is required for a lawyer to interview a child well. Techniques for interviewing adult witnesses often accomplish nothing with child witnesses. For example, some lawyers will focus on a child’s statements about when the alleged crime happened and feel that they have accomplished something when the child puts it at a time when it could not have happened. Children, though, do not generally pay much attention to the calendar. It is unreasonable to expect them to know how many months ago something happened to them.
Another common error in interviewing children—made by investigative interviewers as well as by lawyers for the accused—is to allow a child to describe several incidents of supposed abuse without separating them into distinct episodes. Whether a child’s report of abuse is truthful is much more likely to emerge when the child’s account proceeds episode by episode.
Especially with young children, one cannot expect a long attention span. The lawyer for the accused must be prepared for the possibility that his interview will be short. We usually seek to interview the child at the very end of our investigation, when we have as much knowledge of the case as possible. At that point we best know what topics to cover before the child’s attention wanders off.
For information on the legal rules and proceedings that determine whether a child’s testimony and out-of-court statements come into trial as evidence, look here.