Suggestibility

"Child witnesses are highly susceptible to suggestion and often undergo severely suggestive interviews."

-- Dugas, 'State of New Jersey v. Michaels: The Due Process Implications in Interviewing Child Witnesses,' 55 Lou.L.Rev. 1205, 1226 (1995)

We are all familiar -- from 'Law and Order' and other TV shows -- with suspect 'lineups.' This is where a witness -- usually a victim -- comes in to look at several people -- typically behind a one-way mirror -- and selects the one who 'did it.' Why is it done this way? Because, in order to help ensure that justice is done, the witness needs to decide who the 'right man' is on his or her own , without any hints or suggestions. Prior to this becoming standard practice -- i.e., when the police would produce a single person and insistently 'ask,' "it was him, right " -- the result was many (more) wrongful convictions based on mistaken witness identification. This is because improper suggestiveness had irrevocably contaminated the witness' memory of what actually happened.

In the same way, if victims/witnesses are not interviewed properly, their memories of what really occurred can also be irreparably damaged. The degree to which people's memories can thereby be distorted is known as 'suggestibility.' Although this can affect people of all ages, children are especially susceptible to it. And the courts have acknowledged this:

"'[A] sufficient consensus exists within the academic, professional, and law enforcement communities...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.' State v. Michaels, 136 N.J. 299...(1994)...An emerging consensus in the case law relies upon scientific studies to conclude that suggestibility and improper interviewing techniques are serious issues with child witnesses..." (Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001)) [Emphasis added.]

Law review articles and treatises have come to similar conclusions: "An interviewer may introduce elements of fantasy, exaggeration, or distortion through the use of improperly leading questions." (Myers, 'Evidence in Child Abuse and Neglect Cases' 114 (1997)) "Because... children do modify their stories to fit adult perceptions , courts should pay particular attention to whether ;the abuse investigator had a preconceived notion of what happened to the child, and then sought the child's confirmation." (Younts, 'Evaluating and Admitting Expert Testimony in Child Sexual Abuse Prosecutions,' 41 Duke L.J. 691, 724 (1991))

This is precisely what happened in the Jeffrey Nickel case. Investigator Bates testified that he "recognized" the persons depicted in a sexual photograph as Nickel and 'Arthur' . Following this alleged recognition, Bates then showed the photo to 'Arthur,' who then confirmed the former's 'preconceived notion.'

Just how were witness interviews conducted in the Jeffrey Nickel case? That's difficult to say, mainly because the police failed to videotape any of them. And although there are notes for some of the interviews, they do not indicate what questions were asked, how many times they were asked, whether any answers changed, or the general circumstances surrounding the interviews. Nevertheless, the fact that 'Arthur' came to believe some things which were demonstrably untrue, as evidenced by the fact that he was wrong about every single detail he testified to regarding Nickel's home (where the oral sex supposedly occurred), changed his answers to the Judge's (Czajka's) own questions during trial in an obvious effort to please him, and admitted that he sometimes mistook dreams for reality, is more than sufficient evidence to conclude that extremely poorly-conducted interviews irrevocably contaminated his memory.

It has been noted that "the interviewing process is also a learning process and can actually change what exists in the child's memory. Once such a change takes place, it is virtually irreversible ." (FN 109: Feher, 'The Alleged Molestation Victim, the Rules of Evidence, and the Constitution: Should Children Really Be Seen and Not Heard?,' 14 Am.J.Crim.L. 227 (1987), at 232-33) [Emphasis added.]

Stephen J. Ceci, Ph.D., and Maggie Bruck, Ph.D., authors of 'Jeopardy in the Courtroom: A Scientific Analysis of Children's Testimony,' published by the American Psychological Association, write that:

"The work of Lippmann, a German psychologist, is of interest. He concluded that...children do not have fewer memories than adults, but different kinds of memories...Lippmann stated that:

'[C]hildren may be questioned by adults, who have great authority over them, about events that are neither essential nor salient to the child. In these circumstances, the child will attempt to compliantly revise his memory , making his report consistent with the question. "If the respected person who is questioning me expects such an answer then it must be the right one ."' (Lippmann, 1911, pg.253) [Emphases added.]

"Thus, rather than simply answering 'I do not know,' the child accepts any material that comes to mind to fill these gaps, whether it is imaginary or real . That is, the child fails to differentiate fantasy from reality." (at 57-58) [Emphasis added.]

Ceci & Bruck also report that when children are asked the same question more than once, they often take this as an indication that their original answer was not 'correct,' and thus change their answer . "The accuracy of a child's report decreases when the child is interviewed in highly leading and suggestive ways by interviewers who are uninterested in testing alternative hypotheses, such interviews may tarnish the evidence to such a degree that markers of the truth may be buried forever." (Id., at 85) "[C]hildren's inaccurate reports or allegations do not always reflect a confusion of events and details of an experience, but may at times reflect the creation of an entire experience in which the child did not participate ." (Id., at 133) [Emphases added.]

In the Jeffrey Nickel case, as can be seen from 'Arthur's' testimony, the latter in fact did answer questions according to what he perceived the questioner desired, and showed a marked difficulty in differentiating fantasy from reality.

"Maximally leading techniques engender in the mind of the child a specific image, which has been referred to as seed planting . (Gardner, 1992) A maximally leading technique significantly reduces the universe of possible responses a child might make and draws the child's attention to the focus of the investigation. These techniques tell the child what the investigator wants to discuss and very often imply the desired response. For example, presenting the child with a picture containing a naked adult and child would be a maximally leading technique in a sexual abuse investigation because this technique is quite likely to focus the child's attention upon the genitalia and interactions between a nude adult and child." (Mapes, 'Child Eyewitness Testimony in Sexual Abuse Investigations,' (1995), at 51. [First emphasis original; second emphasis added.] Again, this is exactly what happened in the Nickel case, when Investigator Bates showed the sex photo to 'Arthur'. The total lack even of any contemporaneous notes of that interview make it impossible to determine much of anything about the manner in which it was conducted. And yet, given the fact that 'Arthur' said nothing about any oral sex until he was shown that photo, as well as the reality that he was 100% wrong about every exterior and interior detail about Nickel's home (the alleged location of this event) to which he testified, it is quite clear that this interview was immensely suggestive.

It should be stressed that traditional trial strategies available to the defense, such as cross-examination, are of little or no use when the child's memory has already been contaminated by the investigative process itself : "The effects of suggestive pre-trial identification procedures, as with suggestive or coercive interview practices, are exceedingly difficult to overcome at trial...Witnesses in both situations are quite likely to be absolutely convinced of the accuracy of their recollection. Thus their credibility, understood as their obvious truth-telling demeanor, is unlikely to portray any inconsistencies or falsehoods in their statements." (Michaels, supra, at 319) Social scientists agree that: "When a child has been taught a fabricated story, repeated it enough to produce subjective certainty, for that child a non-event has become reality . This is not a benign or innocuous experience. It may result in long-term damage to a child. This also means that the child will appear truthful, credible, and reliable because for the child it is a real story." (Wakefield & Underwager, 'Interrogation of Children,' Issues in Child Abuse Accusations, 1989,1, 14) [Emphases added.]

"Repeated interviewing reinforces these altered perceptions. The repeated reinforcement of these ideas creates in the child a 'subjective reality' that an event did happen even if it never did. This enables the child to relate such experiences on the witness stand without 'lying.' She actually believes the event happened, and no conventional trial tactics [would] be able to show she is 'lying,' because she is not ." (Feher, supra, at 232) [Emphases added.]

In the following, we explore the issue of suggestibility in greater depth, beginning with the earliest experiments carried out. Exploring the breadth of scientific knowledge regarding this topic, we will see that, although everyone is susceptible to suggestion, this is particularly true of children. And for many kids, simply assuming the accuracy of what they say is simply wrong. Even so-called 'experts' are not good judges of children's credibility. Dogma and platitudes such as 'chldren never lie' are, at best, misleading, and at worst, flatly incorrect. Interviewer bias and asking the same question until the 'right' answer is given is a recipe for irrevocably implanting false memories.

Children are generally compliant with adults, and will tell the latter what they want to hear. Even kids who initially know they're making stuff up can later come to believe it, and will give more and more false information simply because they want the interview to end as soon as possible. Stories will often be impressively elaborate, not mere parroting of information fed to them. Children are even more eager to please authority figures, which law enforcement officers certainly are. Moreover, multiple interviewers and interviews -- even informal ones not invoving law enforcement -- lead to increased confabulation. A long delay between the events at issue and criminal trial also degrades memory accuracy. We then look at what various courts and legal scholars have said about suggestibility, including the specific issue of photographic suggestibility, including the specific issue of photographic suggestibility, so central to Nickel's case. Last but not least, we look at interviewer training.

C2 [50] "The debate over the forensic value of psychological research was started when a prominent Harvard professor of psychology, Hugo Mnsterberg (1907), called upon the court to replace their untrained intuitions about witness credibility with the findings of scientific psychology...Mnsterberg's position was ruthlessly criticized by prominent jurists such as Moore...and Wigmore...on the grounds that psychology had nothing forensically useful to offer the law... [51] Mnsterberg...rebutted Moore's criticisms with equal force, commenting sarcastically that he 'had not known that the jurists of the land were so excellently versed in psychological knowledge. I have attended many a court trial and have read carefully many reports, and have been astonished by the lack of knowledge of mental facts on the part of attorneys and judges...But if it were true...that the judges, as Mr. Moore says, "have beaten the psychologists by a mile," it would really be a pity that they seem so unwilling to help us in our work. What a cruelty to let us perform thousands and thousands of painstaking experiments on the most subtle points of mental life, while they succeed in knowing it all so much better by common sense and instinct!'"

[These words are also striking vis- -vis Judge Paul Czajka's refusal to allow testimony from a photography expert in Nickel's case.]

[52] "In 1900, Alfred Binét published La Suggestibilité, in which he reported a series of studies on the suggestibility of school children between 7 and 14 years of age...[54] There were several major findings...First, free recall (which was prompted by the request to 'write down everything you saw') resulted in the most accurate statements, whereas highly misleading questions resulted in the least acurate statements. This was the first demonstration of a pattern of results that was to be repeatedly replicated throughout the rest of this [i.e., the 20th] century. Second, the children's answers to the questions were characterized by an exactness and confidence, regardless of their accuracy level. This, too, was to prove a highly consistent finding throughout the century...Binét concluded that children's erroeous responses reflected gaps in their memories, which they reasonably attempted to fill in order to please the experimenter. However, once an erroneous response was given, Binét surmised, it became incorporated into their memory."

[55] "Varendonck [1911], a Belgian psychologist, conducted a number of interesting studies on young children's testmony...He mtaintained that children would believe anything adults wanted them to."

[236] "In some studies, 8-year-old, 9-year-old, and even 10-year-old children were found to be significantly more suggestible than adults..."

B13 [948] "In the past few years, it has become more apparent that although there may be age differences in children's suggestibility...suggestibiity levels remain high throughout the elementary years..."

A2 [Daniel Schachter (sp.?) of Harvard is interviewed by Alan Alda regarding the impact of photographs on changes in memory. Alda was told ahead of time that he would be observing a live skit, and would subsequently be shown several photographs and asked which ones portrayed actions that actally occurred in the skit. Alda wrongly labelled 2 of the 8 photos as depicting events in the skit. As Alda put it:] "'...even though you knew what the game was...It's not like re-playing a videotape; it's more like shaking a kaleidoscope...Again, I've been given a false memory.'"

C2 [ix] "Interestingly, the modifications in the judicial system regardng the treatment of child witnesses [e.g., allowing ever-younger children to testify, lowering the ages at which children are presumed competent to testify without a hearing on the matter] were brought about by social pressures and by the presumption that courtroom modifications will increase testimonial accuracy...rather than by a consideration of the social science data."

[238] "Scientific experts should advocate for the truth, not for or against a defendant." B1 [309] "[T]here is always some risk when generalizing from scientific studies to real world analogs. Scientists believe, however, that the best basis for doing this is to extrapolate from the corpus of research that comes closest to matching the constellation of variables that operate in the real world, even if the match is less than perfect. The alternative is to eschew insights, predictions, or hypotheses gained from systematic, controlled studies in lieu of anecdotes, personal opinions, and ideological views."

R9 "A surge in the prosecution of child abuse...cases over the past 20 years has created a need for psychological research to inform questions regarding the competency and credibility of children and adolescents involved in the justice system. Such research can further the understanding of the extent to which, and the situations in which, communicating with children and adolescents is a valid diagnostic tool for 'divining the truth[, which] is generally seen to be the critical function of legal proceedings' (Haugaard & Reppucci, 1992, p. 29)."

M23 "'The lawyer alone is obdurate. The lawyer and the judge abd the juryman are sure that they do not need the experimental psychlogist. They do not wish to see that in this field preeminently applied experimental psychology has made strong strides. . .They go on thinking that their legal instinct and their common sense supplies them with all that is needed and somewhat more. . .The Court would rather listen for whole days to the "science" of the handwriting expert than allow a witness to be examined with regard to his memory and his power of perception, his attention and his association, his volition and his suggestibiity, with methods which are in accord with the exact work of experimental psychology.' (Hugo Mnsterberg, On the Witness Stand 10, 46 (1908)

"The legal profession's reluctance to acknowledge the findings of social scientists, while accepting other 'sciences' on little other than blind faith has contributed to the phenomena of erroneous convictions."

[from FN12:] "State v. Gersin, 668 N.E.2d 486, 488 (Ohio 1996) (finding that most jurors lack the knowledge of accepted practices in interviewing child victims, and expert testimony on this issue is therefore admissible."

[1274] "Any meaningful reform must...[ensure] that 'obdurate' lawyers and judges address their preconceptions about the social sciences and educate themselves about the findings of applied psychology."

M3 [373] "Although the assumption of testimonial accuracy may be true for adult witnesses, research documents that such an assumption is probably false for many child witnesses."

M6 [157] "For whatever reasons, personal or professional, social-work victimologists in the crusade against child sexual abuse, without thinking through its logical sequelae, say that their policy is always to believe the child. They are heedless of their profession's own profound acquaintance with severely disturbed children who do not distinguish fantasy from fact."

[In Nickel's case, 'Arthur' admitted having trouble distinguishing between the two.]

M2 [119] "[W]e cannot afford to justify less than adequate investigations on the grounds that we are willing to err on th side of the child ...[I]t is essential that we conduct our investigations in a patient, thorough, objective, and compassionate manner which establishes a sound information base in order to maximize the accuracy of our decisions while minimizing further victimization to all of the parties directly involved." [Emphasis original.]

C2 [281] "To examine experts' judgments of children's credibility, we asked them to rate the credibility of some of the subjects in our studies. For example, we showed videotapes of the final interview with the Sam Stone children [who were told ahead of time that they were going to get a visit from this 'clumsy' person, and were then repeatedly subjected to suggestive interviews about what occurred] to approximately 1,500 judges, researchers, and mental health professionals who work with children. They were told that all of the children observed Sam Stone's visit to their day-care centers. They were asked to decide which of the events reported by the children actually transpired and then to rate the overall credibility of each child. They were quite inaccurate. Analyses indicated that these experts -- who conduct research on the reliability and credibility of children's reports, provide therapy to children suspected of having been abused, or carry out law enforcement interviews with children -- generally failed to detect which of the children's claims were accurate and which were inaccurate: The very children who were least accurate were rated as most accurate...[282] [In another study:] The same pattern was obtained when the analyses were restricted to a smaller group of experts who were uniquely qualified to assess child sexual abuse.

"Although surprising to some, these results are depressing to all. They suggest that at least for some allegations of child sexual abuse, there is no 'Pinocchio test' that can be used even by the most experienced and qualified experts to definitively ascertain whether or not abuse occurred. Yet despite this limitation, experts contiue to go into court and give their opinions with great confidence solely on the basis of the markers of credibility in children. Wise counselors and judges should put these experts' feet to the coals, forcing them to provide scientifically adequate evidence for their interpretations. In light of the research described in these pages...to do otherwise would seem akin to accepting the testimony of a forensic astrologer..."

M4 "Although demeanor evidence is intuitively appealing as an aid in assessing credibility, recent social science research has demonstrated that if there are in fact consistent physical clues that reveal the sincerity or the accuracy of a speaker's story, humans are very poor in assessing them. * Clues revealed both by body movements and facial expressions and by qualities of voice and speech add virtually nothing to determining accurately whether a person is telling the truth...Moreover, demeanor clues appear equally ineffective whenever the speaker's honesty or accuracy is being assessed." **

G6 [140] "[T]he case is building that will make eyewitness testimony as notorious for unreliability to the public as it already is to neuroscientists who study memory. We may be approaching a state of knowledge about the brain in which all testimony without documentation should be viewed with great caution. As neuroscience learns more and more about the unreliable memory system, the very foundation of a trial will be deeply challenged, as it should be.

"Given the research evidence, it is shocking to contemplate just how much reliance this country's criminal justice system places on something as fallible and malleable as memory...[141] Memory is a fundamentally flawed system, anduntil we learn more about it, the only rational and ethical position is to maintain a distance from the idea that it is accurate."

[When children believe certain things to be true, they are often quite vague as to the precise source of that belief; i.e., whether they saw/experieced it for themselves, or were told about it by another person; who that person was; when they heard it, etc.:]

L16 [416] "From a psychological perspective, asking children about conversations raises interesting and unexplored empirical issues. First, there is little research on adults' recall of conversations, let alone research on children. Recall of conversations is likely to raise difficulties in source monitoring (that is, the process by which one recalls the source of information, such as where and when one first learned some fact). Therefore, to the extent that children are asked to recall specific conversations, their abilities may be taxed."

[426] "[W]e reviewed the testimony of seventy-two six- to sixteen-year-old child witnesses testifying to child sexual abuse in Los Angeles County criminal cases."

[427] "We found that children were asked about conversations with suspects in virtually all (92%) of the trials."

[That's very interesting because, in the Nickel case, 'Arthur' was never asked about conversations he may have had with Nickel (by the prosecutor or defense counsel). Why? Perhaps because Prosecutor Peter Torncello knew his case was already shaky, and didn't want to jeopardize it by probing too deeply.]

[434] "Research examining adults' ability to remember their conversations with children has found that adults have difficuty recalling how information was elicited, whether statements were spontaneous or prompted, and who uttered specific utterances. We are not aware of any research examining children's abilities to identify the speaker in prior conversations."

[Therefore, cross-examining children or adults about abuse-related conversations (interviews) they experienced or conducted is very unlikely to shed any real light on the true source of a given 'memory' or belief.]

M2 [24] "[T]he child's description of an event from memory may be very believable but this does not mean the child or adolescent actually experienced the recalled event. [And,] regardless of the source of the memory, the child or adolescent might be very confident of the accuracy of the memory...While studying the briefing of witnesses, Wells, Ferguason, and Lindsay (1981) found that briefing witnesses raises witnesses' confidence even if the witness provided inaccurate testimony. The researchers found that a briefed witness who was confident about his or her memory but who provided inaccurate details of an event appeared more credible to a jury than did a witness who was less confident but very accurate in reporting an event. Deffenbacher (1980) warns that 'the judicial system should cease and desist from a reliance upon eyewitness confidence as an index of eyewitness accuracy' (pg. 258)."

M23 [1284] "A body of research has developed in the areas of children's memory and suggestibility demonstrating the complex dynamic that exists when a child is interviewed to gather forensic evidence in a sex abuse case. There is a consensus among researchers that young children are more susceptible to suggestion. Although jurors may generally accept the notion that children are suggestible, studies indicate that they are reluctant to accept that fact in cases of child sexual abuse. Several studies focusing on the credibility of differently-aged victims/witnesses alleging sexual assault found that jurors in mock trials viewed younger victims as unable to fabricate sexual allegations. That is likely because jurors [1285] believe that a young child will not invent details about sexual activity, even when an intervewer suggests that something sexual occurred. However, this commonly held belief needs re-examination. Researchers have found that the younger the child, the more susceptible the child is to suggestion from adults, including well-meaning interviewers, about bodily contact and bodily touching.

"Even accepting that jurors are aware that children are suggestible, average jurors are not aware of the effects of interview techniques or other suggestive influences on false memories. For example, most lay people would not know how to identify a leading question; the effect of leading questions on a suggestible child; the effect of intervewer bias; the pressure on a child to please the interviewer; the effect of 'stereotype-induction' (when an adult tells a child how others characterize the suspect); the necessity of beginning an interview by asking open-ended questions; and the necessity of an appropriate rapport-building introduction. Expert witnesses are able to educate the jury about these areas of concern, allowing the jury to better assess the credibility of the testimony of the complainants and the capability of interviewers who present hearsay renditions of the children's prior disclosures."

C2 [80] "[I]nterviewer bias can be found wherever an interviewer thinks he knows the answers before the child divulges them."

[141] "[C]hildren may begin to give incorrect information to misleading questions about events for which they have no memory, if the interviewer creates an atmosphere (emotional tone) of accusation."

B1 [276] "Interviewer biases are...revealed by a failure to follow up on some of the children's inconsistent or bizarre statements where doing so might disconfirm their primary hypothesis."

[Why didn't Detectives Mark DeFrancesco and Ronald Bates question 'Arthur' further when they realized his descriptions of Nickel's house were toally wrong ?]

M3 [375] "As demonstrated by the [State of New Jersey v. Kelly Ann] Michaels videotapes, the reliability risks escalate dramatically when the children's statements are a product of an investigative interview...[I]nterviewer bias and stereotyping are, or properly should be, the source of considerable public concern."

W6 [232] "Children are often subjected to repeated interviews, sexual abuse therapy, and interactions with adults who believe that the abuse is real. The adults may ask a series of leading questions in which they provide information to the child about what supposedly happened...Although repeated and/or suggestive interviews do not mean that the child has not been abused, they can make it very difficult to sort out what, if anything, has happened."

G7 [47] "It can be seen from many videotapes of interactions between therapists and children that over-zealous interviewers often use leading questions, cueing of desired responses, praise for desired answers, and manipulated fantasy play which implants ideas about sexual activity."

G27 [Discussing a study in which a 'janitor' was brought in, whose actions the children were subsequently asked about. Some of the questions posed to the children were biased; i.e., strongly implied that the janitor had done something wrong:]

"Further evidence of individual differences in suggestibility was seen in children's readiness to accept the interrogators' biased interpretations. Although all children who heard interrogations that were inconsistent with what they had observed eventually converted to the interrogators' view, some did so more rapidly...[T]hese more suggestible children were found to be more suggestible in other contexts as well, more compliant in games with the experimenter, and less knowledgeable about what it means to tell a lie; their parents were less likely to value self-direction for the children and were not as strict about lying.

"In sum, the children's interpretation of a somewhat ambiguous event was easily manipulated by an opinionated adult interviewer."

L1 [52] "Dent (1982) reports in detail several instances in which child witnesses have been led to give erroneous accounts. While interviewing one child ['fourth year' -- exact age not given -- 9 or 10?] who had witnessed a staged incident involving three men and a woman, an experienced police officer inquired into the woman's appearance:

Q: Wearing a poncho or cap?

A: I think it was a cap.

Q: What sort of cap was it? Was it like a beret, or was it a peaked cap, or. . .?

A: No, it had sort of, it was flared with a little piece coming out. It was flared with a sort of button thing in the middle.

Q: What. . .Was it a peak like that, that sort of thing?

A: Ye-yes.

Q: That's the sort of cap I'm thinking you're meaning, with a little peak out there.

Q: Yes, that's the top view, yes.

Q: Smashing, Um -- what colour?

A: Oh! Oh -- I think that was um black or brown.

Q: Think it was dark, shall we say?

A: Yes -- it was dark colour I think, and I didn't see her hair.

(pp. 290-91)

"The woman was, in fact, not wearing anything on her head, nor was she wearing a poncho. Yet the child came to recall these items, and later volunteered that the woman carried a dark-colored purse that matched the cap. The dialogue between officer and child demonstrate how a child can be led into compounding an initial error by the persistent request for details of every item mentioned. Although the child had at one point been uncertain about whether or not the woman was wearing a cap, the child came to be quite confident about it, even volunteering further information about its characteristics. Note also how the police officer, through suggestive questioning, gradually brought the child to accept the image of the cap as having a peak, even though this was earlier rejected. By the end, the child had come to recall the top view of the cap as one that would contain a peak. Even if the woman had been wearing a cap, the child would have been too small to see the top view."

[57] "Loftus and Palmer (1974) showed subjects films of automobile accidents followed by questions on the film. The question 'About how fast were the cars going when they smashed into each other?' elicited higher estimates of speed than the same quesrion asked with the verb hit . On a test administered a week later, subjects who had been given the verb smashed were more likely to answer 'yes' to the question 'Did you see any borken glass?' even though broken glass was not visble in the film. This result also tells us something about the scope of memory modification. Supplying a specific postevent detail can have effects on memory that go beyond the representation of that single detail...Such indirect memory modifications that result from misleading postevent inputs indicate that direct memory modifications force a 'ripple effect' throughout the memory representation."

[64] "Dent's example serves as a further reminder of counterproductive techniques for interviewing witnesses that must be avoided. She discovered that the most counterproductive interviewing occurred when the interviewer held a strong preconceived impression of what had happened in the incident. Often this leads to the phrasing of highly suggestive questions, and a lack of receptiveness to relevant information that did not fit the interviewer's preconceived version."

[In the Nickel case, Investigator Ronald Bates 'discovered' an image, showing an adult or adolescent male performing oral sex on a young boy, which he claimed to 'recognize' as depicting Nickel and 'Arthur' . No matter that the color of 'Arthur's' eyes and those of the boy in the photo were different, nor that the furnishings in the background clearly did not match those of Nickel's bedroom, where the event supposedly took place. Bates just 'knew' it was Nickel and 'Arthur,' and soon convinced the latter of exactly that.]

Y1 [106] "Under no circumstances should the interviewer name the suspect or suggest what happened during the alleged acts."

[This is precisely what Bates did.]

W22 [150] "When exposed to the 'McMartin [suggestive] techniques' for less than five minutes, children in the study conducted by [Sena] Garven and colleagues showed error rates of nearly sixty percent."

[161] "Interviewers who have a bias about what might have happened tend to elicit more false information from children."

W21 [132] "Kim Roberts and Michael Lamb analyzed a sample of sixty-eight sexual abuse interviews invoving children between the ages of three and fourteen years, and found 140 instances of interviewer distortions and misinterpretations. Many of these distortions involved the identities of people being discussed in the interview, and many others involved actions. Children actuallty [133] agreed with the distortions one-third of the time, ad explicitly corrected or disagreed with only one-third of them. In the absence of corrective feedback, the interviewers continued to use the distorted version of the information during the remainder of the interviews."

G2 [142] "Given the ease by which unskilled interviewing of a child can distort the evidence, it is vital that the child be interrogated by an experienced expert at the onset of the investigation."

[Neither Mark DeFrancesco nor Ronald Bates could remotely have been characterized as 'experts' in interviewing children about alleged sexual abuse. They admitted as much on the witness stand. Bates said the extent of his 'training' in this area consisted of "an overview or a seminar."]

B12 [521] "[T]he concept of interviewer bias is a defining feature of suggestive interviews. Interviewer bias characterizes those interviewers who hold a prior belief about the occurrence of certain events and who mold the interview to maximize disclosures that are consistent with those prior beliefs. One hallmark of interviewer bias is the single-minded attempt by an interviewer to gather only confirmatory evidence and to avoid all avenues that may produce disconfirmatory evidence. Thus, biased interviewers do not ask questions that might provide alternative explanations for the allegations or that might elicit information inconsistent with the [522] interviewer's hypothesis. In addition, biased interviewers do not challenge the authenticity of a child's report when it is consistent with their hypothesis. Even when children provide inconsistent or bizarre evidence, it is either ignored or interpreted within the framework of the biased interviewer's initial belief. In contrast, when the child's statement is incongruent with what the biased interviewer believes, it will be challenged or pursued with repeated questions designed to align the child's subsequent report with the interviewer's initial beliefs.

"The concepts of interviewer bias and suggestive interview are not categorical but continuous in nature. As such, highly biased interviewers will engage in highly suggestive interviews."

[In the Nickel case, Bates and DeFrancesco were highly biased; and they did 'engage in highly suggestive interviews.']

U17 [5] Raskin and Yuille (in press) state that 'it is common practice for interviewers to assume that the allegations are true and that the purpose of the assessment is to obtain information that can be used to arrive at that conclusion.'"

[13] "If the interrogator...has strong and certain beliefs, this bias will be very powerful. It frequently results in an interview directed not towards determining the truth but towards substantiating abuse."

L11 [4] "A great deal of scientific inquiry has gone into attempting to understand how children come to believe the preposterous and make statements about events that never happened...Goodman and Clarke-Stewart (1991) describe a study conducted by Clarke-Stewart, Thompson, and Lepore (1989) with 5- and 6-year-old children. The children interacted with the confederate named 'Chester' who posed as the janitor and followed one of two scripts. In both scripts, Chester cleaned the toys and especially a doll, while in the other script Chester handled the doll roughly and suggestively.

"Each child was then questioned about the event by an interviewer who was either 1) accusatory in tone, saying Chester had been inappropriately playing with toys instead of cleaning; 2) exculpatory in tone, suggesting that Chester was just cleaning the toys and not playing; or 3) neutral and non-suggestive. Each child was then questioned a second time by an interviewer who either reinforced or contradicted the first interviewer.

"When the children were given a neutral interview and when the interview was consistent with what they had observed, the children were accurate. But when the interviewer contradicted the script, the children's stories quickly conformed to the [5] interviewer's interpretation. At the end of the first interviews, 75% of the children's stories about Chester were consistent with the examiner's script and 90% of the children answered at least some of the interpretive questions in agreement with their interviewer's script as opposed to what happened. When the second interview was of the same type as the first, only one child gave fewer than 6 out of 6 responses in line with the interview. When the second interview was contradictory to the first, most children changed their answers to conform to the second interview.

"Research by Ceci, Ross, and Toglia (1987) yielded similar results. They found that children are very susceptible to modifying their story based upon an adult's post-event suggestions."

[9] "It is the treatment the child receives from the public welfare system, law enforcement and the courts that interferes with accurate memories (Berliner, 1988; Jones, 1991)."

C2 [79] "Another finding that reflects children's attempts to be cooperative conversational partners is that when they are asked the same question more than once, they often change their answers. They appear to interpret the repeated question as 'I must not have given the correct response the first time; therefore to comply and be a good conversational partner, I must try to provide new information'...For example, in one study, young children saw a videotape of a puppet being given a test by an adult interviewer (Siegel, Waters & Dinwiddy, 1998). After the puppet had responded to the interviewers' questions, the children were asked if the puppet had answered to please the interviewer or because that was what the puppet really thought was the true answer. When the interviewer repeated the question and the puppet changed its answer, many children said that the puppet did so to please the interviewer."

U4 [570] "Repeated questions can produce a change of answers as the child may interpret the question as 'I must not have given the correct response the first time,' and the child's answers may well become less accurate over time (or even within a single interview) resulting in an inaccurate report."

U17 [14] "The reality that is completely overlooked is that each of these experiences of interrogation is a learning experience for the child."

[17] "Our research suggests that leading questions and other types of error-inducing questioning occurs from half to four-fifths of the time in the typical interview of the child witness."

C2 [78] "[C]hildren's responses to adults' questions may sometimes reflect what the child thinks the adult wants to hear, rather than what the child actually thinks."

[258] "On the basis of what we know about the social development of children, it seems clear that social factors should play a large role in the creation of suggestible reports. First, adults (who are the interviewers) have high status in the eyes of young children. Children see adults as omniscient and truthful; rarely do they question adults' statements or actions. On most occasions, children try to comply with the adult norms or what they perceive to be the adult wishes. This compliant behavior puts the child at risk for suggestion. A child may be very willing to accept the suggestions of the interviewer, no matter [259] how bizarre or incongruent the suggestions, merely because the child trusts the interviewer and wants to please him...Impressions that we derived from listening to some of the existing electronic recordings in the case studies, and in similar cases not described in this book, provide a missing dimension not detectable in the written transcripts: There are long pauses in those interviews, children's answers do not come spontaneously, and there is often hesitation and a feeling of confusion as they come to assent to the interviewer's questions."

F1 [200] "The child victim's testimony is often the only direct evidence the prosecution has to offer. Reliance on the child's testimony and out-of-court statements is a critical factor to a finding of guilt. This reliance, however, is often misplaced. Studies indicate that a child's response during post-abuse interviews can be manipulated. A child often responds to adult questioning with the hoped-for result of giving a correct response and gaining the adult's approval. Interviews with children have demonstrated the malleability of their responses by the disapproval or positive reinforcement of the interviewer. It has also been shown that introduction of new facts by the interviewer frequently become part of the child's memory and are incorporated into the child's account of a particular event."

U17 [7] "The research on conformity and compliance demonstrates how the desire to get approval from others exerts a powerful influence upon behavior. In interviews with children there is pressure to conform to the perceived expectations of adults. This can only be avoided by a careful effort by interviewers who recognize their own stimulus value and minimize cues on how to respond.

"Theories on parenting techniques recognize that the best way to change the behavior of a child is to use attention, praise, approval and other social reinforcement. Children are sensitive to approval from adults and will quickly learn to behave in a way that gets positively reinforced.

"When an adult relates to a child by ignoring the interactive nature of the relationship, denying any impact on the adult's behavior, intents, and purposes, and refusing to consider environmental variabes, that adult has objectified the child. The child is not treated as a person, is not understood to be a child, but is only an object for the adult's agenda. [8] This is the same basic problem feminists have objected to in their discussion of male-female relationships. When a man approaches a woman with nothing on his mind but his own agenda -- sexual satisfaction -- and shows no awareness of the other person's value, needs, desires, capacities or personhood, the woman is turned into an object. This demeans, diminishes, and renders powerless the person objectified. Feminists have shown us that this is a form of oppression and victimization. In this instance the rhetoric matches the reality. Male dominance and control of women has generated deep, enduring, and often devastating hurts. It has produced costs to society, the economy, and the nation states.

"If children are to be treated as persons in ther own right, adults must be aware of their own position of power and the ability to dominate and control a child. Adults must control their own purposes, assumptions, and behavior toward a child and acknowledge the potential for their behavior to influence the child. If this is not done there is no way the adult can avoid objectifying the child. It is tragic and odd that an attempt to assure children are treated as persons winds up not treating them as persons. We can and must do better in discovering ways to relate to children that foster their individuality and their personhood."

L11 [10] "Researchers have...discovered that children provide their adult conversation partners with the type of information they think the adult wants (Ervin-Tripp, 1978; Read & Cherry, 1978).

"King and Yuille (1987) suggest that if an intervewer gives signals as to what the interviewer is searching for in an answer, children are very responsive to such signals. Relative to adults, children are more suggestible because they find themselves in more situations [with] which they are unfamiliar. As a consequence, children are likely to pay attention to anyone (especially an adult) who they believe knows how to behave in that situation."

[12] "Clinical professor of psychiatry at Columbia University, Richard A. Gardner, who has written widely on issues of child/examiner interaction, points out how less-than-well-trained examiners can contaminate child victims: 'Not only do examiners make frequent use of leading questions, but they use leading gestures. Although leading questions can easily be seen on the transcripts of these interviews, the leading gestures are rarely described by the transcriber. These gestures play an important role in what is actually taking place...' (1972)"

[13] "According to [clinical psychologist Sue] White and [psychiatrist Kathleen] Quinn, 'Leading should be considered to have occurred when the interviewer produces any material that the child has not previously revealed to the interviewer.'...Leading the child away from her answer, telling the child she is wrong or simply ignoring the child's answer are all telling examples of disconfirmation...They recommend that any fact finder assess the investigatory independence manifest in the interviewing process. A fact finder must ask:

1. Has the evaluator made a thorough review of all primary sources which document the child's original complaint and made an analysis of the family history, [14] [taken] a psycho-social history, [and] examined alternative explanations for the child's presenting behaviors?

2. Has the evauator distorted the data by the pursuit of his or her own agenda?

3. Has the evaluator contaminated the child's memory by repetitive leading questions and gestures, causing the child to encode memory supplied to the evaluator?"

[21] "A compilation of things the Michaels court instructed its trial judges to look for in this important assessment [is] as follows:

1. Failure to videotape initial interview;

2. Lack of control for outside (family) influences;

3. Absence of spontaneous recall in the supposed victims;

4. Interviewer bias -- A preconceived notion that the alleged wrongdoer 'did it'; 5. Repeated leading questions;

6. Incessant questioning, either by examiners or by family members;

7. Multiple interviews;

8. Transmission of suggestion to children, i.e. tone of voice; [22]

9. Positive reinforcement of inculpatory statements;

10. Negative reinforcement of exculpatory statements;

11. Failure to probe outlandish statements;

12. Contact with peers and references to their statements;

13. Use of mild threats, bribes, or cajoling;

14. Vilification of alleged wrongdoer."

[23] "[T]he American Academy of Child and Adolescent Psychiatry (1988) advocates specialized training in the evaluation of victims of sexual abuse[, and found that:] 'Children who have experienced prior sexual abuse may sometimes misinterpret actions of adults or accuse the wrong person of abuse.' (pp. 655-656)"

W25 [xx] "The typical investigative procedures involve repeated interviews by authorities and mental health professionals. This experience may create confusion of fact and fantasy, elicit ever greater incursions into the realm of fantasy, and train the child to please adults by giving them what they want. Children who have not been sexually abused may be emotionally abused by the procedures followed when an accusation is developed by a combination of unfortunate experiences."

[61] "[One child] clearly said that the police and child protection worker had scared her and pressured her with threats that the family would be together only if she said that her stepfather abused her."

L11 [4] "Certainly, children can recall trauma accurately...but they can also tell the examiner what the examiner wants to hear. It is not surprising, then, that a child involved in the Jordan, Minnesota case -- which turned out to be a tragic hoax -- later admitted to fabricating stories of abuse, explaining, 'I could tell what they wanted me to say by the way they asked the questions.' (Aric Press, 1985; Campbell, 1992)."

W6 [232] "Children may have a different perception of the interview than do the adults and therefore try to tell the interviewer what they believe the interviewer wants them to say. They may answer questions they do not understand and about which they have no information."

U4 [569] "Children desire to comply or cooperate with the respected authority figure interviewer and will attempt to make answers consistent with what they see as the intent of the questioner rather than consistent with their knowledge of the event even if the question is bizarre."

G2 [7] "I became aware of how easily children's stories can be distorted or created by the interview process. I saw how children may learn what the examiner wants in an interrogation, and come to believe abuse happened to them when it never happened."

[43] "Children are practised at making sense of situations, and will attempt to answer even the most bizarre questions...Children expect adults to ask logical questions which have an answer, and they respond accordingly."

C2 [18] "Some of these cases lead us to ask whether some [19] children may have been aware of the fact that they fabricated events in the early interviews, but that with the passage of time these reports became incorporated into their memories and they came to believe them to be real incidents. Finally, these cases lead us to question if the same factors that can account for the behaviors of young children can also account for similar behaviors in older children and adults."

[267] "In the legal arena, in response to strongly suggestive -- even pressurized -- interviews, childen may initially realize that they are providing the interviewer with an erroneous account in order to please him (a social factor), but after repeated retellings to different interviewers, the erroneous account may become so deeply embedded as to be indistinguishable from an actual memory (cognitive factor)."

[159] "Previous research indicates that when children want an interview to end, they often increase the quantity of false statements..."

[84] "Some of these newer studies also demonstate the far-reaching influences of the use of some suggestive interviewing techniques on the accuracy and credibility of children's reports. In these newer studies, children do not simply parrot statements made by the intervewer, but rather construct highly elaborate, coherent, and believable autobiographical narratives that happen to be highly inaccurate."

[133] "[C]hildren's inaccurate reports or allegations do not always reflect a confusion of events and details of an experience, but at times reflect the creation of an entire experience in which they did not participate."

M23 [1284] "Wrongful convictions in child abuse cases differ from cases of misidentifications and false confessions, because exonerations are often based upon evidence that the crime did not occur. However, the cases of erroneous convictions in each area show that memory is fallible and that it can be shaped and influenced through suggestion."

U17 [4] "The power and centrality of social influence is one of the most solidly established scientific facts in psychology...How adults behave toward children during the course of a developing sexual abuse accusation must be considered a possible causal factor in producing statements of a child.

"We have seen again and again, in sexual abuse cases throughout this country and other countries the massive imposition of adult social influence on suggestible children...Through this environment of powerful adult influence the child may be taught an account of sexual abuse that is false."

C2 [152] "[C]hildren may also be sensitive to status and power differentials among adults. This is a particularly important issue for the testimony of child witnesses who are interviewed by police officers...[154] It seems that children become very excited that they are part of an investigation, this bringing many of their fantasies into reality."

[At Nickel's trial, 'Arthur,' when asked if he knew why he was testifying, answered excitedly: "Because of the Jeffrey Nickel case!"]

R9 [292] "Investigative interviews involve the presence of authority figures, and research has shown that social contexts in which leading questions and misinformation are repeatedly posed to witnesses and victims by unfamiliar authority figures create situations in which children respond with unreliable reports...For instance, Tobey and Goodman (1992) found that when children were questioned by either a neutral interviewer or a police officer, the children in the police condition gave fewer accurate statements and more inaccurate statements than children in the neutral condition."

M27 [116] "Given an authoritarian interviewer (police officer, criminal investigator, parent, or defense counsel), who may be consciously or subconsciously motivated to influence the child's memory; given multiple pretrial interviews; given a child's increased memory-fade over time; and given substantial intervals between the observed events and testimony at trial, substantial impairment of a child's memories seems inevitable."

M5 [115] "An occasional child exaggerates or distorts to gain attention or approval. The child thinks, 'Gee, the grownup sure is interested in what I have to say. I guess I'll make the story even more exciting!'"

C2 [154] "Another feature of some of the interviews in the sample case studies was that there was often more than one adult questioner present in the interview...[It] seems that additional [155] adults may tilt the odds toward false disclosures for two reasons. First, the presence of extra adults, all of whom share the same beliefs about what may have transpired, may induce a child to join them. Second, extra adults multiply the number of questions that the child is asked about the same theme...And these increased questions may increase children's willngness to defer to the adults' agenda rather than to their own memories of whether an event actually occurred."

W3 "There should...be only one interviewer. To the extent that the child perceives pressure to say what she thinks the interviewer expects to hear, more than one interviewer will increase this perceived pressure."

U4 [569] "Interviewer bias can skew results as a child will often attempt to reflect the interviewer's interpretation of events, particularly when [570] more than one interviewer shares the same presuppositions...If the interviewer's original perception is incorrect, this can lead to high levels of inaccurate recall."

F3 [147] "As the detectives continued to aggressively pursue potential vctims, the charges against petitioner expanded dramatically in both number and scope."

O4 [151] "Because we are dealing with a sequential process, later interviewers may be handicapped in that they have to contend not only with the passage of time but also with the possibly negative impact of earlier questioners. The consequences of this potential contamination cannot always be specified, but they are unlikely to be positive. For example, it is the diagnosis of an early interviewer...that may lead to the initiation of legal action, but it is the diagnosis of a later interviewer (e.g., a judge) that may determine the outcome of a case. And other things being equal, it is likely that the early interviewer has a better chance of establshing an accurate record of the event in question than does the later interviewer."

B12 [529] "[W]hen information is provided for the first time in later interviews, it is generally inaccurate, whereas information that is repeated across interviews is likely to be accurate."

[In the Nickel case, when 'Arthur' was first interviewed, he said nothing about oral sex. But in a subsequent interview, when shown a sexual photograph which Investigator Ronald Bates believed depicted Nickel performing this on the boy, only then did 'Arthur' 'disclose' that this had occurred.]

W21 [134] "Most of the research on the suggestibility of child witnesses has focused on fairly explicit suggestions made in the course of formal interviews with children about prior events. This is understandable, given that one can better document and control the formal interview process. Much of children's exposure to suggestive influences, however, probably occurs outside the formal interview setting. Suggestions may be made by parents, other adults, or other childen prior to the first formal investigative interview or between repeated forensic or clinical interviews."

"With substantial time delays in scheduling trials, a serious risk of long-term memory fade arises, especially for child witnesses...In their study of less complex and sensationalized child sexual abuse cases in Denver, Colorado, Goodman and colleagues found that the average time to trial from the initial complaint was 10.5 months, even though such cases ordinarily receive docket priority."

[In the Nickel case, the delay was 9.3 months.]

"The research on children's long-term memory confirms that memory fades, and casts doubt on the accuracy of a child's recollction of an event that occurred months (much less years) ago."

U17 [17] "In situations where the child will eventually testify, the memory will consist of a combination of recall and reconstruction influenced by all of the interrogations, conversations, and sexual abuse therapy that have occurred during the delay. The longer the delay, the greater the possibility of social influence and the more the memory may consist of reconstruction rather than recall."

[Now to actual legal cases:]

F3 [146] "In 1982, Arnold Friedman, a retired school teacher, began teaching computer classes to children in his family's home in Great Neck, New York. In September 1984, Arnold asked petitioner, Jesse Friedman, the youngest of his three sons, to assist him in teaching classes. Petitioner was fifteen years old..."

"After a customs agent intercepted a package containing child pornography addressed to Arnold Friedman, federal agents obtained a search warrant..."

"No student had ever complained of abuse, nor had any parent ever observed suspicious behavior, prior to the investigation."

[The same was true prior to the Nickel investigation.]

"The Nassau County Police Department never produced transcripts, recordings, or videotapes of the student interviews that preceded the indictments. [The foregoing was also true of the Nickel case investigation.] Moreover, because Arnold Friedman and [his son Jesse] ultimately pleaded guilty, the circumstances surrounding the interviews were not explored at trial. Some former students and their parents, however, recall with great consistency that detectives employed aggressive and suggestive questioning techniques to gain statements from children who had attended Arnold Friedman's computer classes. Detectives generally entered an interview with the presumption that a child had been abused and refused to accept denials of abuse. If a child denied being a victim of abuse on a first visit, detectives would often visit the child repeatedly for followup interviews, each lasting as long as four hours, until the child admitted abuse. In one case, detectives visited a child fifteen times and assured the child's mother before the final visit that they were going to stay 'as long as it takes.'"

[In the Nickel case, although none of the investigators' interviews with 'Arthur' (or anyone else) were electronically recorded, according to Bates's notes of the initial one, the very first words out of 'Arthur's' mouth were: "Didn't bother me."]

"Likewise, detectives often insisted that they knew that the child they were interviewing [147] had been abused. For example, detectives would often tell children that Arnold Friedman or [his son Jesse] had already admitted molesting them or that other students had claimed to have observed them being molested. As one former student put it,

'I remember that they made specific suggestions to me about things that they believed happened in the computer classes, and that they told me repeatedly that other students in my class had already told them that they had been abused, and that they were certain that in fact I had also been abused and that I should tell them so.'

"This strategy was designed to force children to agree with the detectives' story.

"The tactics were so aggressive that several former students admit that they responded to them by falsely alleging instances of abuse. Although these children were aware that they were lying to the detectives, they ultimately surrendered to the pressure and 'remembered' instances of abuse just 'to get [the detectives] off [their] backs.'

"These questioning techniques were used in the police interview of [the alleged victim GM], a former computer student, which was secretly videotaped by his mother. The videotape portrayed detectives using hostile techniques, including suggestive and harassing questioning, while interrogating [GM], who was then thirteen years old. Throughout the videotape, detectives pressured [him] to admit that he was sexually abused. Nevertheless, [GM] maintained that he was never exposed to or witnessed any abuse. When [he] refused to admit sexual abuse, a detective told [his] mother that he did not 'like his answers,' and referred to [him] as a 'wise guy.'

"As the detectives continued to aggressively pursue potential victims, the charges against [Jesse] expanded dramatically in both number and scope...The allegations also grew increasingly bizarre, sadistic, [148] and even logistically implausible. For example, the third indictment described several group molestation exercises, including 'Leap Frog,' in which Arnold Friedman and [Jesse] allegedly sodomized an entire class of naked boys by 'leaping' from one to the next.

"Parents of non-complainants recall 'a tremendous amount of [social] pressure for children to join the case...When a child denied abuse, their parents were told that the child was 'in denial.'...Great Neck had defined itself as a 'victimized community,' and those who refused to define themselves as victims no longer 'fit in[.]'

"Local newspapers published numerous stories with detailed allegations from the case and extensively covered the community's outreach programs. The P.T.A. organized car-pools to transport community members to court appearances."

[149] "On March 25, 1988, Arnold Friedman pled guilty to forty-two counts of child sexual abuse, at least in part because he believed [Jesse] would have a better chance at a fair trial that way. Nevertheless, the plea had the opposite effect. Specifically, after Arnold Friedman pled guilty, he was compelled to give the police a 'close-out' statement in which he was asked to confirm that he had molested each child on a list of students...Detectives proceeded to share the close-out statement with families of non-complainants to elicit further accusations against [Jesse] and to discourage former students from publicly supporting [Jesse] or agreeing to testify on his behalf.

"[Jesse] -- who was then only nineteen years old -- alleged that he faced enormous pressure to plead guilty. The motion he made for a change of venue had been denied. The leak described above significantly added to the already hostile atmosphere that made a fair trial impossible. The Nassau County Disteict Attorney's office did everything it could to force [Jesse] to plead guilty...[Jesse] was also aware that investigations were brewing against his two brothers and many of his high school friends, a threat which he took seriously in light of the growing magnitude of allegations.

"Moreover, Judge Boklan acknowledged that '[t]here was never a doubt in [her] mind' as to [Jesse's] guilt...[Jesse] had until then strenuously resisted the efforts to coerce a plea and vehemently maintained his innocence. [Peter] Panaro [Jesse's lawyer at the time] had also been convinced that {he] was innocent:

'I already found it quite incredible that sexual abuse of that scope and severity alleged could have taken place without a single child complaining or showing other signs of abuse. I also believed that the hysteria surrounding the case could well be responsible for the ever growing number of charges. . .My common sense and logic told me that scores of children, including the 14 children who were complainants against [Jesse], [150] could not be repeatdly sodomized and sexually abused hundreds of times, over a period of four years, day and day out, and say nothing. After all these were not 3- and 4-year-old boys. They were between 8 and 11 years old. I felt that the idea that no one would have said a word, and that in fact some of the most significant complainants would sign up for multiple classes after having been violently abused ih the prior classes, was ridiculous.'

"Nevertheless, after Judge Boklan's threat [that if he went to trial, she would sentence Jesse to the absolute maximum], [Jesse] told Panaro that he wanted to plead guilty 'because he believed that if he went to trial he would be found guilty and would spend almost the remainder of his life in jail.'"

"[Jesse] made up the story about his father molesting him as a child because he believed it might insulate him from attacks in prison and might persuade Judge Boklan to ask the parole board for leniency on his behalf."

[155] "While the law may require us to deny relief in this case, it does not compel us to do so without voicing some concern regarding the process by which [Jesse's] conviction was obtained."

[157] "When viewed in its proper historical context, [Jesse's] case appears as [158] merely one example of what was then a significant national trend. This was a 'heater' case -- the type of 'high profile case' in which 'tremendous emotion is generated by the public.'...In heater cases, the criminal process often fails:

''Emotions like fear, outrage, anger and disgust, in situations like these, are entirely human. The question is what the legal system can do to correct for the excesses to which they lead. The crux of the moral panic dynamic is that the legal system, in such cases, does not correct for them. It gets swept up in them instead.'"

[The foregoing was certainly true of the Nickel case as well.]

"The record in this case suggests this is precisely the moral panic that swept up Nassau County law enforcement officers. Perhaps because they were certain of Arnold Friedman and [Jesse's] guilt, they were unfazed by the lack of physical evidence, and they may have felt comfortable cutting corners in their investigation. After all, '[t]horoughness is a frequent casualty of such cases.' *** The actions of the prosecution are also troubling...In this case, instead of acting to neutralize the moral panic, the prosecution allowed itself to get swept up in it.

"[Jesse] never had an opporrtunity to explore how the evidence against him was obtained.

"In this case, the quality of the evidence was extraordinarily suspect and never subjected to vigorous cross-examination or the judgment of a properly-instructed jury."

[159] "The focus on the impediment to legal relief [i.e., his late filing for a writ of habeas corpus]...should not obscure the continuing ethical obligation of the District Attorney to seek justice. We refer here especially to New York Rules of Professional Conduct 3.8, Comment 6B, which explains that '[t]he prosecutor's duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted.'...In language particularly pertinent here, the Comment goes on to say:

'[W]hen a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful. The scope of the inquiry will depend on the circumstances. In some cases, the prosecutor may recognize the need to reinvestigate the underlying case; in others, it may be appropriate to await development of the record in collateral proceedings initiated by the defendant. The nature of the inquiry or investigation should be such as to provide a 'reasonable belief'. . .that the conviction should or should not be set aside."'

"The record here suggests 'a reasonable likelihood' that Jesse Friedman was [160] wrongfully convicted. The 'new and material evdence' in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in [Jesse's] case can induce false reports."

[Jesse Friedman petitioned for a writ of habeas corpus only after he had already been released from prison. Because he did not file it before the statutorily-prescribed deadline, it was denied.]

R9 [288] "In the case of State of New Jersey v. Michaels (1994)...the court overturned a conviction because of a 'tainted' suggestive interview and required that taint hearings be held before children were allowed to testify at trial...Other states, including Delaware, Massachusetts, New York, Ohio, Wisconsin, and Pennsylvania, have adopted theirown forms of taint hearings."

[It is unclear on what basis the authors declared New York to be in this group. There's certainly no legislative requirement or statewide court precedent here.]

S34 [319] "The effects of suggestive pre-trial identification procedures, as with suggestive or coercieve interview practices, are exceedingly difficult to overcome at trial...Witnesses in both situations are quite likely to be absolutely convinced of the accuracy of their recollection. Thus their credibility, understood as their obvious truth-telling demeanor, is unlikely to betray any inconsistencies or falsehoods in their statements."

D2 [1209] "[The Michaels] court recognized that child sexual abuse cases are inherently suspect, unless special consideration is given to ensure the child witnesses are not unduly influenced by investigators."

[1219] "[The U.S.] Supreme Court has extended due process to protect defendants from overbearing government influence. In Chambers v. Florida...the Court concluded: '[T]he fundamental idea [is] that no man's life, liberty, or property be forfeited as criminal punishments for violation of the law until there has been a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement and tyrannical power.'"

[Could anyone honestly claim, after having read Day One and Day Two of the annotated transcripts of Nickel's trial, that he was 'fairly tried in a public tribunal free of prejudice, passion, excitement and tyrannical power'?]

C28 [661] "Having considered the varuous positions taken by our sister states on taint, we [the Supreme Court of Pennsylvania] are persuaded by the courts that permit the pretrial exploration of taint, that such an avenue of examination is necessary in those cases where there is some evidence that improper interview techniques, suggestive questioning, vilification of the accused and interviewer bias may have influenced a child witness to such a degree that the proffered testimony may be irreparably compromised."

[663] "Common experience informs us that children are, by their very essence, fanciful creatures who have difficulty distinguishing fantasy from reality; who when asked a question want to give the 'right' answer, the answer that pleases the interrogator; who are subject to repeat ideas placed in their heads by others; and who have limited capacity for accurate memory."

[664] "[W]e hold that a competency hearing is the appropriate venue to explore allegations of taint."

[667] "[A] question of taint corrupting the actual memory of the witness speaks to competency [to testify at all (under oath)], not credibility. It is not a question of whether the child is telling the truth, but rather whether the child's memory has been so infected by the implantation of distorted memories as to make it difficult for the child to distinguish fact from fantasy."

[In the Nickel case, 'Arthur' actually admitted, on the witness stand, that he had trouble distinguishing fact from fantasy. Moreover, note that the highest courts of three states bordering New York -- Connecticut, @ New Jersey, and Pennsylvania -- have now set precedents establishing that suggestbility is a very serious concern with child witnesses, and have established mechanisms intended to ensure that tainted testimony does not lead to wrongful convictions. But not New York .]

[ @ Though not listed in this source, a review of case law shows that Connecticut also requires that taint hearings be held (at least in some cases).]

K4 [2663] "There are...serious systematic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital [i.e., death penalty] offense [as some states had done, prior to the U.S. Supreme Court striking it down in this very case]. The problem of unreliable, induced, and even imagined child testimony means there is a 'special risk of wrongful conviction' in some child rape cases...Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. ****

"Similar criticisms pertain to other cases involving child witnesses; but the child rape cases present heightened concerns because the central narative and account of the crime often comes from the child herself...And the question in a capital case is not just the fact of the crime, including, say, proof of rape as distinct from abuse short of rape, but details bearing upon brutality in its commission. Those matters are subject to fabrication or exaggeration, or both."

L3 [1217] "The new evidence here consists of (1) expert testimony by Maggie Bruck on reliability of child witnesses, how interviewing techniques may affect reliability, and her expert evaluation of the procedures used in questioning Matthew [the alleged child victim], (2) extensive information about Robert Nachand's [an alternate suspect's] molestation of Matthew and other children, including a police report stating in detail what Matthew told Detective Carter in March 1994 and the circumstances when Matthew first told his mother about being molested, (3) additional details about the police investigation of Richard Lee [the Petitioner], (4) information about Larry Lee [his brother? -- another alternative suspect], including photographs, whether he had tattoos, his molestation of a child, and whether Larry Lee had access to Matthew at certain times, and (5) an affidavit from Cheryll Lewis."

[1218] "The jury eventually heard some evidence regardng Robert Nachand. By then it was too late for the defense [to] effectively cross-examine Matthew."

[1219] "The testimony of Maggie Bruck is helpful to the court, and would have been very helpful to a jury, in evaluating the interview process and Matthew's trial testimony.

"At trial, the prosecution elicited no details from Matthew regarding the incident. Matthew did not explain the circumstances under which Richard touched him, or how Matthew came to be naked. Matthew was not asked whether the touching was momentary or prolonged, deliberate or inadvertent, or any other details about the touching. Matthew was not asked what Richard said or did at the time, or what Matthew said or did in response."

[Many of the above questions were never asked of 'Arthur' in Nickel's trial either -- especially how he came to be naked in the sex photo he claimed depicted Nickel and himself.]

"Maggie Bruck's testimony also would help persuade jurors that tyere is no proof beyond a reasonable doubt regarding the sodomy charges."

[1224] "[Defense counsel] was deficient in not consulting an expert to prepare for the O.R.E. [Oregon Rules of Evidence] 412 [pre-trial] hearing and for trial, and not presenting expert testimony at that hearing and at trial, such as that now offered by Maggie Bruck. Expert testimony is not required in every criminal case, or even in the majority of cases. Counsel must exercise reasoned judgment. There is no indication that counsel did exercise informed judgment here, or even consider the possibility of retaining an expert...The severity of the penalties for conviction also weighed in favor of devoting adequate resources to Lee's defense, including consultation with an expert and quite possibly expert testimony at the pretrial hearing and at trial."

"[T]he most prejudicial evidence, on the most serious charges, were hearsay statements about what Matthew allegedly said...[1225] The statements, if made by Matthew, appear to have been elicited under very suggestive circumstances, long after the alleged events...In addition, the hearsay allegations were presented only after Matthew testified and departed. No good defense attorney would recall him to the srtand. Matthew effectively was unavailable for cross-examination at that point."

[In the Nickel case, certain buried evidence -- exculpatory police-taken photos of the interior of Nickel's home and the results of a medical exaination peformed on 'Arthur -- were not turned over to the defense until 'Arthur' had already finished testifying and left the courtroom. There too, getting him back on the stand was not a realistic option.]

U4 [563] "With respect to conditions that can influence children's memories, we are mindful of a historical event of some three hundred years ago (the Salem, Massachusetts witch trials) where child witnesses ages five to sixteen (the 'circle girls') claimed to see persons (the defendants) flying on broomsticks and other envisaged celestial apparitions. Based on this testimony, nineteen alleged witches were put to death and a dozen others avoided execution by testifying to witchery, that which was not [i.e., did not -- and could not -- exist].

"This case, of course, is not a Salem witch hunt, but that history must remind us that memory, particularly childen's memory, may be falsely induced. Where that occurs, the testimony may be true in the child's mind, but false in fact."

T2 [241] "This matter involves a conviction for the serial sexual abuse of minors. In general, such cases present special problems concerning the susceptibility of young complainants to suggestive questioning and false memories...The Court of Appeals for the Second Circuit and this court have recognized that matters involving the sexual abuse of children are a special class of cases requiring special protections -- beginning at the investigatory stage, continuing throug trial and appeal, and persisting in a habeas corpus proceeding. These cases require special scrutiny."

C2 [85] "[T]he accuracy of a child's report decreases when the child is interviewed in highly leading and suggestive ways by interviewers who are uninterested in testing alternative hypotheses; such interviews may tarnish the evidence to such a degree that markers of the truth may be buried forever."

[ Investigators Mark DeFrancesco and Ronald Bates were certainly quite 'uninterested in testing alternative hypotheses.' They just 'knew' Nickel was guilty (of everything).]

D7 [115] "[Elizabeth] Loftus's experiments showed that memory evidence was 'trace evidence.' Like blood or semen found at a crime scene, memory evidence was difficult to recover, easy to contaminate, and, even worse, once exposed to contamination, impossible to take back into a laboratory to test for whether the contamination had taken effect."

D1 [xii] "Justice or injustice for child or alleged perpetrator may be effected long before the open forum of the court is reached, if indeed it ever is.

"Further evidence of individual differences in suggestibility was seen in children's readiness to accept interrogators' biased interpretations. Although all childen who heard interrogations that were inconsistent with what they had observed eventually converted to the interrogators' view, some did so more rapidly...[T]hese more suggestible children were found to be more suggestible in other contexts as well, more compliant in games with the experimenter, and less knowledgeable about what it means to tell a lie; their parents were less likely to value self-direction for the children and were not as strict about lying."

M23 [FN13:] "Gary L. Wells and Elizabeth L. Loftus, leading researchers and scholars in the field of eyewitness memory, advocate that the criminal justice system treat memory evidence in the same manner it treats other tyes of trace evidence admitted at trial to identify the perpetrator of the crime. They state that memory evidence, like fingerprints, fiber or blood, can be contaminated, lost, destroyed or otherwise made to produce results that lead to an incorrect reconstruction of the event in question. And, the method used to gather memory evidence can affect the accuracy of results, just as it can with fingerprints or blood evidence. *****

[1274] "[S]ystemic change must occur in the way evidence is collected and preserved during the investigation of a case that involves an eyewitness, a child witness, or an interrogation. By incorporating lessons learned from the research of social science, we can improve the administration of justice and guard against conviction of the innocent."

[from FN15:] "Most of the suggestibility literature indicates that suggestion becomes incorporated into childen's memories and is difficult, if not impossible, to dislodge."

D2 [1205] "This comment will suggest that constitutional due process protections should be extended to child interviews...The stage [1206] of the prosecution in which incriminating evidence is obtained from witness interviews certainly warrants constitutional protections, no less than interrogations of the accused or witness identifications. Pretrial interviews provide prosecutors with an opportunity to infect the entire proceeding through unfair and unscrupulous processes.

"A process must be adopted by courts in which the unfair practices surrounding interviews with child witnesses are eliminated, yet the interest of the nation's criminal justice system in prosecuting child abusers is maintained."

[1218] "The scope of the Due Process Clause in criminal prosecutions...is not restricted to identification of accused indivodials. The protections run much deeper. Fundamentally, the Clause guarantees a defendant the right to a fair trial...If the defendant makes a sufficient showing of impropriety, the Due Process Clause of the Fourteent Amendment then imposes upon the courts the duty to examine 'the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of all English-speaking peoples even towards those charged with the most heinous offenses.'"

[1223] "As in all criminal proceedings, the due process safety net protects a defendant like Kelly Michaels throughout her trial. Just as in identification cases, the Due Process Clause should also extend to pretrial procedures. Since due process is used to ensure fairness to the accused in identification or confession cases, it should also require fairness in the methods used to obtain evidence from alleged victims of child abuse.

"A due process fairness question clearly arises in the context of suggestive interview techniques. Regardless of one's personal position on the degree of tolerance for police impropriety, it is certain that improperly conducted child interviews can result in unfairness to the accused individual."

[1224] "[I]n Michaels' case, the degree of suggestive interviews and the interviewers' clear partiality bore very heavily on her fair trial right -- the wrongful acts gave the state practically all of its evidence."

[1226] "[T]he pretrial identification of the accused and the pretrial investigatory interviews of child witnesses can both produce effects that tend to taint the whole course of the prosecution...[I]n both identification and pretrial interview cases, the memories of the witnesses subjected to the improper procedures may be fatally tainted. An extension of due process protections to the interview stage of the prosecution would reduce this threat, as the protection has done in identification cases."

"[T]he United States Court of Appeals for the Second [1227] Circuit expounded on the police deterrence goal in Solomon v. Smith. The court noted the right to due process 'must encompass not only the right to avoid improper police methods that suggest the initial identification, but as well the right to avoid having suggestive methods transform a selection that was only tentative into one that is positively certain.' Logically then, due process should also prevent transforming a slight or nonexistent belief in a child's mind into one that the child really believes to be true.

"When interview procedures like those in Michaels are used, the interviewers suggest to the children that the defendant is in fact guilty and that they should respond accordingly. The tainted statements of the witnesses are 'essential to the defendant's conviction,' so their admission would constitute 'prejudicial error.' Thus, a likelihood of wrongful accusation or conviction relates well to the 'irreparable mistaken identification' rationale."

[1233] "Studies show that once a child's memory is implanted with ideas different from his original ones, the taint is irreparable.

"Courts should recognize that suggestive and coercive pretrial interiews are subject to due process 'fairness' claims, and exclude the evidence, especially in cases of obvious and egregious prosecutorial abuses...[1234] These solutions are reasonable, considering not only the need to stop child sexual abuse, bu also the need to avoid untrue or exaggerated allegations. The Due Process Clause offers the most cogent reason to address this problem, because in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.'"

F2 [245] "[I]t appears that in many sexual abuse trials the defendant will be at a decided disadvantage. Even though theoretically presumed innocent, he will be so hard pressed to rebut the prosecution's prima facie case that the presumption is worthless. These facts must not go unconsidered when evaluating the admissibility of a child's testimony."

[249] "Even where a state's competency rules allow the child to take the stand, her testimony may still not be admissible, regardless of the state rules. [from FN159:] The defendant's right to cross-examine under the sixth and fourteenth amendments takes precedence over the evidentiary rules of the states."

"This is so because securing a crimial conviction through thestimony that is tainted by suggestion violates the due process clause of the United states Constitution. [from FN160:] Since no significant decisions have been rendered dealing with this issue [as of 1987], the due process rights of the defendant will be analyzed by analogy to two similar evidentiary areas. The first is eyewitness identification, which has long been recognized as a process subject to suggestive contamination...The second is hypnotically enhanced testimony. The similarities between hypnoti[zed] subjects and children who undergo suggestive interviewing are striking. The hypnotized person, like the alleged child victim, is hyperreceptive to suggestions by the hypnotist, whether express or implied, verbal or nonverbal, deliberate or unintended, or even unperceived by the hypnotist himself. The hypnotized person experiences a compelling desire to please the hypnotist by giving the responses he believes are expected. His critical judgment is accordingly impaired, causing him to credit vague recollections he would not have relied on before hypnosis. If the hypnotized person cannot actually recall an event, he will produce.

[The above phrase in bold is exactly what 'Arthur' engaged in when he claimed there was a waterbed in Nickel's bedroom (which even the police acknowledged did not exist). He got this from an 'unrelated experience' of Nickel telling him that his (Nickel's) sister (who lived in Virginia) had a waterbed. Likewise, 'Arthur's' false claim that Nickel had to duck to enter his bedroom actually stems from Nickel telling him that he had once lived in an apartment (in Boston), where Nickel had to duck under a low basement door leading onto a patio/small backyard.]

[250] "The confrontation clause of the sixth amendment, applicable to the states through the fourteenth amendment, guarantees the defendant the right to effective cross-examination. It has been maintained tat, as long as the defendant is present wheh the witness testifies, and is able to cross-examine her, he has received the rights accorded to him under the sixth amendment. But such an analysis is superficial. It ignores the question of what constitutes 'cross-examination' under the Constitution. As stated above, in order to pass constitutional muster, the state must allow effective cross-examination. Where a hypersuggestible witness undergoes a highly suggestive interviewing process, it is highly possible that a new memory will be created. 'The resulting memory may be so fixed in his mind that traditional legal techniques such as cross-examination may be largely ineffective to expose unreliability.' @ The courts are now beginning to recognize that, in these situations, meaningful cross-examination may not be achieved. If the defendant cannot effectively subject such testimony to cross-examination, the jury [or bench trial judge] must not hear it."

[252] "Where a conviction is not based upon requisite evidence, it constitutes a violation of due process. If a man charged with sexual abuse were truly presumed innocent, but was tried upon the virtually uncorroborated tstimony of a child that was the product of suggestive inteviewing, then it is a natural conclusion that he could not be guilty beyond a reasonable doubt.

"Unlike the right to counsel, the right to due process does not depend upon the commencement of judicial proceedings to attach. Procedures used by the government during both the investigatory and trial stages must confrom with due process. The police may not engage in investigatory practices that 'offend a sense of justice.' @@

"The state, in the conduct of its trials by judges, as well as in the presentation of its cases by prosecutors, 'must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt or innocence.' @@@ But the use of suggestive questioning techniques and the allowance of blanket competency for all witnesses does not foster either of these goals.

"Subjecting a man to a term in prison for a conviction of child sexual abuse is a severe sanction by the state. Before it is taken, the methods used in acquiring the conviction should be subjected to extreme scrutiny. To be sure, a defendant's constitutional rights are not absolute and must be weighed against the state's interests...But the state's interest in effective law enforcement cannot be translated into a need which is paramount to the defendant's need to adequately defend himself. It must be borne in mind that traditional analysis of [253] this problem can often yield faulty results. This is so because the rules of evidence and procedure were formulated for adult witnesses and victims who have not undergone intensive suggestive interrogation. This situation raises too strong a possibility of wrongful conviction. No state interest as vaguely couched as 'the need for law enforcement'...could be compelling enough to override the defendant's right to effective cross-examination and due process of law.

"Our rulemakers today seem to have forgotten one of the most basic tenets of our legal system. As Justice Harlan wrote in his concurrence to Winship, there exists in our criminal system an underlying assumption that 'it is far worse to convict an innocent man than to let a guilty man go feree.' @@@@ It is incumbent upon our system to eradicate procedures that lead to a substantial likelihood of wrongful convictions.

"What are we to do with a problem of this stature? One option, used in many of the hypnosis cases, is to simply exclude the evidence. This is too harsh a rule because a significant degree of sexual abuse does occur, and the state has a responsibility to itself and its citizens to bring actual offenders to justice. The state's interest must be balanced against the defendant's significant interest in not being incorrectly convicted.

"The problems in this area are twofold. First, suggestive interviewing techniques are sometimes used upon hypersuggestible individuals. Second, we have no way of determining which cases have used such techniques and which have not."

[254] "[Compelling interviewing agencies to conform to a policy of (electronic) documentation might] be accomplished by analogy to Wade and its progeny. Here, the court could exclude the testimony because it is inherently unreliable and, when weakly corroborated or uncorroborated, lacks sufficient indicia of reliability. A basis for this might be found in the Wade opinion, where, although deciding the issue on right to counsel grounds, the Court noted that the problem with the lineup was that the defendant would be unable to 'effectively reconstruct at trial any unfairness that occurred at the lineup[,] thus depriving him of his only opportunity meaningfully to attack the credibility of the witness's courtroom [testimony].' It should be remembered that this was a 1967 case, long before the advent of inexpensive videotape equipment. At that time, the presence of counsel was probably the most reliable way to be made aware of what procedures were used.

"The psyche of the child, the type of interrogation techniques used, and the realities of jury trial present a significant possibility that innocent people [255] are going to jail.

"Our legal system...is presently failing in this rapidly growing area of prosecution. Our job as legal scholars, advocates, and activists must be to push the system back into achieving equitable and just results. Only after the introduction of these safeguards may we ever be confident in rendering verdicts of guilt, and comfortable in the act of depriving these defendants of their liberty."

U17 [2] "[It is a] mistake to pose the question in the form of whether or not the child has lied. To lie assumes a conscious, willful, and deliberate purpose and intent to deceive. Young children are unlikely to have the cognitive capacity or the maliciousness to lie in this way (although some older children and adolescent may). People, including children, may say things that are not accurate. Inaccuracy alone does not mean that people are lying. They may be misinformed, mistaken, or ignorant.

"Children do not know what they don't know. Their experience is limited and their store of available knowledge is small. When asked questions they don't understand or to which they have no answer they can blithely give an answer without knowing it is mistaken."

[4] "When a child has been taught a fabricated story, repeated it enough to produce subjective certainty, for that child a non-event has become reality. This is not a benign or innocuous experience. It may result in long-term damage to a child. This also means that the child will appear truthful, credible, and reliable because for the child it is a real story. Reliance by a fact finder upon the demeanor of a witness to assess credibility is then an error."

M3 [from FN28:] "[S]tudies of the most widely publicized incidents of apparently false sex abuse allegations did not conclude that the young child victim had engaged in intentional deception; rather, the researchers blamed hysterically receptive parents as well as suggestive interviewers and overzealous prosecutors."

U16 [788] "It is a common myth that cross-examination is the greatest engine for truth. Undoubtedly, cross-examination is a powerful weapon when wielded by a well-prepared, skilled practitioner. Without proper preparation, however, even a good lawyer may be unable to effectively undermine the testimony of a prosecution witness. Moreover, an unskilled advocate will find it exceedingly difficult to conduct an effective cross-examination. In practice, given the time pressures that confront many defense lawyers, inadequate preparation is common. Consequently, cross-examination often is done poorly and without meaningfully testing the accuracy or veracity of the prosecution's witness. It is foolish, therefore, to place much confidence in the power of cross-examination to ensure the reliability of most criminal trials."

"[C]ross-examination may do little to shake the confidence of the mistaken but very credible witness."

L11 [29] "This difficult area of the law requires special expertise. The cross-examination and argument skills of routine criminal matters have little utility in child sexual abuse hearings."

[When Nickel -- admittedly, belatedly -- asked his trial attorney if he had ever tried a child sexual abuse case before, he replied: "Not that I can recall."]

"The American Bar Association's Rules of Professional Conduct...have been around a long [30] time...Model Disciplinary Rule G-101 is entitled: 'Failing to Act Competently,' and reads:

'(A) A lawyer shall not:

(1) Handle a matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.'

[31] "[T]he case law finds a newly emerging duty for the attorney to call in a specialist when [he or] she is not up to the task."

M21 [1284] "[T]he more suggsive an identification procedure is, paradoxically, [1285] the more reliable a witness will appear. For example, if an identifying witness is advised immediately after a lineup that she identified the suspect, she will report a higher level of confidence in her identification."

P4 [County Court granted defendant's motion to vacate order of conviction and grant a new trial. Alleged victim's subsequent conviction for filing a false instrument -- regarding a supposed sexual assault -- constituted newly discovered evidence, warranting vacatur of conviction.]

[670] "After the false report, the victim admitted to police that 'Lately, I don't know what is real and not real anymore. This has been going on a couple times in the past. When this happens, I black out, and I am not really aware of what goes on around me. . .I heard voices.' At the hearing on defendant's motion, the victim testified that she 'could have had a dream. . .I have had dreams where I have woken up from and I couldn't tell you if they were real or they weren't real.'...This new evidence was not cumulative, as it provides a substantial basis to attack the victim's testimony as possibly based upon hallucinations and delusions..."

[In the Nickel case, 'Arthur' acknowledged at trial that he sometimes had trouble telling the difference between dreams and reality.]

U4 [577] "Studies show that children will fantasize -- telling elaborate stories about an event that never happened or fabricating an entire episode or sequence of events within a larger episode, paticularly over time on the basis of acquired interviewer stereotypes, or they may produce convincing false narratives to explain fictitious events suggested to them...and children may have touble distinguishing what they experienced through perception and what they only imagined they experienced."

L11 [10] "[C]hildren frequently find it difficult to differentate between events they actually experienced and events they only imagined."

G2 [45] "Children often have difficulty distinguishing memory, fantasy, and memory of fantasy. They have a developing imagination and commonly have a tendency to tell extravagant and fantastic falsehoods centred about themselves. Adults as well as children can sometimes become confused between performed and imagined actions...The doctrine that childen never lie about sexuality flagrantly ignores this knowledge. It seems that childhod sexual fantasies are very deep-seated."

[100] [The author discusses a case from New Zealand:]

"On one occasion during breakfast [with the mother present], [a boy named] Paul described a dream he had about [his father's] girlfriend Eve being dressed as a witch. He and [Paul's twin sister] Cathy then elaborated and the story changed from a dream to something believed to have actually happened."

J1 [42] "[I]n experiment [No.] 4, 9-year- [44] olds as well as 6-year-olds had difficulty distinguishing what they had only thought of doing from what they had actually done.

"When children were asked to distinguish memories for ideas realized in action from memories of ideas only (Say--Think; Do--Think), they were at a marked disadvantage [relative to adults]."

[45] "In short, children evidently had difficulty separating action plans that had been carried out from those plans that had not."

U1 [113] "The research in developmental psychology shows that when children are expected to say something about unknown events or matters they are unfamiliar with, they respond with fantasy material."

I2 [335] "The evidence shows that [the child] Aquellah had a history of psychiatric problems and hospitalizations for psychiatric treatment, and had displayed severe behavioral problems. Although Petitioner's witnesses attributed all of the child's difficulties to a syndrome accompanying child sexual abuse, none of the witnesses ruled out the possibility that the child's psychiatric and behavioral problems may, themselves, have led the child to make false accusations of abuse against her father, and they may have increased her vulnerability to suggestion."

R19 "Strong evidence of suggestibility causes concern about the accuracy of all of the information provided by the child."

M5 [115] "A few children have a penchant for spinning tales filled with fantasy. Everson writes that 'this phenomenon sems to be relatively uncommon among normal children. Identifying it as a factor in an abuse allegation is aided by the fact that children who indulge in fantasy lyng tend to do so on a range of topics, not just abuse allegations, and typically, various aspects of their stories are readily identifiable as false.'" @@@@@

[In 'Arthur's' case, besides the nonexistent waterbed in Nickel's bedroom, he also claimed Nickel gave him a motorcycle. (He was a 9-year-old living in a group home.)]

[116] "A few children have difficulty differentiating dreams from reality."

"A small number of children suffer from delusions."

[243] "All the law requires is a basic ability to discriminate between what is true and what is false."

['Arthur' couldn't .]

[244] "The capacity to tell the difference between truth and falsehood is related to the ability to differentiate fact from fantasy. A child who cannot distinguish what actually happened from what the child only imagined, cannot, in that instance, differentiate truth from falsehood."

[Vol. II] [116] "A few...children fabricate allegations of sexual abuse...[Also,] a child might fantasize acts that did not occur."

B13 [988] "[C]hildren with poor self-concept, poor supportive relationships with fathers or mothers, and with mothers who were insecurely attached in their romantic relationships were at risk for being susceptible [to suggestive questioning]."

[The following few pages address childen's identification of (persons in) photographs , a topic relevant to 'Arthur's' supposed 'identification' of Nickel and himself in a pornographic picture:]

L12 [131] "Consider a prototypical study of children's eyewitness testimony (Davies, Stevenson-Robb, & Flin, 1988). The youngest children in this study were 7- and 8-year-olds whose performance was compared to that of older children (9-10 and 11-12). All subjects interacted with a visitor at their school for about five minutes. Children, in groups of four, helped the visitor set up equipment in connection with a to-be-delivered talk on road safety, with different children being assigned different tasks (e.g., arranging the projector). Two weeks later, each child was questioned about the visitor and asked to attempt an eyewitness identification from a 12-picture array. Among other results, the investigators found that wheh the array did not contain the perpetrator, the youngest children made significantly more false identifications (88%) than did older children."

M4 [108] "'Although children and adult witnesses appear generally comparable in their ability to recognize a perpetrator in a lineup, they seem to respond quite differently when the lineup does not include the perpetrator, that is, when they are presented with a target-absent lineup. . .Several previous studies suggest that when children are shown a lineup that does not contain the perpetrator, they are more likely than adults to identify someone, that is, to make a false positive identification. Children's propensity to identify an innocent person has even been found in tasks in which they have been warned explicitly that the perpetrator might not be in the lineup and that they do not have to choose anyone.'" #

[from FN510:] "'[T]he research indicates that young children are more likely than adults to choose someone from a lineup, leading to a higher rate of false positive identification errors...[P]revious work has estabished that children have a fairly robust tendency to identify someone in this situation, even when they are told explicitly that the perpetrator might not be included in the lineup and that the do not have [to] identify anyone.'" ##

K1 "The suggestive effect of direct questioning is clearly seen in the children's response to our photo-identification task. Our first study (King and Yuille, 1986) examined identification performance using an eight-item photo lineup, including a photograph of the stranger who had entered the room. The results showed that the 6-year-olds were significantly less likely to correctly identify the stranger than older individuals. This finding itself could lead to an inappropriate conclusion if we had not included a blank lineup...in the second study...That is, half of the witnesses to the bicycle theft saw a lineup that did not include the thief. It is important to note that all the children were cautioned that the thief's picture might not be included and that a rejection of the photospread was a legitimate response. Averaged over the three age groups, the children correctly identified the thief 80% of the time from the stranger-present lineups. Only 10% of these witnesses made an incorrect choice from the photospread. However, only 40.5% of the childen correctly rejected the photospread when it did not contain the thief's image. Further, the high rate of false identifications was age-related. Children between 8 and 11 years of age made a choice from a blank photospread on 74% of their opportunities. However, the oldest group (13- and 14-year-olds) made this error only 36% of the time."

[In other words, even when the person asked about was not in the photos, three-fourths of the 8-11 year-olds still 'found' him there.]

[In the Nickel case, 'Arthur' likely was not shown any photos other than the one Investigator Ronald Bates 'identified' as depicting Nickel and 'Arthur.' Therefore, this was even more suggestive than the foregoing experiment.]

"It is our contention that the task demands of a photo line-up may be quite confusing to young children. Children may assume that an adult would not present such a task to them without the target being present among the options. Or they may interpret the task as requiring them to select an option that looks most like the person they viewed earlier. For whatever reason, the presentation of a photo lineup may be, in effect, like a leading question for younger children, one that will likely elicit a choice response. If the lineup is blank, of course, the choice will result in a mistaken identification."

P1 "Afer being presented with a particular lineup, subjects were asked to indicate whether or not the target was present and, if present, to make an identification from the choice alternatives. Subjects were also given an option of saying that they had 'no idea' when the felt they would simply be guessing.

"The subjects were also given a third recognition test to see if they could remember more peripheral details of their dental visit. They were asked to identify their dentist's room from a five-room color photospread. In this case lineup foils were pictures of other dentists' rooms. Again, half the subjects viewed lineups in which the target was not present."

['Arthur' should have been shown a photospread which included Nickel's bedroom as well as several others, to see if he was able to pick it out.]

"A second series of memory tests were given to the subjects by a new researcher either 24 or 48 hours...or 3 to 4 weeks...following the first visit to their home. As in the case of the first home visit, none of the children were forewarned about the memory tests. This time subjects were asked to identify the face and voice of the first researcher (the one who had originally tested them) from photo and voice lineups and again to indicate their level of confidence. As was the case for the first testing period, approximately half of the subjects here, for both retention intervals, received blank (target-absent) lineups. In addition, parents, the first researcher, and the second researcher made independent ratings of the child's anxiety during their home visits..."

"[W]hen the subjects were given blank lineups (Target [dentist, assistant/hygienist, dental room, or researcher] Absent), their recognition performance suffered greatly, with false identifications ranging from 65% to 78%.

"Even though the children were told that the targets may not be in the lineups, it seems that they had great difficulty in withholding a selection.

"Chance and Goldstein [1984] conclude that recognition of familiar faces is quite good, even in children as young as 6 years, when the whole face can be clearly seen."

[But in the sex photo central to the Nickel case, the older person's face is not clearly visible.]

"[E]ven when a memory for a face is good, a child may be prone to make a false identification wheh the correct choice is not offered."

[Of course, in the Nickel case, it was not 'offered.']

"The results of the two studies using blank [target-absent] lineups are more consistent and quite alarming. Children from 3 to 11 years of age perform dismally in this situation, with both studies reporting false identification rates from 71 to 74%."

W25 [141] "Identification of the perpetrator of a crime is the fundamental goal of the justice system. When children must identify assailants, the age of the child affects the accuracy of identification. Cole and Loftus (1987) say: 'The area of greatest concern to us involves false identification...Of particular concern is the finding that subjects of all ages are likely to make a false identification when the target stimuus (e.g., [142] photograph) is absent even though they were informed the picture may not be there. Although adults also perform poorly with target-absent tests, the peformance of children up to 11 years of age is particularly dismal.'"

[And now to the need for better training of those who interview children in these cases:]

U17 [5] "Few persons involved in interviewing children show any awareness of the impact their procedures have on the children being assessed. This is true of mental health and law enforcement personnel as well as laymen."

W7 "There is...the possibility that while the first report of abuse was valid, subsequent alleged acts might not be. Each allegation of abuse requires its own separate, thorough investigation."

[The latter cetainly did not occur in the Nickel case. While there was some credible evidence that contact outside of clothing did occur, there was never any convincing proof of the two far more serious acts alleged.]

G2 [140] "These investigators [of child sexual abuse] should have adequate knowledge and understanding of suggestibility contaminating any evidence."

N6 [1285] "Scholars, empiricists and psychologists have consistently recommended that the initial interview of a child be conducted by a profssional who is trained to avoid the types of questions and scenarios that lead to the risk of influencing [1286] answers. In order for training to be effective, it has to be extensive and include practice, individual feedback and follow-up. Improved training is critical since research has consistently indicated that interviewers continue to ask leading and suggestive questions even after extensive training in how to conduct interviews with children."

"To avoid biasing the interview, the interview must explore alternative hypotheses. One is that the abuse occurred as alleged. But there are other possibilities. In general, alternative hypotheses often include the following...[:] Some of the allegations are valid, but the child has invented or been influenced to make additional allegations that are false."

H1 [88] "By considering a number of hypotheses the investigator avoids problems of self-fulfilling expectations assciated with investigators who have only one hypothesis."

D2 [1216] "The overzealous attempts to curb sexual offenses on children suffer from three significant problems...First, because children are developmentally immature, their allegations of sexual abuse are of limited reliability. Second, most professionals who interview children employ improper interview techniques that often lead to false allegations of sexual abuse...And finally, a considerable proportion of the professionals working in the child abuse field are biased or corrupt."

[1217] "Generally, courts have held a state may not [1218] 'rely on an identification [e.g., in a lineup] secured by a process in which the search for truth is made secondary to the quest for a conviction."

M2 [71] "Children today are exposed to a greater variety of and more in-depth sexual informaton than they were decades ago, and they are exposed to this information at earlier ages. The author has frequently been impressed by the marked discrepancy between what adults think children know about sex and what children actually know. Because children's exposure to sexual information can modify the memory of an event or could even precipitate a false allegation, part of the forensic investigation of sexual abuse must include a thorough examination of the child's sexual informaton base and the sources of information to which the child has been exposed." [Emphasis original.]

[The Albert Ramos case in the New York State Wrongful Convictions section of this site is a perfect case in point. There, the prosecution argued that the only way the alleged victim could have known what she did about sexuality was because she was sexually abused by Ramos. But the prosecution had simultaneously withheld the information that, well before the alleged abuse, the alleged victim had masturbated, viewed pornographic movies, and placed dolls in sexual positions.]

[74] "The competent forensic investigation of child sexual abuse cannot be limited to an interview that only focuses upon the alleged abuse of or upon the child. It must include a comprehensive invstigation of each person's background and current environment as well as factors that may have influenced the surfacing of the allegation and the child's recall. When comprehensive background information has been collected, the forensic investigator should be able to answer the following questions:

1. To what sexual education or abuse prevention information has the child been exposed?

2. To what sexually oriented information has the child been exposed through peers, older siblings, videotapes, or other sources?

3. To whom has the child spoken about the alleged abuse?

4. How was the issue raised during previous interviews and how might the interviews or other discussions have influenced the child's memory? [75]

5. What spontaneous statements has the child made and to whom?

6. What has been the evolution of the child's allegations and statements, and what changes have occurred over time?

7. How many intentional or unintentional actions of parents or significant others have influenced the surfacing of the allegation and the child's reconstruction of the event from memory?" W22 [150] "Research completed since the McMartin [California preschool] trial shows that the skill of the interviewer directly influences whether a child relates a true memory, discusses a false belief, affirms details suggested by others, embellishes fanrtasies, or provides no information at all."

[151] "[I]t is necessary to establish and maintain standards for quality control in conducting and evaluating forensic interviews of children. Interviewers require information from both social science and the law, such as information on child development, memory, and communication as well as information on legal safeguards for assessing the admissibility of interview evidence. Interviewers also require state-of-the-art training in best practices in forensic interviewing. In addition, to maintain quality after initial training, interviewers should engage in frequent and sustained peer review, including systematic analysis of videotaped and transcribed interviews."

[152] "An interviewer who completes an assessment using faulty or problematic techniques risks having the evidence thrown out of court -- and appropriately so."

[Well...not in New York , apparently.]

[166] "[Interviewers of childen should:]

(1) Emphasize the importance of truth-telling;

(2) Exlicitly request detailed information, explaining that the interviewer cannot possibly know the correct details because the interviewer was not there at the time of the incident;

(3) Teach the child how to appropriately use the 'I don't know' response; [167] ...

(5) Explain that asking a question more than once does not mean that the child answered the question incorrectly; the more important point is for the child to understand the importance of answering each question truthfully each time it is asked;

(6) Encourage the child to correct the adult if the interviewer incorrectly paraphrases a response or makes some other mistake;

(7) Emphasize that the child is the one who will be doing most of the talking, not the interviewer."

[171] "In 1998, the State of Michigan published its Forensic Interviewing Protocol. This protocol's purpose is 'to obtain a statement from a child, in a developmentally-sensitive, unbiased and truthseeking manner, that will support accurate and fair decision-making in the criminal justice and child welfare systems.'

"Michigan has taken another innovative approach to forensic interviewing of children in the state by enacting legislation mandating the use of an investigative procedure, using as a model the forensic protocol developed by the Governor's Task Force. One likely outcome of this legislation is that interviewers may be questioned at trial regarding whether they were trained on and used the [172] Forensic Interviewing Protocol."

[Once again, New York is well behind the curve in terms of best practices.]

[174] "Michigan's two-day workshops resulted in dramatic changes in interviewer behavior. After training, all tested attendees followed the phased format of the Michigan Forensic Interview Protocol. They improved their introductions, rapport building, topic introductions, and closings. In addition, they integrated legal competency and ground rule discussions into their interviews and used more open-ended prompts to elicit free narrative accounts from children."

[178] "It is wise for professionals who conduct forensic assessments of children to be well-grounded in child development theory, as well as in the specific scientific literature on memory, language and communication, and suggestibility..."

"Professionals who conduct forensic interiews of children should be familiar with respected professional guidelines and protocols that have withstood empirical scrutiny..."

"Prfessionals should receive specific training in forensic interviewing of children, preferaly protocol-based, including supervised follow-up and peer review of videotaped and transcribed interviews."

W21 [145] "An analysis of forty-two United States sexual abuse interviews found that general, open-ended questions account for ten percent or fewer of all interviewer questions, and that specific, yes-or-no format questions account for two-thirds of all questions. In addition, interviewers sometimes (twenty-nine percent of the time) fail to establish interview ground rules by telling children that they should feel free to correct the interviewers and to answer that they do not remember or do not understand questions."

----- * [FN107:] Olin G. Wellborn III, Demeanor, 76 Cornell L. Rev. 1075 (1991).

** [FN109:] Id.at 1088-91 (experimental evidence in the eyewitness identification area demonstrates that subjects cannot detect error even when using both verbal content and nonverbal demeanor evidence.)

*** [Susan] Bandes[,] The Lessons of Capturing the Friedmans: Moral Panic, Institutional Denial and Due Process, 3 Law Culture & Human. 293 (2007)...at 310, 312, 309.

**** See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is 'strong evidence that children, especially young children, are suggestible to a significant degree -- even on abuse-related questions'); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in rhe United States 1989 through 2003, 95 J.Crim.L.&C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children's True and False Reports of Body Touch, 12 Child Maltreatment 60, 61-66 (2007) (finding that 4- to 7-year-olds 'were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview.').

@ [FN168:] [People v.] Guerra, 37 Cal. 3d at 412, 690 P.2d at 652 (quoting People v. Shirley, 31 Cal. 3d 18, 66, 641 P.2d 775, 181 Cal. Reptr. 243 (1982)).

@@ [FN180:] Rochin v. California, 342 U.S. 165, 173 (1952).

@@@ [from FN182:] Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

@@@@ [FN187:] In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).

@@@@@ [quoting Mark D. Everson, Understanding Bizarre, Improbable, and Fantastic Elements in Children's Accounts of Abuse, 2 Child Maltreatment 134-49, at 145 (1997).

# [quoting Carole R. Beal, Kelly L. Schmitt, & Dawn J. Dekle, Eyewitness Identification of Children, 19 Law and Human Behavior 197-216, at 198-199 (1995).]

## Christine M. Ricci, Carole R. Beal, & Dawn J. Dekle, The Effect of Parent Versus Unfamiliar Interviewers