Amicus Curiae Brief — Krivacska v. New Jersey

MOTION Filly |

APR 2 2002 Ze

No. 01-1326

oe

IN THE

Supreme Court of the United States

JAMES J. KRIVACSKA,

Petitioner.

Vv.

STATE OF NEW JERSEY,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

TO THE SUPERIOR Court OF NEw JERSEY,

APPELLATE DIVISION

MOTION OF THE SCIENTISTS CONCERNED FOR

RELIABILITY OF CHILDREN’S REPORTS, ACCUSATIONS

AND TESTIMONY FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER

AMY GERSHENFELD DONNELLA

Attorney for Amicus Curiae

310 Chamounix Road

St. Davids, Pennsylvania 19087

(610) 341-9566

173263 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

’

The undersigned amicus group, Scientists Concerned for

Reliability of Children’s Reports, Accusations and Testimony,

hereby requests that this Court grant it permission to file a

brief in support of the grant of certiorari in the above-

captioned case. Petitioner has consented to the submission

of a brief by the amicus group but the Respondent has refused

its consent.

In support of its Motion, the amicus group shows this

Court the following:

1. This amicus group is comprised of members of the

academic research community and includes the many of the

world’s foremost experts in the field of suggestive

interviewing of children. Each member of the group has

participated firsthand in the development of research

paradigms, the implementation of research projects, and the

analysis of research results from studies designed to

determine the effects of suggestive questioning on children.

All of the members of this group have testified as experts

and/or participated as amici in jurisdictions throughout the

United States. The members of the amicus group are listed

in the Appendix attached to the brief that accompanies this

Motion.

2. The question presented for this Court’s consideration

is whether a state violates a defendant’s rights to

confrontation and to due process when it admits into evidence

uncorroborated accusations of child sex abuse from children

whose memories have been rendered unreliable by suggestive

questioning. Despite Respondent’s refusal to consent to the

participation of this amicus group, the group is comprised

of the very scientists who have conducted the research relied

on by the state and defense experts who testified in this case

about suggestive interviewing and its effects on children.

3. The writings and research results of members of

the amicus group were misstated by the state’s expert,

and by New Jersey trial and appellate courts in this case.

A fair resolution of the legal and policy issues raised in

Mr. Krivacska’s petition must ultimately rest on sound

science and this amicus group is in the unique position of

being able to provide this Court with the most accurate and

up-to-date science that exists in this field.

4. The studies conducted by these researchers fall into

three broad categories: (a) studies that examine the effect of

Suggestive questioning on children by mimicking the type

of questioning to which children are often subjected in

settings involving the criminal justice system; (b) studies that

measure the ability of professionals accurately to judge

whether children’s reports are true or false, based on how

credible the children appear to be when rendering these

reports; and (c) studies to determine what linguistic markers

and other objective factors, if any, distinguish reports of true

events from reports of false events.

5. Although the research results of the amicus group are

uncontroverted within the scientific community, this field

has spawned many self-styled “experts,” a number of whom

are clinical psychologists and child welfare professionals,

rather than research scientists. These “clinical experts” who

testify in child sex abuse cases pay lipservice to the validity

of the science but ultimately reject it in favor of their non-

scientific clinical intuitions.

6. In the case at bar, consistent with the mandate of the

New Jersey Supreme Court in State v. Michaels, 642 A.2d

1372 (NJ 1994), the trial court held a pretrial hearing to

determine if the interviewing techniques that elicited reports

of sexual abuse from the child complainants had the capacity

to render the children’s reports of abuse unreliable. If so, the

———~_—

—_eo ee

children’s post-questioning reports would have to be

excluded under Michaels in order to preserve Petitioner’s

right to confront the witnesses against him.

7. During this pretrial hearing, Dr. Kathryn Hall testified

as a state expert about suggestive questioning and the

suggestibility of children, citing often to research conducted

by members of this amicus group, Drs. Stephen Ceci and

Maggie Bruck. Using what she referred to as the “Ceci and

Bruck model,” Hall testified, consistent with valid scientific

research, that children are highly suggestible, that the child

complainants in this case were highly suggestible, and that

the interviews to which these children were subjected were

highly suggestive.

8. However, Hall departed entirely from the Ceci and

Bruck model and from all other scientific literature when

she then testified that there were ways by which she could

tell from the children’s reports that the children had not

succumbed to suggestive questioning. Acknowledging that

her conclusions were based entirely on her own clinical

intuitions, Hall outlined a checklist of characteristics of the

children’s reports that prompted her to draw this conclusion.

9. Hall provided no scientific basis for her assertions.

Nor could she have. Research has proved just the opposite:

the objective markers Hall relied upon will not distinguish

accurate reports from false reports of children whose

memories have been tainted by suggestive questioning.

10. On the strength of the unsupported (and disproved)

junk science propounded by Dr. Hall, the New Jersey trial

court found the reports of abuse generated by suggestive

questioning in this case reliable and admissible in court.

The New Jersey Appellate Court upheld this finding.

11. The members of this amicus group believe it is

critical for this Court to understand the research in this field

in order for the Court to be able fully to assess why the

question presented by the petitioner warrants consideration.

12. Accordingly, the undersigned amicus group asks the

Court to give it the opportunity to submit the attached brief,

which summarizes the most current research in the field of

suggestive interviewing of children and which explains why

the members of the group urge this Court to grant certiorari.

Respectfully submitted,

Amy GERSHENFELD DONNELLA

Attorney for Amicus Curiae

310 Chamounix Road

St. Davids, Pennsylvania 19087

(610) 341-9566

TABLE OF CONTENTS

Table of Cited Authorities ............-. ee eeee il

Statement of Interest of the Amicus Group ....... 1

The Bias of an Interviewer Is Likely to Result in

Suggestive Questioning and, In Turn, to Reports

of Non-Experienced Events ............-++-. 4

Research Has Demonstrated that Children’s False

Reports Appear Credible to Adults, Even those

Who Are Trained Professionals .............. 11

There Are No Objective Markers that Distinguish

False From True Reports ..........----eeee> 15

The Assertions of the State’s Expert in the Case

at Bar Typify the Misinformation and Bad Science

Being Accepted by the Courts, Resulting in

Convictions Based on Unreliable Reports of Abuse

and Unreliable Science ...........2ceeeeee- 16

The Issue Presented to this Court For Certiorari

Review is One of Significant Public Importance,

Requiring a Determination by this Court, to

Provide Direction to Trial Courts Throughout the

Rn cian naan eee ama ee er 18

orn Perro e yer ies Fy k 20

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TABLE OF CITEDAUTHORITIES

Page

Federal Cases

Foster v. California, 394 U.S. 440, 89 S. Ct. 1127

1 rer rn ee ree 19

Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139 (1990)

edad hte Cah oats tees oe tenn 19

Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056

STU chs obces kdnadneereewe desea 19

Manson v. Brathwaite, 432 U.S. 98, 97S. Ct. 2243

CECE ON é 6a cecees dckeeeeeaswe ose 19

Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375 (1972)

$4060040ueekueinaee dened smears 19

Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2539

SEED a.0:94 46 kG cdie ene sake oes eee eee 19

Rock v. Arkansas, 483 U.S. 44, 107 S. Ct. 2704 (1987)

+s ketenes odes eteueneneeene tee eee 19

Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967

bi PEE TOE Oe ee ne ee 19

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926

ERED 4s 64 6440u5 oo Sha ckee ieee 19

White v. Illinois, 502 U.S. 346, 112 S. Ct. 736

SRD aka vekkeed be ecu cask eels 19

iil

Cited Authorities

Page

Scientific Research Literature and Authority

Binet, A., La Suggestibilité. Paris: Schleicher Freres.

(BGG oc cccncnssedaccnnccssascsccesesss 8

Bottoms, B., Rucknick, A., & Nysse-Carris, K.,

Adults’ Assessments of Children’s Testimonial

Confidence and Accuracy Paper Presented at the

AP-LS Biennial Conference, Austin, TX. (March,

Pr rrr ery Perr rye Tr rer 14

Brady, M. S., Poole, D. A., Warren, A. R., & Jones,

H. R., “Young children’s responses to yes-no

questions: Patterns and problems.” Applied

Developmental Science, 3, 47-57 (1999) ....... 6, 16

Bruck, M., & Ceci, S. J., “Reliability and

Suggestibility of Children’s Statements: From

Science to Practice.” In D. Schetkey and

E. Benedict (Eds.), Comprehensive Textbook in

Child and Adolescent Forensic Psychiatry.

(\ ) eee er ree rr +

Bruck, M., Ceci, S. J., Francoeur, E., & Barr, R. J.

“*T hardly cried when I got my shot!’. Influencing

children’s reports about a visit to their

pediatrician.” Child Development, 66, 193-208.

‘(+ PERPTEPPEPPTTLTTIT rir iit 7

Bruck, M., Ceci, S. J., Francoeur, E., & Renick, A.

“Anatomically detailed dolls do not facilitate

preschoolers’ reports of a pediatric examination

involving genital touch.” Journal of Experimental

Psychology: Applied, 1, 95-109. (1995b) ...... 10

—

iv

Cited Authorities

Bruck, M., Ceci, S.J., & Hembrooke, The nature of

children’s true and false narratives. Developmental

UD | ino a 6.04 bt as che cesacsceess

Bruck, M., Melnyk, L., & Ceci, S. J., “Draw it again

Sam: The effects of repeated drawing on the

accuracy of children’s reports and source

monitoring attributions.” Journal of Experimental

Child Psychology, 77, 169-196. (2000) ........

Carter, C. A., Bottoms, B. L., & Levine, M.,

“Linguistic and socioemotional influences on the

accuracy of children’s reports.” Law and Human

Behavior, 20, 335-358. (1996) ............6.5.

Ceci, S. J., & Bruck, M., “The suggestibility of the

child witness: A historical review and synthesis.”

Psychological Bulletin, 1] 3, 403-439. (1993) ...

Ceci, S. J. & Bruck, M., Jeopardy in the courtroom:

A scientific analysis of children’s testimony.

Washington, DC: American Psychological

ED cok sunueced dbeecassacaee

Ceci, S. J., Crotteau-Huffman, M., Smith, E.,

& Loftus, E. W., “Repeatedly thinking about

non-events.” Consciousness & Cognition, 3, 388-

EAE ye OS epee GN ae

Ceci , S. J. & Friedman, R. D., “The suggestibility

of children: Scientific research and legal

implications.” Cornell Law Review, 86, 34-108.

Page

% a5

10

4,6

5,7

Cited Authorities

Ceci, S. J., Loftus, E. W., Leichtman, M. & Bruck,

M., “The role of source misattributions in the

creation of false beliefs among preschoolers. ©

International Journal of Clinical and

Experimental Hypnosis, 62, 304-320. (1994b)

Page

PEO ee ee ee Tree C eee Te ee YE Tee ey 9,11,14

Ceci, S. J., Ross, D., & Toglia, M., “Age differences

in suggestibility: Psycholegal implications.”

Journal of Experimental Psychology: General,

ip = Ro ee rere rer ree eee

Garven, S, Wood, J. M., & Malpass, R. S.,

“Allegations of wrongdoing: The effects of

reinforcement on children’s mundane and fantastic

claims.” Journal of Applied Psychology, 835,

OE EPP Te eee eer Tr rT rer ere

Garven, S., Wood, J. M., Shaw, J. S., & Malpass, R.,

“More than suggestion: Consequences of the

interviewing techniques from the McMartin

preschool case.” Journal of Applied Psychology,

Re Peer ee rer eCr rire ries

Goodman, G., & Aman, C., “Children’s use of

anatomically detailed dolls to recount an event.”

Child Development, 61, 1859-1871. (1990) ....

Goodman, G. S., Bottoms, B. L., Schwartz-Kenney,

B., & Rudy, L., “Children’s memory for a stressful

event.” Journal of Narrative and Life History, 1,

| RE ree ie ee ee ee

vi

Cited Authorities

Hembrooke, H., Toglia, M., & Ross, D., Children’s

suggestibility: The role of biaser credibility. Paper

presented at biennial meeting of the Society for

Research on Child Development, Seattle WA.

CA DINED aaa Fis Se COVER RR ATES.

Horner, T. M., Guyer, M., J., & Kalter, N. M.,

“Clinical expertise and the assessment of child

sexual abuse.” Journal of the American Academy

of Child and Adolescent Psychiatry, 32, 925-931.

) Sern ee Cae Eger es emg ee

Lampinen, J. M., & Smith, V. L., “The incredible

(and sometimes incredulous) child witness: Child

eyewitnesses’ sensitivity to source of credibility

cues.” Journal of Applied Psychology, 80,

GEG See ook See es i

Leichtman, M. D., & Ceci, S. J., “The effects of

stereotypes and suggestions on preschoolers’

reports.” Developmental Psychology, 31, 568-578.

CRORES i ae es ce nn aS

Lepore, S. J., & Sesco, B., “Distorting children’s

reports and interpretations of events through

suggestion.” Applied Psychology, 79(1), 108-120.

| ND ee Der Meh re tres wn rary ay yee

Lindsay, D. S., Johnson, M. K. & Kwon, P.,

“Developmental changes in memory source

monitoring.” Journal of Experimental Child

fe a ee) err rr

Page

14

6, 10

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Cited Authorities

Ornstein, P., Gordon, B. N., & Larus, D., “Children’s

memory for a personally experienced event:

Implications for testimony.” Applied Cognitive

Psychology, 6, 49-60. (1992) .........ccc0e0.

Parker, J., “Age differences in source monitoring of

performed and imagined actions on immediate and

delayed tests.” Journal of Experimental Child

Psychology, 60, 84-101. (1995) ..............

Peterson, C., & Bell, M., “Children’s memory for

traumatic injury.” Child Development, 67, 3045-

Pe RE ob ash a ots or de ee

Peterson, C., & Grant, M., “Forced Choice: Are

forensic interviewers asking the right question?”

Canadian Journal of Behavioral Science, 33,

Rak Pepe Seer ey nT aa

Pezdek, K., & Hodge, D., “Planting false childhood

memories in children: The role of event

plausibility.” Child Development, 70, 887-895.

CR isco arc atc ee och ons nde

Poole, D.A. & Lindsay, D.S., “Children’s eyewitness

reports after exposure to misinformation from

parents. Journal of Experimental Psychology:

pA Se) a ee ee ree

Poole, D.A. & Lindsay, D.S., “Interviewing

preschoolers: Effects of nonsuggestive techniques,

parental coaching and leading questions on reports

of nonexperienced events.” Journal of

Experimental Child Psychology. 60, 129-154.

CRs ys ca he Aah ended de eee sane

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Cited Authorities

Qin, J., Quas, J., Redlich, A., Goodman, G.,

“Children’s eyewitness testimony: Memory

development in the legal context.” Nelson Cowan

et al (Eds.) The development of memory in

childhood: Studies in developmental psychology

(pp. 301-341). Hove, England UK: Psychology

Lg 22 reg renee Earner oe

Quas, J. A., Goodman, G. S., Bidrose, S., Pipe, M-

E., Craw, S., & Ablin, D. S., “Emotion and

memory: Children’s long-term remembering,

forgetting and suggestibility.” Journal of

Experimental Child Psychology, 72, 253-270.

Ee se ee os 8 5G ia a ee oes

Rawls, J., “How question form and body-parts

diagrams can affect the content of young children’s

disclosures.” Paper presented at the NATO

Advanced Study Institute, Recollections of

trauma: Scientific research and clinical practice.

Port de Bourgenay, France. (1996) ............

Rudy, L., & Goodman, G. S., “Effects of participation

on children’s reports: Implications for children’s

testimony.” Developmental Psychology, 27,

pg) Ee ree oe rec eee

Templeton, L. M., & Hunt, V., “The effects of

misleading information and level of authority of

interviewer on children’s eyewitness memory.”

Paper presented at the Society for Research

in Child Development, Washington, DC. (April,

ye 2 OT OR ee aD Pee Pe TLTIA? Cater see ey

Page

10

11

6,9

ix

Cited Authorities

Thompson, W. C., Clarke-Stewart, K. A., & Lepore,

S., “What did the janitor do? Suggestive

interviewing and the accuracy of children’s

accounts.” Law & Human Behavior, 21(4),

Co Se ere eer

Tobey, A., & Goodman, G. S., “Children’s eyewitness

memory: Effects of participation and forensic

context.” Child Abuse & Neglect, 16, 779-796.

| ES 2 eee

Walker, N., Lunning, S., & Eilts, J., “Do children

respond accurately to force choice questions?”

Paper presented at the NATO Advanced Study

Institute, Recollections of Trauma: Scientific

Research and Clinical Practice. Talmont Saint

Hilaire, France, June. (1996) .............4--

Welch-Ross, M., “Developmental changes in

preschoolers’ ability to distinguish memories of

performed, pretended, and imagined actions.”

Cognitive Development, 10, 421-441. (1995) ...

Page

1

At issue in the petition for certiorari submitted by Petitioner

James Krivacska is the question of whether this Court should

permit a defendant being tried on charges of child sex abuse to

be convicted on the strength of unreliable evidence and

unreliable science. In this case, Petitioner was convicted as a

result of uncorroborated reports made by two children whose

accounts of sex abuse were elicited during or after interviews

that employed suggestive questioning techniques known to

produce false and unreliable results. Petitioner's case is just one

of many in which children’s initial reports of abuse have been

exacted through such questioning, rendering the accusations

unreliable and the convictions that result therefrom,

untrustworthy. Because the outcomes in this case and in a host

of others rest on junk science and unreliable evidence, Scientists

Concermed for Reliability of Children’s Reports, Accusations

and Testimony write in support of a grant of certiorari.'

STATEMENT OF INTEREST OF THE AMICUS GROUP

This amicus group is comprised of many of the world’s

leading scientists and researchers in the field of the suggestive

questioning of children. The members of the group and a brief

description of their credentials are listed in Appendix A, attached

hereto.

Each member of the group has participated firsthand in

published peer-reviewed research designed to determine the

effects of suggestive questioning of children. Each has also

served as an expert witness to review the interviewing practices

1. Neither party participated in the preparation or financing of this

brief. Fees for the preparation and filing of this brief have been provided

by Howard Margolis, Ed.D.; Abigail and Christian Kjeldsen; John

Money, PhD, Emeritus Professor of Medical Psychology & Pediatrics;

Philip A. Shaver, LLB; Marty Klein, PhD, Human Sexuality; Mary

Katherine Hawryluk, PsyD; Laura Beider, PsyD; Marian C. Fish, PhD,

Sandra L. Harris, PhD; Rev. Louis V. Schwebius, M.Ed, M.Div.; Peggy

Brick, M.Ed; and Mark Koscinski, MBA, CPA, none of whom are

members of the amicus group.

2

of investigators who interview children and/or to provide

opinions to courts about their practices. Singly, and in

combination with their colleagues, these experts have reviewed

cases, testimony of other purported experts, and interviewing

techniques employed in jurisdictions all across the United States

— in state trial and appellate courts, and in federal habeas courts

and United States Courts of Appeal.

As has been true in many cases from around the country,

both the state and the defense experts in this case have identified

_the research and writing of the members of this amicus group

as the authoritative sources of scientific literature in the field of

suggestive questioning of children.

Thus, this Court has no more experienced or knowledgeable

pool of experts to whom to look for guidance, nor any group as

universally recognized for their authority in this area of science.

Moreover, this amicus group has no political agenda, no

economic stake in the outcome, nor any connection with

Petitioner. They come to this Court for the sole purpose of

ensuring that Petitioner, and others who are similarly accused,

are not convicted by evidence that has been rendered unreliable

through suggestive questioning nor by opinions rendered by

“experts” that have no scientific support.

The members of the amicus group offer their collective

knowledge to this Court because they are concerned that

important law and policy issues are being decided in the courts

on the basis, not of valid science, but of personal clinical

intuitions that have already been disproved in carefully designed

and controlled research studies. The amicus group is also

concerned that courts regularly confuse the reliability of

children’s reports with the credibility of the child making the

report.

Unfortunately, as research has amply demonstrated, there

is no correlation between a child’s credibility and the veridical

content of a report that child provides following suggestive

questioning. Nor are there discernible differences, such as

3

linguistic markers or other objective factors, with which one

can distinguish a report of a true event from a report of a false

event where the latter report results from suggestive questioning.

And because the child who has been affected by suggestive

questioning frequently comes to adopt as true the memories of

false events, the child is impervious to cross-examination in

court.

It, therefore, is critical in order to prevent the whole-scale

abandonment of the rights of one accused of child sex abuse,

that this Court demand that the state courts rigorously uphold

two constitutional standards: First, that evidence that is

untestable in the crucible of cross-examination be excluded from

the jury’s consideration as a violation of a defendant’s right to

confrontation; and second, that unreliable, unsupportable science

be rejected by the courts as a violation of fundamental due

process rights.

The amicus group addresses these issues in the following

order. The first subsection below contains an overview of the

research into suggestive questioning of children. Because the

Petition for a Grant of Certiorari contains a list and description

of the specific interviewing techniques shown to taint a child’s

memory, this amicus brief focuses on this issue of interviewer

bias, the single factor most likely to result in suggestive

questioning and, in turn, to generate false reports.

The second subsection addresses research findings that

children who make false reports as a result of suggestive

questioning are as credible in rendering these reports as are

children reporting about true events. This subsection also

addresses research that shows that the false reports themselves

contain no characteristics that enable someone to distinguish

them from reports of true events.

Interwoven through these first two subsections are responses

to two specific assertions made by Respondent’s “expert,”

Dr. Hall: (1) that these research findings have no bearing on

reports of salient, personal physical experiences such as sexual

4

abuse; and (2) that Hall herself has ways, developed through

her clinical insights, of determining that these two children’s

reports of abuse were not tainted by the suggestive interviewing

to which they were subjected. The responses of the amicus group

will demonstrate that Hall’s clinical intuitions — the intuitions

upon which the New Jersey state courts based their decisions

— are unscientific by their nature, are unsupported by science,

and had, in fact, been disproved by science.

In the final subsection, the amicus group discusses why

these issues are of such great public importance as to warrant

this Court’s certiorari review.

The Bias of an Interviewer Is Likely to Result in

Suggestive Questioning and, In Turn, to

Reports of Non-Experienced Events.

In the past decade, there has been an exponential increase

in research on the accuracy of children’s recall of their past and

on the factors that compromise the accuracy of their recall

(Ceci & Bruck, 1993; Qin, Quas, Redlich & Goodman, 1997).

In general, the results of this line of research indicate that

although children’s autobiographical recall is highly accurate

for a wide range of events, their reports can be greatly distorted

when they are obtained under suggestive interviewing

conditions.

While early studies tested the distorting effects of a single

leading question or single piece of misinformation, over the

past ten years, the focus has shifted to studying the effects of

suggestive interviews on the accuracy of children’s reports.

This shift was based on researchers’ concerns that the largest

suggestibility effects might be produced when children are

confronted with a combination of implicit and explicit

suggestive techniques that are woven into the fabric of the

interview. Accordingly, studies were designed to look at the

effects of interview techniques such as bribes, threats, and

repetitions of questions (Ceci & Friedman, 2000). In this context,

an interview is defined as a verbal interaction between at least

5

two participants where the goal is for one participant to obtain

information from another participant. In this sense, interviews

can be highly formal (e.g., police interrogations), informal and

unstructured (e.g., a mother asking her child about school), or

anything in between.

The concept of interviewer bias is a defining feature of

suggestive interviews. (Bruck & Ceci, 2001). Interviewer bias

characterizes those interviewers who hold a priori beliefs 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 alternate explanations for the allegations or that might

elicit information inconsistent with the 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 reports with the

interviewer’s initial beliefs. Biased interviewers are not restricted

to professionals who interview children; they can also include

parents, teachers and others who have an agenda when they

question children.

Interviewer bias has been shown repeatedly to influence

the accuracy of children’s reports (reviewed in Ceci & Bruck,

1995). In the typical study, children are asked by an interviewer

to recall a staged event. This interviewer intentionally conveys

a bias that is either consistent or inconsistent with what really

occurred in the staged event. In these situations, children often

make inaccurate reports that are consistent with the biased

interviewer’s scripts, biases, or beliefs (e.g., Leichtman & Ceci,

6

1995; Lepore & Sesco, 1994; Thompson, Clarke-Stewart &

Lepore, 1997). In contrast to their vulnerability to biased

interviewers, children’s reports are quite accurate when they

are questioned by unbiased interviewers, even if they are

occasionally asked leading questions, and even if they

are questioned after long intervals following the event

(e.g., Goodman & Aman, 1990; Rudy & Goodman, 1991).

Interviewer bias is reflected through a number of suggestive

techniques that influence the entire architecture of interviews.

As interview bias increases, so does the number of suggestive

techniques, and this in turn decreases the accuracy of children’s

reports.

In order to obtain confirmation of their suspicions, biased

interviewers may not ask children “open-ended” questions such

as, “What happened?” but instead resort to a barrage of specific

questions that contain information about the interviewers’

hunches. This strategy is problematic because children’s

responses to specific questions are less accurate than their

responses to open-ended questions. This finding has been

consistently reported since the beginning of the 19th century

(for review see Ceci & Bruck, 1993), and is highlighted in a

compelling study in which Peterson and Bell (1996) interviewed

children about a traumatic injury after an emergency room visit.

These researchers found that children were most likely to

accurately report the important details in response to open-ended

questions; however, their accuracy decreased substantially when

they were asked more specific questions (e.g., “Where did you

hurt yourself?” or “Did you hurt your knee?”). Specific

questions, which have the greatest risk of decreasing children’s

accuracy, include “yes-no” questions (Was it black?) as well as

forced choice questions (Was it black or white?) (See Brady,

Poole, Warren & Jones, 1999; Walker, Lunning, & Eilts, 1996).

Peterson and Grant (2001) concluded that yes-no questions are

the most problematic because children have a bias to produce

“yes” answers and rarely produce “I don’t know” responses to

these questions. This pattern reflects children’s efforts to provide

7

answers consistent with what they see as the intent of the

questioner rather than consistent with their knowledge of the

event (Ceci & Bruck, 1995, for a review).

When biased interviewers receive answers that do not

confirm their pet hypothesis, they repeat their questions, hoping

for a more consistent answer. And many children will change

their answers upon being asked a repeated question. Researchers

believe that the reason for this change is that the children assume

their first answer was incorrect, hence the need to repeat the

question.

Some interviewers convey their bias by providing

information about the alleged target events that the child has

not yet supplied (e.g., “Jason told me you were there when your

stepfather hit your sister.”), resulting in unreliable responses,

particularly after multiple interviews. For example, 5-year old

children received an inoculation from a pediatrician and one

year later were interviewed four times about the details of that

visit (Bruck, Ceci, Francoeur, & Barr, 1995). Children who were

repeatedly interviewed in a neutral, nonleading manner provided

accurate reports about the original medical visit, displaying high

levels of accuracy after a year long delay. In contrast, children

who were repeatedly given misinformation about the salient

details associated with the medical visit incorporated the

misinformation into their reports (e.g., they made false claims

that the inoculation was administered by a female research

assistant rather than the male pediatrician).

Interviewer bias may also be reflected by the “atmosphere”

of an interview. Sometimes, interviewers provide much

encouragement during the interview in order to put children at

ease by providing a supportive environment. Children’s

resistance to misleading questions increases when they

are questioned by warm, supportive, and neutral interviewers

(e.g., Carter, Bottom & Levine, 1996). However, encouraging

statements lose their impartial tone when there is selective

encouragement (reinforcement) for statements that are consistent

8

with the interviewer’s beliefs. For example, Garven, Wood and

Malpass (2000) asked children yes/no questions about a special

person who had visited their class one week earlier. Children

who were given positive feedback for following the

interviewer's lead (e.g., “Great”’) and negative feedback for not

following the lead (“You’re not doing well”) inaccurately

assented to over 40% of the misleading questions. In contrast,

children who were asked the same questions with no feedback

only provided inaccurate responses for 14% of the questions.

Peer pressure is another suggestive technique used by some

biased interviewers who try to obtain the child’s cooperation

by telling the child that his friends have helped or already told,

and that he should also tell, and/or that he will feel better once

he has told. Research dating as far back as 1900 show that

children can be swayed to give incorrect information about

an experienced event if they are provided with inaccurate

information about how other witnesses have responded. Binet

(1900) found that children will provide the incorrect answer of

the rest of the group rather than give their own perception of

reality. This effect is particularly pronounced when the peer

pressure is used in combination with other suggestive

questioning techniques.

Sometimes police or social service officials with high status

use some of these suggestive techniques alone or in combination

(Lamb, ef al., 1996). One of the difficulties in this situation is

the fact that children are much more likely to follow the

suggestions and leads of an interviewer who has high status

(and thus presumed credibility) (e.g., Lampinen & Smith, 1995;

Templeton & Hunt, 1997; Tobey & Goodman, 1992). In the

eyes of a child, even an unfamiliar interviewer who professes

knowledge about a target situation is accorded special status

(e.g., Ceci, Ross, & Toglia, 1987; Hembrooke, Toglia & Ross,

1991).

Guided imagery is another potentially suggestive

interviewing technique. Interviewers sometimes ask children

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9

to try to remember or pretend if a certain event occurred, to

create a mental picture of the event and to think about its details,

or to speculate about an event (“Well, how do you think you

would have felt if you did remember it happening to you?”’).

Under these circumstances, children may later come to report

and believe these imagined activities actually occurred. This is

because they sometimes do not distinguish memories of actual

events from memories of imagined events (e.g., Lindsay,

Johnson, & Kwon, 1991; Parker, 1995; Welch-Ross, 1995).

This hypothesis is supported by studies where young children

were repeatedly asked to think about real as well as imaginary

events, creating mental images each time they did so (e.g., Ceci,

Crotteau-Huffman, Smith & Loftus, 1994a; Ceci, Loftus,

Leichtman, & Bruck, 1994b). In one study, children’s assent

rate to false events increased over ten sessions. Moreover, even

when the children were told that the imagined events had not

happened, many continued to confirm their false statements,

insisting that they really occurred (Ceci, et al., 1994b). These

data suggest that some children believed that they had

experienced the imagined fictitious events.

Although the use of a single suggestive technique can result

in inaccurate reports, error rates can be low (e.g., Rudy &

Goodman, 1991). More robust suggestibility effects are obtained

when two or more suggestive techniques are combined in one

interview, as they often are in real life interviews such as the

ones conducted in Petitioner’s case. For example, Garven, et

al. (1997) interviewed children one week after a stranger visited

their daycare. Half of the children were asked leading questions.

The other children were also asked leading questions but in

combination with other suggestive techniques including peer

pressure (“The other kids said that . . .”), positive consequences

(praising certain answers), negative consequences (telling the

child that this was not the appropriate answer, and repeating the

question), enjoinders to think about questions to which they

had replied “no,” and enjoinders to speculate (tell what might

have happened). Children in the combined suggestion condition

10

accurately answered only 42% of the questions compared to an

accuracy rate of 83% for children who were just asked leading

questions. (Of course, it is worth remembering in the context of

a criminal investigation that even an accuracy rate of 83% can

be highly problematic.)

One might wonder whether young children’s suggestibility-

proneness is restricted to non-sexual matters that are largely

peripheral and non-salient.2 However, research amply

demonstrates that children are not merely suggestible about

peripheral details but also about central details that may involve

their bodies (Ceci & Friedman, 2000). At times, children’s false

reports can be tinged with sexual connotations. In laboratory

studies, young children have made false claims about “silly

events” that involved body contact (e.g., Did the nurse lick your

knee? Did she blow in your ear?), and these false claims often

persisted in subsequent interviews over a 3-month period

(Ornstein, Gordon, & Larus, 1992). Preschoolers assented to

suggestions that a doctor had cut out some bone in the center of

the child’s nose to stop the child from bleeding (Quas, et al.,

1999). Children have falsely reported that a man put something

“yucky in their mouth” (Poole & Lindsay, 1995, 2001), that

their pediatrician had inserted a finger or a stick into their genitals

(Bruck, Ceci, Francoueur & Renick, 1995), and that a man

touched their friends, kissed their friends on the lips, and

removed some of the children’s clothes (Lepore & Sesco, 1994).

Children have also falsely reported that someone touched their

private parts, kissed them and hugged them (Bruck, Melnyk &

2. On direct examination, the state’s expert in Petitioner’s case,

Kathryn Hall, adopted the Ceci and Bruck model for analyzing the

suggestiveness of the interviews to which the child complainants were

subjected in this case and deemed the interviews highly suggestive.

On cross-examination, Hall suddenly expressed skepticism about the

validity of the Ceci and Bruck model on the grounds that their research

could not necessarily be generalized to situations that involved sexual

matters or that were salient or central to their physical being. The studies

described above, however, demonstrate that such skepticism was

misguided.

11

Ceci, 2000; Rawls, 1996; Goodman, Bottoms, Schwartz,

Kenney & Rudy, 1991).

Suggestive interviews have also been shown to influence

children’s reports about emotionally charged or central events.

See Ceci, et al., 1994b.

Research Has Demonstrated that Children’s False Reports

Appear Credible to Adults, Even those Who Are

Trained Professionals.

Another matter that has been tested and written about

extensively in the suggestibility literature is whether children’s

false reports (1.e., those elicited through suggestive techniques)

appear credible to adults and, specifically, to trained

professionals. In some studies, trained professionals (e.g.,

judges, mental health workers, and lawyers) viewed videotaped

or transcribed segments of interviews with children, some of

whom had succumbed to interviewers’ erroneous suggestions,

and some of whom had not.

In one such large-scale study, children in a pre-school class

were told stories every day for a month about a clumsy man

named Sam Stone. At the end of the month, Sam (a confederate)

came to their classroom. He walked into the classroom, said

hello, walked around the classroom, said goodbye and then

exited. He did nothing else. The day after Sam Stone’s visit, the

children were shown a ripped book (the same one they were

reading when Sam came to visit) and a soiled teddy bear (that

had not been in the room during the visit.) The children were

asked if they knew how the book had gotten ripped or how the

teddy bear had gotten dirty. Thereafter, the children in the test

condition were given four suggestive interviews over a period

of ten weeks. Each suggestive interview contained two erroneous

suggestions, one having to do with the ripped book and one

having to do with the soiled teddy bear. Finally, one month later,

a new interviewer questioned the children about Sam Stone’s

visit. The new interviewer began by saying, “I wasn’t there the

day that Sam came to visit your classroom. Can you tell me

12

what happened?” The interviewer then asked, “Did anything

happen to a book? Did anything happen to a teddy bear?”

A significant percentage of children insisted, even after

being gently challenged, that they had seen Sam Stone rip the

book and do something to soil the bear. The most surprising

result was that these children’s reports were full of false

perceptual details, as well as nonverbal gestures, all provided

to embellish their stories of the non-events. For example,

children used their hands to show how Sam had thrown the

bear into the air; some children reported having seen Sam on

the playground, on his way to the store to buy ice cream or in

the bathroom, soaking it in water before smearing it with a

crayon.

These final interviews were videotaped and three of them

were shown to 119 researchers and clinicians (“judges”) who

worked in the area of children’s testimonial issues to see if these

professionals could discriminate between the erroneous and the

accurate reports. The three interviews they were shown were:

Child 1, who spontaneously gave a very elaborate account of

Sam coming into the classroom and tossing a doll into the air,

ripping a book, and soiling the teddy bear; Child 2, who was

soft-spoken and said that Sam only came into the classroom to

say hello and left without doing anything wrong; and Child 3,

who first said Sam had only come in and looked around, but

who, with some prompting, asserted elaborately and with

conviction that Sam had ripped one page of the book and painted

ice cream over a teddy bear. The judges were told simply that

the three children had been present when a man visited their

classroom and that all had witnessed the same visit.

Immediately after viewing all three tapes, the judges were

asked to rate the accuracy of particular statements made by the

children on a 7-point scale, ranging from “very confident that

the event did not occur,” to “very confident that the event did

occur.” In this study with these 119 judges and in subsequent

studies that used a total of 2300 professionals as judges,

13

Child 2 — who was the most accurate — was consistently rated

as the least believable, while Child 1 — who was the least

accurate — was consistently rated as the most believable.

In another study, children’s parents were interviewed to find

out about events that transpired at various times in their

children’s lives (e.g., moving, birth of younger siblings, vacation

trips; birthday parties; death of pets; injuries requiring stitches.)

Children were then interviewed individually, and provided with

alist of both real and fictitious (experimenter-contrived) events.

(The fictitious events were discussed with parents to ensure that

the child had never experienced them, such as riding with

classmates in a hot air balloon and getting one’s hand caught in

a mousetrap and having to get it removed at the hospital.) The

interviewer held index cards on which the real and fictitious

events were written and informed the child:

I am going to read some things that may have

happened to you, and I want you to think real hard

about each one of them that I am going to read.

Try to remember if it really happened. We made this

list up by talking to your mother and father to get

them to tell us about things that really happened to

you when you were younger, but not all of the things

I am going to read to you really happened.

Children were asked to try to recollect the events on 7-10

separate occasions, spaced on average 7-10 days apart. Ninety-

six children completed at least seven sessions. Fully a third of

them assented to false events by the end of the study.

As in the Sam Stone study, the final videotaped narratives

in this study (“Mousetrap 1”) reveal richly detailed, but false,

claims. In part, the children seem so convincing because they

insert affect at the appropriate points, they include low frequency

details, and they make spontaneous corrections to their stories.

The researchers then selected five fictitious events that were

reported by the children at their final videotaped interview, along

14

with 5 real events from the final interview. The researchers

showed these videotapes to 109 professionals in psychology,

law enforcement, social work, and psychiatry to see if they could

determine which events had actually been experienced by the

children and which had been fictitious. The 109 judges were

asked to rate on a scale their opinions as to whether each event

being recounted was true or false. The judges were not told

how many of the events were true or false, only that there were

some of each.

These professionals were terrible judges of the truth or

falsity of the narratives. As many professionals were reliably

worse than chance at detecting which events were real or

fictitious as the number who were at chance and above chance.

Similar results have been obtained in subsequent studies of the

same nature. (Ceci, Loftus,, et al., 1994)

In a very recent study, 251 undergraduate students watched

videotapes of 10 children who were interviewed about an

experience with a baby sitter that had happened one year

previously. The children were asked for a free narrative.

The children were then asked four leading questions and four

misleading questions. The children were also asked to select

the baby sitter from a photo array. At the end of their interview,

the children rated their own confidence in the accuracy of their

statements. After viewing the videotapes, the undergraduates

were asked to rate both the accuracy of each child and their

perception of each child’s confidence.

Two major findings emerged from this study. First, there

was no relationship between the child’s accuracy and the judges’

ratings of the child’s accuracy. Second, the judges’ ratings of

the child’s accuracy did correlate with ratings of the child’s

confidence. (Bottoms, Rucknick & Nysse-Carris, 2002).

Related research has shown that professionals do not agree

about the credibility of children’s claims of abuse even when

they were provided with extensive case material (Horner, Guyer

& Kalter, 1993).

15

There Are No Objective Markers that Distinguish

False From True Reports.

All of the above findings about children’s credibility were

based on the professionals’ subjective impressions. In a very

recent study, however, researchers asked if similar results would

be obtained with more objective measures. (Bruck, Ceci,

Hembrooke, in press). Thus, researchers took both true and false

reports that followed scripted suggestive interviews and carefully

counted and scored various linguistic markers that some

psychologists have asserted provide reliable indicators of the

truth or falsity of a child’s narrative. This study was highly

controlled so that the children providing the narratives were

asked not just about true events that had occurred in their lives,

but staged true events, so that the researchers would know

exactly what had transpired with these children. As in earlier

studies, researchers confirmed with parents that the false,

suggested events had never been experienced by the children.

(The two false events were that the child had helped a woman

find her monkey, which had escaped at the school, and that a

thief had come into the school and stolen food from the kitchen

before escaping down the stairs.)

Generally, the tabulated linguistic markers did not correlate

with the accuracy or falsity of the narrative given by these

children after they had been subjected to suggestive interviews.

Thus, contrary to the assertions of child care professionals who

believe they can accurately assess true from false statements

based on objective linguistic features of the narratives, no such

objective features consistently characterize true or false

statements.

Another experiment tested the hypothesis that a child who

accepts some suggestions will predictably accept all suggestions.

In this study, the children were asked suggestively about two

false events, reported to have occurred when they were four

years old. One event was chosen because of its plausibility (being

lost in a shopping mall), while the other was chosen because of

16

its implausibility (the child receiving a rectal enema.) While

the majority of children did not recall either event, a significant

number of the children “recalled” the plausible event but not

the implausible event. The importance of this study is that it

demonstrates that a child who accepts some suggestions may

nevertheless persistently reject other suggestions. (Pezdek,

et al., 1999).

In summary, assent rates, denial rates, and consistency of

children’s reports once they have been subjected to suggestive

questioning provide no basis for systematically distinguishing

between children’s reports of true events from children’s reports

of events that never happened at all. (See also Brady, et al,

1999 in which consistency and answers to suggestibility check

questions were not predictive of performance.)’

The Assertions of the State’s Expert in the Case at Bar

Typify the Misinformation and Bad Science Being

Accepted by the Courts, Resulting in Convictions

Based on Unreliable Reports of Abuse and

Unreliable Science.

In the case at bar, the state’s expert, Dr. Kathryn Hall,

acknowledged that the two child complainants had been

subjected to highly suggestive interviews. She reached this

conclusion, according to her own testimony, by examining the

interviews in light of the Ceci and Bruck model. (Drs. Ceci and

Bruck are two of the signatories to this brief.) Hall then asserted,

nevertheless, that she could tell, based on her clinical intuitions,

that the two child complainants had not succumbed to the

suggestive questioning. She based her opinion on a checklist of

factors that consisted of: the consistency of the children’s reports

3. These research results directly contradict the assertions made

by Kathryn Hall that she could tell that the children in this case were

telling the truth because they consistently denied that they had performed

fellatio on the defendant, despite such suggestions having been made to

them by interviewers.

17

once the interviewing process had begun‘; the fact that the

children supplied details that had not been specifically suggested

to them; the fact that the children denied having any form of

oral sex with the Petitioner, despite such events having been

suggested to them; and the fact that the children corrected

“erroneous” statements made to them.

The decision of the New Jersey Appellate Division accepted

this line of reasoning as valid, despite its lack of scientific

support. (Hall herself acknowledged that her opinions were

based solely on her clinical intuitions and that she had no

scientific support for them.) Thus, the problem here was two-

fold — 1) that the state expert provided testimony that was totally

erroneous, which led the trial court to admit statements by the

child complainants that lacked any basis of reliability, and 2)

that the state courts adopted unsupported, disproven clinical

intuitions over valid, research-supported science. As a result,

Petitioner was convicted on the basis of unreliable evidence,

admitted on the basis of unreliable science.

This problem arises with regularity in child sex abuse

litigation.* There is no lack of people who have a great deal of

experience as clinicians and who testify that their clinical

intuitions are superior to, and should trump, the extensive peer-

reviewed controlled scientific research in this field.

4. Hall also attributes her reliance on consistency of reports to the

Ceci and Bruck model. Her reliance reflects a serious misunderstanding

of their writings. The consistency that they deem noteworthy is

consistency of reports of abuse made from before the time the suggestive

interviewing began, not the consistency of reports that emerges after the

child has been subjected to suggestive questioning. As in the legal

analysis of reports made by a witness subjected to hypnosis, the pre-

hypnosis reports are considered reliable and may continue to be deemed

reliable even if they are also made during hypnotic sessions.

5. This is not to suggest that this problem is present in all child sex

abuse cases but that neither is this case unique. As noted earlie:, each of

the signatories to this brief has been involved in one or more cases, in

jurisdictions throughout the United States, where these issues have arisen.

18

At the same time, many courts seem to lack direction on

how to evaluate science. These courts also lack an adequate

understanding of the distinction between the reliability of

children’s reports and the credibility of the child while making

that report. The testimony of the clinicians only helps to blur

these distinctions.

As aresult, many courts wind up focusing their assessments

of reliability on the content of the child’s report, rather than on

the methods that produced the child’s report in the first place.

Unfortunately, because there is no element of a child’s report

that will identify whether it is true or false once the child has

been subjected to suggestive questioning, using that report as

the defining factor can only result in the admission of unreliable

evidence.

Accordingly, the focus of the court’s inquiry must begin

with, and remain with, the type of questioning to which the

child was subjected before making accusations of abuse.

The Issue Presented to this Court For Certiorari Review is

One of Significant Public Importance, Requiring a

Determination by this Court, to Provide Direction

to Trial Courts Throughout the United States.

Child sex abuse prosecutions engender more publicity, more

anger, and more societal protectiveness than perhaps any other

form of criminal litigation. With good reason, no one wants

children to be victimized by sexual predators.

The prosecution of these cases can be difficult. There are

rarely eyewitnesses to acts of sex abuse. There is rarely physical

evidence of the abuse. The case often rests on the accusations

of a child.

At the same time, charges of child sex abuse are among the

most difficult to defend against. There is simply no way to prove it

did not happen. Just as the lack of physical evidence makes

these cases difficult to prove, the fact that sexual abuse can be

committed without leaving any physical evidence means that the

absence of such evidence is rarely considered an exonerating factor.

19

This case, and others like it around the country, present a

real challenge to the strength of the commitment of the courts

to protect the constitutional rights of defendants to confront the

witnesses against them and to be tried and convicted only by

reliable evidence, even when the alleged victims are children.

Because of the natural impulse to want to protect vulnerable

victims, the response of some judges has been to err in favor of

the children by relying on unscientific principles and by allowing

unreliable evidence to be considered by juries. This response,

however well-intentioned, flies in the face of constitutional

safeguards that have previously been articulated by this Court.°

If protections granted to defendants by the Constitution are to

be relaxed or recast in child sex abuse cases, such a decision

should come only at the direction of the United States Supreme

Court and only after careful and deliberate consideration. These

decisions should not be made in the haphazard and inconsistent

fashion they are currently being rendered in trial courts across

the country.

And the underpinning for any decision made by this Court

ought to be sound science and valid research, conducted in

controlled settings and available for scholarly review and

critique. It should not rest on the private clinical intuitions or

observations of an individual practitioner or idiosyncratic

theories that have neither been tested nor examined in the glare

of peer review.

6. Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139 (1990); Ohio v.

Roberts, 448 U.S. 55, 66, 100 S. Ct. 2539 (1980); Manson v. Brathwaite,

432 U.S. 98, 97 S. Ct. 2243 (1976); Lee v. Illinois, 476 U.S. 530, 106 S.

Ct. 2056 (1986); Neil v. Biggers, 409 U.S. 188, 196-197, 87S. Ct. 1967

(1967); United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967);

Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967); Foster v.

California, 394 U.S. 440, 89 S. Ct. 1127 (1969); White v. Illinois, 502

U.S. 346, 112 S. Ct. 736 (1992); Rock v. Arkansas, 483 U.S. 44, 107

S. Ct. 2704 (1987).

20

CONCLUSION

For the foregoing reasons, Scientists Concerned for

Reliability of Children’s Reports, Accusations and Testimony

believe that this Court should consider the question presented

in Mr. Krivacska’s petition for certiorari review so that this

issue can be decided finally and uniformly as this Court has

previously addressed issues concerning suggestive photo

identifications, suggestive line-ups, and the use of hypnosis on

state witnesses. This amicus group asks this Court to speak again

on the need to base convictions on reliable research and reliable

evidence. The alternative is for our courts to be governed by the

tyranny of disproven intuition and junk science.

Respectfully submitted,

Amy GERSHENFELD DONNELLA

Attorney for Amicus Curiae

310 Chamounix Road

St. Davids, Pennsylvania 19087

(610) 341-9566