Wednesday, September 2, 2009

"Aren't you concerned improper or clumsy interview techniques could lead to false allegations?'

Sometimes I feel we are the ACLU, defending very unpopular types of men. For the squeamish who are about to read this story, please note we are not defending child molesters. We are defending potentially innocent persons. A news report follows the trial of an accused child molester who faces upt to 170 years if convicted. It recounted defense counsel's cross examination of a prosecution expert witness, a clinical psychologist. I wish we had the full transcript of the exchange, but the excerpt in the news article is chilling:

A clinical psychologist took the witness stand Tuesday, detailing how Keck, 42, of 407 Edgewood Drive, Marietta, allegedly groomed several boys for sexual abuse.

Dr. Robin Tener, of North Canton, also defended the questioning by police of a 13-year-old boy who was found at Keck's home Jan. 9, when police arrived to execute a search warrant. At first, the child denied any wrongdoing by Keck, but after an officer lied and said Keck and other boys had acknowledged certain acts, the boy began to detail abuse.

Baumgartel said the interview was improper and that the officer's interview was leading and suggestive. Tener said the interview was appropriate, "given the circumstances."

"Aren't you concerned improper or clumsy interview techniques could lead to false allegations?" Baumgartel asked.

After a long exchange, Tener said suggestive questioning of potential sex victims is generally discouraged, but that she believed Marietta police Detective Troy Hawkins acted appropriately in his interview, which she said she reviewed.

Tener said Hawkins' interview of the child progressed at necessary steps.

"There are leading questions that can be asked in a certain way and in a certain tone that are very suggestive," Tener said. "There are other questions that are leading that allow a child to recognize this person knows something and they need to admit to it."

Tener was the only person to take the stand Tuesday. With the end of her testimony, the state rested its case against Keck.
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A man's liberty is at stake, and I do not see a clear answer to the question posed in the headline of this post. While there are cases galore as to what police are allowed to ask a potential witness in order to get at the truth, the expert's characterization of the question here as just a "leading" question isn't accurate. A leading question is one that contains the answer sought. This questioning went far beyond that. This questioning outright told a boy that the police already knew something that they didn't, suggesting that, therefore, it had to be true, and it encouraged the boy to corroborate it. Would it surprise anyone if a boy felt sufficiently pressured by the ultimate authority figures to lie in the face of such a suggestion? While such questioning might help nab some child molesters, for our money, the price is far too steep -- possibly sacrificing some innocent men, who could be convicted based on such suggestive questioning. Now I realize that the age of the child in question could make a big difference, and I don't know if every 13-year-old is sufficiently mature to withstand such suggestiveness.

Last year in Patrick Kennedy v. Louisiana, 2008 U.S. LEXIS 5262 (June 25, 2008), the U.S. Supreme Court recognized "the problem of unreliable, induced, and even imagined child testimony . . .." Although the case dealt with whether the death penalty is appropriate for child rape cases, the high court's more general discussion of this point is most instructive:

"Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. 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, [*63] Matheson, Montgomery, & Patil, Exonerations in the 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").

"Similar criticisms pertain to other cases involving child witnesses; but child rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed. See Pennsylvania v. Ritchie, 480 U.S. 39, 60, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987). Cf. Goodman, Testifying in Criminal Court, at 118."