Drawing examples from a single case, Alex A. First, prosecutors tend to question children in ways that undermine their productivity and credibility.
A post-script to the Alex A. We wish to pursue a similarly modest claim: As a result, trial verdicts may be only weakly diagnostic of the truth. Acquittals are largely invisible. Although criminal trials are public, the vast majority of cases receive no public notice and are particularly invisible when an acquittal occurs. Acquittals are in general immune from appeal, because rules against double jeopardy prevent the state from trying the defen- dant again. Transcripts of acquittals are difficult to obtain, because court reporters are not required to turn their notes into a transcript unless there is an appeal.
Difficult but not impossible, as we found when we set out to examine what actually happens in child sexual abuse prosecutions. We systematically assessed sexual abuse trials that took place in Los Angeles County from to in a series of papers, some of which we cite here.
Indeed, we will focus most of our attention on a single case, Alex A. The child witnesses were asked closed-ended questions that did not encourage elaboration, rendering their reports less detailed, and probably less credible. Their behavior with respect to Alex A. They provided inconsistent and often implausible details with respect to when and how many times the abuse allegedly occurred.
We will discuss these difficulties, and note how they are representative of problems in pros- ecuting sexual abuse more generally.
After all, if one can obtain convictions in cases in which young children make bizarre claims, then surely mundane allegations of abuse by older children pose little problem. However, the difficulties that Cheit discusses apply to cases more gener- ally. Cheit also discussed how children are often too intimidated or too young to testify, how prior sexual abuse by defendants is often kept from the jury, how hearsay from child witnesses is often excluded, and how many states do not allow convictions to be based on a confession.
One might think that accommodations for child witnesses such as remote testimony via closed-circuit television overcome the difficulties children face in the courtroom. We believe that Cheit could have painted an even darker picture of the difficulties of prosecuting child sexual abuse.
Cheit discussed a number of ways in which the states have loosened the requirements for prosecuting sex- ual abuse to facilitate prosecution. For example, he described the elimination of corroboration requirements, the liberalization of competency rules, and relaxation of rules regarding the date at which abuse occurred.
Yet both prac- tical concerns and legal requirements limit the effects of these legal reforms. Although children generally no longer have to demonstrate their basic competency which assesses their ability to relate experiences that they remember , their truth—lie competency is still an issue in most cases Lyon, They are expected to correctly answer questions about the difference between the truth and lies and the importance of telling the truth.
Acquittal We will illustrate the difficulties of prosecution and the likelihood of wrongful acquittals through a case study California v. The alleged victims were two girls, both 9 years old at the time molestation was alleged to have occurred. Both girls testified that the defendant molested them while he was baby- sitting. In early , Alex A. Family members of the victims had claimed to find child pornography in a room where Alex A. The primary witnesses in the case, however, were the children.
Catherine was living with her father and her brothers at the time of the alleged molestation, and she would visit her mother on weekends.
She Lyon et al. The alleged acts included oral sex, both fellatio and cunnilingus, digital penetration of her vagina, penetration of her vagina with an object, and penile penetration, apparently of her labia. The object Catherine described was a small piece of rubber intravenous tubing that she testified Alex A.
Alexis testified to less invasive molestation limited to fondling of her chest and vaginal area. Both girls testified that at least on one occasion Alex A. Catherine did not tell anyone about the abuse until December of Alexis had not disclosed any abuse at that time.
There was no medical evidence of abuse. A search for other forensic evidence would be futile; Alex A. The defense attorney argued that the girls were conspiring with their parents to get the defendant. He noted that they delayed in disclosing the abuse, that had been questioned repeatedly by family members and profes- sionals, and that their stories had changed over time.
Poor Questioning One of the benefits of the high-profile cases discussed by Cheit was that they inspired a generation of research on how child interviewing can be improved. The proto- col includes interview instructions, narrative practice, an open-ended introduction to the abuse allegation, and an emphasis on open-ended ques- tions throughout the interview. In our training, we teach the step inter- view Lyon, , , which is based on the NICHD protocol with some modifications, such as a promise to tell the truth.
Research has found that if children are given the instruc- tions, and given practice in responding when they can and cannot answer a question, then their performance often improves Lyon, Unfortunately, there is little evidence that children are given effective instructions on the stand. In the Alex A. With respect to instructions, however, the court focused on the need to answer questions out loud, consistent with our findings regarding cases in general Ahern et al.
I want you to take your time and listen to the questions carefully. Make sure that you understand the questions before you attempt to answer them. If at any time you do not understand a question, you should not answer it but instead what you should do is ask the men who are asking you the questions for some kind of clarification until you do understand them California v.
Unfortunately, the instruction itself was probably difficult to understand e. Another important phase of the NICHD protocol and the step interview is narrative practice, in which the interviewer asks the child to narrate a non- abusive event utilizing open-ended questions before discussing the allega- tion.
Research has demonstrated that narrative practice increases the amount of information that children questioned about abuse disclose in response to open-ended questions Sternberg et al. This was apparent when the prosecutor began questioning Alexis: What grade are you? Are you on Christmas break right now?
When do you have to go back to school? Are you looking forward to going back? Because I miss going to school. Do you like school? Do you have a class you like the best? The wh- questions were very specific, and answered briefly. We discuss the questions about time more fully below.
The most effective question was the shortest: Even closed-ended questions before engaging the child in a description of abuse may help to put the child at ease. However, other potential benefits are lost.
Rather than teach the child to provide narrative responses, the questions teach the child to let the attorney take the lead. The research shows that this will extend to the abuse narrative. Properly prepared, children disclosing abuse need not be asked leading ques- tions to disclose. You may answer that question. Where did he touch you? In my private area.
Is the private area your groin area right—do you understand? The objection is sustained. What is your private area? The witness is pointing to the area between her legs. Thank you, Your Honor. What would he do? Would he touch you over your clothes or under your clothes? One can see how little Catherine contributed by extracting her words: The limitations of the testimony were not lost on the jurors. The Dynamics of Abuse and Disclosure Child sexual abuse offenders do not typically violently rape children; instead they utilize more seductive methods.
Child sexual abuse commonly begins with gradually progressive touching to desensitize the child to abuse, while showering the child with attention, love, and affection to maintain compli- ance and prevent disclosure Kaufman et al.
Although prosecutors are advised to explain to the jury how offenders accomplish abuse without violence, as well as why children might be moti- vated to delay disclosure Lanning, , research suggests that these are areas where prosecutors struggle. When the dynamics of abuse go unexplained or are unconvincingly explained, jurors may misinterpret the facts of the case.
Examining trial ver- dicts, we found evidence that jury members expect child sexual abuse to be akin to violent rape. Taken together, these findings suggest that prosecutors miss opportunities to explain the dynamics of abuse and disclo- sure when presenting cases of child sexual abuse.
Yet in many ways the facts as revealed by Catherine and Alexis did not support this description of sexual abuse. Catherine and her mother testified how Alex A. Catherine and Alexis described abuse that appeared progressively more serious. Notably, however, the jurors were not told about these other vic- tims. Catherine described how Alex A. When questioning Catherine about her time with Alex, the prosecutor char- acterized her as being under Alex A.
He ignored her descriptions of her feel- ings about the abuse, instead hoping to evoke evidence of active physical resis- tance: How would you react when the defendant would be touching you?