What Is A ‘Forensic Interview’ And How Does It Affect A Child Sex Abuse Case?

In virtually all jurisdictions, any time a child makes an accusation of sexual abuse, that child will participate in a ‘Forensic Interview.’  This interview is conducted by a person who has completed specialized training in child interview techniques – often a staff member of the local Children’s Advocacy Center or a member of local law enforcement.  The purpose of the forensic interview protocol is to create an environment where the child is required to describe what, if anything, happened to them in their own words.  To accomplish this goal, forensic interviewers are trained to avoid the use of leading or suggestive questions and instead to rely on open-ended questions to test the child’s free recall.

Why Have A Special Interview Protocol For Children?

In 1983, the mother of a child enrolled at the McMartin Pre-School in Manhattan Beach, California, reported to law enforcement that her son had been sodomized by one of the teachers at the school.  During the investigation, local law enforcement sent a form letter to over 200 parents of children enrolled in the school advising them of the allegation.  

The letter stated: “possible criminal acts include: oral sex, fondling of genitals, buttock or chest area, and sodomy, possibly committed under the pretense of ‘taking the child’s temperature.’”  The letter also cautioned parents that “photos may have been taken of children without their clothing” and encouraged parents to discuss the allegations with their children and report any corroborative information to law enforcement.  The letter prompted literally hundreds of reports from children who had ‘confirmed’ the suspected sexual abuse when questioned by their parents. 

After 2 trials, the owners of the school were unanimously acquitted on 52 of the 65 counts of child abuse.  The remaining 13 counts were dismissed after re-trial when both juries were unable to reach unanimous verdicts on those remaining counts.

What Caused All These False Allegations Of Child Sexual Abuse?

In 2005, one of the McMartin students – then an adult – recanted all allegations of abuse and explained why he made the false accusations in the first place:

“Never did anyone do anything to me, and I never saw them doing anything. I said a lot of things that didn’t happen. I lied. … Anytime I would give them an answer that they didn’t like, they would ask again and encourage me to give them the answer they were looking for. … I felt uncomfortable and a little ashamed that I was being dishonest. But at the same time, being the type of person I was, whatever my parents wanted me to do, I would do.”

The Need For A Standardized Child Interview Protocol

The McMartin Pre-School Trial taught the public and criminal justice system 2 things: 

1. Children are far more susceptible to suggestive questioning than adults, and 
2. The legal system needed a standardized method of interviewing children designed to avoid leading and suggestive questions.  

Forensic Interview Protocols

The fallout from the McMartin Pre-School trial prompted the establishment of Children’s Advocacy Centers (CACs), which highlighted the need for specialized interview training.  This resulted in the development of early child interview protocols like “Finding Words”, which is now called “ChildFirst.”  During the 1990s, the National Institute for Child Health and Human Development (NICHD) initiated its own research-based interview protocol.

In 2015, the U.S. Department of Justice / Office of Juvenile Justice and Delinquency Prevention (OJJDP) created a distillation of the most important principles common to both ChildFirst and NICHD.  The Department of Justice outlined these principles in its published guide ‘Child Forensic Interviewing: Best Practices.’  This guide – and the research articles listed in its appendix – are ‘required reading’ for Child Forensic Interviewers:

“In 2010, representatives of several major forensic interview training programs—the American Professional Society on the Abuse of Children, the CornerHouse Interagency Child Abuse Evaluation and Training Center, the Gundersen National Child Protection Training Center, the National Children’s Advocacy Center, and the National Institute of Child Health and Human Development— gathered to review their programs’ differences and similarities. The resulting discussions led to this bulletin, which consolidates current knowledge on the generally accepted best practices of those conducting forensic interviews of children in cases of alleged abuse or exposure to violence.”

Can You Successfully Defend A Child Sex Case

Where The Child Participated In A Forensic Interview?

The short answer is ‘Yes’, you absolutely CAN successfully defend a child sex case – even a case where the child participated in a forensic interview.  Despite the apparent ‘simplicity’ in the notion that adults should not ask leading questions of children when asking about suspected abuse, maintaining the use of exclusively open-ended questions throughout a child interview is difficult.  Children may be reluctant to spontaneously offer details and explanations the way that adults do.  And interviewers often resort to incremental degrees of ‘suggestion’ to fill the awkward silence and keep the interview moving when a child becomes less talkative.

Identifying the precise questions where an interviewer begins to lead the child – along with the answers that the leading questions produced – is frequently the most effective way for a child sex crimes defense lawyer to challenge the credibility of a Child Forensic Interview.  For example, asking a child, “Has your mom’s boyfriend touched a private part of your body?” is an improper and leading question.  The question suggests that something bad has happened – touching a private part of the child’s body – and also suggests the identity of the bad actor – mom’s boyfriend.

In contrast, asking a child, “Has anything happened that made you feel uncomfortable?” is a non-leading, open-ended question.  It requires the child to state, in his or her own words, if anything HAS happened that caused the child to feel uncomfortable.  The question does not suggest that anything has happened that should cause the child to feel uncomfortable, and further does not suggest who was – or was not – present when the uncomfortable activity occurred.

What If The Child Forensic Interviewer Followed The Protocol Correctly?

Even in cases where the Child Forensic Interviewer followed the interview protocol correctly, successful defense is possible.  One of the primary tenets of all Child Forensic Interview Protocols is to limit the number of interviews.  On page one of the Child Interview: Best Practice Guide, it says: “The literature clearly demonstrates the dangers of multiple interviewers repeatedly questioning a child or conducting duplicative interviews.” (Ceci and Bruck, 1995; Fivush, Peterson, and Schwarzmueller, 2002; Malloy and Quas, 2009; Poole and Lamb, 1998; Poole and Lindsay, 2002).  Additionally, peer-reviewed and published studies have documented that “as time passes, … opportunities for contamination, whether intentional or accidental, increase.” (Johnson, 2009).

Imagine a case where a child has made an allegation of abuse to a friend at school.  That friend tells the teacher, who questions the child about the allegation.  That teacher notifies the school counsellor or school resource officer, who also asks the child about the allegation.  The school tells the child’s parents, who also ask the child what happened.  Local law enforcement is contacted, and a detective conducts a ‘minimal facts’ interview of the child before referring the child for a formal interview with the Child Forensic Interviewer at the local Child Advocacy Center.  

By the time that child participates in the Forensic Interview at the Child Advocacy Center, the child has likely recited the allegations to as many as 6 different persons: a friend, a teacher, a school counsellor, a school resource officer, a parent, and the assigned detective.  And very likely NONE of these individuals have completed Child Forensic Interview training.  Moreover, each of these individuals is likely to ask the very type of leading and suggestive questions that a Child Forensic Interviewer has been trained NOT to ask: ‘Did mom’s boyfriend touch your privates?’  ‘Did your mom’s boyfriend ask you to touch his privates?’  

In many investigations, thorough child sex abuse defense preparation can demonstrate that the child’s accusations have been tainted before the child ever arrived at the Children’s Advocacy Center for the Forensic Interview.

Protect Yourself.  Seek The Representation Of Experienced Criminal Defense Counsel

Accusations of child sexual assault are among the most serious of all criminal charges.  In most states, a defendant faces a longer sentence for conviction of a sex offense involving a minor than for conviction of involuntary manslaughter or even second-degree murder.

Not all lawyers are equally capable of providing the level of defense these extremely serious and complicated cases demand.  If you or a loved one is facing false accusations of sexual offenses involving a minor, contact an experienced child sexual abuse criminal defense attorney with a proven track record of winning these difficult cases at jury trial.