Episode 35: Sweet Child Of Mine
Jessa: I’m Jessa Nicholson Goetz.
Nick: Hello. I’m Nick Gansner.
Jessa: And this is Getting Off. This is our Wednesday quickie. We have finished up our last deep dive and sort of, the two cases that dealt with statements or confessions by defendants. And we’re going to shift in to talk a little bit, this is a more policy based episode today about statements of other people, specifically, what we’re gonna talk about is how people interview kids and whether or not kids can be suggestible or influenced to say things that aren’t necessarily accurate. If kids are more accurate reporters, then the rest of us adults and some of the problems that come with relying on children as reporters regarding serious criminal activity. And our next case, which we’ll dive into on Sunday is going to talk about child statements in the context of sexual assault and torture investigations. So that’s what we’re doing today. Gansner’s nodding at me.
Nick: I am nodding. That’s the idea.
Jessa: So first of all, let’s start with the way that things go in Wisconsin. Here, and in almost every other state, there is a somewhat standardized protocol for interviewing children. And that comes with a lot of different names. One very common phrase is the Step-Wise Protocol. Here we use something called Cognitive Graphic Interviewing, which is basically Step-Wise with drawings.
Nick: Yeah, I think there’s even a more recent slightly differentiated phrase. But right. It’s the same idea.
Jessa: So the idea is, children, generally, particularly children under the age of about eight, have been demonstrated to be very suggestible in terms of leading questions or questions that provide information, questions that seem to affirm that the asker wants one answer over another. And so, there’s been a movement in probably, I don’t know. The past 30 or 40 years. That probably started to standardize the way that we talk to kids.
Nick: Right. And the purpose of all of this, this effort that has led to the development of things like Step-Wise Protocol or Cognitive Graphic Interviewing or there are different phrases for. All of that has a totally noble intention which is to make the interviews of children more reliable. That’s the goal. The goal, at least in theory, is to have these interviews be conducted in a way where the adult leading the interview isn’t intentionally or unintentionally guiding the outcome of the interview. That, at least, is the theory.
Jessa: Right. There are some special things that, and I’m not using special in our sarcastic way. There are legitimately some special concerns about interviewing children because all of our development psych research, well. Almost all of it tells us that young children have difficulty doing things like identifying times. So it’s hard for kids to be able to say, if you ask a kid when did this happen, if you ask a 4 year old “When did this happen?”, they have difficulty because they don’t really think about hours and minutes and years.
Nick: Or months or weeks.
Jessa: And so one of the really common techniques that you see in terms of trying to put a date on things is the use of anchor events. “Was this before or after your birthday?” “What is cold outside or was it warm outside?”
Nick: “Before or after Christmas?” “Was there snow on the ground?” “Was it before Halloween or after Halloween?” Stuff like that.
Jessa: The reason that we have to ask children for specific dates and times is, of course, if you are accused of committing a crime against a child, you need to be able to defend yourself against that crime. And to be able to put on a defence, you need to know when and where this thing supposedly happened. And one of the problems with crimes against children, particularly child sexual abuse and that’s what we’re talking about right now, is that kids as a general rule are just as likely to never say anything as they are to disclose ongoing abuse. And the literature really, you can have some quibbles with the literature. Like, some say 25% of kids won’t disclose until adulthood or won’t disclose at all. Some pieces of research I’ve seen have put that number closer to 50%. I’ve heard experts testify that it can be as high as 75% of kids delay in reporting. And that presents a real practical problem when it comes to prosecuting and defending these cases with delayed reporting. Because if there’s a delay in reporting, all of the things that one might want to collect as evidence are potentially no longer available. So if I were a child or anyone were to go and say “When I was 7, this happened to me.” There’s no hope of getting DNA evidence from adult Jessa to corroborate that.
Nick: It’s not possible for there to be additional corroborating physical evidence. It’s too late. It’s not possible.
Jessa: We can’t do a medical examination and locate bruising or damage that would be consistent with sexual abuse if there’s a delay in reporting. If we don’t know to be investigating alibis on the defence side. People typically don’t remember where they were 3 years and 10 days ago. I don’t. I could look at my calendar.
Nick: You were mentioning nailing down when things happened a few minutes ago. And one challenge with defending people with that is if you’re alleged to have done something on a particular day in time, maybe you can go back and alibi yourself. You can say “Okay. I can go back through my records and know that I was living here or working there” etc etc. But if you’re accused of having done something in the span of a year or two years, it’s not really possible to alibi yourself for every moment of every day for a year or two years.
Jessa: So the challenge becomes getting accurate information from these little people who don’t necessarily think about time in a linear fashion. Who, for any variety of reasons, may be predisposed to not report abuse that is happening against them. And efforts by our justice system to hold the people are alleged to have perpetrated that abuse responsible while at the same time doing something to protect the presumption of innocence.
Nick: Yeah. Right, which is one way of looking at it: protecting the presumption of innocence. On the other hand, another way of looking at it is: does everyone in every community want to protect children? Of course. Does everyone everywhere want child sexual assault not to happen? Of course. Do we also want to not convict people who may not have done it? Or to avoid convicting people on unreliable information? I think we all want that, too. We should all want that. That’s the balance. That’s the challenge.
Jessa: So why are these protocols in place? Well, number one: it’s important that any interview with a child be both video and audio recorded. Because children take cues not just from the words that adults say but adults’ body language. Adults do that, too. We all take cues on body language. But it’s important to preserve what the body language of the interviewer is so that you can see if they were giving subtle clues. Crossing their arms or looking away when a child denies a disclosure.
Nick: Right. There’s literature that suggests that not only the verbal manner in which children are interviewed, meaning leading questions as opposed to open ended questions, and even more specific forms of, specific types of questioning. But also, tone of voice, body language, all of these things can influence a child’s sense of what the interviewer wants them to say.
Jessa: Another thing that interviewers are trained to do is to establish a rapport with the child so that they feel comfortable speaking because one of the major concerns is that kids oftentimes won’t disclose. They want to create an environment that is comfortable and safe for the child to speak in. And here, at least, that means having, we have a special place in Dane County called the Safe Harbor Center where they’ve got rooms set up with all sorts of toys and things to draw with and comfortable chairs.
Nick: Right. Child friendly places and the idea behind these places which are generally referred to as child advocacy centers, and in every different community, they’ll have a different specific name. Here it’s called Safe Harbor. But all these places are child advocacy centers and the purpose is to create this place where children hopefully feel safe and comfortable in answering questions. And the real purpose of these centers is for the purpose of forensic interviews with children. That’s what they’re for.
Jessa: Right. So another thing that they try and do depending on the age and the developmental status of the child is they try and establish whether or not the child knows the difference between right and wrong. So a lot of times, you’ll see an interviewer give the following example, which is.. Nick. If I’m the interviewer and you’re the child, and I were to tell you that you were wearing a blue shirt today, would that be the truth or would that be a lie?
Nick: That would be the truth.
Jessa: The problem with this is that it doesn’t distinguish between a lie and a mistake. It purports some type of motive that I would suggest can be problematic because there are differences between mistakes and lies. But that’s sort of the nature of that. If the child is old enough, they’ll take an oath and promise to tell the truth. If the child is not developmentally to the point where an oath would have meaning for them, then it’ll be kind of a conversation about “Can you make me a promise?” or “Will you do your best to try and only say things that are real and true?” The next step in a properly executed child interview is to see if children understand that there are consequences for behavior. So a lot of times, that’ll look something like: “Hey Nick. If I broke your pencil, and then the teacher asked me what happened and I said you broke your own pencil, what might happen to me?”
Nick: “Well. I might get in trouble. The police will get involved. I might go to jail”, etc etc.
Jessa: “I could get grounded. I could get a time out.” Any number of these answers.
Nick: Sometimes they’ll ask kids “So if you were at school and you told a lie to a teacher, what might happen?”
Jessa: So they’ll kind of flesh out, and another basic tenet of these specialized interviews is that you’re only supposed to ask really open ended questions. So you’re not supposed to ask leading questions, which probably most of you know what a leading question is. But it’s a question that implies the answer.
Nick: Or. Yeah. In the most obvious form, it’s “Jessa. You’re wearing a black sweater today, aren’t you?”
Jessa: I am. Verus “What are you wearing today?” would be an open ended question and would allow me to answer in a free flowing way.
Nick: Right. And a more ambiguous question would be “Jessa. Are you wearing a black sweater today?”
Jessa: That is a slightly less leading form.
Nick: There’s an element of leading to it.
Jessa: Another basic tenet of child interviewing is you’re supposed to use the language that kids use. So you’re typically not talking to a 5 year old about penises and vaginas, for example. You typically let the child or people are trained to let the child use their own language to describe their body parts. So when they talk to a child about body parts, it'll be like “What do you call this?” “What’s this?” “Where is this?” And kids will say “Oh. My butt. My whatever. My arms. My chest. My tummy.” And then the interviewers are trained to repeat that specific language so as to not put words in their mouth.
Nick: To not use adult language, but kid language.
Jessa: Right. Another thing that people need to be really cognizant of are sorts of questions that give new information. So you can’t say, an improper question would be like “Okay. Well. After he touched you, what happened then?” If the child hasn’t already said “Oh. He touched me” because you don’t want to suggest information that a kid could grab onto and then believe to be real. And so watching for new information that is introduced by the interviewer is an important aspect of checking to make sure that this is a properly done interview. Other things that people look at are, is the child able to correct the interviewer when they make a wrong statement? So if the interviewer was asking “Who do you live with?” and the child were to say “My parents and my dog, Susie”, and the interviewer said “Okay. So you live with your brother, Joe.” If the child affirmatively corrects and says “No. I don’t have a brother”, that tends to demonstrate more reliability than if the child says “Yep. I live with Joe.” These are some of the principles. There are other things, you can get really in the weeds with this in terms of sometimes, you can have source misattribution, meaning that a child might, you have to be careful not to introduce, like “Your sister said that this happened” because that reinforces to the child that they should say the same thing that the older child said. Different forms of bias that come if you’ve got an interviewer who has a horse in the race. So if the interviewer is, say, a parent going through a custody battle who really wants to hear that the other parent has hurt the child, that body language and that sort of interrogation can influence that child’s statement.
Nick: Right. And a couple things there. That, the research suggests that when there are false accusations of a sexual assault against a child, when they occur, they most commonly occur in the context of some kind of family dispute. And my understanding of that research is that most commonly there, it is influenced by a parent, who oftentimes is actually well intentioned. They think, they’re in this hyper vigilant mode, they’re in this highly contentious litigation over custody and placement. And so they’re probably driven to look for bad stuff from the other parent. But there’s also an element of “I’m trying to protect my child.”
Jessa: “I know something happened. They’re acting weird. Their behaviour’s all off. I need to find out what’s going on.”
Nick: But then the questions that come out in situations like that are highly leading, highly pushy, and kids are picking up on what the parents want. The research suggests the most common context in which bogus allegations are raised. But another thing you brought up. You talked about source misattribution and that goes to one of the reasons we’ve developed, in many communities, child advocacy centers, places where kids can be forensically interviewed. Part of that is an effort to minimize the number of times kids have to talk about whatever the allegation may be.
Jessa: And we do that for several reasons, right?
Nick: Go for it.
Jessa: So one reason, it can be traumatic. I’m having difficulty speaking today.
Nick: Traumatic. Traumautic.
Jessa: Traumatic. Traumautic.
Nick: Tomato. Tomahto.
Jessa: Potato. Potahto. It can be traumatic for a kid to have to relive events that are harmful to them over and over and over again. So one reason is to try to minimize the amount of times that a kid has to tell a trauma narrative.
Jessa: Another reason we do that is because there is a substantial risk of tainting a child interview every time you do one. Because children are easily influenced, and that’s not two defence attorneys just saying that, though we are. That’s a lot of social science research that supports that, particularly young kids. Although, there’s significant social science research that suggests we’re all pretty suggestible people at the end of the day. Adults or children.
Nick: The research that I have familiarized myself with suggests that kids are, in fact, more suggestible than adults, up to a certain age. And I think there’s a little bit of discrepancy of where that age is, but it’s somewhere in the, sort of, 10-14.
Jessa: Different studies will go as low as 7 or 8, being the age of reason, quote-unquote, up until about..
Nick: 12. So up until a certain point, kids are probably more influenceable than adults and then at a certain point in childhood, you hit a point where you’re about as susceptible to influence as actual adults. But, which is not to say that adults are not at all influenceable. They clearly are. Look at false confession cases. But that kids are especially susceptible to influence prior to a certain age.
Jessa: So the idea is, there’s a lot of research that shows once a child’s interview has been tainted, it’s very difficult to get an interview that is free of taint. So if an interview is done incorrectly and information is suggested to the child that they pick up on, or they’re asked leading questions and then they come to believe that those leading questions, you know, are reflective of events that actually happened, that once that bell has sort of been rung and this child has given a tainted statement, there’s no way to undo that harm. Do you think that’s a fair statement?
Nick: Yeah. And another part of that is, part of the reason. That is absolutely one reason it is so important to do the interview correctly. Tied to that is one of the reasons that it’s so important to interview as infrequently, keep that number down, is that it’s also possible in some cases that kids have picked up on beliefs of others, even prior to the interview process starting. And so again, some of that’s unavoidable, at least by law enforcement and our community systems that we have in place to deal with these situations. If there’s gossip going on within the family, if mom or dad is talking about what they think Uncle Joey did or what have you, there’s no way for law enforcement to go back in time and undo that. But it’s important to make the best efforts to not contribute to that anymore than is necessary.
Jessa: These are really scary cases any way you cut it. When you talk about child sexual abuse, obviously, there is very little that somebody can think about that is more devastating than the abuse or sexual harm of a child. Any crimes against children, I would suggest are particularly painful, particularly sensitive things to have to address.
Nick: I think we, as a country, we, as individuals, have all agreed upon that.
Jessa: They’re also very scary cases because they’re very easy cases to be convicted of with no corroborating physical evidence. That’s because, and this is defence attorney bias, but that’s because I don’t think I’ve ever tried one of these, and I’ve tried dozens and dozens of these. This is what Nick and I do. I don’t think I’ve ever tried one where I haven’t heard a prosecutor completely shift the burden of proof to the defence and say “Why would this kid this up?” That is a question that is asked in courtrooms all across America, every day.
Nick: I think you’re gonna need to spend a few minutes talking about burden shifting, and what that means. Cause i actually think that’s a pretty complicated concept. I think it would be a very good idea to be extremely clear in what we mean when we say that.
Jessa: Okay. As everybody knows, the state has the burden of proving somebody guilty beyond a reasonable doubt in the United States when there’s a criminal charge. And there are rules about the fact that burden does lie solely with the state. And the state gets some benefits for that. They usually get to talk last because they have the burden of proof. And they get the first strikes on jurors. At least, in Wisconsin. They get some benefits for that, but they also, obviously, bear that burden.
Nick: It’s called a burden for a reason. They have to carry it.
Jessa: They have to get over the goal line. We all start with the presumption of innocence. We start and the evidence goes in and the state has to try to put evidence in that overwhelms that presumption and proves the person guilty. It is not permissible, at least it’s not supposed to be permissible, to blame the defence for failing to prove innocence. And that’s one of the oldest traditions of our legal time. God, my words are not great today, you guys. It’s been a long day. I’m sorry. And Gansner’s sick. They can’t all be winners. I can’t always bring my A-game. I’ve totally lost it now. The reason that we do that is because it’s almost impossible to prove your innocence. Because innocent people are actually really at a disadvantage because they don’t know what the hell happened.
Nick: Well. And if you are, in fact, innocent of something, how do you prove a negative? How do you prove the absence of something?
Jessa: You can get up and testify to that, but that’s just you saying so. On the one hand, you’ve got this adorable 5 year old holding a teddy bear with pigtails, talking about horrific shit.
Nick: Like, the worst stuff sometimes.
Jessa: Yeah. Some of the worst stuff. And on the other hand, you have some schmuck who’s like, “I don’t know. I didn’t do it.”
Nick: And that’s it sometimes.
Jessa: It’s it a lot of times.
Nick: Sometimes these cases get gussied up with experts with all sorts of expert testimony, but when you distill it down to the actual evidence about what did or didn’t happen, it’s oftentimes, I mean. Sometimes it’s not even the defendant’s word. Most often, it is. In cases of this sort, it becomes probably more likely that the defendant would testify. But in terms of affirmative evidence, it is the word of a child. And I don’t mean to either endorse that or belittle that by saying that. I am just stating that as a plain fact, that what the affirmative evidence comes down to in these cases..
Jessa: Are these statements.
Nick: No more and no less than the statement of a child saying something happened.
Jessa: I think what we would suggest is, as defence attorneys, we think that it’s very dangerous thinking to start to say, “Well why would this child make this up?” when really, the question should be “Is this statement reliable?” Can we count on what’s being said here? Has the statement been properly taken? Has this child been subjected to repeated interviews or coercive interviews or coaching by a parent or some other adult? Is there other stuff that’s going on here?
Nick: And that’s just with the interview process itself. There is oftentimes in these cases a really great effort made to see if you can corroborate any other details from the child’s account. Was so and so in fact living in such and such a location at the time? Any kind of details that might exist in the statement, can we corroborate any of that? Cause that can help bolster or not such a statement. That’s what juries have to go on in these cases. And that’s hard for them. It’s a hard duty for a jury, I think, in that situation. I also think it’s really hard for the other people involved in the case. I think it’s terrifying to think about, well, if this is enough to convict a person, and it often is, how do we ever know if we’re wrong? Is it possible to ever know we’re wrong? The jury’s going to make a decision, yay or nay, based largely, if not solely, on the testimony of a young person? Sometimes, they’re older by the time a disclosure is made. Sometimes not. But if a person is convicted and they commonly are, in large part and perhaps solely on the basis of the testimony of a child, how do we know if we’re right? Is it ever possible if we weren’t right?
Jessa: And sometimes it is because sometimes we learn that later.
Jessa: But oftentimes, that’s case closed. And there are people sitting in prisons all over this country who there was not a shred of medical or physical evidence introduced beyond a statement that was recorded from a young person. And they’ll be there for decades. And that’s something, even just being accused of sexually assaulting a child carries with it such a stigma that it’s difficult, I mean. God. How many people have you known who weren’t even charged? We get a phone call because they’re being investigated and they end up moving away because they just can’t deal with the way that people look at them because of the rumor mill. Those are people that aren’t, they don’t stand trial. They’re not acquitted. They’re not even charged. They’ve never been arrested.
Nick: But people around them, people in their community, people in their neighbourhoods, people on their block become aware of it. And all of it, there’s such a massive stigma, for very good reason. I think we all understand that.
Jessa: Well. Yeah. Okay. I don’t mean to be, like “Yay. Child rape. It’s no big deal”. I mean, it’s clearly a big deal.
Nick: Right. It’s like, the biggest deal. If a person could do that to a child, for god’s sake. But even the accusation alone is life altering. Even if the accusation doesn’t reach the point of an actual criminal charge. The stakes are enormous.
Jessa: They’re very high. Lifetime sex offender registry. Many of the times, lengthy prison sentences. There are even things called “civil commitments” for sexually violent persons which, after you serve a prison sentence, you can actually be legally and lawfully committed civilly for more or less an indefinite period of time.
Nick: Yeah, let’s take that apart a little bit. So what happens in situations like that, and now. You have to be at a pretty high level of offending to qualify for this kind of thing. But the idea is that you would convicted of some kind of sex offence. You would be convicted. You would be sentenced. You would serve that sentence. And as you approached the end of that sentence, the government, in most states, can petition the court to continue to hold you in custody. And because you are a sexually violent person, and you can be held indefinitely until it can be demonstrated that you are no longer a sexually violent person. They call that a quote-unquote “civil commitment” and people in those situations are held in what are referred to as medical facilities or hospitals, but they sure don’t look like any hospital you or I have ever been to. They look like prisons. They’re behind fences and razor wire. And this is after a person has finished serving the sentence that a judge imposed for whatever crime they committed against society and the victim.
Jessa: And that’s a special class of things. We don’t do that to any other type of offender. We only do that to sex offenders.
Nick: We don’t do it to violent people like murderers.
Jessa: No. We don’t do that to repeat property crimes. Law & Order: Property Crimes Unit, not a thing as we have discussed. And so, this is a very high stakes situation with very real damage done to all sides. Because on the flip side of that, parents of children who are making accusations want to support their child and want their child to feel believed and I can think we can all understand why someone wants that. I think that’s important. And so, there’s a lot of tension there because some of the things we know about kids make them not particularly linear reporters. And the law kind of functions in a linear way. You hear us talk about the tightness of a timeline all the time. Child sexual assault cases typically turn that notion on its head because there is no meaningful timeline. Very rarely. And so we are left as practitioners of law and as jurors and as judges and as social workers and police officers to try and balance these two pretty seriously competing and often contradictory goals. And that’s gone terribly wrong, historically, in the law.
Nick: At times.
Jessa: Yes. And the case that now, spoiler alert. We’re getting to the end. The case that we’re gonna do this weekend is to talk about the McMartin Preschool trial. And we’re gonna talk in detail about statements and how they can be influenced and how that can wreak havoc on children and families and, in fact, entire communities. So on that happy note, we hope you will join. Please continue to rate us and follow us on Apple Podcasts, on the Instagram, the Facebook. Join our Facebook group. The twitter account has been really active lately. There’s this one woman named Kate who’s cracking me up because she keeps quoting us and she’s picking us at our most ridiculous. Like, the one that she ran most recently was “Unless you are literally somebody’s daddy, no one should be calling you daddy.”
Nick: That’s true.
Jessa: I know. I think you said that. But it made me laugh to see.
Nick: That would be one thing I said recently that I’m actually okay with.
Jessa: You’re not okay with yadda yadda’ing slavery?
Nick: Well, alright. That’s been weighing on me. I feel really bad about that. What I was trying, I should have said, “etc etc” instead of “yadda yadda yadda” cause that sounds super flip and that is not at all what I intended. What I was trying to do was avoid going through the entire litany of racial abuse and horrific racial history throughout the hundreds of years of this country’s history. So I was attempting to get through that, I thought it was pretty clear that everyone would know what I meant. What I was referencing there. And so I sort of sped through that. And instead of saying simply “Etc etc etc”. I don’t know if that would have been the best way to say it. It would have been a better way to say it.
Jessa: I loved it just the way it was.
Nick: I feel about that.
Jessa: You shouldn’t feel bad about that.
Nick: Well, I do.
Jessa: I don’t think anyone heard that and was, like “Oh. I bet they’re burning crosses at Nicholson, Gansner, & Otis”.
Jessa: I really don’t. I think everybody understood..
Nick: Well, thank you for saying that.
Jessa: Yeah. I really do. And our email responses indicated that. Facebook thought it was funny. So you’re okay. And I say all sorts of dumb shit, specifically, apparently I have spent my entire adult life misunderstanding what the word “erstwhile” means.
Nick: Yeah. That’s kind of a fun one.
Jessa: Well, yeah. And I do think that’s regional. I think a lot of Midwesterners use erstwhile to mean meanwhile. But I’m gonna work on it.
Nick: I think you’re fine.
Jessa: So anyway. This is Jessa and Nick. We are self conscious about our speaking. We are apologetic about what idiots we are from time to time. We are very interested in coming back on Sunday when Nick doesn’t feel like dog shit.
Nick: Fingers crossed.
Jessa: And I can speak words in a sentence that sounds like words are supposed to sound like. I’ve been talking all day today. Sometimes, at the end of the day, you get, like, the marble mouth. When I have to talk too much, that’s how I get. So we’ll be back Sunday to talk about the McMartin Preschool abuse case and dive into what is sort of the dark world in which Nick and I most commonly occupy. The world of allegations of child sexual abuse. So thanks for listening. This is Jessa.
Nick: This is Nick.
Jessa: And this was our Getting Off quickie.