Child Suggestibility In False Sexual Abuse Cases

By Edward Nichols, MSW, LCSW-R

             The problem of the suggestibility of young children in sexual abuse allegations has become one of great concern to those defending false allegations of child sexual abuse.  Clearly, when such allegations are false, it is incumbent upon the accused to provide an explanation to the court regard why a child would make such a false allegation and how such an allegation could evolve from a so called “disclosure” to a court proceeding.  We are happy to provide, in the context of the Child Suggestibility Litigation Library, the basic source documents that provide the information, insight, and practice wisdom that allows for the efficient and effective defense of false allegations of child sexual abuse wherein the issues of suggestibility, and thus the tainting of a child’s reports, are an issue.

            The Litigation Library provides a comprehensive exposition of the detailed resource documents in two landmark cases:  State of New Jersey v. Margaret Kelly Michaels and Commonwealth of Pennsylvania v. Gerald John Delbridge.  These two cases, appealed victoriously, provide all of the essential psychosocial concepts, and legal precedents, required to defend cases of false allegations of child sexual abuse, where child suggestibility is an issue.  A brief summary of these cases makes this clear:

            Michaels involved the conviction of day care teacher on 115 counts involving various charges of sexual assault committed on twenty children in her charge at the Wee Day Care Nursery in Maplewood, New Jersey.  On appeal, the court found evidence that the children’s accusations were founded on unreliable perceptions or memories caused by improper investigative procedures and that admission of testimony premised upon those accusations could lead to an unfair trial.  In reaching this conclusion, the court acknowledged the problem of relying on scientific and psychological theories in the context of considering the susceptibility of children to manipulative interrogations.  The court discussed the tension between the accepted legal standard that children as a class are not suspect witnesses, and the commonly held belief that children are peculiarly susceptible to undue influence. The court reviewed the various treatises written and relied upon the scientific and law enforcement communities regarding the susceptibility of children to coercive interview techniques, and reached its conclusion as to the concept of “taint” by judicial recognition:

            “We therefore determine that a sufficient consensus exists within the academic, profession, [sic] and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child’s recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events.” [State of New Jersey v. Margaret Kelly Michaels, 642 A.2d 1372 (N.J. 1994) at 1379]

            In analyzing the concept of taint as it affects the admissibility of proffered testimony, the New Jersey Court looked at its existing caselaw on the issues of suggestive pre-trial identification techniques, and the admissibility of testimony based on hypnotically induced recollections.  As those cases illustrate, evidence may be deemed inadmissible because it was corrupted by the manner in which it was collected.  The New Jersey court therefore concluded that taint was equally capable of corrupting the memory  of a child witness during the investigation of an allegation of sexual abuse.  The court identified various factors for assessing accusation of sexual abuse made by children, however, it cautioned that the list was not exhaustive and that the matter must be analyzied in the totality of the circumstances involve.  The factors identified in Michaels are: [1] the age of the alleged victim: [2] the circumstances of the questioning; [3] the alleged victim’s relationship with the interrogator; and [4] the type of questions asked.

            To assist in the appeal of this case, a Committee of Concerned Social Scientists submitted an Amicus Brief which explicated the state of the science regarding the proper interview of children and how the interviewers in the Michaels case introduced suggestion and tainted the testimony of children.  This document, included in the Litigation Library, has become singularly important to establish a basic understanding of how to defend false allegations of child sexual abuse when improper interview techniques have been employed. 

            Ultimately, the defendant in Michaels prevailed and the New Jersey Supreme Court wrote:          

            “This Court has a responsibility to ensure that evidence admitted at trial is sufficiently reliable so that it may be of use to the finder of fact who will draw the ultimate conclusions of guilt or innocence.  This concern implicates principles of constitutional due process.  Reliability is the linchpin in determining admissibility of evidence under a standard of fairness that is required by the Due Process Clause of the Fourteenth Amendment.  Competent and reliable evidence remains at the foundation of a fair trial, which seeks ultimately to determine the truth about criminal culpability.  If crucial inculpatory evidence is alleged to be derived from unreliable sources, due process interests are at risk.”[State v. Michaels, 642 A.2d at 1380 (internal citations omitted).]

            The Child Suggestibility Litigation Library contains the following resource documents from Michaels:  The Amicus Brief by the Committee of Concerned Social Scientists, the Opinion of the New Jersey Superior Court [1993]; and the Opinion of the New Jersey Supreme Court [Decided June 23, 1993].

Next we turn to Delbridge, a case that changed the law in the state of Pennsylvania, and a case in which I consulted regarding the salient psychosocial issues.  This case involved two young children wherein it appeared that false allegations of child sexual abuse were made based upon taint as a result of suggestive interviewing.  The problem was that this was a case of first impression with no precedent under Pennsylvania law to conduct a so-called “taint hearing” where the court probes into the interview process to determine if suggestive interviews may have tainted the testimony of the complaining witnesses.  Ultimately, the Pennsylvania Supreme Court changed the law in Delbridge  and ordered a taint hearing. 

The most interesting part of the study of Delbridge is that originally, when the case was appealed to Superior Court, the court agreed with the trial court.  When the case was further appealed to Supreme Court, the defendant’s position prevailed.  This case provides an opportunity to see how the principles first identified in Michaels can be misapplied or successfully applied. In asserting that a child has been subjected to a suggestive interview process that has tainted a child memory – thus rendering inadmissible – the litigator must be mindful of the finer nuances of both the legal and psychosocial points that must be asserted, established and successfully argued.  The Child Suggestibility Litigation Library contains the following resource documents from Delbridge:   The Brief Of Appellant before the PA Superior Court [filed April 10, 2000]; The Opinion of the PA Superior Court [March 2001]; The Brief Of Appellant to the PA Supreme Court [Includes Exhibits], The Opinion of the PA Supreme Court.

In a professional career spanning over 25 years, it has been a rare occasion to be as pleased about a project as I am with my participation in bringing the Child Suggestibility Litigation Library to those who advocating for those falsely accused.  I believe that these materials will not only assist those who may have been falsely convicted, but perhaps more importantly, prevent false conviction where child suggestibility is a crucial issue.