Cornell Law Review, May,
The New Wave in Children's Suggestibility Research: A Critique
Thomas D. Lyon
new wave in children’s suggestibility research consists of a prestigious
group of researchers in developmental psychology who argue that children are
highly vulnerable to suggestive interviewing techniques. Because of its
scientific credentials, its moderate tone, and its impressive body of
research, the new wave presents a serious challenge to those who have claimed
that children are unlikely to allege sexual abuse falsely. Although we can
learn much from the research, concerns over society’s ability to detect abuse
motivate three criticisms. First, the new-wave researchers assume that highly
suggestive interviewing techniques are the norm in abuse investigations,
despite little empirical evidence to support this claim. Second, the research
neglects the characteristics of child sexual abuse that both make false
allegations less likely and increase the need to guard against a failure to
detect abuse when it actually has occurred.
Third, the researchers’ apparent value-free scientific treatment of
the suggestibility issue obscures, rather than avoids, value judgments
regarding the tradeoff between false allegations and false denials of sexual
I. The New Wave’s Critique of Goodman
II. Studies of the New Wave
A. Leichtman and
Ceci’s Sam Stone Study ....
B. Bruck, Ceci, Francoeur, and Barr’s Inoculation Study
C. Ceci, Crotteau Huffman, and Smith’s Mousetrap Study
D. Bruck, Hembrooke, and Ceci’s Monkey-Thief Study
III. The Real World of Sexual Abuse Investigations
A. The Representativeness of Interviews the New Wave
B. Day-Care Cases Versus Typical Abuse Cases
C. Leading Questions in Practice and in Research
D. Leading Questions in Court
IV. The Real World of Sexual Abuse: Motivational
Disincentives to Claiming Abuse
A. Fear and Loyalty .
1. Fear in the Lab .
2. Parents Versus Strangers ...
3. Fears in the Real World .
C. Recall Versus Recognition
V. The Scientific Stance of the New Wave
For most of this century, psychologists and legal commentators have doubted
the reliability of children’s statements, particularly when those statements
involve claims of sexual abuse. Although Sigmund Freud originally believed
his adult patients’ reports of childhood incest, his conviction that “surely
such widespread perversions against children are not very probable” [FN1] led
to his discovery of the oedipal complex, whereby young children generate
incestuous fantasies about their opposite-sex parent. [FN2] Jean Piaget was
not interested in sexual fantasies per se, but believed that the egocentric
young child’s thought was guided by imagination and unconstrained by reality:
“[T]he child’s mind is full of these ‘ludistic’ tendencies up to the age of
7-8, which means that before this age it is extremely difficult for him to
distinguish between fabulation and truth.” [FN3] In his classic treatise on
evidence, John Henry Wigmore surveyed psychiatric evidence asserting that
victims routinely fabricate allegations of sexual abuse and recommended that
psychiatrists examine female complainants in sex-crime cases. [FN4]
*1006 Even critics of the giants of psychology often have assumed that
children are wrong about sexual abuse. These critics merely move the source of
the false allegation from the child to an influential adult. Some researchers
claimed that the incest fantasies Freud uncovered were
the product of his therapeutic method, [FN5] in which he had applied “the
strongest compulsion” to overcome the “greatest reluctance” in patients to
relate such fantasies. [FN6] Others believed the fantasies were attributable
to ambivalent parental affection. [FN7] One could doubt Piaget on
similar grounds. Some criticized Piaget’s early methods of questioning
children as too difficult and too suggestive. [FN8] Skeptics thus charged
that Freud and Piaget had not “discovered” oedipal fantasies and childish
egocentrism, but had invented phenomena that they then implanted in their
subjects’ heads. This view is consistent with 100 years of research and
commentary on children’s suggestibility. The research dates back at least as
far as the turn of the century, when prominent psychologists such as Binet,
Stern, and Varendonck warned courts about the dangers of children’s testimony.
In the 1970s, the women’s movement persuaded researchers to take a new look
at child sexual abuse. [FN10] Feminist writers reminded their readers that
surveys revealed that one-fifth to one-third of adult *1007 women had some
sort of sexual encounter with an adult male during childhood, and
approximately fifteen percent had experienced abuse that involved physical
contact. [FN11] A 1985 survey of a nationally representative sample of adult
women and men found that twenty-seven percent of the women and sixteen
percent of the men reported sexual abuse during childhood, and excluding
noncontact abuse reduced the percentages only slightly. [FN12] These surveys
proved that sexual abuse was more common than many people had imagined.
Spurred by growing awareness, legislators enacted legal reforms in the 1980s
to facilitate the prosecution of child sexual abuse. Many states adopted
special hearsay exceptions for children’s allegations of abuse, and the
courts broadly interpreted existing hearsay exceptions to admit a greater
number of statements. [FN13] States also eliminated presumptions that
children were testimonially incompetent. [FN14] As a result, prosecutors
exhibited greater willingness to pursue child sexual abuse allegations.
In this environment, the suggestibility of children re-emerged as an area of
interest for researchers. Consistent with the new zeitgeist, researchers
emphasized the accuracy of children’s memories, particularly when recalling
abuse. The leading figure in this movement was Gail Goodman, a
Developmental psychologist who was well-versed in laboratory research on
memory development. Goodman challenged the traditional wisdom of
suggestibility research by invoking the concept of ecological (or external)
validity—the extent to which research applies to actual cases. [FN16] In the
vast majority of studies examining children’s suggestibility, researchers
asked children questions about *1008 the peripheral details of trivial
stimuli.[FN17] Demonstrations of suggestibility in these contexts are of
dubious applicability to child abuse investigations because abuse
investigators question children about the central details of their physical
interactions with familiar adults. [FN18]
Goodman’s research agenda entailed a test of children’s suggestibility in
contexts that she believed better approximated abuse investigations. [FN19]
In a series of studies, she found that although there were age differences in
suggestibility, [FN20] children were much less likely to assent falsely to
questions related to physical or sexual abuse. [FN21] Her early research
showed that children as young as four years of age were surprisingly
resistant to suggestive questions implying abusive behavior. Young children
rejected suggestions of abuse close to 100% of the time. [FN22]
Sensitive to issues of ecological validity, Goodman acknowledged that her
research lacked many of the essential details of abuse investigations,
including motivations to lie, suggestions to the child regarding the
character of the accused, and repeated interviewing over a period of time.
[FN23] Nevertheless, popularized summaries of her work often omitted any
discussion of the limitations of her research. [FN24] Commentators often
asserted that young children are no more suggestible *1009 than adults, a
view that dovetailed nicely with an older claim that children do not—in fact
cannot—lie about sexual abuse. [FN25]
The new-found faith in children’s reliability proved to be short-lived. The
first blow came from a spate of highly controversial allegations of abuse in
daycare centers in the 1980s and early 1990s: Country Walk, McMartin, Fells
Acres, Little Rascals, and Kelly Michaels. [FN26] Bizarre
allegations of ritualistic abuse by preschool teachers became so incredible
that they raised serious doubts regarding whether the abuse that the children
reported was even possible, let alone provable beyond a reasonable doubt.
Critics focused attention on highly suggestive and sometimes overtly coercive
interviewing by investigators, *1010 therapists, and parents.[FN28] Doubts
spread to children’s allegations in less sensational cases.[FN29] If adults
could mislead children to believe the unbelievable, then one reasonably could
conclude that adults also could mislead children to believe in sexual abuse
of a more mundane kind.
The scientific community delivered the second blow to a growing faith in
children’s abuse allegations. The daycare cases inspired a “new wave” of
suggestibility research [FN30] that reinforces the conventional wisdom that
children are highly suggestible. The new wave presents formidable
qualifications. Stephen J. Ceci and his colleagues have performed the most
visible research. [FN31] Ceci is a professor of psychology at Cornell
University, is a well-respected researcher in memory development and
intelligence, and is the author of over 150 articles, chapters, and
books.[FN32] Maggie Bruck, a frequent collaborator of Ceci, is a professor of
psychology at McGill University and has an extremely impressive research background
in learning disabilities. Michelle Leichtman, a former student of Ceci and
the first author of perhaps the best known of the new wave’s studies, is now
an assistant professor of psychology at Harvard University. Ceci and Bruck
co-authored a comprehensive review of the past 100 years of research on
children’s suggestibility, which received the Society for the Psychological
Study of Social Issues’ award for the best article of the year on child abuse
and received acclaim as “’an excellent example of how rigorous research can
inform important social problems.”’ [FN33]
Ceci, Bruck, and their colleagues have published research on children’s
suggestibility in the most prestigious peer-reviewed psychology journals.
[*1011 FN34] In February of 1998, Bruck, Ceci, and Helene Hembrooke published
a review of children’s suggestibility research in the American Psychologist,
[FN35] a journal received by every member of the American Psychological
Ceci and his colleagues also have written for legal audiences. In 1995, Ceci
and Bruck co-authored Jeopardy in the Courtroom: A Scientific Analysis of
Children’s Testimony, published by the American Psychological Association.
[FN36] The authors designed the book principally for judges,
attorneys, and others who work in the field of child protection. [FN37] As
the title indicates, the new wave could not embrace more emphatically the
scientific method as the means to discover truth. In both this book and their
other writings, the authors emphasize the superiority of the scientific
method over clinical experience or adversarial courtroom battles. [FN38] Ceci
Bruck’s book marshals an impressive amount of research documenting the risk
of false allegations arising from interviews with children about sexual
abuse. Through a reanalysis of evidence once touted as proving children’s
resistance to suggestibility, and through carefully controlled research of
their own, the authors provide a compelling picture of the potential dangers
of suggestive abuse investigations.
Given its moderate tone and carefully stated conclusions, the work of the new
wave likely will influence those in the courtroom who are interested in an
impartial appraisal of a highly contentious field. Judges may look to the
writings as background information that will shape their judgments regarding
the admissibility and sufficiency of evidence in cases involving child sexual
abuse. In 1993, after Kelly Michaels appealed her 1988 conviction to the New
Jersey Supreme Court, Bruck and Ceci co-authored an amicus brief that
reviewed the *1012 research on children’s suggestibility, much of it their
own. Forty-three research psychologists co-signed the brief. [FN39] Only
three of the researchers asked to sign refused to do so; Gail Goodman was one
of the three. [FN40]
Affirming the lower court’s reversal of Michaels’s conviction, the court
adopted an unprecedented procedure whereby a court may prevent child
witnesses from testifying due to suggestive pretrial questioning. [FN41] In
1998, at Cheryl Amirault LeFave’s fourth appeal challenging her 1987
conviction in the Fells Acre molestation case, Maggie Bruck submitted an
affidavit summarizing recent suggestibility research and testified about the
research at a Massachusetts Superior Court hearing. [FN42] In June of 1998,
the court held that the research Bruck described constituted “new evidence”
proving that suggestive interviewing practices “forever tainted” the
testimony of the child witnesses, necessitating a new trial at which the
court would not allow the child witnesses to testify. [FN43]
As a result of rulings such as these, attorneys surely will refer to the new
wave research in arguing motions regarding evidence, in questioning child
interviewers, and in both selecting and questioning expert witnesses regarding
the suggestibility of children. Ceci and Bruck have themselves served as
expert witnesses in a few cases, [FN44] and more seasoned expert witnesses
have referenced their research. [FN45] To the extent that the new wave
reaches a larger audience—in part because of intense media coverage
[FN46]--it likely will influence the attitudes of legislators who consider
procedural modifications designed *1013 to facilitate or restrict the
acceptance of child testimony, and perhaps even will influence lay people
called to sit as jurors in sexual abuse trials.
Because of the new wave’s potential influence, and because few psychologists
and legal commentators have questioned its claims, [FN47] it deserves
critical examination. As in any area in which science is called into service
to set policy, one can challenge the impartiality of the new wave.
Arguments labeled as “scientific” often fail to avoid subjective judgment,
and more dangerously, tend to obscure subjectivity when it occurs. This
Article seeks to explore and challenge the often unstated factual assumptions
and value judgments made by the new wave of suggestibility research. The new
wave bases its research and its arguments on unproven factual assumptions
about abuse investigations and allegations. The new wave presumes highly
suggestive interviewing techniques are commonplace, based on an
unrepresentative review of abuse investigations. It emphasizes cases in which
multiple numbers of preschool children accuse day care providers of bizarre
acts, presenting a distorted picture of the suggestibility problemsin the
typical case, in which interviews likely are less coercive and children are
less vulnerable to suggestion.
With respect to the value judgments, I focus on the fact that inherent
tradeoffs exist between two types of errors—false positives and false
negatives—and note that the new wave emphasizes the risk of *1014 false
positives in the design and interpretation of their results. Given my own
value preferences—an acute awareness of true cases of abuse and the
difficulty abused children have in revealing abuse—I emphasize the effects of
children’s fear, loyalty, and embarrassment. These factors not only increase
the likelihood of false negatives, but also reduce the likelihood of false
positives in the cases that one most often sees in court—allegations of abuse
against people close to the child.
Part I discusses the new wave’s critique of Goodman’s and her colleagues’
research claims that children are surprisingly invulnerable to suggestion.
The critique reveals the factual presuppositions and value preferences of the
new wave’s research program.
Part II outlines the leading studies the new wave has conducted in
anticipation of the critique that follows.
Part III begins the critique by discussing the real world of sexual
abuse.investigations. This Part emphasizes the importance of examining real-
world interviewing to determine the extent to which one can apply the new
wave’s research to actual cases. The new wave emphasizes atypical cases—those
in which investigators question large numbers of preschool children about the
actions of day care providers. Investigators are less likely to use
suggestive techniques in the typical abuse case—one involving a single victim
and an alleged offender who is close to the child and her family. The new
wave utilizes suggestive methods that have not been documented as prevalent
among real-world interviews. Although research examining investigative
interviews finds that large numbers of “leading” questions are asked,
analysis of how “leading” is defined reveals that the new wave’s research
employs far more suggestive questions. Finally, the new wave’s research has
not adequately explored challenges child witnesses face in court.
Part IV discusses the real world of child sexual abuse and outlines reasons
why children might deny abuse, including fear, loyalty, and embarrassment.
Moreover, young children’s recall is deficient, and more direct questions are
necessary to tap recognition. These factors both support the limited use of
“leading” questions and decrease the likelihood that false allegations will
occur when investigators ask such questions.
Part V examines the value judgments underlying the new wave’s research. This
Part discusses the way in which the new wave positions itself as objective
and scientific, thus appearing more credible than the veteran defense experts
in child sexual abuse. I argue, however, that the objectivity is more
apparent than real and discuss the role of value judgments in recommending investigative
methods and in focusing on the possibility (rather than the relative
probability) of false allegations of abuse. I conclude that one must
recognize the empirical *1015 limitations and value judgments of the new wave
in order to evaluate fairly children’s sexual abuse allegations.
I The New Wave’s Critique of Goodman
Certainly, based on what we know, we can “rig” experiments to support our pet
theories about children, but this approach does little to further our understanding
of actual child witnesses. What it suggests instead is that the biases of
researchers rather than the credibility of children should be investigated.
Stephen J. Ceci et al. [FN48]
Gail Goodman became the researcher-heroine of the child protection movement
in the 1980s because her research supported claims that false allegations of
abuse rarely, if ever, occur. [FN49]
To lay the groundwork for the new wave of research, Ceci and Bruck critiqued
Goodman’s work in three ways. First, the new wave faulted Goodman’s research
on the same grounds that she criticized research before her: a lack of
ecological validity. [FN50] The new wave emphasized that Goodman’s work
involved interviewers who typically asked leading questions only once, in a
single interview, without strong motivations on the part of either the
interviewer or the child to report nonevents falsely. [FN51] Second, the new
wave faulted Goodman for selectively interpreting findings to support a
favoured position. For example, Ceci and Bruck noted that Goodman focused on
particular questions that do not show age differences, rather than discussing
suggestibility in general, which tends to decrease with age. [FN52] Third,
the new wave criticized Goodman’s claim that false affirmation rates to
abuse-related questions are surprisingly low among young children:
“Ironically, studies by Goodman and her colleagues provide some of *1016 the
most compelling evidence that young children do in fact make false claims
about actions, central events, and, even events that could be construed as
being sexually abusive.” [FN53]
New wave researchers emphasize that their criticism of Goodman’s work is not
a personal attack. They explain that “[t]here is nothing emotional or ad
hominem” in their critique, but rather, “it is the very essence of what
scientists consider to be their responsibility: to refute or reanalyze the
findings of others.” [FN54] The scientist’s goal is to conduct and to
interpret research without imposing her own values. [FN55] The new wave is
equally cognizant, however, that value-free interpretation of research is an
ideal rather than a reality. Ceci warned that “some of the better known
figures in this area of research have exhibited a partisanship that prods
them to discuss their findings without making clear the limits and alternate
interpretations.” [FN56] Moreover, Ceci co-authored several studies
demonstrating that “seemingly objective scientific criteria” may be invoked
to criticize proposals “whose real offense might be their social and
political distastefulness.” [FN57]
Understanding a scientist’s value preferences is therefore useful when
assessing his scientific critiques. Unfortunately, explicit acknowledgment of
psychologists’ values potentially undermines the respect psychology receives
(or hopes to receive) as an objective science. Maggie Bruck wrote that
testifying as an expert witness in court taught her what a mistake it is to
confuse researchers with research. Although it is easy to do because one
comes to represent a “researcher” with a specific point of view, this is a
mistake in terms of the profession’s applied image . You should try your best
in the courtroom not to talk about researchers; rather, you should only talk
about studies. [FN58] *1017 What is bad for experimental psychology’s
“applied image,” however, is good for understanding its limits. Indeed,
examination of Bruck’s testimony in the cases she discusses clearly
illustrates the differences in factual assumptions and value preferences
among suggestibility researchers.
Bruck criticized at least three different studies in which Goodman
collaborated. [FN59] This Article discusses two here. First, consider a study
by Saywitz, Goodman, and their colleagues. [FN60] The researchers examined
seventy-two five-and seven-year-old girls’ memories of a pediatric
examination. [FN61] For half of the girls, the examination included genital
touch (exterior vaginal and anal examination), and for the other half, the
examiner substituted an examination for scoliosis. [FN62] The study found
that, with respect to girls’ subsequent recall of genital touch, both false
positive and false negative rates varied depending on the manner in which the
examiner questioned the girls. When asked free-recall questions about the
event either one week or one month afterwards, none of the girls in the
scoliosis condition falsely claimed to have been touched in the genital area.
[FN63] Of the girls in the genital touch condition, twenty-two percent (8/36)
correctly mentioned vaginal touch, and eleven percent (4/36) correctly
mentioned anal touch. [FN64] Free recall thus elicited no false positives but
a substantial number of false negatives. When asked a direct question about
genital touch with the aid of an anatomically correct doll (e.g., “Did that doctor
touch you there?” while “pointing to the doll’s vagina”), [FN65] 2.86% (1/35)
of the girls in the scoliosis condition falsely claimed vaginal touch, [FN66]
and 5.56% (2/36) falsely claimed anal touch. [FN67] Examiners asked the three
girls who falsely claimed genital touch follow-up questions, and “two were
unable to provide any detail.
However, one *1018 child in the nongenital condition who said yes to the anal
touch question described in further questioning that ‘it tickled’ and ‘the
doctor used a long stick.”’ [FN68] Of the girls in the genital condition,
eighty- six percent (31/36) acknowledged vaginal touch when directly asked,
and sixty- nine percent (25/36) acknowledged anal touch. [FN69] In comparison
to free recall, a direct question elicited some false positives, but reduced
the number of false negatives.
In her testimony, Bruck criticized the study on two grounds. First, she
contended that “[i]t’s a meaningless study. Those kids were questioned in
totally unrealistic ways in terms of what goes on in sexual abuse cases.”
[FN70] Second, she disagreed with the authors’ assessment of the significance
of the false affirmations of touching:
[T]here were three children in her study who made incredible claims about
being touched. They kind of buried that under the data. I think that those
cases are really important because here these children were only interviewed
once and three children claimed that they had been touched in the genitals,
one child claims that the doctor had shoved something up her hiney. I find
that highly significant. She doesn’t; I do. [FN71]
In their paper, Saywitz, Goodman, and their colleagues acknowledged that they
did not repeatedly interview the children and that children in the nongenital
condition “had no motive to distort their reports,” thus potentially
underestimating the suggestibility of children in forensic interviews. [FN72]
However, they claimed “greater ecological validity” for their study than
previous research and believed that their data would be useful to clinicians
and legal professionals weighing the costs and benefits of different
interviewing strategies. [FN73] The researchers also acknowledged that a
cost-benefit analysis would require one to consider the children who made
false allegations of vaginal and anal touch. They argued, however, that
“although there is a risk of increased error with doll-aided direct
questions, there is an even greater risk that not asking about vaginal and
anal touch leaves the majority of such touch unreported.” [FN74 *1019
Second, consider a study by Goodman and her colleagues which Bruck also
discussed in her testimony in the Kelly trial. [FN75] Fifteen seven- and
ten-year-old children were interviewed four years after a five-minute
interaction with an unfamiliar male adult. The interviewers created an
“atmosphere of accusation” by interrogating the children with suggestive
questions and comments (e.g., “You’ll feel better once you’ve told” and “Are
you afraid to tell?”), [FN76] and by asking abuse-related questions (e.g.,
“Did he do anything that made you feel uncomfortable?” and “He gave you a hug
and kissed you, didn’t he?”). [FN77] According to Goodman: In free recall,
few children evidenced memory of the original experience.
They made a variety of errors in attempting to recall the event and answer
questions. The children did not, however, provide false reports of abuse.
All of the children knew their clothes had remained on, they had not been
touched in a bad way, they had not been spanked, and they had not been instructed
to keep a secret. Some of the children’s errors, however, might lead to
suspicion of abuse. For example, one child falsely affirmed that she had been
given a bath, five children agreed to having been both hugged and kissed, and
two children said “yes” when asked if their picture had been taken in the
bathtub. Nevertheless, the children were more resistant to abuse-related than
to non-abuse-related suggestions. [FN78]
Bruck described the study in her direct examination at the Kelly trial: And
what was really surprising in this study was that almost a third of the
children, in fact, claimed that the following things had happened to them:
That they had been hugged or kissed when, in fact, [they] had never been
hugged or kissed; that they had been taken into a bathroom when that never
had happened; that they, in fact, had been taken into a bathtub when that
never had happened; and one of the children actually claimed to have been
given a bath.
Now, this study is quite powerful because it shows how with just very slight
manipulations and in one interview situation you can get children who had no
memories for an event [to] start to say that certain things happened.
*1020 And the motivations that are provided in this study are really similar
[to] ones that we see in lots of other kinds of cases, such as, the way to
keep safe is to tell the bad secret, the way to get rid of bad feelings in my
tummy is to tell my mommy, the more I tell the more they won’t get me. [FN79]
The prosecutor challenged Bruck’s interpretation of the study with a
quotation from the original report, which argued that “the children were
surprisingly accurate in knowing that their clothes had remained on, that
they had not been spanked, that they had not been touched in a place where they
didn’t like it, and that they had not been instructed to keep a secret.”
[FN80] Bruck responded by saying
“That is straight out of their conclusions . . . . It does not match very
well with their data. This study is a prime example of—a very important example
of how researchers can collect certain kinds of data and look at them and
report them in ways that are not there.
“Gail Goodman is a renown[ed] researcher who has an incredible bias. She
collects very important data that consistently shows that young children are
suggestible, and yet in terms of who’s known in the scientific community,
people say Gail Goodman, she’s the one who does all the studies to show that
children aren’t suggestible”. [FN81]
Reiterating the results she discussed on direct, Bruck continued:
“Gail Goodman feels that that’s not really very significant. I happen to
feel, most scientists happen to feel, most people in forensic psychology or
anybody who is involved in a case—court case happen to feel this is really
Bruck’s testimony exemplifies each of the predominant criticisms of Goodman’s
work found in Ceci and Bruck’s published work. She argued that real-world
investigative interviewing is unlike that the Saywitz study used , making its
findings meaningless. She also asserted that both the Saywitz and the Goodman
studies chose to focus only on aspects of their data, thus concealing the
actual findings. Finally, she contended that the research suggests a great
danger that false positives will occur, rather than reassuring us about the
credibility of children’s claims.
The criticisms illustrate the role that psychologists’ assumptions about
reality and personal standards of proof play in affecting their evaluation of
research. In dismissing the Saywitz study as meaningless, the new wave makes
a factual claim about the nature of investigative interviewing. Until
researchers have adequately canvassed actual interviews *1021 for
suggestiveness, opinions about real-world interviewing entail subjective
judgments based on limited personal experience. In criticizing Goodman’s
selective focus on particular results, such as low rates of false positives
on questions that directly implicate abuse, the new wave challenges Goodman’s
assumption that children are much less likely to affirm abusive experiences
falsely than other types of experiences. This challenge is a factual claim.
Even if supported by research, however, the claim leaves room for
disagreement among researchers regarding whether research that does not examine
allegations of abuse is nevertheless useful in assessing the suggestibility
of children in abuse cases. Finally, the new wave argues that the magnitude
of errors in Goodman’s research is shockingly high, rather than reassuringly
low, thereby expressing a value judgment regarding how many false allegations
we are willing to accept in order to identify true cases of abuse. This
Article takes up each of these points in the review of the new wave’s
research that follows.
II Studies of the New Wave
When legal commentators discuss the work of the new wave, they tend to accept
its conclusions at face value [FN83] in much the same way that legal
commentators eagerly touted earlier work on suggestibility purporting to
prove that children are not suggestible. [FN84] This is a mistake. In her
testimony in the Kelly case, Bruck warned the prosecutor that “[y]ou can’t
look at the conclusions. You have to look at the data.” [FN85]
Conclusions are a product of the results and the subjective impressions of
the researcher. To go one step further, one must remember that researchers’
assumptions about the world and their value preferences also affect the
design of the research. Although the rigors of the scientific method often
thwart even the cleverest researchers and the most brilliant hypotheses, one
should recall Ceci’s admonishment that researchers “can ‘rig’ experiments to
support [their] pet theories about children.” [FN86]
The new wave has produced dozens of studies in the past few years, including
four studies that are particularly noteworthy.
*1022 A. Leichtman and
Ceci’s Sam Stone Study
In Leichtman and Ceci’s Sam Stone Study, research assistants visited
preschool children once a week for four weeks and told them about twelve
incidents involving a clumsy fellow named Sam Stone. [FN87]
Subsequently, Sam Stone visited the classroom while the children were hearing
a story. He was introduced to the children, commented on the story, and
walked around the perimeter of the classroom. He then departed, having stayed
a total of approximately two minutes. [FN88] Following Sam Stone’s visit,
researchers interviewed the children four times over a four-week period. In
the last three interviews, children were provided with “erroneous suggestions
. . . that Sam Stone had ripped a book [and] . . . soiled a teddy bear.”
For example, in the second interview, interviewers asked the children “Did
Sam Stone rip the book with his hands, or did he use scissors?” [FN90]
Approximately ten weeks after Sam Stone’s visit, a new interviewer questioned
the children. The interviewer first asked a “free-narrative” question:
“Remember the day that Sam Stone came to your classroom? Well, I wasn’t there
that day, and I’d like you to tell me everything that happened when he
visited.” [FN91] If the child did not specifically refer to a book being
ripped or a teddy bear being soiled, she was asked “probe” questions:
“I heard something about a book. Do you know anything about that?” and “I
heard something about a teddy bear. Do you know anything about that?” [FN92 ]
Forty-six percent of the three- and four-year-old children spontaneously
reported that Sam Stone had performed one or both misdeeds in response to the
free narrative question; seventy-two percent did so in response to probe
What was most surprising about these children’s reports was the number of
false perceptual details, as well as nonverbal gestures, that they provided
to embellish their stories of these nonevents. For example, children used
their hands to show how Sam had purportedly thrown the teddy bear up in the
air; some children reported seeing Sam in the playground, on his way to the
store to buy chocolate ice cream, or in the bathroom soaking the teddy bear
in water before smearing it with a crayon. [FN94]
*1023 B. Bruck, Ceci,
Francoeur, and Barr’s Inoculation Study
In Bruck, Ceci, Francoeur, and Barr’s Inoculation Study, a pediatrician gave
four- and five-year-old children a routine medical examination. [FN95] After
the examination, a research assistant greeted the children and spoke to them
about a poster on the wall for several minutes. The research assistant stayed
during the pediatrician’s administration of the oral vaccine and the
inoculation and then took the child to another room where she gave them
treats and read them a story. [FN96]
Approximately eleven months after their visit to the pediatrician,
researchers interviewed the children four times over a two-week period.[FN97]
In the first three interviews, researchers gave the children false
information about their visit. The interviewer minimized how much the
inoculation had hurt and how much the children had cried. [FN98] In addition,
the interviewer told the children that the research assistant had given them
their oral vaccine and inoculation, and that the pediatrician had shown them
the poster, given them the treats, and read them the story. [FN99] In the
fourth interview, researchers asked the children to recall everything that
happened on their visit to the pediatrician’s and directly asked who had
performed the various actions during their visit (if the children had not
already volunteered such information). [FN100]
In the fourth interview, the children reported significantly less pain and
crying than a control group of children. About thirty percent to forty
percent of the children falsely reported that the research assistant had
given them their shot, the oral vaccine, and the checkup, and that the pediatrician
had shown them the poster, given them treats, and read them a story. [FN101]
The authors concluded, “[t]hese results challenge the view that
suggestibility effects are confined to peripheral, neutral, and
non-meaningful events.” [FN102]
C. Ceci, Crotteau
Huffman, and Smith’s Mousetrap Study
In Ceci, Crotteau Huffman, and Smith’s Mousetrap Study, researchers
interviewed preschool children about various events, only some of which had occurred,
seven to ten times over a period of ten *1024 weeks.[FN103]
One of the fictitious events concerned getting one’s hand caught in a
mousetrap and having to go to the hospital. The experimenter held cards on
which the events were written and told the child that only some of the events
had occurred and that the child should “think real hard” and decide whether
each event had really happened or not. [FN104] At the end of ten weeks, a new
interviewer asked the children whether the events had ever occurred. [FN105 ]
Fifty-eight percent of the children produced false narratives to at least one
of the fictitious events, and twenty-five percent falsely affirmed that most
of them had occurred. [FN106] Many children were able to provide compelling
narrative accounts of the nonexistent events. For example:
“My daddy, mommy, and my brother [took me to the hospital] in our van. . . .
The hospital gave me a little bandage, and it was right here [ [pointing to
index finger] . . . . I was looking and then I didn’t see what I was doing
and it [finger] got in there somehow. . . . The mousetrap was in our house
because there’s a mouse in our house . . . . The mousetrap is down in the
basement, next to the firewood . . . . I was playing a game called
‘operation’ and then I went downstairs and said to Dad, ‘I want to eat
lunch,’ and then it got stuck in the mousetrap . . . . My daddy was down in
the basement collecting firewood . . . . [My brother] pushed me [into the
mousetrap]; he grabbed Blow Torch [an action figure]. It happened yesterday.
The mouse was in my house yesterday. I caught my finger in it yesterday. I
went to the hospital yesterday.” [FN107]
D. Bruck, Hembrooke, and
Ceci’s Monkey-Thief Study
In Bruck, Hembrooke, and Ceci’s Monkey-Thief Study, researchers interviewed
sixteen preschool children on five occasions about four events: two true
events and two false events. [FN108] One of each type of event was a positive
event, and one was a negative event. The false-positive event involved
helping a woman find her lost monkey, whereas the false negative involved
witnessing a man come to the daycare and steal food. In the first interview,
the researcher simply asked the children whether the events had occurred. In
the second and third interviews, the interviewers used a combination of
suggestive *1025 techniques that included “peer pressure, visualization
techniques, repeating misinformation, and selective reinforcement.” [FN109]
If the children stated that an event had occurred, the interviewer asked
open-ended and closed-ended questions about the event . If the children
denied that the event had occurred, the interviewer asked them to pretend
that it had and asked the same questions. On the fourth interview, the
researcher asked the children to tell their stories to a puppet. Again, if
the children denied that an event had occurred, the researcher asked them to
pretend. On the fifth interview, a new interviewer asked an open-ended
question about the events (e.g., “I heard something about a lost monkey. Do
you know anything about that?”). [FN110] The study found that “[b]y the third
interview, most children had assented to all true and false events. This
pattern continued to the end of the experiment.” [FN111]
These studies undercut sanguine assumptions that children are not unduly
suggestible. In each of these studies, a substantial number of children
falsely affirmed that nonexistent events had occurred. These false reports
often occurred spontaneously, in response to a request for free narrative.
Moreover, children frequently elaborated on their false reports, even going
beyond the information previous interviewers had suggested. Finally, the
false reports often concerned events in which the children both participated
and were harmed. The results thus challenge the shibboleths of previous
research on children’s suggestibility: false reports occur rarely and only in
response to highly misleading questions; [FN112] false reports tend to be
unelaborated, single-word responses; [FN113] false reports are unlikely when
the child is reporting a negative event that involves the child’s body.
*1026 On the other hand, the new wave studies establish only that researchers
can produce false allegations and do not enable others to estimate how often
such allegations are occurring under current interviewing practices. To make
such a judgment, one must understand how investigators actually conduct these
interviews in the real world. Such an understanding leads to the conclusion
that the new wave research may overstate children’s suggestibility in actual
practice. Moreover, the new wave ignores a number of important variables in
their criticism of interviewing practices. These variables decrease the
likelihood of false allegations of sexual abuse and in some cases justify the
use of interviewing practices the new wave criticizes.
III The Real World of Sexual Abuse
Representativeness of Interviews the New Wave Reviews
To determine the practical relevance of new-wave research, one needs to know
the extent to which interviewers do in fact use the suggestive techniques the
new wave examines. Noting that the interviewing strategies have negative
effects or even that some interviewers have used the techniques is not
sufficient. In many situations, legislators and courts must make decisions
based on the way investigators typically conduct interviews. If interviews
are usually suggestive, then one fairly can presume that the interviews in a
particular case were suggestive. A presumption that interviews are suggestive
affects legislative decision making regarding the admissibility of children’s
statements and judicial decision making regarding whether to admit evidence
in particular cases. Moreover, such a presumption justifies the use of expert
testimony to review the results of the new wave’s research findings.
Presumptions may reflect the relative weights one assigns to the two types of
error: (1) an erroneous assumption that the interviewing technique was not
suggestive and (2) an erroneous assumption that the interviewing was
suggestive. However, unless one believes that any risk of one type of error
trumps the other type of error, no matter what its magnitude, one must establish
what interviews are actually like in order to make an informed value judgment
regarding the suggestiveness of child interviewing.
Information regarding what typically occurs in interviews might seem
irrelevant with respect to individual cases. Obviously, if one knows whether
a particular child was interviewed with suggestive techniques, then one need
not ask what most interviews are like. However, how interviewers conducted
interviews is largely unknown in many, if not most, cases. Although many jurisdictions
require videotaping or taping of investigatory interviews, most do not.
Furthermore, *1027 it would be impractical to impose a requirement that
individuals record the first contact with the child giving rise to a
suspicion of abuse because such contact arises between children and parents
or teachers, rather than during a formal abuse investigation.
Documentation, when it occurs, often fails to provide verbatim information
regarding the child’s disclosures, and interviewers may be unable to recall the
exact wording of their questions. In sum, to make judgments in individual
cases, courts often must make assumptions about how interviewers typically
interview children. Furthermore, experts who testify about suggestive methods
of questioning cannot be sure whether the research they discuss is relevant
to the particular case, especially if they take Ceci and Bruck’s advice that
they should learn very little about the case (save the child’s age) to remain
At first glance, the new wave makes claims about the nature of interviewing
in general when criticizing various interviewing techniques as unduly
suggestive. Discussing the ecological validity of their research, Ceci and
Bruck argued that [t]he major differences between suggestive interviews in
laboratory studies and suggestive interviews in actual cases is that the
former are generally less intense and contain fewer suggestive elements than
. . . This leads to the conclusion
that if experiments were more like real-life cases we would elicit many more
false reports from children than we have done to date . . . . [FN116]
Differences between the new wave and Goodman and her colleagues may derive
more from differing assumptions about what interviews *1028 are like than
from differing beliefs about children’s vulnerability. Saywitz, Goodman, and
their colleagues believed that their interviews of girls examined by
pediatricians [FN117] were “ecologically valid” in that they replicated
actual child abuse interviews, whereas Bruck dismissed the study as
“meaningless” because the interviews were totally unlike those in the real
world. [FN118] Goodman, Rudy, Bottoms, and Aman argued that anyone who asked
questions as leading as those in her own studies “would likely face severe criticism
from the accused that the child was led into making a false accusation. Child
abuse charges have often been dismissed by judges on this ground.” [FN119] In
contrast, Ceci and Bruck criticized what may have been Goodman’s most extreme
manipulation: the study in which the researchers created an “atmosphere of
accusation” by telling the children interviewers would question them about an
important event and by saying things like “Are you afraid to tell?” and
“You’ll feel better once you’ve told.” Ceci and Bruck claimed that “the
typical forensic case would have involved multiple prior attempts to create
an ‘atmosphere of accusation,’ not just a single one several years after an
When pressed, however, the new wave hedges on the position that the typical
interview is in fact anything like those used in their research. In the Kelly
case, Bruck testified on direct examination that even the most careful of
interviewers will lapse into suggestiveness, [FN121] and in the Sterling
case, Bruck stated on cross examination that her descriptions of suggestive
techniques were “typical.” [FN122] As the subsequent questioning made clear,
however, she based her views of what constitutes typical interviewing on
transcripts that professionals, primarily defense attorneys, had sent to her
over the years. [FN123]
*1029 These transcripts also provide the basis for Ceci and Bruck’s book, in
which they warned the reader that “the materials we have reviewed may not be
representative of many of the interviews carried out with children in
forensic or therapeutic situations.” [FN124] These transcripts came to the
authors’ attention “because they contain[ed] components that might be
considered to be suggestive”; [FN125] therefore, one can fairly assume that
nonsuggestive interviews were underrepresented.
Moreover, the review of the transcripts was not “scientific,” [FN126] and the
suggestive elements were not quantified. [FN127] Bruck looked through the
transcripts informally to determine if suggestive techniques were present.
[FN128] At best, the review process made it impossible to determine if those
interviews that do contain, for example, stereotype induction, do so in any
substantial way. At worst, one wonders whether the authors’ own expectations
exerted an influence on their interpretation. As Ceci and Bruck warned:
“Expectations and biases affect how situations are encoded and subsequently
remembered. Generally, expectancy-consistent results are more likely to be
remembered: The number of confirming cases are overestimated, and these
confirming cases are more easily recalled. Prior expectations (or biases) may
also work on incongruent information in such a way as to transform it so that
it fits into one’s existing beliefs”. [FN129]
The problems of unsystematic review of interviews are apparent when one reads
that in 1994 Ceci found “potentially suggestive and stereotype inducing”
methods in one-third of the cases he reviewed, [FN130] whereas in 1995 Ceci
and his colleagues found “highly improper interviewing techniques” in the
“vast majority of cases” they reviewed. [FN131] One cannot determine whether
interviews grew worse, the interviews the authors received grew worse, or the
criteria for judging the interviews changed.
Ultimately, the new wave cited some systematic research on interviewing,
discussed below, but simultaneously refused to “endorse any specific
prevalence rate of poor interviews.” Instead, the new wave *1030 took the
position that there are “many” improper interviews, and “[w]hether these represent
a substantial portion or only a tiny portion of all cases is anyone’s guess.”
[FN132] Ceci most recently has expressed the
“hunch . . .that the majority of interviews done with kids by front-line
workers, child-protective service, law enforcement, therapists,
pediatricians, are well-done.” [FN133]
The position that “many” interviews are improperly suggestive emphasizes the
possibility rather than the relative probability of false positives. If the
mere existence of bad interviews presents a sufficient ground for
policymaking, the implicit value judgment is that no false positives are
B. Day-Care Cases Versus
Typical Abuse Cases
Questions regarding the representativeness of the case studies that the new
wave used to illustrate the dangers of interviewing techniques relate to
concerns over the representativeness of the interviewing techniques the new
wave criticized. Ceci and Bruck warned that “most of the actual sexual abuse
cases that we describe are day-care cases in which some of the children make
allegations of ritualistic abuse at the hands of their caregivers.” [FN134]
Besides the Salem Witch trials, the authors described six contemporary case s
of sexual abuse, four of which involved allegations by large numbers of
preschool children in day care. [FN135] They acknowledged that these cases
“represent only a small subset of the actual sexual abuse cases.” [FN136]
Nevertheless, they used these cases as “’windows”’ through which one can
understand the problems of child sexual abuse allegations. [FN137]
Ceci and Bruck defended their emphasis on day-care cases (which involve
multiple preschool children alleging ritualistic abuse) on at least three
grounds. First, they argued that “although these cases represent only a small
proportion of sexual abuse complaints, in absolute numbers they involve a
large number of children (in the McMartin *1031 case, for instance,
interviewers under contract to the State of California alleged the abuse of
369 children)” [FN138] and “in other day-care cases the number of allegations
is also quite large.” [FN139] However, the McMartin case is hardly
representative of day- care cases. As Finkelhor’s study of day-care abuse
“One clear-cut way in which the McMartin Preschool case was atypical of
day-care abuse was in the enormous number of children involved. Investigators
estimated the number of victimized children at more than 300, spanning a
period of at least 10 years. By contrast, the majority of other day-care
abuse cases involved the substantiated abuse of only one or two children.”
Moreover, if our concern is that a large number of defendants are falsely
accused, we should focus on the number of cases in which multiple victims
testified. Eighty-five percent of criminal sexual abuse cases involve only a
single victim. [FN141]
Second, Ceci and Bruck asserted that “day-care cases are relevant to the more
general testimonial issues found in many nonday-care cases (i.e., repeated
suggestive questioning, interviewer stereotypes, failure to test alternative
hypotheses).” [FN142] However, consider how the dynamics of an abuse
investigation change when one compares multivictim cases with single-victim
cases. Interviewers who are confident that the children have suffered abuse
are more likely to question extensively a child in a multivictim case than in
a single-victim case. Likewise, interviewers are more likely to confront a
child with the statements of other children alleging abuse in multivictim
cases. Interviewers in multivictim cases also are more likely to “assure” a
child at the beginning of questioning that the accused is a bad person who
has hurt children and who has been put in jail. In a single-victim case, the
investigator will question the child because a specific suspicion exists that
the child has suffered abuse. If the child is the only victim, contamination
by other victims is obviously impossible.
Until the *1032 child acknowledges some abuse, it is unlikely that the
accused will be labelled a criminal.
Other differences exist between day-care cases and typical sexual abuse cases
that make the likelihood of suggestive questioning greater in the day-care
cases. Most sexual abuse cases involve abuse by someone close to the
child—typically a family member or friend of the family. [FN143]
Parents are unlikely to pursue the hypothesis that a spouse or a brother has
abused their child. Furthermore, interviewers are not likely to paint
negative stereotypes of those with whom the child may wish to maintain an ongoing
relationship. Surely, some cases arise in which negative stereotyping occurs,
[FN144] but in most cases those close to the child are not eager to believe
that someone has abused the child. [FN145] The median age of a sexual abuse
victim in criminal court is thirteen years of age, [FN146] while the day-
care cases predominantly involved preschool children . As I will argue below,
these and other differences also mean that children will be less suggestible
in the truly “typical” case of sexual abuse.
The final justification the new wave gave for emphasizing day-care cases is
that, “because of their visibility, day-care cases are often more extensively
documented.” [FN147] Cases journalists and legal scholars have brought to
public attention receive the best documentation and tend to be those which
“cast doubt on the accuracy of children’s statements.” [FN148] scientific
study of children’s suggestibility that focuses on highly visible cases,
however, is much like a report on airline safety that focuses on air
disasters. Coverage of air disasters likely leads the public to overstate
vastly the dangers of air travel; [FN149] coverage of dubious *1033 child sex
abuse cases surely will have a similar effect. At the same time, the media’s
emphasis on bizarre, facially implausible allegations falsely assures the
public that society will not miss true cases of abuse and creates the
perception that reining in interviewers poses no potential risks. Analogies
to the Salem Witch trials [FN150] have the same effect. The public need not
fear that increased skepticism will give witches free rein to practice their
C. Leading Questions in
Practice and in Research
In their most recent paper, Bruck, Ceci, and Hembrooke discuss a number of
“suggestive interviewing techniques,” including leading questions, stereotype
inducement, selective reinforcement, guided imagery, and peer pressure.
[FN151] To “dispute [the] claim” that “the interviewing conditions used in
the suggestibility studies are rarely used by professionals,” [FN152] the
authors cite several studies on real-world interviewing that allegedly
support the ecological validity of their research.
The studies do not indicate, however, that stereotype inducement or selective
reinforcement is common. The studies do not measure these tactics.
Nor do they document extensive use of peer pressure or guided imagery.
Indeed, the research suggests that the latter two sources of suggestibility
are uncommon. Warren and colleagues examined the extent to which an
interviewer told a child that another person had said the child was abused—a
method which could constitute peer (or adult) pressure. Interviewers employed
this tactic three times out of forty-two interviews. [FN153] Boat and Everson
examined the *1034 extent to which interviewers using dolls asked the child
to show how abuse might have occurred
[FN154]-- a method which could be similar to guided imagery. [FN155]
Interviewers never employed this tactic in ninety-seven interviews. [FN156]
The research, however, does document infrequent use of open-ended questions
with alleged child abuse victims. Bruck and her colleagues summarized the
observational research on real-world interviews and concluded that
“interviewers mainly relied on specific or leading questions; several times
during the interviews, they introduced information that the children had not
volunteered, and they frequently repeated that new information in the course
of a single interview.” [FN157] The authors rely primarily on work by Amye
Warren and colleagues, and Michael Lamb and colleagues. [FN158]
Warren and her colleagues examined transcripts of interviews conducted in the
late 1980s and early 1990s by child protective services workers in a southern
state. [FN159] They found that nearly ninety percent of the questions asked
by interviewers constituted “specific” questions because they did not require
a narrative response. [FN160] Noting that “questions containing previously
undisclosed information may be considered leading questions,” [FN161] the
authors found that interviewers introduced, on average, seven pieces of new
information per interview [FN162] and, again on average, repeated the new
information once during the interview. [FN163]
Examples of interviewers providing new information included stating the
following: where the child currently lives, names of people the child knows ,
what the child’s mother has *1035 done, and the fact that the child has
spoken to the interviewer before. [FN164] As a worst-case example of providing
new abuse details, Warren and colleagues quote an interviewer who reminded
the child what she previously had told the interviewer about abuse . [FN165]
Warren and her colleagues cited Lamb’s findings as consistent with their own.
[FN166] Lamb and his colleagues examined Israeli youth investigators’
interviews with alleged sexual abuse victims and found that only two percent
of the utterances were “invitations,” defined as statements that invite “an
open- ended response from the child.” [FN167] Lamb also found that about
twenty- five percent of the investigators’ utterances were leading. [FN168]
Lamb’s definition of “leading,” however, included any statements that “focus
the child’s attention on details or aspects of the account that the child has
not previously mentioned, but do not imply that a particular response is
expected.” [FN169] The study classified questions that imply a desired
response or that assume details that the child had not provided as
“suggestive.” [FN170] Lamb found that investigators posed such suggestive
questions approximately nine percent of the time. [FN171]
Lamb’s research group obtained similar results from three other interview
samples: one conducted by sheriff’s investigators in a small *1036 southern
town, [FN172] one conducted by protective service workers in a large
southeastern state, [FN173] and one conducted by “two expert and experienced
forensic psychologists.” [FN174] Across all three studies, approximately ten
percent of interviewers’ questions are “suggestive,” and an average interview
contained from five to ten suggestive statements. [FN175]
The data do not reveal the extent to which the suggestive questions elicited
details of the alleged abuse. [FN176]
In sum, the limited observational research on real-world interviews
demonstrates that interviewers ask few open-ended questions, many specific
questions, and some leading questions. [FN177] The proportion of leading
questions depends on how narrowly one defines “leading.” How does this
compare with the new-wave research? While the *1037 new wave fails formally
to define leading,” Bruck and Ceci provided the following examples of
questions they considered “leading”: “Did anything scary happen at naptime?
“and “Did anyone ever touch you in a bad place at naptime?” [FN178]
Both Warren and Lamb would consider these questions “specific,” and Lamb
would characterize them as “leading” but not “suggestive.” If, as Bruck and
Ceci suggest, [FN179] interviewers should avoid these types of questions,
then the observational research supports the new wave’s claims that
real-world interviewing is unduly suggestive. Even in new-wave scholarship,
however, what constitutes a “leading” question varies depending on the
context. When discussing the real world, the new wave uses the term broadly.
On the other hand, in describing their own research, the new wave uses the
term quite narrowly. For example, recall the Sam Stone Study. Ceci and Bruck
described the study as one in which, “[d]uring each interview, the children
were asked two leading questions.”[FN180] Four such interviews, combined with
stereotype induction, led to a startling seventy-two percent of three- to
four-year-olds making false claims about Sam Stone.
A close examination of the questions reveals that they were much more than
merely “leading” or even “suggestive” in Lamb’s use of the term. Rather, the
questions were “suppositional” or “highly misleading.” [*1038 FN181] For
example, interviewers asked the children questions like “When Sam Stone
ripped the book, did he do it because he was angry, or by mistake?” [FN182]
In such a question, the interviewer does not merely introduce the subject of
ripping the book, nor does the interviewer merely attempt to obtain the
child’s acknowledgment that Sam Stone ripped the book. Rather, the question
contains the premise that Sam Stone actually ripped the book, and without
enabling the child to deny the premise, asks the child for elaboration on the
Does this type of questioning make a difference? The new wave acknowledges
that it does. Bruck and colleagues cited work from the turn of the century by
Lipmann and Wendriner, who “found that preschoolers were progressively
susceptible as the strength of misleading questions was increased.” [FN183]
The question “Is the door open in the cabinet in the room?” elicited almost
ten times as many false affirmations as the question “Is there a cabinet in
the room?” [FN184] Note that the former question resembles those interviewers
asked in the Sam Stone Study, whereas one could consider the latter “leading”
under the observational research. [FN185]
Examination of the suggestive interviews in the other studies of the new-wave
research reveals similarly strong manipulations. Recall the Inoculation
Study, in which researchers falsely “reminded” the children in three
interviews that they had not cried when they received their shot one year
previously, and that the roles of the research assistant and pediatrician had
been switched. [FN186] What did *1039 these “reminders” entail? The interviewer
told each child that she and the research assistant worked with the child’s
pediatrician and that the research assistant was at the office the day that
the child received her shot. The interviewer then asked the child to pick out
pictures of the pediatrician and the research assistant. In sixty-five
percent of the cases, the interviewer had to show the child the correct
photograph. [FN187] Following this exchange, the interviewer kept the
photographs in sight during the remainder of the interview and during the
interviews that followed. [FN188] The interviewer then told the child that
the research assistant “gives kids their shots. She gave you your shot.
Laurie said that she remembered when she gave you your shot . . . .” [FN189]
The interviewer thus asserted the suggested information as a rule, as a
specific fact, and as a remembered fact by the alleged actor. The questions
that the interviewer asked the children were akin to those in the Sam Stone
Study, in which the suggested information served as the question’s premise,
and the child was asked to provide additional details. [FN190] Compared to
the interviewer’s explicit assertions of knowledge in the Inoculation Study,
however, the Sam Stone questions seem mild.
In its latest research, the Monkey-Thief Study, the new wave has gone far
beyond leading questions in an attempt to suggest nonevents to preschool
children. In the suggestive interviews, the interviewer clearly told the
children she believed the events had occurred and related information about
the event that other children allegedly had provided. [FN191] If a child
denied that the event occurred, the interviewer asked the child to pretend
that it had occurred and then asked “specific” questions about the nonevent .
[FN192] In addition, the interviewer employed “visualization techniques,
repeating misinformation, and selective reinforcement.” [FN193] Because of
the number of suggestive techniques employed, the study produced among the
highest percentage of false assents. At the same time, however, the research
is likely the least generalizable to the real world.
The Mousetrap Study did not use leading questions. [FN194] In this study, an
examiner asked children questions seven to ten times over a ten-week period .
The experimenter simply asked the child to “think *1040 real hard” about
whether each event had occurred, reading the event off a card. [FN195] The
study limited the manipulation to the number of times that the interviews
were conducted. [FN196] Although a large number of children responded
incorrectly, the authors did not find an increase in false affirmations over
the course of the seven to ten interviews. [FN197] In a subsequent version of
the study—the Bicycle Study—the interviewer told the children that the events
had in fact occurred and helped them to imagine relevant details. [FN198] In
the Bicycle Study, false affirmations did increase over the course of the
study. [FN199] Taken together, the two studies present a compelling
demonstration of the difference between merely asking a child if an event
occurred and telling the child that the event occurred.
In part, telling rather than asking implies that the interviewer knows what
occurred, which increases the likelihood that the child will accept the
interviewer’s suggestions. Ceci and colleagues demonstrated that preschool
children are more suggestible when an adult questions them than when a child
questions them. [FN200] They attributed *1041 this difference to the young
child’s assumption that adults are more credible than other children.[FN201]
Subsequently, Ceci and colleagues obtained similar results with four- to
eight-year-olds when both interviewers were adults but varied with respect to
how knowledgeable they seemed. One interviewer appeared uncertain of the
story about which he suggested information, stating that he did not “remember
very much about the story because [he] had not read it in a long time.”
[FN202] The other interviewer claimed to know the story “’real well.”’
[FN203] Children were only about half as suggestible when questioned by the
interviewer who claimed to know little about the story.
Whether one adopts a narrow or a broad definition of “leading” questions and
“suggestive” interviewing also affects the interpretation of other
suggestibility research. For example, Saywitz’s genital examination study
found a three percent to six percent false affirmation rate for anal and
vaginal touch among five- to seven-year-old girls. [FN205] How do Saywitz’s
questions compare to the observational research on real-world interviews?
After first asking for free recall, the researchers asked children seventy
questions, most of which were specific questions that called for a yes or no
or for a single word. [FN206] Thirty percent of the questions were suggestive
in that the interviewer either presupposed the truth of the question (e.g.,
“How many times did the doctor kiss you?”) or clearly implied a preferred
answer (e.g., “She took her clothes off, didn’t she?”). [FN207] The results
are comparable to the observational research; indeed, the Saywitz study
contained a much higher proportion of questions that were suggestive than the
Lamb studies. [FN208] Nevertheless, Ceci and Bruck doubted the extent to
which one may generalize from the Saywitz study to the real world. [FN209]
Ceci and Bruck argued that the Saywitz study provided the “optimal conditions
under *1042 which children should be interviewed.”[FN210]
Less charitably, Bruck dismissed the study as “meaningless . . . in terms of
what goes on in sexual abuse cases.” [FN211] With no support from the
observational research on real-world interviews, Ceci and Bruck raised claims
regarding the neutral emotional tone of Saywitz’s interviews and the effects
of incorporating non-abuse-related questions into the interviews. [FN212] The
effects of a neutral emotional tone or neutral questions on suggestibility,
and the extent to which they appear in real-world interviews, are largely
In sum, “leading” questions are certainly common in investigative interviews.
Yet the new wave’s research goes far beyond asking leading questions in
assessing children’s suggestibility. The limited observational evidence
available indicates that the new-wave methods are not, in fact, common
investigative techniques. The experimental evidence indicates that such
techniques are largely responsible for the impressive demonstrations of
suggestibility that the new wave has produced.
D. Leading Questions in
Suggestibility research rarely examines the effects of
countersuggestions—questions that suggest to the child that an event did not
occur. However, every defendant has the right to ask such questions. While
prosecutors must obtain special permission to ask leading questions of
children on direct examination, defense attorneys may ask them as a matter of
course on cross-examination. [FN213] Moreover, observational research
examining child sexual abuse trials confirms that “the routine use of the
leading question [is] very much the preserve of the defense.” [FN214]
When interviewers use countersuggestions in research interviews, children
tend to capitulate quickly. For example, the researchers in the Sam Stone
Study “gently challenged” children who falsely reported that Sam Stone had
performed the suggested misdeeds, and *1043 the rate of false affirmations
dropped by half. [FN215] In another study, Crossman repeatedly and
suggestively interviewed three- and four-year-olds in order to convince them
that they had witnessed a woman steal money from a purse. [FN216]
Practicing trial attorneys then questioned the children for no more than
twenty minutes through direct and cross-examination in a mock courtroom and
in the presence of the “defendant.” Even under direct examination, children
were reluctant to make an allegation, [FN217] and under cross-examination,
only one of the five children who claimed that the defendant stole the money
actually testified that he saw her take it. [FN218]
In the Mousetrap Study, the authors informally debriefed children who had
provided false reports. In contrast to the aforementioned results, Ceci and
Bruck state that twenty-seven percent “of the children in [the Mousetrap]
study refused to accept our debriefing, insisting that they remembered the
fictitious events occurring.” [FN219] At first glance, this figure suggests
that a fourth of three- to six-year-olds form unshakable memories after
repeated interviewing. However, the figure could refer to twenty-seven
percent of the children who consistently affirmed nonevents, and not to
twenty-seven percent of the entire sample. As Ceci and his colleagues
explained in their original research report, they were only able “to
reinterview some of the children who had consistently made false assents,”
and most of them ultimately accepted that the event had never occurred.
*1044 In addition to asking leading questions, defense attorneys have other
means by which they can undermine a child witness’s credibility on the stand.
Two-thirds of defense attorneys in one survey admitted that they would
“often” or “always” “use to advantage the child’s vulnerabilities during
cross- examination.” [FN221] Although several commentators have noted that
brutalizing a child on the stand is poor strategy because doing so makes the
child more sympathetic in the jury’s eyes, [FN222] an attorney need not be
brutal to cross-examine effectively a young child. As Crossman found in her
mock trial study, “[w]hereas the volunteering attorneys in this case were
good communicators experienced with children, they were also good lawyers
adept at gently highlighting the inconsistencies and weaknesses in the
children’s stories, discrediting them with alarming ease.” [FN223]
Reviewing the observational research on attorneys’ actual behavior in the
courtroom, Jean Montoya argued that “[i]t follows from this research that the
assertions in the literature that the defense seeks to intimidate the child
witness into silence are uninformed.” [FN224] Montoya pointed to two studies
that failed to find differences between child witnesses’ demeanor (involving
subject ratings of happiness, competence, and credibility) during direct
examination and cross-examination. [FN225]
Examining children’s demeanor, however, does not tell the whole story.
Montoya acknowledged one study that found cross-examiners less supportive of
child witnesses. [FN226] Indeed, four other studies *1045 have come to the
same conclusion. [FN227] Studies also have found, albeit less consistently,
that cross-examiners tend to ask questions that are more difficult, [FN228]
less age-appropriate, [FN229] and less accommodating to the child’s
linguistic style. [FN230]
One might respond that differences in cross-examination styles are irrelevant
if children’s performances are unaffected. Yet when differences in performance
do appear, children inevitably perform worse on cross-examination than on
direct. [FN231] Furthermore, one must doubt whether the research provides a
sufficiently sensitive test of the effects of cross-examination upon young
children. Recall Crossman’s finding that examiners easily and gently
manipulated three- and four-year-old children into contradiction and denial.
[FN232] The observational research involves children whose average age is
closer to eleven years of age, [FN233] with only a small proportion of
children under nine years of age. [FN234] The observational research thus may
understate the negative effects of cross-examination on young children.
Another problem is that global and subjective impressions of children’s
demeanor might fail to reveal real psychological differences, *1046
particularly when the trial experience itself is extremely stressful for
children regardless of who is conducting the examination. [FN235] A study
examining the differences between children’s demeanor under direct
examination and cross-examination through closed-circuit television, which is
less stressful than testimony in open court, [FN236] provides indirect
support for this proposition. As Montoya acknowledged, the children in that
study appeared more unhappy, less effective, and less credible on cross-
examination than on direct. [FN237] An overall reduction in stress may have
allowed relatively insensitive measures of demeanor to detect real
differences between the effect of direct and cross-examination on children’s
Partly because of cross-examination, children’s performances in court are
likely to be quite unlike their performances in the lab. Defense attorneys
may use leading questions—countersuggestions—to undermine children’s
confidence and reduce their credibility in the eyes of the jury. The
available experimental evidence indicates that if children are suggestible,
they are also countersuggestible. In other words, if leading questions can
create false allegations, they also can undermine them.
IV The Real World of Sexual Abuse:
Motivational Disincentives to Claiming Abuse
One must understand children’s feelings about and reactions to sexual abuse
to make policy recommendations regarding the appropriate interviewing of
suspected abuse victims and to assess the credibility of children’s abuse
allegations. If these feelings and reactions motivate children to deny that
abuse occurred, at least two implications follow. First, interviewers must
move beyond open-ended questioning to overcome abused children’s fear and
embarrassment. If interviewers avoid leading questions at all costs, one cost
will be abused children who withhold details of their abuse. Second,
researchers and policymakers debating the ecological validity of
suggestibility research must recognize that false allegations of sexual abuse
*1047 may be more difficult to elicit than the false allegations the new wave
Surprisingly, the new wave calls into question the intuitive claim that children
are reluctant to disclose abuse. Bruck and her colleagues recently challenged
the “stubborn urban legend” that “when directly asked about abuse, it is
common for sexually abused children to not readily or consistently disclose
their abuse.” [FN238] The authors pointed out that research documenting a
relatively high rate of initial denial (seventy-five percent) is suspect
because “the children in these studies may not have been sexually abused.”
[FN239] They cited research on substantiated sexual abuse cases that found a
much lower rate of denial (five percent) and concluded that “although a small
percentage of youngsters do appear to disclose their abuse reluctantly, . . .
the overwhelming majority of children appear to maintain their claims and never
deny them to officials once they are questioned.” [FN240]
Bruck, Ceci, and Hembrooke overlooked a simple fact about substantiated
sexual abuse cases: without a child’s statement that abuse occurred, abuse is
unlikely to be substantiated. [FN241] Therefore, studies of substantiated
cases necessarily will underestimate abused children’s reluctance to
disclose. Moreover, the authors ignored research that overcomes this basic
methodological flaw and that previously had led them to acknowledge that
“truly abused children are often unlikely to disclose sexual abuse out of a
sense of embarrassment or fear.” [FN242] Such research examines cases in
which evidence other than the child’s statements established that sexual
abuse occurred. Lawson and Chaffin found that fifty-seven percent of children
with a sexually transmitted disease failed to disclose abuse when questioned.
[FN243] Muram and his colleagues found that forty-nine percent of children
with medical evidence strongly indicative of sexual abuse failed to disclose
*1048 abuse. [FN244] In addition to these studies, which Ceci and his
colleagues have acknowledged, [FN245] at least three other studies found high
rates of nondisclosure among children for whom strong external evidence of
abuse existed. [FN246]
Of course, one cannot easily determine the reasons why abused children fail
to reveal their abuse, in part because one cannot ask silent victims the
reasons for their silence. If a child belatedly reveals her abuse, however,
one can ask why she delayed. Similarly, one can ask adults who acknowledge
childhood abuse for the first time why they kept their secrets for so long.
As we shall see, the following are at least three reasons for this silence:
fear, loyalty, and embarrassment. Children may fail to report abuse due to
their fear of the potential negative consequences to themselves and their
loved ones (including, in some cases, the perpetrator). If the offender is
someone close to the child or is a member of the child’s family, loyalty to
the offender makes the child particularly reluctant to report her abuse.
Finally, abused children worry that others will blame them for the abuse,
causing feelings of both embarrassment and shame.
Emotions like fear, loyalty, and embarrassment are largely absent from the
laboratory research documenting high rates of suggestibility, in part because
ethical considerations limit what researchers are allowed to inflict upon
their subjects. [FN247] The absence of the strong emotions that typically
accompany abuse allegations limits the ecological validity of suggestibility
research. Moreover, the presence of powerful disincentives to disclosure in
actual abuse cases may explain why *1049 real-world investigators feel
compelled to move beyond open-ended questions when asking young children
A. Fear and Loyalty
Ceci and Bruck argue that experts in child abuse cases should not testify
that threats deter abused children from disclosing their abuse because no
empirical basis for this “professional ‘lore”’ exists. [FN248] On the other
hand, Bruck and Ceci readily assert that threats (and bribes) may induce
nonabused children to claim abuse based on “everything we know about the
principles of child development and about principles of punishment and
reward.” [FN249] This inconsistency is particularly perplexing given the
severity of threats in true and false reports of abuse. Threats not to reveal
range from “pleas that the abuser would get into trouble if the child told .
. . to threats that the child would be blamed for the abuse . . . to ominous
warnings that the defendant would hurt or kill the child (or someone he or
she loved) if they revealed the abuse.” [FN250] Ceci and Bruck consider it
inappropriately threatening to tell a nondisclosing child:
“Don’t be a baby. You’re acting like a nursery school kid.” [FN251]
1. Fear in the Lab
Ceci and Bruck base their reluctance to believe that threats may deter disclosure
in part on laboratory research examining children’s willingness to keep an
adult’s transgressions a secret. [FN252] They highlight the work of Doug
Peters, who exposed four- to ten-year-old children to a stranger who stole a
book in the presence of each child and then asked the child to keep the theft
a secret. [FN253] Ceci and Bruck summarize the study as demonstrating that
“although children in a laboratory experiment would not disclose a crime to
their parents if *1050 the perpetrator was present, they were quite likely to
do so as soon as the perpetrator was absent.”
Ceci and Bruck’s conclusion that children are “quite likely” to disclose is
based on the fact that after both the owner of the book and their parents
questioned the children, sixty-seven percent of the children ultimately
disclosed the thief’s identity. [FN255] Others have found it remarkable that
even after such questioning, “nearly one-third (32.5 percent) of the children
still feigned ignorance.” [FN256] Indeed, another reading of Peters’s
research highlights the child’s strong reluctance to implicate an adult in
wrongdoing, even when the adult is a stranger who does not threaten or bribe
the child, and when the questioners are sure both that a crime had occurred
and that the child had witnessed it. Consider this description of Peters’s
research: Four- to ten-year-olds witnessed a staged event of a stranger who
stole a book and were asked to keep the theft a secret. When the children
were asked by the owner of the book whether they had seen who took it, 82%
either delayed reporting the theft or never reported it. The most common
reason given by the children for not disclosing was to honor the stranger’s
secret and to avoid getting him into trouble. [FN257]
Ceci and Bruck described Peters’s research in this manner in 1993, justifying
their contention that “even very young children sometimes do lie.” [FN258]
Although Ceci and Bruck omit the discussion of Peters’s work as documenting a
reluctance to disclose transgressions from their 1995 book, they discuss a
number of studies that provide “consistent evidence that children as young as
3 years of age will omit important information about transgressions and
accidents if adults ask them to do so,” [FN259] and they acknowledge that
this evidence “could also be used to address the issue of the degree to which
children withhold the truth when they are threatened.” [FN260]
In addition to Peters, two groups of researchers have conducted four studies
which demonstrate that a substantial percentage of three- to ten-year-old
children will keep a stranger’s transgressions secret when they believe that
revealing the *1051 transgression will get the stranger into trouble and the
stranger has asked them not to tell. [FN261]
Experimental evidence supports the common sense claim that threats reduce the
willingness of children to disclose. Furthermore, this research suggest s
that children’s reluctance to disclose increases as the intensity of the
warning increases. [FN262] For ethical reasons, psychologists do not threaten
children with serious harm in any of their research, but it is reasonable to
posit that such threats would be even more effective. [FN263]
*1052 2. Parents Versus
Ceci and Bruck have argued that “[i]f children will lie to protect a
stranger, they should do so even more readily to protect a loved one.”[FN264]
Abusers, often family members or friends of the family, are typically close
to the children they abuse. [FN265] A child will have greater sympathy for
one she loves and probably is less inclined to expose such a person. If the
loved one is in the child’s home, or close to others that the child loves,
threats and inducements may be even more effective. In these situations, the
offender has continuing contact with the child and others in the family, and
the child cannot count on being supported by other loved ones should she
disclose. Adults who were abused as children mention these concerns when
explaining why they never revealed their abuse. [FN266]
Laboratory research further supports the reluctance of children to implicate
parents and others close to them. Ceci and Leichtman have shown that if a
researcher spends twenty hours with a three- to four-year-old child, thereby
becoming a “loved one,” that child will strongly resist revealing wrongdoing
by the researcher. [FN267] In an analogous *1053 study, Devitt and her
colleagues compared children’s willingness to implicate a parent with their
willingness to implicate a stranger. A stranger stole a book in the presence
of a child (four to eleven years of age) and told the child “that the theft
was to be their secret and that the child should not tell anyone that the
researcher had taken the book.” [FN268] The owner of the book discovered it
was missing and explained to the child that it was needed for an exam the
next day. The owner and an experimenter questioned the child, and the
experimenter then asked the child and her parent to wait for the police to
arrive. A person identified as an officer then questioned the child. Nineteen
percent of the children failed to name the thief. [FN269]
In an alternate condition in which the child watched as his or her parent
stole the book, and the parent told the child to name one of the experimenters
as the thief, eighty-one percent of the children failed to name the thief
(fifty-six percent falsely accused the experimenter named by the parent, and
twenty-five percent failed to name anyone). [FN270]
The Devitt study suggests that a parent may be able to create a false
allegation. If parents can commit a crime and coach their children to accuse
another, perhaps parents in custody battles can coach their children to
accuse falsely the other parent of abuse. In order to accept the analogy,
however, one must assume that the accused parent is no more than a virtual
stranger to the child. In reality, noncustodial parents accused of sexually
abusing their children often have *1054 had frequent and extended contact
with their children. Indeed, the existence of such contact often forms the
basis for the custodial parents’ suspicions. Similarly, Leichtman and Ceci
have argued that stereotype induction (the phenomenon studied in the Sam
Stone Study) [FN271] may occur in the context of divorce cases: “[T]he defendant
might be an estranged parent who has been previously criticized by the
custodial parent in the child’s presence, and the child may even have come to
accept these criticisms as stable aspects of the parent’s character.” [FN272]
However, Sam Stone was as much of a stranger to the children as the stranger
in the Devitt study. Children were exposed to Sam Stone for two minutes,
[FN273] during which “nothing happened.” [FN274] Sam Stone did not interact
with the children individually, but only spoke to the group while they were
listening to a story read by a teacher. [FN275]
In contrast, children became much more familiar with the adults who sought to
influence their perception of Sam Stone. Children in the stereotype induction
condition played with research assistants for four consecutive weeks before
Sam Stone’s visit and “received considerable information” about Sam,
including descriptions of twelve accidents witnessed by the research
assistant that each depicted Sam as an accident-prone person.
[FN276] In the suggestion condition, children individually played with
research assistants for four consecutive weeks after Sam Stone’s visit.
Therefore, children in the stereotype and suggestion condition interacted
with research assistants on eight different occasions, whereas they only saw
Sam Stone on one occasion. [FN278]
In addition to the lack of familiarity with Sam, the children had few other
incentives to protect Sam Stone. The research assistants did not lead the
children to believe that revealing Sam’s misdeeds would get him in trouble.
On the contrary, they depicted Sam “as a kind, well-meaning, but very clumsy
and bumbling person,” whose misdeeds were accidental and promptly corrected
[FN279] Moreover, researchers gave the children little opportunity to deny
wrongdoing because during the first two interviews the research assistants
presented the children with a ripped book and a soiled teddy bear— remnant s
of Sam’s alleged misdeeds. [FN280] Presenting a child with evidence of the
mishap is *1055 implicitly accusatory and motivates the child to name an
offender. In contrast, an abused child may deny that anything wrongful has
occurred in order to foreclose discovery of something shameful.
If Ceci and Bruck are correct that children are more willing to lie for loved
ones, then they also may be more willing to tell the truth for loved ones. If
this assertion is true, then it follows that children may resist suggestions
better when the accused is a parent. Ceci and his colleagues previously have
emphasized the difficulty in extrapolating from studies in which children
were “presented short vignettes in an affectively neutral context by
unfamiliar adults” to situations in which children testify about events that
were “of a repetitive nature (e.g., sexual molestation), in an emotionally
charged context, and perpetrated by a familiar person, often a family
member.” [FN281] In defending the Sam Stone Study against such criticism,
however, Ceci and his colleagues argued that it is a “misrepresentation of
the literature” [FN282] to claim that the study “minimizes the likelihood
that children’s familiarity with and respect for the alleged wrongdoer
militates against their suggestibility.” [FN283]
The authors justified their reluctance to acknowledge the effects of familial
ties on suggestibility by referring to a study by Lepore and Sesco [FN284]
and to the infamous mass-abuse cases in which children accused their parents
of abuse, such as the Jordan, Minnesota case. [FN285] In the Lepore and Sesco
study, in which many preschool children falsely claimed that a man had taken
their clothes off and kissed them, the researchers defined familiarity as one
and a half hours of exposure to an individual about whom the researchers
asked misleading questions. [FN286] Compare this exposure to the twenty-one
hours Ceci and Leichtman felt necessary to create a “loved one” for their
study on *1056 children’s denial of the wrongdoing of others
In the Jordan case, one of the relatively few mass-allegation cases in which
parents were the accused, interviewers and others told children that they
would never see their parents again if they failed to reveal, and that they
could help their parents by accusing them of abuse. [FN287] This case
suggests that loyalty engenders strong motives to protect, and that unless
one can trick children into believing that accusing their parents of
molestation will help their parents, they are strongly motivated not to do
so. Undeniably, a vindictive parent may turn her child against the other
However, although nonoffending mothers are more likely to believe their
children’s allegations when the accused is the ex-husband, [FN288] a
substantial proportion of nonoffending mothers overall are ambivalent or
unsupportive of their children’s claims. [FN289] *1057 Mothers are most
likely to be skeptical of their children’s allegations when the child first
reveals the abuse. [FN290] Such skepticism increases the likelihood that the
child’s revelation of abuse will be short-lived. [FN291] Mothers have many of
the same motivations as their children do to deny that abuse has occurred and
are well aware of the social and economic disruption that such allegations
can create. [FN292]
One might expect that the legal system weeds out abuse cases in which the
mother is unsupportive of the child’s claim, which would *1058 mean that a
child testifying in a dependency or criminal action is more likely to have a
supportive (and potentially suggestive) mother. On the contrary, children who
were asked to testify in juvenile court “had mothers who were significantly
less supportive than children who were not required to testify at the
juvenile court hearing.” [FN293] If a mother is unsupportive, dependency
court involvement is more likely because her nwillingness to take action to
protect the child against further abuse necessitates state intervention.
[FN294] Moreover, no evidence suggests that mothers are more likely to be
supportive in criminal cases. [FN295] In some cases, mothers even take the
stand against their own children in defense of the accused molester. [FN296]
Regardless of children’s motivation to protect their loved ones, they are
less likely to be susceptible to suggestion about people they know well. In
the Sam Stone Study, researchers created a “stereotype” by telling children
various stories with the same theme: Sam was “a clumsy and bumbling person.
Because Sam Stone had visited the classroom only once for two minutes,
however, the children lacked any personal knowledge of Sam with which the
suggestion could compete. [FN298] If reseachers had given children extensive
experience with a dextrous Sam, then the children may have formed a
stereotype of Sam as a careful person and would have been better able to resist
suggestions that he was the wrongdoer.
Ceci and his colleague’s experimental and theoretical work provides evidence
for this position. [FN299] Their work demonstrates that children’s
stereotypical knowledge of superheroes interferes with their long-term
recollection of stories in which the superheroes act inconsistently with
their stereotypes. [FN300] For example, researchers told children that the
Six Million Dollar Man was unable to carry a can of *1059 paint because it
was too heavy, and three weeks later the researchers asked the children
whether the Six Million Dollar Man had been depicted as strong.
[FN301] The authors found that “when new information is clearly incongruous
with a child’s preconceptions, although immediate recall may be accurate,
shifts or distortions will subsequently occur” such that subsequent recall
will move toward the child’s preconceptions. [FN302] Although researchers
told the children that the Six Million Dollar Man behaved weakly, they came
to believe that his performance was consistent with his stereotype—the
preconceived notion that he was strong.
Analogously, if a child has extensive experience with a person, so that the
person becomes a loved one, then the child would form a stereotype of the
person as one who cares for the child and would not cause needless harm to
the child. Thus, the child more likely would resist stories that the loved
one had abused the child. As the child’s experiences with the loved one
increase in number, the child’s positive stereotype of that person becomes
more detailed and better organized. Ceci argues that memory performance in a
domain improves as knowledge in that domain improves in quantity and in
structure. [FN303] For example, a child remembers the actions of her favorite
playmate better than the actions of a relatively unfamiliar child. [FN304] As
memory improves, suggestibility decreases. [FN305]
Therefore, *1060 children should be less vulnerable to suggestions about
those with whom they are especially familiar.
3. Fears in the Real
Ceci and Bruck argue that studies of actual abuse cases further support their
claim that threats do not suppress disclosure. [FN306] They discuss the
results of two samples of abused children—a clinical sample reported by
Sauzier and a sample of criminal cases reported by Gray.
When the offender used aggressive methods to gain the child’s silence,
children were equally likely to tell about the abuse immediately following
the event or to never disclose the abuse at all. Moreover, two thirds of
children who were threatened not to tell nevertheless did disclose the
details of their victimization. Thus, threatened children appeared to
disclose as often as children who were not threatened. [FN307]
One cannot study the effects of threats on disclosure, however, by examining
only those children whom researchers have identified as abused. Studies of
cases in which children ultimately revealed abuse are problematic because
these studies exclude the very children for whom threats were most effective
in suppressing reports of abuse. A *1061 child’s statement is the most common
means of detecting abuse. [FN308] If threats in fact suppress reporting, then
the percentage of allegedly abused children who report having been threatened
will underestimate the actual percentage of abused children who are
threatened. Moreover, the relation between threats and willingness to report
among children known to have suffered abuse may not reflect the actual
relation between threats and reporting among all abused children.
If threats reduce the willingness of children to report abuse, but do not
eliminate reporting altogether, then one could examine the relation between
threats and the time at which children ultimately reveal abuse. However, the
process by which investigators substantiate reports complicates this
analysis. Cases involving reluctant children are less likely to become
substantiated. Therefore, even partially effective threats will have the
tendency to exclude temporarily silenced children from studies of
substantiated cases of abuse.
The fact that substantiated cases of abuse do not represent all cases of
abuse explains the apparent paradox that abused children are reluctant to
disclose their abuse while most substantiated cases of abuse involve children
who have disclosed. [FN309] Problems of representativeness become more
serious as one moves from social services substantiation to juvenile court
involvement to criminal court involvement. The more reluctant or resistant
the child, the less likely that the case will survive higher burdens of
proof. Ceci and Bruck recognized this point, noting that children in
“clinical” samples of abuse are probably less forthcoming about their abuse
than children in “forensic” samples. [FN310] Even less forthcoming than
either of those *1062 are the abused children who are not included in either
sample because they fail altogether to disclose their abuse.
Two lines of research substantiate the underreporting problems.
First, surveys of adults consistently find that a large percentage of adults
now willing to talk about their abuse never revealed it as children, [FN311]
and even fewer of these cases were ever reported to the police or resulted in
Second, studies of children who show medical evidence of sexual abuse find
that from thirty-five percent to fifty percent of these children fail to
disclose their abuse. [FN313]
Even if one overlooks the difficulties of interpreting data on children who
ultimately reveal abuse, such data fail to support Ceci and Bruck’s claims.
Ceci and Bruck cite Sauzier’s study [FN314] for the proposition that when the
abuser used “aggressive methods to gain the child’s compliance to keep the
secret, children were equally likely to tell about the abuse immediately
following the event or to never disclose the abuse.” [FN315] In the cited
study, however, Sauzier referred to cases in which the abuser used aggression
to abuse the child, not to elicit secrecy. [FN316]
Moreover, even if one assumes that aggressive abusers always aggressively
threaten children not to reveal, the fact that an equal number of these
children disclose as fail to disclose does not resolve the question of
whether aggression reduce s disclosure. One must compare this disclosure rate
to the disclosure rate for children who have not been aggressively abused or
Ceci and Bruck do not mention the explicit comparison that Sauzier performed
between cases involving aggressive abuse and those involving abuse
accomplished through manipulation or threats: [FN317]
*1063 The offenders’ strategies for gaining the child’s compliance were also
related to disclosure: Aggressive methods were more likely to evoke either
immediate reporting (39 per cent) or failure to ever tell (43 per cent). . .
Most children subjected to intercourse with aggression never revealed. When
the strategy used relied on manipulation, only 25 per cent of children
reported the abuse immediately. Threats also seemed to prevent children from
telling immediately (only 23 per cent did). [FN318]
Sauzier also investigated the relationship between fearfulness and reluctance
to disclose among abused children and concluded that children who failed to
reveal more serious abuse had the highest fear scores. They described the
fear of losing the affection and goodwill of the offender; fear of the
consequences of telling (being blamed or punished for the abuse by the
non-offending parent); fear of being harmed; and fear of retaliation against
someone in their family. [FN319]
Firm conclusions based on Sauzier’s data are problematic—the sample may not
be representative of abused children generally, and the differences may not
be statistically significant. [FN320] Nevertheless, one fairly can question
the assertion “that the likelihood of disclosure was unrelated to claims of
threats by the offender.” [FN321]
Ceci and Bruck also cite Gray’s study of criminal sexual abuse prosecutions
[FN322] Gray’s study found that children who were threatened by their abuser
were just as likely as children who were not threatened to disclose abuse
before questioning. [FN323] However, children against whom threats are most
effective are least likely to appear among cases prosecuted in criminal
court. Moreover, unlike Sauzier, Gray did not examine whether threatened
children delayed longer than nonthreatened children before revealing abuse.
A Canadian study of 135 children whose cases the Government prosecuted in
criminal court found that “threats were far more common” among those children
who delayed reporting their abuse. [FN324]
*1064 The existence of threats partially explains why interviewers may feel
compelled to ask leading questions when interviewing children about abuse.
Research on keeping secrets suggests that children are more likely to reveal
abuse as questioning becomes more direct. [FN325] However, leading question s
do not always elicit disclosures of wrongdoing. Moreover, these questions may
elicit false disclosures. Inevitably, one faces a tradeoff between false
accusations and false denials.
For many children, sexual abuse is embarrassing. In their study of young
girls’ memories of genital touching by a pediatrician, [FN326]
Saywitz, Goodman, and their colleagues attributed much of the underreporting
in free recall to embarrassment rather than to memory retrieval difficulties.
If memory were the culprit, then one would expect the seven-year-olds to
recall genital touch more accurately than the five-year-olds. Instead, the study
detected the opposite, suggesting that the seven-year-old girls were more
aware of the embarrassing nature of genital touch, even when performed by a
doctor as part of a parentally sanctioned examination. More generally,
touching by unfamiliar adults appears to evoke some discomfort among
children. Several studies have found that false negative responses occur more
often when children are asked about touching rather than about other actions
by strangers. [FN327]
*1065 If children are embarrassed to talk about innocuous touching, they are
likely less inclined to disclose touching they believe will evoke
disapproval. Goodman and others consistently have found that false
affirmations are less common when researchers ask abuse-related questions.
[FN328] Moreover, Goodman observed that children’s demeanor often changed
when interviewers asked abuse-related questions, such as whether an
unfamiliar male kissed the child or took the child’s clothes off. Children
giggled, smiled, looked surprised, or exhibited disgust. [FN329]
Ceci and Bruck point out that “the literature clearly does not support the
strong view that bodily acts are impervious to distortion” [FN330] and cite
several studies in which substantial numbers of children falsely reported
bodily touch. [FN331] Yet Ceci and Bruck do not deny that embarrassment both
suppresses true reports of abuse and decreases the likelihood of false
reports of actions that might suggest abuse. [FN332] Indeed, Ceci and Bruck
have cited research demonstrating that adults report having failed to
disclose abuse as children due to embarrassment and self-blame. [FN333]
*1066 Ceci and Bruck openly acknowledge the role of embarrassment in reducing
false claims of abuse in Goodman’s and Saywitz’s research. [FN334] Ceci and
Bruck treat this fact, however, as if it were a criticism of the research,
rather than a point in favor of its ecological validity. [FN335] The authors
accuse Goodman and Saywitz of “tilting the motivational structure toward
truthful reporting” because “if children in these earlier studies were to
distort what they had witnessed, and claim to have been sexually touched when
they were not, this could be expected to result in embarrassment.” [FN336] If
one is interested in whether children falsely will accuse adults of sexual
abuse, it is hard to understand why asking questions about sexual abuse, as
opposed to less embarrassing actions, is “tilting the motivational
structure.” [FN337] From the perspective of an abuse investigator looking to
the literature for advice, the tilt seems to occur in studies like Sam Stone.
Saywitz and colleagues failed to provide children who had not been touched
with strong motives falsely to disclose abuse, [FN338] and Ceci and Bruck
argue that a desire to avoid embarrassment motivates false allegations.
[FN339] Ceci and Bruck overlook two issues: first, whether interviewers in
fact embarrass children into acknowledging abuse; and second, whether
embarrassment is equally effective as an inducement to reveal and as a
motivator to conceal.
How does one embarrass a child into alleging abuse? Ceci and Bruck suggest a
question like “He kissed you because he loves you, didn’t he?” [FN340] One
can only describe this question as bizarre. [FN341] Young children, unaware
of societal disapproval of sexual abuse, may misinterpret abusive acts as
appropriate affection, at least when coercion, secrecy, or discomfort does
not accompany the abuse. Most consider such a reaction detrimental to the
child, in part because the child may behave sexually in a manner that evoke s
disapproval and puts the child at risk of future abuse. [FN342] An
interviewer who “embarrasses” *1067 a child into reporting abuse in the
manner Ceci and Bruck imagine is not only suggestive, but blatantly
To demonstrate the efficacy of embarrassment in creating false allegations,
the authors cite a study that Ceci and his colleagues conducted of four
three-year-old children whose parents gave them baths. [FN343] Parents kissed
two of the children while the children were in the bathtub and did not kiss
the other two children. Interviewers told the two children the parents had
kissed that it was naughty to be kissed while naked and then asked the
children leading questions designed to embarrass them into a false denial. The
two children whom the parents kissed both denied having been kissed. [FN344]
Interviewers told the two children the parents had not kissed that parents
who loved their children often kissed them while giving them a bath and then
asked a leading question designed to embarrass them into making a false
allegation. One of the children whom the parents had not kissed falsely
admitted having been kissed, although she later reversed her story when a
parent interviewed her alone. [FN345]
One may be tempted to interpret the fact that the false negative rate is
twice as high as the false positive rate to mean that embarrassment
suppresses true reports more than it elicits false accusations. These results
prove little, however, because the sample size was only four. The fact that
the sample size was not larger is itself significant. McGough notes that the
researchers aborted the study and describes the reaction of the two children
whom researchers told that kissing was naughty: “Before the planned
reassurance could be completed—that it was not bad if the touching were by a
parent or close relative—both children displayed high anxiety and began to
cry silent tears.” [FN346] It is instructive to explore why the children whom
researchers told that loving parents kiss their children did not cry.
Possibly, three-year-old children happily would acknowledge that their
parents kissed them in the tub without any embarrassment induction, and
parents may in fact routinely do so (though they did not on this particular
occasion). If anything, the study provides a compelling anecdote that
children may be reluctant to affirm events that they believe are naughty.
Ceci and Bruck argue that embarrassment is not the sole motivator of children
in sexual abuse intervews and cite numerous other *1068 “dominant
motivations” that interviewers may bring to bear on children. [FN347] This
argument, however, sidesteps the simple assertion that embarrassment reduce s
the likelihood that children falsely will affirm sexual touching. Research
that fails to ask about sexual touching exaggerates children’s susceptibility
to suggestion in sexual abuse cases. If a researcher incorporates the other
“dominant motivations,” but does not account for embarrassment, then he
arguably has “tilt[ed] the motivational structure” [FN348] in favor of his
The argument that other motivations may override embarrassment also ignores
the fact that some motivations are more powerful than others. In Ceci and
Bruck’s view, embarrassment and fear of reprisal appear to be the most
powerful motives inducing children to make false statements. [FN349] When one
asks which factor is more likely to induce fear and embarrassment in
children, their awareness of societal attitudes toward sexuality or
interviewer influence, the fact that an interviewer must be heavy-handed
indeed to embarrass and frighten a child into falsely acknowledging abuse
proves particularly striking. [FN350]
C. Recall Versus
Most laypeople have at least some familiarity with the distinction between
recall and recognition, a distinction that memory researchers have found
important for many years. In the classic memory experiment, researchers ask a
subject to memorize a list of words. Subsequently, the researcher tests the
subject’s memory of the words. If the test were for recall, the experimenter
would ask something like, “What were the words on the list you memorized?” If
the test were for recognition, the experimenter would recite words and ask
the subject whether she remembered seeing them on the list.
In a recall test, the subject must generate the words herself, whereas in a
recognition test, she merely identifies the words the experimenter generates.
Therefore, as one moves from recall to recognition, the amount of detail in
the question increases, and the required response moves from a narrative
response to a yes-or-no response. One also may give the subject a test that
lies between recall and recognition. In this test, the experimenter gives the
subject some *1069 help in generating the desired information. The
experimenter might provide hints—or cues—regarding the type of words that
were on the list (e.g., “What animals were on the list?”). One would call
such questions “cued-recall.”
Recall is more difficult than recognition. [FN351] Recall proves particularly
difficult for young children. Ceci and Bruck note that “age differences in
recognition memory are far less pronounced than age differences in free
recall, and at times these are nonexistent.” [FN352] moreover, cues can
reduce age differences in recall performance. [FN353]
Recognition tests, however, do impose certain costs. Although experimenters
can elicit more information through recognition questions, the number of
errors also increase with the use of such questions. Recognition questions
tend to be leading because such questions contain information the child
previously has not disclosed and because the child may assume that the
interviewer desires a “yes” response. In the context of interviewing children
about abuse, a false “yes” presents two dangers: first, the child may simply
respond “yes,” leading the interviewer to believe something untrue; and
second, the child actually may come to believe that the answer is “yes,”
either because the interviewer implicitly suggests this answer or because the
child subsequently recalls her answer better than the original event.
In interviewing terminology, recall is analogous to open-ended questions, and
recognition is analogous to direct or leading questions.
Consider the continuum of questions Bruck and Ceci outlined. Open-ended
questions include “Can you tell me about what happens at naptime?” [FN354]
Specific questions include “Who is in the room at naptime?” and “Do people do
anything special at naptime?” [FN355] Leading questions (other researchers
would call these “direct” or “specific”) [*1070 FN356] include “Did anything
scary happen at naptime?” and “Did anyone ever touch you in a bad place at
Researchers disagree about whether one necessarily must ask children
recognition questions in abuse investigations. On the one hand, several
studies have found that when interviewers supplement open-ended questions
with recognition questions, children produce more information about experienced
events. In particular, preschool children exhibit the greatest increase in
memory performance when interviewers use this technique.
For example, Ornstein and his colleagues examined three- and six-year-old
children’s memories of pediatric examinations. [FN358] The interviews moved
from open-ended to recognition (“yes/no”) questions. Three-year-old children
produced three to four times as much information when one added their
responses to yes/no questions to their answers to open-ended questions. [FN359]
Adding yes/no questions to open-ended responses more than doubled the amount
of information six-year-old children produced. [FN360] As Ceci and his
colleagues have recognized, “it is terribly difficult to elicit recall from
3-year-olds (our youngest age group), and often the sort of prompting that is
necessary to get at the complete contents of their memory is similar to
actually using a recognition procedure.” [FN361]
On the other hand, Lamb and his colleagues repeatedly have demonstrated that
children provide more details and longer responses in abuse investigations to
invitation or recall questions than to *1071 focused or recognition
questions. [FN362] Poole and Lamb concluded that “[a]lthough individual
specific questions elicit much less information than individual open-ended
prompts, researchers consistently have shown that children provide fewer
details in response to open-ended questions than in response to a series of
specific questions.” [FN363] Hence, although open-ended questions may produce
a greater yield per question, specific questions produce a greater overall
yield. Unfortunately, one cannot use Lamb’s data to determine whether it is
possible to elicit most or all of the details of abuse by asking more
open-ended questions because the interviewers in the Lamb studies ask so few
open-ended questions. [FN364] Furthermore, the work of Lamb and his
colleagues suggests that open-ended questions produce their greatest
advantage with older children, but whether preschool children also would benefit
is unknown. [FN365]
Because of the risk of misleading children by asking direct questions, both
researchers and practitioners recommend that interviewers begin with
open-ended questions and move to direct, specific, or leading questions only
if the child is nonresponsive. [FN366] A questioner’s *1072 judgment
regarding the extent to which direct, specific, or leading questioning is
appropriate depends upon the questioner’s estimation of the tradeoff between
the additional amount of true information elicited and the increased risk of
Results from the Inoculation and the Sam Stone Studies confirm the risks of
increasingly focused questions. During the final interview in the Inoculation
Study, the experimenter first asked the child to recall everything she
remembered the time she had her shot. [FN367] The experimenter then showed
the child pictures of the research assistant and pediatrician, in turn, and
asked the child to describe what each person had done during the examination.
[FN368] Finally, the experimenter asked the child specific questions
regarding who performed each procedure. [FN369] The largest percentage of
false allegations came in response to the specific questions, the next
largest came in response to the probe question regarding each persons’
actions, and the smallest percentage came in response to the request for free
recall. [FN370] In the Sam Stone Study, although a substantial number of the
children subjected to suggestive interviews referred to nonexistent events in
their response to a free narrative question, the percentage of false reports
increased in response to a probe question. [FN371]
These two studies failed to consider the extent to which a free recall
request might limit the amount of information interviewers can elicit from
young children. Both studies focused on children’s errors, and therefore they
reported only the percentage of incorrect responses to the various types of
questions. Ceci emphasized that “when there was no attempt by the interviewers
in the Sam Stone Study to *1073 mislead them, even 3-year-olds recalled large
amounts of information accurately.” [FN372] The Sam Stone Study, however,
contained little accurate information for the children to report. As Ceci and
Bruck have noted, “the 2-minute visit of Sam to the classroom is not a
significant event. . . . There really was no event.” [FN373]
In their brief before the New Jersey Supreme Court, Bruck and Ceci refrained
from openly endorsing a position regarding direct or leading questions. They
reviewed guidelines that allow for specific questions and indicated that “[s]
ome interviewers advocate the use of leading questions as a last resort, if
the child provides no information in the interview.” [FN374] An example of a
“last resort” question that only “some” interviewers advocate ever using is
“Did anyone ever touch you in a bad place at naptime?” [FN375 ] This type of
question, unlike the highly coercive and suggestive questions documented in
the Michaels case, fails to name a suspected offender and fails to specify
what being touched in a “bad place” means. [FN376]
The Ceci and Bruck brief also failed to discuss the research findings that
young children have difficulty generating responses to free recall questions.
Nor did the New Jersey court acknowledge this difficulty in establishing the
standard for taint hearings. The court held that the first factor the trial
courts must consider in determining whether to hold a hearing is the “absence
of spontaneous recall” in response to an interviewers’ questions. [FN377] If
the defendant provides “some evidence” that pretrial questioning influenced a
child’s report, the court will bar that child from testifying unless the
state demonstrates *1074 the reliability of the child’s testimony by clear and
V The Scientific Stance of the New Wave
Although expert defense witnesses always have presented a challenge to the
successful prosecution of child abuse, prosecutors have found it easy to
impeach these experts by suggesting that their views on the suggestibility of
children reflect value judgments rather than impartial scientific opinion.
Ironically, the new wave’s scientific stance increases its potential for use
as a powerful weapon for defense attorneys. One cannot easily dismiss the new
wave’s research as the work of defense-oriented zealots. Not only does the
new wave conduct research with scientific rigor, but it also admirably
discusses its research and its implications in an even-handed tone. Ceci and
Bruck have positioned themselves as centrists in a debate between extremes.
To illustrate the comparative credibility of the new wave, consider two of
the most prominent veteran expert witnesses in child abuse cases: Ralph
Underwager and Richard Gardner. The National Center for Prosecution of Child
Abuse named Ralph Underwager enemy expert number one in 1986. [FN380] He is
the director of the Institute for Psychological Therapies and has co-authored
numerous books and articles, including three on allegations of sexual abuse
with his colleague Hollida Wakefield. [FN381] Gardner has “conducted
consultations and provided testimony in a dozen states and . . . [has]
lectured to legal and mental health professionals in 20 more.” [FN382 ]
He is a clinical professor of child psychiatry at the College of Physicians
and Surgeons at Columbia University and is the author of over 250 books and
articles on child psychotherapy. Specifically, he has written three books on
child sexual abuse allegations.
Unlike Ceci and others in the new wave, Underwager and Gardner are not
researchers by profession. Underwager and his coauthor, *1075 Wakefield, pay
close attention to the research literature and declare their adherence to the
“rational, critical scientific mode of thought that seeks ever closer
approximations of truth.” [FN383] However, they remain relatively unimpressed
with the recent wave of research documenting the suggestibility of children
because “[t]his fact . . . has, of course, been perfectly familiar to those
experienced in raising children, for thousands of years.” [FN384]
Underwager’s most notable contribution to the research on child sexual abuse
and child interviewing was a study on anatomical dolls, which Underwager and
his colleagues published in their journal, Issues in Child Abuse Accusations.
[FN385] The study has received some criticism by the research community.
[FN386] Gardner is even less impressed than Underwager with research. In his
book, Sex Abuse Hysteria: Salem Witch Trials Revisited, Gardner excuses his
lack of supporting references to research by noting that he easily could find
references going either way and that “[t]he term scientific proof is not
applicable to most of the issues discussed” in his book. [FN387] Like many
seasoned clinicians, Gardner is quick to rely on his extensive experience
with children to overcome any contradictions in the research literature. For
example, commenting on Goodman’s claim that young children in her research
are resistant to sexual questions, Gardner notes “[t]his has not been my
Underwager and Gardner do not hide their value judgments regarding the
relative weights one ought to give to false allegations and false denials.
Building on Blackstone’s remark that it is better to let ten guilty men go
free than to let one guilty man go to jail, Gardner argues that “’it is
better to let 100 guilty men go free than to convict one innocent man.”’
[FN389] Even more remarkably, Underwager declares that “[i]t is more
desirable that a thousand children in abuse situations are not discovered
than it is for one innocent person to be convicted *1076 wrongly.” [FN390]
The harms of false allegations are self-evident: innocent people are
and once-intact families are destroyed. Gardner believes there are hundreds
(and possibly thousands) of wrongly convicted defendants in jail and that
“[t]here are hundreds . . . who have committed suicide because of a false
sex-abuse allegation.” [FN391]
Although Gardner states that allegations of sexual abuse in general tend to
be true, his work emphasizes the problems of allegations in custodydisputes ,
day-care center cases, and nursery-school cases, the majority of which he
believes are false. [FN392] Wakefield and Underwager, for their part, report
that sixty percent of the child sexual abuse cases they had dealt with were
false allegations. [FN393]
The harms resulting from false denials also seem obvious: an abused child
remains in the abusive home, while a molester goes undetected and unpunished.
Labelling these outcomes as “harms,” however, presupposes that sexual abuse
is itself detrimental, which is something that Gardner and Underwager are
willing to question. Gardner, writing in Underwager’s journal, notes that
“[s]exual activities between adults and children are a universal phenomenon .
. . . [S] uch encounters are not necessarily traumatic. The determinant as to
whether the experience will be traumatic is the social attitude toward these
encounters.” [FN394] Underwager goes even further: Paedophiles spend a lot of
time and energy defending their choice. I don’t think that a paedophile needs
to do that. Paedophiles can boldly and courageously affirm what they choose.
They can say that what they want is to find the best way to love. I am also a
theologian and as a theologian I believe it is God’s will that there be
closeness and intimacy, unity of the flesh, between people. A paedophile can
say: “This closeness is possible for me within the choices that I’ve made.”
The new-wave researchers present a stark contrast to Gardner, Underwager, and
other experts more accustomed to testifying in *1077 court. As scientists,
they avoid asserting value preferences and recognize the tradeoff between
false positives and false negatives. [FN396] They argue that when one
considers the utility of any particular interviewing strategy ,one must
compare the percentage of abused children who truthfully will reveal, given
such a strategy, with the percentage of nonabused children who falsely will
reveal given the same strategy. [FN397] Because these considerations involve
empirical questions, research becomes the tool by which practitioners might
choose among different styles of interviewing.
Sometimes, however, Ceci acts as if the research literature provides a
sufficient ground upon which to make a judgment regarding interviewing style.
He speaks of numerators focusing on the likelihood of false negative s and
denominators focusing on the likelihood of false positives:
I . . . do not make any apologies for being a denominator: my best reading of
the corpus of scientific research leads me to worry about the possibility of
false allegations. It is not a tribute to one’s scientific integrity to walk
down the middle of the road; the data are more to one side. As I hope to
show, the data are somewhat off-center . . . . [FN398]
The scientific data, however, cannot tell an interviewer how aggressively to
interview a child. In addition to the data concerning the relative risks of
false positives and false negatives, one also needs to know the relative
harms of each type of error. How harmful is a false denial of abuse compared
to a false allegation? If a method of interviewing*1078 leads thirty percent
of abused children to report their abuse and leads ten percent of nonabused
children falsely to assert abuses that never occurred, then the method has
some diagnostic utility in distinguishing between abused and nonabused
children. Such diagnostic utility stems from the fact that a higher
percentage of abused children than nonabused children would allege abuse
given the method of interviewing. However, the method may produce a large
number of false allegations. For example, assume that we interview one
hundred children, of whom fifty suffered abuse and fifty did not. Our
interviewing method would elicit twenty allegations of abuse, of which five
would be false. Is a twenty-five percent rate of false allegations
acceptable? Blackstone, Underwager, and Gardner all would say no.
Ceci and his colleagues argue that “[i]t is for the court or the fact finder,
not researchers, to decide how much value to attach to each type of error.
Researchers who assume such a role are usurping the judicial process.”
[FN399] The new wave never underestimates the harms of either false denial or
false allegation. As “both scientists and parents,” Ceci and Bruck are
acutely aware of the need to protect children from the trauma of sexual
abuse. [FN400] On the other hand, they are equally aware of the devastating
effects of a false allegation on the falsely accused, even if the allegation
does not lead to a criminal conviction. [FN401] Ceci and Bruck consider
themselves “numerator and denominator watchers.” [FN402]
Reflecting the available data, the new wave consistently speaks of some
“possibility” of false allegations, rather than asserting that false
allegations are probable or even frequent. Whereas Gardner and Underwager are
willing to assert numbers, Ceci and Bruck prudently avoid such specificity
because “reliable data on the frequency of false claims of sexual abuse” do
not exist. [FN403] Ceci and Bruck are willing to assert that “false claims
exist, and perhaps in nontrivial numbers,” [FN404] but “[they] have never
claimed either explicitly or implicitly that children’s allegations of sexual
abuse are often false.” [FN405] Indeed, Ceci recently stated in an interview:
“Not only do I believe children can be *1079 reliable in sexual abuse cases,
I believe the vast majority of them are reliable in those cases.” [FN406]
What then can the new wave tell us about interviewing? Should interviewers be
less aggressive than they have been in the past because of the number of
false allegations, or should they be more aggressive because so many true
claims of abuse remain unreported? Whether as scientists, parents, or both,
Ceci and Bruck offer recommendations for interviewers, despite the implicit
value judgments that these recommendations entail. For example, they make the
facially unexceptional recommendation that “the ideal interview should not
contain techniques that have been found to have harmful consequences.”
[FN407] To justify their recommendations from a scientific stance,
Ceci and Bruck invoke a powerful analogy between interviewing methods and a
cure for cancer. [FN408] If everyone’s moral senses respond in the same
fashion to the analogy, then the authors can claim that they are not imposing
their own value judgments on others by making recommendations for
The analogy is as follows: Suppose there exists a drug that cures some with
cancer, but causes cancer in some who would otherwise be cancer-free. Would
one give the drug to everyone, assuming one has no idea who has cancer and
who does not? “Obviously not.” [FN409] The drug is analogous to suggestive
techniques in interviewing. One defends these techniques on the grounds that
they increase the likelihood that abused children will reveal their abuse.
The techique, however, also may create false allegations. If the analogy
holds, most people would agree that interviews should not use these
On the one hand, the analogy is evenhanded. Note that the harm of a false
positive and of a false negative is the same—cancer. On the other hand, the
analogy omits exactly what we hope scientists will provide—the percentage of
those with cancer whom the drug will cure and the percentage of those without
cancer who will develop the disease. Without these percentages, the answer to
the question of whether we should provide the drug to everyone is not so obvious.
The answer is obvious only if we assume that we should not give a drug to
individuals when it can cause the harm we are seeking to avoid. In terms of
interviewing children, the analogy would imply that any false allegation of
sexual abuse produced by an interviewing method renders*1080 that method
unacceptable, no matter how many true allegations the method elicits.
Another objection to the analogy stems from the unjustified assumption that
we would administer the drug to everyone, even those who showed no signs or
symptoms of cancer. In terms of sexual abuse, this assumption would mean that
we interview children about whom we have no suspicion of abuse.
In fact, investigative interviewers usually question only those children whom
they suspect have been abused. An important, and often overlooked, fact is
that as the proportion of truly abused children among those researchers
interview varies, so does the number of false allegations any interviewing
method produces. [FN410] Recall the example in which we interviewed 100
children with a method that elicited reports of abuse in thirty percent of
the abused children and ten percent of the nonabused children. When we
assumed that half of the children in fact had suffered abuse, we obtained
twenty allegations of abuse, twenty-five percent of which were false. If we
assume instead that eighty percent of the children interviewed in fact had
suffered abuse, then our method would elicit twenty-four true reports (thirty
percent of the eighty abused children) and two false reports (ten percent of
the twenty nonabused children). Now only eight percent of the allegations we
elicit would be false. As the number of truly abused children among those
that researchers interview grows, the percentage of false allegations decreases.
In deciding whether an interviewing method is unduly suggestive, we therefore
must speculate about the likely ratio of abused to nonabused children in the
pool of interviewed children. Anticipating this problem, Ceci offers a
hypothetical in which we are eighty percent certain that those to whom we
give the drug have cancer. [FN411] This hypothetical analogizes to the
situation in which eighty percent of the children interviewed in fact have
suffered abuse. Without positing anything about the relative rates at which
abused and nonabused children would disclose abuse, Ceci argues that we would
“[p]robably not” administer the drug. [FN412] Therefore, lowering the
percentage of allegations that are false by narrowing the class of
interviewed children does not change Ceci’s value judgment that the costs of
potential *1081 false allegations are not worth the benefits of revealing
some cases of actual child abuse.
In their book, Ceci and Bruck offer a slightly modified version of the same
analogy. [FN413] Rather than imagine a drug that cured cancer in “some” and
caused cancer in “some,” the authors hypothesized a drug that “prevented”
cancer by curing everyone with cancer but “created” cancer in everyone who
was cancer-free, apparently assuming that the drug cures everyone with cancer
and causes cancer in everyone without cancer. “Assuming no reliable method
exists for detecting which individuals have cancer and which do not, should
the drug be administered to everyone? Probably not . . . .” [FN414]
In this version of the analogy, Ceci and Bruck have specified the relative
rate at which false positives and false negatives occur, but these rates are
unrealistic. The analogy only would apply to a procedure by which
interviewers classified all children as abused, so that all abused children
would be correctly classified and all nonabused children would be incorrectly
classified. This procedure would be completely nondiagnostic as a means of
determining which children have suffered abuse.
The new wave emphasizes the possibility, rather than the probability, of
false allegations when converting research results into policy
recommendations. Ironically, by refusing to argue that false allegations are
common, and by refusing to quantify the proportion of acceptable false
allegations, the new wave goes beyond Underwager and Gardner, while at the
same time adopting a more rational tone. If the mere existence of false
allegations justifies reducing the number of true allegations we elicit, then
Ceci and Bruck’s version of Blackstone’s ratio is very high indeed.
An emphasis on the possibility (rather than relative probability) of false
allegations has other advantages. Much of the debate over the new wave of
suggestibility research is basedon the extent to which one can translate the
research to the real world. Are the methods experimenters use in the research
the same as those most interviewers use in actual child abuse investigations?
Would the children respond to the experimenters’ questions the same if they
were asked about sexual abuse? These questions become unimportant if we focus
on the possibility, rather than the probability, of false allegations. One
need not prove that most interviewers use coercive methods, only that some
do. One need not prove that children who report nonevents in the new wave’s
research equally will allege abuse falsely, only that some will.
In the legal arena, one might argue that an emphasis on possibility is
justifiable because possibility constitutes reasonable doubt. If *1082 this
argument held true, however, then juries always should acquit because
wrongful conviction is always a possibility. Prosecutors never conclusively
prove guilt, but guilty verdicts are common. Therefore, jurors must consider
the need to minimize false acquittals as well as false convictions. Civil
cases illustrate this tradeoff even more clearly because they tolerate a much
higher likelihood of false positive error. One cannot quantify easily how
large an error is tolerable; some even argue that we should not attempt to do
so. [FN415] For the judicial system to function, the tolerable risk of error
must be greater than zero.
Even if one decides to tolerate false convictions, a single-minded focus on
the possibility of false positives would distort the process by which court s
make judgments. The new-wave research is likely to have the greatest impact
on judges’ decisions regarding the admissibility of evidence: whether they
should allow children to testify, whether they should admit children’s
out-of-court statements, and whether they should allow experts to testify
regarding suggestibility. In each situation, judges weigh the risks of
various types of error in deciding whether to admit the proffered evidence,
but do not need to decide whether abuse in fact occurred. Rather, judges will
admit evidence as long as it has some probative value (i.e., it increases the
likelihood that abuse occurred), and its probative value is not substantially
outweighed by its prejudicial effect (i.e., the jury will not give it more
weight than it actually deserves). [FN416]
Assessing the probative value of evidence requires some understanding of both
false positives and false negatives. Claims of abuse have some probative
value as long as abused children are more likely to claim abuse than
nonabused children. [FN417] The possibility of false allegations merely means
that some nonabused children will claim abuse, not that claims of abuse are
Assessing prejudice requires the court to consider whether jurors are likely
to give certain types of evidence too much weight. An emphasis on the
possibility of false allegations would be justified if jurors are prone to
accept uncritically claims of abuse as true—if they assume *1083 that there
is no such thing as a false positive. Ceci and Bruck justify their focus on
the “weaknesses” of children’s testimony on the grounds that the weaknesses
“are less well understood by experts and nonexperts” than the strengths.
[FN418] Various surveys of jury-eligible citizens, however, demonstrate that
jurors are well aware of the potential for suggestibility. [FN419]
Potential jurors with personal experience of sexual abuse, who may be
inclined to believe young children’s abuse allegations, are less likely to
make it onto the jury. [FN420] The potential for prejudice from admitting
into evidence children’s statements appears less serious than that from
admitting expert testimony that children are suggestible—something jurors
likely already know.
The most troubling aspect of the emphasis on false allegations is that it may
overwhelm our awareness of the need to uncover true allegations of abuse. One
cannot easily keep both false positives and false negatives in mind at once.
Moreover, despite a warning that possibilities are not probabilities, people
tend to estimate the likelihood of events based upon the ease with which they
can imagine the events. [FN421] Making false allegations easily imaginable
increases their perceived probability. This increase in perceived probability
is especially likely *1084 when vivid portrayals by videotapes or anecdotes
enhance their imaginability. The new-wave researchers are not only
scientists, but also storytellers who disseminate their most impressive
subjects as aggressively as their cumulative data. [FN422] When possibilities
become probabilities, fears turn into unwarranted legal presumptions that
question the reliability of the evidence children present.
“Great care is needed in how researchers describe their results to minimize
the chance that they will be misused by those involved in the adversarial
process.” Stephen J. Ceci & Helene Hembrooke [FN423]
The goal of this paper is to describe how the scientific stance of the new
wave of suggestibility research conceals questionable empirical assumptions
and subjective value judgments. Although the new wave asserts that one can
generalize its findings to actual abuse allegations, the new wave’s research
ignores the realities of sexual abuse and of actual abuse investigation.
These shortcomings render the new-wave research of limited applicability to
real- world abuse cases.
While claiming to address the problems of both false allegations and false
denials of abuse, the new wave emphasizes the dangers of false allegations
and advocates changes in interviewing strategies that may make it more
difficult to detect true cases of abuse. My hope is that the courts and
others will carefully scrutinize the claims of these social scientists
regarding the suggestibility of young children. My position is not that the
new wave’s research is irrelevant to decision makers assessing the
reliability of children’s claims of abuse, but that its relevance is tempered
by the realities of sexual abuse and abuse investigations and by the fact that
no science is value-free.
One could say much more about the new wave and the implications of its
research for sexual abuse cases. For example, I have not discussed the
controversies surrounding repeated interviews and the use of anatomically
correct dolls. I also have not addressed the significance of age difference s
in suggestibility. Careful consideration of these issues might make
real-world interviews look worse and the new-wave research look better.
Alternatively, this consideration might reveal other difficulties in applying
the result of this research to the real *1085 world. [FN424]
Resolution of these issues requires further critical analysis.
Further discussion is especially timely because of the growing attention
courts are paying to this research. Generally, courts have been receptive to
the new-wave research, leading the new wave to claim that their work is
“beginning to have some impact on the legal system in terms of the decision s
that are made by trial and appellate courts.” [FN425] Reviewing the two cases
that the new wave cites to support this claim confirms that the courts are
skeptical of the veracity of young children’s claims of abuse after extensive
interviewing has taken place.
In State v. Michaels, [FN426] Ceci and Bruck authored an amicus brief
(cosigned by forty-three well-respected social scientists) on behalf of the
Committee of Concerned Social Scientists. The brief emphasized the
suggestiveness of pretrial interviews in light of recent research on
suggestibility, much of it conducted by the new wave. Psychologists have
noted that the New Jersey Supreme Court’s opinion “frequently referred” to
the amicus brief, [FN427] and two legal scholars have asserted that the
“brief obviously educated the supreme court of New Jersey and, in so doing,
helped bring the legally sanctified torture ofMs. Michaels to an end.”
[FN428] The court held that if a criminal defendant can demonstrate a
substantial likelihood that a child witness’s testimony was the product of
pretrial suggestion, the child cannot testify unless the state establishes
the testimony’s reliability by clear and convincing evidence. [FN429] The
case constitutes an unprecedented limitation on child witnesses’ testimony.
In United States v. Rouse, [FN430] the Eighth Circuit Court of Appeals held
that preventing an expert psychological witness from testifying that pretrial
interviewing techniques constituted a “practice of suggestibility” was
reversible error. [FN431] The opinion frequently referred to Ceci and Bruck’s
1995 book and their 1993 review article, including a *1086 reference to the
book’s discussion of the Salem witch trials and its implications for modern
day discussions of children’s credibility. [FN432] Ceci and Bruck’s reviews
of the research enabled the court to conclude that the expert’s proffered
testimony fulfilled the requirements of Daubert v. Merrell- Dow
Pharmaceuticals [FN433] that expert scientific testimony be both reliable and
helpful to the trier of fact [FN434] because the suggestive methods that the
expert would discuss had “been amply demonstrated in the psychological
literature as producing undue suggestibility in children’s testimony.”
Closer analysis of these cases, however, suggests that these courts had an
ambivalent reaction to the new wave of suggestibility research.
Although the amicus brief Bruck and Ceci submitted to the New Jersey Supreme
Court may have influenced the court’s opinion, it is remarkable that the
opinion never cited the brief, notwithstanding the claims of some commentators.
The New Jersey opinion also failed to mention any of the new-wave research
this Article discusses, including the Sam Stone Study, the Mousetrap Study,
and the Inoculation Study. [FN437] Rather, the social scientist the court
cited most frequently was Gail Goodman, one of the few researchers who
refused to sign the amicus brief.
The omission likely was not an oversight. The New Jersey Supreme Court was at
pains to avoid taking sides in the debate over children’s suggestibility
The court emphasized a “fairly wide consensus” among “experts, scholars, and
practitioners concerning improper interrogation techniques in finding that
the interviewing practices at issue in Michaels were improper.” [FN438] By
repeatedly quoting Goodman, whom the appellate court had characterized as
making recommendations “slanted in favor of [the] prosecution of sex abuse
cases,” [FN439] the court clearly hoped to render its conclusions
uncontroversial. Furthermore, by failing to quote the amicus brief, the court
implicitly recognized that the “concerned social scientists” were interested
in policy as well as in science.
The new wave’s apparent success in Rouse is particularly equivocal. The
testifying expert in Rouse was not Ceci, Bruck, or any of the experimental
psychologists who signed the amicus brief in Michaels. *1087 Rather, it was
Ralph Underwager, the psychologist who has publicly proclaimed that “[i]t is
more desirable that a thousand children in abuse situations are not
discovered than it is for one innocent person to be convicted wrongly”
[FN440] and that “[p]aedophiles can boldly and courageously affirm what they
Second, the appellate court did not question the district court’s ruling that
Underwager could only “express his own expert opinions and explain his own
prior research” on the grounds that “there is not anywhere near yet the
agreement in the [scientific] community as to methods , techniques, testing
or reliability that would warrant the admissibility before a jury of these
matters.” [FN442] Third, the original opinion in Rouse was vacated, a
rehearing granted, and the en banc court held on rehearing that limiting
Underwager’s testimony was harmless error.
As a result, the endorsement of Ceci and Bruck’s reviews is now in a
dissenting opinion. [FN444]
The new wave’s most recent victory concerns Cheryl Amirault LeFave’s
conviction in the Fells Acres’ daycare case. Relying largely on the affidavit
and testimony of Bruck, a Massachusetts Superior Court judge overturned
LeFave’s conviction, holding that recent research on children’s
suggestibility constitutes “new evidence” proving that suggestive
interviewing practices “forever tainted” the testimony of the child
witnesses. [FN445] The interviews the court quoted in the opinion read like
those in Michaels—highly suggestive, even coercive, questions that evince a
single-minded determination to uncover abuse at all costs. Assuming that the
appellate courts agree with the lower court that the interviewing practices deprived
LeFave of due process, the difficulty they face is how to do justice in the
case before them without doing injustice to the thousands of garden-variety
sexual abuse cases that are prosecuted with little fanfare. What legal rule
will protect the innocent without freeing the guilty?
Striking a balance requires an empirical judgment regarding the
suggestibility of children and a value judgment regarding the tradeoff
between false convictions and false acquittals. Those are judgments about
which reasonable people—even scientists—long will disagree.
[FNd1]. Associate Professor, University of Southern California Law School,
Los Angeles, California. Thanks to
Scott Altman, Mark Everson, Brian Holmgren, Michael Lamb, Martin Levine,
Edward McCaffrey , Jeffrey Rachlinski, Elyn Saks, Karen Saywitz, Eric Talley,
Michael Wald, Helen Westcott, and the participants at the University of
Southern California Law School Faculty Workshop for their comments on drafts.
Thanks to Verinder Shaw and to Hazel Lord and her staff at the University of
Southern California Law Library for research assistance.
[FN1]. Letter from Sigmund Freud to Wilhelm Fliess (Sept. 21, 1897), in The
Complete Letters of Sigmund Freud to Wilhelm Fliess, 1887-1904, at 264
(Jeffrey Moussaieff Masson ed. & trans., 1985).
[FN2]. See Sigmund Freud, The Transformations at Puberty, in Three Essays on
the Theory of Sexuality 93 (James Strachey ed. & trans., Hogarth Press
Ltd. 1962) (1905) (referring to the “child’s sexual impulses towards his
parents , which are as a rule already differentiated owing to the attraction
of the opposite sex—the son being drawn towards his mother and the daughter
towards her father”).
[FN3]. Jean Piaget, Judgment and Reasoning in the Child 202 (Marjorie Warden
trans., Littlefield, Adams 1972) (1928).
[FN4]. See 3A John Henry Wigmore, Evidence in Trials at Common Law A7 924a , at 737 (James H. Chadbourn ed.,
1970). For more recent versions of the same view, see Hon. Charles F. Stafford,
The Child as a Witness, 37 Wash. L. Rev 303, 309 (1962) (noting “the danger
that a child will intermingle imagination with memory” in testimony); Note,
United States v. Bear Runner: The Need for Corroboration in Incest Cases, 23
St. Louis U. L.J. 747, 759-6 0 (1979) (asserting that children fantasize and
lie about incest).
[FN5]. See Richard Ofshe & Ethan Watters, Making Monsters: False
Memories, Psychotherapy, and Sexual Hysteria 242 (1994) (arguing that Freud
“bullied his patients in order that they might confirm his theories and
[FN6]. 3 Sigmund Freud, The Aetiology of Hysteria, in The Standard Edition of
the Complete Psychological Works of Sigmund Freud 189, 204 (James Strachey et
al. trans., Hogarth Press Ltd. 1962).
[FN7]. See Nancy Chodorow, The Reproduction of Mothering: Psychoanalysis and
the Sociology of Gender 160-61 (1978).
[FN8]. See Monique Laurendeau & Adrien Pinard, Causal Thinking in the
Child 25 (1962) (discussing Susan Isaacs, Intellectual Growth in Young Children
(1930) and Jean M. Deutsche, The Development of Chidren’s Concepts of Causal
Relations (1937)). For a more recent version of this criticism, see Margaret
Donaldson, Children’s Minds (1978).
[FN9]. See Stephen J. Ceci & Maggie Bruck, Suggestibility of the Child
Witness: A Historical Review and Synthesis, 113 Psychol. Bull. 403, 406-407
(1993) (discussing the work of Binet, Stern, and Varendonck); Jacqueline L.
Cunningham, Contributions to the History of Psychology: XLVI. The Pioneer
Work of Alfred Binet on Children as Eyewitnesses, 62 Psychol. Rep. 271,
271-76 (1988) (discussing the work of Binet and Stern); Gail S. Goodman,
Children’s Testimony in Historical Perspective, 40 J. Soc. Issues 9, 19-22
(1984) (discussing the work of Binet, Stern, and Varendonck). For a
representative legal view, see M. Ralph Brown, Legal Psychology 133 (1926)
“Create, if you will, an idea of what the child is to hear or see, and the
child is very likely to hear or see what you desire.”).
[FN10]. See Judith Lewis Herman, Father-Daughter Incest 18 (1981). See
generally Sandra Butler, Conspiracy of Silence: The Trauma of Incest (1978)
(explaining the dynamics of and society’s responses to incestuous assault);
Blair Justice & Rita Justice, The Broken Taboo: Sex in the Family (1979)
(providing a primer on incest and suggestions for how to prevent it); Karin
C. Meiselman, Incest (1978) (discussing the causes and effects of incest and
providing recommendations for treatment).
[FN11]. See Herman, supra note 10, at 12-14 & tbl.1.1 (summarizing
studies by Landis (1940); Kinsey (1953); Landis (1956); Gagnon (1965); and
Finkelhor (1978)). The samples were comprised primarily of white,
middle-class women. “In general, the poor, blacks and other minorities, rural
people, and the mentally ill—those groups that are stereotypically suspected
of deviant sexual activities—were conspicuous by their absence from these
studies.” Id. at 12.
[FN12]. See David Finkelhor et al., Sexual Abuse in a National Survey of
Adult Men and Women: Prevalence, Characteristics, and Risk Factors, 14 Child
Abuse & Neglect 19, 20-21 & tbl.1 (1990).
[FN13]. See Lucy S. McGough, Child Witnesses 15 (1994) (reporting that a
number of states have adopted special hearsay exceptions for children’s
reports of abuse); Christopher B. Mueller & Laird C. Kirkpatrick, Modern
Evidence A7 8.35, at 1218 & n.6, A7 8.41, at 1264-66 & nn.15-16
(1995) (detailing the expanded use of medical diagnosis and excited utterance
exceptions to admit children’s reports of abuse).
[FN14]. See McGough, supra note 13, at 15.
[FN15]. See Barbara E. Smith & Sharon Goretsky Elstein, The Prosecution
of Child Sexual and Physical Abuse Cases 26-27 & n.6 (1993) (stating that
a telephone survey of 600 prosecutors nationwide revealed an increase in the
number of sexual abuse cases prosecuted). [FN16]. See, e.g., Gail S. Goodman
& Vicki S. Helgeson, Child Sexual Assault: Children’s Memory and the Law,
40 U. Miami L. Rev. 181, 185-207 (1985) (evaluating the efficacy of the legal
system’s current child questioning techniques in light of the psychological
[FN17]. See id. at 188.
[FN18]. Cf. id. at 188-89 (“It is likely to be more difficult to lead a child
witness into making a false statement about a central piece of
[FN19]. See, e.g., Gail S. Goodman et al., Child Sexual and Physical Abuse:
Children’s Testimony, in Children’s Eyewitness Memory (Stephen J. Ceci et al.
eds., 1987) [hereinafter Goodman et al., Sexual and Physical Abuse]; Gail S.
Goodman et al., The Child Victim’s Testimony, in New Issues for Child
Advocates (Ann M. Haralambie ed., 1986) [hereinafter Goodman et al., Victim’s
Testimony]; Gail S. Goodman & Rebecca S. Reed, Age Differences in
Eyewitness Testimony, 10 Law & Hum. Behav. 317, 321 (1986).
[FN20]. Three-year-olds were particularly likely to assent to leading
questions falsely. See Goodman et al., Victim’s Testimony, supra note 19, at
[FN21]. See Goodman et al., Sexual and Physical Abuse, supra note 19, at 17
;Goodman et al., Victim’s Testimony, supra note 19, at 167, 173; Goodman
& Reed, supra note 19, at 324.
[FN22]. See Goodman et al., Sexual and Physical Abuse, supra note 19, at 17
(finding that three- to four-year-olds were more suggestible than five- to
six- year-olds, but noting that both age groups were close to 100% accurate
when responding to “Did the person kiss you?,” “Did the person hit you?,” and
“Did the person put anything in your mouth?”); Goodman et al., Victim’s
Testimony, supra note 19, at 167, 170, 172 (finding that three-year-olds were
more vulnerable than older children to leading questions, but noting that all
children correctly answered “no” to “Did the person hit you?” and “Did the
person put anything in your mouth?”); Goodman & Reed, supra note 19, at
324 (finding three-year-olds were particularly vulnerable to leading
questions, compared to six-year-olds and adults, but noting that subjects at
each age were resistant to suggestions about “the central action”).
[FN23]. See Gail S. Goodman et al., Children’s Concerns and Memory: Issues of
Ecological Validity in the Study of Children’s Eyewitness Memory, in Knowing
and Remembering in Young Children 249, 280 (Robyn Fivush & Judith A
.Hudson eds., 1990).
[FN24]. See, e.g., Anne C. Rourle, Experts Fault McMartin Child Interview Methods,
L.A. Times, Jan. 25, 1990, at A1 (“Children, [Goodman and other] researchers
insist, cannot tell a lie, at least not about something as painful and
unfamiliar as sexual abuse.”).
[FN25]. Commentators who have argued that children are no more suggestible
than adults include Laura Lane, Note, The Effects of the Abolition of the
Corroboration Requirement in Child Sexual Assault Cases, 36 Cath. U. L. Rev .
793, 806-07 (1987) (“[S]tudies show that children are no more suggestible
than adults.”); Andrea J. Weinerman, Note, The Use and Misuse of Anatomically
Correct Dolls in Child Sexual Abuse Evaluations: Uncovering Fact ... Or
Fantasy?, 16 Women’s Rts. L. Rep. 347, 355 (1995) (“[R]ecent studies suggest
that when adults and children are presented with misleading information,
children are no more suggestible than adults.”). For commentators arguing
that children cannot or do not lie about sexual abuse, see Susan P. Mele,
Major Evidentiary Issues in Prosecutions of Family Abuse Cases, 11 Ohio N.U.
L. Rev. 245, 267-68 (1984) (noting that the “small child ... has yet to
obtain a motive or desire to lie” and that “[t]he child’s belief in adult
omniscience, a God- like quality, impels the child to speak the truth”
(emphasis and footnote omitted)); Roland Summit, The Child Sexual Abuse
Accommodation Syndrome, 7 Child Abuse & Neglect 177, 191 (1983)
(referring to a “maxim among child sexual abuse intervention counselors and
investigators that children never fabricate the kinds of explicit sexual
manipulations they divulge in complaints or interrogations”).
[FN26]. See, e.g., Commonwealth v. Amirault, 677 N.E.2d 652, 674 (Mass. 1997)
(denying the Fells Acres defendants’ motion for a new trial); Commonwealth v.
Amirault, 612 N.E.2d 631, 631 (Mass. 1993) (vacating trial judge’s order to
reduce the Fells Acres defendants’ sentences and reinstating original
sentences); Commonwealth v. LeFave, 556 N.E.2d 83, 93 (Mass. 1990) (affirming
conviction of owner/teacher at Fells Acres for indecent assault and battery
and rape of a child); Findings of Fact, Ruling s of Law, and Order on
Defendant’s Motion for a New Trial, Commonwealth v. LeFave, No. 85-63 (Mass.
Super. Ct. June 1998); State v. Michaels, 625 A.2d 489, 524 (N.J. Super. Ct.
App. Div. 1993) (reversing and remanding nursery school teacher’s conviction
for sexual offenses involving children), aff’d, 642 A.2d 1372, 1385 (N.J.
1994); State v. Kelly, 456 S.E.2d 861, 869 (N.C. Ct. App. 1995) (ordering new
trial after conviction of day care operator on 99 charges including first degree
rape); Patricia Crowley, Not My Child: A Mother Confronts Her Child’s Sexual
Abuse (1990) (supporting the prosecution of Michaels); Paul Eberle &
Shirley Eberle, The Abuse of Innocence: The McMartin Preschool Trial (1993)
(supporting McMartin defense); Jan Hollingsworth, Unspeakable Acts (1986)
(supporting Country Walk prosecution); Lisa Manshel, Nap Time (1990)
(supporting the prosecution of Michaels); Debbie Nathan, Revisiting Country
Walk, 5 Issues in Child Abuse Accusations 1 (1993) (supporting Country
Walkdefense); Frontline: Innocence Lost (PBS television broadcast, July
20-21, 1993) (supporting Little Rascal s defense).
[FN27]. See, e.g., Eberle & Eberle, supra note 26, at 171 (describing
bizarre allegations in the McMartin case); Nathan, supra note 26, at 1
(describing “bizarre” allegations in the Country Walk case); Frontline, supra
note 26 (describing bizarre allegations in the Little Rascals case).
[FN28]. See, e.g., Eberle & Eberle, supra note 26, at 200-02
(criticizing interviewing in the McMartin case); Nathan, supra note 26, at 2
(criticizing interviewing in the Country Walk case); Frontline, supra note 26
(criticizing interviewing in the Little Rascals case).
[FN29]. See Smith & Elstein, supra note 15, at 65-66 (noting that a
survey of prosecutors handling child sexual abuse cases revealed that 39%
perceived a “backlash by jurors due to publicity of cases such as the
McMartin Preschool case”).
[FN30]. Maggie Bruck et al., Reliability and Credibility of Young
Children’ s Reports, 53 Am. Psychol. 136, 137 (1998); see also Maggie Bruck
& Stephen J . Ceci, Issues in the Scientific Validation of Interviews
with Young Children , in Interviewing Young Children About Body Touch and
Handling, at 204, 212 (Monographs of the Soc’y for Research in Child Dev. No.
248, 1996) (“The goal of the next wave ... will need to focus on how empty
the glass can get as conditions resemble those of actual forensic
investigations: the focus will need to be on the assessment of the risks of
these techniques as well on as their benefits.”).
[FN31]. See Debra A. Poole & D. Stephen Lindsay, Assessing the Accuracy
of Young Children’s Reports: Lessons from the Investigation of Child Sexual
Abuse, 7 Applied & Preventive Psychol. 1, 3 (1998) (reviewing
suggestibility research and noting that “[t]he most widely cited studies of
children’s suggestibility are those conducted by Stephen Ceci, Maggie Bruck,
and their colleagues”).
[FN32]. See Stephen J. Ceci, Cognitive and Social Factors in Children’s
Testimony, in Psychology in Litigation and Legislation 11, 13-14 (Bruce D.
Sales & Gary R. VandenBos eds., 1994).
[FN33]. Stephen J. Ceci et al., Children’s Allegations of Sexual Abuse:
Forensic and Scientific Issues: A Reply to Commentators, 1 Psychol. Pub.
Pol’y & L. 494, 499 (1995) (quoting the Memorial Award Committee of the
American Psychological Association).
[FN34]. See, e.g., Maggie Bruck et al., “I Hardly Cried When I Got My Shot!
“Influencing Children’s Reports About a Visit to Their Pediatrician, 66 Child
Dev. 193 (1995) [hereinafter Bruck et al., I Hardly Cried]; Maggie Bruck et
al., Anatomically Detailed Dolls Do Not Facilitate Preschoolers’ Reports of a
Pediatric Examination Involving Genital Touching, 1 J. Experimental Psychol.:
Applied 95 (1995) [hereinafter Bruck et al., Dolls]; Stephen J. Ceci &
Mary Lyn Crotteau Huffman, How Suggestible Are Preschool Children? Cognitive
and Social Factors, 36 J. Am. Acad. Child Adolescent Psychiatry 948 (1997);
Michelle D. Leichtman & Stephen J. Ceci, The Effects of Stereotypes and
Suggestions on Preschoolers’ Reports, 31 Developmental Psychol. 568 (1995).
[FN35]. See Bruck et al., supra note 30.
[FN36]. Stephen J. Ceci & Maggie Bruck, Jeopardy in the Courtroom: A
Scientific Analysis of Children’s Testimony (1995).
[FN37]. See id. at xii.
[FN38]. See Ceci & Bruck, supra note 36, at 302 (expressing a preference
to base predictions on laboratory research rather than on “anecdotes,
personal opinions, and ideological views about children’s gullibility or
innocence”) ; Ceci et al., supra note 33, at 496 (referring to criticisms of
their position as “one-sided, emotional arguments that do not stand the test
of scientific scrutiny”); id. at 501 (suggesting that a critic’s “arguments
fall flat because he uses tactics that although permissible in a courtroom,
are inappropriate in the scientific arena”).
[FN39]. See Ceci et al., supra note 33, at 498. The signatories include
several of the nation’s most well-respected researchers in psychology, such
as Ulric Neisser and Paul Ekman. See Maggie Bruck & Stephen J. Ceci,
Amicus Brief for the Case of State of New Jersey v. Michaels Presented by
Committee of Concerned Social Scientists, 1 Psychol. Pub. Pol’y & L. 272,
[FN40]. See Interview with Gail S. Goodman, Professor of Psychology,
University of California at Davis, in San Diego, Cal. (January 1997).
[FN41]. If a criminal defendant demonstrates a substantial likelihood that a
child witness’s testimony was the product of pretrial suggestion, the child
cannot testify unless the state provides clear and convincing evidence that
the testimony is reliable. See State v. Michaels, 642 A.2d 1372 (N.J. 1994) .
[FN42]. See Findings of Fact, Rulings of Law, and Order on Defendant’s Motion
for a New Trial at 65, Commonwealth v. LeFave, No. 85-63 (Mass. Super. Ct.
[FN43]. See id.
[FN44]. See Martinez-Macias v. Collins, 810 F. Supp. 782, 813 n.68 (W.D. Tex.
1991) (summarizing testimony of Stephen J. Ceci); Maggie Bruck, The Trials
and Tribulations of a Novice Expert Witness, in Expert Witnesses in Child
Abuse Cases 85 (Stephen J. Ceci & Helene Hembrooke eds., 1998)
(summarizing her testimony in the Little Rascals case and the Martensville
trials); Deposition of Stephen J. Ceci, State v. Fijnje, No. 89-43952 (Fla.
Cir. Ct. Sept. 24, 1990).
[FN45]. See United States v. Rouse, 100 F.3d 560, 582 (8th Cir. 1996) (Loker,
J., dissenting) (noting that expert witness referred to work by Ceci and
[FN46]. See, e.g., Morning Edition: Children’s Memories (NPR radio broadcast,
June 26, 1997), available in 1997 WL 12821747; 20/20: From the Mouths of
Babes (ABC television broadcast, Oct. 22, 1993).
[FN47]. See McGough, supra note 13, at 65-76; Angela R. Dunn, Questioning the
Reliability of Children’s Testimony: An Examination of the Problematic
Elements, 19 Law & Psychol. Rev. 203 (1995); Sheila Taub, The Legal
Treatment of Recovered Memories of Child Sexual Abuse, 17 J. Legal Med. 183 ,
190-91 (1996); Nancy E. Walker & Matthew Nguyen, Interviewing the Child
Witness: The Do’s and the Don’t’s, the How’s and the Why’s, 29 Creighton L.
Rev. 1587, 1590, 1600-02 (1996); Dana D. Anderson, Note, Assessing the
Reliability of Child Testimony in Sexual Abuse Cases, 69 S. Cal. L. Rev.
2117, 2137-39 (1996); Robert G. Marks, Note, Should We Believe the People Who
Believe the Children?: The Need for a New Sexual Abuse Tender Years Hearsay
Exception Statute, 32 Harv. J. on Legis. 207, 222 n.75 (1995). For other
recent legal commentary warning of children’s suggestibility, see John R.
Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the
Influence of Pretrial Interviews, 62 Wash. L. Rev. 705, 708-13 (1987); Thomas
L. Feher, The Alleged Molestation Victim, the Rules of Evidence, and the
Constitution: Should Children Really Be Seen and Not Heard?, 14 Am. J. Crim.
L. 227, 231-33 (1987); Julie A. Dale, Comment, Ensuring Reliable Testimony
from Child Witnesses in Sexual Abuse Cases: Applying Social Science Evidence
to a New Fact-Finding Method, 57 Alb. L. Rev. 187, 195-99 (1993); Diana Younts,
Note, Evaluating and Admitting Expert Opinion Testimony in Child Sexual Abuse
Prosecutions, 41 Duke L.J. 691, 723-29 (1991). For commentary critical of the
new wave of research, see Thomas D. Lyon, False Allegations and False Denials
in Child Sexual Abuse, 1 Psychol. Pub. Pol’y & L. 429, 430-36 (1995)
(criticizing Ceci and colleagues’ work); Lisa Manshel, The Child Witness and
the Presumption of Authenticity After State v. Michaels, 26 Seton Hall L.
Rev. 685, 691-93 (1996) (same); John E.B. Myers et al., Psychological
Research on Children as Witnesses: Practical Implications for Forensic
Interviews and Courtroom Testimony, 28 Pac. L.J. 3, 18-20 (1996) (criticizing
one of Ceci and colleagues’ studies) , Helen Westcott, Jeopardy in the
Courtroom: A Scientific Analysis of Children’s Testimony, 89 Brit. J.
Psychol. (forthcoming 1999) (book review)
[FN48]. Stephen J. Ceci et al., The Suggestibility of Children’s
Recollections, in Child Abuse, Child Development, and Social Policy 117, 13 3
(Dante Cicchetti & Sheree L. Toth eds., 1993).
[FN49]. Indeed, Ceci and Bruck have suggested that “[p]erhaps no researcher
has done more to redress the historical imbalance in favor of child witnesses
than Gail Goodman. After almost a century of research criticizing and
belittling the accuracy and suggestibility of child witnesses, Goodman has
presented a far more optimistic picture of children’s abilities.” Ceci &
Bruck, supra note 9, at 410. [FN50]. See Ceci & Bruck, supra note 36, at
[FN51]. See id.
[FN52]. See Ceci & Bruck, supra note 9, at 432 (“For example, although
Goodman and her colleagues chose to focus on segments of their data that did
not contain age differences (e.g., abuse-related suggestions, stress
induction), ... they almost always found age differences in overall
suggestibility, with the youngest preschoolers being disproportionately more
suggestible than older children.”); see also id. at 410 n.2 (discussing
Leslie Rudy and Gail S. Goodman, Effects of Participation on Children’s Reports:
Implications for Children’s Testimony, 27 Developmental Psychol. 527 (1991),
and indicating that “their conclusions concerning the effects of
participation seem overgenerous, given the actual pattern of results”).
[FN53]. Id. at 433.
[FN54]. Ceci et al., supra note 33, at 502.
[FN55]. See id. at 504 n.6 (noting that although they “readily accept the
rarity of value-free observations” in science, they believe that “[r]
esponsible scientists do not abandon their methodology, when it comes to the
interpretation stage, but apply it with equal force and relevance”).
[FN56]. Ceci, supra note 32, at 45.
[FN57]. Stephen J. Ceci et al., Human Subjects Review, Personal Values, and
the Regulation of Social Science Research, 40 Am. Psychol. 994, 1001 (1985) ;
see also Douglas P. Peters & Stephen J. Ceci, Peer-Review Practices of
Psychological Journals: The Fate of Published Articles, Submitted Again, 5
Behav. & Brain Sci. 187, 189-91 (1982) (discussing their study in which
they submitted for publication 12 previously-published research articles
authored by researchers from prestigious psychology departments, substituting
names of unknown researchers from less-prestigious schools). The study found
that 89f the reviewers recommended rejection. See id. at 189. “[T]he manuscripts
were rejected primarily for reasons of methodology and statistical treatment,
not because reviewers judged that the work was not new.” Id. At 191.
[FN58]. Bruck, supra note 44, at 95.
[FN59]. See Testimony of Maggie Bruck at 15,429-30, State v. Kelly, No.
933SC676 (N.C. Super. Ct. 1992) (describing testimony of Bruck who criticized
Gail Goodman et al., Children’s Testimony Nearly Four Years After an Event
(1989) (unpublished manuscript), a paper presented at the meeting of the
Eastern Psychology Association, Boston, MA, which is summarized in Gail S.
Goodman & Alison Clarke-Stewart, Suggestibility in Children’s Testimony:
Implications for Sexual Abuse Investigations, in The Suggestibility of
Children’s Recollections 92 (John Doris ed., 1991)); id. at 15,462
(criticizing Karen J. Saywitz et al., Children’s Memories of a Physical
Examination Involving Genital Touch: Implications for Reports of Child Sexual
Abuse, 59 J. Consulting & Clinical Psychol. 682 (1991)); Testimony of
Maggie Bruck at 5251, The Queen v. Sterling, Q.B.J. No. 74 (Sask.) (1994)
(criticizing Rudy & Goodman, supra note 52, at 527).
[FN60]. See Saywitz et al., supra note 59.
[FN61]. See id. at 683.
[FN62]. See id. at 684.
[FN63]. See id. at 686.
[FN64]. See id.
[FN65]. Id. at 684 (internal quotation marks omitted).
[FN66]. See id. at 687 (“The 2.86% rate is based on 35 children because one
parent crossed out the vaginal touch question.”).
[FN67]. See id.
[FN69]. See id. at 686-87.
[FN70]. Testimony of Maggie Bruck at 15,458-59, State v. Kelly, No. 933SC67
6 (N.C. Super. Ct. 1992); see also Testimony of Maggie Bruck at 5321, The
Queen v. Sterling, Q.B.J. No. 74 (Sask.) (1994) (explaining that Bruck failed
to discuss the Saywitz study in her direct examination because of her belief
that the study is not relevant to cases in which children are given repeated
interviews with repeated suggestions).
[FN71]. Testimony of Maggie Bruck at 15,462, Kelly, No. 933SC676.
[FN72]. Saywitz et al., supra note 59, at 691.
[FN73]. Id. at 690.
[FN74]. Id. (emphasis added). Technically, the authors are correct in stating
that the risk of unreported touch is greater than the risk of falsely
reported touch, because the percentage of touched girls who failed to
disclose is greater than the percentage of untouched girls who falsely
claimed they were touched. Yet calling nondisclosure the “greater risk”
implicitly assumes that both kinds of risk are weighed equally. Moreover, the
calculations assume that 50% of children questioned have in fact been
touched. If the percentage is much lower than 50%, even a very low error rate
may mean that direct questions lead to reports of genital touch that are more
likely false than true. These issues are discussed at greater length infra
text accompanying notes 410-12.
[FN75]. See Goodman et al., supra note 59.
[FN76]. Testimony of Maggie Bruck at 15,310, Kelly, No. 933SC676 (internal
quotation marks omitted).
[FN77]. Goodman & Clarke-Stewart, supra note 59, at 97 (internal
quotation marks omitted).
[FN78]. Id. at 97-98.
[FN79]. Testimony of Maggie Bruck at 15,311, Kelly, No. 933SC676.
[FN80]. Id. at 15,429.
[FN81]. Id. at 15,429-30.
[FN82]. Id. at 15,431.
[FN83]. See supra note 47 (citing law review articles favorably mentioning
new wave research).
[FN84]. See supra note 25 (citing law reviews arguing children are no more
suggestible than adults).
[FN85]. Testimony of Maggie Bruck at 15,433, Kelly, No. 933SC676.
[FN86]. Ceci et al., supra note 48, at 133.
[FN87]. See Leichtman & Ceci, supra note 34, at 570.
[FN88]. See id.
[FN89]. Id. at 571.
[FN90]. Id. app. B at 577 (internal quotation marks omitted).
[FN91]. Id. app. C at 578 (internal quotation marks omitted).
[FN92]. Id. (internal quotation marks omitted).
[FN93]. See id. at 572-73.
[FN94]. Ceci & Bruck, supra note 36, at 131-32.
[FN95]. See Bruck et al., I Hardly Cried, supra note 34, at 195.
[FN96]. See id.
[FN97]. See id. at 198-99.
[FN98]. See id. at 200-01.
[FN99]. See id.
[FN100]. See id.
[FN101]. See id. at 203-04.
[FN102]. Id. at 207.
[FN103]. See Stephen J. Ceci et al., Repeatedly Thinking About a Non-
Source Misattributions Among Preschoolers, 3 Consciousness & Cognition
388, 394 (1994).
[FN104]. Id. at 394, 395 (internal quotation marks omitted).
[FN105]. See id. at 395.
[FN106]. See Ceci & Bruck, supra note 36, at 219. [FN107]. Stephen J.
Ceci et al., The Possible Role of Source Misattribution s in the Creation of
False Beliefs Among Preschoolers, 42 Int’l J. Clinical & Experimental
Hypnosis 304, 306-07 (1994) (omissions and alterations in original) (quoting
one of the children in the study).
[FN108]. See Maggie Bruck et al., Children’s Reports of Pleasant and
Unpleasant Events, in Recollections of Trauma 199, 203 (J. Don Read & D.
Stephen Lindsay eds., 1997).
[FN109]. Id. at 204.
[FN111]. Bruck et al., supra note 30, at 143.
[FN112]. See Goodman & Reed, supra note 19, at 328 (“While children
appeared more suggestible than adults, suggested information was unlikely to
appear in their free recall of the event.”).
[FN113]. See Gail S. Goodman & Christine Aman, Children’s Use of
Anatomically Detailed Dolls To Recount an Event, 61 Child Dev. 1859, 1869
(1990) (“[T]he children’s errors were largely nods of the head. The children
never provided spontaneous elaborations that would indicate that sexual abuse
occurred.”); Goodman et al., Sexual and Physical Abuse, supra note 19 , at 12
(“[W]hen the children conformed to the suggestive questions, it was typically
with a hesitant yes or no, without further incorrect elaboration. The
children were more likely to elaborate on their correct responses.”); Saywitz
et al., supra note 59, at 687 (“Of the [three] children in the nongenital
condition who made the three commission errors [and falsely reported genital
and/or anal touch], two were unable to provide any detail.”).
[FN114]. See Goodman et al., supra note 23, at 278-79 (“By the age of 4
years, most children we have tested are surprisingly resistant to abuse
suggestions.... The answer may lie in the fact that child abuse involves
actions directed against a child’s body, actions that violate their
[FN115]. See Ceci & Bruck, supra note 36, at 276 n.1. Discussing her
testimony in the Sterling case, Bruck asked the defense attorney before trial
for a “brief outline of the facts of the case as well as some material on the
interviewing procedures used with the children so that I could be sure that
the suggestibility of young children was a key issue in this case.” Bruck,
supra note 44, at 99. On cross-examination in her testimony, she responded
negatively to the prosecutor’s question as to whether she had done “any work
on this case in terms of looking at the techniques used.” Testimony of Maggie
Bruck at 5256, The Queen v. Sterling, Q.B.J. No. 74 (Sask.) (1994).
[FN116]. Ceci & Bruck, supra note 36, at 299; see also Bruck & Ceci,
supra note 30, at 207 (“We have chosen to include in our studies procedures
to measure the risks of various interviewing techniques that are commonly used
in investigative and therapeutic arenas.” (emphasis added)); id. at 211
(arguing that “adults make frequent misleading suggestions” in “a climate
more typical of actual sex abuse investigations” (emphasis added)); Brucke t
al., supra note 108, at 199 (noting that social scientists have turned their
attention “to examining the accuracy of children’s testimony under a range of
conditions that are characteristic of those that bring children to court “ (emphasis added)). Other researchers
have made similar claims. See Debra Ann Poole & Lawrence T. White, Tell
Me Again and Again: Stability and Change in the Repeated Testimonies of
Children and Adults, in Memory and Testimony in the Child Witness 24, 32
(Maria S. Zaragoza et al. eds., 1995) (“[F]ew investigators have simulated
the intensity of leading and misleading information to which the typical
witness is exposed. Notable exceptions are two recent studies by Ceci and his
colleagues.” (citing the Sam Stone Study and the Inoculation Study)).
[FN117]. See supra text accompanying notes 60-69.
[FN118]. Compare Saywitz et al., supra note 59, at 690-91 (noting that the
study “attempted to attain greater ecological validity than heretofore
achieved in research on children’s testimony” and that it fell short only to
the extent that it “lacked the urgency of a clinical evaluation or courtroom
proceeding”), with Testimony of Maggie Bruck at 15,458-59, State v. Kelly,
No. 933SC676 (N.C. Super. Ct. 1992) (“As I said about the Goodman and, ah,
Saywitz study. It’s a meaningless study. Those kids were questioned in
totally unrealistic ways in terms of what goes on in sexual abuse cases.”).
[FN119]. Goodman et al., supra note 23, at 258.
[FN120]. Ceci & Bruck, supra note 9, at 421 (first emphasis added).
[FN121]. See Testimony of Maggie Bruck at 15,332, Kelly, No. 933SC676 (“Q:In
your experience and based upon the scientific studies that you reviewed, ...
do even the most careful interviewers resort or lapse into the use of
suggestive, ... questioning techniques? A: Yes, they do.”).
[FN122]. See Testimony of Maggie Bruck at 5256, The Queen v. Sterling, Q.B.J.
No. 74 (Sask.) (1994) (“Q: So you are generalizing in terms of techniques. Is
that correct? A: Yes. Q: Okay. Now you talk about what typically occurs in an
investigative interview. Is that correct? A: That’s correct.”).
[FN123]. See id. at 5257-58.
[FN124]. Ceci & Bruck, supra note 36, at 82.
[FN126]. Testimony of Maggie Bruck at 5259, Sterling, Q.B.J. No. 74 (Sask.)
(“[T]his isn’t a scientific study of investigative techniques.”).
[FN127]. See Ceci & Bruck, supra note 36, at 82.
[FN128]. See Testimony of Maggie Bruck at 5260-61, Sterling, Q.B.J.
No. 74 (Sask.) (“I haven’t really monitored myself about how I do this, but I
don’t—I don’t review interviews for scientific purposes. I review the
interviews for general knowledge about what this interview might have been
like, but it’s not to do a scientific study on.”).
[FN129]. Ceci & Bruck, supra note 36, at 88 (citations omitted).
[FN130]. Ceci, supra note 32, at 26.
[FN131]. Ceci et al., supra note 33, at 501.
[FN132]. Id.; see id. (“[W]e wonder whether any knowledgeable individual
believes that poor interviews do not exist. Again, we answer our own question
by pointing out that Myers (1995) himself, despite his posturing to the
contrary, finally agrees with our claims: ‘I concede that highly improper
interviews occur too often.”’).
[FN133]. Nightline (ABC television broadcast, Nov. 14, 1996), available in
LEXIS, ABC News Transcripts. Compare this view to Ralph Underwager, who is
quoted in the same broadcast: “I believe the great majority of the
questioning of children that is done in this country is highly coercive,
highly suggestive, leading, and produces inaccurate information.”
[FN134]. Ceci & Bruck, supra note 36, at x.
[FN135]. See id. at 9 (describing Little Rascals with twelve child
witnesses); id. at 11-13 (describing Michaels with nineteen child witnesses ,
and Finje/Old Cutler with a “large number of preschool children”); id. at 1 5
(describing Fuster/Country Walk with five child witnesses). The other two
cases involved a rape of a seven-year-old girl, allegations the authors
believed were true, and a murder case involving a nine-year-old witness,
allegations the authors suspected were untrue. See id.
[FN137]. See Ceci & Bruck, supra note 9, at 403.
[FN138]. Stephen J. Ceci & Maggie Bruck, Child Witnesses: Translating
Research Into Policy, Soc. Pol’y Rep., Fall 1993, at 1, 26 n.3 (citation
[FN139]. Ceci & Bruck, supra note 36, at xi.
[FN140]. David Finkelhor et al., Nursery Crimes: Sexual Abuse in Day Care 7 0
(1988). Nine children ultimately testified at the McMartin trial. See Nancy
Walker Perry & Lawrence S. Wrightsman, The Child Witness 8 (1991).
[FN141]. See Smith & Elstein, supra note 15, at 82 (“In over four-fifths
of the cases (85%), the defendant was charged with sexually abusing a single
victim. In an additional 11% of the cases, two victims were named in the
indictment. Far less often (5% of the cases), three or more victims were
named.” (footnotes and citations omitted)); see also id. at 99 (noting that
in 22% of cases in which a defendant was charged with abuse of one victim
there were allegations of abuse against other victims which were not
[FN142]. Ceci & Bruck, supra note 138, at 26 n.3; cf. Ceci & Bruck,
supra note 36, at xi (“[A]ll of the arguments we make for and against the
reliability of children’s testimony in sexual abuse cases apply equally to
non-sexual-abuse contexts ....”).
[FN143]. See Ceci & Bruck, supra note 36, at 30 (“[I]t appears that most
of the reported cases of child abuse involve intrafamilial abuse (broadly
defined) and that only a small minority involve strangers.”); Smith &
Elstein, supra note 15, at 86 (studying the relationship between defendant
and victim in criminal child abuse cases and concluding that “[o]nly 6% of
the defendants were strangers to their victims” and “[t]he most common
relationship was that of a parent, or a parental figure”). Of course,
virtually all alleged abusers in dependency and family court are family
members because these courts only hear cases in which family members are
allegedly responsible for abuse, either because they themselves are abusers
or because they allowed someone else to abuse their child.
[FN144]. Custody battles in which ex-spouses are accused of abuse present the
most likely occasion for stereotype induction. It is unclear, however,
whether one needs to warn judges who hear these cases about the dangers of
influence because family courts generally are skeptical of sexual abuse
claims. See Meredith Sherman Fahn, Allegations of Child Sexual Abuse in
Custody Disputes: Getting to the Truth of the Matter, 25 Fam. L.Q. 193,
[FN145]. See infra text accompanying notes 288-96 (arguing that mothers are
often unsupportive of their children’s allegations of abuse).
[FN146]. See Smith & Elstein, supra note 15, at 83 tbl.IV-1.
[FN147]. Ceci & Bruck, supra note 138, at 26 n.3; see Ceci & Bruck,
supra note 36, at xi.
[FN148]. Ceci & Bruck, supra note 36, at x.
[FN149]. See Paul Slovic et al., Facts Versus Fears: Understanding Perceived
Risk, in Judgment Under Uncertainty: Heuristics and Biases 463, 467-68
(Daniel Kahneman et al. eds., 1982).
[FN150]. See Ceci & Bruck, supra note 36, at 8-9.
[FN151]. Bruck et al., supra note 30, at 140-41. The authors also discuss the
use of anatomically correct dolls. See id. at 140. Whether one can
characterize their use per se as evincing “interviewer bias” is beyond the
scope of this paper; suffice it to say that several professional
organizations have taken the position that the use of dolls as an adjunct to
interviewing is appropriate. See American Prof’l Soc’y on the Abuse of
Children, Practice Guidelines: Use of Anatomical Dolls in Child Sexual Abuse
Assessments 2 (1995) (“When used by a knowledgeable and experienced
professional, anatomical dolls can be an effective tool to aid in
interviewing children.”); Ronald E. Fox, Proceedings of the American
Psychological Association, Incorporated, for the Year 1990: Minutes of the
Annual Meeting of the Council of Representatives, 46 Am. Psychol. 689, 722
(1991) (issuing a statement on the use of anatomically detailed dolls in
forensic evaluations adopted by APA’s Council of Representatives and
approving “doll-centered assessment of children when used as part of a
psychological evaluation and interpreted by experienced and competent
examiners”). But cf. Gerald P. Koocher et al., Psychological Science and the
Use of Anatomically Detailed Dolls in Child Sexual-Abuse Assessments, 118
Psychol. Bull. 199, 218 (1995) (reporting for the Anatomical Doll Working
Group financed by the APA and concluding that although dolls “can still
provide a useful communication tool in the hands of a trained professional
interviewer,” the APA should “reconsider whether valid ‘doll-centered
assessment’ techniques exist”).
[FN152]. Bruck et al., supra note 30, at 143.
[FN153]. See Amye R. Warren et al., “It Sounds Good in Theory, But ...”: Do
Investigative Interviewers Follow Guidelines Based on Memory Research?, 1
Child Maltreatment 231, 238-39 (1996).
[FN154]. See Barbara W. Boat & Mark D. Everson, Concerning Practices of
Interviewers When Using Anatomical Dolls in Child Protective Services
Investigations, 1 Child Maltreatment 96 (1996).
[FN155]. See Mary Ann Foley et al., Developmental Comparisons of the Ability
To Discriminate Between Memories for Symbolic Play Enactments, 30
Developmental Psychol. 206, 208-09 (1994) (finding that three-year-olds are
more likely than five-year-olds to believe mistakenly that they had played
with an object that they had only pretended to play with).
[FN156]. See Boat & Everson, supra note 154, at 101 & tbl.4.
[FN157]. Bruck et al., supra note 30, at 141.
[FN158]. See Ceci & Bruck, supra note 36, at 82. They stated that some
recent studies reveal the pervasiveness of some interviewing styles. Warren
and her colleagues (see McGough and Warren, 1994) have analyzed the child
sexual abuse investigative interviews conducted by Child Protective Services
professionals in the state of Tennessee. These interviewers spent little if
any time asking children open-ended questions; 90% of all questions were
highly specific, requiring one-word answers (see Lamb et al. , in press, for
similar results for trained Israeli “youth” investigators). Id.
[FN159]. See Warren et al., supra note 153, at 232.
[FN160]. See id. at 236.
[FN161]. Id. at 241.
[FN162]. See id. Approximately 94% of the interviewers in the Warren sample
introduced new information in their interview. See id.
[FN163]. See id. at 242.
[FN164]. See id. at 241-42.
[FN165]. See id. at 242.
[FN166]. See id. at 237 (noting that Lamb and colleagues obtained “consistent
results,” because in Lamb’s work, “[f]ewer than 10% of the interviewers’
utterances were invitational, defined as encouraging an open- ended,
narrative response from children”). At times, Warren and colleagues’ findings
make interviewers look worse than those in Lamb’s research because of the way
Warren and colleagues present their data. Rather than calculate the
percentage of questions that introduced new information, Warren and
colleagues calculated the percentage of interviewers who ever introduced new
information. See id. at 241-42. Hence, approximately 94% of the interviews
introduced new information, and 67% repeated new information at some point in
the interview. See id. These are impressive numbers, but consistent with the
proposition that proportionally very few questions impart new information to
[FN167]. Michael E. Lamb et al., Effects of Investigative Utterance Types on
Israeli Children’s Responses, 19 Int’l J. Behav. Dev. 627, 631, 633 (1996).
Lamb’s research identifies the Israeli youth investigators studied as
“specially trained,” implying that they might outperform the typical American
investigator. Warren et al., supra note 153, at 237; see also Ceci &
Bruck, supra note 36, at 82 (noting that Israeli youth investigators are
“trained”). Most, however, received training as probation officers rather
than as forensic investigators. See Kathleen J. Sternberg et al., Child
Sexual Abuse Investigations in Israel: Evaluating Innovative Practices, in
International Perspectives on Child Abuse and Children’s Testimony 62, 69
(Bette L. Bottoms & Gail S. Goodman eds., 1996) (“Youth investigators are
not adequately trained in forensic investigation and must therefore learn the
necessary skills ‘on the job.”’). Furthermore, the least experienced
investigators were assigned the sexual abuse cases. See id.
[FN168]. See Lamb et al., supra note 167, at 633 tbl.1.
[FN169]. Id. at 631 (emphasis added).
[FN171]. See id. at 633 tbl.1.
[FN172]. See Kathleen J. Sternberg et al., The Relation Between Investigative
Utterance Types and the Informativeness of Child Witnesses, 1 7 J. Applied
Developmental Psychol. 439, 442, 447-49 (1996).
[FN173]. See Michael E. Lamb et al., Investigative Interviews of Alleged
Sexual Abuse Victims with and Without Anatomical Dolls, 20 Child Abuse &
Neglect 1251, 1252, 1256 (1996).
[FN174]. Irit Hershkowitz et al., The Relationships Among Interviewer
Utterance Type, CBCA Scores and the Richness of Children’s Responses, 2 Legal
& Criminological Psychol. 169, 171 (1997); see id. at 173-74.
[FN175]. See Lamb et al., supra note 173, at 1255 tbl.1 (finding 7.2%
suggestive questions with an average of 4.9 utterances when no doll was used
and 8.2% with an average of 8 utterances when a doll was used); Sternberg et
al., supra note 172, at 446 tbl.2 (finding 8.7% suggestive questions when
multiple incidents of abuse alleged and 9.9% when single incident alleged).
[FN176]. The other studies Bruck and her colleagues cite exemplify rather
than address the problems with defining leading and suggestive questioning.
Bull and Cherryman, for example, asked evaluators to listen to police
interrogations and to rate how often investigators asked “leading questions,”
yetthey never defined the term “leading question.” On average, the evaluators
found that leading questions were “often present.” Ray Bull & Julie
Cherryman, Helping To Identify Skills Gaps in Specialist Investigative
Interviewing 20 (1995) (internal quotation marks omitted). The fact that the
report examined interviews with suspects, most of them adults, colors the
relevance of the report for assessing interviews with children. The study by
Yuille and his colleagues is unpublished, and unfortunately the published
accounts do not define the “inappropriate interviewing” which rendered
“meaningless any assessment of the child’s account based on the interview
alone,” a problem the authors identified among a fourth of the investigative
interviews they examined. John C. Yuille et al., The Nature of Allegations of
Child Sexual Abuse, in True and False Allegations of Child Sexual Abuse 21,
35 (Tara Ney ed., 1995).
[FN177]. Several factors may limit the generalizability of these findings.
For example, interviewers might behave differently when questioning younger
children. Although half of the interviewees in Warren and colleagues’ research
were six years of age or younger, see Warren et al., supra note 153, at 232,
only a small proportion of interviewees in Lamb and colleagues ‘samples were
of preschool age, see Lamb et al., supra note 167, at 635 (“Because we
limited this study to children between 5 and 11 years of age, we do not know
whether similar results would have been obtained had the study been focused
on preschool-aged children.”). Moreover, clinicians who accept special
referrals for sexual abuse evaluation might differ from front-line child
protective service workers and police officers. Clinicians may see reticent,
troubled children more often, thereby prompting them to ask more leading
questions. But see Hershkowitz et al., supra note 174, at 171-72
(characterizing 11% of questions as suggestive in a sample of interviews by
“two expert and experienced forensic psychologists” who conducted interviews
“at the request of legal, judicial and criminal justice agencies”).
[FN178]. Bruck & Ceci, supra note 39, at 306 (internal quotation marks
omitted); see also Testimony of Maggie Bruck at 15,314, State v. Kelly, No.
933SC676 (N.C. Super. Ct. 1992) (“[I]f I spilled my glass of water and you
said, Did you spill your glass of water? That’s a leading question because
the information is in the question.”). Note that although the questions
arguably provide some information about the interviewer’s hypothesis (that
something scary happened at naptime), they fail to name the alleged
perpetrator or describe the alleged acts in any detail. More recently, Bruck
and her colleagues refer to “leading” questions as those in which the
“question stem presupposes the desired answer.” Bruck et al., supra note
30 , at 140. I am unsure how they
would classify the aforementioned questions using this definition.
[FN179]. See Testimony of Maggie Bruck at 15,314, Kelly, No. 933SC676
(explaining that leading and misleading questions “are questions that we have
been warned not to use with children because it’s very easy for the kids to
kind of give a response just based on the information that’s in the question,
not based upon the information that’s in their head”); Bruck & Ceci,
supra note 39, at 306 (acknowledging but not endorsing the views of “some
interviewers” who “advocate the use of leading questions as a last resort”);
Ceci & Bruck, supra note 138, at 18 (“Interviewers who ask nonleading
questions, who do not have a confirmatory bias (i.e., an attachment to a
single hypothesis), and who do not repeat close-ended, yes/no questions
within or across interviews, are more likely to obtain accurate reports from
[FN180]. Ceci & Bruck, supra note 9, at 416. Later, the authors refer to
the questions as “suggestive,” which they elsewhere treat as synonymous with
“leading.” See, e.g., id. at 411 (“A second concern is the number of
suggestive questions included in the interviews. For example, the Marin et
al. (1979) study included only one leading question.”); see also Michelle D .
Leichtman et al., The Nature and Development of Children’s Event Memory, in
Trauma and Memory 158, 171 (Paul S. Applebaum et al. eds., 1997) (describing
suggestions as “erroneous suggestions” and as “leading questions”).
[FN181]. This Article borrows the term “highly misleading” from Ceci and
Bruck, who use it to describe questions used in Binet’s research that are
analogous to those used in the Sam Stone Study (e.g., “What was the color of
the thread that attached the button to the board?”). Ceci & Bruck, supra
note 36, at 54 (internal quotation marks omitted). In the official write-up
of the Sam Stone Study, the authors referred to the questions as “erroneous
suggestions.” Leichtman & Ceci, supra note 34, at 571.
[FN182]. Leichtman & Ceci, supra note 34, at 578 (internal quotation
[FN183]. Bruck et al., supra note 30, at 139.
[FN184]. Id. (internal quotation marks omitted).
[FN185]. Indeed, the contention that some leading questions are more leading
than others is probably one of the oldest and most often replicated finding s
in the suggestibility literature. See, e.g., Goodman, supra note 9, at 19
(discussing Binet’s turn-of-the-century work, which found differences in
suggestiveness among the following leading questions: “How is the button
fastened?”; “Is the button fastened with a thread?”; and “What is the color
of the thread which passes through the hole of the button and fixes it to the
card?” (internal quotation marks omitted)). Ceci and Bruck have discussed the
step-wise effects of increasingly leading questions elsewhere
They cite as leading, but not necessarily deleterious, questions such as “I s
he bad because he takes things that do not belong to him, or because he
doesn’t share things with others, or is he bad for some other reason?” Ceci
& Bruck, supra note 36, at 296 (internal quotation marks omitted). They
find questions like “Is he bad because he touches your private parts?” to be
worse, and questions like “He’s bad because he does things to your private
parts, doesn’t he?” to be worst of all. Id. (internal quotation marks omitted).
Note that the Sam Stone questions go even further because the child is not
provided the option of simply saying “no.”
[FN186]. See Ceci & Bruck, supra note 36, at 109; Bruck & Ceci, supra
note 39, at 280.
[FN187]. See Bruck et al., I Hardly Cried, supra note 34, at 200.
[FN188]. See id. at 200-01.
[FN189]. Id. at 200 (internal quotation marks omitted).
[FN190]. See id. at 201. For example, the interviewer asked the children,
“When Laurie (RA) gave you the shot, was your mom or dad with you?” Id. (internal
quotation marks omitted).
[FN191]. See Bruck et al., supra note 108, at 204.
[FN192]. See id. The authors do not provide an example of a “specific”
[FN194]. See Ceci & Bruck, supra note 36, at 218-19.
[FN195]. Id. at 218 (internal quotation marks omitted).
[FN196]. See id.
[FN197]. See Ceci et al., supra note 103, at 397 (“The results of this study
demonstrate that while it is possible to mislead young children into claiming
that they experienced nonevents, the frequency of doing so does not increase
[FN198]. See Ceci & Bruck, supra note 36, at 220.
[FN199]. See Ceci et al., supra note 107, at 311. Unfortunately, readers of
Ceci and Bruck’s book might overlook the fact that false affirmations did not
increase over time in the Mousetrap Study because the authors describe the
findings of the Bicycle Study as consistent with the Mousetrap Study:
“As in the previous study, with each session children increasingly assented
to false events.” Ceci & Bruck, supra note 36, at 221 (emphasis added);
see also Stephen J. Ceci et al., Children’s Reports of Personal Events, in
Developmental Perspectives on Trauma 515, 519 (Dante Cicchetti & Sheree
L. Toth eds., 1997) (discussing the Mousetrap Study and noting that “the mere
act of repeatedly imagining participation in an event caused these
preschoolers to falsely report that they hadengaged in the events when they
had not” (emphasis added)); Leichtman et al., supra note 180, at 173
(discussing the Mousetrap Study and noting that “by the final interview, more
than a third of the children reported remembering an event that never
occurred, and in most cases these were events that they had denied
remembering earlier”). Unfortunately, press reports reinforce possible
misconceptions about the Mousetrap Study. See Morning Edition, supra note 4 6
(interviewing Ceci, who reports that “initially when you ask children ages
three to six this question, ninety-plus percent get it right,” but “[b]y the
10th, 11th week, the majority of 3- and 4-year-olds will claim that getting
their hand caught in a mouse trap really happened”); 20/20: From the Mouths
of Babes, supra note 46 (“At first all the kids say no, but then, once a week
for 10 weeks, they ask the question again—no coercion, no leading questions
as in the child abuse cases. They just gently repeat the question.... By week
four or six or 10, most of the kids are saying, ‘Yes, it happened.”’). In a
recent review of their research, Ceci and Huffman appear to have referred
inadvertently to a figure depicting data from the Bicycle Study in their
discussion of the Mousetrap Study, making it appear that false assents
increased over interviews. See Ceci & Huffman, supra note 34, at 953
fig.7; cf. Ceci & Bruck, supra note 36, at 221 fig.14.1 (presenting a
figure virtually identical to figure 7 referenced to the Bicycle Study).
[FN200]. See Stephen J. Ceci et al., Suggestibility of Children’s Memory:
Psycholegal Implications, 116 J. Experimental Psychol.: Gen. 38, 42-43
(1987); see also Myunghi S. Kwock & Gerald A. Winer, Overcoming Leading
Questions: Effects of Psychosocial Task Variables, 78 J. Educ. Psychol. 289 ,
291-292 (1986) (noting that third graders, but not sixth graders, were better
able to overcome the misleading implications of questions from peers than of
questions from adults).
[FN201]. See Ceci et al., supra note 200, at 42-43.
[FN202]. Michael P. Toglia et al., The Suggestibility of Children’s Memory: A
Social-Psychological and Cognitive Interpretation, in Development of Long - Term
Retention 217, 225 (Mark L. Howe et al. eds., 1992) (italics and internal
quotation marks omitted).
[FN204]. See id. at 224-26 (noting an 18% error rate for children interviewed
by the “noncredible” interviewer versus a 33% error rate for children
interviewed by the “credible” interviewer).
[FN205]. See Saywitz et al., supra note 59, at 685.
[FN206]. See id. at 684.
[FN207]. Id. (internal quotation marks omitted). The authors refer to these
as “misleading” questions. Id.
[FN208]. See supra text accompanying note 175 (explaining that approximately
10f questions in Lamb and colleagues’ observational research were
[FN209]. See Ceci & Bruck, supra note 36, at 73.
[FN211]. Testimony of Maggie Bruck at 15,458-59, State v. Kelly, No. 933SC676
(N.C. Super. Ct. 1992).
[FN212]. See Ceci & Bruck, supra note 36, at 73. Saywitz and colleagues
discussed the potential limitations of their study in Saywitz et al., supra
note 59, at 690-91.
[FN213]. See Fed. R. Evid. 611© (“Leading questions should not be used on the
direct examination of a witness except as may be necessary to develop the
witness’s testimony. Ordinarily leading questions should be permitted on
[FN214]. Graham Davies & Elizabeth Noon, An Evaluation of the Live Link
for Child Witnesses 62 (1991) (examining trials in England and Wales and
concluding that 32% of cross-examinations “us[ed] leading questions almost
exclusively” as compared with two percent of the examinations in chief).
[FN215]. See Leichtman & Ceci, supra note 34, at 572, 573 (noting that
44% of three- to four-year-olds claimed they saw Sam Stone perform one or
both of suggested acts and 21% did so “even when gently challenged with a
countersuggestion”). Unfortunately, descriptions of the study sometimes omit
the effects of the countersuggestion. See Leichtman et al., supra note 180,
at 172 (“[A] subset of subjects was also asked as a final question whether
they actually saw Sam do the misdeeds they asserted with their own eyes. In
response, ... 44% of the[ ] children in the younger group said that they
actually saw him do these things.”).
[FN216]. See Angela M. Crossman, Cross-Examination: Friend or Foe of the
Child Witness? (1997) (unpublished manuscript, on file with author)
(presented at the Biennial Conference of the Society for Research in Child
[FN217]. See id. Crossman noted that “children’s ‘no’ responses reached their
highest number during direct examination (45.5%), just above the 45% rate of
the first interview.” Id.
[FN218]. See id.
[FN219]. Ceci & Bruck, supra note 36, at 220; see also Ceci &
Huffman, supr a
note 34, at 953 (“Neither parents nor researchers were able to convince 27%
of the children that the events never happened.”).
[FN220]. Ceci et al., supra note 103, at 397. A total of nine children were
reinterviewed. A reporter from the television program 20/20 conducted one of
these interviews, and the researchers conducted the other eight. See id. at
400 & n.7. Three of the nine children protested “strongly” to debriefing,
three protested “mildly,” and three accepted the countersuggestions. See id .
This research suggests that the figure discussed in the text accompanying
note 219 supra should be 33% and not 27%. I have been unable to reconstruct
the exact origin of the 27% figure.
[FN221]. Michael R. Leippe et al., The Opinions and Practices of Criminal
Attorneys Regarding Child Eyewitnesses: A Survey, in Perspectives on
Children’s Testimony 100, 117 (S.J. Ceci et al. eds., 1989) (internal
quotation marks omitted) (describing the results of a survey of 74 defense
attorneys in Florida).
[FN222]. See Ellen Gray, Unequal Justice: The Prosecution of Child Sexual
Abuse 154-55 (1993) (“There is some evidence that defense tactics have
softened somewhat for fear that their confrontational style would engender
sympathy for the child and hurt the defendant’s case.”); McGough, supra note
13, at 291 n.14 (“Many seasoned defense attorneys also advise that
brutalizing a child witness, even one suspected of lying, is
[FN223]. Crossman, supra note 216.
[FN224]. Jean Montoya, Lessons from Akiki and Michaels on Shielding Child
Witnesses, 1 Psychol. Pub. Pol’y & L. 340, 351 n.78 (1995).
[FN225]. See id. (citing Gail S. Goodman et al., Testifying in Criminal Court
87 (Monographs of the Soc’y for Research in Child Dev. No. 229, 1992)); Rhona
Flin et al., Children in the Witness Box, in Children as Witnesses 176 (Helen
Dent & Rhona Flin eds., 1992) [hereinafter Flin et al. , Witness Box];
Rhona Flin et al., Child Witnesses in Scottish Criminal Trials, 2 Int’l Rev.
Victimology 309, 326 (1993) [hereinafter Flin et al., Scottish] (describing
the same research as Flin et al., Witness Box, supra)); see also Gray, supra
note 222, at 151-55 (describing similarity of prosecution and defense styles
of questioning child witnesses).
[FN226]. See Montoya, supra note 224, at 351 n.78 (citing Goodman et al.,
supra note 225, at 79-80).
[FN227]. See Judy Cashmore, The Use of Closed-Circuit Television for Child
Witnesses in the ACT 59 (1992); Davies & Noon, supra note 214, at 61;
Gray, supra note 222, at 158-59; Flin et al., Scottish, supra note 225, at
325. Montoya cited all but Gray’s study at other points in the paper.
[FN228]. See Cashmore, supra note 227, at 48-53 (finding that defense asked
more difficult questions, and defense questions were less well understood by
child witnesses); Flin et al., Scottish, supra note 225, at 322-23 (finding
that “12f examinations-in-chief, and 40% of cross-examinations contained some
vocabulary that the child appeared not to understand”).
[FN229]. See Gray, supra note 222, at 153, 158 (noting the same result at
competency evaluations but not at trials); Goodman et al., supra note 225, at
80 (finding defense questions less age-appropriate at both preliminary
hearings and trials).
[FN230]. See Davies & Noon, supra note 214, at 58.
[FN231]. See Cashmore, supra note 227, at 48-53 (finding that children
misunderstand more when questioned by defense); Davies & Noon, supra note
214, at 59 (finding more “I don’t know’s” and more inconsistencies when
questioned by the defense); Goodman et al., supra note 225, at 81 (finding
that children answered fewer questions at preliminary hearing and at trial
when questioned by the defense); Flin et al., Scottish, supra note 225, at
326 (finding that children are less confident when questioned by the
defense). Limited evidence also suggests that cross-examination has a greater
effect on younger children than older children. See Goodman et al., supra
note 225, at 82, 91 (finding that younger children faltered more than older
children on cross-examination at preliminary hearing but not at trial ,
although noting that the sample contained only 17 cases that went to trial) .
[FN232]. See supra text accompanying notes 216-18.
[FN233]. See Cashmore, supra note 227, at 13 (reporting a mean age of 11.8
with a range of five to 17); Davies & Noon, supra note 214, at 22
(reporting a mean age of 10); Goodman et al., supra note 225, at 78, 87
(noting that the mean age at preliminary interviews was nine years and nine
months with an age range of four to 15 and the mean age at trial was 11
years, four months with a range of five to 17). Gray, supra note 222, and
Flin et al., Scottish, supra note 225, did not report mean ages.
[FN234]. See Davies & Noon, supra note 214, at 22 (noting only eight
percent under seven years of age); Flin et al., Witness Box, supra note 225,
at 170 (noting only 11% of the children five to eight years of age).
[FN235]. Cf. Flin et al., Witness Box, supra note 225, at 177 (arguing that a
generalized fear of testifying might mask the differences in children’s
demeanor between direct and cross).
[FN236]. See Davies & Noon, supra note 214, at 72 (finding that children
testifying via closed-circuit television “were less unhappy” while testifying
than children testifying in open court).
[FN237]. See Montoya, supra note 224, at 351 n.78; see also Davies &
Noon, supra note 214, at 51 (indicating that children were more unhappy when
questioned by defense); id. at 60 (indicating that children were less
effective when questioned by defense); id. at 61 (indicating that children
are less credible when questioned by defense). However, children did not look
uniformly worse on cross-examination because some comparisons did not find
statistically significant differences. See id. at 52-53 (noting that children
were no more tense nor less confident nor less fluent when questioned by
[FN238]. Bruck et al., supra note 30, at 138.
[FN240]. Id. The authors also criticize claims that children often recant
their abuse, a position I respond to elsewhere. See Thomas D. Lyon,
Scientific Support for Expert Testimony on Child Sexual Abuse Accommodation
Syndrome, in The Knowns and Unknowns of Child Sexual Abuse (Jon Conte ed.,
[FN241]. See Mary E. Haskett et al., Substantiation of Sexual Abuse
Allegations: Factors Involved in the Decision-Making Process, 4 J. Child
Sexual Abuse 19, 40 (1995) (noting that a survey of social workers found that
“[b]y far, the most important factor in [the substantiation] process was the
child’s verbal disclosure or denial of abuse”).
[FN242]. Ceci et al., supra note 33, at 506 (describing this fact as “a point
of no dispute among researchers”). The authors argue that such research does
not prove that nonabused children are “impervious to the type s of suggestive
interviewing tactics used by some of the Michaels investigators.” Id.
[FN243]. See Louanne Lawson & Mark Chaffin, False Negatives in Sexual
Abuse Disclosure Interviews: Incidence and Influence of Caretaker’s Belief in
Abuse in Cases of Accidental Abuse Discovery by Diagnosis of STD, 7 J.
Interpersonal Violence 532, 537 (1992).
[FN244]. See David Muram et al., Genital Abnormalities in Female Siblings and
Friends of Child Victims of Sexual Abuse, 15 Child Abuse & Neglect 105,
108 tbl.2 (1991).
[FN245]. See supra note 242.
[FN246]. In a number of studies, the sample can be broken down into groups of
children for whom the external evidence of sexual abuse was strong, obviating
the bias created by only examining cases that were substantiated by the
interview itself. See Howard Dubowitz et al., The Diagnosis of Child Sexual
Abuse, 146 Am. J. Diseases Children 688, 691 (1992) (“Since 25% of [the 28]
children with abnormal examination findings indicative of abuse did not
disclose at all and 28% partially disclosed, without the examination many of
these children might not have been diagnosed as abused.”); Diana M. Elliot
& John Briere, Forensic Sexual Abuse Evaluations of Older Children:
Disclosures and Symptomatology, 12 Behav. Sci. & L. 261, 263-65 (1994)
(reporting that 39 of 118 or 33% of children for whom external evidence of
abuse existed denied abuse when evaluated at a sexual abuse crisis center, in
which external evidence was defined as abnormal medical examinations
considered diagnostic of abuse, perpetrator confessions, eyewitness
statements, or corroborative evidence, such as pornographic pictures of the
child); Stacy Gordon & Paula K. Jaudes, Sexual Abuse Evaluations in the
Emergency Department: Is the History Reliable?, 20 Child Abuse & Neglect
315, 319 (1996) (noting that 24% of children with a sexually transmitted
disease denied abuse when questioned both in a hospital emergency room and by
a sexual abuse interdisciplinary team).
[FN247]. See Ceci & Bruck, supra note 36, at 68 (noting that the
challenge for researchers “has been to incorporate questions that ask whether
or not sexual actions occurred ... but to do so in an ethically permissible
[FN248]. Id. at 300.
[FN249]. Bruck & Ceci, supra note 39, at 282.
[FN250]. Smith & Elstein, supra note 15, at 93; see also Herman, supra
note 10, at 88 (indicating that many victims of incest “were threatened with
the most dreadful consequences if they told: their mothers would have a
nervous breakdown, their parents would divorce, their fathers would be put in
jail, or they themselves would be punished and sent away from home”).
[FN251]. Ceci & Bruck, supra note 36, at 145 (internal quotation marks
[FN252]. See id. at 145 n.1.
[FN253]. See Douglas P. Peters, Confrontational Stress and Children’s
Testimony: Some Experimental Findings (Mar. 16, 1990) (unpublished
manuscript); Douglas P. Peters, Confrontational Stress and Children’s
Testimony: Some Experimental Findings (Apr. 21, 1991) (unpublished
manuscript), cited in McGough, supra note 13, at 91. Because these studies
are unpublished (and I have not been able to obtain copies), I rely on the
description of the research in McGough, supra note 13. Although there are two
papers, McGough implies they are the same study. See McGough, supra note 13,
at 91, 289 n.13.
[FN254]. Ceci & Bruck, supra note 36, at 301.
[FN255]. Id. at 145 n.1.
[FN256]. McGough, supra note 13, at 91.
[FN257]. Ceci & Bruck, supra note 9, at 426. The strength of the secrecy
manipulation is unclear. In their 1993 description of Peters’s research, Ceci
and Bruck stated that the thief “asked” the child not to tell. Id.; see also
McGough, supra note 13, at 91 (describing the thief’s actions in similar
terms). In their 1995 book, however, Ceci and Bruck indicated that the thief
“told the child[ren]” not to tell. Ceci & Bruck, supra note 36, at 145
[FN258]. Ceci & Bruck, supra note 9, at 425.
[FN259]. Ceci & Bruck, supra note 36, at 263.
[FN260]. Id. at 264 n.2.
[FN261]. In a study by Wilson and Pipe involving five-year-olds, a magician
performed a number of tricks for the child and then accidentally spilled ink
on “magic gloves” that thechild was wearing. J. Clare Wilson &
Margaret-Ellen Pipe, The Effects of Cues on Young Children’s Recall of Real
Events, 18 N.Z. J. Psychol. 65, 66 (1989). The magician hid the gloves,
“saying if they were discovered she (the magician) would be reprimanded and
that therefore they should not tell anyone about the inkspill.” Id. at 66-67.
An interviewer then questioned the child, first ten days after the event and
then two months after. Initially, the interviewer asked the child to relate
everything that the magician did. Ultimately, the interviewer asked the child
whether the child knew anything about a pair of stained gloves the
interviewer had found. See id. at 67. None of the children spontaneously
mentioned the gloves after 10 days, and 75% failed to do so after two months.
See id. at 68. Twenty-five percent denied knowing anything about the gloves
at both interviews when directly asked, and another 33% denied knowing
anything at one of the two interviews. See id. Pipe and Wilson subsequently
found similar rates of nondisclosure among six-year-old s and less reluctance
to disclose among ten- year-olds. See Margaret-Ellen Pipe & J. Clare
Wilson, Cues and Secrets: Influences on Children’s Event Reports, 30
Developmental Psychol. 515, 518-19 (1994). Most six-year-olds failed to
mention the gloves in their free recall (75% at two weeks, 81% at two
months), and over 30% failed to reveal what happened after the specific
question was asked (40% at two weeks, 32% at two months). See id. at 521
tbl.3. The 10-year-olds were less inclined to keep the incident a secret, but
nevertheless over 30% failed to mention the gloves in free recall (34% at two
weeks, 44% at two months), and 16% did not reveal when specifically asked (at
both interviews). See id. Bussey and colleagues examined the willingness of
three- and five-year-olds to remain silent about a male experimenter who had
accidentally broken a prized glass and hidden the pieces. See Kay Bussey,
Factors Influencing Children’s Disclosure of Witnessed Events (Mar. 1993) (unpublished
manuscript, on file with author).
“He expressed a great deal of concern about the event and sought to dissuade
the child from disclosing what had happened as he hid the broken glass under
some paper in the bin.” Id.
The female experimenter subsequently asked the child questions about the
glass, including “Did [the male experimenter] touch the glass?” if the child
had not already revealed this information. Id. (internal quotation marks
omitted). Fourteen percent of three-year-olds and 43% of five- year-olds kept
the secret. If the experimenter sternly told the child not to tell, 43% of
the three-year-olds and 71% of the five-year-olds either denied that the
mishap occurred or refused to discuss it. See Kay Bussey & Elizabeth J.
Grimbeek, Disclosure Processes: Issues for Child Sexual Abuse Victims, in
Disclosure Processes in Children and Adolescents 166, 182 (Ken J. Rotenberg
ed., 1995). Bussey reported lower rates of nondisclosure among nine-year-olds
(approximately 15% after being asked not to tell). See Bussey, supra, at 10.
[FN262]. See Bussey & Grimbeek, supra note 261.
[FN263]. See McGough, supra note 13, at 91 (“When the threat to the child is
made more explicit, we should expect an even stronger inclination of the
child to lie.”); Pipe & Wilson, supra note 261, at 523. Pipe and Wilson
suggested the following: Insofar as the events in the studies to date have
been relatively neutral, it is likely that they underestimate the willingness
of children to omit information when requested to do so in real-life
contexts. We can only speculate on how much more likely children will be to
maintain secrecy when , for example, they feel embarrassment or guilt, have
been asked to conceal information by a person to whom they feel some strong
obligation, have given a commitment to secrecy as in a promise, or are faced
with threats to themselves or their family, if they disclose. Id.
[FN264]. Ceci & Bruck, supra note 36, at 264.
[FN265]. See supra note 143 and accompanying text.
[FN266]. See Herman, supra note 10, at 88 (“[T]he girls were given to
understand that breaking secrecy would lead to separation from one or both of
their parents. Those who remembered no warnings simply intuited that guarding
the incest secret was part of their obligation to keep the family together
....”); Diana E.H. Russell, The Secret Trauma: Incest in the Lives of Girls
and Women 132 (1986); Robert L. Johnson & Diane K. Shrier, Sexual
Victimization of Boys: Experience at an Adolescent Medicine Clinic, 6 J.
Adolescent Health Care 372, 374 (1985) (noting that boys “who had not
previously revealed the assault” mentioned the desire “to protect the
assailant or were afraid of the reactions of their parents or family
members”). Diana Russell spelled out these concerns particularly well: In
those cases where the victim did not tell anyone, we tried to ascertain the
primary reason for secrecy. For these forty-four incest victims, the two most
common reasons were fear of punishment by the perpetrator and/or someone
else, including abandonment or rejection and a desire to protect the
perpetrator, or fear of hurting someone else. For other victims self-blame
made them feel too ashamed or guilty to tell. Some expressed fear of being
blamed or of not being believed. Russell, supra, at 132.
[FN267]. Stephen J. Ceci & Michelle DeSimone Leichtman, “I Know That You
Know That I Know That You Broke the Toy”: A Brief Report of Recursive
Awareness Among 3-Year-Olds, in Cognitive and Social Factors in Early
Deception 1, 6 (Stephen J. Ceci et al. eds., 1992). The experimenter and the
child were told by a nursery school teacher not to play with a toy. While the
teacher was gone, the loved one touched and broke the toy and exclaimed ,
“’Gee, I didn’t mean to break it. I hope I do not get into trouble for breaking
this.”’ Id. Note that the loved one did not elicit a promise from the child
nor threaten the child not to tell. The teacher returned and asked the child
who broke the toy. “Most children, when confronted with the choice of
disclosing that their loved one broke it, either refused to say anything or
provided misleading information (e.g., ‘A gremlin came in through the window
and broke it.’).” Id.
[FN268]. Mary K. Devitt et al., A Study of the Willingness of Children To
Make False Accusations About a Serious Matter in a Realistic Setting, Paper
Presented at the Biennial Meeting of the American Psychology and Law Society
(Mar. 1994), cited in Charles Robert Honts, Assessing Children’s Credibility:
Scientific and Legal Issues in 1994, 70 N.D. L. Rev. 879, 883 n.20 (1994).
[FN269]. See Honts, supra note 268, at 884.
[FN270]. See id. at 883 n.20, 884-85. In a study by Bottoms and colleagues
involving three- to four-year-olds and five- to six-year-olds, participants
were divided into two groups. Bette L. Bottoms et al., Keeping Secrets:
Implications for Children’s Testimony (Mar. 1990) (unpublished manuscript, on
file with author); see also Margaret-Ellen Pipe & Gail S. Goodman,
Elements of Secrecy: Implications for Children’s Testimony, 9 Behav. Sci.
& L. 33, 37 (1991) (discussing Bottoms et al., supra). Both groups of
children saw their mother accidentally break the head off a Barbie doll. In
the secrecy group, the mother and child had been told not to play with the
toys , and the mothers “instructed their children to keep the fact they had
played with the toys a secret[, telling] her child that she might get in
trouble if the child told, and that the child would get to keep one of the
toys if he/she kept the secret.” Bottoms et al., supra, at 5-6. In the control
group, the mother and child were free to play with the toys, and the mother s
did not give their children any instructions about secrecy. See id. Only one
of the 49 children in both age groups told an interviewer about the doll when
asked what happened, and “when asked specific questions about the event,
5-year-olds did not tell the secret, even when asked leading questions.” Ceci
& Bruck, supra note 36, at 264.
[FN271]. See Leichtman & Ceci, supra note 34, at 570.
[FN272]. Id. at569.
[FN273]. See id. at 570.
[FN274]. Id. at 570, 575.
[FN275]. See id. at 570.
[FN277]. See id. at 571.
[FN278]. See id.
[FN279]. Id. at 577.
[FN280]. See id.
[FN281]. Ceci et al., supra note 200, at 47. Notably, in discussing the “new
line of research that has attempted to address these criticisms [including
that of Ceci, Ross, and Toglia],” Ceci and Bruck rephrase the question as
whether one can mislead children “about very important or salient events,
especially those involving their own bodies.” Ceci & Bruck, supra note
36, at 67. Reference to the relationship between the child and the person
with whom the child interacts is omitted.
[FN282]. Ceci et al., supra note 33, at 506.
[FN283]. Thomas D. Lyon, False Allegations and False Denials in Child Sexual
Abuse, 1 Psychol. Pub. Pol’y & L. 429, 431 (1995).
[FN284]. See Stephen J. Lepore & Barbara Sesco, Distorting Children’s
Reports and Interpretations of Events Through Suggestion, 79 J. Applied
Psychol. 108 (1994).
[FN285]. See Ceci et al., supra note 33, at 506.
[FN286]. See Lepore & Sesco, supra note 284, at 109 (“[C]hildren in the
familiar-TA condition had seen the TA in their classroom on three occasions
in the 2 weeks before this staged interaction.”). The authors themselves
emphasized the weakness of the familiarity manipulation. See id. at 118.
Furthermore, although they found that 90 minutes of interaction did not
reduce children’s susceptibility to an interview containing stereotyping,
peer pressure, and suggestive questions, familiarity improved the accuracy of
children’s responses to open-ended questions regarding their interaction with
the stranger and led the children to rate the stranger as more likable . See
id. at 111 tbl.1, 113.
[FN287]. See Ceci & Bruck, supra note 36, at 237 (“It seems that in some
cases, children were engaged in highly pressurized interviews; they were told
that they could help their (imprisoned) parents after they had been removed
from their families or their homes.”).
[FN288]. See Division of Child Psychiatry, Tufts New England Med. Ctr.,
Sexually Exploited Children 196-97 (1984) [hereinafter Tufts] (“Mothers were
least protective and most angry and punitive toward the child when the abuser
was not the natural father, but a stepfather or boyfriend.” (emphasi s
added)); Allan R. De Jong, Maternal Responses to the Sexual Abuse of Their
Children, 18 Pediatrics 14, 18 (1988) (“Forty-four percent (11 of 25) of
abuse by fathers or by the mother’s paramours resulted in nonsupportive
maternal responses, whereas only 27% (21 of 78) of the assaults by all other
perpetrators resulted in nonsupportive responses ....”); Mark D. Everson et
al., Maternal Support Following Disclosure of Incest, 59 Am. J.
Orthopsychiatry 197, 200 (1989) (“[M] others were significantly more supportive
of their children if the offender were an ex-spouse than if he were someone
with whom the women had a current relationship.”); Elizabeth A . Sirles & Pamela J. Franke,
Factors Influencing Mothers’ Reactions to Intrafamily Sexual Abuse, 13 Child
Abuse & Neglect 131, 134 (1989) (reporting that “[i]f the offender was a
biological father, 85.9% of the mothers believed their child[ ]” and that
“the proportion of mothers believing the report decreased to only 55.6% when
the offender was a step-father or live- in partner” but not reporting what
percentage of the accusations against biological fathers involved
ex-spouses”). In the Tufts study, the family was not intact at the time of
the abuse in 45% of the cases in which the natural fathers were accused. See
Tufts, supra. In an additional unspecified percentage of cases abuse was not
revealed until after a divorce was complete. See id. Everson and his
colleagues suggest that their findings reflect the fact that a mother is not
as loving toward, or dependent on, an ex-husband as on a current mate. They
point out, however, that none of the boyfriends in their sample admitted the
abuse, whereas one-third of the biological fathers did so. See Everson et
al., supra, at 205.
[FN289]. See Kathleen Coulborn Faller, Child Sexual Abuse: An
Interdisciplinary Manual For Diagnosis, Case Management, and Treatment 43, 44
& tbl.2.27 (1988) (reporting that when rating 147 mothers of sexually
abused children on scale from very protective to very unprotective—“[u]nprotective
responses include disbelieving the child, blaming the child, and continuing
to expose the child to risky situations after revelation of the sexual
abuse”-- 53.1% rated as very unprotective, a s somewhat unprotective, or as
having switched from protective to unprotective); Tufts, supra note 288, at
193, 194 tbl.7-1 (reporting that, as of the time of early treatment, 56% of
the mothers of sexually abused children in the Family Crisis Program had
failed to be consistently reassuring and supportive (18% not at all, 38% to
some extent), 30% had reacted punitively (15% to some extent and 15%
consistently), and 22ad demanded that the offender leave when possible);
Christine Adams-Tucker, Proximate Effects of Sexual Abuse in Childhood: A
Report on 28 Children, 13 9 Am. J. Psychiatry 1252, 1255 (1982) (reporting
that 65% of the mothers of 2 6 sexually abused children seen at a guidance
clinic were unsupportive, which the authors defined as “knowing about the
molestation but doing nothing, taking no action until the child became
symptomatic, allowing the molester to be alone with the child again,
delicately asking the molester to obtain counseling, believing the molester’s
denial, and ostracizing and blaming the child”); De Jong, supra note 288, at
16 & tbl.1, 17 & tbl.2 (reporting that of 103 children seen two to
three weeks after medical evaluation for sexual abuse, 31% had mothers who
were nonsupportive, which meant that the mothers “believed that the abuse
complaint was a lie, a misunderstanding, or primarily the child’s fault,” and
12% of the children were not pressing charges); Everson et al., supra note
288, at 200 (reporting that in substantiated cases of sexual abuse, “44% of
the 84 mothers were categorized as providing consistent support during the
period following disclosure of sexual abuse, 32% were classified as
ambivalent or providing inconsistent support, and the remaining 24% were
unsupportive or rejecting of their children”); Margaret H. Myer, A New Look
at Mothers of Incest Victims, 3 J. Soc. Work & Hum. Sexuality 47, 49-53
(1985) (noting that in a study of 43 mothers of sexually abused children, 44%
took no action (4/43) or rejected their daughters and protected their mates
(15/43), and another 26% (11/43) were ambivalent, but sided with their daughters);
Sirles & Franke, supra note 288, at 133 (reporting that in a study of
sexually abused children, 21.8% of mothers did not believe their children had
in fact been abused).
[FN290]. See Myer, supra note 289, at 55 (“When a mother is told that her
daughter has been sexually abused by her mate, the first reactions are often
shock and denial.... With professional intervention, 33 out of 43 mothers
studied were able in time to accept that the abuse had occurred.”).
[FN291]. See, e.g., State v. Jackson, 730 P.2d 1361, 1362 (Wash. Ct. App.
1986) (revealing that when a five-year-old told her mother that the boyfriend
had “’stuck his finger in [her] butt”’ the mother had said “’Well ,he’d
better not have ... did he really?”’ to which the victim laughingly replied
[FN292]. See Faller, supra note 289, at 42-43 (reporting that of a sample of
mothers rated on four-point scale from very independent to very dependant—
dependence defined in part by “economic independence”--67.6% rated as
somewhat (29.5%) or very dependent (38.1%)); Tufts, supra note 288, at 188
(reviewing anecdotal data regarding mothers’ denial and attributing this
denial to “public humiliation,” disruption of the family, “divorce and loss
of financial support,” and “fear [of] retaliation”); De Jong, supra note 288,
at 18 (stating that “internal factors include denial, guilt, frustration,
anger, fear of repercussions, feelings of inadequacy, ignorance, previous
behavior or emotional problems of the child, or general distrust of or
reluctance to involve the police, child protective services, or other
agencies in personal matters” and that “[e]xternal factors would include
pressures by family members or friends to protect the abuser, specific
economic pressures that might arise from loss of support from the abuser, and
lack of support and responsiveness from the police and social agencies
involved in the investigation”); Myer, supra note 289, at 53 (finding that
mothers who rejected daughters and protected their mates “were extremely
dependent on their partners for emotional and economic support, and they all
feared and were dominated by them”); id. at 57 (“These women face extreme
emotional and economic stresses.... [T]hey face financial dependency,
criticism from family, community agencies and officials, and isolation. The
stronger the action they take in protecting the children, the more vulnerable
they become to stress, loneliness, and deprivation.”).
[FN293]. Everson et al., supra note 288, at 202.
[FN294]. See, e.g., In re Megan B., 1 Cal. Rptr. 2d 177, 179 (Ct. App.
(noting that the dependency court faulted the mother for failing to believe
child’s statement that she was sexually abused).
[FN295]. See Everson et al., supra note 288, at 202 (“Mean levels of maternal
support within the ‘prosecution pending’ and the ‘no prosecution’ subgroups
did not differ significantly.”).
[FN296]. See, e.g., People v. Ford, 488 N.E.2d 573, 576 (Ill. App. Ct. 1985 )
(noting that the mother testified in defense of her boyfriend whom her
eight-year-old daughter accused of rape); Williams v. State, 427 So. 2d 100 ,
102 (Miss. 1983) (noting that when the mother heard her 11-year-old daughter
claim that the mother’s boyfriend had raped the daughter, she “’told [the
child] that she was a [G-d] damn liar!,”’ that the child “’hadn’t been raped,
wasn’t nothing wrong with her,”’ and that “’[s]he just needs her damn brains
beat out, that’s all that was wrong with her”’ (quoting testimony at the
trial)), legislatively amended by Miss. R. Evid. 1103.
[FN297]. Leichtman & Ceci, supra note 34, at 570.
[FN298]. See id.
[FN299]. See Stephen J. Ceci et al., Children’s Long-Term Memory for
Information that Is Incongruous with Their Prior Knowledge, 72 Brit. J.
Psychol. 443, 449 (1981).
[FN300]. See id. at 449.
[FN301]. See id. at 445.
[FN302]. Id. at 449. [FN303]. Reviewing the literature on memory development,
Chi and Ceci discussed a number of studies supporting the contention that
“developmental differences are reduced when the amount of knowledge is
somehow either controlled or equated.” Michelene T.H. Chi & Stephen J.
Ceci, Content Knowledge: Its Role, Representation, and Restructuring in
Memory Development, 20 Advances Child Dev. & Behav. 91, 115 (1987). They
cite one study by Ceci and Howe finding that age differences in recall were
attenuated if one controlled for the amount of knowledge children had about
the to-be-remembered words. See id. at 114 (citing Stephen J. Ceci &
Michael J.A. Howe, Semantic Knowledge as a Determinant of Developmental
Differences in Recall, 26 J. Experimental Child Psychol. 230 (1978)). Ceci
and Bruck note that one even can reverse developmental differences in memory
ability if the younger children are more knowledgeable than the older
children. See Ceci & Bruck, supra note 9, at 415.
[FN304]. See Lynne Baker-Ward et al., The Effects of Involvement on
Children’s Memory for Events, 5 Cognitive Dev. 55, 65 (1990) (stating that
“children in the more familiar group recalled more of the other-performed
events than children in the less familiar group”).
[FN305]. See Ceci & Bruck, supra note 9, at 417 (arguing that “the
quality and quantity of memory representations influence subsequent recall
and susceptibility to suggestibility”). Research literature disagrees about
whether weaker memories are more susceptible to one type of suggestibility in
which the original memory is actually distorted by the misinformation, a
process called memory impairment. See Ceci & Bruck, supra note 36, at 254
(citing Mark L. Howe, Misleading Children’s Story Recall: Forgetting and
Reminiscence of the Facts, 27 Developmental Psychol. 746 (1991); Maria S.
Zaragoza, Preschool Children’s Susceptibility to Memory Impairment, in The
Suggestibility of Children’s Recollections 27 (John Doris ed., 1991)).
Suggestibility, however, can occur without distortion of the original memory.
Even if the details of one’s original memory remain intact, misinformation
may supplement memory and make the choice between the original memory and the
misinformation difficult. Zaragoza examined one type of suggestibility in
which memory for the original event is “impaired.” Zaragoza, supra, at 27.
Her procedure does not test for suggestibility attributable to gap filling
when one has forgotten, to supplementation of the original memory, or to
difficulties in distinguishing between one’s memory of the original event and
one’s memory of the suggested information (i.e., source monitoring
difficulties). See id. at 28, 37. Similarly, Howe found that “trace strength
[[the strength of a memory] is directly related to the rate of forgetting ...
and the number of ... misinformation-relevant intrusions, [but] it does not
impair recall of the original story details.” Howe, supra, at 760.
Furthermore, some have criticized Howe’s finding on the ground that “the fact
that the overall effect of the misled/control condition manipulation was
small to nonexistent suggests one reason why the potential variance explained
by the interaction of the number of training trials [which affects memory
strength] with the misled/control condition may have been so limited.” Kathy
Pezdek & Chantal Roe, The Effect of Memory Trace Strength on
Suggestibility, 60 J. Experimental Child Psychol. 116, 12 5 (1995).
Several studies examining suggestibility that do not separately test for
memory impairment effects have found that suggestibility effects are larger
when memory is weaker. See, e.g., Goodman et al., supra note 23, at 262
(discussing Rudy and Goodman’s findings that “age differences in
suggestibility result at least in part from younger children having weaker
memories than older children for certain types of information”); Pezdek &
Roe, supra, at 124, 125 (concluding that “stronger memories are more likely
to resist suggestibility than weaker memories”); Amye Warren et al., Inducing
Resistance to Suggestibility in Children, 15 Law & Hum. Behav. 273 , 282
(1991) (“If one has a weak memory trace, then either negative feedback or
misleading information alone may produce the uncertainty that leads to either
acquiescence or inconsistencies in recall. One with a stronger memory trace,
on the other hand, may not succumb to doubt until the two are combined.”).
[FN306]. See Ceci & Bruck, supra note 36, at 301.
[FN307]. Id.; see also id. at 35 (“Some experts state that children do not disclose
because of explicit threats made by the perpetrators. The available evidence
does not support this assertion.”).
[FN308]. See Debra Whitcomb et al., The Child Victim as a Witness 88, 92
(1994) (reviewing a sample of 431 sexual abuse cases referred for prosecution
and concluding that “[i]n the vast majority of cases, the child victim
disclosed the abuse”); Haskett et al., supra note 241 (noting that the most
important factor in the substantiation process is whether the child discloses
[FN309]. See, e.g., Leslie Biron Campis et al., Developmental Differences in
Detection and Disclosure of Sexual Abuse, 32 J. Am. Acad. Child &
Adolescent Psychiatry 920, 923 (1993) (noting that most cases in their sample
were purposeful disclosures whereas population surveys show purposeful
disclosure is rare). But see Ceci et al., supra note 33, at 503 (“Lyon cannot
have it both ways: either 86% of children suspected of having been abused
disclose quickly and are interviewed repeatedly about the details of their
quick disclosures, or they deny having been abused during the initial
interview and require multiple interviews.”).
[FN310]. Ceci & Bruck, supra note 36, at 35. Ceci and Bruck note:
Children in forensic samples may be those who readily disclose, whereas
children in clinical samples who delay making disclosures may not go through
the criminal system as readily; these may be the children for whom it is
difficult to extract a report, and thus they are brought by adults for
treatment. Finally, these studies provide no information on the number of
children or the profiles of children who never disclose. Id.
[FN311]. See Lyon, supra note 240 (manuscript at 6) (reviewing research and
indicating that “[r]ates of non-disclosure among women run from 33% to 92%; among
men from 42% to 85%”).
[FN312]. See id. (manuscript at 11) (reviewing research).
[FN313]. See supra text accompanying notes 243-46. Researchers studying cases
in which the evidence for sexual abuse was less definitive have reported
similar results. See Rosemary S. Hunter et al., Sexually Abused Children:
Identifying Masked Presentations in a Medical Setting, 9 Child Abuse &
Neglect 17, 21 (1985) (describing a study in which 50 children who were seen
in the hospital and whose initial allegations did not involve abuse, but who
were ultimately reported to social services as sexually abused and concluding
“in 26% [of the cases] the abuser could not be established at the time of
report to social services”).
[FN314]. See Maria Sauzier, Disclosure of Child Sexual Abuse: For Better or
for Worse, 12 Psychiatric Clinics N. Am. 455 (1989).
[FN315]. Ceci & Bruck, supra note 36, at 35.
[FN316]. See Sauzier, supra note 314, at 459 (referring to “strategies for
gaining the child’s compliance”).
[FN317]. Although Sauzier’s report states that aggression was the most common
strategy, see id., the study upon which Sauzier bases her report, the Tufts
study, states that “most of the offenders (83 percent) used manipulation,”
Tufts, supra note 288, at 87. It looks as if the table describing the effect
of the offenders’ strategies reverses the numbers using each strategy.
Compare id. at 88 (listing the number of cases of manipulation as 130 and of
aggression as 54), with id. at 100 (listing the number of cases exactly backwards
with 54 cases of manipulation and 130 cases of aggression).
[FN318]. Sauzier, supra note 314, at 459.
[FN319]. Id. at 460; see also supra note 266 (providing the most common
explanations for why abuse victims failed to reveal abuse).
[FN320]. Sauzier did not test any differences for statistical significance.
See Sauzier, supra note 314.
[FN321]. Ceci & Bruck, supra note 36, at 301.
[FN322]. See Gray, supra note 222, at 31 (studying 670 children alleged to be
victims of sexual abuse).
[FN323]. See Ceci & Bruck, supra note 36, at 35.
[FN324]. Louise Dezwirek Sas & Alison Hatch Cunningham, Tipping the
Balance To Tell the Secret: Public Discovery of Child Sexual Abuse 122
(1995). The study noted that “overt threats were not necessary if the man had
a history of violence within the home,” which would attenuate any apparent
relation between threats and delayed disclosure. Id.
[FN325]. See, e.g., Wilson & Pipe, supra note 261, at 68 (noting that
children were more forthcoming about the inkspill when directly questioned
about it than when asked for free recall or cued recall).
[FN326]. See Saywitz et al., supra note 59.
[FN327]. See Goodman et al., supra note 23, at 262 (discussing Rudy &
Goodman, supra note 52, regarding “abuse” questions and indicating that
“[t]he more common error was to omit actions that did occur” and that “[e]ven
then, virtually all of the omission errors made by the 7-year-olds were in
response to a specific subset of questions—those concerning touching”);
Michael R. Leippe et al., Eyewitness Memory for a Touching Experience:
Accuracy Differences Between Child and Adult Witnesses, 76 J. Applied
Psychol. 367, 375 (1991) (“[W]ith regard to the most salient action in the
skin-test situation—the toucher’s touching of the subject—the memoryerrors of
5- to 6- year-olds were primarily restricted to the failure to report touches
that did occur rather than the reporting of touches that did not occur.”);
Douglas P. Peters, The Influence of Stress and Arousal on the Child Witness,
in The Suggestibility of Children’s Recollections, supra note 305, at 60,
63-65 (explaining that children in the touched group “were vigorously rubbed
on the head until they attempted to avoid the rubbing by flinching their
heads away or verbally protesting” and that “for the 34 children in the
[t]ouched group a significant number (56%) made more false negative responses
(did not report that the stranger had in fact touched [rubbed] their heads)
than correct recall (32%) or false positives (12%) in which other parts of
the body were identified”). Discussing Peters’s results, Ceci and his
colleagues suggested that “the children may have been motivated not to reveal
having been touched due to a fear of embarrassment. “ Ceci et al., supra note
48, at 124.
[FN328]. See, e.g., Rudy & Goodman, supra note 52, at 535.
[FN329]. See Goodman et al., supra note 23, at 266. Goodman and colleagues,
discussing the Rudy and Goodman study, stated: We also noticed that
children’s demeanor changed once we began to ask the abuse questions. Many
showed signs of embarrassment by giggling or smiling. Others looked
surprised. Some covered their eyes with their hands, puckered up their faces
in disgust, asked in disbelief if we would repeat the question, or, if their
parent was in the room during the questioning, glanced over at him or her in
an act of “social referencing,” with a look of “good grief!” on their faces.
We scored the children’s nonverbal responses to three of the most blatant
abuse questions: “Did he kiss you?” “He took your clothes off, didn’t he?”
and “Did he hit you?” in comparison to the questions preceding that line of
questioning, which mostly concerned the confederates’ appearance. The
children showed significant increases in smiling and surprise as soon as the
abuse questions began. Id.
[FN330]. Ceci & Bruck, supra note 36, at 234.
[FN331]. Several of these studies involve high rates of false responding by
three-year-olds, see id., which raises the issue of the age at which children
exhibit embarrassment about touching. Younger children likely do not feel
[FN332]. See Ceci et al., supra note 33, at 506 (“[T]ruly abused children are
often unlikely to disclose sexual abuse out of a sense of embarassement or
[FN333]. See Ceci & Bruck, supra note 36, at 203 (citing Donna Della
Femina et al., Child Abuse: Adolescent Records vs. Adult Recall, 14 Child
Abuse & Neglect 227, 228-29 (1990)). Of a group of 69 subjects
interviewed both as adolescents and, nine years later, as adults, “26 gave responses
regarding [physical] abuse that were discrepant with information gathered
when they were adolescents.” Femina et al., supra, at 228. Eleven of these
adults agreed to a “Clarification Interview” during which they provided
explanations for these inconsistencies:
[A]ll 11 subjects with discrepant data who were reinterviewed had,
as far a s could be ascertained, been abused. Reasons for denial, whether in
adolescence or adulthood, included embarrassment, a wish to protect parents ,
a sense of having deserved the abuse, a conscious wish to forget the past,
and a lack of rapport with the interviewer.
Id. at 229; see also Johnson & Shrier, supra note 266, at 374 (noting
that some adolescent males had not reported childhood abuse because “they
wanted to forget about the incident, wanted to protect the assailant, or were
afraid of the reactions of their peers and family members”).
[FN334]. See Ceci & Bruck, supra note 36, at 265.
[FN335]. See id.
[FN338]. See Saywitz et al., supra note 59, at 691 (stating that “[c]hildren
in the nongenital condition had no motive to distort their reports”).
[FN339]. See Ceci & Bruck, supra note 36, at 265-66.
[FN340]. Id. (internal quotation marks omitted).
[FN341]. Ceci and Bruck may have seen this question somewhere, given the
large number of interviews they reviewed. Unfortunately, they do not provide
any evidence of its use.
[FN342]. See, e.g., David Finkelhor, The Trauma of Child Sexual Abuse: Two
Models, 2 J. Interpersonal Violence 348, 355-56 (1987) (arguing that sexual
abuse shapes children’s sexuality in “developmentally inappropriate and
interpersonally dysfunctional ways,” in part because “[c]hildren become
confused and acquire outright misconceptions about sexual behavior and sexual
morality as a result of things that offenders tell them”).
[FN343]. See Ceci & Bruck, supra note 36, at 264-65.
[FN344]. See id.
[FN345]. See id. at 265.
[FN346]. McGough, supra note 13, at 289 n.11 (citing Stephen J. Ceci &
Michael P. Toglia, Presentation at the Biennial Meeting of the American
Psychology and Law Society (Mar. 16, 1990)).
[FN347]. Ceci et al., supra note 33, at 504.
[FN348]. Ceci & Bruck, supra note 36, at 265.
[FN349]. See Ceci & Bruck, supra note 9, at 427.
[FN350]. Children can overcome embarrassment. Ceci and his colleagues cite
transcripts of interviews in which young children “sometimes seemed gleeful
as they recounted their alleged sexual molestation.” Ceci et al., supra note
33, at 506. Their acknowledgment that such glee “may not characterize the
vast majority of child sexual abuse cases,” id., matches my own experience in
interviewing young children. Although I am not aware of any corroborating
research, in my experience children’s humor regarding bodily functions tend s
to involve urination and defecation rather than sexual acts.
[FN351]. Indeed, developmentalists have demonstrated that children understand
this fact about memory by the time they are five years old. See James Ramsey
Speer & John H. Flavell, Young Children’s Knowledge of the Relative
Difficulty of Recognition and Recall Memory Tasks, 15 Developmental Psychol.
214, 217 (1979).
[FN352]. Ceci & Bruck, supra note 9, at 404 (emphasis omitted).
[FN353]. See Stephen J. Ceci & Michael J.A. Howe, Age-Related Differences
in Free Recall as a Function of Retrieval Flexibility, 26 J. Experimental
Child Psychol. 432, 435-36 & tbl.2 (1978). This study examined a sample
of 72 children, 24 each in nursery school, second grade, and fifth grade. See
id. at 434. Children were presented with 25 drawings in an incidental
learning task in which researchers trained children to group pictures
thematically and taxonomically. See id. Subsequently, interviewers conducted
both cued recall and free recall tests with each child. See id. at 434-35.
“Although 10-year- olds’ free recall was nearly 50% greater than 4-year-olds
[sic], their cued recall was only 8% greater.” Id. at 435-36.
[FN354]. Bruck & Ceci, supra note 39, at 306 (internal quotation marks
[FN355]. Id. (internal quotation marks omitted).
[FN356]. The difficulties in defining what questions should be characterized
as “leading” is discussed supra in notes 178-85 and accompanying text.
[FN357]. Bruck & Ceci, supra note 39, at 306 (internal quotation marks
[FN358]. See Peter A. Ornstein et al., Children’s Memory for a Personally
Experienced Event: Implications for Testimony, 6 Applied Cognitive Psychol.
[FN359]. See id. at 55 tbl.3. In a similar study, Lynne Baker-Ward and
colleagues added information elicited through yes/no questions during an
interview immediately after the examination and found that such information
nearly tripled the memory performance of the three-year-olds, nearly doubled
the performance of the five-year-olds, and increased the proportion of
features remembered by the seven-year-olds by 50%. See Lynne Baker-Ward et
al., Young Children’s Long-Term Retention of a Pediatric Examination, 64
Child Dev. 1519, 1524-26 (1993). Difference between recall and yes/no
performance was even larger after one- to six-week delays. See id.
[FN360]. See Ornstein et al., supra note 358, at 55 tbl.3.
[FN361]. Stephen J. Ceci et al., On Remembering ... More or Less: A Trace
Strength Interpretation of Developmental Differences in Suggestibility, 117
J. Experimental Psychol.: Gen. 201, 202 (1988); see also Ceci & Bruck,
supr a note 36, at 71 (summarizing Ornstein and colleagues’ research and
noting that “[t]he 3-year-olds were particularly noteworthy for the lack of
information that they provided to the open-ended questions, thus forcing the
interviewer to ask a large number of specific yes/no questions in order to
obtain a full report about the visit”); Ornstein et al., supra note 358, at
58 (noting that “it was necessary to rely more fully on yes-no, specific
probes when dealing with the 3-year-olds, because these children generated
relatively little information in response to the open-ended questions”).
[FN362]. See Hershkowitz et al., supra note 174, at 172-73; Lamb et al.,
supra note 173, at 1255-56; Lamb et al., supra note 167, at 633-34; Kathleen
J. Sternberg et al., Effects of Introductory Style on Children’s Abilities to
Describe Experiences of Sexual Abuse, 21 Child Abuse & Neglect 1133, 113
9 (1997); Sternberg et al., supra note 172, at 447-48.
[FN363]. Debra A. Poole & Michael E. Lamb, Investigative Interviews of
Children 52 (1998) (emphasis added) (citations omitted).
[FN364]. In one study, Sternberg and her colleagues manipulated whether
investigators used an open-ended introductory style or a direct introductory
style. See Sternberg et al., supra note 362. They found that children
responded to the first abuse-related question at greater length and in more
detail when the investigator used the open-ended introductory style. See id .
at 1140. Investigators using the open-ended introductory style, however, did
not continue to ask open-ended questions, and therefore one could not
determine whether an interview in which open-ended questions predominated was
superior. See id. (“Interviewers who began the interviews using the
open-ended introductory protocol did not use more open-ended utterances in
their interviews than those using the direct introductory protocol.”).
[FN365]. See Lamb et al., supra note 173, at 1257 (“The available sample wa s
too small for us to examine age differences, although it is possible that
different results would have been obtained had the children been younger.”) ;
Lamb et al., supra note 167, at 635 (“Because we limited this study to
children between 5 and 11 years of age, we do not know whether similar
results would have been obtained had the study been focused on preschool-aged
children.”); Sternberg et al., supra note 362, at 1137 (explaining that 11 of
51 or 22% of children interviewed were four to six years of age, and the
youngest was four and one-half); id. at 1139-40 (explaining that children
older than eight exhibited a larger increase in details than children under
eight when interviewers used an open-ended introduction rather than a direct
introduction and noting that details increased by 180% for older children and
42% for younger children);
Sternberg et al., supra note 172, at 442 (involving interviewees four to
twelve years of age); id. at 447 (“[T]he superiority of open-ended over
focused questions was greater for older [8-11 and older] than for younger
children [8-11 and younger].”).
[FN366]. See, e.g., American Prosecutors Research Inst., Nat’l Ctr. for
Prosecution of Child Abuse, Investigation and Prosecution of Child Abuse at
II- 8 to II-9 (1987) (recommending that interviewers avoid leading
questions); Home Office & Dep’t of Health, Memorandum of Good Practice:
On Video Recorded Interviews with Child Witnesses for Criminal Proceedings 17
(1992) (recommending that interviewers begin with open-ended questions); R.
Edward Geiselman et al., Effects of Cognitive Questioning Techniques on
Children’s Recall Performance, in Child Victims, Child Witnesses 71, 78-79
(Gail S. Goodman & Bette L. Bottoms eds., 1993) (detailing elements of
“cognitive interview,” which includes asking for narrative report before
asking specific questions); John C. Yuille et al., InterviewingChidren in
Sexual Abuse Cases, in Child Victims, Child Witnesses, supra, at 95, 99
(recommending that interviewers “begin with the most open, least leading form
of questioning and proceed to more specific forms of questioning as
[FN367]. See Bruck et al., I Hardly Cried, supra note 34, at 205.
[FN368]. See id.
[FN369]. See id.
[FN370]. See id. Eleven percent (9/85) of the total false allegations were in
response to an open-ended inquiry about the examination, 38% (32/85) were in
response to “What did [the RA] do?,” and 48% (41/85) were in response to “Who
gave you your shot?,” indicating that errors increase with the number of
specific questions asked. Id. (internal quotation marks omitted).
[FN371]. See Leichtman & Ceci, supra note 34, at 572-73. In the Sam Stone
Study, for the free narrative question the researcher asked the children to
“tell [her] everything that happened?” Id. (internal quotation marks
omitted). For the probe question, the researcher asked the children if they
had “heard something” about a book and if they knew anything about that. Id
(internal quotation marks omitted).
[FN372]. Ceci, supra note 32, at 48; see also Leichtman & Ceci, supra
note 34, at 571-72 (“[The youngest] children’s reports usually included
accurate accounts of actual information; they often were able to recall Sam
Stone’s limited activities on the day he visited, for example, that he walked
around the housekeeping section of the classroom, that he greeted the
children pleasantly, or that he waved goodbye.”).
[FN373]. Ceci & Bruck, supra note 36, at 133; see also Leichtman &
Ceci, supra note 34, at 575 (“[Q]uite accurately, ... [one child] asserted
that Sam Stone had come into the classroom and said hello and looked around,
but that ‘nothing happened.”’).
[FN374]. Bruck & Ceci, supra note 39, at 306 (emphasis added).
[FN375]. Id. (internal quotation marks omitted) (indicating that some
interviewers use such questions if the child provides no information in the
[FN376]. It is not clear, for instance, whether “bad place” refers to a
location or a part of the child’s body.
[FN377]. State v. Michaels, 642 A.2d 1372, 1383 (N.J. 1994), aff’g State v.
Michaels, 625 A.2d 489, 515 (N.J. Super. Ct. App. Div. 1993) (“The record of
available interviews does not disclose that any of the children related their
testimony of the alleged abuse by ‘free recall.”’). The appeals court in
Michaels acknowledged the conclusion of some experts that the “’development
of accurate recall skills’ does not occur until the child is five years of
age.” 625 A.2d at 516 (quoting State v. Wright, 775 P.2d 1224 , 1227 (Idaho
1989), aff’d, 497 U.S. 805 (1990)). The court failed, however, as did the
Idaho court that it cited, to recognize that if a child lacks accurate recall
skills, leading questions are a virtual necessity.
[FN378]. See Michaels, 642 A.2d at 1383.
[FN379]. See Ceci & Bruck, supra note 36, at 4 (“[W]e make the case that
the needs of both science and society dictate a middle ground.”); Ceci &
Bruck, supra note 9, at 433 (“Extreme statements that some have profered
[sic] in the media ... are not supported by the findings reviewed here.”);
Ceci et al., supra note 33, at 494 (noting that “[a] major goal [of] the
amicus brief in State v. Michaels ... was to ... argue that a middle ground
can and should be the framework for future investigations”).
[FN380]. See Hollida Wakefield & Ralph Underwager, Return of the Furies:
An Investigation into Recovered Memory Therapy 5 (1994).
[FN381]. See, e.g., Hollida Wakefield & Ralph Underwager, Accusations of
Child Sexual Abuse (1988); Wakefield & Underwager, supra note 380.
[FN382]. Richard A. Gardner, Sex Abuse Hysteria: Salem Witch Trials Revisited
[FN383]. Wakefield & Underwager, supra note 381, at xxi.
[FN384]. Wakefield & Underwager, supra note 380, at 34.
[FN385]. See William McIver II et al., Behavior of Abused and Non-Abused Children
in Interviews with Anatomically Correct Dolls, Issues Child Abuse
Accusations, Winter 1989, at 39.
[FN386]. See, e.g., Ceci & Bruck, supra note 36, at 166 (“It is important
to point out that this last report has been criticized for the failure to differentiate
between explicit sexual behavior and aggressive behavior.”); Mark D. Everson
& Barbara W. Boat, Putting the Anatomical Doll Controversy in
Perspective: An Examination of the Major Uses and Criticisms of the Doll s in
Child Sexual Abuse Evaluations, 18 Child Abuse & Neglect 113, 124 (1994)
(“The study, however, has several limitations, the most serious of which is
the fact that the authors combined a variety of disparate behaviors into a
single category for their group comparison.... [The] findings therefore are
[FN387]. Gardner, supra note 382, at 2.
[FN388]. Id. at 105.
[FN389]. Richard A. Gardner, The Parental Alienation Syndrome and the
Differentiation Between Fabricated and Genuine Child Sex Abuse 175-76 (1987).
[FN390]. Scott Kraft, Careers, Reputations Damaged: False Molesting Charges
Scar Lives of Accused, L.A. Times, Feb. 11, 1985, at 1.
[FN391]. Gardner, supra note 389, at xxvii.
[FN392]. See Gardner, supra note 382, at 3-6.
[FN393]. See Wakefield & Underwager, supra note 381, at 292.
[FN394]. Richard A. Gardner, Belated Realization of Child Sexual Abuse by an
Adult, Issues Child Abuse Accusations, Fall 1992, at 177, 191.
[FN395]. Interview: Hollida Wakefield and Ralph Underwager, 3 Paidika 2, 3- 4
(1993). In the interview, Wakefield expresses her disagreement with
Underwager: “I guess I do feel differently about some things. For example, I
find it difficult to envision how a paedophile relationship can have the
potential of being the type of close, intimate, constantly developing
relationship that would be possible in more traditional relationships ....”
Id. at 4. In their latest book, Wakefield and Underwager argue that “[e]ven
though the data seem to suggest otherwise, we maintain that sexual abuse is
always harmful.” Wakefield & Underwager, supra note 380, at 63.
[FN396]. See Ceci et al., supra note 33, at 494 (“The trade-off between doing
all that one can do to elicit a report of a potentially important event from
a child versus avoiding all elicitation techniques that might contaminate the
child’s recollection presents a conflict.”). Ceci and Bruck also expressed
the following view:
Both of these arguments fail to consider the combined costs and benefits of
passive versus aggressive interviewing practices. For example, before either
of these claims can be substantiated, it is important to determine the
proportion of abused children who are initially too scared or confused to
divulge the details of their victimization, but who will eventually do so if
they are questioned more aggressively, as well as the proportion of nonabused
children who will eventually disclose false details of abuse if they are
aggressively questioned. Ceci & Bruck, supra note 36, at 2.
[FN397]. See Ceci & Bruck, supra note 36, at 2.
[FN398]. Ceci, supra note 32, at 18. As discussed earlier, see supra notes
379, 396 and accompanying text, Ceci and his colleagues consider themselves
centrists. Who are the extremists? On the side of skepticism, an extremist
believes the data are sufficient to “categorically discredit children from
testifying or even to recommend skepticism upon hearing a child’s
disclosure.” Ceci & Bruck, supra note 36, at 4. By Ceci and Bruck’s
account , Underwager and Gardner do not qualify. Ceci and Bruck cite them as
believing that children are “potentially” less reliable than adults, but also
as acknowledging that “children are capable of high levels of accuracy,
provided that adults who have access to them do not attempt to bias their
reports.” Ceci & Bruck, supra note 9, at 403 n.1. Apparently, centrists
consist of a large and heterogeneous lot.
[FN399]. Ceci et al., supra note 33, at 504.
[FN400]. Ceci & Bruck, supra note 36, at 4.
[FN401]. See Ceci & Bruck, supra note 9, at 421 (listing potential
outcomes of unjust prosecution based on false allegation).
[FN402]. Ceci & Bruck, supra note 36, at 4.
[FN405]. Ceci et al., supra note 33, at 499. Appearing on 20/20, Bruck agreed
with the reporter that “there are dozens of people in jail now who are
totally innocent.” 20/20: From the Mouths of Babes, supra note 46. She
subsequently has explained that the statement was merely her “personal
opinion,” that it was taken out of context, and that she was merely drawing
the conclusion based on the overall number of prisoners who are innocent and
the overall number of prisoners serving time for sexual crimes. Bruck, supr a
note 44, at 100.
[FN406]. Nightline, supra note 133.
[FN407]. Bruck et al., supra note 30, at 148.
[FN408]. See Ceci, supra note 32, at 16-17.
[FN410]. Cf. James M. Wood, Weighing Evidence in Sexual Abuse Evaluations:
An Introduction to Bayes’s Theorem, 1 Child Maltreatment 25, 27 (1996)
(“[I]t is not enough to know that evidence is weak or strong.
Exactly the same evidence may lead to quite different conclusions, depending
on the rate of abuse in the group being evaluated.”).
[FN411]. See supra text accompanying note 409.
[FN412]. Ceci, supra note 32, at 17. But cf. Ceci & Bruck, supra note 36,
at 3 (“Is the diagnostic test for determining the 80% risk status valid? And,
if so, is the risk of infecting the 20% ... a price we are willing to pay for
the chance to treat the 80% who do? These are questions about which
reasonable people can and do disagree.”).
[FN413]. See Ceci & Bruck, supra note 36, at 3.
[FN415]. See Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in
the Legal Process, 84 Harv. L. Rev. 1329, 1331-32 (1971).
[FN416]. See Fed. R. Evid. 401, 403 (providing the standards for relevance
and undue prejudice). Hearsay faces heightened standards of admissibility
because of its potentially prejudicial effects. When assessing the
admissibility of a child’s out-of-court statement under various hearsay
exceptions, a court considers whether factors exist that compensate for the
opponent’s inability to test the truth of the statement by the trial proces s
(particularly cross-examination). Essentially, the concern is that the jury
may give the untested statement more weight than it deserves, making it
[FN417]. This statement is logically equivalent to the definition of “[r]
elevant evidence.” Fed. R. Evid. 401; see Thomas D. Lyon & Jonathan J.
Koehler, The Relevance Ratio: Evaluating the Probative Value of Expert
Testimony in Child Sexual Abuse Cases, 82 Cornell L. Rev. 43, 46 (1996).
[FN418]. Ceci & Bruck, supra note 36, at x.
[FN419]. See Michael R. Leippe & Ann Romanczyk, Children on the Witness
Stand: A Communication/Persuasion Analysis of Jurors’ Reactions to Child
Witnesses, in Children’s Eyewitness Memory, supra note 19, at 155, 159
(presenting a survey of parents and college students that found that “the
majority of respondents saw 5- to 9-year-old children as more suggestible
than adults when the influence agent is an adult”); David F. Ross et al., Age
Stereotypes, Communication Modality, and Mock Jurors’ Perceptions of the
Child Witness, in Perspectives on Children’s Testimony, supra note 221, at
37, 38 (presenting a survey of college students who “believed the child
witness, whether six or eight years old, was less likely to be accurate and
more likely to be open to suggestion than witnesses of adult age (either
young or old)”); A. Daniel Yarmey & Hazel P. Tressillain Jones, Is the
Psychology of Eyewitness Identification a Matter of Common Sense?, in
Evaluating Witness Evidence: Recent Psychological Research and New
Perspectives 13, 33 & tbl.2.15 (Sally M.A. Lloyd-Bostock & Brian R.
Clifford eds., 1983) (reporting that laypersons are likely to believe that
eight-year-old child is highly suggestible). Review of the research
literature on mock jurors’ reactions to child witnesses is beyond the scope
of this paper. Suffice it to say that the results are mixed and of limited
utility in assessing jurors’ attitudes about suggestibility; factors other
than suggestibility heavily influence their evaluations of child witnesses’
credibility, such as their judgments regarding children’s proclivity to lie .
[FN420]. See Paul Stern, Preparing and Presenting Expert Testimony in Child
Abuse Litigation 3 (1997) (“Those who report past victimization [of child
sexual abuse] are unlikely to be seated on the jury.”).
[FN421]. See Slovic et al., supra note 149, at 467 (reviewing research in
which subjects estimated the frequency of various causes of death and
concluded that “overestimated causes of death were dramatic and sensational ,
whereas underestimated causes tended to be unspectacular events, which claim
one victim at a time and are common in nonfatal form”); Amos Tversky &
Daniel Kahneman, Availability: A Heuristic for Judging Frequency and
Probability, in Judgment Under Uncertainty: Heuristics and Biases, supra note
149, at 163, 164 (“A person is said to employ the availability heuristic
whenever he estimates frequency or probability by the ease with which
instances or associations could be brought to mind.”).
[FN422]. See Bruck & Ceci, supra note 39, at 294 (discussing pilot
subject whose behavior “demonstrates vividly the potential suggestiveness of
anatomical dolls with non-abused 3-year-olds” in an amicus brief submitted to
the New Jersey Supreme Court, and appending to the brief a videotape on the
[FN423]. Stephen J. Ceci & Helene Hembrooke, The Contextual Nature of
Earliest Memories, in Mechanisms of Everyday Cognition 117, 124 (James M.
Puckett & Hayne W. Reese eds., 1993).
[FN424]. See Thomas D. Lyon, Questioning Children: The Effects of Suggestive
and Repeated Questioning (1998) (unpublished manuscript, on file with author)
(discussing the effects of repeating questions within and between
interviews); Karen J. Saywitz & Thomas D. Lyon, Coming to Grips with
Children’s Suggestibility: Confronting Limitations, Promoting Capabilities
(1998) (unpublished manuscript, on file with author) (discussing the
importance of age differences in suggestibility).
[FN425]. Bruck et al., supra note 30, at 137 (citing United States v. Rouse ,
100 F.3d 560 (8th Cir. 1996), aff’d en banc, 111 F.3d 561 (8th Cir. 1997);
State v. Michaels, 642 A.2d 1372 (N.J. 1994)).
[FN426]. 642 A.2d 1372 (N.J. 1994).
[FN427]. Warren et al., supra note 153, at 231; see also Ceci & Bruck,
supr a note 36, at 337; C.J. Brainerd & D. Hill, Voices of Children, 42
Contemp. Psychol. 7 (1997) (reviewing Ceci & Bruck, supra note 36) (stating
that the brief “was quoted by the court in its decision”).
[FN428]. Ronald J. Allen & Joseph S. Miller, The Expert as Educator:
Enhancing the Rationality of Verdicts in Child Sex Abuse Prosecutions, 1
Psychol. Pub. Pol’y & L. 323, 336 (1995).
[FN429]. See Michaels, 642 A.2d at 1384-85.
[FN430]. 100 F.3d 560 (8th Cir. 1996), aff’d en banc, 111 F.3d 561 (8th Cir .
[FN431]. Id. at 569.
[FN432]. See id. at 563 n.2.
[FN433]. 509 U.S. 579 (1993).
[FN434]. See Rouse, 100 F.3d at 567-73.
[FN435]. Id. at 569.
[FN436]. See sources cited supra note 427.
[FN437]. The case cites Ceci once, for the proposition that younger children
are more suggestible than older children. See State v. Michaels, 642 A.2d
1372, 1378 (N.J. 1994).
[FN438]. Id. at 1376.
[FN439]. State v. Michaels, 625 A.2d 489, 511 (N.J. Super. Ct. App. Div.
1993), aff’d, 642 A.2d 1372 (N.J. 1994).
[FN440]. Kraft, supra note 390, at 14.
[FN441]. Interview: Hollida Wakefield and Ralph Underwager, supra note 395,
[FN442]. United States v. Rouse, 100 F.3d 560, 583 (8th Cir. 1996) (Loken,
J., dissenting) (quoting the district court opinion), aff’d en banc, 111 F.3d
561 (8th Cir. 1997).
[FN443]. See United States v. Rouse, 111 F.3d 561, 572 (8th Cir. 1997) (en
[FN444]. See id. at 576 (Bright, J., dissenting).
[FN445]. See Findings of Fact, Rulings of Law, and Order on Defendant’s
Motion for a New Trial, Commonwealth v. LeFave, No. 85-63 (Mass. Super. Ct.