STATE OF MARYLAND

COUNTY OF BALTIMORE

____________________

FRANCISCO FUSTER-ESCALONA

v.

HARRY K. SINGLETARY

CASE NO. 97-1369-Civ-LENARD

MAGISTRATE JUDGE SORRENTINO

____________________

1. Maggie Bruck, being duly sworn according to law, hereby says and deposes as follows:

I hold a doctorate in experimental psychology and am a Professor in the Department of Psychology at McGill University in Montreal, Canada (on leave) and as associate professor of Psychiatry at Johns Hopkins Medical Institution in Baltimore, Maryland. I specialize in research in the field of developmental psychology. My particular research interests focus on children's language and memory development.

I received my undergraduate degree in Psychology from Wheaton College in Norton, Massachusetts in 1967. In 1969, I received my Master’s degree in Experimental Psychology from McGill University. I earned my Ph.D. in Experimental Psychology from McGill University in 1972.

My academic/research history includes experience as a Research Associate in the McGill University Department of Psychology (1972) and at the McGill-Montreal Children’s Hospital Learning Center (1972-1975). I served as a Senior Staff Member of the Center for Applied Linguistics in Arlington Virginia in 1975 and 1976. From 1976 through 1993 I was the Research Director at the McGill-Montreal Children’s Hospital Learning Center. From 1976 through 1992, I was an Associate Member of the Department of Psychology at McGill University. Since 1991 I have been an Associate Professor in the Department of Psychology and Department of Pediatrics at McGill University. I was appointed to full Professor in Psychology in 1998. At present, on leave from McGill, I am an associate professor in the Department of Psychiatry at Johns Hopkins School of Medicine.

Since 1971 I have taught the following subjects: Educational Psychology (McGill); Tests and Measurement (McGill); Language Development (Sir George Williams University); Research Methods in Psycholinguistics (McGill); Childhood Psychopathology (McGill & Concordia Universities); Graduate Clinical Seminar (McGill); Psychology of Language (McGill); Graduate Cognitive Seminar (McGill); Experimental Problems (McGill); and Reading Ability and Reading Disability (McGill); Children in the Courtroom (McGill). I have also served as a Senior Lecturer in the Senior Resident Ambulatory Rotation in the McGill University Department of Pediatrics.

My administrative experience includes tenure as the: Research Director at the McGill University Children’s Hospital Learning Center; Acting Director McGill-Montreal Children’s Hospital Learning Center; and Assistant Director of the Learning Center of Quebec.

I have served on several University committees including the Cyclical Review Committee for the Department of Otolaryngology; Graduate Faculty Social Science Research Grants Committee, Graduate Faculty Social Science Research Grants Committee (Chair), Graduate Faculty Council, Graduate Fellowship Committee, and Committee on Non-medical Research involving Humans.

I have also reviewed numerous research grants for organizations including: the Social Science and Humanities Research Council; the Natural Sciences and Engineering Research Council of Canada; the McGill-Montreal Children’s Hospital Research Institute; Les Fonds de la Recherche en Sante du Quebec; B.C. Health Care Research Foundation; the National Institute of Health; and the Ontario Mental Health Foundation. I have reviewed articles for the Canadian Journal of Behavioral Science; Reading Research Quarterly; Canadian Journal of Psychology; Developmental Psychology; Memory & Cognition; International Journal of Behavioral Development; Journal of Experimental Psychology; British Journal of Psychology; Law & Human Behavior; and Applied Cognitive Psychology.

I have served as a member of the following Review Committees: National Health and Welfare Canada Development Program; American Psychological Association (Division 7); Society for Research in Child Development; and the Advisory Committee Massachusetts General Hospital Institute of Health Professionals. I also serve or have served on the Editorial Boards of the following scientific peer review journals: Applied Psycholinguistics; Journal of Experimental Child Psychology; Psychology, Public Policy and Law; Child Development; and Journal of Experimental Psychology: Applied.

I am a member of the American Psychological Society, the Society for Research in Child Development, and The Psychonomics Society.

I have received nearly two dozen research grants during the last 20 years. I have published some 60 articles in peer reviewed publications, 16 book chapters and co-authored with Stephen Ceci, Ph.D. Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, American Psychological Association: Washington, D.C. (1995). Dr. Ceci and I won the Robert Chin Memorial Award for the most outstanding article on child abuse in 1994 for our article The Suggestibility of Child Witnesses: An Historical Review, Psychological Bulletin, 113 403-439 (1993). I have also presented more than 40 peer reviewed papers at professional conferences and presented more than 50 invited addresses.

2. I have testified as an expert trial witness in North Carolina v. Robert Fulton Kelly; and in R. v. Linda Sterling (Saskatchewan) and at evidentiary hearings in Commonwealth of Massachusetts v. Cheryl Amirault LeFave; and California v. Scott Kniffen, Brenda Kniffen, Alvin McCuan, and Debora McCuan. I have participated as amicus curiae in New Jersey v. Margaret Kelly Michaels (New Jersey Supreme Court) and Snowden v. Singletary (United States Court of Appeals for the 11th Circuit). Facts and issues in these cases were similar to those present in this case.

3. For the past 9 years, I have conducted research in the area of the reliability and credibility of children's testimony. With my colleague, Dr. Stephen Ceci, I have conducted a number of experimental studies on the factors that influence children's suggestibility; these have been published in peer-review journals. I have reviewed the materials of a number of actual legal cases of alleged sexual abuse of children, either in the capacity of an expert witness or consultant. To a large extent, many of these materials have motivated my research studies.

4. I have been asked by defense counsel for Francisco Fuster-Escalona to review a number of documents, which are set out below. This affidavit contains a review of the scientific research literature on (I) the disclosure patterns of sexually abused children and (II) the effects of various interviewing techniques on the recall of young children. The affidavit also contains my expert opinion on the uses of various suggestive interviewing techniques as well as a scientific appraisement of the testimony of the expert witnesses who testified in Fuster.

5. Counsel has sent for my review the following documents:

Police Investigative Files

Medical Reports from the Jackson Memorial Rape Treatment Center.

Trial testimony of Dr. Roland Summit

Trial testimony of Dr. Jerome Poliacoff

Trial testimony of Dr. Simon Miranda

Trial testimony of Dr. Barbara Goldman

Trial testimony of Laurie Braga

Trial testimony of Joseph Braga

Trial testimony of Doris Stiles

Trial testimony of Dr. Lee Coleman

NG Transcripts of Braga interviews on 8/13/84, 8/14/84, 8/15/84 and 11/26/84; and interview with Dr. Simon Miranda on 11/27/84

JC Transcripts of Braga interviews on 8/9/84 (2 vols., part w/ brother), 8/13/84 (part with BT), 8/20/84 and 8/28/84

TL (a girl) Transcripts of Braga interviews on 8/9/84, 9/10/84, and 1/28/85

JL Transcripts of Braga interviews on 9/19/84 and 1/17/85

RL’s trial testimony (JL’s mother)

SM transcripts of Braga interview on 8/17/84 and 1/25/85

AP transcripts of Braga interviews on 8/16/84 (along with younger brother) and 1/14/85

BT transcripts of Braga interviews on 8/10/84, 8/12/84, and 8/30/84

Trial testimony of Linda Cooper, social worker for Child Protective Team

Deposition of Ellen St. Laurent

Deposition of Phylis Wilker.

22. Deposition of Steven Paul Allen

23. Deposition of Mary Lerow

I. General Overview of a) Criminal Cases Involving Suggestibility; b) Recent Research Literature; c) Expert Opinion of the Record in Fuster According to the Relevant Scientific Research Literature and d) Organization of Affidavit

A. The Cases

6. During the 1980s and early 1990s, there were a number of cases similar to Fuster in which young children claimed that their parents or other adults had sexually abused them. The claims were often fantastic, involving reports of ritualistic abuse, pornography, multiple perpetrators and multiple victims (e.g., California v. Scott Kniffen and Brenda Kniffen, Cal. Ct. of App. 5th Dist. # F004423 (1995);California v. Alvin McCuan and Deborah McCuan, Kern County Superior Court # 24208; California v. Raymond Buckey et al., Los Angeles County Sup. Ct. #A750900; New Jersey v. Michaels, 625 A.2d 579 aff’d 642 A.2d 1372 (1994); North Carolina v. Robert Fulton Kelly Jr., 456 S.E.2d 861 (1995). As in Mr. Fuster’s case, children's often fantastic claims were believed by mental health professionals, by police officers, by prosecutors, and by parents. In the ensuing legal proceedings, the major issue before the jury was whether or not to believe the children. Prosecutors argued that children do not lie about sexual abuse, that the child witness' reports were authentic, and that their bizarre and chilling accounts of events, which were well beyond the realm of most preschoolers' knowledge and experience substantiated the fact that the children had actually participated in them. The defense in each of these cases tried to argue that the children's reports were the product of repeated suggestive interviews by parents, law enforcement officials, and therapists. However, in the absence of any direct scientific evidence to support the defense's arguments -- and in light of the common belief of that time that children do not lie about sexual abuse -- many of these cases eventuated in convictions.

B. The Scientific Research Literature Developed in the Years Since the Fuster Trial.

7. Now, 13 years later, social scientists have developed a sociological and psychological understanding of the possible factors that might influence children's testimonies in cases such as Fuster. Specifically, in the decade of the 1990s there has been an exponential increase in research on the accuracy of young children's memories. Although some early studies document strengths of young children's memories under certain circumstances, increasing numbers of studies highlight their weaknesses, demonstrating how children's memories and reports can be molded by suggestions implanted by adult interviewers. The new research also shows that even professionals accustomed to dealing with children on a regular basis are unable to tell with any accuracy whether a child is providing a false or a true report when that child has been suggestively interviewed. Under such circumstances, the child’s affect and the detail with which the child reports the event and its surrounding circumstances are often indistinguishable from what one would expect from a child who is reporting the actual truth.

Summary of Issues and Conclusions

8. I have been asked by defense counsel for Francisco Fuster-Escalona to review a number of documents, which are set out below, and to answer, if I can, the following questions:

Were the interviews conducted in this case so suggestive as to be capable of rendering the children’s reports of abuse unreliable?

If so, could the defense’s expert witness, Dr. Lee Coleman, support his clinical intuitions about the interviews with scientific evidence when he testified in 1985?

Based on the most current scientific knowledge, what is the quality of the testimony of the prosecution’s experts who stated at trial that (a) that young children do not lie about sexual abuse, (b) that mental health professionals can detect children’s true and false reports, and (c) that sexually abused children exhibit specific disclosure patterns and behaviors that consistent and diagnostic of the abuse ?

9. The short answer to these questions is that the interviews in this case were indeed so suggestive as to render the children’s reports of abuse unreliable. In 1985, however, there were no studies upon which to base such a conclusion. While a psychiatrist such as defense expert, Dr. Lee Coleman, had the intellectual tools – i.e., intuition – to detect certain suggestive questioning tactics that could shape the child’s responses, no one in 1985 could provide scientific data about the actual impact on the young child’s testimony of suggestive questioning techniques used in Fuster. The state of knowledge has changed dramatically since 1985 in the wake of a surge of interest in the study of child suggestibility. This new research focuses on the types of interviewing practices that can alter the accuracy of a child’s reports about central important events; and it also demonstrates the far-reaching impact of such questioning on young children who frequently generate detailed, emotionally laden accounts of events that have never actually transpired. The new research also shows that under some circumstances, children come to believe these false accounts of events that never occurred.

10. Moreover, the testimony given by the experts for the prosecution on each of the three topics outlined above has little if any scientific support. Of particular importance is the finding that when children produce false reports as a result of suggestive interviewing procedures, even experts in child development cannot detect the falsity of these children’s reports. Again, however, the studies that discredit the opinions given by these experts did not exist in 1985. Thus, there would have been no way to prove in 1985 that the opinions provided by the prosecution witnesses were invalid.

11. Finally, in reviewing the record, I noted the absence of electronic recordings of initial interviews with key child witnesses. I present scientific evidence to suggest that the absence of such material makes it impossible to determine the accuracy of some of the actual reports initially made in this case.

D. Organization of Affidavit

12. Section II of this affidavit contains a discussion of young children's disclosure patterns of sexual abuse. The disclosure pattern of the children in the Fuster case is presented and interpretations of the disclosure patterns are discussed. The beliefs about disclosure patterns expressed by the state experts who participated in the investigation and trial of this case are then presented through citations to excerpts from the record in this case. Following that, it is explained that the beliefs of the investigators and experts in this case are unsupported and controverted by the relevant scientific research literature.

13. In Section III of my affidavit, I provide an overview of the change of focus that occurred in the late 1980s in the type of research conducted on issues pertaining to the reliability and credibility of children’s reports. Throughout, I also provide several examples of the egregious errors made by the Fuster interviewers to illustrate points not already made in Mr. Fuster’s Amended Petition. Because of time constraints, and because the interviews are saturated with these interviewing errors, Mr. Fuster has asked that I not attempt to catalogue these errors. Instead, I have attached as Exhibit 3 to my affidavit those pages of Mr. Fuster’s petition which provide examples of the interviewing techniques I describe. I have reviewed these examples and affirm that they are valid. In addition, I attach to this affidavit transcripts of the first several days of recorded interviews conducted by state investigators, Laurie and Joseph Braga, and suggest that the Court open these transcripts randomly to get a sense of the frequency with which suggestive interviewing is used with these children. The Court will note that, once armed with an understanding – from reading the scientific data I provide herein – of the robust effects that certain types of suggestive questioning and interviewing ploys can have, the educated layperson can review most interviews and on the basis of the current scientific literature discern whether they have the potential to distort a child’s memory. Certainly the Braga interviews have abundant examples that are not subtle. In Section III, when relevant, I return to evaluate the testimony of the state’s experts. I argue that their opinions are not supported by current scientific evidence.

14. In Section IV, I turn to the examine the testimony of defense expert, Dr. Lee Coleman, and explain why his testimony, although intuitively correct, had no scientific support at the time he testified, as demonstrated dramatically by the prosecution’s ability to discredit Dr. Coleman on cross-examination. By referring to Section II of this document, I will show that there now exists a large body of consistent research that supports his earlier intuitions.

15. In Section V, I turn to a subject of research that was not directly addressed in Mr. Fuster’s Corrected Petition – i.e., the problem of unrecorded interviews such as those conducted by parents, police investigators (other than the Bragas), and personnel at the Jackson Memorial Hospital Rape Treatment Center (RTC). Describing relevant experiments conducted since 1985, this section explains that without electronic recording of all interviews, it is impossible to determine the accuracy of adults’ reports of the content as well as the structure of the interview. Electronic recordings are crucial not only for determining how children’s disclosures of abuse were made but also the accuracy of adults’ notes and memories of what the children actually said. The police reports and depositions I have reviewed provide some clear examples of the problems occasioned by the lack of verbatim reports.

16. In Section VI, I return to the testimony of the prosecution’s experts, including Drs. Joseph and Laurie Braga, Dr. Roland Summit, Dr. Doris Stiles, Dr. Simon Miranda, Dr. Jerome Poliacoff and Dr. Barbara Goldman who testified about the behaviors that are consistent with and diagnostic of childhood sexual abuse. I will discuss the status of this testimony in light of current scientific evidence. This research discounts the strong assertions made by these experts.

17. Finally, I note that I have confined my affidavit to the above-listed topics at counsel’s request because of time and funding limitations. If the Court were to deem it necessary or useful, however, I will appear at an evidentiary hearing or provide a supplementary affidavit in which I would trace the development of each child’s allegations of abuse in detail. I would then explain what leads me to the specific conclusion that each of these children’s reports has been rendered unreliable by the nature of the interviews to which he or she was subjected.

A. The Disclosure Pattern that has Raised the Most Concerns About Reliability of Accusations of Abuse is the One Found in This Case

18. When evaluating a child's allegations of sexual abuse, it is of primary importance to understand the evolution of the child's reports. The following pattern has raised the most concerns regarding allegations of abuse. The child is initially silent—He does not make any unsolicited or spontaneous statements about abusive acts. Rather, the allegations emerge once an adult suspects that something has occurred and starts to question the child. At first, the child denies the event happened, but with repeated questioning, interviewing, or therapy, the child may eventually come to make a disclosure. Sometimes after the disclosure is made, the child may recant, only to later re-state the original allegation after further questioning. This pattern of disclosure characterizes the child witnesses in Fuster.

19. None of the child witnesses in Fuster spontaneously reported to their parents that Frank Fuster had abused him or her. Even when their parents and police investigators first directly asked them about abusive acts at Country Walk Babysitting Service all the children but one denied that anything had happened. Some children disclosed abusive acts within the first month of questioning by parents, police officers, social workers, and therapists; other children did not disclose until many more months of questioning. Some children recanted earlier allegations in subsequent interviews or sometimes within the same interview. The one child (JC) who disclosed abusive acts by the Fusters during the first police interview (this interview was not recorded and there are only police notes), changed his answers in the interview upon having questions repeated; provided highly inconsistent answers; alternately claimed to have seen the abuse and then to have been in a different part of the house when it was happening; and repeatedly changed his report as to who the participants in the abusive events were. This same child later required his mother to prompt him to remind him of acts of abuse he had earlier recounted. JC also told state attorney investigators, Laurie and Joseph Braga, about a game he had often played with his cousin in which success was measured by who managed to touch another child’s vagina. (As I will later discuss, there are serious problems associated with the fact that we have no verbatim record of the initial interviews with this child.)

B. Interpretation of Patterns of Disclosures Offered by the Experts in This Case

20. There are two different interpretations of the evolution of the allegations of sexual abuse made by the child witnesses in Fuster.

21. The first interpretation is that the progression from silence to denial to disclosure to recantation to re-statement is common and perhaps even diagnostic of sexual abuse. As repeatedly proffered by the states’ experts, sexually abused children deny and recant either because they are afraid (due to threats), ashamed, or even believe themselves to be culpable. Experts at Mr. Fuster’s trial also testified that a child who was threatened with harm if he or she disclosed would be very reluctant to disclose, even if asked directly about abuse.

22. For example, this explanation of disclosure patterns was described at Mr. Fuster’s trial by the state's expert witness, Dr. Roland Summit. One of the earliest proponents of the so-called Child Sexual Abuse Accommodation Syndrome (CSAAS), Dr. Summit testified that it was usual for young children to disclose slowly, to deny and to retract, only to disclose again. He stated that "most children never tell" and "it’s normal on a statistical basis not to tell and not to tell as a child. Some of the reasons some children give for not telling are that they are afraid they won’t be believed. They are afraid they will be punished. They are afraid that their parents can’t tolerate it or they are afraid of the results that have been threatened to them, that they will get into trouble, that they will be hurt by the perpetrator or their parents will be hurt by the perpetrator." (9/10/85, 206) Summit continued by saying that later retracting allegations of abuse was "also a part of a more or less predictable pattern." (9/10/85, 207) Dr. Joseph Braga, who interviewed a number of the children for the prosecution and was also qualified as an expert, provided similar trial testimony. (9/6/85, 192-194) When asked whether children who have been sexually abused immediately tell someone, Braga answered, "No. In fact, it’s an exception rather than the rule." (Id. 192) Joseph Braga continued by explaining that factors that caused the child not to tell included fear, helplessness, threats, secrecy, a sense of guilt, shame or embarrassment. (Id. 192-194) Dr. Laurie Braga, who also interviewed a number of children for the state and was qualified as an expert, testified, "First of all, there are certain inconsistencies that children will make that are very predictable of children who have been abused. They will come in, they’ll say nothing happened . …" (9/27/85, 61.) Similar testimony was provided by other prosecution witnesses. In fact, in some cases the experts made a diagnosis of sexual abuse based upon the presence of a specific disclosure pattern. Thus if a child denied abuse, this strengthened the conviction that the child was abused (Miranda, 9/4/85, 255-256).

23. These beliefs about the disclosure process sometimes are translated into the following practices: Abused children must be relentlessly pursued or they will never disclose their abuse; one should not readily accept children's denials or recantations because these responses are typical among sexually abused children. Sometimes, interviewers assure themselves of the safety of actively pursuing children until they assent to abuse by stating that children cannot be influenced to "lie" about sexual abuse. (Faller, 1984; Sgroi, 1982) These descriptions seem to characterize the prevailing beliefs and procedures in Fuster.. ( Summit, 9/10/85, 208; L,. Braga, 9/10/85, 169, 176).

C. The Beliefs Expressed by the State Experts in This Case are Unsupported and Have Been Contradicted by the Relevant Scientific Research Literature

24. There are serious problems associated with this view that sexually abused children often deny, disclose and recant allegations. There is little adequate scientific evidence to support the view that most children may not readily or consistently disclose sexual abuse when directly asked about it. Although it is true that there are some studies that can be found in the literature to support the claim that sexually abused children do not readily disclose and often recant, these studies suffer a number of methodological flaws that make the results difficult if not impossible to interpret (see Ceci & Bruck, 1995). The primary problem with such studies are the criteria used to select children with diagnoses of sexual abuse. In most of these studies, the criteria are not clearly described or else are highly questionable and thus it is not known if the children in sexually abused group were actually sexually abused.

25. The better (although not perfect studies) use more objective criteria for classifying children as sexually abused. In the most recent study, Bradley and Wood (1996) found that among 234 validated cases of child sexual abuse, only 5% of the children denied the abuse when questioned by CPS workers and only 3% recanted their earlier reports of abuse. Jones and McGraw (1987) found a recantation rate of 8% among 309 validated sexual abuse cases seen at a child protection agency.

26. One factor that appears to predict nondisclosure of sexual abuse is the supportiveness of the caretaker and the relationship of the child to the perpetrator.. Lawson and Chaffin (1992) identified 28 children with STD who had made no prior disclosures of sexual abuse. Each of the children was interviewed by a social worker. Their parents were interviewed to determine whether they accepted the possibility that their child had been abused. These researchers found that 43% of the children disclosed abuse in the first interview. Children whose parents accepted the possibility of abuse (the parents were labeled supportive) were more likely to disclose (63% of this group disclosed) compared to children whose parents were not supportive and did not believe their child had been abused (only 17% of these children disclosed). Furthermore, most of the disclosures (67%) involved extra-familial perpetrators. In terms of the present case, these figures are important because the parents in Fuster were very supportive and wanted their children to disclose. In addition, except for one child (NG), the alleged perpetrators were extra-familial. Given these patterns, one might expect very high rates of disclosure in the first interview with the Fuster child witnesses.

27. The available evidence also does not consistently support the common assumption that sexually abused children do not disclose because of explicit threats made by the perpetrators. In a large study of child victims of sexual abuse, Gray (1993) reported that although 33% of the children in her study were threatened by the perpetrator not to tell, two/thirds of these children still disclosed.

28. To summarize, given the parameters of the present case (supportive parents, extra-familial perpetrators) and the results of the large scale CPS studies, it appears that a small percentage of youngsters disclose their abuse reluctantly, with an equally small percentage subsequently recanting their disclosures. However, the majority of sexually abused children appear to maintain their claims, never denying them to officials once they are asked. Thus although some validated cases of abuse fit the disclosure pattern of denial-disclosure-recantation, these represent a distinct minority of sexually abused children. Furthermore, although threats are sometimes used to silence sexually abused children, these are not predictably effective. In Fuster, none of the child witnesses when first questioned accused Frank Fuster of sexual abuse. Even when urged by parents and other police to tell, many of the children denied for long periods of time. JC, the child who made the earliest and most fantastic claims, and who testified as a central prosecution witness, repeatedly made and then recanted his claims. TL, who told the Bragas in her first interview that they had played ring-around-the-rosy with their clothes off, told Laurie Braga in her second interview that this was just a story. (9/20/85, 222). (Of course, TL's first disclosure may reflect the fact that TL had been induced to play with anatomically correct dolls that had no clothes on. Thus, the original accusation must be taken with a large grain of salt in any case.)

29. Because the patterns of disclosure of the children in Fuster are so discrepant from those reported in the scientific literature, explanations other than sexual abuse must be considered to explain the evolution of these children's allegations that began with silence, then progressed to denial, and eventuated in disclosure and often in recantation. The hypothesis that is considered in my expert analysis is that the children's disclosures were the product of suggestive influences that can sometimes eventuate in false allegations of sexual abuse.

In order to discuss this hypothesis, I first focus on the concept of "suggestive interviewing techniques."

III Suggestive Interviewing Techniques

A. Experiments Prior to the Early 1990s Were Not Designed to Study the Effects of Suggestive Interviews -- Like Those in This Case -- on Children’s Ability to Provide Accurate Reports

30. Until the beginning of the 1990s, the concept and the scientific study of "suggestibility" involved asking a misleading question about some experienced or observed event. For example, children might be asked about the hair color of a male visitor who was bald. If children reported that the man's hair was black, this was an indication of their suggestibility. In other studies, children were provided with misinformation about an event they had experienced. For example, children may have been told a story about a girl with a stomachache. Later, they were falsely reminded that the girl had a headache. Still later, the children would be asked whether the girl had a stomach ache or a headache. If children answered the girl had a headache, this was an indication of their suggestibility. Regardless of the measure of suggestibility, a consistent finding was that younger children were more suggestible than older children (see Ceci & Bruck, 1993, for a review).

31. For several reasons this literature was and is of little practical value in assessing the reliability or suggestibility of children who make allegations of sexual abuse or other potentially distressing events in such cases as Fuster. First, before 1990, there were only a few studies that included preschool children, the age of the children in Fuster. This void left open the question of the suggestibility of preschool children.

32. Second, the pre-1990 studies showed that children could be led to make inaccurate reports about neutral events that had little personal salience (for example the color of a stranger's hair). It was not known if children would come to make similar inaccurate reports if they were asked misleading questions or given misinformation about more central events, especially those that involved their participation in an event and that involved bodily touching.

33. Third, the questioning of the children in these early scientific studies seemed to bear little if any similarity to the conditions under which children were questioned in actual cases. For example, in Fuster, the children were not simply asked several leading questions in one interview. They were repeatedly questioned over a period of days, weeks, and months, sometimes by more than one interviewer. Also, the interviews were characterized by more than just the use of leading questions. Children were told that their friends had talked about things at the day care, children were asked to demonstrate sexual acts on anatomically correct dolls, children were bribed or rewarded for their responses in some interviews. And all of this interviewing took place in an atmosphere where the prevailing belief among the interviewers was that abuse had taken place at the day care. Thus the suggestibility research that was carried out until the late 1980s and early 1990s did not address the issue of whether certain conditions, such as those found in Fuster, would eventuate in children making false claims of touching or of sexual abuse.

B. Recent Experiments Are Designed to Study the Effects of Suggestive Interviews -- Like Those in This Case -- on Children’s Ability to Provide Accurate Reports

34. Because of the limitations of the early studies and as a result of the issues raised by such cases as Fuster, there has been a change of focus and a broadening in the research on children's suggestibility that continues as this affidavit is written. There have been three important changes in the direction of this research. First, preschool children have been included in many studies. Second, researchers have begun to examine children's suggestibility about events that are personally salient, that involve bodily touching, and/or that involve insinuations of sexual abuse. Third, the concept of "suggestive" techniques has been expanded from the traditional view of asking a misleading question or planting a piece of misinformation to using a larger range of interviewing devices that include repeated questioning within interviews, repeated interviews, selective reinforcement of responses, appeal to authority of the interviewer, and the use of props.

35. The broadening of this research was also accompanied by the broadening of the conceptualization of suggestibility. Traditionally, suggestibility has been defined as "the extent to which individuals come to accept and subsequently incorporate post-event information into their memory recollections" (Gudjonsson, 1986. p. 195; see also Powers, Andriks, & Loftus, 1979). This traditional definition contains several important implications: : a) suggestibility is an unconscious process (i.e., information is unwittingly incorporated into memory), b) suggestibility results from information that was supplied after an event as opposed to before it (hence, the term "post-event"), and c) suggestibility is a memory-based, as opposed to a social, phenomenon. This final point means that suggestions are thought to influence reports via incorporation into the memory system, not through some social pressure to fabricate or otherwise conform to expectations. Early studies of children's suggestibility adhered to this definition.

36. This traditional conceptualization and demonstration of suggestibility, however, is too restrictive to aid our understanding of the many cases involving young child witnesses, such as Fuster. Therefore, the definition of suggestibility has been broadened in the past decade to encompass what is usually connoted by its lay usage. Hence, according to the newer definition suggestibility refers to the degree to which the encoding, storage, retrieval and reporting of events can be influenced by a range of internal and external factors. This broader view implies that it is possible to accept information and yet be fully conscious of its divergence from the originally perceived event, as in the case of acquiescence to social demands, lying, or efforts to please loved ones. This broadened definition of suggestibility does not necessarily involve the alteration of the underlying memory; a child may still remember what actually occurred but choose not to report it for motivational reasons. This broader definition also implies that suggestibility can result from the provision of information either before or after an event. Finally, the broader definition implies that suggestibility can result from social as well as cognitive factors. Thus, this broader conceptualization of suggestibility accords with both the legal and everyday uses of the term, to connote how easily one is influenced by subtle suggestions, expectations, stereotypes, and leading questions that can unconsciously alter memories, as well as by explicit bribes, threats, and other forms of social inducement that can lead to the conscious alteration of reports without affecting the underlying memory.

37. In my recent work with Stephen Ceci at Cornell University, we have described the architecture and process of suggestive interviewing techniques (Ceci & Bruck, 1995) In this characterization, interview bias is the defining feature of many suggestive interviews. Interviewer bias characterizes those interviewers who hold a priori beliefs about the occurrence or non-occurrence of certain events and, as a result, mold the interview to elicit statements from the interviewee that are consistent with these prior beliefs.

38. Interviewer bias influences the entire architecture of interviews and it is revealed through a number of different component features that are potentially suggestive. For example, in order to obtain confirmation of their beliefs, biased interviewers may not ask children "open-ended" questions such as "What happened?" but quickly resort to a barrage of very specific questions, many of which are repeated, and many of which are "leading." When interviewers do not obtain information that is consistent with their suspicions, they may repeatedly interview children about the same set of suspected events until they do obtain such information, sometimes reinforcing responses consistent with their beliefs and ignoring information that is inconsistent with their beliefs. In order to obtain full compliance from the child, interviewers often try to engage the child by co-opting his cooperation, by telling him that he is a helper in an important legal investigation and sometimes by telling the child that his friends have helped or already told, and that he should also tell. Interview bias is also reflected in the use of some techniques that are specific to interviews between professionals and children. One of these involves the use of anatomically detailed dolls and line drawings in investigations of sexual abuse. When interviewers suspect abuse, before the children have made any allegations, they sometimes ask children to show on the dolls how they have been sexually abused. As will be described in this report, these are a few of the techniques and some of the characteristics that were used to question the children in Fuster.

39. The current research in the field of children's suggestibility examines the degree to which these and other interviewing techniques, when used in isolation or in combination, result in tainted and unreliable reports from children of the same age as those of the Fuster child complainants. As will be described in this affidavit, the use of these suggestive techniques can bring young children to make claims about events that they have never experienced. The false claims made by children in some of the scientific studies involve potentially serious actions; sometimes the false claims involve actions to their own bodies and sometimes the false claims have a sexual interpretation. The results of these newer studies suggest that children 6 years and younger are especially prone to suggestive influences.

40. In the next sections, I will review the scientific literature that focuses on particular "suggestive" interviewing procedures and then provide examples of how these techniques were used in Fuster. In providing examples, I am limited by the fact that the only electronically recorded interviews (that provide verbatim information as well as visual information of what the children were doing when questioned) were those conducted by Joseph and Laurie Braga. Although there are also police reports, reports from the RTC, parents’ depositions and sometimes therapy reports for the children, these do not substitute for electronic recordings or transcriptions of these recordings. As will be argued in Section V, written statements sometimes are inaccurate because they omit information, or because the information is incorrectly recorded. Of greatest concern is that the written reports do not contain every question asked by the interviewer or every answer given by the child. This information is crucial in order to evaluate the degree to which different suggestive techniques were used in each interview. Even with this limitation, there are sometimes substantial hints in the early police and RTC reports and parent depositions that provide a flavor of how the children were interviewed, how the children reacted and what the children said. This information provides a rough characterization of the early interviewing of the children in Fuster.

C. Interviewer Bias is the Single-Minded Attempt to Gather Only Information That is Consistent With the Interviewer’s Prior Beliefs

41. As noted above, "interviewer bias" is a term used to characterize those interviewers who hold a priori beliefs about the occurrence of certain events and, as a result, mold the interview to elicit statements from the interviewee that are consistent with these prior beliefs. One of the hallmarks of "interviewer bias" is the single-minded attempt to gather or accept only confirmatory evidence and to avoid all avenues that may produce negative or inconsistent evidence. Thus, while gathering evidence to support his hypothesis, an interviewer may fail to gather any evidence that could potentially disconfirm that hypothesis. The biased interviewer does not ask questions that might provide alternate explanations for the allegations (e.g., A biased interviewer would not ask, "Did your mommy and daddy tell you that this happened or did you see it happen?"). Nor does the biased interviewer ask the child about events that are inconsistent with his hypothesis (e.g., A biased interviewer would not ask, "Who else besides your teacher touched your private parts? Did your mommy touch them, too?"). And the biased interviewer does not challenge the authenticity of the child's report when it is consistent with his hypothesis (e.g., The biased interviewer would not say, "It's important to tell me only what you saw, not what someone may have told you." or, "Did that really happen?", or "It's OK to say you don't remember or you don't know."). When provided with inconsistent or bizarre evidence, biased interviewers either ignore it or else interpret it within the framework of their initial hypothesis. It is important to note that within this context, a biased interviewer may be a police officer, a therapist, and even a parent. It takes no special skills to be a biased interviewer.

42. Research has documented how interviewer bias can result in the generation of false reports from children. Two studies are described below.

43. Thompson, Clarke-Stewart & Lepore (1997) conducted a study in which 5- and 6-year-olds viewed a staged event that could be construed as either abusive or innocent. Some children interacted with a confederate named "Chester" as he cleaned some dolls and other toys in a playroom. Other children interacted with Chester as he handled the dolls roughly and in a mildly abusive manner. The children were then questioned about this event. The interviewer was either 1) "accusatory" (suggesting that the janitor had been inappropriately playing with the toys instead of working), 2) "exculpatory" (suggesting that the janitor was just cleaning the toys and not playing), or 3) "neutral" and non-suggestive . In the first two types of interviews, the questions changed from mildly to strongly suggestive as the interview progressed. Following the first interview, all children were asked to tell in their own words what they had witnessed and then they were asked questions about the event. Immediately after the interview and two weeks later, the children were asked by their parents to recount what the janitor had done.

When questioned by a neutral interviewer, or by an interviewer whose interpretation was consistent with the activity viewed by the child, children's accounts were both factually correct and consistent with the janitor's script. However, when the interviewer was biased in a direction that contradicted the activity viewed by the child, those children's stories quickly conformed to the suggestions or beliefs of the interviewer. Also children's answers to interpretive questions (e.g., "Was he doing his job or just being bad?") were in agreement with the interviewer’s point of view, as opposed to what actually happened. When asked neutral questions by their parents, the children's answers remained consistent with the interviewers' biases.

44. A second study (Bruck, Ceci & Melnyk, 1999) shows how interviewer bias can occur in a more natural situation, how it can quickly develop, and how it can not only taint the responses of child interviewees but also the reports of the adult interviewers. The subjects in this study were 120 preschool children and 30 interviewers. These interviewers were primarily recruited from university graduate degree programs in social work or counseling. All had training and experience in interviewing children. Approximately two weeks before they were to be interviewed, the children participated in a staged event. Some children attended a surprise birthday party. With the help of research assistant A, the children surprised research assistant B, played games, ate food, and watched magic tricks. Other children did not attend the birthday party but simply colored a picture with research assistants A and B. These children were told that it was one of the assistant's birthday. They also saw one magic trick. Two weeks later, the children were individually interviewed by one of the 30 interviewers. Each interviewer was told to find out about a special event that happened with special visitors. Each interviewer interviewed 4 children consecutively. The first three children attended the "birthday party" and the fourth child attended the "coloring event". Immediately after the interview with the fourth child, the interviewers were asked to describe the special event that the children had attended. Several weeks later the interviewers were again questioned about what they had learned from the children.

The accuracy of the children’s reports were examined. Of particular interest was whether the fourth child who did not attend the birthday party would make false claims consistent with attending the party. Indeed, Child #4 produced twice as many errors as the first three children; 60% of the fourth children made false claims that involved a birthday party. This pattern reflected the fact that the interviewers had built up a bias that all the children had attended a birthday party. By the time they interviewed child 4, the interview was structured in such a way as to elicit claims consistent with their primary hypothesis. Even when child #4 denied attending a birthday party, 84 % of their interviewers later reported that all the children they interviewed had participated in a surprise birthday party. Thus if interviewers have the belief that all the children they are interviewing have experienced a certain event, then it is probable that many of the children will come to make such claims even though they were non-participants (or non-victims). The data also suggest that regardless of what children actually say, biased interviewers later inaccurately report the child's claims, making them consistent with their own hypotheses.

45. These studies and others reviewed by Ceci & Bruck (1995) provide important evidence that interviewers' beliefs about an event can influence the accuracy of children's answers. The data highlight the dangers of having only one hypothesis about an event, particularly an event involving an ambiguous act such as touching.

46. Examples of interviewer bias abound in the Braga interviews. These examples show how the Bragas evidenced their bias by ignoring statements made by children or interpreting them only in light of their belief that the children were sexually abused by Mr. or Mrs. Fuster.

Interviewer Bias: A special case in the interviewing of Noel Fuster(NG).

47. Of course, the clearest evidence of bias relates to the interviews by the Bragas and Dr. Simon Miranda of NG, the 6-year old son of Mr. Fuster. Laurie Braga testified at trial that prosecutors came to her and her husband with the information that NG had tested positive for gonorrhea and told them to be as leading as necessary to get NG to acknowledge that Mr. Fuster had abused him (9/27/85, 71). Thus with this seemingly scientific evidence on hand to confirm all previous suspicions about sexual abuse by Mr. Fuster, the Bragas believed that NG’s previous denials of sexual abuse were false and that he was lying. As a result, they applied highly coercive techniques to get him to disclose. The following example illustrates the potential impact of suggestive interviewing techniques when the interviewer appears very confident about the accuracy of his hypothesis.

J. Braga: Did they tell you not to tell anybody you had gonorrhea?

NG: Gonorrhea?...I didn't know that

J. Braga: But you now know?

NG: (inaudible)

L. Braga: But if they had known, they would have said don't talk about it, don't tell anybody else.

NG: No, never said it. They didn't know

J. Braga: Let's go back to talking, I said to you earlier that I know you are not telling me the truth because you said that no one put their penis in your mouth but yet you had the test, the test said you had gonorrhea, If you have gonorrhea, someone put their penis-

NG: I don't remember, maybe they did. I don't remember. Maybe it happened when I six. I don't remember when I was six...

J. Braga: You said you don't remember anybody putting their penis in your mouth? Do you think it was your father?

NG: I don't know who did it....

L. Braga: Let's suppose that it did, okay? Because the doctor said it did, even though you don't remember who did, you think might it have done that to you. Do you have any idea, even if you don't remember?

NG: I think maybe my dad and maybe somebody else...

J. Braga: Do you remember the first time your dad did it, did you ask him to stop?

Child: No...I don't remember anything about that. I don't want to.

J. Braga: Do you think if your dad had done it, if you told him to stop, he would have stopped?

NG: I don't remember anything about it. I don't know if I told him to stop. I don't know if I told him., you know like that. I don't remember nothing about it.

L. Braga: If you did remember about it, would it be hard for you to talk about

NG:: No

Joe Braga: Would you tell us?

NG:: Yes

48. After pages and pages of this type of intensive questioning and denial, NG, finally admitted to many acts that were committed by his father and by Ileana. But in subsequent sworn statements, NG repeatedly and pointedly denied that he had ever been abused and explained that he had previously made such claims only because the Bragas had refused to end the interview until the he had made them.

49. There are several important aspects of the Braga interviews with NG. First, one might argue that this was the perfect example of a sexually abused child first denying abuse, then disclosing, and then recanting. Following this line of reasoning, one could justify the Bragas’ interviewing techniques; they were obtaining confirmation, not of a hypothesis, but of a scientific fact (the gonorrhea test). It is situations such as this that provided the best rationale for the prosecutors in this case to not only invoke the so-called classic model of denial-disclosure-recantation in the sexually abused child, but also to condone the suggestive techniques that must be used to unearth the disclosures from these children (see J. Braga, 9/6/85, 225; L. Braga, 9/10/85, 168, 169; 9/27/85, 47). Thus the NG interviews could provide evidence that when interviewers biases/primary hypotheses are correct, they will eventually obtain correct disclosures from children

50. There is, however, another side to the argument. These interviews with NG show the strength of the interviewers’ biases: When NG denied abuse consistently, the interviewers only hypothesis was that he was in denial. It did not seem to have occurred to them that perhaps the child was telling the truth and that there might be some other explanation besides denial for the discrepancy between the medical tests and the child’s word. More neutral interviewers might have considered the hypothesis that the medical evidence could be wrong. In light of the child’s strong persistent denials, more neutral interviewers might have asked for a second medical test. Of course, this did not occur in the present case because Joseph Braga and others had the prominent belief that denial, no matter how strong, was consistent with abuse.

51. Finally, even if NG had been abused, the Bragas clearly overstepped their roles as protectors of children and blatantly became engines of the prosecution. When a child so vehemently denies, one must listen to these denials and respect them--not bully the child into providing statements that are demanded by the prosecution and that are also consistent with one’s pet hypothesis.

52. In my opinion, one of the determining factors of the degree of bias in this case—that all the children had been sexually abused—was the model of disclosure that the experts proposed. If the child denied abuse, it meant that the child had been abused. In reviewing their testimony, some experts do acknowledge that denial could mean that the child was not abused. However, their subsequent testimony does not focus on how to test the hypothesis that the child was not abused. The bulk of the testimony focuses on the hypothesis that the children were abused and that their silence mirrored their fright, guilt, and embarrassment. For example, L. Braga provides pages of testimony on the symptoms of children who are abused and silent and how to provide them with a context to tell of their abuse. When she does focus on the hypothesis that perhaps the child is not abused, it is dealt with in one sentence, "You talk to the child and see he has not been abused" (9/10/85, 166). There is no discussion or elaboration of this sentence on how you talk to a child and see he has not been abused, perhaps because these investigators simply did not know how to test this alternative hypothesis.

53. It should be noted that police reports indicate that, as soon as NG’s positive gonorrhea test was reported, the state attorney instructed investigators to notify all parents to bring their children in for testing. Bruck, Exh. 2 at 51. The police report does not indicate whether parents were specifically told about the positive test result. If they were, this information would have the ability to implant bias in the minds of parents.

54. While NG’s interviews present a "special" case, interviewer bias is an ever-present component in all of the Braga interviews. I have seen no instance in which an interview with any child began in a neutral manner with the Bragas asking a series of questions that did not assume the occurrence of abuse. Instead, the typical Braga interview begins with one or both of the Bragas playing with toys with the child for a period of time. The Bragas then typically introduce a set of anatomically detailed dolls, undress the dolls, name them Frank and Iliana, and ask the child what was "done" to them while at the Fusters.

55. It is interesting to note that it never seems to occur to the interviewers that pre-school children who have spent hours or entire days with their babysitters are likely to have been touched in the genital area, or undressed, as a result of normal toileting practices. The interviewers likewise seem convinced that a child who correctly answers that Iliana has "boobies" must have seen Iliana naked, rather than considering the possibility that a pre-school child understands a woman with a protruding chest has breasts under her clothes and that several of these children went to the beach with Iliana and undoubtedly saw her in a bathing suit. These again are clear indications of interviewer bias.

E. Interview Strategies Proven to Compromise the Reliability of Children’s Reports and Examples of the Use of Those Strategies in This Case

1. Use of Specific Questions

56. In order to obtain confirmation of their suspicions, biased interviewers might not ask children "open-ended" questions such as "What happened?", but instead may quickly resort to a barrage of very specific questions, many of which are repeated, and many of which are "leading" in the sense that the question stem presupposes the desired answer ("When Bobbie did this to you was he alone or with someone?").

57. The problem with this strategy is that young children's answers to direct or specific questions can be quite inaccurate, as demonstrated by a number of recent studies. For example, Peterson and Bell (1996) interviewed children (ages 2 to 5 years) after they had been treated in an emergency room for a traumatic injury. They were first asked free-recall questions ("Tell me what happened"). Then in order to obtain additional information, the children were asked more specific wh-questions (e.g., "Where did you hurt yourself?") or yes-no questions (e.g., "Did you hurt your knee?") . Peterson and Bell found that children were most likely to accurately provide important details in free recall. Across all age groups, errors increased when children were asked more specific questions; the percentage of errors elicited by free recall, wh-questions, and yes-no questions was 9%, 49%, and 41% respectively.

58. Forced choice questions (e.g., "Was it the man or the woman?") also compromise the reliability of children's reports. This is because children will select a response set (they will frequently select the second rather than the first option) and because children commonly do not provide "I don't know" responses (e.g., see Walker, Lunning, & Eilts, 1996) even when the question is nonsensical. (Hughes & Grieve, 1980) One of the reasons that children so willingly provide answers to specific yes/no or to forced choice questions even though they may not know the answer is that young children are cooperative: they perceive their adult interviewer as truthful, and not deceptive. In order to comply with a respected adult, children sometimes attempt to make their answers consistent with what they see as the intent of the questioner rather than consistent with their knowledge of the event. (see Ceci & Bruck (1993) for a review) Because of this compliant-cooperative characteristic, and because of young children's poor performance on specific questions, it is particularly important in interviews to tell children that they have the option of saying "I don't know" or "I don't remember".

59. As noted above, there are virtually no instances in which the Bragas begin an interview with a series of neutral, open-ended questions about what it was like at the babysitter’s. One can search the interviews in vain for a real sequence of questions such as, "Tell me about how you spent your time at your babysitter’s." "What kinds of things did you do there?" "Were there things you did there that you liked?" "Were there things you did there that you didn’t like?" The far more common approach taken by the Bragas is demonstrated in the first interview with TL (a boy). Laurie Braga begins the interview as follows:

L. Braga: Dolls, here, do you like dolls?

TL: Yes.

Braga: Let’s play a game with these dolls. Let’s pretend this one is T., okay?

TL: (nodding in the affirmative)

Braga: That is T. This is a little girl. Let’s pretend – do you know a little girl named B? [naming another child that attended the babysitting service.]

TL: (nodding in the affirmative.)

Braga: Can we pretend this is B.?

TL: Yes. He’s got –

Braga: He’s got a mouth. You can put your finger in, huh? And this, this is Iliana. Let’s pretend this is Iliana, okay? This doll we are going to pretend is Frank. Okay? You can play with the dolls and you show me what Iliana and T. do, okay? Just show me.

TL: (Pause.)

Braga: Mommie is there. Would you show me? Show me what Iliana does, okay? Show me what Iliana does to T. Would you show me?

TL: (Nodding in the affirmative.)

Braga: Huh?

TL: (Demonstrating).

Braga: Likes to put your finger in there, huh? I will tell you what. Let’s see. Let’s pretend, can everybody play a game together?

TL: (Nodding in the affirmative.)

Braga: Shall we all play together? Okay? So we have got Frank and Iliana, okay and B. and T., okay. Everybody play a game together, what game shall we play? You tell me what game shall we play? Show me what game? Will you show me? Okay, have you ever played a game called the pee-pee game?

(9/12/85, 70-72).

60. Because of the results of studies such as those just reviewed, it is recommended that in interviews with children that the interviewer begin with very open-ended questions (e.g., tell me what you did at Frank and Illeana’s). If children provided minimal information, then a general recommendation is that they be prompted ("Tell me more" . "What else happened) or be asked other open-ended questions (What did you do that was fun? What did you do that was not fun?). If children are not forthcoming, then it is recommended in my guidelines that the questions become a little more direct (Can you tell me about any games that you played?). Finally, if the child provides no information despite many prompts, some guidelines allow for the use of more specific questions (e.g., Did you play a game with a mask?) (See Poole & Lamb, 1998 for a current review of interviewing techniques and guidelines).

61. This pattern was almost totally lacking in the Braga interviews. Not only was there a lack of open-ended questions, but the children were quickly immersed into play and pretend where they were asked to pretend with dolls or toys about what happened at the day care. Direct and specific questions were directed at the play and some of these questions were highly direct and suggestive. In general the children were not simply asked to talk about what happened at Frank and Illeana’s and their free recalls were not systematically followed up with more specific questions. In the following two examples, I have provided the major content questions that were asked at the beginning of two different initial interviews. This part of the interviewing usually took place after a long free-play period with each child.

In the first interview with TL (a girl), L. Braga does begin the initial questioning with an open-ended question:

L Braga: "What kinds of things did you do there"

TL: Nothing

But then, the questions become specific. As shown, there is no attempt to situate the daycare, what the children did, what was fun, what was not fun. The interview is a stream of seemingly unrelated questions reflecting part of the interviewers' beliefs of what happened

L Braga: Did you ever play any games?

TL: Nope

….

LB: Who else went to that place with you?

TL: B.

LB: When you were at Iliana and Frank's place did they ever take pictures of you playing?

…

TL: No,

LB Did Iliana and Frank --did they tell you not to tell anybody?

TL: -NO

LB: Did they tell you to keep it a secret?

TL: -INAUDIBLE

LB: Did they say it was all right for you to tell?

TL: YES

The following is a description of the first interview with BT on August 10^th. This interview is punctuated by questions by the two Bragas while they are playing with dolls and pretending with the child. After playing with the dolls and naming them for a while, the following appropriate open-ended question is asked:

L. Braga; When you would go to school at Frank and Ileana's house what are some of the games you would play?

BT: It’s not a school

After more play with the dolls

Braga: Did Frank and Iliana have a TV camera like that to make movies?

BT: (SHAKES HEAD NO)

After more play with dolls,

Joe Braga : Let's play with the games that we want to play, that we don’t tell anybody about. So Ileana, I want you to help us to play a game but we don’t tell anybody about it. So let's play these secret games Can you show us what the secret game is?

BT: (No response)

Braga: D o you remember though, do you remember the babysitter sometimes would play games without clothes on? Would she take her clothes off and play some of the games we play without clothes?

62. These two examples provide a flavor of how the children were questioned. They were rarely if ever asked to tell in their own words what happened—a strategy that usually results in high accuracy. Rather, they were almost immediately asked specific and leading questions—forms that result in high rates of inaccurate responses, especially as will be shown below when these are repeated within and across interviews.

2. Repeating Questions Within Interviews

63. As just discussed, asking children specific questions often compromises the accuracy of their reports. These problems seem to increase when such questions are repeated.

64. Biased interviewers sometimes repeatedly ask the same question until the child provides a response that is consistent with their hypothesis. A number of studies have shown that asking children the same question within an interview, especially a yes/no question, often results in the child changing his original answer. Children often do this, reasoning that the question was asked a second time either because the first answer was wrong or because the interviewer must not have like the first answer, regardless of its accuracy (e.g., Siegal, Waters, & Dinwiddy, 1988).

65. Poole and White (1991) examined the effects of repeated questioning within and across sessions. Four, six, and eight-year-olds witnessed an ambiguous event. Half of the subjects were interviewed immediately after the event as well as one week later. The remaining subjects were interviewed only once -- one week after the event. Within each session, all questions were asked three times. Repeated open-ended questions (e.g., "What did the man look like?"), both within and across sessions had little effect, positive or negative, on children's responses. However on repeated yes/no questions (e.g., "Did the man hurt Melanie?"), the younger children were most likely to change their responses, both within and across sessions. Also, when children were asked a specific question about a detail for which they had no information (i.e. "What did the man do for a living?"), many answered with sheer speculations. Furthermore, with repeated questions, they used fewer qualifiers omitting phrases such as "it might have been," and consequently they sounded increasingly confident about their statements. In other words, children will often cooperate by guessing, but after several repetitions, their uncertainty is no longer apparent.

3. Repeated Interviews

66. Sometimes, when children do not provide the desired information within a single interview, they are interviewed again until their reports are consistent with the interviewers' biases. Results from a number of studies show that when misleading questions or inaccurate information are repeated across multiple interviews, children's final reports become highly tainted, as illustrated by the following study.

67. In this study (Bruck, Ceci, Francoeur & Barr, 1995) five-year-old children visited their pediatrician. During that visit, a male pediatrician gave each child a physical examination, an oral polio vaccine, and an inoculation. During that same visit, a female research assistant talked to the child about a poster on the wall, read the child a story and gave the child some treats. Approximately one year later, the children were interviewed on three different occasions about the inoculation visit. During these interviews some children were given false information: they were told that the female research assistant gave them the inoculation and the oral vaccine. A number of the children who received these false suggestions later reported that the research assistant had indeed performed a number of medical procedures on them during the initial visit.

68. Other studies (described in greater detail below e.g., Bruck, Ceci & Hembrooke, 1997; Ceci, Loftus, Leichtman & Bruck, 1994a) show that when children are repeatedly and suggestively interviewed about false events, assent rates rise for each interview and stay high even when children are interviewed by a new interviewer. For example, children are more likely to assent to a false event in a third interview than in a second interview and they will persist in their false allegation when interviewed again by a new interviewer.

69. In Fuster, the child witnesses were repeatedly interviewed by their parents, by the police, by their therapists, and by members of the prosecutor's office. During these interviews, the children were asked specific and leading questions about masks, secret games played in the nude, and about caca and pee pee games. With repeated interviews their denials ended and their disclosures began.

70. Some experts in Fuster interviewed or treated children after the Braga interviews. However, these experts seemed ignorant of the potential effects that these earlier interviews could have on the children’s statements. For example, BT’s therapist, Dr, Stiles, was unaware of any of the previous interviews with BT—ones that had the high risk of tainting her testimony. Nonetheless, even after learning of the interviews and the potentially damaging content of these interactions, Dr. Stiles concluded that these previous interviews did not influence the accuracy of the statements that BT told her therapist (9/10/85, 78). The current scientific evidence suggests that the suggestive Braga interviews with BT could not only render her reports unreliable in those interviews but also could render them unreliable with other interviewers.

71. When children provide new information when they are re-interviewed under suggestive conditions, it raises the issue of whether the new reports are accurate memories that the children did not remember in previous interviews or whether the new reports are false and the result of previous suggestive interviews. The scientific evidence provides support for the second hypothesis, especially when there is a delay between some alleged event and the interviews. This is because children's memory of the original event (e.g., what happened at the day care) fades after a period of time, allowing the suggestion (e.g., The teacher did bad things to kids) to become more easily planted. For example, in the pediatrician study just described, the children were given suggestions immediately after they had received their inoculation about how much the inoculation had hurt (e.g., some children were told that it did not hurt very much when in fact it did). This suggestive interview did not have any effect on children's reports taken one week after the inoculation, presumably because the episode was still fresh in their mind. However, one year later, when the same children were given similar suggestions (e.g., "You were so brave that day. It seemed like the shot hardly hurt you"), these misinformed children now routinely underestimated their level of pain and crying as a result of erroneous suggestions about how brave and courageous they had been.

72. Another set of recent studies provide important new evidence to dispute the common claim that children need to be re-interviewed because it helps them to remember new and important details. These studies show that reports that emerge in a child's first interview with a neutral interviewer are the most accurate. When children are later interviewed about the same event and report new details not mentioned in the first interview, these have a high probability of being inaccurate (Bruck, Ceci, & Hembrooke, 1998; Salmon & Pipe, in press ).

73. The child witnesses in Fuster were suggestively interviewed about their day care experiences, which for some children had occurred months previously. When first questioned most children denied any wrongdoing. But with the passage of time and the increased intensity of questioning, they began to assent to abuse allegations; the number and descriptions of the abusive acts became more detailed. It is possible that the children's accounts of abuse emerged because they were no longer afraid to tell their stories of horror. However, a more scientific explanation is that the children came to make false reports of abuse because their memories of the benign events at the day care had begun to fade and these memories were replaced by their interviewers' suggestions of wrong-doing at the day care.

4. Emotional Tone of the Interview

74. Interviewers can use verbal and nonverbal cues to communicate their bias. These cues can set the emotional tone of the interview. Children are quick to pick up on the emotional tones in an interview and to act accordingly. For example, in some studies when an accusatory tone is set by the examiner, (e.g. "It isn't good to let people kiss you in the bathtub", or "Don't be afraid to tell"), children are likely to fabricate reports of past events even in cases when they have no memory of any event occurring. In some cases, these fabrications are sexual in nature.

75. In one such study, children played with an unfamiliar research assistant for five minutes while seated across a table from him. Four years later, researchers asked these same children to recall the original experience (Goodman, Wilson, Hazan & Reed, 1989). The researchers created "an atmosphere of accusation," telling the children that they were to be questioned about an important event and saying things like, "Are you afraid to tell? You'll feel better once you've told." Although few children had any memory of the original event from four years earlier, five out of the fifteen children incorrectly agreed with the interviewer's suggestive question that they had been hugged or kissed by the confederate, two of the fifteen agreed that they had their picture taken in the bathroom, and one child agreed that she or he had been given a bath. In other words, children may give inaccurate responses to misleading questions about events for which they have no memory when the interviewer creates an emotional tone of accusation.

76. In Fuster, there are glimpses from various sources such as the parent depositions and reports from the Rape Treatment Center that provide clues as to ways parents and others tried to create an atmosphere of accusation and fear in the children in order to promote the accusations of abuse. The most salient examples, however, are provided by the Braga interviews, where both Bragas interjected the concepts of fright, threats, and the need to protect children. These strategies may reflect their bias that the abusers' threats were so severe that the children would not disclose their abuse. However, the major consequence of introducing these concepts could be that in order to comply with the interviewers’ encouragements, the children came to falsely report that they had been threatened and scared.

77. For example, in Laurie Braga’s first interview with TL (a girl), Braga says:

Braga: I think that Iliana and Frank did some things that some of the children didn’t like and if somebody, a grown-up person tries to do something and touch you in a way that you don’t like –

TL: Yes.

Braga: -- then it’s okay for you to say, no, don’t do that, see but nobody knew they were going to do it, so nobody told you to say no. So we need to know what they did so we can make sure they don’t do it anymore . . .

(9/12/85, 177)

Braga: Do you think you could tell me some more stuff about what happened at Frank and Iliana’s?

TL: No.

Braga: No? You don’t want to?

TL: No.

Braga: Does it make you sad to talk about it?

TL: I don’t know.

Braga: Does it scare you?

TL: I don’t know.

Braga: You don’t know? Did somebody tell you not to tell?

TL: Some, I don’t know.

Braga: Did they maybe tell you that you might get in trouble if you told?

TL: I don’t want to ask – I don’t want to talk.

Braga: Yes I know it’s kind of hard but I will tell you what, I will talk, okay? You don’t have to talk. I just want to tell you no matter what anybody said, you are not going to get into trouble for telling, okay? You did real good (inaudible) nobody is going to do anything to you. You are not going to get into any trouble. Nobody is going to hurt you. You didn’t do anything bad.

(Id., 187-188.)

In Laurie Braga’s first interview with BT, she tells the child:

Braga: You know what? The other children came in and just like you, they didn’t want to tell at first because they were afraid. They thought maybe they had done something bad because Frank and Iliana made them feel like if they told, they would get into trouble and their Mommy and Daddy would be mad at them but Mommy and Daddy won’t be mad at you. It’s okay if you tell. . . . It’s scarey. I know it’s scarey because you like Frank and Iliana but some of the things they did, you didn’t know whether you should be doing it and they told you not to tell. . . .

(9/13/85, 73) And then,

Braga: Sometimes little boys and girls have yucky secrets and they don’t want to tell anybody because they are scared but if you tell a yucky secret, if you don’t tell, it just stays inside and hurts but if you do tell, it’s all gone and you feel better and this never -- and you never have to tell it again.

(Id., 74). See also the examples in Bruck, Exh. 3 at 38-40.

5. Rewards and Punishments

78. There are many studies in the social science literature to show that reinforcing (rewarding) children for certain behaviors, regardless of the quality of the behaviors, increases the frequency of these types of behaviors (e.g., Ettinger, Crooks, & Stein, 1994; Zigler & Kanzer, 1962). Similarly, punishing children decreases the probability of a response. The expression of rewards and punishments in interviews can be explicit or implicit. Explicit forms of reward include telling children that they are being helpful and that their answers are good. Sometimes interviewers' use of reinforcement becomes so intense that statements intended to be rewarding seem more like bribes and statements intended to be mildly discouraging seem more like threats. Implicit rewards include verbal and nonverbal cues that provide attention and support for the child's statements. These cues are not always conducive to producing accurate reports. For example, if interviewers are overly supportive (attentive) of children, the children tend to produce many inaccurate as well as many accurate details (e.g., Geiselman, Saywitz & Bornstein, 1990). Rewards and threats can be very tangible such as offering the child treats or bribes if he tells what happened.

79. The use of rewards and punishments in interviews with children can have beneficial as well as negative consequences. The use of these may motivate children to come to tell the truth. On the other hand, children may learn that if they produce stories that are consistent with the interviewers' beliefs, they will be rewarded by their interviewers and parents. In some cases, the attention provided by these interviewers may be sufficiently rewarding for children to fabricate reports. As the following study illustrates, the use of rewards and punishments in an interview can quickly shape the child’s behavior and have long lasting consequences

80. Children between the ages of 5 to 7 attended a special story time led by a visitor called Paco. During this 20 minute visit, Paco read the children a story, handed out treats, and placed a sticker on the child’s back. One week after the visit, the children were asked mundane questions ("Did Paco break a toy?) and fantastic questions ("Did Paco take you somewhere in an airplane?) about the visit. Children in the neutral-no reinforcement condition were simply asked a list of 16 questions and provided with no feedback after each question. Other children, in the reinforcement condition were provided with feedback after every question, as illustrated by the following examples:

Interviewer: Did Paco take you somewhere on a helicopter?

Child: No (Note. This is an accurate denial)

Interviewer: You’re not doing good. Did Paco take you to a farm?

Child: Yes (Note this is an incorrect assent)

Interviewer: Great. You’re doing excellent now. (The next question is asked)

The reinforcement had large negative effects on the accuracy of children’s responses. Children in the reinforcement condition provided inaccurate assents to misleading mundane questions 35% of the time and to misleading fantastic questions 52% of the time. The comparable rates for the non-reinforcement group were 13% and 15%. In a second interview, a week later, all children were simply asked the same questions, without any reinforcement. The same high error rates continued for the reinforcement children. When children were challenged and asked in the second interview, "Did you see that or just hear about that?", children in the reinforcement group stated that they had personally observed 25% of the misleading mundane events and 30% of the misleading fantastic events. Children in the non-reinforcement group only made these claims 4% of the time.

81. These findings show how quickly children can be shaped to provide inaccurate responses no matter how bizarre the question. Furthermore, the inaccurate responses persist upon a second questioning with a number of children claiming that they actually observed the suggested but false event.

82. In terms of the Fuster interviews, rewards and punishments are sometimes interchangeable with emotional tone. In both cases, the interviewers signaled to the children the types of responses that would be considered acceptable and worthy of praise by themselves and their parents. At the same time, they also signaled to the child the types of responses that were not considered appropriate and that should be ignored. The following are a few examples of the use of rewards and threats in the interviews with the children in Fuster.

83. At the end of JC’s interview on August 10, 1984, the Bragas gave JC a bag of toys and told him there were a whole bunch of games in the bag. (9/12/85, 198-199). JC returned to the Bragas three days later, having done a lot more talking in the meantime. (9/13/85, 182.)

84. At TL’s (girl) second interview with Laurie Braga, TL begins urging her mother to let her leave after the interview has gone on for quite some time. TL does not want to talk any more but her mother is not satisfied that the child has told Braga what she needs to. Accordingly, TL’s mother promises the child she will take TL to work with her, take her to McDonald’s, take her to get candy, and eventually, promises to give the child a necklace, if only TL will tell Braga about her eyes and her vagina. (9/20/85, 230-231.) (TL’s mother, it should be noted, has also just finished telling TL that BT and JC had been in to talk to Braga that morning and that they had told her about the bad things that had happened at the Fusters. Id., 226-227.)

85. The Bragas gave frequent verbal rewards, telling children that they or the child’s parents, will be so proud when they disclose. One example of the many to be found in the Braga interviews is the following:

Braga: Okay. Well if sometime maybe you remembered something or if maybe some of the children told you something, then you could tell your mom and dad, okay? Because they wouldn’t get mad.

JL: They would get mad at Frank and Iliana.

Braga: Yes, they would because they think that Frank and Iliana shouldn’t do that to children but they wouldn’t get mad at you. [note: the child has not made any disclosures of abuse to this point so Braga’s reference to things Frank and Iliana shouldn’t do is an indication and use of stereotype induction. Please see below.]

JL: Yes because I told.

Braga: Yes. They would be very proud.

JL: Yes.

Braga: And all the parents, all the moms and dads are real proud of their children if they don’t keep a secret because they want their children to be safe. They don’t want their children to be hurt.

(9/19/85, 64-65.)

6. Interviews with Adults of High Status

86. Young children are sensitive to the status and power of their interviewers and as a result they are especially likely to comply with the implicit and explicit agenda of such interviewers. If their account is questioned for example, children may defer to the challenges of the more senior interviewer. To some extent, the child’s recognition of this power differential may be one of the most important causes of their increased suggestibility. Children are more likely to believe adults than other children, they are more willing to go along with the wishes of adults, and to incorporate adults' beliefs into their reports. This fact has been recognized by researchers since the turn of the century and has been demonstrated in many studies (Ceci & Bruck, 1993 for review).

87. Children may also be sensitive to status and power differentials among adults. This is a particularly important issue for the testimony of child witnesses who are interviewed by police officers, judges, and medical personnel.

88. A study by Tobey and Goodman (1992) suggests that under certain conditions, interviews by high status adults may have negative effects on the accuracy of children's reports. In their study, preschoolers played a game with a research assistant who was called a "baby-sitter." Eleven days later, the children returned to the laboratory. Half of the children met a police officer who said

I am very concerned that something bad might have happened the last time that you were here. I think that the babysitter you saw here last time might have done some bad things and I am trying to find out what happened the last time you were here when you played with the babysitter. We need your help. My partner is going to come in now and ask you some questions about what happened.

A research assistant dressed-up as a police officer then questioned these children. The other children never met the police officer; they were only questioned by a neutral interviewer about what happened with the baby-sitter. When the children were asked to tell everything they could remember, the children in the police condition gave fewer accurate statements and more inaccurate statements than children in the neutral condition. Two of the 13 children in the police condition seemed to be decisively misled by the suggestion that the baby sitter had done something bad. One girl said to her mother, "I think the baby-sitter had a gun and was going to kill me." Later, in her free recall, the same child said, "That man he might try to do something bad to me....really bad, yes siree." The second child inaccurately reported his ideas of what something bad might be, by saying "I fell down, I got lost, I got hurt on my legs, and I cut my ears."

89. Goodman (1993) summarizes these findings as follows:

One should be concerned not only with the actual questions but also with the context of the interview. An accusatory or intimidating context leads to increased errors in children's reports. (p. 15)

90. Most of the child witnesses in Fuster were interviewed by the police. We know from Detective Meznarich’s report, for example, that she interviewed the following children prior to their being interviewed by the Bragas: JL (Bruck, Exh. 2 at 19); DL (id., 20); BT (id., 21); TL (girl) (id.; 22); SL (id., 28); JC (id., 29).

91. Another feature of some of the interviews in this case was that there was often more than one adult questioner present. For example:

The first official police interview we know of with JC was conducted with both Detective Meznarich and Assistant State Attorney Christopher Rundle present (Id., 29).

Both Laurie and Joseph Braga interviewed JC together during his first several interviews;

BT was interviewed at the RTC in the presence of counselor Cathleen McGinnis, Detective Meznarich, Assistant State Attorney Rundle and BT’s father;

DL was interviewed at the RTC by McGinnis with his mother present;

The Bragas not only acted in tandem when interviewing children but often had the children’s parents participate in the interviews as well.

92. One might argue that the presence of more than one interviewer may be a safeguard to ensure that the child told the truth. However, it also seems that additional adults merely multiply the number of questions and suggestive interview strategies to which the children are subjected. In Fuster, when one investigator or interviewer could not extract information from a child, sometimes another one took over. These increased questions may increase children's willingness to defer to the adults' agenda rather than to their own memories of whether an event actually occurred.

93. Note, for example, the interview conducted with BT (9/13/85, 14 et seq.), in which her father and mother both participated along with the Bragas, trying to induce BT to disclose. By page 61 of the interview, BT has not made any disclosures of a sexual nature despite the Bragas’ asking her to describe secret games (BT says they played grocery store) and the Bragas asking her what games were played with no clothes on (BT says they all had clothes on.) Mr. and Mrs. T. then get involved in the interview: Now, in addition to L. Braga’s suggestive techniques, BT also is exposed to those of her parents.

MR. T.: Hey B., now it’s time. Now we’ve been playing around, I want you to show me the games that you play. It’s okay now. We all want to know. You won’t get in any trouble.

L. BRAGA: You know, I think some of the other children told us they got kind of scared because Frank and Ileana told them not to tell anybody but the other children talked to us and they felt much better after they talked to us. We thought you would feel better, too, if you told us what happened.

BT: I’m going to put my things on like this and pretend I am a little girl (inaudible).

MR. T.: B., what I want you to do is come down here for a second, okay?

MRS. T.: Mommy will hold that.

MR. T.: Hey, B., come over here. I know –

B.: I’m playing.

MR. T.: I know but I want to play with these dolls. I want you to show me what exactly happened in the secret game. You remember you were not supposed to keep secrets from Mommy and Daddy. You know that? . . . Come down, sit here for a few minutes and I want you to tell me about the secret games.

BT: I don’t want you to know.

MR. T.: Come on.

L.BRAGA: You won’t get into any trouble. Nobody. What anybody told you, you won’t get into trouble.

MR. T.: No, not the grocery store game. Let’s try the other game. . . .Aren’t there other games that you play over there?

J.BRAGA: Pee pee game.

…

MR. T.: You know what I want to hear. B., I want to tell you a secret. Come here. Come here. I want you to tell me about the pee pee game.

BT: No.

MR. T.: Why not?

BT: There’s no pee pee game.

MR. T.: No pee pee game? What do you call it?

BT: I call it (inaudible) game.

MR. T.: Okay, tell me a little bit about it or show me. I want to see.

BT: One, two, three. They stand on their head. It’s hard for them.

(Id., 61-64)

The interview continues like this for pages, with BT’s father suggesting to BT that games were played with no clothes on and again alternately pleading and demanding that she tell him about the "secret" game. BT insists, "There’s no secret game." Mr. T. responds, "There’s no?" BT answers, "They did not tell me a secret game." BT then tells Mr. T. about a ghost game she has played at the Fusters in which the children sing, "Frank Fusters" to the tune of "Ghost Busters." (Id., at 66)

94. Stereotype induction refers to a process by which interviewers suggest to a subject that someone has certain personality characteristics or that the person has acted in a certain way. For example, in a 1994 study, children ranging in age from 4 to 6 years played some games with a man called "Dale." Dale also asked each child to help him take off his sweater. Later, an interviewer asked what had happened in the room with Dale. With half of the children, the interviewer reacted in a neutral way when the children reported an action. For the other half, the interviewer reinterpreted the child’s responses in an incriminating way by saying, "He wasn’t supposed to do that. That was bad. What else did he do?" At the conclusion of these incriminating procedures, the children were asked three highly suggestive and misleading questions. 1) Didn’t he take off some of your clothes, too?" 2) Other kids have told me that he kissed them, didn’t he do that to you, too?" 3) He touched and he wasn’t supposed to do that, was he?"

Following this, all the children were asked direct questions, requiring yes/no answers. Children in the incriminating condition gave many more inaccurate responses to these direct questions that did children in the neutral condition, mainly because they made errors on questions having to do with "bad" actions that had been suggested to them by the questioner. A full third of the children in the incriminating condition embellished their incorrect responses and the embellishments were always in the direction of making Dale seem worse. For example, some children not only reported (incorrectly) that Dale had touched them, but also reported other children Dale had touched, where he touched them (e.g. on the legs), how he touched them (e.g. he kissed some on their lips), and how he took off their clothes ("Yes, my shoes and my socks and my pants. But not my shirt.") These inaccuracies were not corrected by the children when they were interviewed again the following week; in fact, the embellishment continued. Moreover, the children in the incriminating condition made spontaneous negative reports about Dale and were more likely to agree that Dale intended to be mean, to fool around, to be bad, and not to do his job. Lepore, S.J. and Sesco, B. (1994).

95. Thus, stereotype induction can cause children to view a person in a negative light and can induce memories of bad acts that never occurred.

96. This technique was used repeatedly in the Braga interviews with every child. It is also clear that parents had identified for the children the fact that the Fusters were bad people. JL, for instance, comes into her first interview with Laurie Braga and tells her that the Fusters are strangers and that they went to jail. (9/19/85, 29) Examples of this can be found throughout the transcripts of interviews.

97. In order to get children to report or to remember an event, interviewers sometimes ask children to first try to remember or pretend if a certain event occurred and then to create a mental picture of the event and think about its details. Sometimes children are encouraged to think about events by "pretend" play with props or with toys. Although there are problems with using these techniques with people of all ages (see Ceci & Bruck, 1995; Lindsay & Read, 1994), there are particularly serious deleterious effects for young children whose boundaries between reality and fantasy are fragile. Young children sometimes have difficulty distinguishing between memories of actual events and memories of imagined events (e.g., Parker, 1995; Welch-Ross, 1995). Thus, when young children are asked to pretend or try to think about certain events, they may later come to believe that these imagined activities actually did happen. This is illustrated by the results of the following studies.

98. Harris, Brown, Marriott, Whittall, and Harmer (1991) questioned preschool children about imagined ghosts, monsters, and witches. At first, the preschool children showed a firm grasp of the distinction between fantasy and reality, with most correctly stating that imagined ghosts, monsters, and witches were not real. However, when the children were told to imagine that a pretend character was sitting in a box, many of them began to act as though the pretend character was real. In one experiment, half of the children were told that the pretend character in the box was a rabbit and the other half were told that it was a monster. After being told this, all the children agreed that it was only a pretend character and that the box was, in actuality, empty. When the experimenter attempted to leave the room for a few minutes, 33% of the 4-year-olds who had been told that there was a pretend monster in the box would not let her leave the room. None of the 6-year-old children acted this way. Upon the experimenter’s return, almost half of the children in both age groups said they wondered if perhaps there was an imaginary creature in the box after all. These data illustrate the fragility of children's fantasy-reality distinctions. When situations and questioning become more intense, a sizeable portion of children appear to give up distinctions between what is real and what is only imagined. In this study, despite the fact that the children were repeatedly assured that the creatures were unreal, it seems that the experimental procedure that encouraged them to imagine that there were creatures in the box was mildly suggestive, thus breaking down their shaky differentiations within a short period of time.

99. These results suggest that when young children with fragile fantasy-reality boundaries are asked to "pretend" about some events, even ones that seem bizarre, they may eventually become confused about what is real and what is pretend, especially when the interviewer fails to bring the child back to reality.

100. Ceci and his colleagues (1994a) examined the effects of repeatedly asking young children to think about some event, creating mental images each time they did so. In 11 consecutive interviews, preschool children were asked to think about fictitious events that according to their parents, they never experienced (e.g., falling off a bike and getting stitches) and real events (e.g., going to a birthday party). An interviewer told the children that they would hear about something that had happened to them when they were little and that they should try to make a picture of it in their head. With each session, children increasingly assented to false events. In another study with similar procedures, Ceci and colleagues(1994b) found that when asked to think about false events (e.g., the child's finger caught in a mousetrap) a significant number of children falsely assented to these events in the first interview. Thus, when asked to think about a non-event, false assents can occur during one interview.

101. Sometimes suggestions can be very subtly introduced to children who subsequently incorporate these into their reports. In a series of studies, Poole and Lindsay (1995, 1996) have shown how parents can subtly suggest false events to their children. In their initial study (Poole & Lindsay, 1995), preschoolers played with "Mr. Science" for 16 minutes in a university laboratory. During this time, the child participated in four demonstrations (e.g., lifting cans with pulleys). Three months later, the children’s parents were mailed a story book that was specially constructed for each child. It contained a biographical description of their child's visit to Mr. Science. However, not all of the information was accurate; although the story described two of the experiments that the child had seen, it also described two that the child had not seen. Furthermore, each story finished with the following fabricated account of what had happened when it was time to leave the laboratory:

Mr. Science wiped (child's name) hands and face with a wet-wipe. The cloth got close to (child's name) mouth and tasted really yuckie.

The parents read the story to their children three times. When later interviewed by the experimenters, the children reported that they had participated in demonstrations that, in actuality, had only been mentioned in the stories read to them by their parents. When asked whether Mr. Science put anything "yuckie" in their mouths, more than half of the children inaccurately replied "yes", and many of these children elaborated their "yes" answers. Moreover, inaccurate reports of having something "yuckie" put in their mouths increased on repeated questioning. When asked, "Did Mr. Science put something yuckie in your mouth or did your Mom just read you this in a story?", 71% of the children said that it really happened. The children made these claims even though they had been previously warned that some of the things in the story had not happened and they had been trained to say "no" to non-experienced events.

102. This study demonstrates how subtle suggestions can influence children's inaccurate reporting of non-events that, if pursued in follow-up questioning by an interviewer who suspected something sexual had occurred, could lead to a sexual interpretation. The study, along with several others, also illustrates preschoolers’ susceptibility to "source monitoring" confusions. That is preschoolers have particular difficulty in identifying the source of a suggestion; children in this study confused their parent reading them the suggestion with their experience of the suggestion. Thus, children incorrectly answered questions such as: "Did that really happen?" and "Did your mom tell you about it?"

103. Poole and Lindsay (1996) recently replicated these findings with children from a wider age range (3 to 8 year olds). The findings were similar across ages with one exception: the source monitoring procedures enabled the older but not the younger children to reduce the rate at which they reported having experienced the suggested events. That is, when asked, "Did Mr. Science really put something yuckie in your mouth or did your Mom just read you this in a story?", the older children recanted their previous claims and said that their Mom had told them.

104. The results of the Poole and Lindsay studies suggest that it is possible for children to incorporate suggestions that are delivered by their parents. These suggestions need not be very salient but could be buried in a mass of other details, some of which are actually true. The results also demonstrate that once children incorporate these suggestions into their reports, they may not remember that someone told them about the false event but rather come to believe that the false event really happened to them.

105. A salient feature of the Braga interviews in Fuster was that the children were given anatomically detailed dolls and asked to pretend ("imagine") that these were the defendants or themselves. This request is similar in nature to having children "think" about false events (as described in the Ceci et al. studies). The interviews then became a stage for the child (sometimes with the Bragas) to play, pretend, and fantasize about what happened at the day care.

106. There is no indication that interviewers tried to determine from the children whether or not they were showing events that actually happened or whether the actions were merely a reflection of the request to the children to play. For example, when children were asked to enact the alleged abuse with the dolls, it is never clear whether the children were playing a game (that may eventually become real to them) or whether they were demonstrating abuse that actually took place. An example of this confusion is demonstrated in the Braga interview with BT, recorded at 9/13/85, 14 et seq.

107. During this first interview with the Bragas, Laurie Braga brings out anatomically detailed dolls and says, "Do you want to do a make-believe game with them and pretend? Do you?" (9/13/85, 26) Braga then suggests naming the other dolls after children at the babysitter’s and after Frank. BT introduces an entire squad of other toys into the game including Donald Duck, Minnie Mouse, Pinnochio, the Cat in the Hat, and Mr. Tiger. Interspersed with suggesting that they play some more with the dolls, the Bragas ask BT what games she played at the Fuster’s house. (Id., 44). BT plays more with the doll but does not respond directly to that question. Joe Braga suggests several more times that they "start playing again." See, e.g., id, 50. Joe Braga then pretends (using a doll) to be Frank speaking. Eventually, the Bragas play a game with BT and the dolls in which they go to the grocery store and buy various kinds of food and bring them back home. Joe Braga asks BT repeatedly to tell him what the "secret game" is that the Fusters taught BT. BT does not seem to have any answer. Then, Joe Braga suddenly says, "Do you remember though, do you remember the babysitter sometimes would play games without any clothes on? Would she take her clothes off and play some of the games we play without clothes?" (id, 55) BT responds that she is going to take the dolls’ clothes off. BT then proceeds to take the clothes off each of the dolls. As she does, Joe Braga asks questions such as, "Does Iliana take her clothes off?" (Id., 56.) BT answers, "Yes. She has all her clothes off." (Id., 56-57.) BT is talking about the doll at this point. It is unclear whether Joe is referring to the doll or to the real Iliana. Within another page of transcript, J. Braga says, "Okay, we want to play the games just like we play at the babysitters." (Id., 58.) Moments later, BT announces that all the dolls now have their clothes off and J. Braga suggests that they play the game "we play now. . . .We’ve all got out clothes off." (Id., 59) BT responds, "What about me? I’m not naked." (Id.) J. Braga tells BT, "You can pretend." (Id.) Braga continues to urge BT to demonstrate what Iliana and Frank will do, now that they are naked. (Id., 60) BT tells him they kiss. (Id.) (One can only get a true feeling for the level of confusion between reality and fantasy this interview would have engendered by reading it from start to finish. Bruck, Exh. 6, 9/13/85, 14 et seq.)

108. Of course, as the literature suggests, it may become impossible for children to make differentiations between reality and fantasy when they are suggestively interviewed.

109. The prosecution experts in Fuster however had their own non-scientific interpretation. They testified that children’s action in such play situations were indicative of what was going on in their own lives (L.Braga, 9/27/85, 34) and that asking children about the reality of their fantastic statements might be deleterious to the disclosure process because the challenge would convey the interviewer’s disbelief to the child (Id., 39)

9. The Use of Props and Cues

110. Anatomically detailed dolls are frequently used by professionals when interviewing children about suspected sexual abuse. The major rationale for the use of anatomical dolls is that they allow children to manipulate objects reminiscent of a critical event, thereby cueing recall and overcoming language and memory problems. It is also argued that the dolls are used to overcome motivational problems of embarrassment and shyness. Despite the lack of any empirical evidence about the risks or benefits of using dolls and other similar materials (the use of line drawings and puppets), several state experts provided endorsements for the use of such techniques.

111. Moreover, the prosecution ridiculed Dr. Coleman, the defense expert, for his unsupported statements that anatomically detailed dolls created problems of false reporting when used with children. (9/24/85, 186-190, 210)

112. Contrary to the testimony of the state experts and the sarcastic rebukes of the prosecutor when cross-examining Dr. Coleman, the use of anatomically detailed dolls has raised grave concerns among clinicians and researchers for at least two reasons. First, the dolls are themselves suggestive (especially when used by a biased interviewer) and encourage the child to engage in sexual play even if the child has not been sexually abused (e.g., Terr, 1988). A child, for instance, may insert a finger into a doll's genitalia simply because of its novelty. Second, it is impossible to make firm judgments about children's abuse status on the basis of their doll play because, until recently, there were no normative data on non-abused children's doll play. Over the past several years, researchers have conducted a number of studies to address these concerns.

113. There are several important findings of this research. First, there is no consistent evidence to suggest that there are characteristic patterns of doll-play for "abused" children. Many studies show that the play patterns thought to be characteristic of abused children, such as playing with the dolls in a suggestive or explicit sexual manner, or showing reticence or avoidance when presented with the dolls, also occur in samples of non-abused children. For example, Goranson (1986) conducted doll-centered interviews with 14 preschool non-abused children. The interviewer asked each child if anyone had touched their genitalia. The interviewer then followed up with more specific questions. None of the children used the dolls to demonstrate sexual intercourse. However, 50% of the children did insert their finger in the opening for the vagina or anus, and most stroked or tugged the penis or used it as a handle to swing the dolls. See, for example, the description in the police reports of DL’s use of the dolls. At the RTC, he is given anatomically detailed dolls and questioned about games he played with his babysitters.

Miss McGinnis asked him if they played special games, and he replied, "Yes." During the conversation, DL undressed all of the dolls and laid them down on the floor. When asked about the games, D. pulled on the front of his pants; and when asked "who", he said, "Frank." D. then took the penis of the small boy doll and pulled on the penis.

(Bruck, Exh. 2 at 26)

114. Second, more recent studies indicate that use of the dolls does not improve accuracy of reporting by young children. In some cases, children are more inaccurate with the dolls, especially when asked to show with the dolls certain events that never happened. For instance, three-year old children visited their pediatrician for their annual check-up (Bruck, Ceci, Francoeur & Renick, 1995). Half the children received a genital examination where the pediatrician gently touched their buttocks and genitals. The other children were not touched in these areas. Immediately after the examination, an experimenter pointed to the genitalia or buttocks of an anatomically detailed doll and asked the child, "Did the Doctor touch you here?" Only 45% of the children who received the genital exam correctly answered yes; and only 50% of the children who did not receive a genital exam correctly answered "No" (i.e. 50% of these children falsely reported touching). When the children were simply asked to "Show on the doll" how the doctor had touched their buttocks or genitalia, accuracy did not improve. Now only 25% of the children who had received genital examinations correctly showed how the pediatrician had touched their genitals and buttocks. Accuracy decreased in part because a significant number of female subjects inserted their fingers into the anal or genital cavities of the dolls; the pediatrician never did this. 55% of the children who did not receive genital examinations falsely showed either genital or anal touching when given the dolls. Researchers have obtained similar results in a study of 4-year old children (Bruck, Ceci & Francoeur, 1995).

115. The interview procedures used in the Bruck, Ceci & Francoeur doll studies also elicited a number of other behaviors that adults might misinterpret as sexual. When the children were given a stethoscope and a spoon and asked to show what the doctor did or might do with these instruments, some children incorrectly showed that he used the stethoscope to examine their genitals and some children inserted the spoon into the genital or anal openings or hit the doll's genitals. A number of other children showed aggressive behaviors with the dolls, hitting them with some of the props provided.

116. Some data suggest that repeated exposure to the dolls may lead young children to fabricate highly elaborate accounts of sexual abuse. For example, after a third exposure in a period of a week to an anatomically correct doll, a non-abused 3-year child, reported to her father how her pediatrician had strangled her with a rope, inserted a stick into her vagina and hammered an earscope into her anus (see Bruck et al, 1995).

117. Research reveals similar concerns about the use of anatomically detailed dolls with children as old as 6 years of age. Steward and Steward (1996) interviewed children (ages 3-6 years) three times after a pediatric clinic visit. With each interview, children's false reports of anal touching increased; by the final interview, which took place 6 months after the initial visit, more than one-third of the children falsely reported anal touching.

118. The "sexualized" behaviors that the children demonstrated in the above studies do not necessarily reflect young children's initial sexual knowledge or experiences, but two other factors. First, the types of questions and props used in an interview (asking children to name body parts, including genitals, showing children anatomically detailed dolls and asking children to manipulate these dolls) make children think that it is not only permissible, but expected, that they respond to the interviewers' questions using these same terms. Second, these props are interesting to young children, and they may insert fingers into cavities or show sexual acts because these are creative ways of playing with the dolls, especially if they are encouraged to do so by their adult interviewers. Of course, the suggestive use of the dolls in interviews may result in children's increased knowledge about anatomy and sexual activities that they did not have before being introduced to the dolls or similar props.

119. In Fuster, the dolls may have been among the most important techniques used. They were used immediately with the children at the Rape Treatment Center and were used thereafter in virtually ever interview conducted by the Bragas. All of the interviewers appear to have assumed that any sexualized doll play was an accurate reflection of what took place at the Fusters and made no attempt to test alternative hypotheses. (For instance, no one tried giving the dolls names of neutral adults or parents, undressing the dolls, and seeing how the children then played with them.)

120. Notes from police investigators who observed or talked to counselors at the Rape Treatment Center, though scant, are revealing about the methods employed by the counselors and the children’s responses. Note, for example, the descriptions of the use of dolls at the RTC with BT and with TL (a girl):

Miss McGinnis then spoke to BT with this investigator, Mr. Rundle and her father in the conference room of the Rape Treatment Center. Miss McGinnis introduced BT to the dolls with their clothes on, then explained that they were like real girls and boys, and then she removed the clothing. While doing so, BT watched. Miss McGinnis asked if she had a babysitter, and BT stated, "I do", then identified her as Ileana. She also said Ileana had a friend named Frank, but that only Ileana watched her. While there, she, Ileana and the other children played games.

After undressing the four dolls, Miss McGinnis encouraged her to play with them, and BT laid them side-by-side, covered them with a cloth and announced they were sleeping. During the session, Miss McGinnis pointed to the large doll’s penis and asked if she had ever seen one before. BT replied, "My daddy’s.", then was asked if she had ever seen Frank’s. When she answered "yes", she was asked which was larger and she replied "Frank’s." BT began to play with her dolls, which she had brought and continued efforts to interest her in the anatomically correct dolls failed. The session ended soon after, and BT left the Rape Treatment Center with her parents.

Bruck, Exh. 2 at 26-27.

Mrs. McGinnis [a nurse/counselor] advised she had had a session with TL that morning; and during the session, she had showed the anatomically correct female doll to TL and she had asked what "nipples" were called. After advising TL "nipples", TL lifted up the skirt, and Miss McGinnis says she asked her if she had ever showed anyone else, and TL stated, "Two people in school." When asked what about Frank and Ileana, TL had said, "Yes." Miss McGinnis advised she asked TL what she did at Frank’s, and she indicated he touched her on the "boob" and "climbed" on top of her and kissed her. At that time, TL indicated Ileana was also in the room. According to Miss McGinnis, TL laid the doll, she identified as herself, down and placed the large male doll, she identified as Frank, on top of her and rubbed the boy doll’s penis on the girl doll’s vaginal area. At the time TL did this, both dolls were completely naked.

Bruck, Exh. 2 at 26.

121. It is important to note that the interview described here with BT was actually attended by the detective who wrote this narrative while the interview with TL was reported to the detective by nurse McGinnis. As I discuss and caution further on, there is no way to judge the accuracy of reporting interviews when electronic recordings are not used. One can readily see here, at least, that it was McGinnis who undressed the dolls for BT and continued trying to interest the child in them when the child wanted to play with her own, non-sexualized, dolls. According to the report of the interview with TL, the child pulled up the doll’s dress and the interviewer immediately assumed that the child was demonstrating something that the child had done to herself in real life. The interviewer, according to her report at least, then plunged into a series of highly directed and leading questions. (Note that, when BT plays with the dolls in a non-sexual way, covering them with a cloth and putting them to sleep, it does not appear that anyone assumes her actions are a reflection of reality.)

122. The use of anatomically detailed dolls served as the centerpiece of many of the Braga interviews. The children were not only asked to pretend with these dolls but were told what names to assign to the dolls – i.e., Frank and Iliana and, typically, the child being interviewed and perhaps other children, as well. Two year old Scotty Marks was shown two female dolls and asked which of them looked more like Iliana than the other. When one reviews the tape of this interview, one can readily see that Laurie Braga was not showing Scotty the dolls’ faces. In fact, Braga had the dolls’ faces covered by their dresses and is showing Scotty only the dolls’ genitalia.

123. In addition, the Bragas used leading questions (these included yes/no questions and forced choice questions) that contained explicit sexual information and asked children to show them, using the dolls, how various games in the nude were played or would have been played if they had happened. For example, in Laurie Braga’s first interview with JL, she asks the child what types of games were played at the Fusters. JL responds, "We just played with their toys." (9/19/85, 30) Braga then introduces JL to a set of anatomically correct dolls and tells the child that these are the dolls that she has used with JL’s younger brother and with some of the other children, naming the dolls Frank, Iliana and assigning some of the children’s names to the child dolls. (Id., 35) When JL specifically denies having played Ring-around-the-Rosy and Simon Says, two games JC had earlier told the Bragas were played in the nude at the Fusters, Braga suggests that perhaps they played "duck, duck, goose." JL says they did not play this either but agrees to engage in a game of it with Braga and the dolls. (Id., 36-37) During the course of the interview, this game continues while Braga and JL discuss the fact that Frank is in jail and how that makes JL feel. When JL asks if Frank did something bad, Braga responds that she does not know for sure but that other children have told that he did and that one child took the dolls and removed all their clothes. (Id., 47-49). The interview continues:

JL: Do you know what he did?

Braga: Well, I’m not sure because I am not like a policeman or something like that. So I am not sure but would you like me to tell you what D. said? Okay, David said – he took the dolls and he kind of talked a little and he showed me and one of the things is that he took all the clothes off the dolls.

JL: Why?

Braga: Well, he said that the children played a game like – one of the games he said they would play was ring around the rosy.

JL: With no clothes on?

Braga: No clothes on.

JL: That’s one of the games that’s bad.

Braga: Yes. Do you think- do you think D. was telling the truth?

JL: (Shakes her head no.)

Braga: You don’t? Does D. tell stories?

JL: (Nods yes.)

(Id., 47-49) Braga and JL start playing with the dolls, Braga telling JL that the dolls are just pretend, not real. JL asks Braga to take the dolls’ clothes off and Braga does, responding, "Maybe you can show me if they are just pretend what they might do." (Id., 49) For the next 18 pages of transcript, Braga tells this child that other children, including older children, have accused Frank of touching them and playing games in the nude and also tells JL that Frank is in jail because he may have touched other children’s "private parts." (Id., 49-66) Finally, Braga asks JL if she has any questions. The following dialogue then takes place:

JL: No but I wonder if they played ring around the rosy with no clothes on?

Braga: Do you think they did? …Do you think maybe so?

JL: (nods yes.)

Braga: You know ring around the rosy and they go all fall down? Do you know what they would do then?

JL: They would just fall down.

Braga: And anything else?

JL: I wonder if they played or (inaudible) no clothes on.

Braga: I don’t know. I wonder. …I wonder if they did play duck, duck, goose with no clothes on.

…

Braga: I wonder if they did, if they would like touch each other in their private parts. Do you think?

JL: (Shakes her head no.)

Braga: No? You don’t think so? If they did, you think that they probably played it with their clothes off?

JL: Off?

Braga: Off. What do you think they would do with their clothes off?

JL: Play games.

Braga: Like what?

JL: They would touch somebody bad with no clothes on.

Braga: They would touch (inaudible) with no clothes on?

JL: Yes, bad, bad parts.

Braga: What, can you show me?

JL: Like coming (inaudible) your hair and touching like (inaudible).

Braga: Something like that? Could you pretend and show me with one of the dolls?

(Id., 66-68) Note the combination of suggestive interviewing techniques employed in this one excerpt: evident bias, leading questions, peer pressure, stereotype induction, confusion of fantasy play with reality, and all tied together with the use of anatomical dolls. One can see the evolution of this child’s reports here as this four-year-old child, who only attended the babysitting service once for an afternoon, begins only by saying that she played with toys there and that she knows from her mother that the Fusters are strangers, to discussing games (she earlier denied having played at all) and acceding to the suggestion that these games were played in the nude.

124. This is a potentially dangerous combination of techniques because it can result in children providing false reports of touching. It is highly possible, therefore, given the scientific evidence, that the children in Fuster came to make a variety of sexual allegations as a result of their play and exposure to dolls. It was these materials along with interviewers' explicit sexual questions that could explain these children's seemingly precocious sexual knowledge that unfolded throughout the investigatory process. (Studies on the effects of using a combination of suggestive interviewing techniques are reviewed in the next section.)

125. When children in Fuster were interviewed in 1984 and 1985, there were no scientific data to guide the interviewers' decisions to routinely use dolls and drawings in conjunction with leading questions when questioning young children about sexual abuse. Indeed, when Dr. Coleman testified in 1985, there were no scientific data upon which he could rely to support his position that the dolls should not be used to interview young children. Instead, he was forced to acknowledge on cross-examination that these dolls were indeed widely used, that he knew of no experts in the field who shared his concern about the use of the dolls and was aware of no scientific studies that supported his views. Thirteen years later, however, there are now sufficient data to show that the interviewing techniques used with these children were faulty and have a high risk of producing false allegations.

126. The effects of letting children know that their friends have "already told" is a much less investigated area in the field of children’s testimonial research. Certainly, the common wisdom is that a child will go along with a peer group; but will a child provide an inaccurate response just so he or she can be one of the crowd? The results of two studies suggest that the answer is "yes."

127. First, Binet (1900) found that children will change their answers to be consistent with those of their peer group even when it is clear that the answer is inaccurate. Second, Pynoos and Nader (1989) studied people’s recollections of a sniper attack. On February 24, 1984, from a second story window across the street, a sniper shot repeated rounds of ammunition at children on an elementary school playground. Scores of children were pinned under gunfire, many were injured, and one child and a passerby were killed. Roughly l0% of the student body, 113 children, were interviewed 6 to 16 weeks later. Each child was asked to freely recall the experience and then to respond to specific questions. Some of those children who were interviewed were not at the school during the shooting, including those already on the way home or on vacation. Yet, even the non-witnesses had "memories":

"One girl initially said that she was at the school gate nearest the sniper when the shooting began. In truth she was not only out of the line of fire, she was half a block away. A boy who had been away on vacation said that he had been on his way to the school, had seen someone lying on the ground, had heard the shots, and then turned back. In actuality, a police barricade prevented anyone from approaching the block around the school." (p. 238).

One assumes that children heard about the event from their peers who were present during the sniper attack and they incorporated these reports into their own memories.

128. The Braga interviews contain some clear examples of peer pressure being used on children. The following exchange between Laurie Braga and JL shows what a threat to accuracy the use of peer pressure can be in an interview:

Braga: Some of the children don’t understand. They are afraid. Some children said that they were acting like monsters and they wore these masks and scared them.

JL: Is that true?

Braga: I am not sure but some of the children said so and I believe the children because I don’t think children make up stories like that. Do you?

JL: Which children?

Braga: Well, D. and some of the other children.

JL: They were bigger than me.

Braga: Well, most, some of them were bigger than you and some of them were littler than you.

JL: But some of them are bigger than me and did they tell that they were naked or anything like that?

Braga: Yes.

JL: What did they say?

Braga: They said that they played games with Frank and Iliana and some of the littler children and everybody took off their clothes and they played games and people touched each other’s private parts.

JL: That’s true.

Braga: Is it true?

JL: Yes but D. (inaudible) the other children said it, so D. might be right.

Braga: You think D. might be right?

JL: Right. Right because the bigger children said that.

Braga: You thought maybe if D. said it, maybe it wasn’t right?

JL: But now I found out that it was true because other children said it.

(9/19/85, 63-64)

129. It is also clear from depositions and police reports that parents told other parents what their children had said and in some cases this led to further concern and thus questioning of their own children. See Bruck, Exh. 2 at 8 and 10-11. See also, Bruck, Exh. 5 at 15-16 and 27-31, in which Mary Lerow, a friend of TL’s (a girl) family and a police officer who was not assigned to this case, describes how, parents of the Country Walk children began having meetings with each other from an early point in the investigation and that she herself, who was convinced the children had been sexually abused, talked to the parents of AP, JC, JL, SM, and BT.

130. The next section reviews two recently completed studies that demonstrate the power of telling children what other children have said when this technique is combined with other suggestive techniques.

11. Combinations of Suggestive Interviewing Techniques

131. The studies discussed above have predominantly examined the effect of using a single suggestive technique on the accuracy of children’s reports. However, when a number of techniques are combined in one interview, as was the case with the child witnesses in Fuster, these procedures have detrimental effects much larger than might be expected. Two recent studies support this conclusion.

132. The first study (Bruck, Ceci, & Hembrooke, 1998) examined the impact of repeatedly interviewing children with a combination of suggestive procedures. Preschool children were asked to tell about two true events (a recent punishment and helping a visitor at their school who had hurt her ankle) and about two false events (helping a lady find her monkey in the park and witnessing a thief steal food from the day care).

133. Children were interviewed on five different occasions about the four events. In the first interview, the children were asked if the event had happened and if so to provide as many details as possible about its occurrence. The next three interviews included a combination of suggestive interviewing techniques that have been shown to increase children’s assents to false events. These techniques included: the use of peer pressure ("Megan and Shonda were there and they told me you were there, too."), visualization/pretend techniques (try to think about what might have happened), repeating (mis)information, and providing selective reinforcement ("It’s so wonderful that there are such nice kids like yourself to help people out when they need it. You know it’s really important to help people out."). The same interviewer questioned the children for the first four interviews. In the fifth interview, a new interviewer questioned each child about each event in a non-suggestive manner.

134. Across the five interviews, all of the children consistently assented to the true-helping event. However, children were at first reluctant to talk about the true-punishment event; many of the children denied that the punishment had occurred. With repeated suggestive interviews, the children agreed that the punishment had occurred. Similar patterns of disclosure occurred for the false events; that is, children initially denied the false events but with repeated suggestive interviews they began to assent to these events. By the third interview, most children had assented to all true and false events, which included witnessing a thief take food from the day care. This pattern continued to the end of the experiment. Thus the combination of suggestive techniques (that were also used in Fuster) produced high assent rates for true and false events, one of which was a criminal act.

135. This study illustrates both the beneficial as well as baleful consequences of using suggestive techniques to elicit reports from young children. For children who may not want to talk about unpleasant but true events (the punishment), the use of repeated interviews with suggestive components did prompt them to correctly assent to previously denied events. However, the use of these very same techniques prompted children to assent to events that never occurred.

136. A study by Garven, Wood, Shaw, & Malpass (1997) shows how a combination of suggestive interviewing techniques that were used in the McMartin case (People v Buckey) can compromise the accuracy of children’s reports in one short 10 minute interview. In this study, a stranger visited children at their day care and read them a story. One week later, children (between the ages of 3 and 6 years) were interviewed about the visit. Half the children were asked leading questions (e.g., "Did Manny break a toy?"). The other children were also asked leading questions but in addition other suggestive techniques were used including peer pressure ("The other kids said that…"), positive consequences (giving the child praise for certain answers and telling him that he is a good helper), negative consequences (telling the child that this was not the appropriate answer, and repeating the question), enjoinders to think about it (children were asked to think hard about questions they said "no" to) and enjoinders to speculate (asking children to pretend or to tell what might have happened). Children in the combined technique condition accurately answered approximately 42% of the questions compared to an accuracy rate of 83% of children who were just asked leading questions. The children in the combined suggestion group claimed that Manny said a bad word , that he threw a crayon, that he broke a toy, that he stole a pen, that he tore a book and that he bumped the teacher. Another important result of this study is that children in the combined suggestion condition came to make more false claims as the interview progressed: that is within a short 5 to 10 minute interview, children made more false claims in the second half than in the first half of the interview. Thus, the children had learned what types of answers the interviewer wanted to hear.

137. Taken together these studies suggest that when suggestive interviewing techniques are used in combination, young children can quickly come to make false reports that involve harm and wrong doing. Please see the interview described above with JL and Laurie Braga under the heading of anatomically correct dolls as an example of this occurring in Mr. Fuster’s case..

12. Credibility of Children’s Reports Produced by Suggestive Interviewing Techniques

138. The prosecution introduced testimony of a host of therapists who described themselves as child care professionals. These included: Dr. Barbara Goldman, Jennifer Litwin’s therapist; Dr. Doris Stiles, Brooke Toby’s therapist; Dr. Jerome Poliacoff, Scotty Marks’ therapist; and Dr. Simon Miranda, who was directed by Child Protective Services to evaluate Noel Fuster. Towards the conclusion of each of these therapist’s testimony, the prosecutor asked him or her the following question:

Is [child’s name]’s behavior absolutely consistent with a child who is disclosing to you actual sexual abuse and is not telling you something he’s either made up or has been forced to say or has been programmed or influenced to say?

139. In each case, the state expert answered that, indeed, the child’s behavior was consistent with a child who was disclosing actual sexual abuse. (9/4/85, 152); (9/4/85, 254-55); (9/5/85, 165-66); (9/10/85, 54).

140. Each of these experts then proceeded to explain what factors he or she considered in determining whether the child under his or her observation was telling the truth versus lying or seeming programmed. The experts noted the emotive quality of the children’s reports, the detail of these reports, the lack of rigid consistency in the telling, and the sexual knowledge that a child that age would not ordinarily have. Other state experts, most notably Drs. Joseph and Laurie Braga, expressed the opinion that children are incapable of lying..

141. It has often been stated that it is easy to detect false reports that are the result of suggestion, because it was thought that children were merely "parroting" the words of their interrogators. However, evidence from the past decade, provides no support for this assertion. First, we have found that when children are suggestively interviewed, their subsequent narratives include false reports that were not suggested to them, but that are consistent with the suggestions (e.g., Bruck, Ceci, Francouer & Barr, 1995; Bruck, Ceci & Hembrooke, 1997).

142. Second, subjective ratings of children's reports after suggestive interviewing reveals that these children appear highly credible to trained professionals in the fields of child development, mental health, and forensics (e.g., Leichtman & Ceci, 1995, Ceci et al. 1994); these professionals cannot reliably discriminate between children whose reports are accurate from those whose reports are inaccurate as the result of suggestive interviewing techniques. The children who provided the false reports spoke sincerely and provided accounts laden with emotion and perceptual details.

143. Third, results of a recent study revealed that linguistic markers do not consistently differentiate true from false narratives that emerge as a result of repeated suggestive interviews. In the Bruck et al., study (1997) where children were repeatedly and suggestively interviewed about true and false events (described above), the children's narratives of the false events actually contained more embellishments (including descriptions and emotional terms) and details than their narratives of the true events. Also the false narratives had more spontaneous statements than the true narratives. Thus on these dimensions, the experts in Fuster were totally wrong in terms of their criteria for determining truth.

144. Of relevance to the present case, two measures differentiated the true and false stories. First, children were more likely to repeat the same details across interviews for true than for false narratives. Thus, the true narratives were more "consistent" than the false narratives. One reason for this difference was the fact that with each retelling, children included more new details in their false than in their true narratives. The experts in Fuster told the court that false stories are characterized by rigid consistency—exactly the opposite pattern to what is found in the new scientific literature (Dr. Miranda, 9/4/85, 253).

145. A second factor that differentiated true from false stories was the number of aggressive, exaggerated, and fantastical details in false compared to true narratives. In Fuster after several suggestive interviews, most children began to make fantastic and bizarre claims. JL, for example, has a second interview with the Bragas after having had 17 sessions with a private therapist. In this second Braga interview, JL now tells the Bragas about a game she played at the Fusters (with their clothes off) called "Cut your head off." With some prompting, JL describes a game in which Frank would ask the children if they wanted a cupcake. If they said yes, he would cut their heads off. She then says Frank held a knife to their throats and revises this and says Frank used a saw. (9/21/85, 224-226). JC’s reports also become increasingly fantastic. By his fifth interview with the Bragas, JC reports that Iliana wore something around her neck that gave her energy like "Black Beard" and that the pee pee devil and the ka ka devil and dragons would come out of the toilet to get you. JC also says the Fusters put ka ka in his drink. (9/19/85, 409-410). Bruck et al.'s data suggest that perhaps these claims were merely a product of the interviewing process and did not reflect the children's past experiences.

146. Taken together these studies suggest that when suggestive interviewing techniques are used in combination, young children can quickly come to make false reports that involve harm and wrong doing. With repeated interviewing, not only do false assents rise, but most importantly the children's false narratives take on many of the characteristics of what is thought to define true narratives. The children’s words and demeanor are often deceptively authentic even to the well-seasoned professional.

F. Summary of the Research Findings of Disclosures that Emerge from Suggestive Interviews

147. The present state of scientific knowledge about the reliability and credibility of the testimony of child witnesses indicates the following:

a. There are reliable age effects in children's suggestibility, with preschoolers being more vulnerable than older children to a host of factors that contribute to unreliable reports.

b. Although young children can be accurate reporters, they do make errors – sometimes elaborate ones -- particularly when they undergo suggestive interviews. These errors involve not only peripheral details, but also central events that involve their own bodies. At times children's false reports can be tinged with sexual connotations. In research studies, young children have made false claims about "silly events" that involved body contact (e.g., Did the nurse lick your knee? Did she blow in your ear?), and these false claims persisted in repeated interviewing over a three-month period. (Ornstein, Gordon, & Larus, 1992) Young children falsely reported that a man put something yuckie in their mouth. (Poole & Lindsay, 1995, 1996) Preschoolers falsely alleged that their pediatrician had inserted a finger or a stick into their genitals (Bruck et al, 1995) or that some man touched their friends, kissed their friends on the lips, and removed some of the children's clothes. (Lepore & Sesco, 1994). A significant number of preschoolers assented to suggestions that a doctor had cut out some bone in the center of the child's nose to stop the child from bleeding (Quas et al, in press). A significant number of preschool children falsely reported that someone touched their private parts, kissed them, and hugged them. (Goodman et al., 1990; Goodman, Bottoms, Schwartz, Kenney & Rudy, 1991; Rawls, 1996; Melnyk, Bruck & Ceci, 1997) When suggestively interviewed, children will make false allegations about nonsexual events that have serious legal consequences were they to occur. For example, preschoolers claimed to have seen a thief in their day care. (Bruck et al., 1997)

c. Suggestive interviewing affects the credibility of children’s statements. As a result, even professionals cannot tell when suggestively interviewed children are providing a true or false report. The major reason for this lack of accurate discrimination is that children’s reports, that are the result of suggestive techniques, come to take on a life of their own, in certain respects. Their reports are not simple reflections or monosyllabic responses to leading questions. Under some conditions, their reports become spontaneous and elaborate, going beyond the suggestions provided by their interviewers. For example, in the recent Bruck, et al., study (1997), children’s false reports contained the prior suggestion that they had seen a thief take food from their day care; but these reports also contained nonsuggested details that included chasing the thief, hitting the thief, and shooting the thief.

d. Measures can be taken to lessen the risk of suggestibility effects. To date, the factors that we know most about concern the nature of the interview itself -- its frequency, degree of suggestiveness, and demand characteristics.

-- A child's report is less likely to be distorted, for example, after one interview than after several interviews (the term "interviews" here includes informal conversations between parents and child about the target events).

-- Interviewers who ask non-leading 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 children.

-- Interviewers who are patient, non-judgmental, and who do not attempt to create demand characteristics (e.g., by providing subtle and explicit rewards for certain responses) are more likely to elicit better quality reports from young children.

148. Thus, if during the initial interview, the child is asked neutral non-leading questions about suspected abuse, and if the child provides an account in their own words of abuse, then one might have some confidence that the child had observed or participated in these events. On the other hand, if during the first interview, the child initially denies any knowledge of abuse, and only makes allegations as the result of suggestive interviewing practices in the first and subsequent interviews, then there is a high risk that the child's reports have been tainted.

149. In Fuster, the most consistent pattern of disclosure was that when the children were first questioned by their parents, they all consistently denied that they had been abused. As the investigation continued, as parents gathered more knowledge about the allegations, and as children were repeatedly interviewed by biased interviewers, charges of sexual abuse emerged and expanded.

e Finally, it is also important that the court appreciate the complexity of the interrelationships of the factors affecting children's suggestibility. Even though suggestibility effects may be robust, the effects are not universal. Thus, even in studies with pronounced suggestibility effects, there are always some children who are highly resistant to suggestion. This pattern also occurred in Fuster interviews: in some cases, no matter how much the interviewers tried to suggest that an event occurred, some children consistently resisted and did not incorporate the interviewer's suggestion or point of view. On the other side, although suggestibility effects tend to be most dramatic after prolonged and repeated interviewing, some children incorporate suggestions quickly, even after one short interview (e.g.Clarke-Stewart, et al., 1989; Garven et al., 1997).

150. Dr. Lee Coleman testified on September 24, 1985 as the defense’s only expert witness. Dr. Coleman provided insightful testimony on the factors that could influence a child to make a false report of sexual. For example, Dr. Coleman noted that a variety of factors used in the interviews could, in his view, contaminate a child’s report. These included: use of anatomically detailed dolls (9-24-85, 47); encouraging a child to fantasize about abusive conduct, with or without anatomically detailed dolls as a prop (id., 48); interviewers ignoring obvious comments by children that showed them to have been influenced by outside contacts (id. 49); reinforcement by interviewers of children’s answers that were consistent with abuse with comments like "I’m so proud of you for telling. You’re so brave." (id., 50-51); use of leading and manipulative questions (id., 52); asking children multiple choice questions (id., 52-53); repeated questions(id., 53); interviewers ignoring children’s comments that were unquestionably fantasy while automatically accepting statements from the same child that were consistent with the interviewer’s theory that abuse had occurred (id., 53); use of peer pressure, distortion of previous remarks made by the child, use of one child’s statements against another (id., 54, 56-57); the length of the sessions and the number of adults present (id., 55-56); and the recruitment by the Bragas of the parents to adopt the same biases that they had (id., 57-58).

151. Dr. Coleman then analyzed each child’s interviews with Drs. Joseph and Laurie Braga and pointed out where the Bragas had used each of the techniques he (Coleman) had earlier criticized. (Id., 72-163)

152. Dr. Coleman’s testimony was on the mark in terms of many of the factors that influence children’s reports of abuse. Unfortunately, Dr. Coleman’s credibility as an expert in the subject was dismantled on cross-examination because he could not provide a single study to support his intuitions. He was also unable to cite the name of any other expert who would support the theories he had put forward. (This was not because Dr. Coleman was unprepared; it was because, at the time, there were none.) For example, the prosecutor asked Dr. Coleman if he knew of any "statistically verified studies" that called into question the reliability of anatomically detailed dolls. Dr. Coleman answered, "No." (Id., 181-182) Dr. Coleman was forced to admit that there are no studies that would prove how likely it was that a child could be manipulated by the interviewing techniques he had earlier described to the jury. (id., 182).

153. Dr. Coleman was then asked by the prosecutor to name three or four leading experts who have done research in the area of child fantasy. Dr. Coleman could only provide the names of people who had conducted research (at that time) that showed the strength of children’s memories (id., 184-185), a point the prosecutor then highlighted.

154. The prosecutor eventually drove home the point to the jury, through his questions to Dr. Coleman, that no experts agree with Coleman and that even the experts Coleman himself has named as being the "leaders" in the field have documented the strength of children’s memories, not the weaknesses. (id., 186-190) In fact, the prosecutor returned to this theme with Dr. Coleman after first moving into other areas. (id., 210)

155. As documented in the prior sections, there were no studies conducted at the time of or prior to the trial to provide direct support for Coleman’s opinions. This is not to say that studies actually contradicted his conclusions. Rather, the experiments being performed were simply not relevant to the types of challenges to which children’s memories were being put when they were interviewed in sessions like those conducted by the Bragas. However, as also reviewed in the previous sections, Coleman’s opinions preceded the scientific data which in the decade of the 1990s matched and supported his clinical intuitions .

Electronic Recording of Interviews is Necessary to Support Any Claim That Interviews Were Not Suggestive or that Children’s Resulting Reports are Accurate or Reliable

156. As is demonstrated in the previous section, the exact wording of each question asked of children during investigative interviews -- as well as the number of times questions are repeated and the tone of questioning -- is necessary to determine whether strategies recognized as capable of affecting the reliability and accuracy of children’s reports were applied -- consciously or unconsciously -- by interviewers. Without electronic recordings of interviews this information cannot be preserved. Thus, claims by investigators that their unrecorded interviews were not suggestive or that children spontaneously reported abuse cannot be supported. Because suggestive interviews can have lasting effects on the accuracy of children’s memory and reports, the failure to record all interviews makes it impossible to support any claims that children’s reports are accurate or reliable and free of suggestive influences.

157. The failure to have audio- or video-taped records of any of the initial police or RTC interviews with the Fuster witnesses makes it impossible to support a claim that the children’s initial allegations are accurate. Summaries of interviews (such as those provided by the Police Department, Rape Treatment Center and parents) do not substitute for missing original interviews because written summaries are subject to a number of distortions that can include omission of important details, inclusion of inaccurate details, and most importantly the absence of a verbatim record of each utterance produced in the interview.

158. It is a well documented fact in the psycholinguistic literature that when asked to recall conversations, most adults may recall the gist (the major ideas, the content), but they cannot recall the exact words used, nor the sequences of interactions between speakers. This linguistic information rapidly fades from memory, minutes after the interactions have occurred. (see Rayner & Pollatsek, 1989, for a review) In a recently completed experiment in our laboratory (Bruck, Ceci & Francoeur, 1999), we videotaped interviews where mothers asked their four-year old children about a play activity that had taken place in the laboratory. Three days later, we asked mothers for a report about this conversation. The mothers could not remember much of the actual content of the interview, omitting many details that had been discussed, but much of what they did recall was accurate. Most importantly, the mothers were particularly inaccurate about several aspects of their conversation: they could not remember who said what (e.g., They could not remember if they had suggested that an activity had occurred or if the child had spontaneously mentioned the activity). They could not remember the types of questions they had asked their children (e.g., They could not remember if they had used an open-ended question or a series of leading questions to obtain a piece of information). For example, although some mothers in this study remembered that they learned that a strange man came into the room when the child was playing, they could not remember if the child spontaneously gave them this information, or if they obtained it through a sequence of repeated leading questions that the child assented to with monosyllabic utterances. To summarize, although parents could accurately remember parts of the general content of the conversation, they could not remember how or if they questioned their child.

159. A similar study with mental health trainees has just been completed. This study (the birthday party study) was described above in the section on interview bias (Bruck, Ceci & Melnyk, 1999) The trainees interviewed four children about an event. Later, their memories for two of the conversations were tested. The mental health trainees showed the same pattern as the parents. They had difficulty remembering who first mentioned certain pieces of information; also, they could not remember if the child's statements were spontaneous or the result of leading questions. In addition, these trainees mixed-up which of the four children said what. That is, they often attributed the actual report of Child A to Child B. Warren & Woodall,(in press) obtained similar results with experienced investigators who provided summaries immediately after the interview with a child. In this study, when asked what types of questions they had used to elicit information from the children, most of the interviewers answered that they had asked primarily open-ended questions, while few stated that they had asked specific questions, and only one reported asking any leading questions. Their estimates were highly inaccurate, as most (over 80%) of the questions asked by these interviewers were specific or leading. Returning to the Bruck, Ceci & Melnyk study, as reported at the beginning of this affidavit, the interviewers also made factual errors about what the children had said, errors that reflected accumulating biases. That is the interviewers reported that the fourth child had attended a birthday party, when it was clear in a number of cases that the child had made no such statement.

160. These data provide an empirical basis for the importance of obtaining electronic copies of interviews with children. They suggest that summaries of interviews based on interviewers’ notes and memories may be inaccurate for a number of reasons. Usually notes only contain pieces of information that the investigator thinks are important at the moment. If the investigator has a bias that the child was sexually abused, this could color his interpretations of what the child said or did; and it is this interpretation that appears in the summary rather than a factual account of what transpired. Finally, if a number of children are interviewed and the reports are not immediately written, the investigator may confuse which child said what.

161. It is fortunate in Fuster that the Bragas did videotape most of their interviews, including the initial ones with the children. This record allows an objective retrospective view of the emergence of the children’s allegations. Unfortunately, there is one large gap in this record. There is no record of the first two interviews with the first child (JC) to disclose. The following information is available. On August 7, Detective Meznarich and Assistant State Attorney Rundle conducted an interview with JC in his bedroom. The following is part of the police report:

JC was asked if he liked to the Fuster’s and he stated he did not. When asked, "why", he stated because of what "they did". When asked "what happened", JC did not answer. This investigator asked if any of the children had their clothes off and JC stated "yes". When asked "who", he stated "My brother". JC was asked to describe what happened to his brother and he replied that [his brother] would be wearing a shirt and not diaper and be sitting on the floor when Ileana would put her mouth on [his brother’s] penis, then grab it. This investigator asked JC if Frank Fuster was there when this happened and he said, "No"., he also related that one time when Ileana put her mouth on [his brother’s] penis, she called "Frank, come here and look". When he saw what she was doing, JC says they argued about it and Mr. Fuster stated, "That’s real dumb and the kids know it. It’s embarrassing"….(Interviewer continues and includes other allegations).

Bruck, Exh. 2 at 29-30. See also, Police reports quoted above regarding interviews at the RTC with TL, BT and DM.

162. Although the report may seem informative, it is crucial to know how and how long it took to get these critical details. For example, did the answer about fellatio come out spontaneously or was it the result of repeated leading questions: "Did Illeana put her mouth on his penis?" It does seem from the rest of the notes that JC was repeatedly asked the same questions, changing his answer to become consistent with the view that the Fusters abused many children. What did Mr. Rundle ask, if anything, during this interview? Based on the notes, the most one can conclude from this interview is that JC denied that he had been a victim, that he was asked questions repeatedly, that his answers were highly inconsistent, and there was much bizarre content in his statements.

163. The second interview with JC, his first with the Bragas, was videotaped. Unfortunately, due to technical difficulties, there is no sound. So by the time of the first recorded interview (but the third interview not including any conducted with parents or others) it is not possible to evaluate the degree to which JC’s statements (which continued to be inconsistent and bizarre) are the product of previous suggestive interviews. This turn of events makes the reliability of his statements unknown and unknowable.

164. Similar concerns are raised by the written reports of the initial interviews with the other children by the police and by the interviewers at the RTC. None of these reports specify the degree to which the children’s answers were spontaneous or prompted. The reports of the children’s behaviors with the dolls at the RTC is uninterpretable without a video record of how the children were questioned (e.g., Did the interviewers suggest to the children how to manipulate dolls by asking leading questions). As the studies cited above indicate, if investigators were later asked to provide this information (e.g., "Did the child tell you about the incident or did you have to ask him many leading questions to obtain the information?"), they would be unable to do so.

165. The concerns about the accuracy of some of the initial police-RTC reports and of the parents' reports raise fundamental questions about what exactly if anything the children in Fuster initially said about abuse. Without transcripts of actual interviews with police and RTC workers, it will be impossible to ever tell.

There Are No Reliable Behavioral Symptoms That Are Diagnostic Of Sexual Abuse

166. Through out this affidavit, I have directly addressed the scientific validity of some of the opinions of the experts who testified for the prosecution. I have concluded in different sections that these experts’ opinions do not hold up to the scrutiny of current scientific data. Specifically, contrary to what many of them stated at trial (a) professionals cannot determine whether a child’s statements are true or false, especially if that child has undergone suggestive interviews and (b) that sexually abused children do not uniformly fail to disclose abuse when first interviewed by professionals; nor do they often recant once they have made a disclosure.

167. In this section, I focus on another issue—whether sexually abused children exhibit a constellation of specific behavioral problems that are consistent and diagnostic of abuse.

168. Many of the states experts testified that the child witnesses in Fuster displayed a constellation of behavioral problems that were consistent and diagnostic of sexual abuse.

169. Dr. Goldman described the following symptoms: depression, withdrawn, suicidal, increased somatic complaints, eneuresis, regressive toileting , precocious sexual play, excessive masturbation, poor self-image, unkempt appearance, anxiety, sleep problems and aggression (9/4/85, 154)

170. Dr.Miranda mentioned the following symptoms that are observed in sexually abused children: lack of motivation, evidence of guilty, obsessive-compulsive behaviors, low self-esteem, anger, lack of trust, unexplained attachment (9/4/85,278)

171. Dr. Stiles’ list included the following problems: masturbation, nightmares, bedwetting, approaching strangers in an unnaturally trusting manner, abnormal fears and separation anxiety (9/10/85, 42-48).

172. Joseph Braga’s list included the following symptoms: extreme modesty, sudden eating disorder, swallowing problems, secretive behavior, excessive bathing, pseudo-mature behavior, over-compliance (9/6/85, 187-192).

173. Some experts testified about the presence of specific symptoms in the child witnesses in Fuster. And parents testified about behavioral changes that they later came to understand as their children’s reactions to abuse.

174. Despite the ubiquity of this syndrome testimony, it does not hold up under the scientific microscope. First, the idea that there is a list of behaviors that can be used to diagnose child sexual abuse has been shown to have no scientific underpinning. In fact, the laundry lists of "symptoms" experts have associated with sexual abuse include a panalopy of behaviors displayed by maladjusted as well as adjusted children (see Kendall-Tackett, Willliams & Finkelhor, 1993).

175. Second, it is also important to distinguish behaviors that occurred before disclosure from those that occurred after disclosure. In some cases, children may develop behavioral problems as a consequence of adults treating them like victims, or because of the interviews themselves. Adults may misplace the correct timing of the symptoms and come to remember symptoms that actually emerged after disclosure as occurring pre-disclosure. For example, JC’s mother, when first interviewed by the police about JC, stated that he had nightmares "but she did not become alarmed." Bruck, Exh. 2 at 29 By trial, her testimony included the following list: aggressive, belligerent behavior (9/10/85, 134); sarcasm and mockery (id.); frequently using the word "kill" (id.); sexual awareness (id., 135); masturbation (id.); use of language like "fucking" and "sexy" (id.); fear over the prospect of his parents’ absence (id. , 138); an obsession with death (id., 141). Moreover, JC’s mother now described having grave concerns because of the horrific nightmares JC had experienced. (Id., 137-140)

176. In some cases, the inconsistencies and inaccuracies of the parents' reports reflect the normal processes of memory. Our current memories are not a faithful reproduction of past events; rather they are constructive in nature. Changes in memories occur for a variety of factors that include the passage of time, confusions or blending of target events with other past or even imagined events, beliefs and motivations to view the world in a certain way. (e.g., Ross, 1989) As our comprehension of a situation changes, our past recollections of the situation also change to conform with current belief systems.

177. The claim is not that the children did not show any behavior problems. Many of the problems cited by the parents (anxiety, enuresis, fears, night terrors and even sexual behaviors) are common in children of this age or else they can be associated with other types of childhood behavioral disorders (e.g., see Kendall-Tackett, Williams, & Finkelhor, 1993). As explained in previous sections, these behaviors may in fact have emerged as a result of the coercive and suggestive interviews which the children in Fuster endured. In addition, there are a number of suggestions in the record that there were factors in most of the children's lives to elicit these symptoms. (These include: being left with a babysitter for the first time; watching scary movies; loss of an in-home babysitter; a mother beginning full-time work; a father being arrested for firearms violations; parents getting divorced.) Thus in some cases, the parents' reports may reflect a change in their beliefs about the causes and the time periods of their children's symptoms and behaviors which may actually have occurred.

178. To conclude, although the children in Fuster may have displayed a variety of symptoms, contrary to the testimony of the states’ experts, these are not diagnostic of sexual abuse. The appearance of these symptoms in the Fuster witnesses could be readily explained by a host of other primary life stresses.

VII. Conclusions

179. In sum, it is my expert opinion to a reasonable degree of scientific certainty, based on the relevant research literature and the facts in this case, that the methods used to obtain allegations of abuse from the children in this case render their resulting accusations as unreliable evidence. Contrary to the opinions of the state experts in Fuster, there is no scientific evidence to support the view that most sexually abused children deny abuse, disclose abuse, and then recant their previous reports. The research reviewed in this affidavit provides a scientifically based explanation for why children in Fuster denied, disclosed, and recanted. Specifically, suggestive interviewing techniques resulted in the children providing reports that have a high risk of being unreliable. I have discussed a number of these techniques that, when present in interviews or interactions with young children, may greatly compromise the accuracy of their reports. These factors include: biased beliefs of the interviewer, the use of repeated questions, the repetition of misleading information, and the use of rewards and bribes. Other important factors that contribute to children's unreliable reports include the use of peer pressure, the use of anatomically detailed dolls, and the creation of an atmosphere of fear and accusation. These factors have their greatest impact when used in combination with preschool witnesses. This was the case in Fuster.

180. Unless investigators and others are very careful in the interviewing procedures that are used with children suspected of having been abused, one can never make an accurate determination of whether or not abuse occurred. There are a number of interviewing procedures that have the potential to make non-abused children look like abused children. These are the same procedures that were used in the interviews with the Fuster children. Using these procedures, children may not only come to falsely report acts of sexual abuse, but they may come to believe that they experienced the events they reported. These children’s memories may be permanently tainted by the sexualized suggestions of their interviewers. These children can appear highly credible both to subsequent interviewers, to family, and to jurors. There are no valid scientific tests to determine which of the children's reports were accurate, once the children have been subjected to suggestive interview methods. Because the children in Fuster underwent extremely suggestive interviews, a determination of reliability and accuracy of any of the allegations of abuse is impossible.

Signed and sworn under the pains and penalties of perjury this __ day of February, 1999.

____________________

Maggie Bruck, Ph.D

Binet, A. (1900). La Suggestibilité. Paris: Schleicher Freres.

Bradley, A., & Wood, J. (1996). How do children tell? The disclosure process in child sexual abuse. Child Abuse & Neglect, 20, 881-891.

Bruck, M., Ceci, S.J., Francoeur, E., & Barr. R.J. (1995). "I hardly cried when I got my shot!": Influencing children's reports about a visit to their pediatrician. Child Development, 66, 193-208

Bruck, M., Ceci, S. J., Francoeur, E., & Renick, A. (1995). Anatomically detailed dolls do not facilitate preschoolers’ reports of a pediatric examination involving genital touch. Journal of Experimental Psychology: Applied, 1, 95-109.

Bruck, M., Ceci,S.J., & Francoeur, E. (1995) Anatomically Detailed Dolls Do Not Facilitate Preschoolers' Reports of Touching. Paper presented at Society for Research on Child Development, Indianapolis, Indiana, March.

Bruck, M. Ceci, S.J.& Hembrooke, H. (1997). Children's reports of pleasant and unpleasant events. In D. Read and S. Lindsay (eds.). Recollections of trauma: Scientific research and clinical practice. New York: Plenum press.

Bruck, M., Ceci, S.J., & Melnyk, L. (1999). The effect of interviewer bias on the accuracy of children’s reports and interviewer’s reports. Paper presented at the Biennial Meeting of the Society for Child Development. Albequerque, NM. .

Ceci, S. J., & Bruck, M. (1993). The suggestibility of the child witness: A historical review and synthesis. Psychological Bulletin, 113, 403-439.

Ceci, S. J. & Bruck, M. (1995). Jeopardy in the courtroom: A scientific analysis of of children’s testimony. Washington, DC: American Psychological Association.

Ceci, S.J., Crotteau-Huffman, M., Smith, E., & Loftus, E.W. (1994a). Repeatedly thinking about non-events. Consciousness & Cognition, 3, 388-407.

Ceci, S.J., Loftus, E.W., Leichtman, M. & Bruck, M. (1994b). The role of source misattributions in the creation of false beliefs among preschoolers. International Journal of Clinical and Experimental Hypnosis, 62, 304-320..

Ettinger, R.H., Crooks, R.L., & Stein, J. (1994). Psychology: Science, Behavior, and Life. Fort Worth: Harcourt Brace.

Faller, K.C. (1984). Is the child victim of sexual abuse telling the truth? Child Abuse & Neglect, 8, 473-481.

Garven, S., Wood, J.M., Shaw, J.S., & Malpass, R., (1997). More than suggestion: Consequences of the interviewing techniques from the McMartin preschool case.

Geiselman, R., Saywitz, K., & Bornstein, G. (1990) Effects of cognitive interviewing, practice, and interview style on children's recall performance. Unpublished Manuscript.

Goodman, G.S., Bottoms, B.L. Schwartz-Kenney, B., & Rudy, L. (1991). Children's testimony about a stressful event: Improving children's reports. Journal of Narrative and Life History, 1, 69-99.

Goodman, G. S., & Clarke-Stewart, A. (1991). Suggestibility in children's testimony: Implications for child sexual abuse investigations. In J. L. Doris (Eds.), The Suggestibility of Children's Recollections (pp. 92-105). Washington, D.C.: American Psychological Association.

Goodman, G. S., Rudy, L., Bottoms, B., & Aman, C. (1990). Children's concerns and memory: Issues of ecological validity in the study of children's eyewitness testimony. In R. Fivush & J. Hudson (Eds.), Knowing and Remembering in Young Children (pages 249-284). NY: Cambridge University Press.

Goodman, G. S., Wilson, M. E., Hazan, C., & Reed, R. S. (1989). Children's testimony nearly four years after an event. Paper presented at Annual Meeting of the Eastern Psychological Association, Boston, MA.

Goranson, S. (1986) Young child interview responses to anatomically detailed dolls: Implications for practice and research in child sexual abuse. Unpublished Master's Thesis, University of British Columbia.

Gray, E. (1993). Unequal justice: The prosecution of child sexual abuse. New York: MacMillan.

Gudjonsson, G. (1986). The relationship between interrogative suggestibility and acquiescence: Empirical findings and theoretical implications. Personality and Individual Differences, 7, 195-199.

Hughes, M., & Grieve, R. (1980). On asking children bizarre questions. First Language, 1, 149-160.

Jones, D., & McGraw, J. M. (1987). Reliable and fictitious accounts of sexual abuse in children. Journal of Interpersonal Violence, 2, 27-45.

Kendall-Tackett, K. A., Williams, L. M., & Finkelhor, D. (1993). Impact of sexual abuse on children: A review and synthesis of recent empirical studies. Psychological Bulletin, 113, 164-180.

Lawson, L., & Chaffin, M. (1992). 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. Journal of Interpersonal Violence, 7, 532-542.

Leichtman, M. D., & Ceci, S. J. (1995). The effects of stereotypes and suggestions on preschoolers' reports. Developmental Psychology, 31, :568-578 .

Lepore, S.J., & Sesco, B. (1994). Distorting children's reports and interpretations of events through suggestion. Applied Psychology, 79, 108-120.

Lindsay, D.S., & Read, J. D ( 1994). Psychotherapy and memories of childhood sexual abuse: A cognitive perspective. Applied Cognitive Psychology, 8, 281-338.

Melnyk, L., Bruck, M., & Ceci, S.J. (1997, July). Win, Lose, or Draw: The effect of drawing on children's suggestibility and source monitoring ability. Paper presented at the meeting of the Society for Applied Research in Memory and Cognition, Toronto, Canada.

Ornstein, P., Gordon, B. N., & Larus, D. (1992). Children's memory for a personally experienced event: Implications for testimony. , Applied Cognitive Psychology, 6, 49-60.

Parker, J. (1995). Age differences in source monitoring of performed and imagined actions on immediate and delayed tests. Journal of Experimental Child Psychology, 60, 84-101.

People v. Scott Kniffen, Brenda Kniffen, Alvin McCuan and Deborah McCuan, Kern County (Calif) Superior Court No. 24208.

People v. Raymond Buckey et al. Los Angeles Sup. Ct. No. A7509000.

Peterson, C., & Bell, M. (1996). Children's memory for traumatic injury. Child Development, 67, 3045-3070.

Poole, D.A., & Lindsay, D.S. (1995). Interviewing preschoolers: Effects of nonsuggestive techniques, parental coaching and leading questions on reports of nonexperienced events. Journal of Experimental Child Psychology., 60, 129-154.

Poole, D.A., & Lindsay, D.S. (1996). Effects of parent's suggestions, interviewing techniques, and age on young children's event reports. In D. Read and S. Lindsay (eds.). Recollections of trauma: Scientific research and clinical practice. New York: Plenum Press.

Poole, D., & White, L. (1991). Effects of question repetition on the eyewitness testimony of children and adults. Developmental Psychology, 27, 975-986.

Powers, P., Andriks, J. L., & Loftus, E. F. (1979). Eyewitness accounts of females and males. Journal of Applied Psychology, 64, 339-347.

Pynoos, R.S., & Nader K.(1989). Children’s memory and proximity to violence. Journal of the American Academy of Child and Adolescent Psychiatry, 28, 236-241.

Quas, J.A., Goodman, G.S., Bidrose, S., Pipe, M.E., Craw, S., & Abline, D.S. (in press). Emotion and memory: Children's long-term remembering, forgetting, and suggestibility. Journal of Experimental Child Psychology

Rawls, J. (1996). How question form and body-parts diagrams can affect the content of young children's disclosures. In D. Read and S. Lindsay (eds.). Recollections of trauma: Scientific research and clinical practice. New York: Plenum press.

Rayner, K., & Pollatsek, A. (1989). The Psychology of Reading. Prentice-Hall, Inc. Division of Simon & Schuster. Englewood Cliffs: NJ.

Ross, M. (1989). Relation of implicit theories to the construction of personal histories. Psychological Review, 96, 341-357.

Salmon, K., & Pipe, M-E. (in press). Providing props to facilitate young children's event recall: The impact of a one year delay. Journal of Experimental Child Psychology.

Sgroi, S. M. (1982). Handbook of clinical intervention in child sexual abuse. Lexington, MA: Lexington Books.

Siegal, M., Waters, L., & Dinwiddy, L. (1988). Misleading children: Causal attributions for inconsistency under repeated questioning. Journal of Experimental Child Psychology, 45, 438-456.

State v. Michaels, Superior Court, Essex County New Jersey (1988)

State v. Robert Fulton Kelley Jr. Superior Criminal Court, Pitt County, North Carolina, #91-CRS-4250-4363 [1991-1992].

Steward, M.S., & Steward, D.S. (with Farquahar, L., Myers, J.E.B., Reinart, M., Welker, J., Joye, N., Driskll, J., & Morgan, J.). (1996). Interviewing young children about body touch and handling. Monographs of the Society for Research in Child Development, 61, (4-5 Serial No. 248).

Summit, R. (1983). The child sexual abuse accommodation syndrome. Child Abuse and Neglect, 7, 177-193.

Terr, L. (1988). Anatomically correct dolls: Should they be used as a basis for expert testimony? Journal of the American Academy of Child and Adolescent Psychiatry, 27, 254-257.

Thompson, W.C., Clarke-Stewart, K.A., & Lepore, S (1997). What did the janitor do? Suggestive interviewing and the accuracy of children's accounts. Law & Human Behavior, 21(4), 405-426.

Tobey, A., & Goodman, G. S. (1992). Children's eyewitness memory: Effects of participation and forensic context. Child Abuse & Neglect, 16, 779-796.

Walker, N., Lunning, S., & Eilts, J. (1996). Do children respond accurately to force choice questions? Paper presented to the NATO Advanced Study Institute: Recollections of Trauma: Scientific Research and Clinical Practice. Talmont Saint Hilaire, France, June.

Warren, A., & Woodall, (In press). The reliability of hearsay testimony: How well do interviewers recall their interviews with children? Psychology, Public Policy, and Law

Welch-Ross, M. (1995). Developmental changes in preschoolers' ability to distinguish memories of performed, pretended, and imagined actions. Cognitive Development, 10, 421-441.

Zigler, E. & Kanzer, P. (1962). The effectiveness of two classes of verbal reinforcers on the performance of middle- and lower-class children. Journal of Personality, 30, 157-163.

| Back to Mainpage | Back to Top |