POINT ONE

MR. FUSTER WAS UNCONSTITUTIONALLY DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND CONFRONTATION BECAUSE THE MEMORIES OF THE CHILD COMPLAINANTS WERE IRREPARABLY TAINTED BY THE SUGGESTIVE INTERVIEWS TO WHICH THE STATE SUBJECTED THEM PRETRIAL.

A. Overview

Pretrial, Mr. Fuster sought to exclude the testimony of child complainants who had been subjected to interviews by state investigators. See Motion to Exclude Witnesses, dated July 26, 1985, attached hereto and incorporated herein as Exhibit D. He argued this motion on the basis that the interviews had tainted the children’s memories and rendered their reports of abuse unreliable, their testimony constitutionally impermissible. While research conducted in the late 1980’s and throughout the 1990’s has proved Mr. Fuster prescient, at the time of his trial, no such research existed to support his bid to exclude this evidence as unreliable. His pretrial motion was denied.

At trial, children who had been subjected to numerous, highly suggestive questioning were permitted to testify. Likewise, five experts were allowed to repeat hearsay statements made by these children during counseling sessions. (Dr. Doris Stiles, 9/10/85, 122 et seq.; Dr. Simon Miranda, 9/4/85, 202 et seq.; Dr. Barbara Goldman, 9/4/85, 125 et seq.; Dr. Jerome Poliacoff, 9/5/85, 122 et seq.; and Linda Cooper, 9/9/85, 68 et seq.). In addition, eight prosecution experts were permitted to tell the jury why, based on their clinical impressions, these children were providing highly credible accounts of abuse. (Id. plus Dr. Joseph Braga, 9/6/85, 133 et seq.; Dr. Laurie Braga, 9/10/85, 151 et seq). In the absence of the new research findings, Mr. Fuster was unable to controvert the testimony of these experts.

In 1993, Mr. Fuster filed a Rule 3.850 motion, asking the state court to grant him a hearing at which he could present, inter alia, this newly discovered evidence -- i.e., research demonstrating the unreliability of reports of abuse made by children subsequent to suggestive interviewing and research demonstrating that even child welfare professionals are unable to distinguish between children who were providing accurate reports and those who were reporting about events known not to have happened. (No child in Mr. Fuster’s case made any spontaneous report of abuse and most continued to deny abuse through several interviewing sessions.)

The court denied the request for a hearing or for relief, stating:

3. Defendant’s claim of newly discovered evidence and case law, with regard to testimony of child witnesses and interview techniques employed by investigators, is a matter which was litigated at trial, and is unaffected by the procedures adopted by the New Jersey courts in State v. Michaels, 642 A. 2d. 1372, 136 N.J. 299 (1994) as such evolutionary changes in the law are not cognizable in post-conviction proceedings unless emanating from the Supreme Court of Florida or the United States Supreme Court. Witt v. State, 387 So.2d 922 (Fla.1980).

App. 322. The Florida Court of Appeals affirmed, adopting in toto the language of the Rule 3.850 court. Resp. App. 335-337

In the subsections to follow, Mr. Fuster addresses three concerns:

Why this issue is properly before this Court (and why the Florida courts erred in failing to consider this issue;

What the new research shows and how it demonstrates the unreliability of testimony presented to the jury at trial; and

Why the use of this constitutionally deficient evidence was instrumental in convicting Mr. Fuster.

B. This Issue is Properly Before this Court, Is Fully Exhausted, and Raises an Issue of Constitutional Dimension Appropriate for De Novo Determination in Federal Habeas Proceedings.

1. This Issue Was Raised and Exhausted in State Court.

Mr. Fuster raised this issue in a Rule 3.850 petition in Florida state post conviction proceedings. Mr. Fuster also requested an evidentiary hearing in state court to enable him to put evidence before that court as to this newly discovered evidence. The state court declined to provide Mr. Fuster such a hearing.

In denying Mr. Fuster relief, the state court, as noted above, made no findings of fact whatsoever. The first basis for denying relief was that "this issue," presumably the reliability of the children’s reports, had been litigated at trial. It is true that Mr. Fuster challenged the reliability of the children’s reports at trial. However, although the issue was raised and argued, the arguments were based on nothing more than trial counsel’s bald assertions and the (then) unsupportable clinical observations of Mr. Fuster’s one expert witness, psychiatrist Dr. Lee Coleman. The state, as a central part of its case-in-chief, presented evidence through eight different experts that the children’s reports of abuse demanded belief, and that they, as experts, could discern that the children were telling the truth. Because the research findings Mr. Fuster now asks this Court to consider did not exist at the time of trial, Mr. Fuster had no basis upon which to negate these opinions or to support the countervailing opinion of his own expert.

Thus, the issue Mr. Fuster sought to raise in his Rule 3.850 petition -- whether new scientific evidence shows that the types of interviews to which these children were subjected cause children (unwittingly) to fabricate allegations of abuse -- was not litigated at trial.

The second basis upon which the court denied relief was misbegotten at best. While arguing to the court that this newly discovered research would fundamentally undermine the reliability of the central evidence presented by the state at Mr. Fuster’s trial, Mr. Fuster pointed the post-conviction court to the recent decision by the New Jersey Supreme Court in State v. Michaels, supra. Mr. Fuster did not suggest that the Florida court was in any way obligated to apply the law as found by the Michaels court to Mr. Fuster’s case. Rather, Mr. Fuster was trying to show the Florida state court how a sister jurisdiction had received this social science research and had implemented procedures to deal with the retrial of a defendant who had made claims similar to Mr. Fuster that children’s testimony had been permanently tainted by suggestive interviewing.

The Florida court, unfortunately, denied relief on the basis that evolutionary changes in the law only provide a basis for post-conviction relief when the changes emanate from the Florida or United States Supreme Court. The Florida court failed to consider how this newly discovered evidence cast into serious question the constitutionality of Mr. Fuster’s conviction and entirely undermined the decision of the jury.

Thus, this issue is ripe for determination in this Court and, inasmuch as the state court made no findings of fact with regard to this issue, this Court should review the matter de novo.

2. The Newly Discovered Evidence Mr. Fuster Seeks to Raise Involves Both His Constitutional Rights to Due Process and to Confrontation, and Does not Go Merely to Guilt or Innocence.

The Eleventh Circuit has long recognized that newly discovered evidence must be considered in federal habeas proceedings: 1) where that evidence bears on the constitutionality of the petitioner’s conviction; or 2) if it demonstrates that the petitioner was deprived of fundamental fairness at trial. See, e.g., Swindle v. Davis, 846 F.2d. 706, 707 (11th Cir. 1988); Smith v. Wainwright, 741 F.2d 1248, 1257, 1258 (11th Cir. 1984). In Mr. Fuster’s case, the newly discovered evidence -- uncontroverted research that children’s memories will be irreparably tainted by suggestive interviewing such as these children underwent prior to reporting abuse -- demonstrates the unreliability of almost all of the evidence introduced by the state at trial.

The United States Supreme Court has long acknowledged that "reliability [is] the linchpin in determining the admissibility" of evidence; the Due Process Clause of the Fourteenth Amendment requires such a standard of fairness. Manson v. Braithwaite 432 U.S. 98, 114 (1971). "One of the basic underpinnings of a fair trial is the concept that testimony or evidence which is unreliable or untrustworthy must be rejected." LaFrance v. Bohlinger, 365 F.Supp. 198, 205 (D.Mass. 1973), aff’d, 499 F.2d (1st Cir.), cert. denied sub nom., Meachum v. LaFrance 419 U.S. 1080 (1979). See also, Brown v. Mississippi, 297 U.S. 278 (1936); Harris v. New York, 401 U.S. 222 (1971), Rock v. Arkansas, 483 U.S. 44 (1987); United States v. Wade, 388 U.S. 218 (1967); Jackson v. Denno, 378 U.S. 368 (1964); Simmons v. United States, 390 U.S. 377 (1968).

Mr. Fuster’s request to exclude the testimony of the child complainants rests on pillars of federal constitutional jurisprudence established over the course of decades, which stand for the general necessity of excluding testimony of a witness deemed to be unreliable or untrustworthy. Evidence is routinely excluded on due process grounds when it is obtained through means that undermines the reliability of that evidence. This includes hypnotizing witnesses, coercing confessions, using suggestive photo and line-up identifications. See, e.g., Rock v. Arkansas, 483 U.S. 44 (1987); United States v. Wade, 388 U.S. 218 (1967); Jackson v. Denno, 378 U.S. 368 (1964); Simmons v. United States, 390 U.S. 377 (1968).

The exclusion of evidence in these types of cases is not done merely for prophylactic reasons as it is in other cases of police overreaching; the evidence is excluded because courts have acknowledged that there is never any way to insure that a memory, once tainted, can ever be returned to its pristine state. Thus, the submission to a jury of testimony given by someone whose memory has been tainted presents a profound danger to a defendant’s due process rights -- a witness whose memory has been altered believes that false memory to be true. Hence, the witness will appear entirely credible because he believes himself to be telling the truth. The use of such a person’s testimony implicates not only the defendant’s due process rights but his or her confrontation rights as well.

3. It Would Work A Fundamental Unfairness On Mr. Fuster Were This Court to Decline to Consider this Issue.

As the subsequent subsections of Point I will demonstrate, the reliability of the child complainants’ reports of abuse was destroyed when the state subjected these children to suggestive questioning, tainting their memories permanently. At the time of trial, however, the research that demonstrates the contaminating effect of such interview strategies did not exist. Thus, there was no basis for challenging the reliability of the abuse reports, other than by the simple, ineffective mechanism that Mr. Fuster tried -- having a psychologist provide his unsupported clinical opinions as to the possible effects of the interviewing and let the jury watch the tapes and see for themselves.

The results of the research presented below, however, are often counter-intuitive. (Certainly, the results run counter to the opinions of the prosecution experts who claimed to be able to distinguish between accurate and fabricated reports given by children.) Thus, in a battle of experts where neither side had a scientific, rather than an anecdotal, basis for their opinions, Mr. Fuster was bound to lose. Yet there is little as unfair in our system of jurisprudence as allowing a conviction to rest upon wholly unreliable evidence.

Thus, even if this Court does not find that the newly discovered evidence directly implicates a specific constitutional right, this Court should nonetheless find that an issue of the fundamental fairness of Mr. Fuster’s conviction is at stake.

C. Uncontroverted Research Conducted In the Decade Since Mr. Fuster’s Trial Has Demonstrated That Children Are Highly Susceptible To Suggestive Interviewing Techniques, Such As Those Used To Elicit Reports Of Sexual Abuse From The Children Who Testified Against Mr. Fuster.

Research conducted since Mr. Fuster’s trial in 1985 has determined that young children are highly susceptible to suggestion and will often adopt language, opinions, emotions, and factual details suggested to them by adults during the course of interviews. This new research also demonstrates with startling clarity the degree to which the false reports given by these children are nonetheless highly credible to child care professionals -- psychologists, social workers, lawyers and others who deal with children routinely in their work.

In the late 1980’s, the nature of research in the area of children’s memory and suggestibility underwent a major paradigmatic shift. The suggestibility studies conducted since that time, unlike the earlier research in the area, are particularly relevant to allegations of child sexual abuse such as those made in Mr. Fuster’s case for four reasons. First, these studies focused on children in the same age range as the child witnesses in Mr. Fuster’s case. Second, these studies were designed to examine children’s suggestibility about events that were personally salient, that involved bodily touching, and/or that involved insinuations of wrongdoing by an adult. Third, these studies examine the influence of many of the interviewing techniques that were used in the interviews with the Fuster child witnesses. Fourth, the conclusions drawn from these studies, which are generally accepted among the community of experts in the field of children’s memory and susceptibility to suggestion, run directly counter to the opinions offered by prosecution witnesses in Mr. Fuster’s case, that were based upon their subjective clinical observations.

This body of research demonstrates that children are highly susceptible to even subtle pressures in interviews. The accuracy (and hence the reliability) of children’s answers is diminished, inter alia, by:

interviewer bias towards one hypothesis

use of specific, rather than open-ended, questions

repetition of questions within and across interviews

an identifiable emotional tone to the interview

stereotype induction (i.e. setting a child up to believe that someone is good or bad)

use of anatomically detailed dolls.

use of peer pressure

inducing children to pretend or fantasize about events.

Each of these techniques was used by the state in conducting interviews of the child witnesses in Mr. Fuster’s case. Research findings with regard to each of these techniques and examples from the actual interviews of the children in Mr. Fuster’s case given below.

1. Interviewer Bias

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. Thus, interviewer bias is probably the single most significant factor that promotes children to generate false reports. One of the hallmarks of "interviewer bias" is the single-minded attempt to gather only confirmatory evidence and to avoid all avenues that may produce negative or inconsistent evidence. While gathering evidence to support his/her hypothesis, a biased interviewer frequently ignores or fails to pursue any evidence that could disprove or undermine that hypothesis.

The biased interviewer does not ask questions that might provide alternate explanations for the allegations (e.g., "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/her hypothesis (e.g., "Who else beside 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/her hypothesis (e.g., "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 children provide inconsistent or bizarre evidence, or when a child denies or recants an allegation of abuse, it is either ignored by the biased interviewer or else it is interpreted within the framework of the biased interviewer’s initial hypothesis.

The children were questioned about this event several times on the same day by different interviewers. The interviewers were either 1) "accusatory" in tone (suggesting that the janitor had been inappropriately playing with the toys instead of working); 2) "exculpatory" in tone (suggesting that the janitor was just cleaning the toys and not playing); or 3) "neutral" and non-suggestive in tone. 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. They were then asked some questions about the event. Next, each child was interrogated by a second interviewer who either reinforced or contradicted the first interviewer’s tone. Finally, 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. By the end of the first interview, 75% of these children’s remarks were consistent with the interviewer’s point of view , and 90% answered interpretive questions (e.g., Was he doing his job or just being bad?) in agreement with the interviewer’s point of view, as opposed to what actually happened. When the second interviewer contradicted the first interviewer, the majority of children then fit their stories to the suggestions of the second interviewer. If the interviewers’ interpretations were consistent across two interviews, though inconsistent with what the child had observed, the suggestions planted in the first session were repeated by the children in the second session. When questioned by their parents, the children’s answers were consistent with the interviewers’ biases. Goodman & Clarke-Stewart, 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.

This study and others like it provide important evidence that interviewers’ beliefs about an event can influence the accuracy of children’s answers. See, e.g., Ceci & Bruck, 1995, The effects of interviewer bias on the accuracy of children’s reports. In Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony (pp. 89-91)Washington, D.C., American Psychological Association. The data highlight the dangers of having only one hypothesis about an event, particularly an event that is ambiguous in nature.

Interviewer bias can influence the entire architecture of an interview. Typically, in addition to the general slant of the interview towards one hypothesis, the biased interviewer will employ any tactics (repeated questions, leading questions, threats and bribes, setting an emotional tone to the interview) necessary in the mind of the interviewer to elicit a report consistent with that interviewer’s bias. The interviews conducted by Drs. Joseph and Laurie Braga during the investigations of Mr. Fuster present classic examples of such biased interviewing.

b. Examples of Interviewer Bias in Mr. Fuster’s Case.

During the Bragas first interview with JPC, the doctors talk to JPC’s parents.. They have just met the child. Nonetheless, Laurie Braga tells the parents, "J’s responsiveness to me is a definite indication of deep seated (inaudible). You find that children have trauma; in other words, stuff that is inside affects their head.." (9/12/85, 22) Joseph Braga follows this up by saying, "He’s savory and extremely bright and he knows something went on." Id.

In their first interview with BT, the Bragas repeatedly question the child about a secret game she played with the Fusters, a game BT has never mentioned. When the Bragas ask BT to tell them what the secret game is, BT answers, "I think we played grocery store." (9/13/85, 54) Joseph Braga, evidencing clear bias, responds, "Grocery store. That is not the secret game. . ." (Id. 54-55) The Bragas continue to ask BT what the secret game is, using anatomical dolls and pretending to be Mr. Fuster asking the question. Then, getting no response from BT that fits their preconceived belief of what happened at the Fuster house, Joseph Braga introduces an idea never mentioned previously by BT. "Do you remember, though, do you remember the baby-sitter sometimes would play games without clothes on? Would she take her clothes off and play some of the games we play without clothes?" (Id. 55) Despite BT’s continued insistence that she knows of no secret game, this theme of questioning was continued through the course of the interview, with both the Bragas and BT’s father alternately insisting that secret games were played and that BT is not being cooperative; suggesting that BT knows about a secret game called the "pee pee" game; and that BT is withholding information because, perhaps like the other children, she is afraid to tell because Frank and Iliana had told the children not to tell. See, e.g. 9/13/85, 62, 63, 66, 68, 73, 74-75, 78, 99 (L. Braga by this time, tells BT that she does not have to talk about what happened to her; she can just tell about what happened to the other children. Again, the implicit bias that something happened to the other children. Id, 99) BT never makes any allegation of abuse during this interview. Laurie Braga concludes the interview, telling BT’s parents that BT is in denial, (Id., 110), another clear showing of bias.

When questioning AP, Laurie Braga again repeatedly asks her about games she played at the Fuster house. Braga asks if they played a game where they all fell down. AP answers that she didn’t play that. Laurie Braga, evidencing her belief that AP did and is withholding information, responds with disbelief. "You don’t play that? Did somebody tell you not to tell? Somebody say, [AP], don’t tell anybody?" (9/19/85, 112) Then later, Laurie Braga asks, "Do you know why I keep asking questions about the games? . . . Would you like to know why? Because I wonder if maybe you played some games and maybe Iliana said, don’t tell anybody about these games. It’s our secret." (Id., 125) Yet later, AP mentions that Iliana played with the girls on the bed. Though this could have a perfectly innocent explanation since these young children were being left for full days in Iliana’s care, Braga refuses to accept one. AP tells Braga, for example, that Iliana was reading books with these girls on the bed. (id., 144) Braga responds, "Is that what hurt the babies, playing with, reading books?" When AP responds that she doesn’t know, Braga answers, "I think you do know. You can tell me. It’s okay. I won’t be upset. I won’t be made with you." (Id., 145) Moments later, Braga asks AP, "When you were there, did you see anybody take their clothes off? [AP] responds and Laurie asks, "Never? Are you telling me the truth?" (Id., 146) AP says she wants to get out of there and return to her mother. (Id.) AP’s mother enters the room and tells AP she has a surprise for her in the car if only she will tell. [This is a good example of bribery. See infra] AP indicates interest in the surprise and her mother, also evidencing clear bias, again asks, "What did she do to the children?" (Id., 151)

An interesting result of bias is seen in the interview with JPC. Laurie Braga asks if BT would kiss Frank’s penis. JPC answers, "No, they would bite each others penis." Neither Braga challenges him in any fashion about this answer. (9/12/85, 47) An unbiased interviewer, however, would be somewhat skeptical about this conduct, as it would involve a fair likelihood of pain and physical injury, were it true. Thus, the lack of challenge is noteworthy. The lack of challenge is also noteworthy because BT is a girl and JPC has just indicated that Frank and BT bite "each other’s" penises. Again, an unbiased interviewer would follow this statement up with some sort of gentle challenge, such as, "Are you sure they were biting each other?" "Did you see Frank bite BT’s penis?" Or even, "Are you sure BT had a penis?"

In her interview with JL, Laurie Braga tells the four-year-old that. "Some of the children said that [the Fusters] were acting like monsters and they wore these masks and they scared them." JL asks if this is true and Braga responds, "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." (9/19/85, 62) Note that this is also a classic example of the use of peer pressure. See infra.

In TL’s first interview, Laurie Braga tells the child, "I think that Iliana and Frank did some things that some of the children didn’t like. . .." (9/12/85, 177)

Of course, the clearest evidence of bias relates to the interviews by the Bragas and Dr. Simon Miranda of NG. Laurie Braga testified at trial, for example, 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) As a result of being biased to believe that NG must be lying, the Bragas applied highly coercive techniques to get NG to disclose. Joseph Braga, for example, tells this six-year-old child, ". . .I know you are not telling me the truth because you said 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 interrupts to say he does not remember this happening. Joseph Braga continues, "You said you don’t remember anybody putting their penis in your mouth: Do you think is was your father?" NG continues to be confused, saying he does not remember this happening. Laurie Braga then tells him to "suppose it did, okay? Because the doctor said it did, even though you don’t remember who did you think might have done that to you. Do you have any idea, even if you don’t remember?" (9/20/85, 450-452) The interview proceeds apace in this same manner with the Bragas continuing to confuse NG and to ask him what he thinks would have happened when Mr. Fuster put his penis in NG’s mouth. (Id., 452 et seq.)

Bias is evident throughout the Bragas’ interviews with the children. Mr. Fuster invites the Court to read through any one of the interview transcripts and note the tone of certainty with which the Bragas pursue reports of abuse from the children.

2. Use of specific, forced choice, and leading questions

a. Research Findings.

Interviewers (particularly those with a bias) may not ask children "open-ended" questions such as "What happened?" but may resort instead to very specific or leading questions. However, important and accurate details are most likely to be provided in free recall. Errors increase dramatically when children are asked more specific questions. For example, children were interviewed a few days after, and then again six months after, they had visited a hospital emergency room to be treated for traumatic injury. The children were first asked free recall questions. ("Tell me what happened.") Then the children were asked more specific questions (e.g., "Where did you hurt yourself?" "Did you hurt your knee?") As had been found in previous studies, important details were most likely to be provided in free recall and these were accurately reported. Errors increased dramatically, however, at both the interviews, when children were asked more specific questions. Peterson, C. and Bell, M. (In press). Children’s memory for traumatic injury. Child Development.

Forced choice questions ("Was it the man or the woman?") also compromise the reliability of children’s reports, in part because children commonly do not answer "I don’t know" even when a question is nonsensical. Walker, Lunning and Eilts (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. Young children willingly provide answers to yes/no and forced choice questions, even when they do not know the answer, because they want to be cooperative. In order to comply with a respected adult, children sometimes attempt to make their answers consistent with what they perceive as the intent of the questioner rather than consistent with their knowledge of the event. Ceci, S. and Bruck, M., 1993. The suggestibility of the child witness: A historical review and synthesis. Psychological Bulletin, 113, 403-439.

2. Examples from the Braga Interviews

Examples of the use of these types of questions can be found on virtually every page of the Braga interviews. See, for example, the interview described, infra, in connection with the Bragas’ use of anatomically detailed dolls.

c. Repetition of Questions Within and Across Interviews

A number of studies have shown that asking children the same question within an interview often results in the child changing his or her original answer. Children often do this, reasoning that the question is being asked a second time either because the first answer given was wrong or that the interviewer must not have liked the first answer, regardless of its accuracy. Siegal, M., Waters,L., & Dinwiddy, L.(1988). Misleading Children: Causal Attributions for Inconsistency Under Repeated Questioning. Journal of Experimental Child Psychology, 45, 438-456.

Repeating questions in subsequent interviews has similar effects. However, because original memory traces weaken over time, it becomes easier for misleading information to replace the memory of the original event, especially with young children. Thus, if a child is asked to confirm information suggested by the interviewers, or given tentatively by the child in a previous interview, the child is likely to do so, even if that information is inaccurate or false.

Studies also show that, with repeated questions, children use fewer qualifiers, like "it might have been ..." and consequently sound increasingly confident about their statements. (See, e.g., Poole, D., & White, L. (1991). Effects of Question Repetition on the Eyewitness Testimony of Children and Adults. Developmental Psychology, 27, 975-986.)

Each of the children who testified at Mr. Fuster’s trial had been interviewed formally on multiple occasions. (No one knows how many times these children were questioned informally by parents and others not associated with the prosecution.) Only those interviews conducted by the Bragas were recorded on videotape.

2. Examples from the Braga Interviews

The following exchange provides an example of how repeated questions were used by the Bragas to confuse the children. This interview with JL came after approximately 40 transcript pages during which JL had never made any allegations of abuse or other untoward behavior. Laurie Braga had first spent a good deal of time engaging in stereotype induction with JL and talking about good touch/bad touch.

JL . . . 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: (Nodding in the affirmative.)

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. I wonder what they would do, you know, like if you go duck, duck, goose and you would tag somebody, is that what you call it? You touch somebody?

JL: No.

. . .

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

JL: (Nodding in the negative.)

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.

(9/19/85, 66-68)

d. The Emotional Tone of the Interview

1. Research Findings

Research shows that children are quick to pick up on the emotional tone of an interview. In one study, children played with an unfamiliar research assistant for five minutes while seated across a table from him. Four years later, researchers asked these children to recall the original experience. 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 if any of the children had any memory of the original event, five of the fifteen 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 had their picture taken in the bathroom, and one child agreed that he had been given a bath. 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. Reported in Ceci & Bruck (1995), supra at 140-141.

There are many other studies that show that reinforcing children for certain behaviors also increases the frequency of that behavior. If a child is told, "You are a really good boy" after he gives certain types of responses, he is likely to increase that type of response, often at the expense of other responses for which he receives no reinforcement. See, e.g., Ceci and Bruck (1995), supra at 143-144.

Likewise, using bribes, threats, or "merely" telling a child that the interview will not, or cannot, end until the child provides information desired by the investigator is a highly successful way of eliciting such information, whether or not it is true. The Bragas often elicited information in such a way and then used that information in subsequent interviews with the same child or with others, telling them that this is what had been said previously, and now they wanted it confirmed. ) Ceci & Bruck (1995), supra at 145-146.

2. Examples from the Bragas’ Interviews

The examples of to be found in the Braga interviews of setting the emotional tone are legion. They continually repeated to the children that it was okay to tell; suggested to the children that the Fusters had threatened them "not to tell" or told them to keep their activities a "secret"; said that the children would feel better if they told; talked about how proud the children’s parents would be if the child "told what happened;." and suggested to the children that the Bragas had scared them.

Typical is Laurie Bragas exchange with three-year-old SM. SM had made no disclosures of abuse. Braga first tells SM that grown-ups aren’t supposed to touch children in private places. (1/15/85, 187) Shortly thereafter, she asks, "Did somebody tell you not to tell? Mommy and Daddy won’t be mad. You won’t get in trouble." (Id., 189) and, "Mommy and Daddy will be proud of you." (Id., 190) SM mentions monsters and Braga asks, "Did monsters say something bad would happen if you tell?" (Id., 192) Then, "[i]t would be so good if you could tell. If you keep it secret, it could give you tummy ache. Other kids come and tell [use of peer pressure, see infra]. You’ll feel better." (Id., 193) Braga later asks SM if SM saw Mr. Fuster put his penis in someone’s mouth. SM answers, "Whose mouth?" Braga responds, "You don’t know or you’re scared to tell?" (Id., 206)

See, also, for example, Laurie Braga’s second interview with SM. SM has made reported no occurrences of abuse when Braga launches into this line of remarks:

Did somebody tell you not to tell? Who told you not to tell? . . .Yes, you can tell. Do you know what? You are not going to get into any trouble and Mommy is not going to be mad at you and Daddy is not going to be mad. If somebody said, "Don’t tell the secret because you will get in trouble," they weren’t telling you the truth because you are not going to get into any trouble. . . .You know Mommy won’t be mad and Daddy won’t be mad. They will be so proud of you, if they know what happened . . .

(9/21/85, 188-189)

In an interview with TL, Laurie Braga asks the child to tell her "more stuff about what happened at Frank and Iliana’s." (9/12/85, 187) When TL responds no, Braga asks if it makes TL "sad to talk about it," asks if it "scares" her, and then asks, "Did somebody tell you not to talk ... Did they maybe tell you that you might get into trouble if you told? 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 a 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)

During the interview with AP, with AP having given no accounts of abuse, Laurie Braga tells the child, "I know that maybe Iliana told you that, don’t tell anybody because if you tell, you will be in a lot of trouble and somebody will hurt you. Okay? . . . Yes, and I just want you to know that nobody is going to hurt you and if you tell, mommie and daddy will be so proud because sometimes, if children keep secrets way inside here, it hurts because then they can’t tell anybody and it makes them feel bad." This soliloquy continues for another page and a half on the same theme. (9/19/85, 137)

The Bragas used comments like these in every interview.

E. Stereotype Induction

1. Research Findings

A second group of preschoolers were told in the weeks prior to Sam’s visit about how clumsy Sam Stone was. Sam’s visit still lasted just two minutes and again he did not touch the teddy bear or the book. This set of children was given four interviews over the next ten week period during which two erroneous suggestions were made, having to do with ripping a book and soiling a teddy bear. Following these interviews, a new interviewer asked the children if anything happened to a book or to a teddy bear when Sam visited. Of this group, 72% of the youngest children claimed that Sam had done one or both of these misdeeds. 21% of the younger and 11% of the older children continued to insist they saw him do misdeeds even after being challenged. Leichtman, M.D., & Ceci, S.J., (1995). The effects of stereotypes and suggestions on Preschoolers’ Reports. Developmental Psychology, 31, 568-578.

Ceci and Bruck(1995) report that

What was most surprising about these children’s reports [in the Sam Stone study] was the number of false perceptual details, as well as nonverbal gestures, that they provided to embellish their stories of the nonevents. For example, children used their hands to show how Sam had purportedly thrown the teddy bear up in the air; some children reported seeing Sam in the playground, on his way to the store to buy chocolate ice cream, or in the bathroom soaking the teddy bear in water before smearing it with a crayon. Some children claimed there were more than one Sam Stone. And one child provided every parent’s favorite detail: This child claimed that Sam had come to his house to trash his room.

Id. at 131-132.

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 you 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 than 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 their legs), how he touched them (e.g., he kissed some on their lips), and how he took their clothes off ("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 embellishments continued. Moreover, the children in the incriminating condition made gave spontaneous negative reports about Dale and were more likely to agree that Dale had intended to be mean, to fool around, to be bad, and not to do his job. Lepore, S.J. & Sesco, B. (1994). Distorting children’s reports and interpretations of events through suggestion. Applied Psychology, 79, 108-120.

Thus, stereotype induction can have a powerful effect on a child’s memory of past events. It can cause children to view a person in a negative light and can induce memories of bad acts that never occurred.

2. Examples from the Fuster Interview

It is clear from the interviews of JL that her parents set up a strong negative stereotype induction before she even got to the Bragas. This is played up by Laurie Braga:

JL: They are strangers.

Braga: Who?

JL: Iliana and Frank.

Braga: They are strangers?

JL: And they went in jail.

Braga: Yes I don’t think Iliana went in jail. Frank went in jail.

JL: Why?

Braga: Because some people felt that maybe he hurt some children and that’s why we are talking to the children, to see if may any of the children could tell us some of the things that might have happened, so we could understand.

(9/19/85, 29) Note that JL then picks up on the fact that Iliana is not in jail and points out to Braga, "She gave me a doughnut without any poison on it." (Id., 29-30)

Note that this type of stereotype induction is a constant in most of the interviews. SM, for example, makes a reference during his second interview to monsters, a reference that is not connected to Braga’s monologue about the Fusters. Braga, however, immediately assumes that SM is talking about the Fusters when he refers to monsters and incorporates this theme into the interview. (9/21/85, 191)

F. Use of Anatomically Detailed Dolls.

1. Research Findings.

Anatomically detailed dolls were used over and over again with the child complainants in this case -- by staff members at the Rape Treatment Center, by the Bragas, by the children’s therapists. The rationale given by the experts at trial for the use of these dolls was that they allowed the children to re-enact events of abuse without having to talk about the abuse, thereby overcoming both embarrassment and language barriers for children too young to verbalize what had happened. The prosecution experts also testified that an abused child will play with anatomically detailed dolls differently from the way a non-abused child will or that a child will exhibit "avoidance" behaviors in the presence of such dolls because they remind the child of the abuse. The state’s experts testified more specifically that the child complainants they met with exhibited behaviors with the dolls that were fully consistent with children who had been sexually abused and that the expert believed, in fact, that the child had been sexually abused. (At least one expert testified that this was so even though the child in question never made a verbal disclosure of abuse.)

However, studies show that the play patterns formerly thought to be characteristic of abused children, such as playing with the dolls in a suggestive or sexually explicit manner, or showing avoidance when presented with the dolls, also occur in samples of non-abused children. See, e.g., Bruck, M, Ceci, S.J., Francoeur, E., & Renick, A. (1995). Anatomically Detailed Dolls do Not Facilitate Preschoolers’ Reports of a Pediatric Examination Involving Genital Touching. Journal of Experimental Psychology: Applied, 1, 95-109. In this study, three year old children visited their pediatrician for their annual check-up. 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 the genital exam correctly answered no. (I.e., 50% of these children falsely reported genital touching.)

When the children were asked to "show on the doll" how the doctor had touched their buttocks or genitals, accuracy decreased. Now only 25% of the children who had received genital examinations correctly showed how the pediatrician had touched their genitals and buttocks. A significant number of the female subjects inserted their fingers into the anal or vaginal cavities of the dolls; the pediatrician had never done this. 55% of the children who did not receive genital examinations falsely showed either genital or anal touching when given the dolls. Similar results have been obtained in a study of 4 year old children, as well. 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 1995.

The interview procedures in this study also elicited a number of other behaviors that might be misinterpreted as sexual. When 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 had examined their genitals with the stethoscope and some inserted the spoon into the genital or anal openings or hit the doll’s genitals. A number of other children showed highly aggressive behaviors with the dolls, hitting them with the props provided.

Importantly, data also 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 anatomically correct dolls, a non-abused 3-year old reported to her father that her pediatrician had strangled her with a rope, inserted a stick into her vagina and hammered an earscope into her anus. Id.

In two recent studies, highly trained professionals could not tell the difference (accurately at least) between abused and non-abused children on the basis of a doll-centered evaluation conducted by an experienced child psychiatrist. Realmuto, G., Jensen, J., & Wescoe, S. (1990). Specificity and sensitivity of sexually anatomically correct dolls in substantiating abuse: A pilot study. Journal of the American Academy of Child and Adolescent Psychiatry, 29, 743-746. Realmuto, G., and Wescoe, S. (1992). Agreement among professionals about a child’s sexual abuse status: Interviews with sexually anatomically correct dolls as indicators of abuse. Child Abuse & Neglect, 16, 719-725.

Yet one prosecution expert after another testified confidently that the play engaged in by the children who had attended the Fuster baby-sitting service was clearly indicative of the children having been sexually abused. (9/4/85, 280; 9/4/85, 257-58; 144-45, 152, 168..

2. Examples from the Fuster Interviews

Again, the interviews have one example of the dolls being introduced after another. A particularly interesting episode occurs during the first interview with SM and only can be seen by watching the tape, since it is not reflected in the written transcript. Laurie Braga shows SM the anatomically detailed dolls and asks him which one is Iliana. What the transcript does not reveal is that Braga puts the dolls on the floor in front of SM, and pulls their dresses up over the dolls’ faces so that he is staring at the dolls’ genitalia. It is in this context that Braga asks SM to look at the dolls and decide which one is Iliana. (9/21/85, 187) Braga then begins "educating" SM with the dolls, telling him what constitutes a private part, teaching him the word vagina and penis. (Id., 187-88)

Braga reintroduces the dolls to SM, with SM having given no impetus for her to do so. Virtually out of the blue, Braga pulls them out and asks SM, "Did Frank put his penis here or here or here on you?" (Note this is also a good example of a forced choice question.) After asking the question several times, Braga narrows the question and asks, "Did he put it there in your bottom?" showing SM the dolls. (This is a leading question.) SM nods yes. Braga asks if SM’s clothes were on or off, a forced choice question. SM says they were on. At this point, Braga says, demonstrating with the dolls, "Okay, your clothes were on but you said he put his penis here. How could he do that if your clothes were on? [This is a reasonable question for an unbiased interviewer to have asked, gently challenging a statement that seems to be inconsistent. However, Braga continues without waiting for SM’s reply and still demonstrating with the dolls] Maybe he pulled your pants down a little?" Three-year-old SM assents. (9/21/85, 198)

The dolls were an integral factor in all of the Braga interviews and with most of the therapists the children saw. All of them used the dolls. The Bragas routinely named the dolls, undressed them, pointed out their body parts, and engaged in fantasy play with them.

H. Use of Peer Pressure

1. Research Findings

Research on the effects of peer pressure indicate that children will provide inaccurate responses to questions if they believe that their peers have provided the same, or similar, information. For example, in a study conducted in a school in which a classroom of children witnessed someone knock a cake off a piano, the entire class was later questioned about the event, including seven members of the class who had not been present when the event occurred. Six of these seven children nevertheless indicated that they had been present and provided "information" about the event. Pettit, F., Fegan, M.. & Howie, P. (1990, September). Interviewer’s effects on children’s testimony. Paper presented at the International Congress on Child Abuse and Neglect, Hamburg, Germany.

Likewise, 113 children were interviewed 6 to 16 weeks following a sniper attack at an elementary school during which scores of children were pinned underneath gunfire on the playground. Some of these children were not present at the school when the sniper attack occurred, yet gave "eyewitness" accounts nevertheless. 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.

Thus, the pressure to go along with what one believes one’s peers has experienced can sometimes promote false reports. It is not known whether the children making these false reports are conscious or them being fabrications or if, after hearing about an incident over time, the children come to believe they have participated in the event themselves.

2. Examples from the Fuster Interviews

Perhaps the most striking use of peer pressure in the Braga interviews was the following that took place with JL:

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 they 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.

Another rather shocking instance of peer pressure occurred when the Bragas decided it might be useful to bring JPC, who had been questioned previously and had made disclosures, into their first interview with BT. As BT denied any knowledge of wrongdoing, JPC called BT a liar and insisted that she was failing to tell the Bragas what had gone on in the Fuster house. (9/18/85, 5 et seq.)

I. Inducing Children to Pretend or Fantasize

1. Research Findings

In order to get the children to report abuse in this case, the Bragas often asked the children to think about events and then to "pretend" using anatomically detailed dolls, which the Bragas identified as being Frank, Iliana, the child being interviewed, and often one or more of the other children. Substantial research, however, shows that young children often have difficulty distinguishing between memories of actual events and memories of imagined events. See, e.g., 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; and Welch-Ross, M. (1995). Developmental changes in preschoolers’ ability to distinguish memories of performed, pretended, and imagined actions. Cognitive Developments, 10, 421-441. This is demonstrated by the following two studies.

In one, preschool children were questioned about imagined ghosts, monsters and witches. At first, the children showed a firm grasp of the distinction between fantasy and reality, with most stating that ghosts, monsters and witches were not real. However, when the children were told to imagine that a pretend character was sitting in a box, 33% of the 4-year-olds in this condition would not let the experimenter leave the room; they began to believe that what they pretended was real. Upon the experimenter’s return, almost half of the children said they wondered if perhaps there was an imaginary creature in the box after all. These results suggest that when children are asked to "pretend" about events, they become confused about what is real and what is pretend. Harris, P., Brown, E., Marriott, C. Whittall, S., & Harmer, S. (1991) Monsters, ghosts and witches: Testing the limits of the fantasy-reality distinction in young children. British Journal of Developmental Psychology, 9, 105-123.

In another set of studies, (hereafter "the Mousetrap study") young children were asked to think repeatedly about some event, creating mental images each time they did so. The same interviewer asked each child about four real events (as confirmed by the child’s parents) and four false events (e.g., getting one’s hand caught in a mousetrap) once a week for 11 consecutive weeks. With each session, children increasingly assented to false events. The children’s accounts of these false events were often rich with detail, the children’s affect when describing the events appropriate to the nature of the event being "recalled."

After the 12th week, a new interviewer explained to the children that the previous interviewer had told the children many things had happened to them that had really not happened. Most of the children could not be de-programmed. They continued to insist that these false events that they had now assented to actually happened to them. Researchers believe that the reason the children could not be de-programmed is that these false events had now become part of the child’s memory system -- the children truly believed these events had occurred by this point. Ceci, Crotteau-Huffman, Smith & Loftus, Repeatedly Thinking About Non-events. 1994 Consciousness & Cognition 3, 388-407.

Thus, asking a child to imagine or pretend as a mechanism for getting the child to reveal abuse, particularly when the child is asked to do this repeatedly, can cause children to generate false reports which the child nevertheless comes to believe as true.

2. Examples from the Fuster Interviews

The children being interviewed by the Bragas were told over and over again to fantasize and pretend, often in conjunction with the anatomically detailed dolls. The dolls were introduced to JDC and he was told, "Show me with the dolls, pretend. No, pretend this is Jonathan. Show me what Iliana did?" (9/12/85, 33). JPC, his older brother, is given the dolls and suggests pretending with them and the Bragas readily assent. (Id., 41)

During TL’s interview, Laurie Braga suggests that they pretend again. Using the anatomical dolls, Braga names one Frank and asks what Frank would do. TL indicates she does not want to. Braga says, "You don’t want to do it anymore? Okay you don’t have to. How about if we pretend. Let’s forget about [TL]. Let’s pretend this is Iliana and this is Frank. Show me what Iliana and Frank would do." (9/12/85, 178)

Likewise, with AP, Laurie Braga sets up a "game" for the child. "Want to play a game with the dolls? This is a doll. This a lady doll. Let’s pretend this is Iliana, okay? This is a man doll. We will pretend his name is Frank. So this is Frank and this is Iliana. This is a little girl doll. We will pretend her name is [AP] and this is a little boy doll and his name is [MP], okay? So we can pretend and let’s play a game. What game should we play? What game would you like to play with the dolls?" (9/19/85, 101) A short while thereafter, Joseph Braga picks up the dolls and starts playing ring-around-the-rosy with them (the game he thinks the Fusters had played in the nude with the children.) (Id., 105) When AP expresses no interest in the game or the dolls, the two Bragas begin playing ring-around-the-rosy with the dolls and then the two begin undressing the dolls. (Id, 106)

These fantasy/pretend games were played with each of the children. It was an integral part of the Bragas interviewing technique.

3. Newly Discovered Evidence Also Shows that, Contrary to the Assertions Made by Prosecution Experts That They Could Tell When Children Were Providing False or True Reports, Even Highly Trained Professionals Are Generally Unable to Do So When Children’s Memories Have been Tainted By Suggestive Questioning Because the Children Are Not Consciously Lying Or Reciting Information By Rote.

Prosecution experts at trial had a field day testifying that they could unquestionably distinguish between falsity and true reports of abuse. These experts listed the factors they would consider; among them, rigid consistency of the reports, the child’s affect when making the report, the nature of the report in combination with the child’s use of anatomically detailed dolls, the lack of detail in the reports.

Studies have been conducted, however, to test the credibility (as opposed to reliability) of children who are giving false reports as a result of memory taint. In one such large scale study, approximately 1,500 judges, researchers and mental health professionals who work with children viewed videotapes of children making reports about events, both real and imagined, from the Sam Stone study described above. The professionals then rated the accuracy and credibility of each child. The professionals scored very poorly on these tests, tending to find the most credible those very children who had given the most inaccurate or false reports. This test was repeated, with psychologists who specialize in interviewing children being shown videotapes of the children in the Mousetrap study, described above. The test yielded the same results. See, Ceci and Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony, American Psychological Association, Washington, D.C., 1996, at 281-282. See also, Horner, T.M., Guyer, M.J., & Kalter, N.M. (1993b.) Clinical expertise and the assessment of child sexual abuse. Journal of the American Academy of Child and Adolescent Psychiatry, 32, 925-931. Yet, like the state experts in Mr. Fuster’s case, the professionals were also highly confident in their judgments.

The reason the professionals in the study probably fared so badly on this challenge, yet nonetheless had such confidence in their ability to distinguish accurate from fabricated accounts, is that the children’s accounts of nonevents, though false, were nonetheless almost certainly believed by the child at this point. Thus, the children spoke sincerely and provided accounts laden with emotion and perceptual details. In other words, these completely false reports were also highly credible. (As the law has long recognized in other areas, credible evidence does not always equate with reliable evidence. See Rock v. Arkansas, supra, in which the Supreme Court discusses the problems engendered by witnesses who have been hypnotized.)