The Progressive Lawyer: Mandatory Audio-Recording of Forensic Interviews in Child Custody Cases

A certain amount of controversy has arisen over the past decade concerning the litigant's right to preserve on audio media the interviews of mental-health professionals engaged in expert custody and parenting time assessments. While the majority of our jurisdictions now have case law to support the premise that audio-taping is mandatory upon request, there has always been a measure of resistance to the concept, generally emanating from a relatively small percentage of practicing custody experts.

When questioned about their reluctance or refusal to conduct audio-taped custody and parenting time assessments, the experts' responses have been fairly typical, albeit falling far short of containing any sort of scientific validity. Objections based on the argument that the taping would have some sort of “chilling effect,” or that the interviewees would likely “perform for the tape” are frequently raised, often with the resistant expert adding that many of his or her “colleagues feel the same way.” This sort of facile, non-scientific “argument” should be summarily rejected in all of our jurisdictions.

Opponents to such objections have often speculated that the real motivation behind certain experts' resistance to audio-taping is their underlying desire to eliminate additional sources of impeachment evidence at trial. Without taping, we are forced to rely primarily upon the expert's notes and memories, both of which are typically flawed to various extents. Most psychologists, for that matter, do not even start writing until after the session is over. Attorneys are expected to trust in their methodology, how they carry it out in practice, and the accuracy of their data-gathering and reporting ' all this without the benefit of an objective quality-assurance mechanism. This is far too much to reasonably expect.

Objective Evidence

We need objective evidence, not only to assure that the examining expert is abiding by any professional guidelines that may exist and apply, but also that the expert had not committed any memory errors, and he or she has not corrupted the memories of any subject children in the course of the examination process.

Generally speaking, memory is a record of: 1) pattern-recognition; 2) interpretive analysis; and 3) source information. We will only deal with the third component, for purposes of this example.

Source Information

Failure to identify the actual root of information acquisition properly is known as a source misattribution error. While adults are certainly prone to this type of memory error (20%-35%), preschoolers are disproportionately vulnerable (50%-70%). Leading causes of source misattributions in children are:

• Suggestive questions (leading or misleading);
• Stereotype induction (giving the child information about the character of a particular person);
• Confirmatory bias (ignoring inconsistent evidence);
• Visually guided imagery; and
• Stress.

Interviewer Bias

Audio-taping is an indispensable tool for memorializing evidence of possible interviewer bias. Interviewer bias is one of the driving forces behind suggestive interviewing and flawed investigations. Now a widely recognized and accepted concept among experts in the field of children's suggestibility, interviewer bias characterizes those interviewers who hold an a priori belief 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 the interviewer's beliefs, rather than elicit the facts supporting what may have actually happened.

The presence of interviewer bias is often revealed through the interviewer's use of several improper interviewing techniques, which recent research has overwhelmingly shown to be suggestive and dangerous to the truth-finding process. These techniques include:

• Asking very specific, rather than open-ended questions, and embedding the answer in the question;
• Repetitive questioning about a particular topic or event, regardless of a child's response;
• Reinforcing statements that confirm the interviewer's beliefs, while ignoring those claims which do not, including allegations against or statements about individuals on which the interviewer does not want to focus, or those statements which the interviewer considers bizarre;
• Asking children for their help in the investigation;
• Using anatomically detailed drawings and dolls (in suspected sex abuse cases). Anatomically detailed dolls are themselves suggestive and their use has been shown consistently to foster inaccurate reports. A single exposure to them may cause a child to exhibit an increased interest in sexual play and the discussion of sexual themes, as opposed to providing accurate reports. A child may insert a finger in the doll's anus or vagina simply because of its novelty. Anatomically detailed dolls may also increase a child's knowledge of anatomy and sexual activity that he did not have before being introduced to the dolls. Particularly when used in conjunction with leading questions when questioning young children about sexual abuse, such interviewing techniques are dangerously flawed and create a substantial likelihood that children's allegations through the use of these dolls are false and unreliable;
• Using peer pressure to elicit disclosures (e.g., “Your brother and sister both said so.”). It is extremely dangerous for interviewers to utilize peer pressure to elicit a disclosure from a child. Children will often provide inaccurate responses so that their version of events conforms to those of their peers; and
• Asking children to engage in speculation, and failing to ask questions that might provide alternative explanations for certain events.

Research has shown that an interviewer's beliefs about an event influences the accuracy of children's answers, particularly if the interviewer is an adult of perceived high status. Children are sensitive to the status of their interviewer. A child's recognition of a power differential between himself and an interviewer of high status will increase his vulnerability to suggestions. Children view these adults as truthful and will conform their answers to what the interviewer is looking for and defer to the interviewer if he or she challenges their reports.

Source Monitoring Problems

Source monitoring problems can also result from flawed interview technique, particularly when there are multiple interview sessions protracted over time. The source monitoring problem refers to the inability of children to maintain a mental distinction between what the child has actually experienced as opposed to what the child has learned or imagined from some other source. Sometimes, when children are asked to pretend about a certain event, they later have difficulty determining where the idea came from, and whether the event is true or false.

Recent Research

When one adds parental influence and pressure to the above mentioned discredited techniques, as well as any other significant issues going on in a child's life, the combination is a perfect storm for unreliable disclosures. Failure to preserve an audio account of the interviews effectively hobbles any attempt to check for the use of these bias-reflecting techniques.

Recent research has likewise proven that the following interview techniques are unnecessarily suggestive and improper. The use of them in child custody and parenting time evaluations creates a substantial risk that a child's disclosures will be unreliable. Although there are others, such as interviews with adults of high status, use of anatomically detailed dolls and drawings, source monitoring problems and peer pressure, the potentially toxic techniques listed below are limited to those that can be disclosed through audio-taping:

• Stereotype Induction. This is the strategy of giving a child information about the character of a particular person. If this stereotype is repeated several times, the stereotype is induced into the memory of a child. Through stereotype induction, and nothing more, the child will come to believe that the stereotype is true.
• Use of Leading Questions. The use of leading or forced choice, versus open ended questions, will lead to inaccurate testimony from young children. Often in the use of leading questions, the interviewer is providing the sought-after answer to the child. Young children are more likely to respond accurately to questions in free recall than when they are specific. Because children are cooperative and since they view the adult interviewer ' often of high status ' as truthful not deceptive, they are more likely to answer forced choice questions (e.g., “Has Daddy been seeing you two times a week or three times a week?”), even when they do not know or have an answer. A trained interviewer should always begin with open-ended questions, and then ' if only absolutely necessary ' carefully, slowly and in a very limited way move onto some more specific directed questions. Leading questions from a biased adult interviewer will result in a child's adopting the answers suggested by the interviewer as truthful. When an adult uses other improper techniques, it only compounds the danger.
• Pretending, Speculation and Fantasy. The research makes clear that young children have difficulty distinguishing between memories of actual events and memories of imagined events. When young children are asked to imagine or speculate as to what would happen or how they would feel if a certain event took place, they will later come to believe that those imagined events actually did happen. Interestingly, when an interviewer asks a child to pretend ' to stretch the bounds of reality ' the interviewer is inadvertently indicating that he or she is not really interested in the truth.
• Repetitive Questioning. Inaccurate reports by young children increase with repetitive, suggestive questioning, including the refusal to take “no” for an answer. Repeatedly asking children leading and specific questions compromises the accuracy of a child's disclosure even more than just asking a leading question once. Children often change their answer because they understand that their first response to the question was somehow wrong. Otherwise, it would certainly seem, the interviewer would not be asking the question again and again. Predictably, as the studies show, the children will come to tell the interviewer what he or she wants to hear.
• Repeated Interviews. When children are repeatedly and suggestively interviewed, they are more likely to assent to a false event in a later interview, even after repeated and consistent earlier denials. Children's memories of original events fade after a period of time, allowing suggestions or misinformation received during earlier interviews to become more easily planted by the time of the later interview.
• Emotional Tone of the Interview. When interviewers create an atmosphere of accusation or fear by making statements such as “I think you are scared,” children are quick to pick up on the emotional tones of an interview and act accordingly. This creates a substantial likelihood that a child's report will be unreliable.
• Use of Rewards. Children learn that, if they produce stories that are consistent with the interviewers beliefs, they will be rewarded by their interviewers and parents. Use of this technique in an interview encourages unreliable reports from children.

A single suggestive interviewing technique has a deleterious effect on the reliability of a child's disclosure. When several of these techniques are used together, the likelihood that a child's disclosure will be unreliable increases significantly. Recent research has shown conclusively that a combination of suggestive techniques used during an interview is likely to produce high assent rates for false events. Suggestive interviewing affects the credibility of children's statements to such an extent that even a professional may not be able to determine when suggestively interviewed children are providing a false report. It is therefore critically important that all forensic interviews be captured on audio media, or video media, where permissible.

Part Two of this article will discuss the ways to address the interviewer's objections to audio-taping.

Curtis J. Romanowski, a member of this newsletter's Board of Editors, limits his practice to NJ Divorce & NJ Matrimonial Law, NJ Child Custody Law & NJ Family Law. An experienced and commanding Trial Attorney since 1980, as Chairman of New Jersey's Collaborative Family Institute, he is dedicated to the positive transformation of New Jersey divorce, child custody & parenting disputes.

A certain amount of controversy has arisen over the past decade concerning the litigant's right to preserve on audio media the interviews of mental-health professionals engaged in expert custody and parenting time assessments. While the majority of our jurisdictions now have case law to support the premise that audio-taping is mandatory upon request, there has always been a measure of resistance to the concept, generally emanating from a relatively small percentage of practicing custody experts.

When questioned about their reluctance or refusal to conduct audio-taped custody and parenting time assessments, the experts' responses have been fairly typical, albeit falling far short of containing any sort of scientific validity. Objections based on the argument that the taping would have some sort of “chilling effect,” or that the interviewees would likely “perform for the tape” are frequently raised, often with the resistant expert adding that many of his or her “colleagues feel the same way.” This sort of facile, non-scientific “argument” should be summarily rejected in all of our jurisdictions.

Opponents to such objections have often speculated that the real motivation behind certain experts' resistance to audio-taping is their underlying desire to eliminate additional sources of impeachment evidence at trial. Without taping, we are forced to rely primarily upon the expert's notes and memories, both of which are typically flawed to various extents. Most psychologists, for that matter, do not even start writing until after the session is over. Attorneys are expected to trust in their methodology, how they carry it out in practice, and the accuracy of their data-gathering and reporting ' all this without the benefit of an objective quality-assurance mechanism. This is far too much to reasonably expect.

Objective Evidence

We need objective evidence, not only to assure that the examining expert is abiding by any professional guidelines that may exist and apply, but also that the expert had not committed any memory errors, and he or she has not corrupted the memories of any subject children in the course of the examination process.

Generally speaking, memory is a record of: 1) pattern-recognition; 2) interpretive analysis; and 3) source information. We will only deal with the third component, for purposes of this example.

Source Information

Failure to identify the actual root of information acquisition properly is known as a source misattribution error. While adults are certainly prone to this type of memory error (20%-35%), preschoolers are disproportionately vulnerable (50%-70%). Leading causes of source misattributions in children are:

• Suggestive questions (leading or misleading);
• Stereotype induction (giving the child information about the character of a particular person);
• Confirmatory bias (ignoring inconsistent evidence);
• Visually guided imagery; and
• Stress.

Interviewer Bias

Audio-taping is an indispensable tool for memorializing evidence of possible interviewer bias. Interviewer bias is one of the driving forces behind suggestive interviewing and flawed investigations. Now a widely recognized and accepted concept among experts in the field of children's suggestibility, interviewer bias characterizes those interviewers who hold an a priori belief 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 the interviewer's beliefs, rather than elicit the facts supporting what may have actually happened.

The presence of interviewer bias is often revealed through the interviewer's use of several improper interviewing techniques, which recent research has overwhelmingly shown to be suggestive and dangerous to the truth-finding process. These techniques include:

• Asking very specific, rather than open-ended questions, and embedding the answer in the question;
• Repetitive questioning about a particular topic or event, regardless of a child's response;
• Reinforcing statements that confirm the interviewer's beliefs, while ignoring those claims which do not, including allegations against or statements about individuals on which the interviewer does not want to focus, or those statements which the interviewer considers bizarre;
• Asking children for their help in the investigation;
• Using anatomically detailed drawings and dolls (in suspected sex abuse cases). Anatomically detailed dolls are themselves suggestive and their use has been shown consistently to foster inaccurate reports. A single exposure to them may cause a child to exhibit an increased interest in sexual play and the discussion of sexual themes, as opposed to providing accurate reports. A child may insert a finger in the doll's anus or vagina simply because of its novelty. Anatomically detailed dolls may also increase a child's knowledge of anatomy and sexual activity that he did not have before being introduced to the dolls. Particularly when used in conjunction with leading questions when questioning young children about sexual abuse, such interviewing techniques are dangerously flawed and create a substantial likelihood that children's allegations through the use of these dolls are false and unreliable;
• Using peer pressure to elicit disclosures (e.g., “Your brother and sister both said so.”). It is extremely dangerous for interviewers to utilize peer pressure to elicit a disclosure from a child. Children will often provide inaccurate responses so that their version of events conforms to those of their peers; and
• Asking children to engage in speculation, and failing to ask questions that might provide alternative explanations for certain events.

Research has shown that an interviewer's beliefs about an event influences the accuracy of children's answers, particularly if the interviewer is an adult of perceived high status. Children are sensitive to the status of their interviewer. A child's recognition of a power differential between himself and an interviewer of high status will increase his vulnerability to suggestions. Children view these adults as truthful and will conform their answers to what the interviewer is looking for and defer to the interviewer if he or she challenges their reports.

Source Monitoring Problems

Source monitoring problems can also result from flawed interview technique, particularly when there are multiple interview sessions protracted over time. The source monitoring problem refers to the inability of children to maintain a mental distinction between what the child has actually experienced as opposed to what the child has learned or imagined from some other source. Sometimes, when children are asked to pretend about a certain event, they later have difficulty determining where the idea came from, and whether the event is true or false.

Recent Research

When one adds parental influence and pressure to the above mentioned discredited techniques, as well as any other significant issues going on in a child's life, the combination is a perfect storm for unreliable disclosures. Failure to preserve an audio account of the interviews effectively hobbles any attempt to check for the use of these bias-reflecting techniques.

Recent research has likewise proven that the following interview techniques are unnecessarily suggestive and improper. The use of them in child custody and parenting time evaluations creates a substantial risk that a child's disclosures will be unreliable. Although there are others, such as interviews with adults of high status, use of anatomically detailed dolls and drawings, source monitoring problems and peer pressure, the potentially toxic techniques listed below are limited to those that can be disclosed through audio-taping:

• Stereotype Induction. This is the strategy of giving a child information about the character of a particular person. If this stereotype is repeated several times, the stereotype is induced into the memory of a child. Through stereotype induction, and nothing more, the child will come to believe that the stereotype is true.
• Use of Leading Questions. The use of leading or forced choice, versus open ended questions, will lead to inaccurate testimony from young children. Often in the use of leading questions, the interviewer is providing the sought-after answer to the child. Young children are more likely to respond accurately to questions in free recall than when they are specific. Because children are cooperative and since they view the adult interviewer ' often of high status ' as truthful not deceptive, they are more likely to answer forced choice questions (e.g., “Has Daddy been seeing you two times a week or three times a week?”), even when they do not know or have an answer. A trained interviewer should always begin with open-ended questions, and then ' if only absolutely necessary ' carefully, slowly and in a very limited way move onto some more specific directed questions. Leading questions from a biased adult interviewer will result in a child's adopting the answers suggested by the interviewer as truthful. When an adult uses other improper techniques, it only compounds the danger.
• Pretending, Speculation and Fantasy. The research makes clear that young children have difficulty distinguishing between memories of actual events and memories of imagined events. When young children are asked to imagine or speculate as to what would happen or how they would feel if a certain event took place, they will later come to believe that those imagined events actually did happen. Interestingly, when an interviewer asks a child to pretend ' to stretch the bounds of reality ' the interviewer is inadvertently indicating that he or she is not really interested in the truth.
• Repetitive Questioning. Inaccurate reports by young children increase with repetitive, suggestive questioning, including the refusal to take “no” for an answer. Repeatedly asking children leading and specific questions compromises the accuracy of a child's disclosure even more than just asking a leading question once. Children often change their answer because they understand that their first response to the question was somehow wrong. Otherwise, it would certainly seem, the interviewer would not be asking the question again and again. Predictably, as the studies show, the children will come to tell the interviewer what he or she wants to hear.
• Repeated Interviews. When children are repeatedly and suggestively interviewed, they are more likely to assent to a false event in a later interview, even after repeated and consistent earlier denials. Children's memories of original events fade after a period of time, allowing suggestions or misinformation received during earlier interviews to become more easily planted by the time of the later interview.
• Emotional Tone of the Interview. When interviewers create an atmosphere of accusation or fear by making statements such as “I think you are scared,” children are quick to pick up on the emotional tones of an interview and act accordingly. This creates a substantial likelihood that a child's report will be unreliable.
• Use of Rewards. Children learn that, if they produce stories that are consistent with the interviewers beliefs, they will be rewarded by their interviewers and parents. Use of this technique in an interview encourages unreliable reports from children.

A single suggestive interviewing technique has a deleterious effect on the reliability of a child's disclosure. When several of these techniques are used together, the likelihood that a child's disclosure will be unreliable increases significantly. Recent research has shown conclusively that a combination of suggestive techniques used during an interview is likely to produce high assent rates for false events. Suggestive interviewing affects the credibility of children's statements to such an extent that even a professional may not be able to determine when suggestively interviewed children are providing a false report. It is therefore critically important that all forensic interviews be captured on audio media, or video media, where permissible.

Part Two of this article will discuss the ways to address the interviewer's objections to audio-taping.

Curtis J. Romanowski, a member of this newsletter's Board of Editors, limits his practice to NJ Divorce & NJ Matrimonial Law, NJ Child Custody Law & NJ Family Law. An experienced and commanding Trial Attorney since 1980, as Chairman of New Jersey's Collaborative Family Institute, he is dedicated to the positive transformation of New Jersey divorce, child custody & parenting disputes.