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

Part One of this article discussed the need for audio recording interviews in child custody cases to provide objective evidence, not only to ensure that the examining expert is abiding by any professional guidelines that may exist and apply, but also to ensure that: 1) the expert had not committed any memory errors; and 2) the expert has not corrupted the memories of any subject children in the course of the examination process. The conclusion herein discusses the ways to address the interviewer's objections to audio-taping.

A Researcher's Influence

Research has shown that an interviewer's beliefs about an event influence 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 or her 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

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 and 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.

A Perfect Storm

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

Stereotype Induction 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 that allow free recall than to those that are specific. Because children are cooperative, and since they often view the adult interviewer as high status, truthful and 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 answers 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 interviewer's beliefs, they will be rewarded by their interviewers and parents. Use of this technique in an interview encourages unreliable reports from children.

Conclusion

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.

Curtis Romanowski, a member of this newsletter's Board of Editors, limits his practice to New Jersey divorce and matrimonial law, child custody law and family law. As chairman of New Jersey's Collaborative Family Institute, he is dedicated to the positive transformation of New Jersey divorce, child custody and parenting disputes.

Part One of this article discussed the need for audio recording interviews in child custody cases to provide objective evidence, not only to ensure that the examining expert is abiding by any professional guidelines that may exist and apply, but also to ensure that: 1) the expert had not committed any memory errors; and 2) the expert has not corrupted the memories of any subject children in the course of the examination process. The conclusion herein discusses the ways to address the interviewer's objections to audio-taping.

A Researcher's Influence

Research has shown that an interviewer's beliefs about an event influence 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 or her 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

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 and 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.

A Perfect Storm

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

Stereotype Induction 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 that allow free recall than to those that are specific. Because children are cooperative, and since they often view the adult interviewer as high status, truthful and 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 answers 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 interviewer's beliefs, they will be rewarded by their interviewers and parents. Use of this technique in an interview encourages unreliable reports from children.

Conclusion

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.

Curtis Romanowski, a member of this newsletter's Board of Editors, limits his practice to New Jersey divorce and matrimonial law, child custody law and family law. As chairman of New Jersey's Collaborative Family Institute, he is dedicated to the positive transformation of New Jersey divorce, child custody and parenting disputes.