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Interviewing Children: Pitfalls and Best PracticesACSA Every Child Counts Symposium

January 14, 2015Presented by: Lenore A. Silverman

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Child Witnesses

Memory is deceptive because it is colored by today’s events.

-Albert Einstein

What if source of that memory is a child? Interviewing child witnesses requires

specific training and skill

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Child Witnesses

How are child witnesses different? Use of language Ability to remember and explain events

accurately Susceptibility to suggestion Desire for attention Emotional responses to questioning

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Types of Investigations

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Bullying and Harassment

Bullying Preventing and redressing student-student

bullying and harassment is priority for the DOJ and ED

OSEP issued letter emphasizing school districts’ obligation to ensure students with disabilities who are targets of peer bullies continue to receive FAPE

Who investigates allegations of bullying and harassment?

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Bullying and Harassment

OCR Authority to send investigators to schools to

interview students “Opt-out” practice for parent consent Without permitting other adults to be present Without recording interviews Notes and transcripts are heavily redacted

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Bullying and Harassment

Civil Law Suits Students and families filing law suits against

school districts Allegations that bullying caused students’

injuries (and in some cases suicide)

Press coverage or social media may influence testimony of student witnesses

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Bullying and Harassment

Sexual Harassment or Abuse Abuse may be by school personnel or other

students Consider whether CPS or police report is

required Be sensitive - balance need for information with

further trauma investigation may cause Be wary of gossip versus first-hand knowledge

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Bullying and Harassment

What can school districts do? Don’t rely on outside agencies for information Be prepared to immediately investigate reports

of in-school bullying

Make appropriate responses regardless of external investigations

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Religious Expression in School Civil suits alleging unconstitutional

regulation of religious expression on campus Principal preventing fifth grade student from

handing out invitations to Christmas party at her church to classmates

Cheerleaders permitted to write Bible verses on banner used at football games

Be prepared for effect of media coverage and community response on student testimony

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Stages of Development

Early Childhood (3-6 years)Middle Childhood (7-10 years)

Adolescence (11-18 years)Children with Disabilities

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Early Childhood (3-6 years) Restricted understanding of language

Difficulty with complex words, prepositions, pronouns or place words (“here” and “there”)

Difficulty consistently answering how, when why questions

Not consistent comparing or sequencing events Difficulty understanding another’s perspective May not differentiate between events experienced

versus events thought about Try to please adults

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Early Childhood (3-6 years)

Suggestions for questioning Don’t use legal jargon

Q: Do you swear to tell the truth? A: No, I don’t swear!

Don’t just ask if child understands term, ask for example of how to use it

Don’t ask if child knows difference between right and wrong

Use one or two syllable words when possible Be specific, don’t use “this” “that” “here” or

“there” Use names, not pronouns

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Early Childhood (3-6 years) Suggestions for questioning

Use short sentences Don’t ask compound questions Avoid “how” “when” “why” questions Don’t use negatives “Isn’t it true that…” Tie experiences to event in child’s life such as

birthday or music class Q: Were you watching TV?

A: Yes. Q: What was on? A: Sesame Street.

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Middle Childhood (7-10 years) Difficulty with abstract terms and complex

sentence structure Difficulty with concepts of time and duration Still learning concept of cause and effect Use numbers in approximations Better at generalizing words Understand others have different perspective Experience questioning by adults as negative Unlikely to admit they do not understand question

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Middle Childhood (7-10 years) Suggestions for questioning

Don’t use legal jargon Don’t use passive voice Don’t just ask if child understands, ask for an

example Use simple questions Avoid negatives Link time periods to something meaningful in

child’s life such as weekend of favorite TV show

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Adolescence (11-18 years) Greater ability for narrative and complex grammar Difficulty with complex negatives Developing ability to Difficulty with concepts of time and duration Still learning concept of cause and effect Use numbers in approximations Better at generalizing words Understand others have different perspective Experience questioning by adults as negative Unlikely to admit they do not understand question

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Adolescence (11-18 years)

Suggestions for questioning Don’t use legal jargon Don’t use passive voice Don’t just ask if child understands, ask for an

example Avoid multiple negatives Be sensitive to your tone of voice, facial

expressions and body language

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Children with Disabilities Understanding nature and severity of

disability is critical Gather information to provide baseline for

child’s abilities and/or limitations What is impact on child’s ability to understand

language? How is thinking and reasoning impacted? What is impact on child’s ability to understand social

conventions? Behavior? Is there emotional issue that could be exacerbated

during interview? Is child taking medication that could impair

judgment?

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Children with Disabilities

Suggestions for questioning Minimize distractions Avoid over-stimulating environments Allow for movement Take frequent breaks, if necessary Consider hearing visual and physical limitations

– provide appropriate accommodations

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Children with Disabilities

Suggestions for questioning Use short sentences and limit information Break question into simple parts, avoid

compound questions Check for understanding frequently Be aware of impulsivity in answering questions Allow for long silences to account for processing

time

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Children with Disabilities

Suggestions for questioning Pay attention to eye contact and body language Notice changes in behavior

Fatigue? Lack of understanding? Increased anxiety? Sensory overload? Processing issues?

Consider whether child can interpret social cues

and language Use concrete language

Understand how emotional disturbance may impact answers

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Case Example

Excerpts from deposition of Student B, 10th grade student, regarding incidents of bullying

he allegedly observed in 6th and 7th grade

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Case Example Checking for understanding

Q. And do you know what it means to take an oath subject to penalty of perjury?

A. I do not. Q. Okay. When you raised your hand with the court reporter,

what did that mean to you? A. That I was promising I would tell the truth… Q. And do you understand that under the law that if a person

takes an oath and then they lie that that’s considered perjury and a crime

A. Yes, I do. Q. Okay. So it’s very important you tell the truth today.

You understand? A. Yes, I do.

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Case Example

Open questions to more specific Q. Well, how close did you become in sixth grade? A. We became close enough that he would talk to be almost every day. Q. Okay. Before he died, had you ever been to his house? A. No. Q. He never invited you to his house? A. No Q. Did you ever go to his house? A. No. Q. Did you ever do anything outside of school together? A. No.

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Case Example Breaking down questions

Q. What did you observe [in gym class]? A. As they were walking, they would run up into the back

of A and knock him down. Q. They would run into him. A. Yes. Q. And knock him down. Who? A. One of the boy’s names was Q. How many times did you see X knock A down? A. Several. Q. Three times?

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Case Example Breaking down questions

A. More than that. Probably -- Q. Five times? A. It was at least every day. Q. Okay. So every day over the course of a semester? A. Yes. Q. During sixth grade? A. Yes. Q. So 30 or 40 times? A. Yes. Q. So your testimony under oath is that would

knock -- run into A and knock him down almost every day or every other day?

A. Yes.

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Case Example Presenting adverse information

Q. Well, I looked up A’s schedule and it shows that A had PE third period during the spring semester of sixth grade. Do you think you’re mistaken about having gym class with him in sixth grade?

A. No, I’m not. Q. You’re not even though the records don’t line up at all

and you’re under oath? I want you to think long and hard about whether he was in your sixth grade PE class.

A. Yes, he was. Q. Okay. So if all the other testimony shows he had it

during third period, you’re still –

A. He was in my gym class.

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Case Example Presenting adverse information

Q. We pulled A’s schedule for seventh grade and the records show that A had PE in seventh period not fifth period. So I want you to think long and hard in your memory about

whether A was in your gym class in seventh grade. A. He may have – not have been in seventh grade. Q. So all the things you told us happened in seventh

grade might not have happened at all.

A. No. Q. And so in the statement you gave…about seventh

grade PE class, this is not correct. True?

A. Yes. Q. These are not your memories? These are not

true statements? A. No.

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Case Example Presenting adverse information

Q. And is it fair to say that the – the statements about witnessing bullying in Exhibit 1 aren’t true? A. Yes. Q. And that the affidavit – or excuse me, this whole

statement, Exhibit 1, is just not true? A. Most of it is not true, no. Q. Why did you sign a statement where you agreed to

tell the truth? Why did you sign a statement had so many statements that aren’t true?

A. I don’t know.

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Case Example

Understanding motivation Q. Just a few minutes ago, Mr. B asked you kind of why

you – you made up all these stories and you said you didn’t know. Okay. So I’m going to ask you a question. Would it be fair to say you did this because you wanted to help A?

A. Yes. Q. And all these stories that you – you made up, did your

mother know about them? A. No.

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Additional considerations

Suggestibility and False MemoriesInvestigating School Misconduct

Responding to Requests for Interviews

Adverse Child WitnessesUse of Experts

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Suggestibility and False Memories Suggestibility

Child’s susceptibility to suggestions about non-existent details about events

False Memories Forming memories of events that never

occurred by being questioned Interviewers can create both, intentionally

or accidentally, through questioning

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Suggestibility and False Memories Younger witnesses are more susceptible Weak memories are more vulnerable than

strong memories Experiences that are repeated produce

stronger memories Time delay between events weakens

memory Multiple interviews can both strengthen

and weaken memories

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Suggestibility and False Memories Suggestion for reducing suggestibility

and false memories Conduct interview as soon as possible after

event Use neutral interviewer Prior to interview, instruct child “I don’t know”

or “I don’t understand” are acceptable responses

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Suggestibility and False Memories Suggestion for reducing suggestibility and

false memories cont. Begin interview with open question, move to

more specific Do not repeat specific questions Do not react, positively or negatively, to

responses Do not invite child to speculate Do not offer possible answers

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Investigating School Misconduct When conducting internal investigations of

school-based misconduct, consider the following: Timing – interview student ASAP Preparation – review school records and speak

with teachers Setting – make student comfortable, meet in

private Warm-up – speak with student about interests

and observe language and body cues Question about event – begin with open

questions, move to more specific

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Responding to Requests for Interviews

External personnel may not be trained in how to interview children effectively

Outside agencies may have agenda for investigation

If possible, insist on being present during interviews or ask that interviews be recorded

Document concerns and objections Be familiar with state and local laws related

to requests by law enforcement and CPS

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Adverse Child Witnesses

Tips for challenging adverse testimony Find out when child was first questioned Understand child’s developmental level

(and/or disability) Was child questioned appropriately?

Review school records Is information contained in discipline, health, academic

records, class schedule or police report relevant? Understand child’s perspective on investigation

Does child have motivation for testimony?

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Adverse Child Witnesses

Tips for challenging adverse testimony, cont. Create comfortable, non-threatening environment Build rapport

Explain who you are and what you will be asking, listen carefully, pay attention to your body language

Challenge child’s testimony Give child opportunity to answer developmentally

appropriate questions If answers seemed coached, ask child to explain in own

words Ask for information that can be challenged by other evidence Weighs pros and cons of challenging child directly with

extrinsic evidence

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Use of Experts

Consider use of experts to explain: Developmental stage Effects of disability on testimony Dangers of inappropriate techniques

Experts may be from school psychology or special education departments

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Summary

Questioning child can be stressful for all involved

Understand developmental levels Consider children’s desire to be helpful Goal is complete and reliable information

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Questions?

Thank you for attending!And thank you for all you do for

students!!

Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.

We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.

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Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information

may apply to your specific facts and circumstances.