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Page 1: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse
Page 2: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Investigation and Prosecution of Child Abuse Cases

Robert GilesSenior Attorney

NDAA’sNational Center for Prosecution of Child Abuse

Page 3: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

NCPCA

• 44 Canal Center Plaza, Suite 11044 Canal Center Plaza, Suite 110• Alexandria, VA 22314 PH:703- 549-9222Alexandria, VA 22314 PH:703- 549-9222• Please visit our websitePlease visit our website• www.ndaa.org• UpdatesUpdates• Defense Expert DatabaseDefense Expert Database• Technical AssistanceTechnical Assistance• National TrainingsNational Trainings

Page 4: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Copyright Notice

Items contained in this presentation may be subject to the United States copyright law and are used under the guidelines of 17 U.S.C. 107, also known as the Fair Use

Act

Page 5: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Agenda• Corroboration

– Areas to explore– Specific types of cases– Suspect Statements

• Memory & Suggestibility

• Overcoming Untrue Defenses– Physical Abuse– Sexual Abuse

Page 6: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

What We Want Sitting in the Defendant’s Chair

Page 7: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

What We Usually Get

Page 8: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Why Corroboration so Important?

Page 9: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Why do we need corroboration?

• Often, victim is the only witness to the crime

• Sexual and physical abuse occurs in private

• Delayed disclosure

• No physical evidence

Page 10: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

How Assaults Are Reported

Discretionary (people who are not legally required report) :

parents - best case scenario friends

other children

Mandatory (people legally obligated to report):

teachers school counselors

doctors government agencies

health care clergy

child care workers any law enforcement

Page 11: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Corroboration

Areas to Explore• Sensory Detail: Sights, sounds and smells

that make it real for the jury• Surrounding Details: Seemingly

insignificant facts that can make all the difference

• Behavioral Changes/Emotional indicators: Changes in the child’s demeanor and mood

Page 12: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

How and Where to Find Corroboration

• Search warrants

• Crime Scene

• Witness interviews

• Suspect interview

• Medical records

• School records

Page 13: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Search Warrants

• Staleness issue

• Specificity issue

• MDT approach – beneficial to early and finely-tunes search warrant

Page 14: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Sensory Detail

• The physical detail of what the child went through must be revisited as much as the possible.

• Smell is the most powerful memory trigger and sensory tool

• Gathering sensory detail as a process differs with the child’s age and cognitive ability

Page 15: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Sensory Detail

• The younger the child, the more they may need to be directed to give detail– Do not lead– Standard interview protocols must be

followed– Choices may be given as to what something

felt like, but beware of appearing to manufacture responses

• Direct the child with examples only after he/she has identified the object in question

Page 16: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Sensory DetailExample Questions

• “What did (suspect) touch you with?”

• “You said (suspect) touched you with X, did he/she touch you with anything else?”

• “How did the touching feel?”

• “How did it feel when (suspect) put his X in your private spot?”

Page 17: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Sensory DetailExample Questions

• Where were you when (suspect) touched your private spot?”

• “What did you see when you were in that room?”

• “What did you hear when (suspect) was touching your private spot?”

Page 18: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Sensory Detail

• Help them to understand the importance of talking in so much detail– Paint a picture for the jurors to see

• Stress always the importance of telling the truth above all

Page 19: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Surrounding Facts

• Think creatively: a child’s life is usually controlled, even in compromised situations– Someone else knew what the child was doing

that day, and probably noted it– Any confirmation that the child was with the

perpetrator is strong evidence

Page 20: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Surrounding FactsExample

• Johnny was sexually abused by grandfather on a camping trip

• Johnny’s grandmother has recorded the date of the trip on her wall calendar– This small fact alone says:

• Johnny is not crazy – this trip happened• He is oriented to place and time, and can recall

events correctly

Page 21: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Surrounding FactsExample

• Johnny reports being abused by neighbor in his home

• During the interview, he mentions that the perpetrator would drink beer, then crush the cans and throw them behind the couch

• Time to get a warrant or permission to look behind the couch

• This confirmed observation credits Johnny’s testimony and moves you closer to conviction

Page 22: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Behavioral Changes/Emotional Indicators

• Behaviors often seen as a result of CSA:– Aggression, acting out– Regression, psuedomaturity– Change in dress or grooming habits– Eating problems– Developmentally inappropriate sexual

behavior– PTSD symptoms, self-injurious behavior

Page 23: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Behavioral Changes/Emotional Indicators

• Depression

• Unusual or excessive fears– Desire to feel protected, inability to separate

from trusted caregivers

• School related problems– Sudden drop in academic achievement,

appearance of listlessness or unexplained hostility

Page 24: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Behavioral ChangesExample

• Grandmother indicates that weeks after the child says that her uncle raped her, the child acted “jittery”

• Always wanted to be “under her wing”

• Didn’t sleep as well, wouldn’t go to certain parts of the house on her own

Page 25: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Behavioral ChangesUse of the Evidence

• Grandmother can be called as a fact witness– Knows the child– Knows the child’s typical mood and

behaviors/reactions– How were they before offense date or time

period?– Did she notice a change after? Describe

Page 26: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Get as many contact numbers as possible . . .

Corroboration

don’t forget grandma . . .

Page 27: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

INVESTIGATION

Collect clothes worn during and

after the incident.

Page 28: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

INVESTIGATION

Also consider sheets, towels, Kleenex, TP, victim’s underwear, sex toys, and anywhere else defendant may have touched victim. Make sure that the evidence is properly preserved.

Page 29: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Medical/SANE

• Most protocols recommend that the victim of acute abuse/assault should be examined as quickly as possible after disclosure if disclosure occurs within 72 hours of the event

• The “72-hour” rule is based on data regarding the timing of sperm and semen recovery and degradation of biologic evidence

Page 30: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Medical/SANE• Pre-verbal children will be unable to give

history• Frightened or threatened children may

give partial or no history• In drug facilitated Sexual Assault, the

victim may have no or only partial recollection of events

• History of oral contact may yield saliva, which can be used to identify the perpetrator.

Page 31: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

What You Can Get from a Medical Exam

• Presence of semen, sperm, acid phosphatase, DNA

• Fresh genital or anal injuries in the absence of an adequate accidental explanation.

Page 32: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

What You Can Get from a Medical Exam

• Sexually Transmitted Diseases– Syphilis or gonorrhea not perinatally

acquired.

– HIV infection (not acquired perinatally or through IV routes).

Page 33: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

What You Can Get from a Medical Exam

• Physical/Genital Findings– Markedly abnormal hymenal opening for

age with associated findings of

– Hymen disruption, including absence, hymenal remnants, healed

– Transections or scars, without adequate accidental or surgical explanation.

Page 34: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Remember

MOST SEXUALLY ABUSED CHILDREN HAVE A NORMAL PHYSICAL

EXAMINATION!!!

Page 35: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

One Party Consent

• One Party Consent Call - A recorded call between the victim and suspect that is monitored by police.

• During the call the victim discusses and confronts the suspect with details of the abuse.

• Purpose is to gain true admissions from suspect.

Page 36: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

One Party Consent Call

- Can be used in any type of criminal investigation.

- When your state laws/department policy allow the use of one party consent calls.

- N. D. Cent. Code § 12.1-15.02 - When physical evidence/witnesses are limited or

non-existent. - When victim is of sufficient age and

mental/emotional state to make the call- If Victim a minor get parent consent

Page 37: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

What can you gain from the call?

- Full confession from the suspect.

- Partial admissions from suspect.

- Insight into the suspects mind/way of thinking. You can use this in the development of interrogation themes.

- Victim can gain a sense of control and validation.

- A great piece of evidence to play to the jury from the suspect himself.

Page 38: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

One Party Consent Calls

Page 39: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Interview the Suspect• Don’t need confession, but do want to lock

into a story– Can get ridiculous statements that help as

much as a confession• Thought that 8 year old 50 pound daughter was my

35 year old 250 pound wife• Tripped on a blanket and my finger went inside her

vagina• She wanted me• Was examining her to see if she was still a virgin

Page 40: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Interview of Suspect

• Confront each denial

• Emphasize child’s love

• Emphasize suspect’s love

• Focus on suspects pervious abuse

• Corroborate what the child said

• One party consent calls

Page 41: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse
Page 42: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationFailure to Thrive Cases

• Review victims entire medical history.

• Conduct a thorough search of the home– Medicine– Evidence of financial situation (alcohol,

cigarettes, pet food, cable TV)

• Condition of the other children in the home (i.e. is child a “target” child?)

• Does the child improve when removed?

Page 43: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationPhysical Abuse Cases

• Description of the scene of the crime– Where was the child found?– Where was the child moved from?– Where the injury allegedly occurred (suspect’s

story)– Where the injury could have occurred

Page 44: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationPhysical Abuse Cases

• Photograph/videotape/diagram all possible scenes and mechanisms

• Measure all objects/distances mentioned by suspects, as well as any that might be possible defenses later

Page 45: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationPhysical Abuse Cases

• Photograph all parts of body – absence of injury/symptoms as important as presence

• Photograph hands and legs (parachute reflex develops at nine months, child puts out hands to protect

• Bilateral photographs to show contrast (compare non-injured opposite side of the body to contrast, e.g., swelling)

Page 46: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationPhysical Abuse Cases

• Family/Caretaker Interviews.– What they observed– When and what they were told by other family

members– When and what they were told about the

child’s injuries

Page 47: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationPhysical Abuse Cases

• Other witness interviews.– All hospital staff that had contact with

family/caretakers– Civilians who may have had contact

with/overheard family (e.g. people in emergency room, waiting room)

– Neighbors, teachers, babysitters, daycare workers, etc

Page 48: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationPhysical Abuse Cases

• Interview medical personnel– Amount of force needed to inflict injury– Effect of delay in seeking treatment– Consistency of injuries with story offered

Page 49: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationBurn Cases

• Interview medical personnel – Nature of the burns (splash, immersion,

contact) consistent or inconsistent with the history provided?

– Depth of burns– If water burn, length of time for burn to occur– Child’s capability to self inflict/level of pain– Indication of clothing worn when burn

occurred

Page 50: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

CorroborationBurn Cases

• Ease of turning on the faucet

• Measurement of tubs/sinks – compared to child’s reach

• Has suspect changed the water heater setting?

• Thorough interview of the caretaker– Victim’s reaction when burned– Suspect’s reaction when victim burned

Page 51: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

How Corroboration Supports Victim in Trial

• Give other witnesses who show VC is not making up

• Medical evidence• Physical evidence• Shows that VC lacks

ability to pull off big lie

• Other witnesses• Defendant’s

statement supports VC’s version of events

• Skilled interviews and investigations

• Expert witnesses

Page 52: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

DefensesSexual Abuse Cases

• Memory• Suggestibility• Retaliation• Custody• Recantation• Mental Illness• SODDI• Reasonable Doubt

Page 53: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

DefensesPhysical Abuse Cases

• Accident

• Self Inflicted

• Medical Condition

• SODDI

• Cultural Defense

Page 54: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Preparation

• Analyze the case for probable defenses– Defendant’s statements– Defense attorney’s motions– Suspect/Victim/Family Dynamic

• Look for weaknesses in your case– Victims statement– Recantation

Page 55: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Preparation

• Training• Develop knowledge of:

– Specific Case law– Literature (NCPCA, other research)– Learn general methods and approach for

attacking research

• Attend critical portions of the investigation (autopsy, interviews, scene)

• Learn use of proper terms

Page 56: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/Suggestibility

What is suggestibility?

• The degree to which one’s memory or recounting of a event is influenced by suggested information or misinformation– Actual changes or distortions in memory– Alterations in the recounting of the event

without an actual change in memory

Page 57: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/Suggestibility

Children and HistoryChildren and History

• Highly SuggestibleHighly Suggestible

• Wholly unreliableWholly unreliable

• Salem witch trials 1692Salem witch trials 1692

• Freud and associatesFreud and associates

Page 58: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/Suggestibility

Salem Witch Trials

• “The prevailing legal attitude for the following 300 years has been one of skepticism about the testimony of child witnesses” Stephen Ceci & Maggie Bruck, Suggestibility of the Child Witness: A Historical Review and Synthesis, 113 Psychological Bulletin 403, 405 (1993)

Page 59: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/Suggestibility

Research

• Prior to 1979, a shortage of researchPrior to 1979, a shortage of research

• From 1979-1992, more than 100 studiesFrom 1979-1992, more than 100 studies

• Much of the literature was pro-childMuch of the literature was pro-child

• Memory/Suggestibility Children Ten+ Not More Suggestible Than Adults

Page 60: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/Suggestibility

Clown Study

• Pairs of kids, ages 4-7 sent into trailerPairs of kids, ages 4-7 sent into trailer

• One child watches and the other interacts One child watches and the other interacts with a clownwith a clown

• Kids asked leading questions such as “he Kids asked leading questions such as “he took your clothes off, didn’t he?took your clothes off, didn’t he?

L Rudy & G.S. Goodman, L Rudy & G.S. Goodman, Effects of Participation on Children’s Reports: Implication for Children’s Effects of Participation on Children’s Reports: Implication for Children’s TestimonyTestimony, 27 Developmental Psychology 527-538 (1991), 27 Developmental Psychology 527-538 (1991)

Page 61: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/Suggestibility

Clown Study

• Not one of the kids who interacted with the clown made a false report

• Only one of the “bystander” kids made a false report of abuse (spanking)

L Rudy & G.S. Goodman, L Rudy & G.S. Goodman, Effects of Participation on Children’s Reports: Implication for Children’s Effects of Participation on Children’s Reports: Implication for Children’s TestimonyTestimony, 27 Developmental Psychology 527-538 (1991), 27 Developmental Psychology 527-538 (1991)

Page 62: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMedical Exam Study

100’s of kids having a medical examination

Study Parameters:• 5 and 7 year old girls• ½ had a scoliosis exam & ½ had an external

genital exam• Interviewed 1 week or 1 month later

Saywitz, Goodman, Nicholas, and Moan, Saywitz, Goodman, Nicholas, and Moan, Children’s Memories of a Physical Children’s Memories of a Physical Examination Involving Genital Touch: Implications for Reports of Child Examination Involving Genital Touch: Implications for Reports of Child Sexual AbuseSexual Abuse, 59 Journal of Consulting and Clinical Psychology 682-691 , 59 Journal of Consulting and Clinical Psychology 682-691 (1991)(1991)

Page 63: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMedical Exam Study

Study Methodology:• Interviewers used free recall, anatomical dolls,

direct, and misleading questions– “Did the doctor put something in your mouth?”– “Did you take your clothes off?”– “How many times did the doctor kiss you?”– “Did the doctor touch you there?” (while pointing to

vagina on doll)– “Did the doctor ever touch you before that day?”

Page 64: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMedical Exam Study

Results:

• Children reported twice as much correct information when demonstrating on dolls

• None of the children demonstrated sexually explicit behavior with the dolls

Page 65: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMedical Exam Study

Results (cont.):

• Not one of the seven year old children made a false report

• Only 3 out of 215 of the five year old children made a false report

Page 66: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

False Sense of Security

Page 67: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Child Abuse Cases the Turned the Tide

• State of New Jersey v. Michaels• The McMartin Preschool Case –

Manhattan Beach, CA• Little Rascals Day Care –

Edenton, NC• Fells Acres Day Care – Malden,

MA

Page 68: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

State v. Michaels136 N.J. 299; 642 A. 2d 1372 (1994)

• Multiple pre-school victims

• Michaels convicted of 131 counts

• Convictions reversed

Page 69: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityInappropriate Interview

Michaels (cont.)• 4 1/2 year old told “lots of other kids”

revealed abuse• Child told the interview would end once

the child “cooperated”• When child announced he “hated” the

investigator, the investigator told the child he “secretly” liked the interviewer

• “Do you want to help us keep her in jail”

Page 70: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityInappropriate Interview

Michaels Aftermath• The cat’s out of the bag. Child testimony

viewed with suspicion• In a child abuse case, it is reversible error

not to allow a defense expert to testify “regarding the techniques employed by (the police officer) and the prosecutor in their examinations of the child.” Pyron v. State, 237 GA .App. 198, 514 S.E. 2d 51, 1999

Page 71: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilityDefense Attorney BacklashDefense Attorney Backlash

Second Wave of ResearchSecond Wave of Research

• Defense Attorneys attaching research Defense Attorneys attaching research to motionsto motions

• Research reflects high profile casesResearch reflects high profile cases

• Research is given great weight by Research is given great weight by some courtssome courts

Page 72: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/Suggestibility

Sam Stone StudyCeci & Bruck, 113 Psychological Bulletin

403 (1993)

Page 73: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilitySam Stone StudySam Stone Study

• Researchers “tell” 3-6 year old kids Researchers “tell” 3-6 year old kids about Sam Stoneabout Sam Stone

• Stereotype SS as “clumsy”Stereotype SS as “clumsy”

• SS visits the classroomSS visits the classroom

• The next day, kids given fictitious The next day, kids given fictitious evidenceevidence

Page 74: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilitySam Stone StudySam Stone Study

• Kids interviewed for 2 minutes once every two weeks for 10 weeks after the visit

• Kids asked “leading” questions such as “I wonder is SS was wearing long pants or short pants when he ripped the book” and “I wonder if SS got the teddy bear dirty on purpose or by accident.”

• First interview: 25% surmised SS did it

Page 75: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilitySam Stone StudySam Stone Study

Results

72% of the 3 & 4 year olds claimed SS ruined at least one of the items

45% of the 3 & 4 year olds actually claimed to have witnessed SS ruin an item

11% of the 5 & 6 year olds claimed to have observed SS damage one of the items

Page 76: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilitySam Stone StudySam Stone Study

• Ceci & Leichtman concluded, “[W]hen the context of a child’s reporting of an event is free of the strong stereotypes and repeated leading questions that may be introduced by adults the odds are tilted in favor of factual reporting” The Effects of Stereotypes and Suggestions on Preschooler’s Reports, Dev. Psych. 1995 Vol. 31, No. 4

Page 77: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/Suggestibility

Mousetrap StudyCeci, Loftus, Leichtman, Bruck, The

Possible Role of Source Misattributions in the Creation of False Beliefs Among Preschoolers, 62 International Journal of Clinical and Experimental Hypnosis 304 (1994)

Page 78: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilityMousetrap StudyMousetrap Study

• Kids ages 3-6 interviewedKids ages 3-6 interviewed

• Kids given a list of eventsKids given a list of events

• Kids encouraged to try to recallKids encouraged to try to recall

• By the 7th week, 1/3 of kids By the 7th week, 1/3 of kids “remembered” a false event“remembered” a false event

Page 79: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilityMousetrap StudyMousetrap Study

• - - Children ages 3 to 6 Children ages 3 to 6

• - 12 interviews of 30 minutes each- 12 interviews of 30 minutes each

• - Children told about a fictional event - Children told about a fictional event and then told to picture it in their head and then told to picture it in their head

• - Initially 23% remembered the fictional - Initially 23% remembered the fictional eventevent

• - By interview 12, 43% remembered the - By interview 12, 43% remembered the fictional eventfictional event

Page 80: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilityInoculation StudyInoculation Study

• Bruck, Ceci, Francoeur, and Barr, “I Hardly Cried when I got my Shot!” Influencing Children’s Reports about a Visit to Their Pediatrician, 66 Child Development 193-208 (1995).

Page 81: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilityInoculation StudyInoculation Study

• Kids (ages 4-5) receive a medical exam Kids (ages 4-5) receive a medical exam by pediatricianby pediatrician

• After exam, researcher stays during After exam, researcher stays during oral vaccine and inoculationoral vaccine and inoculation

• RA removes child and playsRA removes child and plays

• 11 months later, kids interviewed11 months later, kids interviewed

Page 82: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityMemory/SuggestibilityInoculation StudyInoculation Study

Results• Kids interviewed four times over a

two week period• Kids are lied to about RA and

pediatrician duties• In the 4th interview, 40% of kids

falsely reported the duties of one of the players

Page 83: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityThe Jack O’Mack Study

• Jack “tested” toys, measured feet, and painted faces on toenails

• Four months later, kids were told to take the process seriously

• After ten suggestive interview sessions, only one child falsely accused Jack of yelling

• Serious atmosphere• Serious allegation

Bhavna Shyamalan & Sharon Lamb, Bhavna Shyamalan & Sharon Lamb, The Effects of Repeated Questioning on Preschoolers’ Reports of Abusive BehaviorThe Effects of Repeated Questioning on Preschoolers’ Reports of Abusive Behavior

Page 84: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityFalse Touches Study

• Jodi A. Quas, Elizabeth L. Davis, Gail S. Goodman, John E.B. Myers, Repeated Questions, Deception, and Children’s True and False Reports of Body Touch, Child Maltreatment, Vol. 12, No. 1 (Feb. 2007)

• Study examines children’s ability to Study examines children’s ability to maintain a false statement about body maintain a false statement about body touchtouch

Page 85: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityFalse Touches Study

• 1 to 3 weeks later the children are interviewed

• Children who lied about being touched were able to accurately maintain the lie during repeated, direct questioning

• Children who lied were less accurate then truth tellers when answering questions about surrounding details

Page 86: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityFalse Touches Study

• Children who answered truthfully about being touched were significantly less accurate and less consistent than those who lied

• Children who answered truthfully about not being touched were both accurate and consistent in their statements

Page 87: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityResearch vs. The Real World

What do We Know:• Average age of victims is 10 years old• Most interviews occur soon after

disclosure• Interviewers use non-suggestive

techniques• Victims are most often abused by close

family members• Usually one, not multiple victims

Page 88: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Memory/SuggestibilityResearch vs. The Real World

Conclusion:

• Real World: Children interviewed after they reveal abuse

• Research World: Children interviewed repeatedly after they deny an event

Page 89: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Other Defenses

Page 90: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Mental Illness

• Does the child have a history of mental illness?

• Defendant may be the reason

• Bring in the family dynamics

• Bring in the defendant’s psychological manipulation

• Victim was targeted because she was vulnerable

Page 91: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Mental Illness

• Psychological symptoms may be the result of abuse

• Expert testimony about victim’s particular condition

• Victim is a good historian about other events

• Victim’s abilities in school/home ok

Page 92: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Retaliation

• Parent/Stepparent, New Partner, Baby Sitter, Teacher, Counselor

• Authority Figure

• Usually Older Child

• Discipline

Page 93: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Retaliation

• Desired Result vs. Actual Result– Foster Care– Ostracization/Embarrassment– Financial Hardship for family– Painful and embarrassing exam– Testify before twelve strangers and all of the

other people that victim had to tell– If it were a lie, s/he’d have bailed

Page 94: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Retaliation

• Expose how the victim would have to know about and manipulate the entire criminal justice system

• Establish history of discipline without allegations resulting

Page 95: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Custody/Divorce

• Confirm Chronology– Disclosure prompts divorce– Divorce prompts disclosure – What/who prompted disclosure (common

prompts, e.g., dad filing for visitation, may be a motive for mom to lie, but it is also a prompt for true disclosure)

– Get police reports and court records for dates

Page 96: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Custody/Divorce

• To whom did victim disclose initially and under what circumstances?– Language at disclosure?– Ability of child to disclose peripheral and

sensory details– Was non-offending parent initially supportive?

Page 97: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Custody/Divorce

• Public perception

• Reality: 2% of cases involve custody

• Same validation rate within that 2% as with other sexual abuse allegations

Page 98: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Recantation

• Can’t have it both ways

• The child has lied

• Explain why kids recant:– Secrecy– Lack of support– Pressure to recant– Fear of repercussions– Threats

Page 99: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Recantation

• Assess recantation by:– To whom it was made?– Demeanor/Exact words– Surrounding circumstances– Obviously false statements within

recantation?– Expert testimony: Child Sexual Abuse

Accommodation Syndrome (CSAAS)

Page 100: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

RecantationCSAAS

• Pattern of five behavioral characteristics often observed in child victims of sexual abuse:– Secrecy– Helplessness– Accommodation– Delayed disclosure– Recantation

Roland Summit (1983)Roland Summit (1983)

Page 101: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

RecantationCSAAS

• Children do not necessarily report abuse right after it happens

• Relationship between child and perpetrator is parent/caretaker-child

• Opts not to report for fear of hurting other parent, sending perp. to jail, or not being believed

• Once child feels distance from the offender, child may disclose the matter

• Counter intuitive actions – victim returns to the abuser, compliant victim

Page 102: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

SODDI

• Review state laws regarding rape shield/third party defense

• DNA testing

• STD testing– Timing of symptoms with assault– Defendant’s medical records– Remission

Page 103: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Reasonable Doubt

Lack of Medical/Physical evidence

• Call a doctor anyway (studies show that 85%-95% of confirmed abuse cases have no medical findings)

• “Normal is normal”

• No trauma to female sexual organ after a vaginal canal birth

• Age/sexual development of child

Page 104: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Reasonable Doubt

• “I know he did it, you just didn’t prove it.”• Address in voire dire – victim’s testimony is

enough• Child is credible

– Consistent testimony vs. Identical testimony– Delay in disclosure understandable– Demeanor– Corroboration of victim’s statement

• Clothes, Photos of the room were abuse took place• Suspect interview/statement

Page 105: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

DefensesPhysical Abuse Cases

Accident

• Injuries inconsistent with explanation– Mechanism– Force– Pattern

• Foreseeable nature of the injury– Disregarding the risk

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Accident

• Surrounding circumstances– Nature, number, location and constellation of

injuries– What was said when injury inflicted– Triggering event – motive– Prior acts– Failure to obtain treatment– Failure to mention to injuries– “Baby don’t cruise, baby don’t bruise”

Page 107: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

AccidentAbusive Head Trauma

• Have medical experts narrow time frame as much as possible– If expert cannot/will not, try to establish

witnesses to last known well period of child and who was with baby at onset of symptoms.

– Establish time frame/caretakers when other injuries occurred

– Evaluate motive (e.g., target child), past abuse

Page 108: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Abusive Head Trauma

• Learn all you can about child’s medical history– Diagnoses– Treatment– Genetic issues/family history

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Abusive Head Trauma

Medical Records

• Admitting notes

• History and progress notes

• Nursing notes

• Discharge summary

• Social worker’s notes

• Lab reports

Page 110: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Abusive Head Trauma

Medical Records

• Doctors’ orders

• Consultation notes

• X-Ray/CT Scan/MRI records

Page 111: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Abusive Head Trauma

• Did caretaker act like child had medical problems before he/she was charged?– Take to doctor or administer treatment

• Innocent explanation (CPR caused retinal hemorrhages)– Why was there need for CPR?– Are other symptoms injuries consistent with

CPR and the need to administer it?

Page 112: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Abusive Head Trauma

• Shook to revive due to seizure or unconscious state– Did child have seizure history?– What caused unconscious state?– Appropriate force to revive?

Page 113: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Other Medical Condition Defense

• Consult with medical personnel– Non-injury symptoms of claimed condition– Whether contrary medical evidence exists– Necessary medical history of condition

Page 114: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Other Medical Condition Defense

OI or TBBD

• Actual OI incidence is rare

• Consider family history, clinical indicators, elimination test

• Fractures stop when child removed?

• Consider type of fractures

Page 115: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

SODDI

• Establish:– What did suspect know– When did he know it

• Obtain timeline of symptoms/behaviors

• Who had access to child

• Attempt to get medical assistance

• Last visit to family doctor

Page 116: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Cultural Defense

• “That’s how we do it where I come from”

• Is it true?

• Is it culture or is it abuse? Both?

• Are there areas where the defendant is not following cultural dictates?

• Hid conduct from others in culture

• Focus on conduct

Page 117: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Final Thoughts• No child must ever

stand alone where there is a creative and thorough investigation and prosecution

• Investigators must Investigators must fully document fully document statements, statements, demeanor and crime demeanor and crime scenescene

Page 118: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Final Thoughts

• Suggestive facts Suggestive facts are there – look for are there – look for themthem

• Recognize the Recognize the child’s courage child’s courage with hard work, with hard work, dedication, and dedication, and determinationdetermination

Page 119: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

For when you need me

Robert Giles

[email protected]

Direct Dial: 703-519-1656

Cell: 248-910-2084

Page 120: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse

Acknowledgements

• Many thanks to Rami Badawy, Justin Fitzsimmons, Dr. Cindy Christian, Dr. Suzanne Starling, Det. Chris Rash and Victor Veith for their help in creating this presentation

Page 121: Investigation and Prosecution of Child Abuse Cases Robert Giles Senior Attorney NDAA’s National Center for Prosecution of Child Abuse