Videotaping investigative interviews of children in cases of child sexual abuse: one community's approach.

AuthorVandervort, Frank E.
  1. INTRODUCTION

    Despite recent encouraging signs that child sexual abuse may be on the decline, it remains a critical social problem. (1) Proving child sexual abuse in criminal proceedings is notoriously difficult. (2) Because of a lack of physical or medical evidence in most cases, (3) and because these offenses by their nature typically take place in private, often the statements of the child who is the alleged victim are critically important, and perhaps the only, evidence. (4) Debate about how to capture the courtroom testimony of child witnesses, and its efficacy, has been vigorous for two decades. (5) That debate has been most pointed when child sexual abuse is alleged. (6) Since the mid 1980s, one focus of this debate has been whether investigative interviews with children should be videotaped. (7)

    As might be expected given the adversarial nature of our legal system, the debate about videotaping has proceeded primarily from two diametrically-opposed positions. (8) The primary opposition to videotaping has come from prosecutors. (9) Conversely, defense advocates have argued for mandatory videotaping of investigative interviews with children. (10) Indeed, some commentators who are skeptical of children's ability to recall and relate their experiences have argued that virtually every interview of a child by a professional which takes place for any reason should be videotaped. (11) Child advocates have staked out somewhat more nuanced positions on the issue which cautiously endorse the practice of videotaping investigative interviews, but with a number of qualifiers. (12)

    Largely absent from this debate, however, has been the broader community's perspective. (13) While prosecutors are said to represent "the people," "the commonwealth," or "the state," in reality their interests may be different from those of the broader community they are charged with protecting. (14) For example, while the sexual abuse of children is a crime in every jurisdiction in the country (15) and a social problem that renders many children's homes unsafe, (16) some prosecutors have expressed the belief that the family court rather than criminal prosecution is the most appropriate means of responding to the phenomenon of intrafamilial child sexual abuse. (17) This attitude may, in part, account for the relatively small percentage of child sexual abuse cases that result in criminal charges. (18)

    This article is based upon research conducted by the St. Mary County research group at the University of Michigan School of Social Work, of which the author is a member. It begins by reviewing the arguments on each side of the controversy surrounding the videotaping of investigative interviews of children in child sexual abuse cases. It will then assert that the arguments on either side of this controversy have proceeded from the dichotomous perspectives of the direct participants in the legal system and have created a vacuum that has not adequately considered the interests of the community as a whole in the operation of its legal system. In doing so, it will suggest a number of community interests that are at stake in the operation of the criminal justice system and the videotaping controversy. The Article will explore how the broader community's interests are served by removing the videotaping debate from the vacuum in which it has taken place and reframing the question to ask whether or not to videotape investigative interviews helps advance the community's interests when it is used as part of a broader investigative protocol. In doing so, this Article will focus on research that has been conducted on the protocol utilized in St. Mary County, which has been the subject of several published quantitative studies and is currently the subject of in-depth qualitative study. (19) The Article will conclude by arguing that the community's interests will best be met by using videotaping as one element of a broader protocol for investigating cases of suspected child sexual abuse rather than as the primary investigative tool. Additionally, the Article will assert that careful study of the evidence from St. Mary County suggests that both prosecution and defense advocates should rethink their positions regarding the use of videotaping.

  2. VIDEOTAPING INVESTIGATIVE INTERVIEWS OF CHILDREN: THE DEBATE AND ITS LIMITS

    Debate about the credibility of child witnesses is long-standing. (20) As early as the late 1800s, the competency of children to testify has been an issue with which American courts have struggled. (21) As early as 1895, in Wheeler v. United States, (22) the Supreme Court addressed the issue of a child's competency to serve as a witness in a criminal proceeding. From that case emerged the classic competency colloquy regarding whether the child knows the difference between the truth and a lie, and the broad discretion on the part of trial judges to qualify or disqualify a particular child as a witness. (23)

    This historical skepticism regarding the competency of child witnesses has formed part of the foundation for the more recent controversy about whether children's disclosures of sexual abuse are credible. (24) Thus, while many states have eliminated the requirement that a child witness's competency be established, remnants of that rule remain. For example, in 1998, Michigan enacted a statute requiring that Children's Protective Services (CPS) workers and law enforcement officers investigating allegations of child abuse utilize a forensic interviewing protocol. (25) Despite the fact that Michigan has repealed its statute requiring that the competency of children under ten be established before they are allowed to testify, the forensic interviewing protocol continues to encourage forensic interviewers to engage in this "truth-lie" exercise. (26)

    Because of concerns about the reliability of children's statements describing sexual abuse, advocates for those accused of such abuse have asserted that the constitutional right to due process of law mandates that investigative interviews with children be videotaped or otherwise electronically recorded. (27) The United States Supreme Court has declined to read into the Due Process Clause a requirement that investigative interviews of suspected child sexual abuse victims be videotaped. (28) In doing so, however, the Court has noted that videotaping "may well enhance the reliability of out-of-court statements of children regarding sexual abuse." (29) Thus, the decision whether to require or merely encourage videotaping of investigative interviews is discretionary, to be made by local law enforcement personnel.

    1. ARGUMENTS AGAINST VIDEOTAPING

      Arguments against videotaping investigative interviews with children have primarily been advanced by prosecutors. (30) While some commentators have emphatically rejected the routine practice of videotaping investigative interviews, (31) others have suggested that while videotaping is not inherently problematic, the legal system is not yet ready for the routine use of such videotapes because members of the bench and bar are too unsophisticated in their understanding of child development and the process by which children disclose sexual abuse to be able to properly analyze these recordings. (32)

      Professor John Myers has summarized a number of the arguments against videotaping: (33) recording interviews will place undue emphasis on inconsistencies in children's statements about abuse; (34) the videotapes become the central focus of trials of sexual abuse charges while other equally or more important evidence is disregarded; (35) defense attorneys will overemphasize errors made by interviewers; (36) it is impossible to videotape every statement a child makes about abuse; (37) children will be frightened and intimidated by the presence of recording equipment; (38) technical problems with recording equipment will render videotaping less effective; (39) and once recorded, the tape of the child's interview may be misused. (40)

      Other commentators have expressed concern that electronically recording investigative interviews of children does not address the more fundamental problem of poor interviewing technique utilized by forensic interviewers and the lack of knowledge on the part of lawyers and judges regarding the intricacies of interviewing children. (41) One commentator observed that defendants would derive a tactical advantage if investigative interviews were electronically recorded because videotaped statements are likely to be given under conditions which are less psychologically stressful, and the child would be less apt to "break down" on tape than in the courtroom. (42) This commentator also argues that defense counsel will have an advantage because they will know "the precise nature of the key witness's testimony well before trial, and could therefore better prepare for trial." (43)

    2. ARGUMENTS FOR VIDEOTAPING

      Arguments in support of videotaping investigative interviews of children have been advanced primarily by advocates for defendants and some child advocates. (44) Advocates from the defense perspective generally do not frame their arguments in terms of what will serve the broader community. (45) Rather, they utilize a rights-based perspective to assert that the defendant's individual right to due process and fundamental fairness requires preservation of investigative interviews with children. (46) To the extent that the broader community's interests enter into their analysis, it does so only indirectly through critical analysis of the charges leveled against the defendant and the investigative methods used in mounting those charges.

      Defense advocates assert that the failure to videotape child interviews is the equivalent of failing to preserve evidence that is potentially exculpatory and, therefore, violates a criminal defendant's constitutional right to due process of law. (47) Apart from the constitutional argument, these advocates and...

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