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Psychological Evaluations You Need for Trial

May 05, 2012, 10:38:00 PM
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Psychological Evaluations You Need for Trial:
What They Can and Cannot Do
Ralph Underwager and Hollida Wakefield

Lawyers and lawyering as we know it now began with approximately simultaneous but separate developments in Greece and Israel in the fifth century b.c. In Greece the rhetores, professors of rhetoric, began to teach people how to sway juries using oratory. Aristophanes, in the fourth century b.c., had an experienced Athenian juryman put it this way in one of his plays:

There isn't a form of flattery they don't pour into a jury's ear. And some try pleading poverty and giving me hard luck stories. . . . Some crack jokes to get me to laugh and forget I have it in for them. And, if I prove immune to all these, they'll right away drag up their babes by the hand (Casson, 1987, p. 123).


In Israel the Jews returned from captivity in Babylon to rebuild Jerusalem and the Temple. To maintain their identity and distinguish themselves from the surrounding pagan tribes, they developed a meticulous scholarly reliance upon the Torah, the written law, and the minhag, tradition. The scholars who studied these areas became the jurists, canonists, moralists, and lawyers of Jewish life. These two distinct historical developments have coalesced in Western civilization to produce our current system of law with an emphasis on high moralism and careful scholarship but a reality that is often an amoral, goal-oriented, and an end-justifies-the-means experience (Underwager & Wakefield, 1989; Wakefield & Underwager, 1988).

For 2000 plus years, law and lawyers have relied upon common sense, introspection, anecdotes, and culturally accepted truisms about human behavior in making and practicing law. Psychology claims Aristotle as the first practitioner of a systematic analysis of human behavior but the contemporary science of psychology is generally dated from the foundation of the first experimental psychological laboratory by Wilhelm Wundt at the University of Leipzig in 1879 (Woodworth & Schlosberg, 1954). For over 100 years psychologists have been skeptical of commonly accepted beliefs about human behavior and have acquired theories, facts, and data that often contradict assumptions deeply embedded in the law. The first experiment in the psychology of testimony was likely done by Cattell in 1893 at Columbia University. The first time a psychologist testified in a trial as an expert witness was 1896 in Munich in a serial sexual murder trial. The psychologist, Schrenck-Notzing, testified that witnesses are suggestive, and extensive pretrial publicity had led to "retroactive memory-falsification." He supported his testimony with laboratory research on memory and suggestibility (Bartol & Bartol, 1987).

Not much has changed in 97 years. Law and the science of psychology are still struggling today with reconciling differing views and facts about memory and suggestibility as well as other issues. The conflict between law and psychology is largely fueled by the psychologist's distrust of commonly held truisms about human behavior and the lawyer's reliance upon such aphorisms. An example is the readiness of the law to rely upon demeanor as a source of information that can lead to truth, whereas the psychologist who is familiar with the research evidence knows that a subjective interpretation of demeanor does not rise above chance level in ascertaining truth (Bond & Fahey, 1987; Bull, 1989; DePaulo, Lanier, & Davis, 1983; Ekman & O'Sullivan, 1989, 1991; Rogers, 1988; Schlenker & Weingold, 1992).

Another source of the conflict is that psychology is looking for what is nomothetic, that is, law-like or lawful about human behavior. Therefore the psychologist looks at bunches of people to see what regularity or commonality there is to behavior across people and across environments. The facts of the science of psychology are those patterns of regularity which can be reliably replicated and predicted across large numbers of people and situations. Law, however, looks at an individual, at individual case-specific circumstances, and at a specific environment to determine the culpability of a specific person. This is the idiographic responsibility of the justice system. The psychologist says many people do thus and so. The lawyer says tell me about this person right here. If the psychologist succumbs to this temptation and says innocent or guilty, that is beyond both the science of psychology and the competence of any scientist. If the law accepts the probabilistic regularities of the science of psychology about most people, but not all, it can never get beyond reasonable doubt and thus nobody gets convicted.

A possible solution to this conflict, however, is the admission by Tribe (1971) that all factual evidence is by nature ultimately statistical and all legal proof is probabilistic. No conclusion can be drawn from any empirical data without some step of inductive inference. For those lawyers who see psychology as, at best, soft science and, at worst, hopelessly subjective speculation, Tribe's understanding may reduce the tendency to automatically reject information from psychology.

Nevertheless, both the lawyer and the psychologist should have no trouble agreeing that improved accuracy is a goal of both ventures. Nobody would deny that both the science of psychology and the exercise of law are imperfectly accurate. Nobody would deny that, while a trial in the justice system may be a lot of things, it is intended to produce the most accurate result possible. Every person involved in the justice system benefits from increasing the accuracy of the decision-making process. This includes judges, attorneys, accusers, victims, defendants, law enforcement, and the entire commonwealth.

Through legal decision making we seek to avoid the classic errors of convicting an innocent defendant or acquitting a guilty one, or finding liability when there is none or failing to find liability when it is present. Whatever justice may be, surely it is not error (Saks & Kidd, 1980-81, p. 123).


The science of psychology can provide information that increases the accuracy of the decision-making process for the justice system. However, in order to do that, lawyers need to understand how to let it happen. That is what this presentation aims at-increasing the ability of the lawyer to use psychology as an aid in making better and more accurate decisions.

It is not necessary to become sophisticated in scientific methodology or the theories, methods, and statistical procedures of psychology to understand at least three basic facts about psychology. First, it is a widely variant, heterogeneous corpus of knowledge that is as broad as human behavior and interests. Psychologists study the refractory latency of the sea anemone's motor neurons, the dream archetypes of Jung, and the anticipatory fractional goal responses of white rats.

Second, an important dimension is the relative level of sophistication of the mental health professions. While all may speak with similar degrees of confidence and certainty, that has no relationship to accuracy (Arkes & Harkness, 1980; Bell & Loftus, 1989; Fischhoff, Slovic, & Lichtenstein, 1977). Although there are individual differences, the training of mental health professionals permits a ranking in terms of likely scientific sophistication. Social workers and psychiatrists are less likely to be aware of scientific considerations than psychologists. However, the decrement in rigor of training since the late 1960s and the development of Psy.D. degree-granting institutions suggests that younger psychologists may be less able to demonstrate sophisticated scientific understanding (Dawes, 1992).

Third, there are differences in the level of scientific undergirding available for theories, facts, generalizations, and explanatory constructs of psychology. The concepts of psychology vary from those with high and clear validity to low and doubtful validity. Unfortunately, there are many psychologists who appear to be unaware of this distinction and are not competent to evaluate data in a scientific fashion (Dawes, 1988; Faust & Ziskin, 1988; McFall, 1991; Meehl, 1989; Overholser & Fine, 1990; Sechrest, 1992; Wakefield & Underwager, 1993; Ziskin, 1983).

While the legal system may fairly safely assume that a competent computer programmer knows what most programmers know about software, that assumption cannot be made in the "soft" areas of the science of psychology (clinical, counseling, community, social, personality, developmental) (Meehl, 1989). The Frye test or other approaches the law takes to handle this factual diversity in level of validity may produce rough approximations but does not fully encompass the issues involved. Unfortunately, jurists often look to prior judicial opinions to determine the general acceptance of psychological research. This may introduce significant error into rulings on the issue of admissibility of psychological information. Judges make errors on the basis of individual differences, levels of knowledge of law, and personal factors. Whether or not there is general acceptance in the scientific community is best determined by the psychologists themselves (Kassin, Ellsworth, & Smith, 1989; Large & Michie, 1981; Monahan & Walker, 1991).

An area in psychology where there is now high and clear validity crucial to the use of psychological evaluations in the courtroom is personality traits and behavioral dispositions. After more than 20 years of debate, it is now understood there are indeed personality traits that are at least quasi-nomothetic and demonstrate consistency across situational variables (Tellegen, 1991). We are not limited to a view of ourselves or our neighbor as essentially capricious and subject to random variations in mood or behavior. The psychological evaluations likely to be the most significant in the courtroom are personality assessments. If the assessment is done using techniques and procedures with demonstrated validity and reliability, and if the interpretations are supported by credible data, statements about the likely behavior of the individual may be properly made. Such statements would not be subject to challenge by the Frye test nor should they be denied as lacking probative value.

Although the law recognizes experience as a basis for an opinion, any person, purporting to be a scientist, who advances an opinion based on experience alone has abandoned scientific knowledge. It is unethical for a psychologist to state an opinion based on experience alone (Dawes, 1989). The law also places heavy emphasis on personal interviews. The scientific psychologist knows that one of the most solidly established facts in psychology is that statistical, actuarial approaches based on valid and reliable measurements are superior to clinical interviews alone (Dawes, Faust, & Meehl, 1989; Einhorn & Hogarth, 1986; Gambrill, 1990; Garb, 1989; Kleinmuntz, 1990). This is hard for many mental health professionals to accept since it seems to each of us that our own brilliant insights should be better than what a $3.95 calculator can produce. Unfortunately, the data are contrary to that perception. A lawyer who has done selection interviews for employees or partners may have some sense of the fallibility of such interviews.

Criminal Cases:
Psychological Evaluation of the Defendant

What it Cannot Do

No psychological test nor evaluation procedure can ascertain whether a given individual has, in fact, abused a child or committed any other specific behavior. Hall and Crowther (1991) observe, "In sum, there appears to be no psychological method of identifying sexual aggressors and predicting recurrence of sexually abusive behavior that has unequivocal empirical support" (p. 80). Myers (1992) notes that "There is no psychological litmus test to detect sexual deviancy." Erickson, Luxenberg, Walbek, and Seely (1987) report that there is no typical sex offender MMPI profile and that "Attempts to identify individuals as likely sex offenders on the basis of their MMPI profiles are reprehensible" (p. 569).

Psychological tests are often misused and overinterpreted and misinterpreted in forensic evaluations (Wakefield & Underwager, 1993). The attorney should therefore request all records from other evaluations (not only reports, but notes and raw test data) and provide it to his or her expert to review. One of the areas of testimony a psychologist can provide is to indicate where there is no satisfactory scientific data to support a claim. This is to identify areas or concepts of low and doubtful validity (Meehl, 1989). Also, psychologists conducting an evaluation are ethically required to be current in knowledge and to make available all data that form the basis for their evidence or services (APA Committee on Ethical Guidelines, 1991). Not to do so or not to be able to provide supporting credible data is unethical, malpractice, and negligent.

A penile plethysmograph should never be used to determine whether an individual who denies abuse is, in fact, sexually deviant. It must not be used to suggest whether or not a given individual is a pedophile. It should not be used with juveniles under any circumstances. This technique, when done carefully and appropriately, may be helpful for treatment planning. But it should never be used with someone who denies sexual abuse in order to assess the veracity of the denial. The consensus of the experts in the field is that plethysmography may be useful in treatment, has limited use with known sex offenders in predicting future behavior, but is of no use in screening a normal population. It cannot be used to determine whether a person who has been accused of sexual molestation and is denying it is telling the truth (Annon, 1993; Barker & Howell, 1992; Murphy & Peters, 1992).

What it Can Do

A psychological evaluation of the person accused can provide information concerning the likelihood that an individual would engage in the behaviors alleged. There is a regularity to persons and a link between personality and behavior. A shy, introverted, individual is unlikely (unless under the influence of drugs or alcohol) to tell loud jokes and become the center of attention at a party. This behavior would not be unusual in a histrionic, uninhibited extrovert. The fundamental principle involved is the nomothetic trait and behavioral dispositions mentioned earlier. An individual cannot be selectively crazy and a disorder cannot be confined to one singular situation or behavior. Normal, functional persons do not act in highly bizarre, unusual, and totally idiosyncratic ways.

Psychological evaluations are less helpful when the behaviors alleged are of nonviolent fondling and closer to normal, acceptable behavior. But if the allegations are of more intrusive, deviant, or sadistic behaviors, a psychological evaluation gives extremely useful information. A psychologically-normal individual is unlikely to violently rape a preschooler.

Although the terms are often used interchangeably, a distinction must be made between "sex offender against a minor" and "pedophile." The former is a criminal sexual behavior and the latter an anomalous sexual preference. Okami and Goldberg (1992) note that, because some actual pedophiles may never act on their impulses, and/or are never arrested, samples of sex offenders against minors do not represent the population of pedophiles. Therefore, research on the characteristics of child sexual abusers must not be generalized to pedophiles.

There is no single child sex offender personality type. Child sexual abusers are often described as inadequate, immature individuals with low self-esteem and poor social skills. They show poor impulse control. Incest fathers are sometimes described as tyrannical, domineering, and behaving without regard for other family members, but some are seen as shy, inhibited, and ineffectual in social relations. They are sometimes seen as feeling inadequate as males and angry at women and also as hostile, aggressive, psychopathic and violent (Ballard, Blair, Devereaux, Valentine, Horton, & Johnson, 1990; Kalichman, Shealy, & Craig, 1990; Langevin, 1983; Overholser & Beck, 1986; Weinrott & Saylor, 1991). The research supporting these observations is not as strong as it could be but it is continuing to accumulate.

Several oft-repeated claims are unsupported by research. For example, although some professionals distinguish between "fixated" and "regressed" pedophiles, empirical research does not support the existence of this typology (Conte, 1990; Knight, 1989; Knight, Carter, & Prentky, 1989; Simon, Sales, Kaszniak, & Kahn, 1992). Another unsupported claim is that most sexual abusers were themselves abused as children. But the empirical evidence does not support this belief (Garland & Dougher, 1990; Langevin & Lang, 1985; Murphy & Peters, 1992; Rivera & Widom, 1990; Widom, 1989a, 1989b, 1989c). Although the DSM-III-R (American Psychiatric Association, 1987) states that childhood sexual abuse is a predisposing factor in pedophilia, this statement is not found in the DSM-IV (American Psychiatric Association, 1994).

However, despite the fact that sex offenders are heterogeneous in personality characteristics, they are likely to have psychological problems. The more aberrant the behavior of a child sexual abuser, the more likely it is that he will have psychological difficulties that are reflected in psychological testing. Although there is no typical MMPI profile for child abusers, they generally will not have normal MMPIs. The pathology tends to be found in the elevation of the scales which reflect poor impulse control, antisocial behavior, poor judgment, a history of acting out, lack of self-esteem, feelings of inadequacy, a schizoid social adjustment, much time spent in fantasies, and/or thought disorders and confusion. Scale 4 in various combinations with other MMPI scales is a common pattern.

At the same time, some sex offenders produce normal MMPIs. Erickson, Luxenberg, Walbek, and Seeley (1987) found that 19% of their convicted sex offenders had within normal limits profiles. Shealy, Kalichman, Henderson, Szymanowski, and McKee (1991) report on MMPIs of incarcerated sex offenders against children and found two of four subgroups with mean MMPI profiles that were within normal limits (although all four groups had various types and levels of difficulties in personality functioning). Therefore, a "normal" personality based on an MMPI or other assessment techniques does not mean that the individual could not be a sexual abuser.

The individual must be evaluated in light of the specific behaviors he is accused of committing. When it cannot be demonstrated that an accused person has the level of pathology expected given the behaviors alleged, the likelihood of a false accusation increases. However, the presence of psychological problems does not mean the abuse is real, since most people with psychological problems are not sexual abusers.

The psychological evaluation should include a diagnostic interview, a social/sexual history, and a battery of psychological tests, with emphasis on objective tests such as the Minnesota Multiphasic Personality Inventory (MMPI-2), Millon Clinical Multiaxial Inventory-II (MCMI-II), and the California Psychological Inventory (CPI). We use the Shipley for intellectual screening, and if necessary perform a Wechsler Adult Intelligence Scale (WAIS-R). Depending upon the responses to the initial tests, we may add other tests. Tests intended for sex offenders, such as the Multiphasic Sexual Inventory, should not be used for individuals who are denying abuse. The basic selection criterion for tests should be demonstrated validity and reliability. Projective techniques such as the Rorschach, the Draw a House, Tree, Person, and the Thematic Apperception Test should be used only with the ethically required appropriate qualifications and limitations.

Although the research described above is on men, a psychological evaluation is also useful when a woman is accused of sexually abusing a child. Awareness about women perpetrators of sexual abuse has greatly increased in recent years, although sexual contact between children and women is a minority of child-adult sexual contacts. Many studies depict women who sexually abuse children as being loners, socially isolated, alienated, likely to have had abusive childhoods, and apt to have emotional problems, although most are not psychotic (see Wakefield & Underwager, 1991a for a review). It is unlikely that a psychologically healthy and well-adjusted woman would sexually abuse a child.

Admissibility and Psychological Evaluations vs. Profile Evidence

A psychological evaluation is different from profile evidence. The psychological evaluation includes clinical interviews and psychological tests and provides information about the individual's psychological characteristics and functioning. The information obtained from objective tests such as the MMPI-2 the MCMI-II and the WAIS-R is based on empirical evidence from the normative samples used in standardizing the tests. In addition to a diagnostic interview and psychological testing, a forensic evaluation includes information from the review of available documents such as police reports, child protection reports, hospital records, and transcripts, tapes, or statements of the complaining witness.

The concept of profiles comes from the FBI's Behavioral Science Unit. McCann (1992) defines profiling as "the process of analyzing various aspects of violent crime to derive a set of hypotheses about the characteristics of an unknown assailant. The ultimate goal of profiling is to assist in the successful apprehension and conviction of the perpetrator" (p. 475). Reiser and Klyver (1987) define profiling as an "imprecise art consisting of case evidence, probability data from similar cases, psychological information about the victim and possible suspect, possible unconscious as well as conscious motivations, and the meaning of available symbolic communications, including mutilations or ritualistic markings" (p. 439). The model for this profiling approach is Sherlock Holmes.

A profile includes demographic data such as age, sex, and education, the modus operandi, and ambiguous personality traits such as "loner" and "low self-esteem." Data used to generate profiles are developed from clues found at the crime scene, information about the victim, forensic science reports, and witness statements. For example, the FBI described the likely kidnapper of Jacob Wetterling (a boy kidnapped in Minnesota in 1989) as "a white man between 25 and 35 years old . . . a loner working at an unskilled job that requires little contact with the public . . . he has low self-esteem and may have physical defects ranging from acne scars to amputation" (Doyle, 1989). Although profiling can potentially be based on empirical data, at the present time it is poorly researched and it is generally held that profiling is more art than science.

Profile evidence is usually not admissible in court, although McCann (1992) cites three cases where FBI profilers have been qualified and allowed to testify.2 Myers (1992) points out that many courts hold sex offender profiles are a form of novel scientific evidence that has not found general acceptance in the scientific community. Peters and Murphy (1992) summarize appellate rulings and conclude, "With the notable exception of courts in California, virtually every appellate court that has ruled on the admissibility of expert testimony regarding the psychological profile of child molesters has rejected it" (p. 39).

Therefore, if the attorney wants to enter the results of a psychological evaluation into evidence, the proposed testimony must be differentiated from profile evidence. If it is defined or characterized as "profile evidence" it is unlikely to be admitted. To permit an adversary to characterize a carefully done psychological evaluation as profile evidence is a grievous error. The proper response is to immediately object and then elicit testimony from the expert as to the difference. Information from a psychological evaluation that is based on standardized and accepted objective psychological tests and that forms the basis of the expert's opinion testimony is not novel scientific evidence subject to the Frye test.3 The information from the interviews and tests should be integrated into the body of data available from all sources, i.e., history, past records, behavioral observations by others, and medical findings (Matarazzo, 1990).

Evaluation of the Child Witness

The evaluation of the child witness is extremely useful and the attorney should always request the court to order an interview and/or evaluation of the child witness by the defense's expert.5 This is granted some of the time. The problem is that many interviews, particularly of young children, are so leading and suggestive that the information obtained is simply not reliable. Therefore, even when there are videotapes of prior interviews, a new interview can be helpful in determining what may have actually happened. However, testimony about the ultimate issue will not be permitted.

Young children can provide forensically useful information, but adults have to know how to get it from them (Ceci & Bruck, 1993a, 1993b; Garbarino & Stott, 1989). Jones and Krugman (1986) describe a case of a three-year-old girl, who had been kidnapped, abused, and left in a mountain outhouse. When found and later interviewed by the police she was able to describe what had happened and to pick out the perpetrator from a lineup. The perpetrator ultimately confessed, confirming the accuracy of the child's description.

However, although young children can provide accurate information, they recall less than do adults (Lepore, 1991). But the less information the child gives in free recall, the sooner the interviewer may start using leading questions, which can influence the child and distort the story. Also, young children may perceive the interview task differently from adults and try to tell the interviewer what they believe the interviewer wants them to say (Ceci, Ross, & Toglia, 1987; Cole & Loftus, 1987). They may answer questions they do not understand and about which they have no information (Hughes & Grieve, 1983).

Therefore, the interviewer must attempt to tap into a child's accurate free recall by encouraging the child to tell in his or her own words what has happened. Several professionals have suggested guidelines for conducting an unbiased evaluation and noncontaminating interview (e.g., Annon, 1994; Daly, 1991 & 1992a, 1992b; Quinn, White, & Santilli, 1989; Powell & Thomson, 1994; Raskin & Yuille, 1989; Slicner & Hanson, 1989; Underwager & Wakefield, 1991; Wakefield & Underwager, 1988, 1994c; White, 1990). The interviewer must go into the interview with an open mind without bias about what happened and attempt to explore all possible hypotheses. The interviewer should ask open-ended questions and encourage the child to provide a free narrative. Details should be encouraged by responses such as "and then what happened." Pressure and coercion, leading questions and selective reinforcement of responses, and unvalidated techniques must be avoided.

A promising procedure for interviewing children and analyzing the resulting interview is Criterion Based Content Analysis/Statement Validity Analysis (CBCA/SVA). This technique assumes an account based on memory for an actual event will differ in content and quality from accounts that are based on fabricated, learned, or suggested memory. The procedure requires a relatively complete statement obtained as soon as possible after the child has disclosed an incident and the interview must be designed to obtain as much free narrative as possible. Leading questions and suggestions must be avoided. The interview is tape-recorded and transcribed for later analysis (Köhnken & Steller, 1988; Raskin & Esplin, 1991; Rogers, 1990; Undeutsch, 1989).

The child should be discouraged from trying to answer questions when the answer is not known. Age-appropriate instructions such as, "I don't want you to say something that didn't happen, but if something did happen, I want you to tell me about it" can be given. Repeated questions should be avoided since this tells the child the previous answers were not acceptable. Discussions of "good touch" and "bad touch" should not be used since these are confusing and potentially contaminating.

All interviews of the child should be videotaped, or at least audiotaped, since a tape is the only means whereby the procedures and information obtained during the interview can be accurately documented (DeLipsey & James, 1988; Herbert, Grams, & Goranson, 1987; Jenkins & Howell, 1994; Lamb 1994a, 1994b; Raskin & Yuille, 1989; Underwager & Wakefield, 1990, Wakefield & Underwager, 1988, 1989, 1994b). In practice, this is often not done. Many prosecutors do not want the defense to get a tape so that they can criticize the interviewer's techniques during the trial (Stern, 1992). This is hardly a legitimate argument if the goal is accuracy in decision making. A major research project on child victim witnesses reported by Myers (1994) found a clear consensus that investigative interviews of children should be videotaped. Videotaping was seen as providing an incentive for interviewers to use proper techniques.

Assessing Prior Formal and Informal Interviews in the Child Witness

The expert can provide helpful information about the investigation and the resulting statements from the child even if not allowed to interview the child. Prior to trial, children are often interviewed repeatedly, put into sexual abuse therapy, and/or talked to by adults who believe the abuse is real. This may all occur prior to the defense retaining its own expert.

In such cases, the progress of the case along with the procedures followed by the previous evaluators must be carefully examined in order to assess possible contamination (Wakefield & Underwager, 1988; White & Quinn, 1988). When children have been subjected to multiple leading and coercive interviews and/or disclosure- based therapy their recollections may become so contaminated that it becomes extremely difficult to determine what is likely to have happened. Therefore, it is essential to analyze all contacts with the child in which abuse was discussed.

Understanding this is necessary for assessing a child's current statements about abuse. Although repeated and/or suggestive interviews do not mean that a child has not been abused, they make it very difficult to sort out what, if anything, may have happened. Ceci and Bruck (1993a) stress examining carefully the conditions at the time of the initial disclosure and the process since then to which the child has been subjected. The suggestibility of children to leading and coercive interviews and the importance of examining the above process is generally accepted in the scientific community.

A number of writers have examined memory development, cognitive and moral development of children, and suggestibility of children to adult social influence (e.g. Ceci, 1994; Ceci & Bruck, 1993a, 1993b; Doris, 1991; Garbarino & Stott, 1989; Lassiter, Stone, & Weigold, 1987; Lepore, 1991; Lindsay, 1990; Loftus & Ketcham, 1991; Underwager & Wakefield, 1990; Wakefield & Underwager, 1988). The fact that children can be led to make statements about and even believe in events that have not happened does not mean that children lie, but rather that they are influenced by the adult's beliefs (Wakefield & Underwager, 1988, 1994c). Some recent studies have provided dramatic demonstrations of the degree to which young children can be influenced by an interviewer (Ceci, 1994; Ceci & Bruck, 1993a, 1993b; Ceci, Loftus, Leichtman, & Bruck, 1994; Leichtman & Ceci, in press; Clarke-Stewart, Thompson, & Lepore, 1989; Haugaard & Alhusen, 1992; Thompson, Clarke-Stewart, Meyer, Pathak, & Lepore, 1991).

In situations where a child will eventually testify, the memory will consist of a combination of recall and reconstruction influenced by all of the interviews, conversations, and therapy sessions that have occurred during the delay. The longer the delay, the greater the possibility of social influence and the more the memory may consist of reconstruction rather than recall.

In the offer of proof concerning testimony about the above, stress that the testimony will concern the adult social influence exerted on the child and not the credibility of the child. This must be done to prevent the testimony from being excluded on the basis that it goes to the ultimate issue. Testimony about prior interviews, particularly when there are tapes and/or transcripts available, is often extremely important. The New Jersey Supreme Court in New Jersey v. Michaels (642 A.2d 1372, N.J. 1994) states:

[1] We therefore determine that a sufficient consensus exists within the academic, professional, and law enforcement communities, confirmed in varying degrees by courts, to warrant the conclusion that the use of coercive or highly suggestive interrogation techniques can create a significant risk that the interrogation itself will distort the child's recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events (p. 1379).

Unsupported Interview Techniques

In evaluating the investigation and interview process, look for unsupported interview techniques that may have been used. Although the anatomical dolls are most frequently used, other techniques are also used. These include books, puppets, drawings, projective cards, play dough, games, and play therapy (Kendall-Tackett, 1992). None of these are reliable or valid for assessing possible sexual abuse. Their use is apt to contaminate the statements children may make, especially if the interviewer encourages the child "to pretend."

Although the anatomically-detailed dolls are widely used by many different types of professionals (Boat & Everson, 1988; Conte, Sorenson, Fogarty, & Rosa, 1991; Kendall-Tackett & Watson, 1992), they are extremely controversial and there is disagreement in the professional community as to whether they should be used (e.g., Koocher et al., 1994; Yates & Terr, 1988). The American Psychological Association (APA Council of Representatives, 1991) issued a statement concluding that there are no normative data for the dolls and their use, and that there are no uniform standards for conducting interviews with the dolls.

The use of the dolls can be a modeling and learning experience for a child (Underwager & Wakefield, 1990; Wakefield & Underwager, 1988, 1994c). Interviewers model handling the dolls, suggest that they be undressed (or undress them for the child) and label them for the child. They ask the child to show with the dolls what the accused perpetrator did and they may even place the dolls in sexually explicit positions for the child. Several studies suggest that some nonabused children engage the dolls in sexual play (Dawson & Geddie, 1991; Dawson, Vaughan, & Wagner, 1992; Everson & Boat, 1990; McIver, Wakefield & Underwager, 1989).

The studies that claim to show differences between the responses of sexually abused and nonabused children have major methodological shortcomings which limit any conclusions that can be drawn from them (Ceci & Bruck, 1993a, 1993b; Underwager & Wakefield, 1990, Wakefield & Underwager, 1989, 1991b, 1994c; Wolfner, Faust, & Dawes, 1993). Skinner and Berry (1993) observe that distinct patterns of play of abused versus nonabused children have not been identified and that the lack of norms calls into question the forensic use of the dolls. Wolfner, et al. (1993) conclude that there is no scientific evidence to justify clinical or forensic diagnosis of sexual abuse on the basis of doll play. Levy (1989) argues that any statement by a child that is the product of a doll-aided evaluation should be inadmissible as evidence.

DeLoache (1995) notes that the basic reason for using anatomical dolls is the belief that the dolls will elicit information from children that they are unable or unwilling to give verbally. But she observes that, not only is there no good evidence that dolls help in interviews with very young children (age 3 and below), the presence of the dolls might result in the youngest children providing less information. Younger children cannot understand the basic self-doll relation assumed by interviewers who use the dolls. Since they cannot use dolls as symbols or representations for themselves, they cannot use the dolls to enact their own experiences.

In summary, there is no evidence that doll interviews are a reliable method for getting accurate information about sexual abuse. The anatomical dolls cannot be said to be generally accepted in the scientific community.

Children's drawings, such as the House-Tree-Person (HTP) and Kinetic Family Drawings, as well as free drawings, which are often used in assessing possible sexual abuse, are subject to the same criticisms as are the dolls (Underwager & Wakefield, 1990; Wakefield & Underwager, 1988, 1989b, 1991, 1994c). There is no research establishing that drawings can be used diagnostically to substantiate sexual abuse. The only valid use of drawings is in establishing rapport and encouraging the child to talk. Similar criticisms apply to children's books about sexual abuse, such as Red Flag Green Flag People (Rape and Crisis Abuse Center, 1985). In this book, after being led through a series of pages that present good touch and bad touch, children are told to color portions of a figure where they were touched. But neither this book or any others have been validated for diagnosing child sexual abuse.

A child's behavior in play therapy may be used to substantiate abuse. Such therapy is sometimes called disclosure-based and the sessions focus on reenactments and talking about the alleged abuse. Although there is no evidence that play therapy is an effective therapeutic procedure (Campbell, 1992a; Underwager & Wakefield, 1990; Wakefield & Underwager, 1988, 1994c; Weisz & Weiss, 1993) children are frequently given therapy for sexual abuse before there has been any legal determination that sexual abuse has occurred. But there is no support for the supposition that behaviors in play therapy can be used as signs to establish the truth of past events. Campbell (1992b) notes that play therapy can influence children to accept the beliefs of the therapist and can be a contributing factor to false allegations.

Evaluating the Child's Statement and The Allegation

Several factors should be considered in analyzing a case. The circumstances under which the original report was made, the age of the child, how many times the child was questioned, the hypotheses of the interviewers who questioned the child, the kinds of questions that were asked, and the consistency of the child's report over time are all important in judging the credibility of the allegation (Berliner & Conte, 1993; Ceci & Bruck, 1993a, 1993b; Underwager & Wakefield, 1990; Wakefield & Underwager, 1988, 1994c).

The origin and timing of the original disclosure is important. The allegations are less likely to be correct when an adult, rather than a child, initiates the disclosure (Yates & Musty, 1988, Yates, 1988). The disclosure may have come about only after the adult becomes suspicious after observing one of the so-called behavioral indicators and begins questioning the child (Wakefield & Underwager, 1988; Rogers, 1990). Although adolescents may fabricate an allegation, young children almost never initiate a false allegation without influence from an adult. A spontaneous disclosure made by a young child without evident adult influence is more likely to be true. The timing and circumstances of the allegation are also important, especially in the divorce and custody context.

Allegations that turn out to be false appear to often involve very young children. Schaefer and Guyer (1988) report that the children in their false cases were most often under five years old. Everstine and Everstine (1989) note that a younger child, whose parents are divorcing, may be more vulnerable to the manipulations of an angry and vengeful parent. In 216 cases of sexual abuse allegations involving 325 children in the divorce context we have analyzed, the median age when the allegations were "probably true" was 8.6 and was 4.6 when the allegations were "probably false."

It is important to look at exactly what kind of abuse is alleged. Schaefer and Guyer (1988) note that in cases involving false allegations in the divorce and custody context, the allegations were often extremely vague. Also, normal parenting behaviors such as bathing, toileting, tickling may be mistakenly labeled as sexual abuse (Cooke & Cooke, 1991). Rosenfeld and his colleagues (Rosenfeld, Bailey, Siegel, & Bailey, 1986; Rosenfeld, Siegel, & Bailey, 1987) stress getting normative information on nakedness, genital touching and bathing practices before deciding whether any of these behaviors support a suspicion of sexual abuse since they found that many behaviors which could trigger suspicion of abuse occurred often in normal families.

When there is no corroborating evidence, and the behaviors alleged are highly improbable, it is unlikely that the allegations are true. There is information about the behavior of known sexual abusers (e.g., Erickson, Walbek, & Seely, 1988; Kendall- Tackett & Simon, 1992; Tollison & Adams; 1979, Wakefield & Underwager, 1994a, 1994b). Fondling is common and aggression and physical violence are rare. Bribery is more common than threat. Vaginal and anal penetration are rare in very young children because it is so painful. Therefore, when the allegations are of very low frequency behaviors such as rape, physical violence, vaginal or anal penetration of a very young child, feces and urine, and/or ritual abuse with several people involved, the allegations are unlikely to be true.

There is general agreement concerning the characteristics of a child's statement in cases of actual abuse compared to false allegations, although there is little research thus far on this. Contextual details and appropriate affect are seen by many professionals as important (deYoung, 1986; Faller, 1988; Jones & McGraw, 1987; Jones & Seig, 1988; Sink, 1988; Wakefield & Underwager, 1991b, 1994c). These characteristics are similar to several of the criteria looked for in the Criterion Based Content Analysis/Statement Validity Analysis procedure described earlier (Honts, 1994; Horowitz, et al., 1992; Köhnken & Steller, 1988; Raskin & Esplin, 1991; Rogers, 1990; Undeutsch, 1989). Therefore, the quantity, quality and contextual embedding of details and appropriate affect and emotion are useful criteria when evaluating the child's statement. This assumes, however, that the details are taken from the child's narrative and not from yes or no answers in response to leading questions. It also assumes that the interview took place soon after the disclosure and that the child had not been given multiple previous interviews.

In divorce and custody cases, strong hatred expressed toward the accused parent based upon trivial and vague reasons may result from learning from the accusing parent rather than from actual abuse (Gardner, 1992c). Ross and Blush (1990) report that in a false allegation, the child may describe "horrible" and traumatic events while not appearing to be traumatized. Also, a young child who is very eager to talk about the abuse may have learned that adults reward such talk (Wakefield & Underwager, 1988).

Post-traumatic Stress Disorder (PTSD)

This diagnosis of PTSD is frequently used when there are allegations of sexual abuse. However, it is often given in error and is used to buttress the claim that the alleged abuse is, in fact, true.

According to the DSM-III-R, this diagnosis cannot be made in the absence of a verified traumatic event that is "outside the range of usual human experience . . . (and) would be markedly distressing to almost anyone, and is usually experienced with intense fear, terror, and helplessness" (American Psychiatric Association, 1987). The DSM-IV is similar: ". . . extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity . . . The person's response must involve intense fear, helplessness, or horror" (American Psychiatric Association, 1994, p. 424).

But observed behaviors on the part of the alleged victim cannot be used to reason backwards to prove that the claimed event actually occurred. The Task Force Report of the American Psychiatric Association (Halleck, Hoge, Miller, Sadoff, & Halleck, 1992) maintain that a DSM-III-R diagnosis cannot be used to conclude that criminally actionable conduct has occurred. They state: "In the absence of a scientific foundation for attributing a person's behavior or mental condition to a single past event, such testimony should be viewed as a misuse of psychiatric expertise" (p. 495).

When a diagnosis of PTSD is made in child sexual abuse allegations, often the intent is to buttress the allegation by essentially saying these are symptoms seen now and they are caused by the abuse done in the past. This is the formal logical error known as affirming the consequence. It may appear to have the form of a valid argument but relevant facts have been left out, evaded, or distorted. This logical error is also a confusion between one way and bidirectional implication. The argument may be like this: If the child has been sexually abused, she should have nightmares. She has nightmares. Therefore, she has been sexually abused. The fact evaded is that nightmares can be caused by many things, including eating green apples. Any attempt to introduce the PTSD diagnosis in this fashion must be challenged. Also the basis for the diagnosis must include sufficient documented symptomatology to meet the requirements of DSM-III-R and DSM-IV.

Maryland v. Craig

There has been a growing attempt to protect the child witness from the trauma of testifying in court by modifying court procedures, such as testifying behind a screen or on videotape in another room. This was the issue addressed in Maryland v. Craig , Certiorari to the Court of Appeals of Maryland. No. 89-478, June 27, 1990, where, according to the Supreme Court, if the prosecution moves to have the child witness testify behind a screen, they will have to establish several things:

(c) The requisite necessity finding must be case specific. The trial court must hear evidence and determine whether the procedure's use is necessary to protect the particular child witness' welfare; find that the child would be traumatized, not by the courtroom generally, but by the defendant's presence; and find that the emotional distress suffered by the child in the defendant's presence is more than de minimis (p. iii).


This Supreme Court ruling demands that there be an evidentiary hearing, prior to the trial, at which there will be testimony about the effect on the specific child of testifying in the presence of the person accused. The defense will object, since such a procedure gives the message the defendant has done something to terrify the child. It may well give an impression of guilt similar to bringing the defendant into the courtroom in shackles. There is also the question of the violation of the defendant's Sixth Amendment rights.

The prosecution is likely to use whatever experts have interviewed the child or provided therapy to offer testimony and opinions. This is despite the fact that there is no research separating out the single factor of the defendant's presence from all other factors in assessing the probable effects of courtroom testimony on a child. Therefore, if the prosecution makes such a motion, the defense should immediately move for an evaluation of the child by their own expert in order to counter the testimony of the prosecution's experts.

A mental health professional who testifies that the requirements of Maryland v. Craig are met and therefore a screen can be used has exceeded the competency and ability of the mental health professions. There are no empirical data to support such a claim. There is no way any competent mental health professional can testify that emotional distress would be caused solely and alone by the presence of the defendant (Underwager & Wakefield, 1992). There are no techniques that can measure emotional distress with the precision required by the Supreme Court.

(See Underwager & Wakefield [1992] and Gembala & Serritella [1992] for a discussion of the implications of Maryland v. Craig).

New Jersey v Michaels

New Jersey v Michaels 642 A.2d 1372, N.J. (June 13, 1994) is a decision from the New Jersey Supreme Court, but the ruling has been used in other states. Kelly Michaels had been convicted of sexually abusing children in a day care center and was imprisoned for five years before her case was overturned on appeal. The children had been subjected to highly leading, suggestive, and coercive interviews. The New Jersey Supreme Court ruled that the interrogations of the children were improper, and given substantial likelihood the evidence derived from them was unreliable, a pretrial hearing was required at which the state would be required to prove by clear and convincing evidence that the statements and testimony retained sufficient degree of reliability to warrant admission at trial.

What this ruling means is that, in situations where the interviews of the child witnesses were leading and suggestive, the attorney can move for a taint hearing where the state must prove that the interviews were not leading and coercive and that the testimony of the child witness(es) would be reliable. In the taint hearing, the state is entitled to call experts to offer testimony with regard to the suggestive capacity of the suspect investigative procedures, and the defendant may offer expert testimony of the issue of the suggestiveness to counter the state's evidence. Attorneys must be knowledgeable about the information above on memory, suggestibility, and interviewing techniques.
Allegations in Divorce and Custody Disputes in Family Court

The most desirable situation when there has been an accusation of sexual abuse in a custody conflict is to evaluate all of the parties. However, this is not always possible. When there is an abuse accusation, the accused parent is placed in the role similar to that of the defendant in a criminal case. Therefore, what is said above concerning the evaluation of a defendant and of the child applies here. However, there are not the difficulties in terms of admissibility in family court. Also, in a family case, it may be possible to evaluate both the child and parent and to observe the interactions.

Unlike in criminal proceedings, in family court, it is usually possible to get psychiatric records on the complaining parent as part of discovery. If both a criminal and a family proceeding are taking place simultaneously, get this information through the family case. Also, when there is a custody dispute, it is often possible to obtain an order for the expert to evaluate the other parent. The recommendations made above concerning evaluating the circumstances under which the allegations arose and the progress of the case hold here as well.

The personality characteristics of the parties involved are particularly important when the allegations surface in a divorce and custody dispute. Personality disorders and other psychiatric problems have been reported in parents who make false allegations (Ross & Blush, 1990; Green & Schetky, 1988; Jones & McGraw, 1987; Rogers, 1990; Klajner-Diamond, Wehrspann, & Steinhauer, 1987; Wakefield & Underwager, 1990). Faller (1990) notes that a childhood history of abuse in the mother may result in distortions of events or hypervigilance. However, as Bresee, Stearnes, Bess, and Parker (1986) point out, a troubled and angry woman may nevertheless have discovered evidence of actual sexual abuse.

Several professionals have noted differences in the behavior of the accusing parent when there is real abuse compared to cases of false allegations (e.g., Bresee et al., 1986; Cooke & Cooke, 1991; Faller, 1990; Gardner, 1992b, 1992c; Jones & Seig, 1988; Wakefield & Underwager, 1991b). The natural response of a reporting parent is to hope that the child was not sexually abused and to be relieved when the evaluator believes abuse is unlikely. The parent will consider other explanations for the behaviors that aroused her suspicions and she may initially report not believing the abuse, or thinking that the child was mistaken. If the evaluator concludes that abuse was likely, she will probably be upset, distressed, and embarrassed.

But in a false allegation, the accusing parent may be firmly convinced the abuse is real and be unwilling to consider any other explanations for the child's behavior. She is likely to feel vindicated if her suspicions are validated by the interview or medical examination and may even tell everyone about what happened and what a terrible person her former spouse was. If the evaluator says that abuse is unlikely, this parent may look for other professionals who will confirm her suspicions. She may even involve the child in multiple examinations and interviews despite the effect of this on the child (Bresee et al., 1986; Cooke & Cooke, 1991; Rand, 1989, 1990, 1993; Schaefer & Guyer, 1988). Such an experience can be iatrogenic for the child (Jones, 1991; Wakefield & Underwager, 1994c).
Civil Cases

Evaluation of the Defendant

When there is a dispute concerning the behavior of the defendant, a psychological evaluation can be performed. In such cases, the information obtained is similar to that in criminal cases.

Evaluation of the Plaintiff

There are several questions to be addressed in psychological evaluations of plaintiffs for civil litigation in addition to that discussed above under the evaluation of the child witness in criminal cases. Although in some civil cases the major defense is that the abuse did not occur, in others, the abuse is admitted. There may be acknowledgment of the abuse but dispute as to its intrusiveness and extent. Therefore, in conducting an evaluation of the plaintiff, the following questions should be addressed:

  1. What are the personality characteristics and current psychological functioning of the plaintiff?
  2. What is the probable cause of any emotional problems?
  3. What is the probability that the alleged event occurred as claimed?
  4. What are alternative explanations for the statements being made by the plaintiff?
  5. (In recovered memory cases with adults) When did the plaintiff realize he or she had been sexually abused? (This goes to the statute of limitations.) (See below for a discussion of recovered memory allegations.)



When evaluating emotional damage resulting from sexual abuse, it must not be assumed that sexual abuse will inevitably cause psychological problems. Not all victims of childhood abuse show later adjustment problems. Finkelhor (1990) reports, "Almost every study of the impact of sexual abuse has found a substantial group of victims with little or no symptomatology" (p. 327). Parker and Parker (1991) observe, "It is far from clear if the abusive experience itself plays a significant causal role in subsequent maladjustment" (p. 185). Berliner and Conte (1993) state, "Although common psychological characteristics may be present in many cases, there is no evidence for the assertion they are contained in all or even the majority of true cases of child sexual abuse" (p. 116).

In conducting an evaluation of the plaintiff, obtain all medical records and school records. School records will often contain information about behavior problems, health, referrals for counseling, etc., in addition to grades. This will help determine what problems may have predated the abuse incidents. With adults, there sometimes will be an MMPI or other evaluation records prior to the date the abuse was said to have occurred. In one repressed memory case against a school teacher, the young man claimed he began gaining weight in fifth grade, the year the alleged abuse took place. He maintained he changed from a happy, normal boy into a fat and unhappy child who was then scapegoated through school. However, his medical and school records had weights noted at different ages so we were able to chart his weight from early childhood through high school and disprove his claim of a sudden weight gain in fifth grade.

With children, the interview should include information concerning the child's current life as well as the abuse incidents. Parents should be interviewed about their perception of the child's problems. Psychological testing, such as the WISC-R and the Bender, will provide information about the child's developmental level as well as give another opportunity to observe the child's behavior. Parent inventories, such as the Personality Inventory for Children (PIC) and the Louisville Behavior Checklist give information both about the child and about the parents' perceptions of the child. These latter tests can reflect a tendency to exaggerate problems. If the parents are parties to the lawsuit and claiming damages, they can also be evaluated.

In recovered memory cases, the plaintiff will be an adult. The evaluation should include a diagnostic interview, a social/sexual history, and a battery of psychological tests, with emphasis on objective tests such as the MMPI-II, MMPI-A, MCMI-II, and the CPI.

A direct causal relationship between the behaviors of the defendant and the plaintiff's current problems is difficult to establish. Although some victims of childhood sexual abuse are reported to have a number of symptoms, including depression, anxiety, low self-esteem, distrust, social isolation, sexual dysfunction, eating disorders, and difficulties in close interpersonal relationships, these problems are not specific to a history of sexual abuse. The base rates for these behaviors associated with other causal chains are higher than for any demonstrated link with sexual abuse. The behaviors frequently offered as behavioral indicators of sexual abuse are instead nonspecific stress responses which can be linked to any number of stressor experiences. Beitchman, Zucker, Hood, daCosta, and Akman (1991), in a review of the short-term effects of child sexual abuse, conclude that, with the exception of sexualized behavior, the majority of short-term effects noted in the literature are problems that characterize child clinical samples in general.

Two recent review articles on the long-term effects come to similar conclusions. Beitchman, Zucker, Hood, daCosta, Akman, and Cassavia (1992) and Pope and Hudson (1992) report that empirical research has yet to establish a relationship between disorders frequently claimed to be caused by sexual abuse (bulimia, multiple personality disorder, borderline personality).

The characteristics of actual sexual abuse generally associated with more negative outcomes must be considered. There appears to be greater trauma if the perpetrator is a father or stepfather, if coercion, force, or violence are present, and if the abuse consists of more physically assaultive, intrusive acts (Beitchman et al., 1991, 1992; Browne & Finkelhor, 1986; Finkelhor, 1990).

An important factor associated with the effects of sexual abuse is family dysfunction. Although few of the studies on the effects of abuse have controlled for the contribution of family characteristics, those that have establish that it is extremely difficult to separate the effects of abuse from the effects of the accompanying family dysfunctions. This is because both extrafamilial and intrafamilial sexual abuse are closely associated with families that are dysfunctional and pathological (Alexander & Lupfer, 1987; Beitchman et al., 1991; Harter, Alexander, & Neimeyer; 1988; Hoagwood & Stewart, 1989; Hulsey, Sexton, Harralson, & Nash, 1989).

For example, Hulsey et al. (1989) found that although women with a history of childhood abuse display greater pathology on the MMPI than do nonabused women, when childhood family variables (such as families that are chaotic, conflicted, and enmeshed) are considered, these differences are greatly reduced or eliminated. Therefore the pathology observed in an adult who was sexually abused as a child may be a function of a pathological home environment rather than an effect of the sexual abuse. Harter et al. (1988) report that family characteristics and perception of social isolation were more predictive of social maladjustment than abuse per se. When family characteristics were controlled, the presence of abuse was not related to social adjustment. Therefore, family characteristics must be carefully explored and considered.

Another factor to be considered is the fact that many personality characteristics appear to have a high heritability (Lykken, McGue, Tellegen, & Bouchard, 1992; Tesser, 1993). The University of Minnesota twin studies have produced powerful evidence that personality factors are strongly affected by genes. This must be considered when forming conclusions concerning the cause of an individual's emotional problems.

It is unlikely that all of a plaintiff's emotional problems and global dysfunction will have any single cause. To claim a direct, specific and singular cause for anything human beings do goes far beyond any evidence in the science of psychology (Einhorn & Hogarth, 1982; Faust, 1989; Gambrill, 1990; Meehl, 1977).

Frequently, the diagnosis of Post-traumatic Stress Disorder is made in civil suits involving sexual abuse. The abuse is said to have caused a variety of significant problems. This is an inappropriate diagnosis, as was discussed above, when the issue under dispute is whether or not the alleged abuse actually occurred. In addition, we have seen the diagnosis of PTSD given when the alleged abuse was admitted but consisted of gentle fondling over the clothing, or as the sequelae to what appeared to be a consensual relationship with a member of the clergy or a job supervisor. This is not the type of traumatic event needed to diagnose PTSD.

Allegations of Recovered Memory

Allegations of recovered memories of sexual abuse have been appearing in the media. There are no memories for years because the abuse is said to have been completely "repressed" until, generally with the help of a therapist, it is then "recovered." Such cases frequently lead to some type of litigation, most likely civil, but there have been criminal prosecutions as well.

Civil litigation based on recovered memory claims has increased sharply in recent years (Colaneri & Johnson, 1992; Kaza, 1991; Wares, 1991). The increase follows changes in statutes of limitation, parental immunity laws, redefinition of the term "negligence," and the differentiation between "intentional infliction of injury" and "intentional act" (Colaneri & Johnson, 1992). Several states have now extended the statutory period of limitations in civil cases until several years after abuse is remembered and/or after it is understood there was damage done by the abuse (Buckley & Horwitz, 1994; Colaneri & Johnson, 1992; Kaza, 1991; Loftus, 1993; Loftus & Rosenwald, 1993; Silberg, 1993; Slovenko, 1993).

If the discovery rule states that a cause of action does not accrue until the plaintiff discovers, or should have discovered the injury, the defendant may be sued many years after the alleged event. This is significant if the plaintiff claims no awareness of injury until the statute of limitations period had passed. When the plaintiff claims memories of abuse were blocked until therapy enabled them to be recovered, the limitation period does not begin until the abuse is remembered. Also the plaintiff may maintain that he or she did not realize the abuse had caused injury until therapy. Therefore, if a memory for abuse was "repressed," civil action is possible, but if the memory was always there, nothing can be done.

Therapists and survivors' groups often encourage such litigation (Crnich & Crnich, 1992; Nohlgren, 1991). The best-known survivors' book, The Courage to Heal (Bass & Davis, 1988), not only tells readers how to file civil suits, but contains a list of attorneys who take such cases. In Texas, it was ruled that homeowner's insurance policies may be tapped in such cases. The result in Texas has been a sudden, dramatic increase in the number of such actions (Hull, 1991).

In litigation involving claims of recovered memory, a psychological evaluation of the plaintiff is essential. In addition to what was discussed above, this evaluation must include an analysis of how the memory was recovered and all influences on the plaintiff such as therapy, books, television shows, etc. (See Coleman, 1992 for an example of this type of analysis in a recovered memory case involving civil litigation.)

Uncovering of Memories in Therapy

Attorneys must understand the claims, the scientific basis for these claims, and the therapeutic techniques often used in recovered memory cases. Therapists specializing in this effort maintain that memory deficits, amnesia, and dissociation are characteristic of trauma. Many maintain that large numbers of women have been sexually abused but that up to half of all incest survivors do not remember their abuse. Many believe that abuse survivors must be helped to retrieve their memories in order to recover. They often retrieve memories with intrusive and unvalidated techniques including direct questioning, hypnosis, reading books, attending survivors' groups, age regression, dream analysis, and a variety of unorthodox procedures.

These "repressed" or "dissociated" memories are thought to differ from the simple forgetting or not thinking about an event that may have been unpleasant but was not particularly traumatic. No psychologist disagrees that many events are forgotten and that persons may be cued to remember them years later. Also, the phenomena of infant amnesia means that most people's earliest memories are not before the age of about three or four (Fivush & Hamond, 1990; Howe & Courage, 1993; Loftus, 1993; Nelson, 1993). Instead, the assumption in recovered memory therapy is that the abuse was repressed or dissociated because it was too traumatic to be remembered.

The recovered memory therapists support their assumptions through concepts such as repression, dissociation, traumatic amnesia, body memories, and multiple personality disorder. However, there is no support in the scientific literature for the way these concepts are used, nor any credible evidence that it is common for children to undergo traumatic sexual abuse but, as adults, have no conscious memories of the abuse until it is uncovered by a therapist "skilled" in such matters (Wakefield & Underwager, 1992, 1994b; Lindsay & Read, 1994).

In summary, repression is not generally accepted in the scientific community except among analytically-oriented therapists, who base their beliefs on anecdotal reports and clinical case studies. Traumatic amnesia can occur for a single, traumatic event, such as a rape, but there is no support for the claim that it is common for individuals to be completely amnesiac for repeated episodes of sexual abuse. There is no support that such events will be completely repressed for years, only to be accurately remembered only years later. Diagnoses of Multiple Personality Disorder often appear in recovered memory cases, especially when the alleged abuse is violent and sadistic and many people claim most individuals diagnosed with MPD were abused as children (Kluft, 1987, 1991; Putnam, Guroff, Silberman, Barban, & Post 1986). But, support for this diagnosis is based only on clinical case reports and, even though it is in the DSM-III-R and the DSM-IV, MPD itself is controversial. It cannot be said to be generally accepted in the scientific community.

(See Wakefield & Underwager, 1992 and 1994b and the special issue on recovered memories of child sexual abuse of Issues in Child Abuse Accusations, Volume 4, #4, 1992.)

Psychological Evaluations and Case Analysis in Claims of Recovered Memory

A proper evaluation of such allegations requires a broad range of information about the individuals involved, the origin of the disclosure, and the nature of therapy (see Daly & Pacifico, 1991, Rogers, 1992, 1994, and Wakefield & Underwager, 1992, 1994a, 1994b for suggestions of important information to be obtained as part of an investigation).

Some professionals have proposed ways of evaluating claims of alleged sexual abuse based on recently recovered memories (Gardner, 1992a, 1992b; Rogers, 1992; Wakefield & Underwager, 1992). Since this is a new area, lacking in empirical research, these suggestions are based on existing knowledge about such areas as memory, social influence, suggestibility, conformity, the psychotherapy process, hypnosis, and the characteristics and behavior of actual sexual abusers. The provisional criteria we have suggested include (Wakefield & Underwager, 1992):

  • When there is no corroborating evidence and the allegations are of extremely deviant, low-probability behaviors, rather than of behaviors more typical of actual abusers, the recovered memory is less likely to be for an actual event. This becomes even less likely when the accusations include the mother and others and when a psychological evaluation of the defendant indicates no pathology.
  • If the recovered memory is for abuse that occurred at a very young age, such as abuse during infancy or under age three or four, it is not likely that the memory is for a real event. This is much younger than the average age of documented sexual abuse victims. Also, the phenomenon childhood or infantile amnesia makes it unlikely that the memory is of a real event.
  • If the abuse has only recently been "remembered," it is much less likely to be true than it has always been remembered but the individual is only now disclosing.
  • If the accusations only emerge following reading The Courage to Heal (Bass & Davis, 1988), hypnosis, survivors' group participation, or dream analysis the recovered memories are apt to be the result of therapy.
  • Although personality disorders or serious emotional problems may make individuals more susceptible to this influence, this does not appear to be a necessary factor. Therefore the absence of a history of emotional problems in the plaintiff does not mean that the recovered memory is more likely to be real.
  • If the allegations are of a series of abusive incidents across time in different places and situations, the abuse is less likely to be true than if it is for a single incident.
  • Any claims that the individual must have been abused because of problems in her life that are associated with sexual abuse must be viewed cautiously. The existence of eating disorders, sexual dysfunction, anxiety, depression, or low self- esteem cannot be used to support the probability of abuse since these can all be caused by a variety of factors (Beitchman, et al, 1992; Pope & Hudson, 1992). (See discussion of this above.)
  • When the recovered abuse allegations progress across time to ever more intrusive, bizarre, and improbable behaviors, the growth of the story is likely to represent the effect of therapy.
  • Allegations of ritual abuse by intergenerational satanic cults are extremely unlikely to be true. Despite hundreds of investigations, no corroborating evidence for the existence of these cults has ever been found (Hicks, 1991; Lanning, 1992).
  • Corroborating evidence, such as a childhood diary with unambiguous entries or pornographic photographs, obviously makes the allegations much more likely to be true. Ambiguous evidence, however, such as a childhood story or drawings now reinterpreted in light of the believed-in abuse, cannot be used as support that the abuse actually occurred.



Daubert v Merrill Dow Pharmaceuticals

The recent unanimous United States Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals (U.S. Supreme Court 1992-93 term, No. 92-102, 509 US, 113 S Ct 2786) in June, 1993 dramatically changes the criteria by which scientific testimony will be admitted as evidence in court. The ruling states that the major criterion of the scientific status of a theory is its falsifiability, refutability, or testability. This, in effect, replaces the Frye test (Frye v. United States, 293 F. 1013) with the Popperian principle of falsification as the determinant of scientific knowledge.

Blackmun, who wrote the opinion, identified four factors that the court should consider in determining whether an expert's opinion is valid under rule 702:

  • Whether the expert's theory or technique has been or can be tested or falsified.
  • Whether the theory or technique has been subjected to peer review or publication.
  • What the known or potential rate of error is for any test or scientific technique that has been employed.
  • Whether the technique is generally accepted in the scientific community.



Therefore, general acceptance in the scientific community (the Frye test) is one consideration, the lack of such by itself does not preclude the proposed testimony. This will make admissible new scientific evidence that was excluded under Frye. At the same time, if properly understood and followed, this ruling is likely to render inadmissible testimony based on such concepts and theories as the child sexual abuse accommodation syndrome and claims that childhood sexual abuse has been "repressed."

Although the decision is limited to federal court, it will be applicable wherever federal rules of evidence apply. (See Underwager & Wakefield, 1993 and Stewart, 1993 for discussions of the Daubert decision.)

Conclusions

The science of psychology can provide the lawyer with useful information that is of high and clear validity. The information can be of assistance to the finder of fact. Much of this information is counterintuitive and is not understood by the general public and the justice system. The lawyer must either understand enough about psychology to discern what is valid and empirically supported or have expert assistance. There is a great deal of subjective speculation and unsupported opinion that is passed off as authoritative by the mental health professions. If a lawyer encounters material of low and doubtful validity, it can be successfully challenged and an expert presenting such speculations can be successfully impeached. The basic question to ask is always, "What are the data supporting your opinion?"

There are also standards of practice that, if known to the lawyer, can assist in dealing with mental health experts who may adopt a hostile and uncooperative stance. Techniques and procedures of questionable validity and reliability can be identified and examined for their quality and level of accuracy. Whether or not the useful and relevant information that can assist the finder of fact is admitted is largely a matter of the skill and the knowledge of the lawyer seeking admission of psychological science.

References

* Ralph Underwager and Hollida Wakefield are psychologists at the Institute for Psychological Therapies, 13200 Cannon City Blvd., Northfield, MN 55057-4405nbsp; 1 This is a revised version of a paper that was originally presented at "The Deadliest Accusation: Child Sexual Abuse in the 90s," Seminars sponsored by the National Association of Criminal Defense Lawyers on May 21, 1993 in Las Vegas, Nevada and April 8, 1994 in Washington, DC.

2 Ohio v. Shelton, Louisiana v. Code, Delaware v. Pennell. The purpose of the testimony in these cases was to link several crimes to a single criminal defendant when the crimes involved serial offenses such as rape and homicide.

3 See People v. Stoll, 49 Cal 3d 1136, 783 P.2d 698, 265 Cal. Rptr. 111 (1989). The California Supreme Court ruled that the defendant, who was accused of child sexual abuse, could introduce a psychologist's opinion testimony based on an interview and personality tests that the defendant showed no signs of deviancy or abnormality. The court ruled that this testimony was not novel scientific evidence subject to the Frye test but instead was expert opinion. testimony regarding the absence of sexual deviance also was authorized under rules permitting the defendant to introduce evidence of his "good character."

However, also see Rogers and Echeandia (1990) for a critical analysis of the psychological evaluations conducted in People v. Stoll.

4 When referring to the child witness, never refer to the child as the "victim." If others refer to the child as the victim, make an objection.

5 Three cases where Dr. Underwager was ordered to interview the complaining witness and the order was appealed by the stat but upheld on appeal are Minnesota v. Cain, 427 N.W.2d 5 (Minn.App. 1988), Montana v. Malee, Supreme Court of Montana, No. 88-267 (1988), and Louisiana v. Hero, 358-916/940, Section 'C'.

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