Court rules on suggestive questions in molestation case

By Larry Heuer, Barnard College, and Michael Mishlove, Foley & Lardner

Last summer, the Eighth Circuit ruled that a district court had not erred in permitting the prosecution to use suggestive questions in its examination of a 4-year-old girl about her sexual abuse (United States v. Wright, 119 F.3d 630, 8th Cir. 1997).

Case background

The girl (A. Doe) testified about her abuse by a caretaker (Wright). A. Doe lived with her mother, I. Doe, on the Rosebud Indian Reservation in South Dakota. During late October and early November of 1994, Wright babysat A. Doe and her siblings. On Nov. 2, 1994, A. Doe first reported the abuse to a Head Start teacher?s aide. She stated that her sitter was mean, used bad words, threw things and touched her.

When asked where she was touched, A. Doe pointed to her vagina. Following this disclosure, I. Doe, also a Head Start worker, was summoned, and A. Doe again recounted the touching. She told her mother that Wright had 'touched me in a bad place' and, when asked where, pointed to her vagina.

Before the trial, A. Doe was further questioned by her mother, a doctor in the Indian Health Services Hospital Emergency Room and a state child protection worker. The social worker asked A. Doe if anyone had hurt her or 'did a bad touch' to her. The girl pointed to the vagina on a picture of a girl and said 'Willie did.' On Sept. 21, 1995, Wright was charged with one count of abusive sexual contact and two counts of aggravated sexual abuse.

At trial, the prosecutor?s questions to A. Doe included leading ones such as, 'Did he touch you anyplace?,' in response to which A. Doe affirmed that Wright had touched his penis to her vulva. Wright was convicted of abusive sexual contact and one count of aggravated sexual abuse. He was sentenced to 189 months.

On appeal, Wright argued that the court abused its discretion in allowing leading questions during the government?s examination of the victim without a specific showing of necessity or a reluctance to testify. The court rejected this argument stating it saw 'no reason to second guess the district court?s evaluation of A. Doe?s ability to testify.'

The court cited several prior appellate decisions affirming the use of leading questions. One approved leading questions to 15- and 17-year-old victims who had been threatened and were hesitant to answer questions. Another noted that the trial court was in the best position to evaluate the emotional condition of a child witness and the child?s hesitancy to testify, and therefore its evidentiary rulings deserved deference. A third held that 'leading questions sometimes must be tolerated if what the witness knows is ever to become available: the witness? memory may be temporarily exhausted; the witness may be disoriented or incapable of concentration; the witness may misunderstand what the questioner wants to know.'

Implications for psychology

This case raises important questions about the court?s understanding of the impact of suggestive interviewing techniques with children and the accuracy of children?s accounts. The court appears to have provided a stamp of approval for suggestive questions to children in sexual abuse cases. In doing so, it alluded to circumstances under which suggestive questions are permissible: when children exhibit a reluctance to testify. Notably, the court made no reference to concerns about the accuracy of children?s accounts in response to suggestive interviewing techniques, despite acknowledging an expert?s testimony about such issues as implanted memory, interviewing techniques and social influences on children at the time they made the accusations. While there are differing views about the severity of the problem, numerous studies point to inaccuracies resulting from suggestive interviewing techniques with children. Furthermore, these studies suggest inaccuracies are likely to be more severe under repeated questioning (as occurred in this case) and with younger children, such as the 4-year-old in this case compared with the 15- and 17-year-old victims referred to in the case cited by the court.

'Judicial notebook' is an effort by the Courtwatch Committee of APA?s Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.