In a child abuse case, especially sex abuse cases the forensic interview of the child which is usually conducted by social workers with the Department of Children's Services, and sometimes by law enforcement investigators is a critical piece of evidence. If not conducted correctly the interview can lead to incorrect or false information and allegations.
Children are susceptible to leading and suggestive questioning. See: Crench, Linday E and Viljoen Jodi L, from University of Nebraska - Lincoln. Forensic interviewing in child sexual abuse cases: Current techniques and future direction. Aggression and Violent Behavior 11 (2006) 195 - 207, www. ScienceDirect.com. See also http://pn.psychiatryonline.org/cgi/content/full/38/12/14.
A number of studies show that repeatedly giving children misleading information in a series of interviews can have serious effects on the accuracy of their reports . . . Young children are sensitive to the status and power of their interviewers. As a result, they are especially likely to comply with the implicit and explicit agenda of such interviews . . . Children's testimony is susceptible to contamination from several factors. The legal system, according to McGough (1995), does little to insulate a child from this susceptibility; on the contrary it compounds and undermines a child's resistance . . . Several researchers note a distinctive 'confirmatory bias' on the part of interviewers, i.e. that abuse has occurred and the purpose of the interview is to get the child to admit the abuse . . . In short, a great deal of emerging literature reveals that the credibility and reliability of testimony obtained from children may be compromised when improper interviewing methods are used.
Interviewing Methods and Hearsay Testimony in Suspected Child Abuse, IPT Forensics Journal Vol. 9, (1997).
The ability of the criminal defendant to obtain the forensic interview prior to trial is therefore extremely important in order to allow the defense to evaluate the credibility of the pre-trial statements of the alleged victim and to also hire an independent expert to evaluate the forensic interview.
Obtaining the forensic interview prior to trial is usually very difficult unless you have a prosecutor who allows open file discovery. Tenn R. Crim. Proc. 16 (a)(1)(D) states that:
Upon request of a defendant the State shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof . . . which are material to the preparation fo the defense
However, most prosecutors along with most judges deny pre-trial viewing and / or copies of the interview. In making that denial they rely upon Tenn. R. Crim. Proc. 16 (a) (2) which states:
Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, . . . or of statements made by state witnesses . . .
In attempting to force the disclosure and a copy of the forensic interview prior to trial the defense should specifically state in its demand for discovery and / or its motion to compel that a forensic interview is a scientific examination and is therefore not subject to being withheld by the prosecution based upon R. 16 (a) (2). A defendant should argue that a forensic interview of an alleged child victim is as much of a result of a scientific test as it is a simple witness statement, and that the defense is therefore entitled to a copy of the video tape.
The victim's statement is critical evidence in child abuse cases. Yet developmental issues, such as children's varying abilities to recall events, and use language, as well the trauma they may have experienced, complicate efforts to obtain information about the abuse. The forensic interview is designed to overcome these obstacles.
The goal of the forensic interview is to obtain a statement from a child in an objective, developmentally, sensitive, and legally defensible manner. To ensure facts are gathered in a way that will stand up in court, forensic interviews are carefully controlled: the interviewer's statements and body language must neutral, alternative explanations for a child's statements are throughly explored . . .
Practice Notes, (North Carolina Child Welfare Services, Vol. 8, No. 1), Dec. 2002. Based upon scientific research in this area it has been concluded that a properly conducted forensic interview should be a very controlled process with limitations and guidelines upon the conduct of the interview, in other words the forensic interview is a scientific examination. The forensic interview should be a search for the truth.
It is crucial that in requesting the interview in discovery that the defense specifically state in its demand and / or motion to compel, as well as any motions for new trial and any appellate briefs that the interview is a scientific examination and that the defense is therefore entitled to the interview and that the exception in Rule 16 (a) (2) does not apply and does not provide grounds for the state or the trial court to refuse to disclose the contents of the interview prior to trial. If the defense simply makes a general demand for discovery without arguing that the interview is a forensic examination any court reviewing the denial of the demand for the interview is likely to rule that the defense waived the argument on appeal, even though the defense made a general demand for discovery or specifically requested the statement but failed to argue that it contained a scientific examination. See Song v. State of Tennessee, 2005 WL 2978972 . where the Criminal Court of Appeals refused to rule upon the argument that the tape was a scientific examination because the Defendant did not make that argument to the trial court in his motion to compel or in the motion for new trial although the defense did demand the tape pursuant to Rule 16.
Good luck. I hope this helps.
By Brent Horst
8/25/06
