Forensic Interviewing in a Michigan Sex Crimes Case Involving a Child

In cases involving allegations of child abuse or physical or sexual assault against a minor will involve a process known as a Forensic Interview.  In some cases, a law enforcement officer or investigator will be trained in this method but in the majority of cases the minor will be brought to a specific facility, clinic or center to be interviewed by a trained professional.  The goal is to obtain a truthful statement from the child that will lead to fair decision making in the criminal justice system.  Michigan, like many other states, have outlined the process and procedures for a proper and ideally reliable forensic interview.  One such piece of published material is in Department of Health and Human Services (DHS) – PUB 0779 and is a great tool for attorneys to study, learn, and use during cross-examination, if necessary.

The Forensic Interview is Specifically Designed to Follow a Process Known as Phases.

The Phases include:

• Prepare for the Interview
• Introduce Yourself and Build Rapport
• Establish the Ground Rules
• Introduce a Topic
• Elicit a Free Narrative
• Question, Clarify, and Test Hypotheses
• Close the Interview

As aforementioned, the goal is truthful statements, and two approaches are used to accomplish this goal 1) Hypothesis Testing and 2) child-centered approach.  The idea of hypothesis testing is that it is not hypothesis confirming.  This means that the questions by the interviewer are not to conclude their own opinions or thoughts, but rather allow the interviewee, the child, to provide the information.  It also is meant to explore alternatives. This goes hand in hand with the child-centered approach.  However, whether a new Interviewer or an experienced one, you often can detect the inherent leading inquisition.  This is another reason why it is so important in Criminal Sexual Conduct (CSC) and sex crimes cases involving minors and/or Child Protective Services (CPS) cases to review the recorded interview.

The Interview is designed to ask questions in a format that attempts to rule out alternatives; to rule out other explanations. Further, they seek clarification when the interviewer hears answers or explanations that are potentially inconsistent.  This may in some cases appear like witness rehabilitation, but the technique is to make sure that inconsistencies are addressed. Further, the child centered approach is meant to allow the child to set some the rules of the conversation, such as the terminology that is used, but must properly have the terminology defined. For example, pee pee for penis, or private parts, or down-there for vagina.  This helps avoid any confusion after the interview. But before any conversation gets to that point the Interviewer will build up the relationship.

How Does a Forensic Interview Begin?

Again, there is a specific process that the forensic interviewer will follow. An interviewer does not go in with a blank slate or unknowingly, but gathers background that includes the allegations, statements and information from parent, guardian, school, officer, etc, and then will discuss hypotheses and potential questions and topics. They will also set the room for the interview, and finally, bring the child into the interview room.

First, most interviewers they will start by introducing themselves. It will then graduate to casual conversation.  They will ask things like, “What do you like to do?”, “What did you get for Christmas?”, “What grade in school are you?”, “What’s your favorite subject?”, “Do you have any pets?”.  This conversation technique helps build rapport in an attempt for the child to feel comfortable in telling the Interviewer more sensitive topics that will be discussed subsequently.

Next, the Interviewer will set the ground rules, and be sure that the child acknowledges the differences between right and wrong, or truth and lie.  They will explain to the child that if they don’t know the answer that they should answer “I don’t know”, and to not guess.  Further, if the Interviewer says something that is wrong or incorrect, the child should answer that it is wrong.  For example, they will ask the child,”What color is my house?”, and the child should answer, “I don’t know”.  Then, they will hold up a blue pen and say, “this pen is red” and the child should respond “No it’s not, it’s blue”.

All of this takes place (typically) in a small room with only a couple of chairs or maybe a couch, and in some cases will have stuffed animals or other items to help the child feel comfortable.  It is intentionally sparse to not distract the child. Although it is only the interviewer and the child in the room it is most often in an observation room whether by a two-way mirror or video feed where another professional, or prosecutor, or investigator, or parent (or all of them) observe and take notes.  They can also add information to the interviewer if more information is being sought.

What Happens Next? Confirming the Allegations of Sex Abuse.

The interviewer will proceed into the allegations or topics but do so by asking the child if they know why they are there. The interviewer may introduce the topic by asking the child: tell me why you are sad, nervous, scared, or tell me about what happened.  This is the phase where they introduce a topic and develop from there. However, their technique is not to create leading line of questioning, but to seek the child’s input, their version, their words.  This becomes a very important aspect of the disclosure and information reported. The review of the video is not only of the child but also the Interviewer.

How Does the Forensic Interview Conclude?

Once all the pre-planned topics are covered, the Interviewer may step out for quick group talk, or will conclude the interview.  This interview recording will be reviewed and discussed by the investigator and the prosecutor, and factor into whether criminal charges will be issued. It may also lead to further interviews or witness.

The Governor’s Task Force on Child Abuse and Neglect have supported that ‘best practices’ is to video record the interview, and to follow the procedures.  Failure to do either of these things calls into question any reliability that may be attached. This recording is also a crucial part of representing the defendant in a criminal case or a respondent in a civil CPS case.

The common practice for prosecutors and defense attorneys is an agreement or stipulation that is signed by the parties which limits the use and availability of this video, but regardless it is a significant piece of the case.

Therefore, it is imperative that you retain an experienced and trained attorney that understands the process and requirements of the Forensic Interview, its limitations, and pitfalls.  If you are facing a criminal sex crime or civil child protective services petition contact the Michigan Sex Crimes Attorneys at the Barone Defense Firm to protect your rights.