Running Head: CHILDREN’S INTERVIEWS IN PORTUGAL
Interviews of Children in a Portuguese Judicial Special Procedure
Carlos Eduardo Peixoto
Portuguese National Institute of Legal Medicine and Forensic Sciences, I.P. - Northern Branch
Raquel Veludo Fernandes
Portuguese National Institute of Legal Medicine and Forensic Sciences, I.P. - Northern Branch
Telma Sousa Almeida
Portuguese National Institute of Legal Medicine and Forensic Sciences, I.P. - Northern Branch; University of Cambridge, UK
Júlia Marina Silva
Portuguese National Institute of Legal Medicine and Forensic Sciences, I.P. - Northern Branch
Portuguese National Institute of Legal Medicine and Forensic Sciences, I.P. - Northern Branch; Portuguese Catholic University - Porto; Biomedical Abel Salazar Institute -
University of Porto, Portugal
Michael E. Lamb
University of Cambridge, UK
David La Rooy
Royal Holloway University of London, UK
Teresa Magalhães
University of Porto - Faculty of Medicine, Portugal
Authors Note
Correspondence concerning this article should be addressed to Carlos Eduardo Peixoto; E-mail: cespeixoto@gmail.com
Acknowledgment: this paper is support by the Portuguese Science and Technology Foundation (FCT) (PTDC/MHC-PAP/4295/2012) and by the Operacional Program for Competitive Factors (COMPETE) (CCOMP-01-0124-FEDER-029554)
The authors would like to thank the collaboration of all the judicial institutions that
participated in this study, and the legal professionals (judges, public prosecutors, and court clerks) that facilitate access to case files and interviews.
Abstract
In Portugal, since 2007, a special proceeding of anticipated evidence called
“Declarações para Memória Futura” (DMF) is mandatory for alleged victims of child sexual abuse. DMF is an interview conducted early in the investigation that can be used as evidence in court because it is conducted by a Judge. This procedure is designed to prevent children from being required to testifyin court. The present study examines current practices surrounding DMF using a sample of 137 interviews with 3- to 17-year-oldsconducted in different judicial jurisdictions of Portugal. In particular, the interviewers questions and the details provided by children were closely examined. The results showed that 69.4% of all questions asked in the interviews were option-posing questions (n = 5765), 16.2% were directive questions (n = 1347), 11,4% were suggestive questions (n = 944), and only 3% were open-ended prompts (n = 248). The vast majority of details provided by children were thus obtained by using the risky recognition-based prompts (i.e., option posing and suggestive questions)leading to a high risk of contamination, and a decrease in the credibility of
testimony. There is an urgent need to address this issue and consider the implementation of a structured scientifically validated interview protocol in Portugal.
Keywords: Forensic Interview; Questioning Type; Child Abuse; Legal Professionnels; Portugal
Interviewing Children: Best-practice Guidelines
Over the recent decades, an extensive body of literature has advanced our understanding of children’s capabilities and performance when they participate in investigative interviews by focusing how to maximize the amount and accuracy of the information provided, while
minimizing the risk of eliciting erroneous information. In particular, research has shown that the type of questioning affects both the quantity and quality of the elicited information (Browne & Lamb, 2015; Lamb et al., 2008; Lamb, La Rooy, Malloy, & Katz, 2011; Poole & Lamb, 1998; Saywitz, Lyon, & Goodman, 2011; Westcott, Davies, & Bull, 2002; for reviews).
Accordingly, to improve children’s informativeness professional guidelines throughout the world strongly recommend the use of open-ended ‘input-free’ prompts (e.g., ‘Tell me what happened’, ‘Tell me everything about…’) to elicit accounts of alleged events from free recall memory to ensure that children’s responses are likely to be accurate and obtain the greatest amount of detail. Additional open-ended prompts can also be used (e.g., ‘Tell me more about that’ or ‘Then what happened?’) along with cued invitations (e.g., ‘Earlier you mentioned [content mentioned by the child], tell me everything about that’) to request more elaborated responses and additional detail. Although younger children tend to provide fewer details and briefer accounts in response to open-ended questions (e.g., Lamb, Sternberg, Orbach, Esplin, Stewart & Mitchell, 2003; Hershkowitz, Lamb, Orbach, Katz, & Horowitz, 2012), their reports are however generally accurate (e.g., Brown, Lamb, Lewis, Pipe, Orbach & Wolfman, 2013; Jack, Leov, & Zajac, 2014). Only after open-ended questioning have been exhausted should the interviewer proceed to more directive questions, such as WH-questions, that focus on details about information previously disclosed by the child (e.g., ‘When did it happen?’, ‘Where did he put his finger?’).
In contrast, focused-recognition prompts, such as ‘yes/no’ and ‘forced choice’ questions (e.g., ‘Did he touch your body?’, ‘Did it happen before or after school?’), should be limited to the clarification of missing crucial details at the end of the interview, because this type of questioning increases the risk of eliciting inaccurate information, especially with young children (e.g., Waterman, Blades, & Spencer, 2001, 2004). Suggestive questions, that
introduce undisclosed information or communicate that a particular response is expected, can undermine the consistency of children’s reports, and should not be used at any time during an interview.
Therefore, based on this scientific knowledge, important recommendations and best practices guidelines have been developed and implemented (e.g., ‘NICHD Investigative Interview Protocol', 'Achieving Best Evidence in Criminal Proceedings – Guidance on
Interviewing Victims and Witnesses, and Using Special Measures’) to provide clear strategies that are developmentally appropriate and recognize both children’s strengths and limitations, while maximizing the use of open-ended questions and non-suggestive practices to obtain more reliable and accurate information (e.g., Lamb et al., 2008; Home Office, 2011; American Professional Society on the Abuse of Children [APSAC], 2012).
Interviewers Question Types and Children’s Responsiveness in the Courtroom Even when children are interviewed by specialized interviewers using evidence based interview protocols they are often ‘reinterviewed’ interviewed in courtrooms (see Spencer & Lamb, 2012). Motivated by concerns about the ways in which alleged victims of sexual abuse are examined and cross-examined in court, several studies have been conducted recently that explore exactly how children are questioned by prosecutors and defense lawyers. However, there is no research thus far on how children’s respond to different types of questions when asked by Judges in this context.
To address these issues, Klemfuss, Quas, and Lyon (2014) analyzed 42 criminal court transcripts and found that defense attorneys used more suggestive questions than prosecutors, that prosecutors used option posing questions most frequently, and that no open-ended
prompts were used. Andrews, Lamb, and Lyon (2014) reached similar conclusions when examining 120 trial transcripts of sexual abuse cases, finding that defense attorneys used more
suggestive questions whereas prosecutors were more likely to use option-posing questions. In another study, Stolzenberg, and Lyon (2014) also concluded that defense attorneys used more declarative (the question would be a proper sentence if one dropped the question mark) and suggestive questions than prosecutors. Furthermore, several studies have shown that defense attorneys used fewer open-ended prompts and more closed and leading questions, compared to prosecutors’ (e.g., Davies & Seymour, 1998 [26 cases]; Zajac, Gross, & Hayne, 2003 [21 cases]; Hanna, Davies, Crothers, & Henderson, 2012 [18 cases]; Stolzenberg & Lyon, 2014 [72 cases])Only one study reported that prosecutors used a greater proportion of open-ended prompts (Zajac et al., 2003). Moreover, some studies (e.g., Zajac & Cannan, 2009 [15 cases]; Evans & Lyon, 2012 [164 cases]) found that, although defense attorneys asked more leading questions than prosecutors, both attorneys used a similarly proportion of closed-ended questions.
Some studies have examined whether children’s age influences the interviewer’s questioning but the findings are inconsistent. Klemfuss et al., (2014) and Stolzenberg & Lyon, (2014) reported that both types of attorneys were likely to ask a greater number of suggestive questions compared to option-posing questions as children get older, whereas ()() found that defense attorneys and prosecutors question types did not vary with children’s age ().
There has been little research focusing on how different question types affect children’s actual responses during judicial proceedings, and results are inconsistent. Some studies (Zajac et al., 2003; Andrews et al., 2014) reported no significant differences in children’s responsiveness regardless of the type of question asked by both prosecutors and defense attorneys. In contrast, Klemfuss et al. (2014) found that in response to prosecutors’ questions children provided more information than to defense attorneys’
questions.Stolzenberg & Lyon (2014) found that children usually provide unelaborated responses when they are asked questions that require a ‘yes’ or ‘no’ response.
The above findings suggest, however, that attorneys who cross-examine children at trial may possess little understanding of how to appropriately communicate with children (Hanna et al., 2012; Davies, Henderson, & Hanna, 2010), and that the nature of their questioning can influence the accuracy of the accounts they elicit (Zajac & Hayne, 2003; Zajac et al., 2003; Evans & Lyon, 2012). A recent study (Ahern, Stolzenberg, & Lyon, 2015) highlighted the lack of instructions and the poor quality of rapport building provided by prosecutors during the early stages of interviews, prior to questioning about the abusive allegations. In all, the high number of questions asked during cross-examination are
inconsistent with the best practice recommendations about how to elicit accurate and reliable information.
Interviewing Children in the Portuguese Judicial Context
In recent years many changes have occurred in Portuguese law and judicial proceedings, particularly with regard to the way alleged victims’ statements are obtained. The Portuguese judicial system has implemented specific rules to protect children who are involved in judicial proceedings, such as protecting their identity during sexual abuse trials, preventing public attendance (nº3 artº 87 Portuguese Criminal Procedure Code [PCPC]), removal of the defendant from the courtroom while children provide their statements (artº 352 PCPC), and that interviews should only be conducted by the presiding Judge (artº 349 PCPC). The Law nº93/99 (Witnesses Protection Law [WPL]) also states that children are a vulnerable group of witnesses that should be heard as quickly as possible (artº 28), and that all measures necessary should be implemented to guarantee spontaneity of their accounts (artº26º). Psychological support should also be provided when necessary and the presence of a professional to support
them is mandatory during the statement procedure (artº 27). Furthermore, the WPL states that a special proceeding of anticipated evidence, ‘Declarações para Memória Futura ’ [DMF], 12 should be requested in cases where children are allegedly victims of sexual abuse. This procedure, that became mandatory in 2007, consists in an early interview conducted during the investigation phase and presiding by a Judge who conducts the interview. This interview can be used as evidence-in-chief during the trial so that children do not need to testify in court. During the DMF, the public prosecutor and the defense attorney can proposed or suggest questions to be put to the child, but they cannot question children directly. Despite this ruling, the reality is that, since all participants are in the same room, children hear questions being formulated, and sometimes Judges allow direct questioning by the defense attorney. During a DMF interview a psychologist is also present to support the child,but the law does not specify the exact role or the level of involvement of psychologists. During the DMF interview, some recommendations have been made to help professionals (Caridade, Ferreira & Carmo, 2011) but for the most part the psychologist does not interact in the proceedings, and does not participated in the questioning.
In 2012, the Portuguese Parliament also approved a resolution that ratifies the 2007 European Council Convention for Children’s Protection Against Sexual Exploitation and Sexual Abuse, that establishes the following guidelines: children’s statements should be obtained as quickly as possible, in adapted premises; interviews should be conducted by specialized professionals; when it is necessary to repeat interviews, those interviews should be conducted by the same person; the number of interviews must be limited; and children, in some cases, could be accompanied by legal representatives or an adult of choice. The
Statement for Future Use 1
Cf., art.º 271 of Portuguese Criminal Procedure Code. 2
Convention also addresses the importance of video recorded interviews and its acceptance as evidence during trial proceedings. So in 2013, a revision of the PCPC allowed criminal investigators to use video recording in interviews with witnesses and suspects (Law n.º 20/2013, February 21st). Also, rules and restrictions are established to guarantee that testimonies are collected properly. In fact, the PCPC indicates that procedures that contaminate memory are not allowed (art. 126º 1.b), specifying that the use of suggestive questioning is not admissible. permission
However, despite these important legislative reforms, and even though professionals recognize forensic interviews as a crucial moment in the criminal investigation, the way children’s testimony is currently obtained in Portugal must be improved (Peixoto, 2012). Research has shown that Portuguese children are interviewed 8 times on average by many professionals performing different roles (e.g., police officers, social workers, forensic
psychologists, forensic medical doctors, prosecutors, and judges), even though they may have no specific training for interviewing children (Ribeiro, 2009). Even in cases where there is strong physical evidence of sexual abuse children are still interviewed up to 9 times.(Peixoto, 2012).
Moreover, the Portuguese scientific literature about child interviewing is characterized by general guidelines about best practices and interview protocols, and focus mainly on forensic psychological assessment or credibility assessment of child sexual abuse allegations (Machado, 2002; Manita, 2003; Machado, 2005; Machado & Antunes, 2005; Magalhães & Ribeiro, 2007; Magalhães et al., 2010; Machado, Caridade & Antunes, 2011). For example, the Associação de Apoio à Vítima (APAV, 2002) published intervention guidelines in cases of 3 sexual abuse and other guidelines have been published for police officers (CNPJR, 2011a) and
Portuguese Victim Support Association 3
for child protection professionals (CNPJR, 2011b), but these guidelines are at best vague and lack information about evidence based approaches to child interviewing. Existing guidelines are also not mandatory or uniform and causing considerable variation among professionals in their approach. Currently, in the Portuguese judicial context, there are no detailed guidelines about how judges, defense attorneys, or prosecutors should conduct interviews with children in court, and there has been no systematic evaluation of existing methods.
In an attempt to fill this knowledge gap, forensic interviewing in Portugal has been the focus of some empirical research in recent years (e.g. Paulo, Albuquerque, Saraiva & Bull, 2015; Peixoto et al., 2015) and some important recommendations have been made (e.g., Magalhães & Ribeiro, 2007; Paulo, Albuquerque & Bull, 2015; Peixoto, Ribeiro & Lamb, 2011; Peixoto, Ribeiro & Alberto, 2013; Peixoto, Ribeiro & Magalhães, 2013).
Present Study
The present study provides a systematic evaluation of the current practices with regard to the way children are interviewed in the Portuguese judicial context during the DMF
proceedings. The types of questions used by Judges, Prosecutors, Defense Attorneys and Psychologists when interviewing children about alleged abusive events and the details
provided by the interviewees are examined in detail following procedures used in many other scientific evaluations of this type (e.g., La Rooy et al., 2015)
Method Sample
One hundred and thirty seven (137) interviews conducted between 2009 and 2014 in DMF proceedings were examined. The audio recording and/or the written transcription of the interviews were formally requested from several competent judicial entities (e.g., courts,
departments of criminal investigation) and after approval, collected from several Portuguese cities. The sample includes 38 interviews from the North of Portugal, 48 from the Centre, and 51 from the South. Regarding the interviewer’s gender, 48 were male, 85 were female and for the remaining 7 this information was not available.
The interviews were carried out with children between 3 and 17 years old, both male (n = 28) and female (n = 109), who were alleged victims of sexual abuse. Allegations is multiple abusive experiences were made by 85 children with 52 children reporting a single abusive experience. In terms of the type of abuse, 131 children reported being victims of sexual abuse, 2 of physical abuse, and 4 of both sexual and physical abuse. In this sample, 55 children reported a type of penetration (oral, anal, vaginal), 52 reported touches in private areas of their body above their clothes, and 42 under their clothes. Also, 55 children reported
grooming behavior, 43 reported being exposed to sexual behaviors from the perpetrator (e.g. nudity, masturbation) and11 children reported direct physical aggression (e.g. slapping). In approximately 84% (n = 115) of the cases the alleged suspects were known to the children. Most of the alleged offenders were acquaintances of the victim (n = 49), followed by victims’ family members (n = 29), strangers (n = 22), biological parents (n =15), parent’s spouses (n = 13), and boyfriends/ex-boyfriends of the alleged victim (n = 10).
Of the 146 offenders, 141 were male and 5 were female with several individual cases containing multiple suspects. Regarding the judicial decision for each case, 30 defendants received suspended sentences, 20 were imprisoned, 13 were acquitted, 6 received a fine penalty and 2 defendants had to do community work. In all, 26 cases were filed, and in10 cases the legal proceedings were temporary suspended with 3 cases were awaiting trial at the time of this study. In 27 cases this information was not available.
The average delay between the alleged abusive event and the last official interview was 16.89 months (SD = 26.83). The delay between the first and the last official interviews was around 13.27 months (SD = 8.8). The average delay between the first official interview and the judicial decision was on average 10.83 months (SD = 7.08). Finally, the delay between the first official interview and the DMF proceeding was around 11.28 months (SD = 7.48).
Coding Process
The coding scheme focused on 1) the type of interviewers’ utterances asked during the DMF interview and 2)the richness of the children’s statements in terms of quantity and quality of information provided about the alleged abusive event in response to each type of question or prompt used.
All 137 interviews were transcribed verbatim from the audio recording and were coded using the coding scheme developed by Lamb and his colleagues (Lamb et al., 1996; Lamb, Hershkowitz, Orbach, & Esplin, 2008). All interview transcripts contained the part of the interview conducted by the judge and/or by the psychologist (when this professional was present), the prosecution examination, and the defense cross-examination. For the purposes of this study we focused our analysis on the part of each interview concerned with substantive information, that is interviewers’ statements or questions and child responses that are focused on information about anything that happened during the investigated event, the immediate embedding and within incident disclosure, therefore excluding any non-substantive utterances, including introductory exchange at the beginning of the interview (e.g., information about the purpose of the court proceedings) or within the substantive part, attempts to establish rapport with the child, digressions, and attempts at the end of the interview to discuss neutral topics. All substantive question-response pairs were then coded. Type of interviewer’s questions
Interviewer’s utterances were classified, by two independent coders, as invitations, directive questions, option-posing questions or suggestive questions.
1. Invitations include open-ended questions, statements, imperatives or contextual cues to elicit free-recall responses from de child.
2. Directive questions include interviewers’ utterances, mostly using wh-questions, which focus on incident-related information previously mentioned by the child to request additional information.
3. Option-posing questions are interviewers’ utterances that focus children’s attention on aspects that they did not previously mention, without implying that a specific response is expected. This type of questions include ‘yes-no’ questions, forced choice questions, questions casting doubt the truthfulness of the child or questions about the motivation of another. We have also included an additional code designed for those utterances that are formulated as an option-posing, but the main request is directive and elicit a more elaborate response from the child (e. g., Interviewer: “Do you remember where did it happen?”, Child: “Yes, it happened in my bedroom during the holidays.”).
4. Suggestive questions include interviewers’ utterances that introduce information that the child did not previously disclosed, assume that a particular response is expected, quote the child incorrectly, or present the same option-posing question for the third time.
Children’s Responsiveness
Children’s responses were coded into the following categories.
1. Responsive – Verbal and action responses that are related to the question asked in the previous interviewer utterance, including responses that do not contain informative details, or when their meaning is unclear.
2. Unresponsive – Responses that do not relate to the interviewer’s previous utterance, but provide incident-related information.
3. Deny – Children’s responses that deny the alleged abuse. 4. Do not know
5. Do not remember 6. Do not want to talk
7. Unclear – Children’s responses that are unclear.
8. Clarification – Responses that request clarification or restatement of the previous question asked.
9. Unfinished – Responses that stop short of producing a meaningful statement. 10.No answer – No verbal or action responses are made by the child.
To examine the richness of the child’s testimony we counted the number of new details about the alleged abusive event per each responsive and unresponsive child utterance. A detail is coded only for the first time it is reported and it is defined as any relevant information about the alleged abusive event provided by the child during the interview, such as the naming, identification, or description of individuals, objects, events, places, actions, emotions, thoughts and sensations that are part of the alleged incident, as well as any of their features (e.g., appearance, location, time, duration, temporal order, sound, smell, texture).
Two independent coders with experience and training in the accepted coding procedures independently coded approximately 20% (n = 30) of the transcripts that were randomly selected. Inter-rater reliability was assessed with Cohen’s Kappa, and the agreement was high both in question types, K = .929, and in the number of details provided by children’s
Results Type of interviewer’s questions
In the 137 interviews of our sample a total of 8304 substantive question-response pairs (invitations, directive questions, option-posing questions, and suggestive questions) were identified. Judges were responsible for 90.3% of all questions made, followed by prosecutors (7.3%) and defense lawyers (1.9%). Psychologists’ intervention wasonly observed in 6 interviews, representing a residual percentage of questions (0.5%).
With regard to the different types of questions asked by judges, prosecutors, defense attorneys, and psychologists across all of the interviews conducted during DMF proceedings, 69.4% of all utterances were option-posing questions (n = 5765), 16.2% were directive questions (n = 1347), 11.4% were suggestive questions (n = 944), and 3% were open-ended prompts (n = 248).
Table 1 presents descriptive statistics for proportions of question types used by judges, prosecutors, defense attorneys, and psychologist across all of the analyzed interviews. As noted in Table 1, all interviewers were significantly more likely to use option-posing questions than the other question types, and judges asked significantly more questions than the others interviewers (n = 7442). These professionals asked 87.9% of all invitations used, 90% of all directive questions, 89.3% of all option-posing questions, and 91.3% of all
suggestive questions. The results also show that defense attorneys did not use any open-ended prompts, and that psychologists were the only interviewers that did not use any suggestive questions.
A repeated measures of variance (ANOVA) was conducted to examine whether the type of interviewer utterance varied as a function of interviewer (Judge, Prosecutor, Defense and Psychologist) , and age. The analysis showed a significant effect of question type
(F(1,125)=118.704, p<.001, interviewer (F(1,125)=140.198, p<.001, and these variables interacted (F(1,125)=109.864, p<.001. There were no significant differences associated with age which did not interact with any other variables. Pairwise comparisons (Table 3)
demonstrated significant differences for all judges utterances. When interviews where conducted by prosecutors, differences between option-posing questions and all the others types were found, as well as difference between open-ended prompts and directives were observed. Defense lawyers exhibited a difference between open-ended prompts and option-posing questions.No differences in utterances by psychologists were found
Children’s Responsiveness
Regarding children’s responsiveness to the questions asked during DMF interviews, results revealed that 92.5% of the answers were responsive. Also, in response to the different types of questions used across all interviews, children provided a total of 18,821 new details (see Table 2) about the investigated event (each piece of unique new information about the alleged abuse was coded as a single detail).
In response to option-posing questions made by judges, children provided 11,060 new details about the alleged abuse, 4643 new details were provided in response to directive questions, 2051 new details in response to suggestive questions and 1092 new details in response to open-ended prompts. Regarding to the type of questions used by prosecutors, children provided a total of 1,608 new details about the alleged abuse, 929 details obtained in response to option-posing questions, 475 to directive questions, 144 to suggestive questions, and 60 in response to open-ended prompts.To the type of questions asked by defense
attorneys, children provided a total of 158 new details about the alleged abuse, 78 obtained in response to option-posing questions, 57 todirective questions, and 23 in response to
suggestive questions. Finally, when the psychologist asked questions about the alleged abuse, children provided a total of 209 new details, divided into 111 in response to option-posing
questions, 69 to open-ended prompt, and 29 to directive questions.
A repeated measures of variance (ANOVA) whether there was questions types more likely to produce more details depending the interviewer (within-subjects analysis), and also depending different children’s age groups. The analysis showed a significant difference between question type, interviewer, and between the interaction of these variables. Also, the analysis didn’t suggested significant differences between age groups. Due to the null findings, age was not included in subsequent analyses. Pairwise comparisons (Table 4) demonstrated significant differences in details production for all questions types, when performed by judges; when performed by prosecutors, differences between option-posing questions and all the others types, and between suggestive and directives were observed in terms of obtained details; there were no differences in details production for any questions type in interviews performed by defense lawyers and psychologists.
Discussion
The data shows that judges have the leading role in DMFs, as they accounted for 90,5% of all questions and prompts asked. This was expected because, accordingly to the PCPC the judge has the task of conducting the judicial interview of witnesses so that information obtained has the statues of evidence-in-chief in a trial.
In terms of participation in DMF, prosecutors asked more questions compared to defense lawyers. In fact, prosecutors are responsible for the criminal investigation, and DMFs are made in its final stage. So we observed that, most of the time in this context, prosecutors had a final opportunity to collect information from children that contributed to the
accusations. Surprisingly, defense lawyers intervene less than expected. We should highlight that the main objective for the DMF is to be evidence-in-chief in the trial, so we expected that defense lawyers would have a higher intervention and cross-examine the interviewees. One reason that may explain this low participation by defense lawyers is the fact that, according to
the PCPC (Art. 349º), in a judicial interrogation, all bellow 16 years old witness are only directly questioned by the president judge (in a case of a court), and, in the case of DMFs, by the judge (juiz de instrução). Nevertheless, as we observed in our sample, most of times lawyers and prosecutors are allowed direct questioning. We must emphasize that DMF occurs behind-closed-doors with all participants present and they can hear each others questions so the request from a prosecutor or lawyer to the judge about questioning the child about some matter, is probably understood by the child as a direct question. Other explanation could be the fact that, in many cases, the lawyer present is state appointed and has no insight about the case or time to prepare to the DMF. In some cases, we can also hypothesize that the low participation is a matter of defense strategy, to gain more knowledge about the case and the charges because in some DMFs the case may still be under investigative secrecy, and the defense only discovers the full description of alleged abusive events at this time.
Concerning question types and prompts, it appears that option-posing questions were used the most frequently by all participants in DMFs. This is consistent with the findings of several studies about children’s testimony in a trial context, particularly during
cross-examination (Andrews, Lamb & Lyon, 2014; Evans & Lyon, 2012; Klemfuss, Quas & Lyon, 2014; Stolzenberg & Lyon, 2014; Zajac & Cannan, 2009). Therefore, the excessive use of option-posing questions appears to be a characteristic approach by legal professionals to questioning a witness, regardless of their age. Regarding our sample, we also must say that, the judge and the prosecutor have access to the case file prior to the DMF, and knowledge about all evidence gather and other accounts given by the child. So, the excessive use of option-posing questions could demonstrate that the DMF is a confirmatory procedure of previous evidence, and not an investigative interview. Clearly, our data shows that in the DMF children only have few opportunities to give a free narrative about alleged abusive
events, as ended prompts were infrequently used by all legal professionals. When open-ended prompts were used, they mainly used by psychologists but only in 6 interviews.
The excessive use of option-posing questions had its repercussion in details given by children. More than half of details provided were elicited by this type of prompt (see Table 2), and if we take in to count details elicit by suggestive questions, roughly two-thirds of details are elicited by recognition prompts. Several studies (Dent, 1986; Dent & Stephenson, 1979; Hutcheson, Baxter, Telfer, & Warden, 1995; Lamb & Fauchier, 2001; Leichtman & Ceci, 1995; Orbach & Lamb, 2001) have demonstrated that the use recognition prompts increase children’s mistakes and contradictions. The use of these prompts increases response pressure, and because it introduces interviewer’s interests or personal views about the case, also increases the risk of acquiescence, suggestibility, and confirmatory bias.
In the current study, unlike experimental studies, it is not possible to verify the amount of inaccurate information provided by children in DMF. Nevertheless, based on research, we can say that the high level of recognition prompts in DMF is concerning, and provide
conditions that are known to elicit inaccurate information. For example, the use of option posing questions, in the context of DMF, increases also the risk of children’s acquiescence to confirm and validate previous superficial evidence, like other witness accounts. Adding to the worrying use of recognition prompts, our data shows that children respond to 90% of all prompts. This shows that children may understand the seriousness and importance of the DMF and comply with what is requested. Thus, using risky questions, like option-posing and suggestive ones, in a context of children’s high compliance, is further cause for concern (Ceci, Ross & Toglia, 1987; Ceci & Bruck, 1995; Quas et al., 2007).
Our data shows also that the different interviewers use the same frequency of type of questions despite the child’s age, as no significant differences were showed by ANOVA
analysis. Other studies have also described the same behavior in prosecutors and defense layers interviewing (Andrews et al., 2014; Zajac et al., 2003). These reinforces the danger of obtaining inaccurate information (commission errors) from young children and preventing older children from providing detailed information (omission errors (Lamb et al, 2003a; Lamb, Sternberg, Orbach & Horowitz, 2003b)
Research also indicates that delay is an important factor to consider, especially for young children with respect to memory, as the number of details provided by children decreases over time (Lamb, Sternberg, and Esplin, 2000). In the current study we discovered that there were lengthy delays between the alleged event and the DMF, which was on average 28 months. As previously discusses, DMF is commonly the last of a series of interviews in the criminal investigation process, and, as our data show, it can occur many months after
allegations come to light. During this timeframe the children are interviewed many times (Peixoto, 2012; Ribeiro, 2009). Thus, aside from the poor quality of questioning, the delay and number of interviews provide additional opportunities for children’s narrative
contamination during the investigation. Also, these interviews are conducted without the help of structured interview protocols, they are not commonly audio or video recorded, and are conducted by many different professionals (Peixoto, Ribeiro, Fernandes & Almeida, 2015). A long delay also doesn’t allow children to deal emotionally with the abusive experience, due to re-experiencing the abusive events through several different interviews, and a long period until the case find its closure with a judicial decision (2 years after the first interview in the criminal investigation process according to our data).
Conclusion
The current study clearly shows that DMF interviews are characterized by an extensive use of recognition prompts by all participants in the procedure, irrespective of
child's age. This procedure occurs at the final stage of a lengthy criminal investigation As we stated, this increases the risk of child's memory taint, information mistakes and contamination by others. Also, an interview than relies on a confirmatory approach, mainly using option-posing questions, doesn't facilitate the child's free narrative about events, aspect underline as crucial for the testimony evidence validity by the CPP.
A recognition prompts based interview also doesn't comply with international guidelines about children's interview in a judicial context. Therefore, we recommend that the use of a structured interview protocol should be implemented as a standard for DMF proceedings. Elsewhere (Peixoto et al., 2012) we argue that the implementation of the NICHD
Investigative Interview Protocol could be a solution for this problem. Research has demonstraste that this interview protocol stimulates free-recall and increases quantity and quality of information in children (Orbach, Hershkowitz, Lamb, Sternberg, et al., 2000), even young (Lamb, Sternberg, Orbach, Esplin, et al., 2003), and with special needs (Brown, Lewis & Lamb, 2015). The use of the NICHD Protocol also has a positive impact in credibility assessment (Hershkowitz, Fisher, Lamb & Horowitz, 2007) and in judicial decision-making (Pipe et al., 2013). For this reason the Protocol as been implemented and use in several
jurisdictions (La Rooy et al., 2015). Particularly, it's use, in a contextual and linguistic adapted form, seems to have similarly results in terms of Portuguese children's informativeness in a judicial context (Peixoto et al., 2015).
The implementation of a structured interview protocol in DMF proceeding should be included in a more extended set of practices changes. First of all, DMF should be, if possible, the first formal child's interview, preventing this way loss of information, risk of contamination and secondary victimization by further interviews (Ribeiro, 2009). The use of an interview protocol should be used by specialized interviewers, with proper training (Lamb, Sternberg,
Orbach, Hershkowitz, et al., 2000; Stewart, Katz & La Rooy, 2011), and belonging to an auto and hetero evaluation and feedback culture and system. To achieve this goals, the use of video recording as the paramount for interviews records, has international legislation (for example, the Lanzarote Convention) and national laws (e.g. CPP) advocate. These changes will be a decisive step for the defense of children's rights and for the consolidation of a Portuguese fair justice system for crime suspects.
References
Ahern, E. C., Stolzenberg, S. N., & Lyon, T. D. (2015). Do prosecutors use interview instructions or build rapport with child witnesses? Behavioral Sciences and the Law, 33(4), 476-92. doi: 10.1002/bsl.2183
American Professional Society on the Abuse of Children, APSAC. (2012). Practice
guidelines: Investigative interviewing in cases of alleged child abuse. Retrieved from: http://www.apsac.org/
Andrews, S. J., Lamb, M. E., & Lyon, T. D. (2015). Question types, responsiveness, and selfcontradictions when prosecutors and defence attorneys question alleged victims of sexual abuse. Applied Cognitive Psychology, 29, 253-261. doi: 10.1002/acp.3103
Associação Portuguesa de Apoio à Vítima [APAV]. (2002). Manual Core para atendimento de crianças vítimas de violência sexual. Lisboa: Artes Gráficas Simões, Lda.
Brown, D. A., Lamb, M. E., Lewis, C., Pipe, M.-E., Orbach, Y., & Wolfman, M. (2013). The NICHD Investigative Interview Protocol: An analogue study. Journal of Experimental Psychology: Applied, 19(4), 367–382. http://doi.org/10.1037/a0035143
Brown, D. A., & Lamb, M. E. (2015). Can Children Be Useful Witnesses? It Depends How They Are Questioned. Child Development Perspectives, 9(4), 250–255. doi:10.1111/ cdep.12142
Brown, D. A., Lewis, C. N., & Lamb, M. E. (2015). Preserving the Past: An Early Interview Improves Delayed Event Memory in Children With Intellectual Disabilities. Child Development. http://doi.org/10.1111/cdev.12364
Caridade, S., Ferreira, C. & Carmo, R. (2011). Declarações para Memória Futura de Menores Vítimas de Crimes Sexuais: Orientações para Técnicos Habilitados. In M. Matos, R. A. Gonçalves, & C. Machado (Eds.), Manual de psicologia forense: Contextos, práticas e desafios (pp. 65-85). Braga: Psiquilibrios.
Ceci, S. J. & Bruck, M. (1995). Jeopardy in the courtroom: A scientific analysis of children’s testimony. Washington, DC: American Psychological Association.
Ceci, S. J., Ross, D. F., & Toglia, M. P. (1987). Suggestibility of children’s memory: Psycholegal issues. Journal of Experimental Psychology: General, 116, 38–49. Código de Processo Penal (10.ª ed.) (2009). Coimbra: Almedina.
Comissão Nacional de Protecção de Crianças e Jovens em Risco [CNPCJR] (2011a). Guia de orientações para os profissionais das forças de segurança na abordagem de situações de maus tratos. Lisboa: CNPCJR.
Comissão Nacional de Protecção de Crianças e Jovens em Risco [CNPCJR] (2011b). Guia de Orientações para os Profissionais da Acção Social na Abordagem de Situações de Maus Tratos ou Outras Situações de Perigo. Lisboa: CNPCJR.
Davies, E. & Seymour, F. W. (1998). Questioning child complainants of sexual abuse: analysis of criminal court transcripts in New Zealand. Psychiatry, Psychology and Law, 5(1), 47-61. doi: 10.1080/13218719809524919
Evans, A. D. & Lyon, T. D. (2012). Assessing children’s competency to take the oath in court: the influence of question type on children’s accuracy. Law and Human Behavior, 36(3), 195-205. doi: 10.1037/h0093957
Hanna, K., Davies, E., Crothers, C., & Henderson, E. (2012). Questioning child witnesses in New Zealand’s criminal justice system: is cross-examination fair? Psychiatry,
Psychology and Law, 19(4), 530-546. doi: 10.1080/13218719.2011.615813
Hershkowitz, I., Fisher, S., Lamb, M. E., & Horowitz, D. (2007). Improving credibility assessment in child sexual abuse allegations: The role of the NICHD investigative interview protocol. Child Abuse & Neglect, 31(2), 99–110. http://doi.org/10.1016/j.chiabu. 2006.09.005
Hershkowitz, I., Lamb, M. E., Orbach, Y., Katz, C., & Horowitz, D. (2012). The development of communicative and narrative skills among preschoolers: lessons from forensic
interviews about child abuse. Child Development, 83(2), 611-622. doi: 10.1111/j. 1467-8624.2011.01704.x
Home Office. (2011). Achieving best evidence in criminal proceedings. Guidance on
interviewing victims and witnesses, and using special measures. London: Home Office.
Jack, F., Leov, J., & Zajac, R. (2014). Age-related differences in the free-recall accounts of child, adolescent, and adult witnesses. Applied Cognitive Psychology, 28, 30-38. doi: 10.1002/acp.2951
Klemfuss, J. Z., Quas, J. A. & Lyon, T. D. (2014). Attorneys' questions and children's
productivity in child sexual abuse criminal trials. Applied Cognitive Psychology, 28(5), 780-788. doi:10.1002/acp.3048
Lamb, M. E., La Rooy, D. J., Malloy, L. C., & Katz, C. (Eds.). (2011). Children's testimony: A handbook of psychological research and forensic practice. Chichester; Wiley-Blackwell.
Lamb, M. E., Hershkowitz, I., Sternberg, K. J., Esplin, P. W., Hovav, M., Manor, T., & Yudilevitch, L. (1996). Effects of Investigative Utterance Types on Israeli Children’s Responses. International Journal of Behavioral Development, 19(3), 627–638. doi: 10.1080/016502596385721
Lamb, M. E., Hershkowitz, I., Orbach, Y., & Esplin, P. W. (2008). Tell me what happened: structured investigative interviews of child victims and witnesses. Chichester; Wiley-Blackwell.
Lamb, M. E., Sternberg, K. J., Orbach, Y., Esplin, P. W., Stewart, H., & Mitchell, S. (2003a). Age differences in young children’s responses to open-ended invitations in the course of forensic interviews. Journal of Consulting and Clinical Psychology, 71(5), 926–934. doi: 10.1037/0022-006X.71.5.926
Lamb, M. E., Sternberg, K. J., Orbach, Y., Hershkowitz, I., & Horowitz, D. (2003b).
Differences between accounts provided by witnesses and alleged victims of child sexual abuse. Child Abuse & Neglect, 27, 1019–1031. doi:10.1016/S0145-2134(03)00167-4 Leichtman, M. D. & Ceci, S. J. (1995). The effects of stereotypes and suggestion on
preschoolers’ reports. Developmental Psychology, 31, 568–578.
Machado, C. (2002). Abuso sexual de crianças. In C. Machado & R. A. Gonçalves (Eds.), Violência e vítimas de crime (Vol. 2 - Crianças, pp. 40-94). Coimbra: Quarteto.
Machado, C. (2005). Avaliação da credibilidade de alegações de abuso sexual: Consensos e controvérsias. Revista "Psicologia Educação Cultura", IX(2), 513-34.
Machado, C., & Antunes, C. (2005). Avaliação de vítimas de abuso sexual. In R. A.
Gonçalves & C. Machado (Eds.), Psicologia forense (pp. 207-29). Coimbra: Quarteto. Machado, C., Caridade, S., & Antunes, C. (2011). Avaliação psicológica de vítimas de abuso
sexual. In M. Matos, R. A. Gonçalves, & C. Machado (Eds.), Manual de psicologia forense: Contextos, práticas e desafios (pp. 91-122). Braga: Psiquilibrios.
Magalhães, T., Ribeiro, C., Jardim, P., Peixoto, C., Oliveira, R., Abreu, C., Pinheiro, F., & Guerra, C. (2010) Da Investigação inicial ao diagnóstico de abuso. In T. Magalhães (Coord.) Abuso de Crianças e Jovens: Da suspeita ao diagnóstico. (pp. 147-188). Lisboa-Porto: Lidel.
Magalhães, T., & Ribeiro, C. (2007). A colheita de informação a vítimas de crimes sexuais. Acta Médica Portuguesa, 20, 439-445.
Manita, C. (2003). Quando as portas do medo se abrem... do impacto psicológico ao(s) testemunho(s) de crianças vítimas de abuso sexual. In Actas do Encontro Cuidar da Justiça de Crianças e Jovens - A função dos Juízes Sociais, (pp.229-253). Coimbra: Almedina.
Orbach, Y., Hershkowitz, I., Lamb, M. E., Sternberg, K. J., Esplin, P. W., & Horowitz, D. (2000). Assessing the value of structured protocols for forensic interviews of alleged child abuse victims. Child Abuse & Neglect, 24(6), 733–752.
Paulo, R. M., Albuquerque, P. B., Saraiva, M., & Bull, R. (2015). The Enhanced Cognitive Interview: Testing Appropriateness Perception, Memory Capacity and Error Estimate
Relation with Report Quality. Applied Cognitive Psychology, n/a–n/a. http://doi.org/ 10.1002/acp.3132
Peixoto, C. E. (2012). Avaliação da credibilidade de alegações de abuso sexual de crianças - uma perspectiva psicológica forense. FPCEUP: Porto.
Peixoto, C. E., Ribeiro, C. & Alberto, I. (2011). The Portuguese adaptation of the NICHD forensic interview protocol: An analysis of some psycholinguistic variables. In iIIRG International Conference. Dundee, Scotland.
Peixoto, C. E., Ribeiro, C., & Alberto, I. (2013). O Protocolo de Entrevista Forense do NICHD: contributo na obtenção do testemunho da criança no contexto português. Revista Do Ministério Público, (134), 181–219.
Peixoto, C. E., Ribeiro, C., Fernandes, R., & Almeida, T. (2015). Forensic Interviewing of witness in Portugal. In D. Walsh, G. Oxburgh, A. D. Redlich, & T. Myklebust (Eds.), Contemporary developments and practices in investigative interviewing and
interrogation: An international perspective (Vol. 1, pp. 188–198). London: Routledge Press.
Peixoto, C. E., Ribeiro, C., & Lamb, M. E. (2011). Forensic interview protocol in child sexual abuse. Why and what for? In T. Magalhães (Ed.), Abuse & neglect series: To improve the management of child abuse and neglect (pp. 133-160) [Vol. I]. Porto: SPECAN.
Peixoto, C. E., Ribeiro, C., & Magalhães, T. (2013). Entrevista forense de crianças alegadamente vítimas de abuso. In T. Magalhães & D. N. Vieira (Eds.). Agressões Sexuais: Intervenção Pericial Integrada (Vol. 2, pp. 75–102). Maia: SPECAN.
Poole, D. A., & Lamb, M. E. (1998). Investigative interviews of children: A guide for helping professionals. Washington, DC: American Psychological Association.
Quas, J. A., Malloy, L. C., Melinder, A., Goodman, G. S., Di’Mello, M., & Schaaf, J. (2007). Developmental differences in the effects of repeated interviews and interviewer bias on young children’'s event memory and false reports. Developmental Psychology, 43(4), 823. Ribeiro, C. (2009). A criança na justiça: Trajectórias e significados do processo judicial de
crianças vítimas de abuso sexual intrafamiliar. Coimbra: Almedina.
Saywitz, K. J., Lyon, T. D., & Goodman, G. S. (2011). Interviewing children. In J. E. B. Myers (Ed.), The APSAC handbook on child maltreatment (pp. 337–360). Newbury Park, CA: Sage Publications, Inc.
Spencer, J, & Lamb, M. (2012). Children and Cross-examination - Time to Change the Rules? Oxford: Hart Publishing.
Stewart, H., Katz, C., & La Rooy, D. J. (2011). Training forensic interviewers. In M. E. Lamb, D. J. La Rooy, L. Malloy, & C. Katz (Eds.), Children's testimony: A handbook of
psychological research and forensic practice (Second ed., pp. 199-216). Chichester, UK: Wiley-Blackwell
Stolzenberg, S. & Lyon, T. D. (2014). How attorneys question children about the dynamics of sexual abuse and disclosure in criminal trials. Psychology, Public Policy, & Law, 20(1), 19-30. doi:10.1037/a0035000
Waterman, A. H., Blades, M., & Spencer, C. P. (2001). Interviewing children and adults: The effect of question format on the tendency to speculate. Applied Cognitive Psychology, 15, 521-531. doi: 10.1002/acp.741
Waterman, A. H., Blades, M., & Spencer, C. P. (2004). Indicating when you do not know the answer: the effect of question format and interviewer knowledge on children’s ‘don’t know’ responses. British Journal of Developmental Psychology, 22, 335-348. doi: 10.1348/0261510041552710
Zajac, R. & Cannan, P. (2009). Cross-examination of sexual assault complainants: a developmental comparison. Psychiatry, Psychology and Law, 16, 36-54. doi: 10.1080/13218710802620448
Zajac, R., Gross, J. & Hayne, H. (2003). Asked and answered: Questioning children in the courtroom. Psychiatry, Psychology and Law, 10(1), 199–209. doi:10.1375/pplt. 2003.10.1.199
Table 1
Proportions of Question Types
Invitation Directive Option-posing Suggestive
n (%) n (%) n (%) n (%) X2 df p Judge 218 (2.9) 1212 (16.3) 5150 (69.2) 862 (11.6) 192,7 9 0,0 Prosecutor 12 (1.6) 106 (14.5) 541 (73.9) 73 (10) Defence Lawyer 0 (0) 17 (22.4) 50 (65.8) 9 (11.8) Psychologist 18 (33.3) 12 (22.2) 24 (44.4) 0 (0)
Table 2
Details by interview and type of question
Details
Interviewer Question Type M (SD) % N 95% CI
Judge Invitation 5.00 (.39) 5,8 1092 [4.242, 5.776] Directive 3.83 (.16) 24,6 4643 [3.506, 4.156] Option Posing 2.14 (.08) 58,7 1106 0 [1.990, 2.305] Suggestive 2.37 (.19) 10,9 2051 [1.994, 2.765] Prosecutor Invitation 5.00 (1.66) 3,7 60 [1.731, 8.269] Directive 4.48 (.56) 29,5 475 [3.381, 5.581] Option Posing 1.71 (.24) 57,8 929 [1.230, 2.204] Suggestive 1.97 (.67) 9 144 [.647, 3.298] Defense Attorney Invitation 0 (0) 0 0 [.000, .000] Directive 3.35 (1.40) 36,1 57 [.606, 6.100] Option Posing 1.56 (.81) 49,4 78 [-.042, 3.162] Suggestive 2.55 (1.92) 14,6 23 [-1.219, 6.331] Psychologist Invitation 3.83 (1.36) 33 69 [1.164, 6.503] Directive 2.41 (1.66) 13,9 29 [-.853, 5.686] Option Posing 4.62 (1.17) 53,1 111 [2.313, 6.937] Suggestive 0 (0) 0 0 [.000, .000]
Table 3
Type of Question by Interviewer
Notes. *p .001; **p .01
Different subscripts denote significant differences within utterance types. Question Type
Interviewer Invitation Directive Option Posing Sugestive
F1,136
M (SD) M (SD) M (SD) M (SD)
Judge 1.6 (.2)a 9.6 (1)b 39.6 (3.3)c 6,8 (.7)d 178,251*
Prossecutor .1 (.1)a .7 (.3)b 3.8 (1)c .5 (.3)ab 22,49*
Defense
Lawyer 0 (0)a .1 (.1)ab .2 (.1)bc .0 (.1)ab 8,575**
Table 4
Details by type of question and Interviewer
Notes. *p .001
Different subscripts denote significant differences within utterance types. Question Type
Interviewer Invitation Directive Option Posing Sugestive
F1,136
M (SD) M (SD) M (SD) M (SD)
Judge 8 (1.5)a 33.9 (3.2)b 80.7 (6.2)c 15 (2.1)d 110.232*
Prossecutor .4 (.3)a 3.5 (1)ab 6.8 (1.5)c 1.1 (.5)a 14.158*
Defense
Lawyer 0 (0)abcd .4 (.3)abcd .6 (.2)abcd .2 (.1)abcd 2.713 Psychologist .5 (.4)abcd .2 (.1)abcd .8 (.7)abcd 0 (0)abcd .983
