Judge Borenstein's decision-- Part III-B

12 Jun 98

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Scroll back to Part III-A, "The Expert Witnesses."

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B. The Newly Discovered Evidence

Dr. Bruck's testimony and the evidence she presented is newly discovered. Her testimony could not have been given in 1987, as it was not available. Although defendants in cases similar to the Amirault case in the late 1980s and early 1990s tried to argue that the children's disclosures were the product of repeated suggestive interviews by parents, law enforcement officials and therapists, without scientific evidence or hard data to support their arguments, most of these cases resulted in convictions. The finders of fact in those cases were unable to understand the dangers of suggestive interviewing procedures. Their own common sense - to which district attorneys would regularly resort - would not allow them to resist the arguments that children could only speak of sexual acts if they experienced them; children, prosecutors argued, would never lie or make these things up. Aggravating this problem, was the testimony of the Commonwealth's expert, Dr. Renee Brant who, along with the other investigators, was wedded to the belief that sexually abused children at first deny abuse, then disclose, recant and then disclose again, thereby making it necessary for interviewers to use suggestive techniques to draw the disclosures out of the children. The newly discovered evidence directly undermines the validity of those beliefs, and shows beyond a reasonable doubt, that what was done in this case was to risk convicting innocent people for acts that probably did not occur.

In the last five to ten years there has been a paradigmatic shift in this research to make it more forensically relevant. Specifically, preschool children have been included

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in many studies, researchers have begun to examine children's suggestibility about events that involve bodily touching, and the understanding of "suggestive techniques" has expanded from merely the use of misleading questions to the broad range of suggestive interviewing and investigative techniques discussed below. All of which occurred in this case in an overwhelming manner.

Interviewer Bias

Interviewer bias is one of the driving forces behind suggestive interviewing and flawed investigations. Interviewer bias, now a widely recognized and accepted concept among experts in the field oF children's suggestibility, characterizes those interviewers who hold an a priori belief about the occurrence or non-occurrence of certain events and, a result, mold the interview to elicit statements from the interviewee that are consistent with their (interviewer's) beliefs, rather than what may have actually happened. Its presence is often revealed through the use of several improper interviewing techniques, which recent research has overwhelmingly shown to be suggestive and dangerous to the truth-finding process. These techniques include asking very specific rather than open-ended questions and providing the answer in the question; repetitive questioning about a particular topic or event, regardless of a child's response; reinforcing statements which confirm the interviewer's beliefs and ignoring those claims which do not, including allegations against individuals the interviewer does not want to focus on or those which are unbelievably bizarre; asking children for their help in the investigation; using

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anatomically detailed drawings and dolls; using peer pressure to elicit disclosures; asking children to engage in speculation, and failing to ask questions that might provide alternative explanations for certain events. Research has shown that an interviewer's beliefs about an event influences the accuracy of children's answers, particularly if the interviewer is an adult of high status. When one adds to these discredited techniques, parental influence and pressure; wide and far-reaching media attention, and other significant issues going on in a child's life, the combination is a recipe for unreliable disclosures.

Recent research has proven that the following interview techniques are unnecessarily suggestive and improper, and the use of them in an investigation of alleged child abuse creates a substantial risk that a child's disclosures will be unreliable. Each of the following techniques was utilized in interviews with each child in the case before me. Examples of how these techniques were used with the four child witnesses in this case is explained in greater detail below.

A single suggestive interviewing technique has a deleterious effect on the reliability of a child's disclosure; when several of these techniques are used together, the likelihood that a child's disclosure will be unreliable increases significantly, as young children can quickly come to make false reports involving harm and wrongdoing. Recent research has shown conclusively that a combination of suggestive techniques used during an interview is likely to produce high assent rates for false events.

Suggestive interviews can also result in false narratives that cannot be

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distinguished from true narratives, because the false narratives contain a number of factors which are generally considered to be markers of true narrative, such as spontaneous statements ripe with details, adjectives, emotional terms, and dialogue. Although in some cases it is easier to distinguish between a false and true narrative, because a true narrative is often more consistent than a false one and false narratives contain many exaggerated and incredible details, it is generally difficult, if not impossible, to distinguish the two. Thus, suggestive interviewing techniques not only lead to false assent rates but they also affect children's demeanor to the point that they may be judged as credible and not susceptible to cross-examination, creating a clear example of the honest, but mistaken witness. Suggestive interviewing affects the credibility of children's statements to such an extent that even a professional may not be able to determine when suggestively interviewed children are providing a false report.

The Commonwealth's submissions have not chipped away at the defendant's position on this motion. Several of the articles submitted by the Commonwealth to discredit Dr. Bruck's opinion, in fact, either support or are consistent with her testimony. Contrary to the Commonwealth's position now and its experts at trial, scientific evidence does not support the view that most sexually abused children deny abuse, disclose abuse, and recant their previous reports only to disclose again.

The defendant's newly discovered evidence in this case clearly shows, and this Court finds, that the FADS investigation was fatally flawed from the start and produced

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unreliable disclosures from the child witnesses who testified against the defendant. The first suspicions of abuse arose on September 2, 1984 when the Mother of MC, a FADS student who did not testify at the defendant's trial, called the "At Risk Hotline" to report that MC alleged had been sexually abused by Gerald Amirault. MC's mother had been questioning him for five months when she reported the abuse. Mother had spoken to MC before Easter in 1984 and told him about the molestation of an uncle in her family in order to prompt a disclosure. At best, the circumstances surrounding MC's disclosures are highly questionable, at worst they created an a atmosphere in which MC was extremely vulnerable to suggestive and coercive interviewing techniques.

The commencement of the investigation in this case was based upon a tenuous set of allegations. Soon after the report by MC's mother, authorities in Malden closed down FADS and the community was thrown into a state of panic. On September 12, 1984, a public meeting was held at the Malden Police Station to brief parents on the investigation. At the meeting, law enforcement officials made the irreversible and critical mistake of delegating the delicate and important task of interviewing to parents. Parents were in essence "deputized" and told to question their children about a magic room, a secret room and a clown, and not to say anything positive about the Amiraults.

The Amirault family was targeted in this investigation from the outset in a climate of fear and panic chronicled in pervasive and substantial media coverage. Susan Kelley, a pediatric nurse who interviewed all four child witnesses in this case, and law

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enforcement officials, had decided from the start that the Amiraults had committed these crimes. Consequently, investigators chose to ignore the testimony of other teachers and students involved in the case. Shortly thereafter, several children, including the four child witnesses who testified in this case, were subjected to multiple, suggestive interviews with parents, Department of Social Services ("DSS") workers, police officers and other law enforcement officials. All of the child witnesses initially - and quite amazingly - withstood the barrage; they all denied any abuse. Eventually - and now we understand, predictably - they were broken down and the newly discovered evidence explains how and why.

Investigators' misinterpretation of the child witnesses pattern of disclosure also flawed this investigation. The child witnesses in this case followed a disclosure process of denial (often repeatedly), disclosure, recantation and disclosure. Investigators' beliefs about the disclosure process translated into the following practices: abused children must be relentlessly pursued or they will never disclose the abuse; one should not accept children's denials or recantations because these responses are typical among sexually abused children and one must persistently question these children in order to overcome any threats the perpetrators may have made to them. The newly discovered evidence in this case disposes of these myths, showing that only a small minority of validated abuse cases fit into this pattern and that although threats are sometimes used to silence children, they are not predictably effective. The argument that all of the children in this

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case remained silent in the face of threats is not persuasive to this Court. None of these children spoke of abuse or threats until after they had been subjected to the inappropriate and coercive interviews. Many of the disclosures were inconsistent and contained incredible events and acts. Because of their bias, investigators ignored these.

The newly discovered evidence shows that the disclosure pattern of the child witnesses in this case is not typical of children who have been sexually abused. Because patterns of disclosure in Amirault are so discrepant from those of sexually abused children reported in the scientific literature, explanations other than sexual abuse must be considered to understand why the child witnesses in this case shared the same disclosure pattern; namely, that the children's disclosures were the product of suggestive interviews. The universal disclosure pattern found in this case is not the product of mere coincidence, but of highly improper interrogation and influences.

Interviewer bias, the central driving force in flawed investigations of child sexual abuse, was clearly and overwhelmingly present in this case. It is apparent from the police meeting in Malden of September 12, 1984; written DSS and police reports; the investigators' belief in the above described disclosure pattern; the opinion that subsequently disclosed behavioral and physical symptoms of the children were due to sexual abuse, and nothing else, and investigators' disregard, and often contempt for, the testimony of teachers who denied that they ever saw any abuse take place; as well as the reluctance on the part of investigators to consider the possibility that these children had

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not been sexually abused. Investigators also ignored evidence of dysfunction in the childrens' families, the inconsistency of many of the disclosures, and the "fantastic" claims. This interviewer bias led to the pervasive and improper use of specific suggestive interviewing techniques, as is apparent both from the Kelly interviews as well as from the written DSS and police reports. Even to the very end, as the words of the prosecutor in the closing argument show, the Commonwealth insisted they had done "nothing improper" in the interviews and investigation. This blatant disregard of the evidence may help explain the unfair investigation of the defendant.

The manner in which this case, the first institutional child sex abuse case handled by DSS, was investigated - we now know - violated every acceptable standard for conducting child abuse investigations. After the investigation, DSS worker Gerry Docherty, advised its employees on the proper way to handle institutional day care cases in the future, emphasizing that any future investigations were not to be handled in the same way.

Parents' reports which would normally serve to corroborate the testimony of the children, were inconsistent and made only after the investigation was well under way and some of the interviews had taken place; many of these interrogations were conducted by the parents themselves. Parents' memories suddenly surfaced about observations often made months or years before, without ever having been revealed to anyone. Their recall changed in order to conform with their beliefs, fostered by the media frenzy surrounding

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this investigation, and the influence of law enforcement, that their children had been sexually abused by the Amiraults. From the outset, parents were directed to play active roles in the questioning of their children.

Behavioral symptoms in the children alleged by the parents emerged only as a result of the coercive and suggestive interviewing that took place, other behavioral disorders, discord or changes in the family. Therefore, there is no credible, independent behavioral or physical evidence corroborating the children's testimony. None of these symptoms were disclosed until later in the fall of 1984.

Physical evidence in this case is almost non-existent and at most inconclusive on the question of whether these children were sexually abused. With the exception of one child, the minimal amount of physical evidence in this case was reported only months after the allegations surfaced. Even that child had similar physical symptoms before she ever enrolled at FADS; the one physical symptom seen in this child was inconclusive, according to her own doctor and the Commonwealth's witnesses.

The child witnesses who testified against the defendant were subjected to highly improper investigative techniques, including coercive and suggestive interviews and influences. Because there is no independent evidence to corroborate their allegations of abuse, their testimony is unreliable; its admission at trial of the defendant was a violation of the most fundamental rules of evidence and due process.

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