Truth and Consequence
Introduction to Children's Memory in Legal Context
Discussion on societal perceptions of children's testimony: historically viewed with skepticism due to historical "witch trials."
Legal perception of children as unreliable witnesses until recent decades.
Increase in cases involving children as witnesses since the 1980s.
Historical Context
Skepticism following child testimonies: children used as witnesses seen as unreliable since the late 1800s.
Studies showed children are more suggestible and gullible, incorporating adult suggestions into their memories.
Shift in perspective during the 1980s: renewed interest in understanding children's memory and reliability.
Accuracy of Children's Statements
Understanding the dual sources of inaccuracies in child testimonies:
Intentional Deceit: Children may lie intentionally.
Misremembering: Children may genuinely believe their altered memories due to suggestibility.
Child Memory Research Insights
Memory not a mechanical recording, but rather a reconstructive process.
Experimentation reveals how suggestive questioning influences children's memories.
Individual Case Study: Bobby Fine
A case involving a boy whose mother’s remains were found years later.
The aunt suggested potential memories of violent events involving the boy's father.
Question posed: "Should I believe the child?" highlights the complexity in assessing children's recollection.
Experimental Techniques in Memory Retrieval
Interactive demonstration: Experiment illustrating suggestive influence on memory through individual recollections.
Common vegetables survey shows how subtle suggestion can lead to altered memory perception.
Memory Corruption Mechanisms
Common issues explored in child testimony include:
Suggesting false memories through leading questions.
Children struggle with differentiating between real experiences and imagined narratives.
Legal Implications of Memory Research
Tendency for children's testimonies to favor one side in legal disputes, frequently benefiting defense strategies.
Example of the case involving Bobby Fine led to the exploration of various factors contributing to suggestibility:
Emotional states, peer influence, and interrogative techniques used by adults.
Case Details: Impact of Suggestibility
Observations on child witnesses in various settings (e.g., daycare molestation allegations, school environments).
Suggestive interview techniques corrupt children's accuracy and may influence court outcomes.
Emphasis on the problem of stereotyping in child testimonies, influencing perceptual accuracy.
Emotion and Stereotypes
Example of a child presented with a negative stereotype about an adult, which led to erroneous memories of events.
Stereotypes can dramatically skew children's accounts of encounters with adults.
Conclusion and Reflection
Reflecting on the role of memory researchers in court settings.
The complex relationship between memory accuracy, suggestibility, and the quest for truth in child testimony within the justice system.
Recognition of the fine line between protecting innocent individuals and advocating for abused children, showcasing the dual reality of child testimonies in legal cases.
[Music] a colleague of mine was at a meeting in Washington DC and it was a meeting at
the Department of Justice and he said that during the
presentation they they presented a u most hated list of like five people in
the country and these are you know people running the meeting were process uors prosecutors of child abuse and uh I
was like number two or three on the
list ever since the witch trials both the ones in Salem and the US and the European Witch Trials children were
viewed incredulously they had come to say such
obviously false things and people's lives were taken in some cases because of what children told those inquisitions
so for a very long period of time the law frowned upon having young children as
witnesses there had been studies of suggestibility of children's testimony
since the late 1800s and they demonstrated the young
kids had particular problems with suggestibility they were more gullible they Incorporated suggestions that
adults gave them and it wasn't until the 1980s that people started saying you know we really need to know a lot more
more about kids there haven't been any studies of kids in 70 or 80 years and now the floodgates have opened and kids
are coming in [Music] court you already know the answer to
this question are children's statements accurate sometimes they are and sometimes they're not and you already
know the answer to this as well there are two ways that a child statement can
be inaccurate they can be inaccurate because you're lying or they can be
inaccurate because they've come to believe what they're telling you or telling the court in my case but they're
wrong I'm going to talk to you this morning about children's memories and
the various things you can do to uh in in essence corrupt their
[Music] memories my whole generation of memory researchers we were trained in
theoretical laboratory techniques for studying human memory children's memory
and we thought I think as a group collectively that we had learned a great deal about how the human memory system
unfolds in the early years and what got me into this area I'll never forget it it was in the early 1980s I got a
telephone call I was here at Cornell at my desk and a judge from upstate New York called and he said Professor I was
given your name as someone who studies children's memory and I have a case in
my court that I need your help on a young young boy his mother
disappeared when he was 4 years old and after a few months his father moved from
New York to Florida and left him and a sibling with a maternal aunt and the
mother was never located until several years later new
people who had bought the home the boy lived in were building an addition in the back of the home and they were Excavating for the addition to for a
foundation lo and behold they discovered the skeletal remains of the mother's body and the corners report indicated
she had died by a blow of a blunt instrument to the cranium the aunt who's been now raising
the boy for the past 2 years and didn't like the dad anyway starts saying to the boy do you remember your dad ever
hitting your mom with something in the head and at first the boy doesn't remember but over time allegedly he
comes to remember a fight between the mom and the dad and the dad hitting the mother with a baseball bat in the head
and carrying her body out the back door so that's how the case got the court and the judge's question to me was a simple
reasonable question but one I totally was unable to answer he said should I
believe the kid here I thought gee you know we've learned so much about how memory works and I don't have a clue
what the answer is and it bothered me bothered me a great deal that I had spent all these
years in the lab both reading and developing theories of memory and here's this
perfectly reasonable question that I can't
answer I think if you ask me how did that mother die I would say the father
killed her but if you told me that the only evidence of that was a six-year-old boy's resurrected memory of it I
wouldn't be impressed by that okay now I want you to take in your
head the number number two can you visualize that number two and I want you to square it now take
that number and square it now take that number and multiply it
by four okay you got that you multiplied it
by four think of a vegetable first vegetable comes to mind
can you see it okay good when I used to teach uh developmental psychology at
Cornell to large classes like 300 students I would just say to them take
out a piece of paper and pencil and write down the first vegetable comes to mind and the first vegetable is corn
that's the most popular vegetable followed by potatoes onions broccoli Etc that's not true in this room in this
room the first vegetable came to your mind was carrot how many of you thought of carrot
first yeah how many of you thought of corn see
carrot because I tainted your memory what number did you end up
with yeah what kind of number is it it's a root number and your Prime
root root and I say vegetable and you give me a root
vegetable and it was unconscious you don't believe me do
you okay you're know better than my daughter
memory is not some mechanical recording system like the hard drive on your computer or a camera it isn't storing
snapshots it's just not how it works it works at a very abstract level in a way
that allows you to reconstruct a lot of things and bring it together in a way that's new and different every time you
retrieve a memory and it's very responsive to the environment it's very
responsive to the type of questions you're being asked how suggestive they are how far apart they're spaced and so
on okay B so I'm going to show you this movie and the movie is about a grownup
and a little girl playing on a playground okay it's a really short movie but try to pay really good
attention to the movie cuz afterwards Cy does ask you some questions about it and see what you can remember from the movie
yeah do you think you can remember it okay let's see they have a very good
memory okay let remember a couple things from last year last year was a very long
time [Applause] away did the grown-up bump into the
little girl uh-uh did the grown-up spill water on purpose or was it an accident
it was an accident it was an accident wasn't water it was an accident wasn't it did the grown-up step on a flower on
purpose or was it an accident she didn't step on oh she
didn't she didn't was the grown-up nice or was she mean
nice nice yeah I thought she was nice did the grownup kicked the soccer ball on purpose or was it an
[Music] accident an accident accident could you
make a Mark here so I know that that one's right a grownup kicked the soccer ball by
accident most of us who do research on children's Rec elections produce research that is used
more by one side than the other in my case my lab at Cornell primarily
although not exclusively has produced a stream of research that is easier to use
to create Reasonable Doubt so it's used by the defense more than the prosecution I say for the most part because we have
several studies that are much more favorable to the prosecution [Music]
I don't care that both sides tell you that they're interested in arriving at the truth because they're not they're
interested in winning by the time a case has been ordained to go to court
that is to say all the plea offers and pre-trial hearings and all that's over
and there's this subset of cases that they can't settle and they're going to go to court and both sides are revved up
and they're going to go to court at that point both sides want to win truth be
[Music]
damned I personally rarely go into court as an expert witness I've only done so
three times the first of these cases was in
Dade County Florida which is Miami and at the time Janet Reno was the da before
she join the Clinton Administration and she was Prosecuting a 15-year-old boy his name was Bobby
fine Bobby was a volunteer in a church run daycare where families would come to
services on a Sunday and they would leave their children in a part of the church that ran this daycare operation
while they were in the service so when he was 12 years old he was a arrested and he was charged on
multiple counts of sexually molesting multiple children even if he did what they were
alleging which I think everyone agreed including the prosecution he couldn't have done a lot of what the children
were saying he did it was was it was so bizarre as to have been impossible but even if he did some of
what they were saying he's looking at life without parole if convict him on a
single [Music]
count the prosecution and the defense asked me to come in and in fact included
me on a subpoena list and I thought well maybe my general aversion to testifying
in cases doesn't apply if both sides want me then I'm sort of like a Friend of the Court I can go in I can review
the scientific evidence both sides can choose to use it to whatever extent they wish F but I won't be a Hired Gun
because both sides want me and I won't accept a
fee like most cases where you have multiple allegation Mass allegation in a
like in a daycare case or a school bus case you get children contaminating
other children with their reports over time this sort of thing tends to marinate and grow and so what you end up
with is a constellation of allegations some of
which are possible even plausible others of which are
impossible you often get this where you you have a mixture of things that are possible with things that are bizarre
and outrageous and so there's been this you know debate do you exclude everything a
child says because there's some bizarre stuff there so therefore do you say that
the plausible stuff couldn't have happened either a lot of defense attorneys would like to say that they'd
say well where do you draw the line you know that a lot of what the child's telling you is fictitious so how do you
know just because he says something plausible that that's truthful that's reasonable doubt and I think that's a
good point but in terms of the research I can tell you it is possible for kids
to to say some things that are accurate and some things that are highly [Music]
inaccurate when I was in Miami being deposed an argument broke out during the deposition between the defense and the
prosecution as to the nature of the plea offer by the prosecution the prosecution
felt that the defense never presented it to Bobby fer accurately and that's why he rejected it and the defense argued
that they did present it accurately and so because both sides had had me on their list the a resolution sort of
emerged right in the middle of the deposition the prosecution asked me if I would go to the jail and meet with Bobby
fer and relay to him exactly what their plea offer was and the defense agreed
with this [Music]
I met with Bobby his mother and his father and I sat down just the four of us in in Chambers and I relayed
carefully the prosecution's plea [Music]
bargain if he apologized to the children and their parents if he accept it
incarceration in a psychiatric ward until I think it was age 18 so it would have been about 3 years years if he had
been willing to do community service and continue with therapy beyond that
there'd be no prison time Bobby asked me what I thought and I
said Bobby I think there are a lot of things the kids are saying that are simply impossible there are some things
that are plausible who knows if they're truthful or not only you and the children if you were my son I would take
the plea offer and the reason I told him that is because while I think it was
predictable that he would beat the counts that were these bizarre exaggerated claims I wasn't so confident
that the jury wouldn't throw at least one bone to the prosecution and say well maybe when he was diapering the kids or
taking them to the bathroom or something he didn't touch them inappropriately and that's all it took because there was no
sentencing discretion in Florida at the time it his life without parole if he was
convicted his father pounded his fist on the table and he said my boy will never
admit to something he didn't do he'd rather spend his life in prison than
admit to one of those vile acts they're accusing him of and I said Mr
fine if it were you who are the defendant I totally respect that but
Bobby's 15 years old if he goes to prison for life he's going to be on every inmate's dance card he
was a very um boyish 15 even a feminite
15 and I really thought that they were rolling the dice and I made it clear I said look I'm not against you I'm not
for you both sides including yours want me involved in this uh probably when I
review the evidence it's going to tilt toward your side so I'm not saying what I'm saying as as an adversary I'm just
saying if you were my son I wouldn't roll the
dice so they did not take my advice they they went deliberately against it and
you know what they were right he got acquitted on all counts and I was wrong and I remember his father coming up to
me afterwards saying I'm so glad we didn't listen to
[Music]
you it was an interesting and an important developmental experience for me because in studying closely this case
of this boy Bobby fine I saw a number of factors at play that are not typically
considered by researchers at least at that
[Music] time I came back to my lab and designed
studies that incorporated some of these factors that were in the F case factors
such as emotional arousal embarrassment painful experiences you know it's one
thing to say children are suggestible about other people
it's another thing to say they're suggestible about someone torturing them handcuffing and chaining them and
abusing them and research had never looked at factors like that but after this case I started doing
[Music] so we've known for a long time that
preschool age kids are suggestible but the question becomes why why are they suggestible what what's the underlying
mechanism that drives suggestibility so Sarah Kowski comes to this Crossing three
different boundaries memory the law and language and she says
maybe what's going on is that children's suggestibility is a function of how they
create and remember narratives how good they are creating cohesive coherent high
volume narratives do you know who's here today Miss
Baker I like to bake cookies I love baking cookies I I I I I help my mom
chocolate cookies well if you made cookies before you know that you need to put butter in and butter helps make the
cookie soft and the next thing that I'm going to add is sugar you're very right
I I have brown sug do you know there's one more ingredient to put in do you know what that ingredient is it is
salt so I'm just going to add a tiny oh oh
no I just added way too much salt to my cookie dough you know what you all did a
really good job helping me even though I was so silly so I have some stickers here would you all like a sticker yeah
okay so everybody can just stay in your seats and I'll bring you a sticker and purple for
you I want red you want red all right can get it want some
help you got I use suggestibility promiscuously to refer to any event
either verbal or pictoral it can be before an experience a child has or
after an experience a child has that damages a child's report accuracy I
heard that Miss Baker came to your classroom a while ago is that true Miss Baker come to see you yeah yeah I
couldn't be her that day but I want to hear all about what happened when she came I don't know you don't know that's
okay how about I ask you some questions okay did she put a sticker on your KNE man
son no on your forehead we put it there are you sure cuz I heard that she put it
on your knee no we didn't we can put it wherever we wanted they just give it to
us oh but the other kids told me that she put it on your knee no I got to
stick and I put it on my forehead oh V put it on her nose oh yeah well think
real hard that is are you sure she didn't put it on your knee no did Miss
Baker put a sticker on your knee are you sure Manon cuz the other kids told me that she put a sticker on your knee some
kids did oh well I want you to think really hard it's really important to know what
happen did she put a sticker on your knee did Miss Baker put a sticker on
your knee cut yeah she did she put a she put a sticker on one
kid's knee so are you ready I want you to read
the following message and do what it says are you ready you got
it got it got
it got it
[Music] cut it
no we can
wait got it got it
[Music] got it got
it got
it got it I lost some of you but those of you I
haven't lost you got it got [Music]
it got [Music]
[Applause] it [Applause]
well do you owe me an apology you
Skeptics I think an aha moment for a lot of researchers in this area was the
realization that you could move from suggesting observations and eyewitness
acts like what someone else did to not someone else but you yourself and within
you something very Salient something having to do with genital touching I think that was an aha moment that there
didn't appear to be any boundaries that Beyond which suggestions didn't take a
toll on kids accuracy of
reporting we were interested in whether you could take a child who didn't didn't have an experience at all and lead them
to believe that they did so the mous Trap study was designed to test that we
took a group of kids whose parents assured us that they never got their hands caught in a mouse trap and had to
go to a hospital to get it removed and we said to the kids did you ever get
your hand caught in a mouse trap and have to go to the hospital to get it removed and the kids all said no never
happened don't have a mouse trap at our house said okay and then we brought them
back a week later we said did you ever get your hand caught in a mouse trap and have to go to the hospital to get it
removed and kids would think and they'd say h i remember something about a mouse
trap around the 6th 7th 8th week a lot of kids are saying yeah I remember
something about the mouse trap and getting my finger caught in it and they're starting to give you these embellish narratives about what they
claim happened about how their dad opened the van door and they put them in the van and their mother and their
brother and their dad drove them to the hospital and a nurse took the mouse trp off and they bandaged his finger and
they they could be quite elaborate in their in their narratives because we'd
be inducing them to developmental images of something that didn't happen simply by asking them week in and week out
think about it close your eyes and think about it did you ever get your finger caught in a m
trp so the first time time they close their eyes and they generate that image it doesn't match anything in memory the
next week they close their eyes and they generate that image it does match something in memory what it matches is
the image they created the week before young kids in particular have a
really difficult time monitoring the differences between things that they imagined versus things they actually saw
because both leave a mental imprint in memory and that kind of source discrimination very difficult especially
for preschool kids all of us have a problem with it adults as well but preschool kids are particularly uh hurt
by those kind of
techniques I was asked in the mid
1990s to testify in a stay of execution case in El Paso Texas it's mesas versus
people of Texas and Frederico msas was accused and convicted of murdering
someone in his trailer park and burying the body in a desert area behind the
trailer park and the critical testimony was given by a little girl and I
remember the attorney who called and asked me to testify was someone that was
doing at pro bono from a very large powerful law firm in America corporate
law firm and he said I know you don't charge anything and I'm wondering if you would join us and review for the court
the scientific evidence related to the statement that the childness case
made the little girl who was the critical testimony had testified that
she saw the defendant mesas washing blood off his hands in the bathroom in
his trailer she was there playing with his daughter that day and physically was
impossible for her to have seen him washing his hands uh given her testimony
of where she was in the trailer at the time because of the way the door opened in rather than opened
out other things she said also I found very interesting because they were things we didn't have a lot of research
about so they gave me clues about studies I should design including the
use of stereotypes this is a little girl whose mother used to say to her I don't want you to go to Fred's trailer because
he's a jail bird he's a bad man so the mother had created this negative stereotype about this guy and we were
very interested to what extent to Children start to conform to a stereotype over
time in that particular case messas was given a stay of execution and he had been scheduled to
die by lethal injection in a week and during the stay there was a
petition for a new trial and and ultimately he was acquitted and he he went
free I remember when I returned from testifying in this uh state of execution
case saying to my lab you know we don't know very much about the role of stereotypes so let's design some
studies let me uh show you a video clip of three children the
first is a three and 1/2 the second is a 4 half-year-old and the third is a six-year-old and they all witnessed the
same event A Man Named Sam came to their preschool program and they corroborate
each other about certain things that Sam did when he visited but they also contradict each other about other things
and I want you to look at these three kids and what they're saying [Music]
and imagine you're a juror and you're listening to them well I wasn't there that day and I
want to know everything that happened that day that samstone came to
visit she said be careful with the dollies and he put it up then then the
dollies some some of them looked off then he got a book and P it up then then
one of the pages looked off Sam don't do anything with him there he didn't
he was doing it so fast that he ripped one of the pages really what about um a
bear teddy bear put some chocolate ice cream on there he always does thatu
exited did you see him rip the book and put the ice cream on the Bear yes you
did you saw him do it you're a juror you've just heard these three kids or
you've seen videos of their interviews who's the most cred of the three a b or
c let me just say this he didn't do any of those things he didn't rip anything
tear anything soil anything toss anything none of them and the only child
the only child who was accurate was the little girl in the middle the red-haired
girl the one that you rate as the least accurate and most professionals rate as
the least accurate all he did was he came he said hi he smiled he walked
around the housekeeping section of the class and then he say goodbye and left he didn't tear soil toss
anything here's how you can get kids to say things that persuade people like
yourself and persuade professionals and yet are wrong they're given false stereotypes
about Sam they are told things that simply aren't true about how clumsy clutzy Sam is how he's always breaking
things and spilling things and so on and they're interviewed four times over8 weeks very
suggestively how suggestively well the interviewer says things like do you remember that time Sam Stone came to
your school and ripped that book did he do it on purpose or was it an [Music]
accident I get to see a lot of cases and and this this stereotype thing you see
it a lot you you know where you especially see it is in in acrimonious custody disputes where one parent
creates a monster out of another [Music]
parent where you also see stereotype cases is in physical and sexual abuse
cases where an interviewer is reckless enough to do this which isn't typical I
don't want to give the impression that this is something that all interviewers do because it's only something that the worst interviewers
do when they interview a child if they're not getting a disclosure from the child and they think the child's in
denial or protecting someone they'll say things like don't you want to help us
keep so and so in jail so he doesn't hurt other children your friends have already told us that he hurt them don't
you want to help us protect your friends so they start creating this negative stereotype about a bad person he's in
prison let's not let him out and let him victimize other kids
in our studies we've argued that a significant minority of kids have had their actual memories corrupted by these
suggestive techniques that's why lie detection methods don't work with these kids because they're not lying they've
come to believe their false reports so we call them false
beliefs if you corrupt a memory that's part of the child's
autobiography it's who they are now and there are no deprogramming techniques
that'll suddenly repair a false memory yeah you can talk kids out of testifying
about it you can coers and Bully them and they won't say it but it isn't because you have rehabilitated their
memory they deeply believe that what they were saying was truthful so it's
important for judges law Guardians and other s that are interviewing kids really far Downstream to appreciate that
Upstream months before maybe other people were interviewing in a not so
neutral way and when I say interview I'm including conversations depending on what you're
saying to your child it could improve the memory or could corrupt the
memory everyone knows only too well that there are enormous numbers of kids every
year in this country and others that are
abused most of them are uh neglected a lot of them are physically abused and
some are sexually abused and all the official numbers are under reports
because some kids never tell so everybody's mindful of this everyone knows real abuse happens far far more
often than anyone is comfortable thinking about and yet most people also
know that there have been some very sad miscarriages of Justice where innocent
men and women have been accused of things that they didn't do so you have these two tensions pulling on you if
you're a researcher in this area I think some people quite honestly
would prefer if the research was never done because it can be used to discredit real abuse victims testimony and I think
that's absolutely true you could you could have a case where a child was genuinely abused and the defense brings
in someone who uses my work and other people's work to say we know this child was suggested certain things or had a
certain kind of therapy and therefore we can't trust what he or she's telling the
court I do think some people would prefer that those of us doing this kind of research wouldn't do
it okay one more thing ready real fast got
it got it got