(Witness for the Defense)
Direct Examination by Defense Attorney Dean Gits:
"Doctor. . . do you recall that your first function when you were appointed to assist the defense was to start looking at the tapes-is that correct?"
"Yes."
"When you started looking at the tapes, initially, did you come to any initial conclusion with respect to the interview techniques utilized by CII?"
"Yes, 1 came to several after watching perhaps five or six tapes in their entirety. . . . One conclusion was that the interviews were clearly led by the interviewer rather than focused on the child, or the interviewee. And the other was that the vast amount of verbiage, or words said, were said by the interviewer, not by the children. Another observation was that these children indeed could talk and did seem quite willing to talk at the outset of the interview, and there did not appear to be a need for that kind of approach. In fact, that kind of an approach would be counterproductive in the sense that the interviewers were saying too much, and providing too much information, what I would refer to as a 'stage setting.' "
"Were those your only conclusions?"
"There were many more. Those were the primary, first ideas that I had, the first conclusions that I did come to, yes."
"Was it your conclusion that the number of words used by the interviewer were too many?"
"Yes, definitely. . . . I'm really talking about the ratio of words between the interviewer and the interviewee, the child. Given the premise that the goal of this kind of interview is to get information from a child, to learn about their experiences, their memories, what has been done with them, then we want to hear the child talk. And if the child is able to talk and is willing to talk, the interviewer's job is to facilitate that and get them to talk."
"Doctor, would it be fair to say that you are going to find children who are too scared to talk, so the interviewer has to talk more?"
"They were verbal kids. They seemed relaxed. They were talking. So there did not appear to be any basis for taking over the interview."
"So the interviewer spoke more. What's wrong with that?"
"There are many things. One is that you are presenting a template, or a design for what's going to happen. You're communicating to the child: 'I'm gonna talk. I'm gonna ask questions. Your job is to sit back and follow my lead. . . .' "
"Why is that wrong?"
"Because you avoid being able to learn from the child, in the child's own language, what their experience is, how they organize their own history, their own memories."
"Why is that bad?"
"Because your task really is to find out that information. What is this child saying? What does the child remember. The more you use an interviewer to effect that, or provide them with information, that could contaminate them, the less you can rely on anything you get out of them. . . . These interviews did not flow in the direction of the child. In other words, typical child evaluation interview, you let the child talk, and you follow their lead. You keep them speaking. In these interviews the kids all were machined through the exact same process. Toward the end of that process they were being asked very direct and almost coercive questions about sexual behavior. At those times some of the children became fairly nonverbal and were simply pointing and did so in a somewhat passive way and sometimes even in a questioning way."
"Did you form any opinion as to whether these children were such that numerous questions by the interviewer were inappropriate?"
"In all cases, yes. . . . As I was saying previously, one of the first observations I made was that the interviewers were doing the vast majority of verbal output. And there are reasons why that could be very problematical in an evaluation interview."
"Without knowing anything about the children. . . would you be able to come to any conclusion, based on the numbers alone, as to whether or not the interview techniques were proper?"
"I would have to integrate one premise which I've already measuredthat the children were willing to talk. They did talk. . . . If you gave me a random sample of children, nine children roughly aged four and a half to nine, and I knew they were picked out of some kind of normal population, I would say that it was backwards, and it would be wrong."
"Can you tell us what else you did with respect to your analysis of the interview techniques of the CII tape?"
"The next step I took was to categorize various aspects of these interviews and classify the type of behavior that was occurring, the type of inter-change between the interviewer and the child.".
"Can you tell us how you went about that?"
"Several different ways. My first impression when I watched the very first tapes, was that these were done in some systematic way. These were not interviews that followed the lead of the child. I watched probably forty or fifty tapes of different children and developed what I have referred to as a script. And what I was trying to do in reviewing those tapes was to isolate out certain kinds of activities, behaviors, statements made by the examiners to all or most of the children."
"Why do you call it a script?"
"The reason I called it a script is that in interviewing children the focus is on the child. The opposite of following the child is following some kind of predetermined program. I used the word, 'script,' for that-to refer to that program, but I also use the word, 'script' because even word usage by the various examiners with the various children was very close. It was if they were reading a script. . . ."
"Can you tell us, doctor, what's wrong with the script?"
"The very concept of using a program or a script in an interview of a child is wrong in the sense that it is putting in the interview situation material from the interviewer rather than obtaining spontaneous information from the child. The more that's done the less you will be able to conclude about the child's behavior and statements."
"But doesn't that depend, doctor, on the particular child at hand?"
"It certainly depends on the particular child. . . . Generally the same script was used for all the children. That simply underscores that it was programmed that way. It was planned that way."
"Is there something wrong with using the same methodology or script with children throughout that age range?"
"There's something basically and inherently wrong with using a script in any type of evaluation interview."
"What's wrong with it? Why is it wrong?"
"Several things. First is that there does not appear to have been any consideration from the cognitive development of the children. Second, there is no consideration of the relative brightness of the children and the relative fluency of the children, the sex of the children. They are all considered, at least by implication, as a homogenous mass that you must treat the same way. . . ."
"Doctor, do you believe you have the ability, from looking at the CII tapes . . . to come to a conclusion of the cognitive development level of any given child?"
"Other than in a very general sense, without a complete evaluation of the child, it is very difficult to say. We don't: have enough data in terms of their own responses on those tapes, to make that kind of a conclusion."
"Would it be improper in your opinion to conduct an interview of a child for child sexual abuse without doing some kind of analysis as to the cognitive development of the child?"
"I believe it generally would because the cognitive evaluation provides you the additional data to assess what a child is saying. The bottom line of all this is: the child is saying something. How would we know why they're saying it? Is it their own experience or did it occur some other way?"
"In your viewing of the videotapes in this case, did you observe any testing of a child to ascertain cognitive developmental level?"
"Not to determine cognitive level. There was some testing to see if they knew the names of certain body parts, but it wasn't cognitive."
"Can you tell us what particular things you observed that were repeated from child to child that led you to believe that there was a script being utilized?"
"In almost all cases the interviews started with drawing a picture that was typically outlined by the interviewer. After that there was a procedure where they went into naming body parts, the specific focus being on the sexual body parts. There was then an introduction of so-called anatomically correct dolls, with the focus again on sexual body parts of the dolls. There was an introduction of pictures of students and teachers from the school, where persons were identified by the examiner and by the child with specific focus on certain teachers in the school, and sometimes the child himself. There was an introduction of puppets as a method of presenting information. There was an introduction of the nature of these dolls, that they were dolls that you could not find in a store. There was an introduction of variously referred to 'yucky,' 'sneaky,' 'tricky' games. There was an introduction of Ray Buckey being a bad person, surveilled by police. There was an introduction of ejaculation in terms of Ray Buckey, and what that might look like, taste like, and so forth. Those items were in almost every case here and in many others as well. . . .
"I would like to add, however, in a number of these tapes, there is something going on. You don't see a picture of a child walking in, and an examiner walking in and sitting down. They are already in process, so something could have happened before. I don't know what. But when they are sitting down in this phase, they are drawing a picture of the person, frequently out-lined by the examiner. "
"Is there something wrong with what occurred in that type of interaction?"
"The first thing that I would suggest that is wrong about that is that there is a subtle communication-and sometimes not so subtle-that what is going to happen between these two people is going to be controlled by the interviewer. And what you want is information that is controlled and generated by the interviewee, the child."
"How is that communicated by this drawing?"
"It's pretty straightforward, in the sense that if I want you to draw something and I want you to look at it and help me with it, the examiner is taking over the behavior."
"Anything else that appeared improper about that kind of activity?"
"Drawing that picture is a stage-setting behavior for identifying sexual parts."
"You said a 'stage-setting' behavior. What does that mean?"
"It simply means that it provides a certain kind of information, a certain kind of activity from which more information will be based or evolved from."
"What information does that drawing of a picture provide to the child?"
"It goes into the next part of it where they say, 'What are these?' and if you recall that, they will often say, 'What's this?' and they will have a mark in the middle of the torso, usually identified as the belly button. Then, they will have two marks up above, usually identified as breasts. Then they will identify private parts. They also do identify hair, fingers, and so forth, but very soon on-in one case, for example, it was four minutes into the interview-the child was saying 'private parts,' and 'What's another name for that?' 'Vagina,' and 'weenie,' or whatever. That was introduced that soon into the interview."
"You talked about naming body parts as something that gradually evolves from this situation. Can you tell us what's wrong with naming body parts?"
"In isolation, nothing. The primary problem with that is that the end result of this identifying body parts is to identify the sexual body parts. In almost all cases, that's where it ends. At that point in the interview the child[ren have], typically, said zero about their own sexual experiences. But they have been directed to talk about genitalia and other so-called private parts. Again, in doing that, you run the risk of stage-setting. . . . It also presents data that the children may not know. There are a lot of the children, four, five, six, that have not been able to say what even the difference between a boy and a girl is."
"Wouldn 't naming body parts be an appropriate activity if you were simply trying to determine the terminology used by the children? . . . Would it be appropriate at that point?" "No. . . because it's setting the stage that we are talking about sexual matters. . . . Once you do that you never know what they know before you got to that point."
"Couldn't that kind of activity be justified by virtue of the interviewer wanting to use the same terms that the child used?"
"You could argue that. But what I'm saying is that you are presenting that as a topic when the child never spontaneously brought it up."
"What else was there that you observed about the scripting that occurred in this particular case?"
"The next one is the introduction of the dolls. . . . We are talking about dolls that are usually referred to as 'sexually anatomically correct dolls,' or so-called S.A.C. dolls."
"Is it your opinion that there was something improper about the introduction of those anatomically correct dolls?"
"Yes."
"Was it your opinion that the use of the dolls in these nine cases was improper?"
"Yes. . . they were very systematically introduced in a fashion suggesting that they were silly, that it was funny. They referred to the breasts as 'cupcakes.' In some of the later interviews, after the dolls had been used a lot, they got parts all over. The kids wrote on them, beat them up, and they had to repair them. There was definite levity in that, matched-or mismatched -with very serious content material for children this age. Obvious sex characteristics . . . sexual education for children is very serious. They're concerned about it. It's not funny to them. In many cases the way it was presented to them was in a derogatory way, a negative way. I can't imagine a rationale for doing that. You might say it makes them more at ease, but it might not make them see it as a serious issue.
"Secondly, the dolls are almost always presented clothed, and the children are allowed to experiment with them, at their own rate, at their own speed. In this case, they are dumped out of bags and said, 'These are funny dolls. You can't find them in a store. They're really silly.' And they strip them, and they show them. You asked, initially, what's wrong. We're really forcing the focus on sex in these interviews. You might say, ahead of time, 'I don't know whether these kids were ever abused or not abused.' "
"You talked about reinforcement, doctor. When you say 'reinforcement,' what do you mean?"
"I could give it to you in example form. If a child were to have identified a private part of the drawing, the dolls were then introduced, and they say, 'What was this part again?' and the child says, 'vagina,' and they say, 'Great! You're smart! You're really a smart kid!' That's the reinforcement."
"Is there anything wrong with reidentifying the body parts on the anatomically correct dolls?"
"What it does is it gets these children farther away from their own spontaneous remarks about sex. You are presenting it to them in a drawing form. You're presenting it to them in a doll form. It's almost as if you wanted to make sure that they're going to focus on those areas. If you're interested in getting spontaneous information, it's obvious to me that that would be wrong."
"Couldn't the use of dolls be justified in terms of trying to desensitize the child?"
"You can say that, sure, but you are presenting them with sexual material and saying this is a big deal."
"Is there a danger that using these dolls might result in leading the child to react in terms of fantasy rather than actual events?"
"There is a danger, yes."
"'You mentioned that the focusing in on the body parts was done a second time when the anatomically correct dolls were introduced. In your opinion is there any justification for doing that a second time, that is, naming the same body part that the child picked on the picture and hooking it into the body part?"
"'To me there is no justification. . . ."
"'Can you tell us what other aspects of these interviews constituted a script?"
"Yes. Another one related to the dolls is a scenario wherein there is a presentation that these dolls 'help us figure it out.' Now that word, 'it,' has several different references but it is usually vague. But that kind of specific statement was used with most of the children."
"What's wrong with that?"
"Many things. The first one is the way that it is presented. There is an implication, if not a statement, that there is something wrong. At this point, from the children, we don't know if there's anything wrong or not. But saying, ''These dolls help us figure out some of these things,' presents the idea that there is something there that needs to be figured out. So that's a stage setting behavior as well. There's ground laid that we're going to have to work on something here. In some cases there's something much more specific about that, saying that negative things happened. There are words like 'yucky' used very frequently in these statements. . . .
"Secondly, there is a game-playing quality to this. Before the dolls were being used to identify body parts to look at, this time, we're using the dolls as an intermediary. 'The dolls will help us figure it out.' This is where you could really get into the risk of a fantasy problem. You are removing responsibility from the child. You're not saying to that child, 'I want you to only tell me what you know.' You're saying, 'We can use the dolls. They'll help us.' "
"'Generally speaking, when the interviewer is using these dolls, to help us figure it out, is the doll clothed or unclothed?"
"'I believe they're usually unclothed at that point. This comes after the other parts of the script, which brings up a focus again, or contamination about sex.".
"'Is it your opinion that at that point in time, having pulled the clothes off the anatomical doll and making references to 'dolls helping us figure it out,' were you able to render an opinion as to whether or not the child would understand that that's what it was about?"
"'There's no way to know exactly, but I think there's a very high probability that sex has been emphasized so much, prior to that, that now we're presented with a problem that needs to be figured, that would be one of the high-probability associations: 'Figuring means sex....' "
"Are there other areas and portions of the script that you have identified?"
"Yes. Another portion of the script would be the presentation of photos of either classes or teachers or students at McMartin."
"What is there about that that is improper?"
"The risk that this technique runs, and the potential harm it causes, is that it could be looked at as a teaching and rehearsal strategy, rather than a strategy wherein an interviewer independently determines what a child remembers. "
"You say, 'a teaching and rehearsal strategy.' Could you tell us what you mean by that phrase?"
"What usually is involved when this is done is, photos are pulled out, regarding the child, usually, and the class that the child was in . . . photos of the school, and the technique is to say, 'Well, let's look at this. Do you remember some of these people?' Now if the child spontaneously says, 'Yes. This is so-and-so. . .' and they recall them, I don't see much harm in doing that. There are some cases, however, where children said they didn't remember who they were. Sometimes they would misidentify people. And then they were corrected in that regard. The risk that you're running here is that you're not getting a spontaneous recall from the child. . . . The role in this kind of interview is to try to obtain spontaneous information from children. . . . Once a child identifies someone, verbally, in a spontaneous way, I think it might be a good procedure to go back and say, 'Is this who we're talking about?' If you do it the other way around there is a contamination or a potential for a contamination that you can't rectify."
"How is it a contamination?"
". . . Some of the other parts of the script say 'things happened at the school,' or 'yucky things happened at the school.' There's an implication that some people might have done these things. The child might not even remember a given person. . . ."
"Anything else about using class photos that appears to be inappropriate to you?"
"In some cases the key figures are simply pointed out to the child. Some of the children didn't recall who they were."
"Are there other areas that you've identified as 'script'?"
"Yes. . . which I have titled, 'Mention of Children Who Have Attended CII.' Children who had been evaluated there before. And I could give some of these examples. . . what we're talking about here is statements wherein the interviewers say, 'All these kids have been here before.' "
"What's wrong with that?"
"That, in isolation, I wouldn't say there's something specifically wrong, other than that there starts to be a cumulative effect that something of a major nature went on. . . . There is also a social pressure and coercion in that they don't just say that all these kids have been here. They tend to say that all these kids have been here and they've told us all these yucky things. There's another part of the script and it's integrated with this part of the script. "
"You say it's social pressure. What do you mean by that?"
"Social pressure in the sense that these children are told that. . . 'hundreds,' 'every child in this picture.' So they're presenting this child in contrast to all the other children."
"You talked about an element of coercion in this kind of technique. How is that coercive?"
"They are saying, 'All of your mates have told us these secrets.' There becomes an expectation that the child should do the same."
"What danger could that have on the propriety of the interview?"
"It does present that expectation and there are data available to indicate that adults and kids do respond to social pressure."
"Couldn't that be justified on the theory of an attempt to put the child at ease?"
"It could be . . . [if] the child manifested anxiety. . . . But if you do it before that. . . there's no way to get back to spontaneity. You've already laid out that part."
"In viewing the nine videotapes in question here, did you observe any kind of anxiety reaction that preceded these kinds of words, 'All the kids have told us about the yucky secrets'?"
". . . I did not see what I would operationally define as anxiety."
"Anything else about mentioning that other children had already been to CII that appeared improper?"
"In some of the cases there is a specific reference-it isn't just that 'children have already been here.' There is an indication 'we already know what happened.' . . . It's presenting that as a fact, as an authority, and the authority is based not only on the interviewer but on all the other children."
"What effect could that have on the child?"
"I would see it as another form of pressure, another attempt at forcing conformity. . . . It decreases spontaneity."
"Any other aspects to the script you've isolated or identified?"
"Yes. There is a part that presents the puppets as a vehicle for telling secrets. . . . You know what we have here are puppets, and they really help us. The kids don't even have to do it.' "
"What's wrong with that?"
"Well, from a purely clinical point of view. . . it's an inappropriate start-off technique. . . . It tends to decrease personal responsibility. 'The puppets tell us. The kids don't have to say anything.' "
"Do you have a recollection of the interview between Kee MacFarlane and [name of girl]?"
"Yes, I do."
"Can you tell us, in general, how you would characterize that interview?"
"It was a very long interview. A great deal of discussion by the examiner. . . . [The girl] says very little. Maybe two or three words."
"Any other areas ofthe script you've noted?"
"Yes. The next one I have is titled, 'Kids Have Been Scared.' It's a statement that ties in with mention of the kids to CII, but it adds information that either kids have been scared to talk or that kids simply have been scared."
"The interviewer provides the information. What's wrong with that?"
"It is what I would describe as 'stage-setting.' If you're trying to obtain information from a child, once you say that, it's difficult to determine whether that child himself has been scared or is simply responding to that kind of a statement."
"If a child had not been threatened, what would or could be the potential effect on the child?"
"It presents information that something might have occurred that people were scared about. . . . 'Listen, we've seen about a hundred kids and they've all been scared.' "
"Did you, in your view of the videotapes, . . . note any behavior that would indicate anxiousness on the part of the children?"
"I don't recall any."
"What about the response of an interviewer when Mary points to a particular picture?"
"The response is reinforcing, since the interviewer says, 'Yeah!' and 'That's what a whole lot of kids told us.' "
"So what if it reinforces the answers? What's wrong with that?"
"The next time you get into another area and say, 'Can you point?' there would be a higher probability they would point to Ray."
"What about the next area?"
"The next area is titled, 'The Secret Machine.'' "
"Could you tell us what that area involves?"
"It's an instruction to the children that if they have a secret they can say it into the microphone. . . and they tell them that the secret will go down the wire and into a box and will be gone forever, or they won't have to worry. . . . First, it can be confusing. . . . I don't know if there's any clarity as to what that word really means to children. . . . If these children were molested, if they were traumatized, it's simply a misrepresentation. It wouldn't go away."
"And would you go into the next area of the script?"
"There is a part that I have titled, 'Older Kids/ Younger Kids.' "
"Would you tell us what that involves, please?"
"There's a fairly systematic statement given to the children that the older kids are very helpful because they are able to give a report the younger children can't give. They are better detectives. They are smarter. They need to help out the younger kids."
"... And what is wrong with that approach?"
"....It is an inducement to the children to talk. It presents some external pressure, and in some cases the pressure is relatively severe. . . . You run the risk of telling the children that if they don't say something they are not smart, they are not like the other, older kids, and they are not helping out the younger children. All of that could be subsumed under the implication of stage-setting: 'This is what everybody else did. Who is not bright? Who is older? Who is helping?' "
"Could this kind of pressure change the behavior of children in terms of responding correctly?"
"Yes it could...."
"What is the next area of the script that you've isolated?"
"It's an area called 'Secret Policeman.' "
"Generally, what does that area involve?"
"It involves a fairly specific description that Ray Buckey is being surveilled. . . . It identifies him as a bad person."
"How does it do that?"
"Some of the things were quite direct in that area: 'He needs to be watched.' 'He needs to be put in jail.' . . .
It identifies him as a bad person who needs watching. There's no other explanation."
"But the mere fact that that kind of communication is communicated to the child, can you say thereby that it might have an effect on the child's behavior or responses?"
"Certainly. . . . If the child believes that something happened at the school, that hundreds of kids have said it. A 'yucky' thing, they've been presented with issues of sex. . . and now Ray is introduced as a person who needs police surveillance. I don't think it takes a great leap to identify him as a person who is involved in all those things and he has already been placed on the stage."
"The next area, please."
".... 'Naming of Dolls.' It deals with an interaction between the interviewer and the child where they are looking at these dolls. I believe in almost all cases the dolls were unclothed. And they are saying who played the game and they want to identify these dolls as various players. The players have been identified by the pictures. That's generally this part of the script."
"What's wrong with that?"
"They now take these dolls and use them as a personification of these people. In almost all the cases that we have here, Peggy is identified as the fattest one. They use that kind of terminology and the kids call her 'Miss Piggy.' So the dolls are derogatory. Then they use the introduction of these people as derogatory as well."
"And your next area, doctor?"
"This is 'Names Introduced.' This is a general category that involves the examiner presenting to the child some idea that certain games were played at the school. The games are typically referred to as 'sneaky' or 'tricky' or 'naked.' It presents the child with that information. They're essentially telling them that this is what happened. If you have a child
[who] did not have that experience, the impact may be that within the context of the interview the child may say yes, that something happened. . . . It's an information-giving technique."
"And the final category?"
"The final category I have titled 'Stuff Out Of Ray's Penis.' It involves a series of quite direct questions about Ray ejaculating and certainly the implication is made to the kids of oral copulation. I don't recall any child saying that Ray ejaculated before this was brought up. . . . The children simply didn't say anything about it. The second thing about it was to me the most ridiculous set of questions in the whole interview because they start off and they use, with the majority of the children, the same terms. 'Did it taste like candy?' 'Did it taste like strawberry?' 'Did it taste like pizza?' 'Did it taste like chocolate?' This has already been identified with the penis area of the Ray doll. Children of that age. . . think of that as an area of excretion."
"If you would take these scripts that you have isolated or identified here, how would you characterize them in terms of the propriety of the interview?"
". . . With that many things wrong, with that significant amount of negative influence, I would say that these were very inappropriate interviews for this purpose."
"If we were to take the various aspects of this script that you have isolated, and put those together, is there a joint conclusion that you can reach in terms of the propriety of the interviews?"
"I think the risk that you run, very strongly in this case, is getting kids to acquiesce in saying things, or point to things that we are not sure of at all. There's a great deal of pressure on them to do that. . . . In evaluation for sexual abuse, this would be an inappropriate way to proceed for all the reasons I have given. . . in summary, it presents information to the children that we don't know if they had or did not have before. It tells them that things happened at the school. It gives the general nature of the things. It presents the players in the situation and, essentially, presents all the pieces to a puzzle. And there was very strong motivation for the children to solve the puzzle. The motivation comes out of things like, 'Are you smart or dumb?'
'Are you a good detective?' 'Are you going to please your mother and father?' And then, finally, it gives a vehicle for solution, which are these puppets, these dolls. So what you're doing is presenting a situation that you could take with any children, and not know why you got the results you got out of it, no matter what their experience was before that."
"And is it your view that these nine CII interviews are worse than just plain useless?"
"Objection. "
"Sustained. "
"Would it be fair to say, doctor, that the only end result of these interviews is that they can't be relied upon because of the techniques that were utilized?"
"Objection... "
"Are there, or could there be, factors occurring to a child before a CII interview, that might affect the child's response, both in the CII interview and later?"
"Sure."
"Hypothetically, what factors might affect a child's report at a CII interview?"
"Any interaction with other persons that dealt with the same type of material. Multiple interviews, or any interviews. Now, it's presented to them by other persons. Siblings, family members, police officers, any information. . . ."
"If you could. . . hypothetically again, assume that the child loves and respects his or her parents. And assume that the parent believes that the interviewer is qualified to do a child sexual abuse evaluation. Then assume, if you would, that after the CII interview, the interviewer goes in and tells the parents that his or her child was molested. Could that have an impact on the child's later behavior?"
"Objection. Speculative."
"Sustained. "
"Doctor Maloney, are there psychological factors that might affect a child's behavior after the CII interview?"
"There's many possibilities...."
"Doctor, are you aware of any recognized body of experts in the field of interview methodology who espouse the interview techniques that you've isolated in this particular case?"
"No."
"Thank you. No further questions."