7.3.4 Concluding Remarks on the CI
Research has demonstrated clear benefits of using the CI. It is important to note that interviewers need not use all components of the CI. Its flexibility allows interviewers to adjust the protocol in line with the demands of their job (e.g. using a shortened version of the CI), the comfort level of the witnesses (e.g. extended rapport-building, not asking them to close their eyes), and nature of the crime (e.g. SAI). Attention has now turned to how best to encourage and facilitate law enforcement’s use of the CI. For example, researchers are currently testing how to effectively train law enforcement on the CI. It appears that training should occur over time, discuss the theory behind the interview, and include practice sessions with feedback. Refresher training may also be necessary to ensure that police officers do not revert back to their old interviewing techniques (Dando et al., 2008; Snook & Keating, 2011).
7.4 INTERVIEWING VULNERABLE WITNESSES
Every day, investigative interviewers encounter all kinds of victims and witnesses, many of whom are considered “vulnerable”. Vulnerable witnesses are the focus of the remainder of this chapter. They include children, the elderly, and individuals with intellectual and developmental disabilities that may put them at heightened risk for suggestibility, misunderstandings, or difficulty communicating in legal contexts (see Chapter 14 on safeguarding vulnerable witnesses at court).
7.4.1 Child Witnesses
Although children face legal involvement less often than adults, many children must provide testimony about their own victimisation or other witnessed events (e.g. domestic violence). Often, their testimony is crucial. Particularly in cases of child sexual abuse, there is typically a lack of external (or corroborative) evidence or an inability to tie external evidence to the identity of a particular perpetrator. Children’s statements usually represent how abuse is identified in the first place and may be the only evidence available for prosecuting this crime and making sure that treatment and other services are available to child victims. Many people are sceptical about children’s abilities to provide accurate eyewitness accounts (Quas, Thompson, & Clarke-Stewart, 2005). However, children can, under developmentally-appropriate conditions, provide reliable and accurate accounts of past events (Peterson, 2012). It is imperative that interviewers elicit children’s testimony in ways that are mindful of their cognitive and social limitations as eyewitnesses.
PHOTO 7.2 People are sceptical about children's ability to provide accurate eyewitness accounts.
Source: © Brand X/Getty Images
7.4.1.1 Cognitive and social factors affecting children’s interview performance
Children’s cognitive and social abilities are rapidly developing, and thus children differ, sometimes dramatically, from adults in ways that have implications for their performance in investigative interviews. Although not exhaustive, below we highlight several important areas where adults and children differ in ways that interviewers must consider when questioning children (see Table 7.1).
Table 7.1 Important areas where adults and children differ within an interview context
Vocabulary
Narrative ability
Conceptual understanding
Willingness to indicate misunderstandings
Source monitoring
Suggestibility
Vocabulary: Young children’s vocabulary grows at a remarkable pace, with the average 6-year-old knowing approximately 10,000 words (Anglin, 1993)! However, this rapid development may sometimes lead interviewers to overestimate children’s understanding and ability to use different words, resulting in questions that children are unable to understand. Children may also hold very specific definitions of words and fail to recognise that interviewers’ use of these words is meant to be interpreted more broadly, which can lead to contradictions in children’s testimony (e.g. they deny ever being at the perpetrator’s “house” because they were at the perpetrator’s “apartment”; Walker, 1999).
Narrative ability: Children are still learning how to talk about past events and engage in conversation with others (Nelson & Fivush, 2004). Within the context of an investigative interview, children are asked to take on the role of “expert” and do most of the talking. Typically, children have not had much practice relaying a coherent narrative to others. They may not realise the expectation for providing detailed responses to questions or understand the types of information that would be of interest to interviewers.
Conceptual understanding: To convey key aspects of events (e.g. timing, frequency) requires understanding of certain concepts that may be beyond children’s capabilities (Orbach & Lamb, 2007). That is, children often have difficulty with the concept of time. They may have trouble responding to questions about when or how many times an event occurred. However, interviewers sometimes ask these types of questions, especially when incidents have allegedly occurred repeatedly, because children often have to isolate and discuss specific “episodic” incidents rather than what “usually” occurred (Powell, Roberts, & Guadagno, 2007).
Willingness to indicate misunderstandings: Children rarely say, “I don’t know” or request clarification from interviewers (Bruck & Ceci, 1999; Malloy, Katz, Lamb, & Mugno, 2015). Rather, children try to respond to questions, even those that are difficult to understand (Carter, Bottoms, & Levine, 1996; Saywitz, Snyder, & Nathanson, 1999) or nonsensical (Waterman, Blades, & Spencer, 2004). This may be because they do not realise that they need clarification (i.e. they fail to monitor their comprehension accurately). Or, it may be because children defer to adult authority, are afraid to correct or question adults, and hold the expectation that they should respond to all questions rather than say that they “don’t know”.
Source monitoring: Children may have difficulty with source monitoring or recalling the source of retained information (Poole & Lindsay, 1995). For example, they may have difficulty separating real from imagined events and answering such questions as, “Did I experience this happening, or did I only hear about this happening?” Source monitoring becomes a particularly crucial issue when interviewers introduce information via suggestive or leading questions, and children’s poor source monitoring abilities are thought to be one of the reasons underlying children’s heightened suggestibility.
Suggestibility: A wealth of research exists on children’s suggestibility. Generally, this research shows that children tend to be more suggestible than adults (see Bruck & Ceci, 1999 for a review). These studies have demonstrated how children, especially preschool children, are susceptible to leading and suggestive questions and may incorporate misinformation into their event accounts, even reporting that entirely false events occurred.
As a result of learning about these cognitive and social limitations affecting children’s investigative interview performance, policy makers considered ways to improve investigative interviews in practice. In 1992, the UK Home Office first published the Memorandum of Good Practice (Home Office, 1992), which we describe next.
7.4.2 Memorandum of Good Practice (MOGP)
In the late 1980s and early 1990s, there was a transformation in the way the UK viewed children’s participation in legal proceedings. During this time, the UK witnessed the confluence of emerging digital technology (which could allow for videotaping of interviews), a scientific understanding of children’s eyewitness capabilities, and the legal and political willpower to radically redesign the professional response of the criminal justice system to children. The end goal was to modify the legal system to better fit the needs of children, rather than forcing children to participate in a legal system not designed for their needs, which was considered both unfair and unkind.
The Memorandum of Good Practice (MOGP) formalised a consensus of professional opinions about procedures to adopt when interviewing children. It was developed by a team of international experts on children’s memory and provided guidance on how to elicit testimony from children. Psychologists had already established some of the basic parameters for questioning
children, with a focus on eliciting information using open-ended prompts (“Tell me what happened”). Therefore, a key recommendation of the MOGP was for interviewers to obtain narrative accounts from children that “stand alone” and appear to be credible descriptions of past experiences to juries and fact-finders.
It was recommended that MOGP interviews be conducted by specially trained police officers or social workers, and adopt a phased approach. First, interviewers were encouraged to develop rapport with victims before discussing allegations. This was intended to increase children’s willingness to talk and help interviewers begin to understand the communication style and capabilities of the children. Part of this rapport phase included the use of open-ended prompts to familiarise children with the type of prompting that would occur throughout the interview. After rapport was established, the MOGP recommended the introduction of ground rules. The ground rules were meant to overcome some of the limitations discussed above (e.g. children’s unwillingness to say “I don’t know”). Interviewers were then encouraged to transition to obtaining a free narrative using open-ended prompts. This was recommended for children of all ages since it would allow interviewers to collect children’s testimony without any contamination. Only after exhausting recall with open-ended prompts were interviewers advised to use focused questions to inquire about information that might be missing and clarify details.
Although a good idea in theory, researchers found that the anticipated reforms following the introduction of the MOGP were not widespread and uniform. Interviewers had difficulty following the recommendation to use open-ended prompts, and some continued using closed questioning (i.e. more focussed or specific questions; Lamb, Sternberg, Orbach, Esplin, & Mitchell, 2002; Sternberg, Lamb, Davies, & Westcott, 2001a).
7.4.3 Achieving Best Evidence (ABE)
ABE interview guidelines (Home Office, 2002, 2007; Ministry of Justice, 2011) superseded the original MOGP and are regularly updated and republished to incorporate changes in emphasis, legal developments, and new research that continues to shape best practice. As with the MOGP, ABE guidelines are not legally enforceable, but are offered as an evidence-based approach to child interviewing. As such, interviewers are encouraged to follow the guidelines as much as possible and to be able to justify departures from these guidelines should any occur.
ABE guidelines are amongst the most comprehensive in the world today and include detailed recommendations about broadly collecting evidence from children and vulnerable persons beyond the interview itself. For example, ABE guidelines emphasise the importance of planning and preparation before any forensic interview. Time spent examining the case characteristics and determining what information will be sought from interviewees is used to determine the scope of the interview. Consultations with other professionals such as prosecutors, psychologists and intermediaries may all influence the investigative interview. Before interviewing the victim, investigators may want to collect additional evidence from the crime scene and/or interview other witnesses to obtain a clear perspective of the alleged offence and determine the steps that should be taken that are in the best interest of the victim. Victims should be treated as individuals, and dimensions such as age, gender, culture, religion, daily routines and intellectual ability should all be taken into consideration. Also, a consideration of the broader aspects of the case is recommended to inform whether an interview will be conducted, who will conduct the interview and the number of interviews that will be required.
As with the MOGP, a phased approach to the interview is recommended with open-ended prompts used prior to focused questioning. ABE relies primarily on obtaining a narrative account from victims and recommends caution when using alternative techniques such as dolls, images and pictures, and props. This cautionary note reflects the lack of professional consensus about the value of these techniques. ABE also recommends using specialist interview techniques such as the Cognitive Interview and National Institute of Child Health and Human Development Investigative Interview Protocol when appropriate.
7.4.3.1 Evaluation of ABE
There has been no scientific evaluation of ABE interviews although there have been regular reviews conducted by professional agencies. Recently, the practices and interviews of different police forces were reviewed (HMCPSI & HMIC, 2014), and the reviewers noted deviations from the ABE guidelines, poor documentation of interview planning, and a lack of training and ongoing professional development for interviewers. However, this review was based on the analysis of only 69 interviews and case files in a small number of police forces, and the selection criteria for inclusion of specific case interviews is unclear. Further scientific analysis of the ABE is required.
7.4.4 The U.S. National Institute of Child Health and Human Development (NICHD) Investigative Interview Protocol
Although the MOGP and ABE guidelines were intended to lead to widespread changes in investigative interviewing practices, research indicated that relatively few interviewers followed them (Sternberg et al., 2001a). Researchers reasoned that a structured protocol needed to be in place to encourage interviewers’ use of appropriate interviewing techniques, and this led to the development of the NICHD Protocol (Lamb, Hershkowitz, Orbach, & Esplin, 2008; Orbach, et al., 2000; and see Lamb, La Rooy, Malloy, & Katz, 2011; Lamb, Orbach, Hershkowitz, Esplin, & Horowitz, 2007a for reviews). This interview protocol contains two main phases: a phase leading up to the discussion of the target event (the pre- substantive phase); and a phase focusing on the target event (the substantive phase; see Figure 7.2).
FIGURE 7.2 Stages of the NICHD Investigative Interview Protocol
7.4.4.1 Pre-substantive phase
The interviewer’s aim during the pre-substantive phase is to make sure the child understands the ground rules of the interview, build rapport with the child and allow the child to practice providing a detailed narrative:
Introductory comments: Interviewers introduce themselves and often administer a truth induction ceremony because, in some jurisdictions, children must demonstrate that they understand the difference between “truth” and “lies” before they can provide testimony. The interviewer may ask questions such as, “If I said that you took your shoes off when you came into the room, would that be true or not true?” Interviewers also establish the following ground rules: (1) the children should refrain from guessing and instead say they “don’t know” if they are unsure about the answer to a question; (2) they should indicate when they do not understand a question; and (3) they should correct any mistakes made by the interviewer. These ground rules are practiced with children to ensure comprehension.
Rapport building: Like the MOGP, interviewers next attempt to establish rapport with the children so that they feel comfortable talking with and disclosing information that may be traumatic or embarrassing. With the NICHD Protocol, building rapport involves asking children open-ended questions about their likes and dislikes.
Practice narratives: Next, interviewers ask the children to describe a neutral event (e.g. yesterday, a recent holiday) to get them accustomed to providing detailed responses. This is referred to as an episodic narrative practice. After children have recounted some details about their day, for example, interviewers will ask them to elaborate further (e.g. “You said you went to the store with your mum. Then what happened?”). In several studies, researchers have found that children provided more detailed responses to open-ended questions about target events after engaging in an episodic narrative practice that also contained open-ended questions (see Roberts, Brubacher, Powell, & Price, 2011, for a review). Episode narrative practice also helps children get used to recalling details of specific events (e.g. what happened on their most recent birthday) rather than what usually occurs at an event (e.g. what they tend to do on birthdays). This is vital in cases where children must provide details of specific incidents of repeated abuse, as many children are victimised on more than one occasion (Sas & Cunningham, 1995).
7.4.4.2 Substantive phase
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sp; During the transition to the substantive phase, interviewers use a series of open-ended prompts to encourage the children to identify the target event. To avoid being suggestive, interviewers attempt to get children to identify the target event with as little as input as possible (e.g. “Tell me why you’ve come to talk to me today”). Once a target event is identified, interviewers first request that children narrate by using an invitation prompt (e.g. “Tell me everything you can remember”), and then follow up on information that children mention (with cued invitations) to elicit additional details, just as in the episodic narrative practice. For example, they might ask, “You said that your neighbour touched you. Tell me more about him touching you.”
Children often provide less information than adults in response to invitations; however, their responses tend to be more accurate than their responses to more focused or closed-ended questions (Lamb, Orbach, Hershkowitz, Horowitz, & Abbott, 2007b). Once the children’s free recall is exhausted, the interviewers may return to information that the children previously mentioned during free recall and follow up with directive questions (e.g. “You said that other people saw what happened. Who was there?”). Finally, if critical details are still missing from the children’s reports, the interviewer may resort to some option-posing questions, but their use should be limited. Option-posing questions provide children with response options (e.g. “Did he touch you over or under your clothes?”), and often take the form of yes-no questions (e.g. “Was anyone else home when it happened?”). As with any best-practice interview protocol, it is imperative that interviewers avoid suggestive or leading questions. Overall, the substantive phase conforms to a funnel approach where interviewers begin by asking open-ended questions before proceeding to ask more specific questions.
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