Children and forensic interviews, revisited

The Idaho Supreme Court recently issued a decision, State v. Hooper, 2007 WL 4472263 (Dec. 24, 2007), that came to the right result with respect to videotaped statements made by a child during an interview by a forensic examiner at a sexual trauma abuse response (STAR) center, but that also illustrates the dangers in the way the courts are dealing with such statements.

In this case, the police directed the child, who was 6 years old, to the center, and a detective observed the interview from another room. The examiner, who was forensically trained, consulted with the detective towards the end of the interview and then returned to ask a few more questions. At the end of the interview, the police took the tape and swabs taken from a physical examination of the child.

It seems plain to me that the child's statements were testimonial, and the court so held. But the rationale is not entirely satisfying. The court explicitly said that it was using “a totality of circumstances analysis,” which of course indicates that it is providing very little constraint on future decisions. In part, the court emphasized the expectation of “the parties” – it’s not entirely clear to whom this referred – that the interview would replace in-court testimony by the child. But the court’s primary emphasis was on purpose rather than expectation, and it clearly viewed that question from the perspective of the interviewer; the court concludes (accurately) “that the primary purpose of the interview was to establish or prove past events potentially relevant to later criminal prosecution, as opposed to meeting the child's medical needs.” In support of this conclusion, it notes various factors concerning how the interview was conducted. Some of these could not be avoided by an interviewer whose true purpose is to create evidence for use at trial – for example, the interviewer’s attempt to determine who the assailant was. Others could be avoided, but at the potential cost of impairing the usefulness of the interview – for example, the interviewer reminding the child of the importance of telling the truth, and consulting with the detective on additional questions to ask. And some could very easily be avoided. Thus, the court said:

[The interviewer] did not ask any questions regarding [the child]'s medical condition, or whether the child was injured. Further, this interview took place after a medical assessment and separately from the medical assessment. The police officer was present only at the second interview, not during [a physician’s] examination.

So if I were an Idaho prosecutor, I would follow one of several paths. I might try to train physicians to conduct interviews that would have an apparent medical purpose but also be designed to generate evidence, and do without forensic examiners. Or I might suggest that a forensic examiner and a physician meet with the child at the same time. At the very least, I would advise forensic interviewers to ask repeated questions about the child’s medical condition. I would probably also accept some impairment of the fact-finding purpose of the interview – I might advise interviewers not to remind children of the importance of telling the truth, because doing so would make the interview look more forensic.

The problem, I think, lies in addressing the problem by emphasizing the purpose of the interviewer. I have written numerous times before that I believe this perspective – an easy but not inevitable one to draw from the Davis opinion – is the wrong one to take. It is also the most vulnerable to manipulation, because the interviewer has the motivation and the ability to disguise her purpose in conducting the interview.

Ironically, though, in the case of forensic interviews of children, if the interviewer does not disguise her purpose, this perspective clearly yields a characterization of the child’s statements as testimonial, because the interviewer so plainly is in fact motivated by a forensic purpose. If the courts instead take the perspective I believe is proper – the reasonable expectation of someone in the position of the speaker – the matter is somewhat more complicated, because the child might not anticipate, or even understand, forensic use. But if one adopts either of two principles, the statements still appear testimonial: (1) The proper perspective is that of a reasonable adult, not of a speaker of the child’s age; just as we do not consider the actual declarant's intelligence or sophistication when we apply an objective standard, we should not consider the declarant's age, and instead apply a "one size fits all" notion of the reasonable declarant. (2) The statement can be testimonial even if a child declarant does not anticipate formal forensic use, so long as she anticipates that some adverse consequence will be visited upon the person accused. I am inclined to believe the first of these principles, though it is controversial, and the second one strikes me as quite clearly correct.