Investigation and Prosecution

of Child Abuse Cases

Robert Giles
Senior Attorney
NDAAs
National Center for Prosecution of Child Abuse

NCPCA

44 Canal Center Plaza, Suite 110

Alexandria, VA 22314 PH:703- 549-9222
Please visit our website
www.ndaa.org
Updates
Defense Expert Database
Technical Assistance
National Trainings

Copyright Notice
Items contained in this presentation may be
subject to the United States copyright law
and are used under the guidelines of 17
U.S.C. 107, also known as the Fair Use
Act

Agenda
Corroboration
Areas to explore
Specific types of cases
Suspect Statements

Memory & Suggestibility

Overcoming Untrue Defenses
Physical Abuse
Sexual Abuse

What We Want Sitting in the

Defendants Chair

What We Usually Get

Why Corroboration so
Important?

Why do we need corroboration?

Often, victim is the only witness to the
crime
Sexual and physical abuse occurs in
private
Delayed disclosure
No physical evidence

How Assaults Are Reported

Discretionary (people who are not legally required
report) :
parents - best case scenario
friends
other children
Mandatory (people legally obligated to report):
teachers

school counselors

doctors

government agencies

health care

clergy

child care workers any law enforcement

Corroboration
Areas to Explore
Sensory Detail: Sights, sounds and smells
that make it real for the jury
Surrounding Details: Seemingly
insignificant facts that can make all the
difference
Behavioral Changes/Emotional indicators:
Changes in the childs demeanor and
mood

How and Where to Find

Corroboration

Search warrants
Crime Scene
Witness interviews
Suspect interview
Medical records
School records

Search Warrants
Staleness issue
Specificity issue
MDT approach beneficial to early and
finely-tunes search warrant

Sensory Detail
The physical detail of what the child went
through must be revisited as much as the
possible.
Smell is the most powerful memory trigger
and sensory tool
Gathering sensory detail as a process
differs with the childs age and cognitive
ability

Sensory Detail
The younger the child, the more they may
need to be directed to give detail
Do not lead
Standard interview protocols must be followed
Choices may be given as to what something felt
like, but beware of appearing to manufacture
responses

Direct the child with examples only after

he/she has identified the object in question

Sensory Detail
Example Questions
What did (suspect) touch you with?
You said (suspect) touched you with X, did
he/she touch you with anything else?
How did the touching feel?
How did it feel when (suspect) put his X in your
private spot?

Sensory Detail
Example Questions
Where were you when (suspect) touched
your private spot?
What did you see when you were in that
room?
What did you hear when (suspect) was
touching your private spot?

Sensory Detail
Help them to understand the importance
of talking in so much detail
Paint a picture for the jurors to see

Stress always the importance of telling

the truth above all

Surrounding Facts
Think creatively: a childs life is usually
controlled, even in compromised
situations
Someone else knew what the child was doing
that day, and probably noted it
Any confirmation that the child was with the
perpetrator is strong evidence

Surrounding Facts
Example
Johnny was sexually abused by
grandfather on a camping trip
Johnnys grandmother has recorded the
date of the trip on her wall calendar
This small fact alone says:
Johnny is not crazy this trip happened
He is oriented to place and time, and can recall
events correctly

Surrounding Facts
Example
Johnny reports being abused by neighbor in his
home
During the interview, he mentions that the
perpetrator would drink beer, then crush the
cans and throw them behind the couch
Time to get a warrant or permission to look
behind the couch
This confirmed observation credits Johnnys
testimony and moves you closer to conviction

Behavioral Changes/Emotional
Indicators
Behaviors often seen as a result of CSA:
Aggression, acting out
Regression, psuedomaturity
Change in dress or grooming habits
Eating problems
Developmentally inappropriate sexual
behavior
PTSD symptoms, self-injurious behavior

Behavioral Changes/Emotional
Indicators
Depression
Unusual or excessive fears
Desire to feel protected, inability to separate
from trusted caregivers

School related problems

Sudden drop in academic achievement,
appearance of listlessness or unexplained
hostility

Behavioral Changes
Example
Grandmother indicates that weeks after
the child says that her uncle raped her, the
child acted jittery
Always wanted to be under her wing
Didnt sleep as well, wouldnt go to certain
parts of the house on her own

Behavioral Changes
Use of the Evidence
Grandmother can be called as a fact
witness
Knows the child
Knows the childs typical mood and
behaviors/reactions
How were they before offense date or time
period?
Did she notice a change after? Describe

Corroboration
Get as many contact numbers as
forget grandma . . .
possible . .dont
.

INVESTIGATION

Collect clothes
worn during and
after the
incident.

INVESTIGATION
Also consider sheets,
towels, Kleenex, TP,
victims underwear, sex
toys, and anywhere
else defendant may
have touched victim.
Make sure that the
evidence is properly
preserved.

Medical/SANE
Most protocols recommend that the victim
of acute abuse/assault should be
examined as quickly as possible after
disclosure if disclosure occurs within 72
hours of the event
The 72-hour rule is based on data
regarding the timing of sperm and semen
recovery and degradation of biologic
evidence

Medical/SANE
Pre-verbal children will be unable to give
history
Frightened or threatened children may
give partial or no history
In drug facilitated Sexual Assault, the
victim may have no or only partial
recollection of events
History of oral contact may yield saliva,
which can be used to identify the
perpetrator.

What You Can Get from a

Medical Exam
Presence of semen, sperm, acid
phosphatase, DNA
Fresh genital or anal injuries in
the absence of an adequate
accidental explanation.

What You Can Get from a

Medical Exam
Sexually Transmitted Diseases
Syphilis or gonorrhea not perinatally
acquired.
HIV infection (not acquired perinatally or
through IV routes).

What You Can Get from a

Medical Exam
Physical/Genital Findings
Markedly abnormal hymenal opening for
age with associated findings of
Hymen disruption, including absence,
hymenal remnants, healed
Transections or scars, without adequate
accidental or surgical explanation.

Remember
MOST SEXUALLY ABUSED
CHILDREN HAVE A
NORMAL PHYSICAL
EXAMINATION!!!

One Party Consent

One Party Consent Call - A recorded call
between the victim and suspect that is
monitored by police.
During the call the victim discusses and
confronts the suspect with details of the
abuse.
Purpose is to gain true admissions from
suspect.

One Party Consent Call

- Can be used in any type of criminal
investigation.
- When your state laws/department policy allow
the use of one party consent calls.
- N. D. Cent. Code 12.1-15.02
- When physical evidence/witnesses are limited or
non-existent.
- When victim is of sufficient age and
mental/emotional state to make the call
- If Victim a minor get parent consent

What can you gain from the call?

- Full confession from the suspect.
- Partial admissions from suspect.
- Insight into the suspects mind/way of
thinking. You can use this in the
development of interrogation themes.
- Victim can gain a sense of control and
validation.
- A great piece of evidence to play to the
jury from the suspect himself.

One Party Consent Calls

Interview the Suspect

Dont need confession, but do want to lock
into a story
Can get ridiculous statements that help as
much as a confession
Thought that 8 year old 50 pound daughter was my
35 year old 250 pound wife
Tripped on a blanket and my finger went inside her
vagina
She wanted me
Was examining her to see if she was still a virgin

Interview of Suspect

Confront each denial

Emphasize childs love
Emphasize suspects love
Focus on suspects pervious abuse
Corroborate what the child said
One party consent calls

Corroboration
Failure to Thrive Cases
Review victims entire medical history.
Conduct a thorough search of the home
Medicine
Evidence of financial situation (alcohol,
cigarettes, pet food, cable TV)

Condition of the other children in the home

(i.e. is child a target child?)
Does the child improve when removed?

Corroboration
Physical Abuse Cases
Description of the scene of the crime
Where was the child found?
Where was the child moved from?
Where the injury allegedly occurred (suspects
story)
Where the injury could have occurred

Corroboration
Physical Abuse Cases
Photograph/videotape/diagram all
possible scenes and mechanisms
Measure all objects/distances mentioned
by suspects, as well as any that might be
possible defenses later

Corroboration
Physical Abuse Cases
Photograph all parts of body absence of
injury/symptoms as important as presence
Photograph hands and legs (parachute
reflex develops at nine months, child puts
out hands to protect
Bilateral photographs to show contrast
(compare non-injured opposite side of the
body to contrast, e.g., swelling)

Corroboration
Physical Abuse Cases
Family/Caretaker Interviews.
What they observed
When and what they were told by other family
members
When and what they were told about the
childs injuries

Corroboration
Physical Abuse Cases
Other witness interviews.
All hospital staff that had contact with
family/caretakers
Civilians who may have had contact
with/overheard family (e.g. people in
emergency room, waiting room)
Neighbors, teachers, babysitters, daycare
workers, etc

Corroboration
Physical Abuse Cases
Interview medical personnel
Amount of force needed to inflict injury
Effect of delay in seeking treatment
Consistency of injuries with story offered

Corroboration
Burn Cases
Interview medical personnel
Nature of the burns (splash, immersion,
contact) consistent or inconsistent with the
history provided?
Depth of burns
If water burn, length of time for burn to occur
Childs capability to self inflict/level of pain
Indication of clothing worn when burn
occurred

Corroboration
Burn Cases
Ease of turning on the faucet
Measurement of tubs/sinks compared to
childs reach
Has suspect changed the water heater
setting?
Thorough interview of the caretaker
Victims reaction when burned
Suspects reaction when victim burned

How Corroboration Supports Victim

in Trial
Give other witnesses
who show VC is not
making up
Medical evidence
Physical evidence
Shows that VC lacks
ability to pull off big lie

Other witnesses
Defendants
statement supports
VCs version of
events
Skilled interviews and
investigations
Expert witnesses

Defenses
Sexual Abuse Cases

Memory
Suggestibility
Retaliation
Custody
Recantation
Mental Illness
SODDI
Reasonable Doubt

Defenses
Physical Abuse Cases

Accident
Self Inflicted
Medical Condition
SODDI
Cultural Defense

Preparation
Analyze the case for probable defenses
Defendants statements
Defense attorneys motions
Suspect/Victim/Family Dynamic

Look for weaknesses in your case

Victims statement
Recantation

Preparation
Training
Develop knowledge of:
Specific Case law
Literature (NCPCA, other research)
Learn general methods and approach for
attacking research

Attend critical portions of the investigation

(autopsy, interviews, scene)
Learn use of proper terms

Memory/Suggestibility
What is suggestibility?
The degree to which ones memory or
recounting of a event is influenced by
suggested information or misinformation
Actual changes or distortions in memory
Alterations in the recounting of the event
without an actual change in memory

Memory/Suggestibility
Children and History

Highly Suggestible
Wholly unreliable
Salem witch trials 1692
Freud and associates

Memory/Suggestibility
Salem Witch Trials
The prevailing legal attitude for the
following 300 years has been one of
skepticism about the testimony of child
witnesses Stephen Ceci & Maggie Bruck,
Suggestibility of the Child Witness: A
Historical Review and Synthesis, 113
Psychological Bulletin 403, 405 (1993)

Memory/Suggestibility

Research
Prior to 1979, a shortage of research
From 1979-1992, more than 100 studies
Much of the literature was pro-child
Memory/Suggestibility Children Ten+
Not More Suggestible Than Adults

Memory/Suggestibility
Clown Study
Pairs of kids, ages 4-7 sent into trailer
One child watches and the other interacts
with a clown
Kids asked leading questions such as he
took your clothes off, didnt he?
L Rudy & G.S. Goodman, Effects of Participation on Childrens Reports: Implication for Childrens
Testimony,
Testimony, 27 Developmental Psychology 527-538 (1991)

Memory/Suggestibility
Clown Study

Not one of the kids who

interacted with the clown made a
false report
Only one of the bystander kids
made a false report of abuse
(spanking)

L Rudy & G.S. Goodman, Effects of Participation on Childrens Reports: Implication for Childrens
Testimony,
Testimony, 27 Developmental Psychology 527-538 (1991)

Memory/Suggestibility
Medical Exam Study
100s of kids having a medical
examination
Study Parameters:
5 and 7 year old girls
had a scoliosis exam & had an external
genital exam
Interviewed 1 week or 1 month later
Saywitz, Goodman, Nicholas, and Moan, Childrens Memories of a Physical
Examination Involving Genital Touch: Implications for Reports of Child
Sexual Abuse, 59 Journal of Consulting and Clinical Psychology 682-691
(1991)

Memory/Suggestibility
Medical Exam Study
Study Methodology:
Interviewers used free recall, anatomical dolls,
direct, and misleading questions

Did the doctor put something in your mouth?

Did you take your clothes off?
How many times did the doctor kiss you?
Did the doctor touch you there? (while pointing to
vagina on doll)
Did the doctor ever touch you before that day?

Memory/Suggestibility
Medical Exam Study
Results:
Children reported twice as much
correct information when
demonstrating on dolls
None of the children demonstrated
sexually explicit behavior with the dolls

Memory/Suggestibility
Medical Exam Study
Results (cont.):
Not one of the seven year old
children made a false report
Only 3 out of 215 of the five year
old children made a false report

False Sense of Security

Child Abuse Cases the Turned the

Tide
State of New Jersey v. Michaels
The McMartin Preschool Case
Manhattan Beach, CA
Little Rascals Day Care
Edenton, NC
Fells Acres Day Care Malden,
MA

State v. Michaels
136 N.J. 299; 642 A. 2d 1372 (1994)

Multiple preschool victims

Michaels
convicted of 131
counts
Convictions
reversed

Memory/Suggestibility
Inappropriate Interview
Michaels (cont.)

4 1/2 year old told lots of other kids

revealed abuse
Child told the interview would end once
the child cooperated
When child announced he hated the
investigator, the investigator told the child
he secretly liked the interviewer
Do you want to help us keep her in jail

Memory/Suggestibility
Inappropriate Interview
Michaels Aftermath
The cats out of the bag. Child testimony
viewed with suspicion
In a child abuse case, it is reversible error
not to allow a defense expert to testify
regarding the techniques employed by (the
police officer) and the prosecutor in their
examinations of the child. Pyron v. State,
237 GA .App. 198, 514 S.E. 2d 51, 1999

Memory/Suggestibility
Defense Attorney Backlash
Second Wave of Research
Defense Attorneys attaching research
to motions
Research reflects high profile cases
Research is given great weight by
some courts

Memory/Suggestibility

Sam Stone Study

Ceci & Bruck, 113 Psychological Bulletin
403 (1993)

Memory/Suggestibility
Sam Stone Study
Researchers tell 3-6 year old kids
about Sam Stone
Stereotype SS as clumsy
SS visits the classroom
The next day, kids given fictitious
evidence

Memory/Suggestibility
Sam Stone Study
Kids interviewed for 2 minutes once every
two weeks for 10 weeks after the visit
Kids asked leading questions such as I
wonder is SS was wearing long pants or
short pants when he ripped the book and I
wonder if SS got the teddy bear dirty on
purpose or by accident.
First interview: 25% surmised SS did it

Memory/Suggestibility
Sam Stone Study
Results
72% of the 3 & 4 year olds claimed SS
ruined at least one of the items
45% of the 3 & 4 year olds actually claimed
to have witnessed SS ruin an item
11% of the 5 & 6 year olds claimed to have
observed SS damage one of the items

Memory/Suggestibility
Sam Stone Study
Ceci & Leichtman concluded, [W]hen the
context of a childs reporting of an event is
free of the strong stereotypes and
repeated leading questions that may be
introduced by adults the odds are tilted in
favor of factual reporting The Effects of
Stereotypes and Suggestions on
Preschoolers Reports, Dev. Psych. 1995
Vol. 31, No. 4

Memory/Suggestibility
Mousetrap Study
Ceci, Loftus, Leichtman, Bruck, The
Possible Role of Source Misattributions in
the Creation of False Beliefs Among
Preschoolers, 62 International Journal of
Clinical and Experimental Hypnosis 304
(1994)

Memory/Suggestibility
Mousetrap Study

Kids ages 3-6 interviewed

Kids given a list of events
Kids encouraged to try to recall
By the 7th week, 1/3 of kids
remembered a false event

Memory/Suggestibility
Mousetrap Study

- Children ages 3 to 6
- 12 interviews of 30 minutes each
- Children told about a fictional event
and then told to picture it in their head
- Initially 23% remembered the fictional
event
- By interview 12, 43% remembered the
fictional event

Memory/Suggestibility
Inoculation Study
Bruck, Ceci, Francoeur, and Barr, I Hardly
Cried when I got my Shot! Influencing
Childrens Reports about a Visit to Their
Pediatrician, 66 Child Development 193208 (1995).

Memory/Suggestibility
Inoculation Study
Kids (ages 4-5) receive a medical exam
by pediatrician
After exam, researcher stays during
oral vaccine and inoculation
RA removes child and plays
11 months later, kids interviewed

Memory/Suggestibility
Inoculation Study
Results
Kids interviewed four times over a
two week period
Kids are lied to about RA and
pediatrician duties
In the 4th interview, 40% of kids
falsely reported the duties of one
of the players

Memory/Suggestibility
The Jack OMack Study
Jack tested toys, measured feet, and
painted faces on toenails
Four months later, kids were told to
take the process seriously
After ten suggestive interview
sessions, only one child falsely
accused Jack of yelling
Serious atmosphere
Serious allegation
Bhavna Shyamalan & Sharon Lamb, The Effects of Repeated Questioning on Preschoolers Reports of Abusive Behavior

Memory/Suggestibility
False Touches Study
Jodi A. Quas, Elizabeth L. Davis, Gail S.
Goodman, John E.B. Myers, Repeated
Questions, Deception, and Childrens True
and False Reports of Body Touch, Child
Maltreatment, Vol. 12, No. 1 (Feb. 2007)
Study examines childrens ability to
maintain a false statement about body
touch

Memory/Suggestibility
False Touches Study
1 to 3 weeks later the children are
interviewed
Children who lied about being touched
were able to accurately maintain the lie
during repeated, direct questioning
Children who lied were less accurate then
truth tellers when answering questions
about surrounding details

Memory/Suggestibility
False Touches Study
Children who answered truthfully about
being touched were significantly less
accurate and less consistent than those
who lied
Children who answered truthfully about
not being touched were both accurate and
consistent in their statements

Memory/Suggestibility
Research vs. The Real World

What do We Know:
Average age of victims is 10 years old
Most interviews occur soon after disclosure
Interviewers use non-suggestive
techniques
Victims are most often abused by close
family members
Usually one, not multiple victims

Memory/Suggestibility
Research vs. The Real World
Conclusion:
Real World: Children interviewed after
they reveal abuse
Research World: Children interviewed
repeatedly after they deny an event

Other Defenses

Mental Illness
Does the child have a history of mental
illness?
Defendant may be the reason
Bring in the family dynamics
Bring in the defendants psychological
manipulation
Victim was targeted because she was
vulnerable

Mental Illness
Psychological symptoms may be the
result of abuse
Expert testimony about victims particular
condition
Victim is a good historian about other
events
Victims abilities in school/home ok

Retaliation
Parent/Stepparent, New Partner, Baby
Sitter, Teacher, Counselor
Authority Figure
Usually Older Child
Discipline

Retaliation
Desired Result vs. Actual Result
Foster Care
Ostracization/Embarrassment
Financial Hardship for family
Painful and embarrassing exam
Testify before twelve strangers and all of the
other people that victim had to tell
If it were a lie, s/hed have bailed

Retaliation
Expose how the victim would have to
know about and manipulate the entire
criminal justice system
Establish history of discipline without
allegations resulting

Custody/Divorce
Confirm Chronology
Disclosure prompts divorce
Divorce prompts disclosure
What/who prompted disclosure (common
prompts, e.g., dad filing for visitation, may be
a motive for mom to lie, but it is also a prompt
for true disclosure)
Get police reports and court records for dates

Custody/Divorce
To whom did victim disclose initially and
under what circumstances?
Language at disclosure?
Ability of child to disclose peripheral and
sensory details
Was non-offending parent initially supportive?

Custody/Divorce
Public perception
Reality: 2% of cases involve custody
Same validation rate within that 2% as
with other sexual abuse allegations

Recantation
Cant have it both ways
The child has lied
Explain why kids recant:
Secrecy
Lack of support
Pressure to recant
Fear of repercussions
Threats

Recantation
Assess recantation by:
To whom it was made?
Demeanor/Exact words
Surrounding circumstances
Obviously false statements within
recantation?
Expert testimony: Child Sexual Abuse
Accommodation Syndrome (CSAAS)

Recantation
CSAAS
Pattern of five behavioral characteristics
often observed in child victims of sexual
abuse:
Secrecy
Helplessness
Accommodation
Delayed disclosure
Recantation
Roland Summit (1983)

Recantation
CSAAS
Children do not necessarily report abuse right
after it happens
Relationship between child and perpetrator is
parent/caretaker-child
Opts not to report for fear of hurting other parent,
sending perp. to jail, or not being believed
Once child feels distance from the offender, child
may disclose the matter
Counter intuitive actions victim returns to the
abuser, compliant victim

SODDI
Review state laws regarding rape
shield/third party defense
DNA testing
STD testing
Timing of symptoms with assault
Defendants medical records
Remission

Reasonable Doubt

Lack of Medical/Physical evidence

Call a doctor anyway (studies show that
85%-95% of confirmed abuse cases have
no medical findings)
Normal is normal
No trauma to female sexual organ after a
vaginal canal birth
Age/sexual development of child

Reasonable Doubt
I know he did it, you just didnt prove it.
Address in voire dire victims testimony is
enough
Child is credible

Consistent testimony vs. Identical testimony

Delay in disclosure understandable
Demeanor
Corroboration of victims statement
Clothes, Photos of the room were abuse took place
Suspect interview/statement

Defenses
Physical Abuse Cases
Accident
Injuries inconsistent with explanation
Mechanism
Force
Pattern

Foreseeable nature of the injury

Disregarding the risk

Accident
Surrounding circumstances
Nature, number, location and constellation of
injuries
What was said when injury inflicted
Triggering event motive
Prior acts
Failure to obtain treatment
Failure to mention to injuries
Baby dont cruise, baby dont bruise

Accident
Abusive Head Trauma
Have medical experts narrow time frame
as much as possible
If expert cannot/will not, try to establish
witnesses to last known well period of child
and who was with baby at onset of symptoms.
Establish time frame/caretakers when other
injuries occurred
Evaluate motive (e.g., target child), past
abuse

Abusive Head Trauma

Learn all you can about childs medical
history
Diagnoses
Treatment
Genetic issues/family history

Abusive Head Trauma

Medical Records
Admitting notes
History and progress notes
Nursing notes
Discharge summary
Social workers notes
Lab reports

Abusive Head Trauma

Medical Records
Doctors orders
Consultation notes
X-Ray/CT Scan/MRI records

Abusive Head Trauma

Did caretaker act like child had medical
problems before he/she was charged?
Take to doctor or administer treatment

Innocent explanation (CPR caused retinal

hemorrhages)
Why was there need for CPR?
Are other symptoms injuries consistent with
CPR and the need to administer it?

Abusive Head Trauma

Shook to revive due to seizure or
unconscious state
Did child have seizure history?
What caused unconscious state?
Appropriate force to revive?

Other Medical Condition Defense

Consult with medical personnel
Non-injury symptoms of claimed condition
Whether contrary medical evidence exists
Necessary medical history of condition

Other Medical Condition Defense

OI or TBBD
Actual OI incidence is rare
Consider family history, clinical indicators,
elimination test
Fractures stop when child removed?
Consider type of fractures

SODDI
Establish:
What did suspect know
When did he know it

Obtain timeline of symptoms/behaviors

Who had access to child
Attempt to get medical assistance
Last visit to family doctor

Cultural Defense

Thats how we do it where I come from

Is it true?
Is it culture or is it abuse? Both?
Are there areas where the defendant is
not following cultural dictates?
Hid conduct from others in culture
Focus on conduct

Final Thoughts
No child must ever
stand alone where
there is a creative and
thorough investigation
and prosecution
Investigators must
fully document
statements,
demeanor and crime
scene

Final Thoughts
Suggestive facts
are there look for
them
Recognize the
childs courage
with hard work,
dedication, and
determination

For when you need me

Robert Giles
[email protected]
Direct Dial: 703-519-1656
Cell: 248-910-2084

Acknowledgements
Many thanks to Rami Badawy, Justin
Fitzsimmons, Dr. Cindy Christian, Dr.
Suzanne Starling, Det. Chris Rash and
Victor Veith for their help in creating this
presentation