EXPERT WITNESS: Forensic interviewing: Where are we now?

By Michael G. Brock Somehow, I've spent most of my working life in the legal arena. After completing my bachelor's degree and trying to find a job I was confronted with the reality that I would have to obtain a union card of some sort - that is to say, some kind of training to make myself marketable. After being accepted to WSU and Detroit College of Law, I decided to pursue an advanced degree in mental health. But I never gave up my interest in law, or in literature and creative writing, in which I had obtained my bachelor's degree. Ultimately, my work in a forensic capacity allowed me to combine the three interests, and has made for an interesting and challenging career. And while these days I focus my attention and marketing on driver's license and substance abuse evaluations, I still do an occasional child custody case or forensic interviewing consultation. Ten years ago I was doing a lot of custody evaluations, and would frequently run across allegations of abuse in the course of the evaluation process. This happened so frequently that I began to attend conferences on the subject, including one by Kathryn Kuehnle (spring 2000), at which the late Beth Clark gave me a copy of Michigan's Forensic Interviewing Protocol1. The implementation of this Protocol had become Michigan Law with the publication of the original version in 19982 and remains so today. Though it has gone through a few revisions, elaborations and clarifications, it remains essentially the same document that was created by Deborah Poole with the assistance of the Governor's Task Force on Child Abuse and Neglect and the Department of Human Services in 1998. The essential features of this document are the elements of the phased interview: prepare for the interview, introduce yourself and build rapport, establish the ground rules, conduct a practice interview, introduce the topic, (most importantly) elicit a free narrative, question and clarify, and close the interview. Despite the fact that the protocol had been law for two years at the time I first became aware of it, no one in private practice was using this tool, and most - like me - had never heard of it. Indeed, in 2002, James Bow etc al. published a research paper in which they stated that only a third of mental health professionals (MHPs) were utilizing any type of protocol for investigating allegations of abuse that arose during a child custody case which they were investigating on behalf of the court.3 When I looked into why this was, it was explained to me that this law applied specifically only to State employees, such as P.S. workers, police officers, or facilities set up specifically for the investigation of abuse allegations. The only such facility in the tri-county area in 2000 was at Care House in Oakland County. I was baffled why this Protocol, which represented the state of the art in conducting interviews of children and was based on solid research published by the American Psychological Association4, should not be followed by MHPs, especially those performing child custody interviews. One would think that at least they would be sensitive to the need to obtain clean evidence, even if a treatment professional might lack sophistication regarding the proper intersection of law and his particular discipline. Even there, however, every MHP ethics code warns about the dangers of mixing dual and conflicting roles, and enough MHPs have gotten into trouble by doing so that they now tend to be more cautious about rushing into areas where they lack expertise. Of equal concern to me was that there was no protocol being utilized at that time by the physicians interviewing children in these cases5, and they would often engage in questioning children inappropriately. Indeed, it is a very difficult thing to question a child in a non-leading, non directive way, with open ended questions, and to sit patiently and wait for a child to provide a narrative of events around an allegation of abuse. If one is patient, however, children can provide remarkable detail, which gives a valid allegation of abuse more credibility, and insures that we are not rushing headlong to judgment regarding statements that may have been thrown into the mix by someone hoping to gain the edge in a child custody battle. Anyone working in family court has heard many such unfounded allegations. Now we had a tool to help us accurately differentiate true from false allegations, but few were using it. I began researching the literature and utilizing the Protocol for my own work immediately after finding out about it, and, as recommended, I also video-recorded the interviews. With family court Judge Bill Callahan, I gave presentations on the Forensic Interviewing Protocol at a seminar sponsored by the Guidance Center in December 2000, and at the Dearborn/Downriver Bar Association in February 2002. At the time, I didn't think too much about those presentations. I found I didn't really like conducting seminars and, after a scheduled presentation to the Michigan Association for Professional Psychologists on the subject was cancelled due to lack of interest, I confined myself to my work in the courts and articles in this column. However, The Guidance Center seminar had an impact. Then director Michael Lott decided that he would set up a forensic interviewing program in his clinic and asked if I would run it. I said no thanks; I would rather remain in private practice. However, he proceeded with the project and obtained the contract to provide these services for the State in Wayne County. Ten years ago, in January 2003, I did an evaluation in a messy divorce case at 3rd Circuit Court involving allegations of abuse. I did a custody evaluation that included a taped forensic interview, and the case wound up settling. Prior to my involvement, the child was taken to Children's Hospital, and an MHP not employing any protocol stated that he thought abuse had occurred. He recommended that child have abuse counseling. After giving testimony I wrote a letter to the interviewing party outlining the ways in which I felt he had mishandled the case. My feeling was that Children's Hospital, of all places, should be doing this right. The letter quoted the MHP's work and went on to say: "Like the doctor's examination, the hospital MHP's interview did not support any type of trauma to the child. Despite being asked leading questions, the child denied that there had been any type of mistreatment and, specifically, that she had not been sexually mistreated by her father. She further reported that she had not touched or even seen her father's penis. However, the interviewer - seemingly grasping at straws for a reason to believe that this abuse had taken place - interpreted a drawing as being evidence the child had been sexually abused because the hips were curved. And because the child did not disclose what the mother had told the MHP, he concluded that the child was lying. However, it apparently did not occur to him that the mother could be lying. It is important that the reported aggressive behavior which the MPH stated was the reason for the child entering therapy came about after therapy started, and was nowhere reported [in the therapist's notes] to be a reason for starting therapy. Yet this information could only have come from the presenting parent. "Also important is that, by the time of this interview the child has been in therapy for just over a year and has not revealed any sexual abuse in therapy, although the child was subjected to intense pressure and repeated leading questions in this therapy. The child has also had two prior Kids Talk interviews that did not reveal any sexual abuse. She had a negative examination for physical trauma on the date of this interview, and has denied to both the doctor and to the MHP questioning her that any type of mistreatment or inappropriate sexual behavior or exhibitionism has taken place on the part of her father or anyone else. "Yet, the conclusion of the doctor was that he could not rule out sexually inappropriate behavior on the basis of a negative physical examination, which frankly, is something that everyone knows. The interviewer suggested that therapy should specifically focus on the issue of sexual abuse, presumably to support the presumption that the child has been abused and that the presenting parent is telling the truth. He is also suggesting the possibility that a new therapist should be employed, indicating that perhaps incompetence was the reason the other therapist could not get the child to disclose. This interviewer is apparently ignorant of the difference between treatment and forensic mental health, although he engages in forensic practice routinely. "These health care professionals' presumptions are a normal response of any treating health care professional. They are used to believing that when a parent brings a child in for treatment, the parent has a legitimate reason for seeking an examination or treatment for that child. However, these presumptions are antithetical to due process and the presumption of innocence. They are antithetical to the notion that both parties have a right to present their point of view and to be interviewed; and to be a part of any examination that is going to be used in a legal proceeding; and which will inevitably be a determining factor regarding whether a parent is going to have continuing contact with his child, and what kind of contact it will be. "At the suggestion of a consultant I am contacting you to suggest what I have already said in my report and on the record; that your work on this case reflects an inadequate understanding of forensic interviewing process. What I did not say on the stand or in the report, but will say to you now, is that your work is below an acceptable standard of practice. If I were the father in this case, I would be inclined to take legal action. "I am particularly horrified at your suggestion that therapy is a proper means if discovering forensic truth and should be used for this investigative purpose. This morning a colleague of mine received such a case from you, indicating that it is apparently routine for you to recommend therapy for this purpose. By doing this you are not only demonstrating a lack of knowledge of even the most rudimentary forensic procedures, but you are also recommending that other mental health professionals commit malpractice/ethics violations by engaging in the dual roles of treatment professional and forensic investigator. "Counsel asked me on the stand why I did not file ethics complaints on the mental health professionals in this case. I responded that I have neither the time nor the inclination to act as policeman for the mental health industry. This is true, but I have decided that I can no longer in good conscience let these matters go; too many people - too many children and parents - are done irreparable harm by such acts. Moreover, you are in a position to do more harm than most. "If I can be of any help to you researching proper forensic procedures, feel free to contact me. However, if I run across any further examples of improper behavior on your part or the part of other mental health professionals acting in a forensic capacity, I will report them." As fate would have it, I had a friend who, at the time, was a nurse practitioner at Children's Hospital, and I had expressed my concerns to her about the quality of forensic work being done at that facility. Shortly after I wrote this letter she informed me that Children's had instituted a forensic interviewing protocol. Recently, I learned that Children's now handles the forensic interviewing for Wayne County, which would seem to be as it should, since they also handle the physical examinations. It is well documented in forensic research that MHPs employing a protocol do a much better job of getting at the truth than those who do not, and I'm sure that Children's has long since addressed the concerns expressed in my letter. One very important thing I have discovered in cases where the Protocol and videorecording are utilized, is that at least there are a method and a record that make it possible to assess whether the process was handled correctly, and whether the child can be said to have disclosed or failed to disclose what was alleged. I have been involved in cases recently where the child was alleged to have disclosed abuse which my interpretation of the evidence would not support. The difficulty of waiting for the child to provide a true narrative, rather than feeding the child information to flesh out the story, is evident in many forensic interviews. Perhaps this is because many of those drawn to this work are anxious to be helpful by "cracking the case," as forensic researcher Stephen Ceci once put it. Hopefully, they will come to realize in time that they are being just as helpful by identifying children who have not been abused, as those who have-perhaps more so. Though forensic interviewing is supposed to be a "hypothesis testing, rather than hypothesis confirming" process, I still often run across physicians and MHPs who ask leading questions and bring their own confirmatory bias to these interviews. There are even some jurisdictions that allow persons who are not yet permanently licensed to perform these critical forensic interviewing functions. And it concerns me that one can still make an unlimited number of unconfirmed abuse allegations without fear of being charged under the provision of the Child Protection Law that makes it a felony to make a false allegation. Why this is true I cannot say, but it shows that we have a long way to go before we can be confident that justice is consistently being done in these most difficult and highly challenging cases. ---------- 1 http://www.michigan.gov/documents/dhs/DHS-PUB-0779_211637_7.pdf. 2 MCL 722.628 Referring report or commencing investigation...Section 8 (6) In each county, the prosecuting attorney and the department shall develop and establish procedures for involving law enforcement officials as provided in this section. In each county, the prosecuting attorney and the department shall adopt and implement standard child abuse and neglect investigation and interview protocols using as a model the protocols developed by the governor's task force on children's justice as published in FIA Publication 794 (8-98) and FIA Publication 779 (8-98), or an updated version of those publications. 3 Bow, J. N., Quinnell, F. A., Zaroff, M., & Assemany, A. (2002). Assessment of sexual abuse allegations in child custody cases. Professional Psychology: Research and Practice, 33, 566-575. 4 Debra Poole and Michael Lamb, Investigative Interviews of Children, 1998. 5 The American Academy of Child and Adolescent Psychiatry developed Practice Parameters for the, Forensic Evaluation of Children and Adolescents Who May Have Been Physically or Sexually Abused, which was approved in August 1996, and which is available at: https://www.google.com/search?q=The%20American%20Academy%20of%20Child%20and%20Adolescent%20Psychiatry%20developed%20Practice%20Parameters%20for%20the%2C%20Forensic%20Evaluation%20of%20Children%20and%20Adolescents%20Who%20May%20Have%20Been%20Physically%20or%20Sexually%20Abused&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a. Although physicians were on the above mentioned Governor's Task Force, I have not been able to locate a protocol for pediatricians or general practice physicians. ---------- Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; (313) 802-0863, fax/phone (734) 692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com. Published: Wed, Jan 16, 2013