Applying Suggestibility Research to the Real World: The Case of Repeated Questions

Abstract

Thomas D. Lyon (*) I INTRODUCTION One can discern two parallel trends in the law and the psychology of child witnesses. In the law, appellate courts are beginning to stem the once powerful movement to increase the acceptance of children's testimony and the admissibility of children's out-of-court statements. In psychology, experimental psychologists are amassing evidence of the potential unreliability of children's memory reports. The trends intersect when courts assess the reliability of children's statements in order to evaluate the competency of child witnesses, to decide whether to admit expert testimony about the suggestibility of children, and to decide whether to admit children's hearsay. This article will analyze particular strands of each trend. With respect to the law of the child witness, it will consider the application of the medical diagnosis hearsay exception to sexual abuse cases, using as a case study State v. Larson, (1) a Minnesota case that made its way to the United States Supreme Court. The analysis will show how restrictive application of the medical diagnosis exception forces courts to confront the dangers of children's suggestibility. With respect to the psychology of child witnesses, this article will consider the application of the research literature on repeated questions to sexual abuse cases. It will review the entire corpus of research on repeated questions and apply that research to State v. Larson. The article will argue that the risks of question repetition have been exaggerated. The leading research on repeated questions does not support a claim that repetition increases error. Whether repetition leads to inconsistency depends on the types of questions asked, the age of the child, and the child's memory of the event. Most important, researchers ignore the potential effects of repetition on false denials, emphasizing instead the risk that repetition will lead to false allegations. As a result, the cost-benefit calculations called for by policy-minded researchers include only the costs of repeated questions. Part II discusses the facts of State v. Larson, the application of the medical diagnosis exception, and how limiting the exception leads courts to look more carefully at the potential unreliability of children's reports. A key issue in Larson was whether the child's response to repeated questions could be trusted. Part III discusses the importance of repeated questions in debates over suggestibility and summarizes the settled view of the dangers of repeated questions. Part IV critically reviews the literature, including the factors that affect the likelihood that repetition leads to inconsistency or error. Part V discusses the possibility that repetition will increase the number of true reports of abuse. The goals of this article are to communicate the specifics of the research for practical application in future cases and to illustrate the difficulties and potential drawbacks of applying suggestibility research to real-world cases. II STATE V. LARSON: THE MEDICAL DIAGNOSIS EXCEPTION, RELIABILITY, AND REPEATED QUESTIONS In State v. Larson, (2) Bruce Larson was found guilty of sexually assaulting four-year-old daughter in the second degree. When the child hereinafter B., was three years old, she complained to her mother of vaginal soreness and burning urination. (3) Within a week or so, the mother took the child to a family practice clinic, where the child was examined by a physician's assistant: (4) The physician's assistant, who conducted the examination, noticed redness and swelling around the vaginal opening. Suspecting abuse, the examiner asked B. who had touched her. B. replied that Daddy had touched her with his bone that came out of pants. B. said it had hurt and that she had asked him to stop. (5) On appeal, the Minnesota Supreme Court upheld the admissibility of the child's statements to the physician's assistant under the medical diagnosis exception to the hearsay rule. …