Richard D. Friedman (*) I INTRODUCTION The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the subject knows. Juxtaposing problems of hearsay and confrontation with those of child sexual abuse yields one of the most intractable problems that a system of criminal justice can face. II RESTRUCTURING THE GENERAL LAW OF CONFRONTATION AND HEARSAY I do not believe that our criminal justice system can reach a satisfactory resolution of the problems inherent in adjudicating claims of child abuse until it restructures the general law of confrontation and hearsay. (1) In Lilly v. Virginia, (2) I co-authored an amicus brief for the American Civil Liberties Union proposing a reconceptualization of the confrontation right. (3) Justice Breyer, one of the members of the plurality in that case, wrote a concurring opinion referring extensively to the brief and expressing considerable sympathy for the views advanced in it. (4) These views are in many ways compatible with those of Justices Scalia and Thomas. (5) Thus, it is plausible that in the reasonably near future the Court will revamp the Confrontation Clause along the lines suggested in the amicus brief. The current doctrine depends largely on the Court's perception that hearsay law and the confrontation right "are generally designed to protect similar values and stem from the same roots." (6) Thus, the Court has tended to meld the two, treating both as aimed at facilitating accuracy in truth-finding by weeding out unreliable evidence. With respect to out-of-court statements, therefore, the Court has given the confrontation right very little ambit independent of hearsay law. If a statement fits within a "firmly rooted" hearsay exemption, (7) then the Confrontation Clause is unlikely to pose an obstacle to admissibility. (8) As a result, whether a statement by a child alieging sexual abuse should be admitted at the trial of the alleged abuser often depends on whether the court deems the statement to fit within one of the hearsay exemptions listed in the Federal Rules, a list purportedly determined by considerations of reliability. (9) This approach is objectionable on numerous grounds. A. The Difficulties of Determining Reliability Reliability is very difficult to determine. To confirm this point, we need look no further than the current debate over the reliability of child witnesses. (10) Any attempt to sort out reliable from unreliable evidence must run aground. If
对虐待儿童指控的裁决提出了一个令人难以忍受的难题。这是一种可怕的罪行，但错误的定罪是令人憎恶的。通常情况下，证据不足以清晰地支持有罪或无罪的判决，从而使裁决不存在令人痛苦的怀疑。在许多案件中，问题的很大一部分是，控方的案件严重依赖于一个年幼的孩子的陈述或证词。即使是对成年证人而言，道听途说和对抗法也非常令人困惑，任何研究过美国证据法并阅读过最高法院对此问题的意见的人都知道这一点。将传闻和对抗的问题与儿童性虐待的问题并置，是刑事司法系统可能面临的最棘手的问题之一。我不相信我们的刑事司法系统能够在裁决虐待儿童索赔的固有问题上达成令人满意的解决方案，除非它重构对抗和传闻的一般法则。在Lilly v. Virginia一案中，我为美国公民自由联盟(American Civil Liberties Union)共同撰写了一份法庭之友简报，提议对对抗权进行重新定义。(3)该案中占多数的法官之一布雷耶(Breyer)大法官撰写了一份同意意见，广泛参考了案情摘要，并对其中提出的观点表示了相当大的同情。(4)这些观点在许多方面与斯卡利亚和托马斯法官的观点一致。(5)因此，在不远的将来，法院将按照法庭之友摘要中建议的思路修改对抗条款，这是合理的。目前的原则在很大程度上取决于法院的看法，即传闻法和对抗权“通常是为了保护相似的价值观，并且源于相同的根源”。(6)因此，法院倾向于将两者结合起来，将两者都视为旨在通过排除不可靠的证据来促进查明真相的准确性。因此，就庭外陈述而言，本院赋予对抗权的范围非常小，不受传闻法的约束。如果一项陈述符合“根深蒂固”的道听途说豁免，那么对峙条款不太可能对可采性构成障碍。(8)因此，在对被指控的施虐者的审判中，儿童指控性虐待的陈述是否应被接受，往往取决于法院是否认为该陈述符合《联邦规则》中所列的道听途说豁免之一，这一清单据称是根据可靠性考虑而确定的。这种做法有许多理由值得反对。A.确定可靠性的困难可靠性很难确定。为了证实这一点，我们只需要看看目前关于儿童证人可靠性的辩论。任何将可靠证据与不可靠证据区分开来的企图都必须搁浅。如果裁决是根据广泛的证据类别做出的，法律就会过于生硬——不仅会笼统地提出许多不可靠的陈述，而且还会根据与具体案件几乎没有关系的概括来做出决定。如果根据具体情况作出决定，结果不一定会更好。这种决定将不可避免地非常主观，它将有效地免于上诉控制，或者对上诉资源的要求极高。作为可靠性测试如何不起作用的一个例子，请考虑第十巡回上诉法院在美国诉汤姆案中的还押判决。”法院认为，一名五岁女孩对儿科医生的陈述称，她的父亲在一年多前对她进行了性虐待，属于传闻例外。(12)由于犯罪者的身份是确定是否存在性传播疾病风险的重要信息，法院的结论是，这些陈述是为了医疗诊断和治疗而作的，因此就对抗条款而言是可靠的。…
{"title":"The Conundrum of Children, Confrontation, and Hearsay","authors":"Richard D. Friedman","doi":"10.2307/1192372","DOIUrl":"https://doi.org/10.2307/1192372","url":null,"abstract":"Richard D. Friedman (*) I INTRODUCTION The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the subject knows. Juxtaposing problems of hearsay and confrontation with those of child sexual abuse yields one of the most intractable problems that a system of criminal justice can face. II RESTRUCTURING THE GENERAL LAW OF CONFRONTATION AND HEARSAY I do not believe that our criminal justice system can reach a satisfactory resolution of the problems inherent in adjudicating claims of child abuse until it restructures the general law of confrontation and hearsay. (1) In Lilly v. Virginia, (2) I co-authored an amicus brief for the American Civil Liberties Union proposing a reconceptualization of the confrontation right. (3) Justice Breyer, one of the members of the plurality in that case, wrote a concurring opinion referring extensively to the brief and expressing considerable sympathy for the views advanced in it. (4) These views are in many ways compatible with those of Justices Scalia and Thomas. (5) Thus, it is plausible that in the reasonably near future the Court will revamp the Confrontation Clause along the lines suggested in the amicus brief. The current doctrine depends largely on the Court's perception that hearsay law and the confrontation right \"are generally designed to protect similar values and stem from the same roots.\" (6) Thus, the Court has tended to meld the two, treating both as aimed at facilitating accuracy in truth-finding by weeding out unreliable evidence. With respect to out-of-court statements, therefore, the Court has given the confrontation right very little ambit independent of hearsay law. If a statement fits within a \"firmly rooted\" hearsay exemption, (7) then the Confrontation Clause is unlikely to pose an obstacle to admissibility. (8) As a result, whether a statement by a child alieging sexual abuse should be admitted at the trial of the alleged abuser often depends on whether the court deems the statement to fit within one of the hearsay exemptions listed in the Federal Rules, a list purportedly determined by considerations of reliability. (9) This approach is objectionable on numerous grounds. A. The Difficulties of Determining Reliability Reliability is very difficult to determine. To confirm this point, we need look no further than the current debate over the reliability of child witnesses. (10) Any attempt to sort out reliable from unreliable evidence must run aground. If","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"243-256"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91106292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Amy E. Pope (*) I INTRODUCTION The death penalty has its fervent defenders and critics. In all the debate about the procedure, however, no one has suggested how a feminist perspective might improve the discussion. Feminist theory can be helpful in several ways. First, we can learn from the lives of the women embroiled in the process. Indeed, fifty-four women currently live on death row. (1) Not only are women themselves imprisoned by the state, but women are also the mothers, sisters, and wives of those condemned to die. Countless numbers of women are the victims of the crimes for which men are sentenced to death. And women are, in still small but growing numbers, the judges, prosecutors, and defense attorneys embroiled in the process. Second, and more importantly, the decision to impose the death penalty and the procedures for doing so present traditionally male ways of looking at the problem, presenting judges and juries with a limited means of considering the issues: Universal standards are divorced from context, dichotomous choices ar e imposed in place of a range of alternatives, and emotions are excised from the procedure. Imposing a feminist lens on the procedure will round out the largely one-sided argument. For these reasons and others, it is appropriate to look at the death penalty from a feminist perspective. How has the system affected the lives of women? How does the process and the punishment reflect the voices of women? Why are so few women sentenced with this penalty, and what does this imply about our culture? What is the feminist response to a procedure that ostensibly rids this country of the people who threaten women in the most violent ways? In Autumn 1998, Law and Contemporary Problems published an issue exploring the American Bar Association's Proposed Moratorium on the Death Penalty. (2) This note advances another argument in favor of the proposed moratorium-that, by employing feminist methodology to examine the death penalty, it becomes clear that the current procedural system fails to represent large numbers of those penalized under the system. Accordingly, the major purpose of this note is to start a conversation about the ways in which thinking from a feminist perspective may help us, as a society, to approach the death penalty in a more productive and holistic fashion. This note points out that, even when there is a horrible crime, and instinct calls for death, there are contextual factors that must be considered. Universal standards that require "yes" or "no" answers fail to address the needs of both the Victims of crime and its perpetrators. Until criminal procedure is reconfigured to better represent those voices, it is inappropriate for the democratic state to impose such a final and severe sentence. After a brief exploration of the need for a feminist perspective on capital punishment in Part II, Part III begins by determining which feminist methodology is most appropriate to an analysis of the death penalty. The
{"title":"A Feminist Look at the Death Penalty","authors":"A. Pope","doi":"10.2307/1192373","DOIUrl":"https://doi.org/10.2307/1192373","url":null,"abstract":"Amy E. Pope (*) I INTRODUCTION The death penalty has its fervent defenders and critics. In all the debate about the procedure, however, no one has suggested how a feminist perspective might improve the discussion. Feminist theory can be helpful in several ways. First, we can learn from the lives of the women embroiled in the process. Indeed, fifty-four women currently live on death row. (1) Not only are women themselves imprisoned by the state, but women are also the mothers, sisters, and wives of those condemned to die. Countless numbers of women are the victims of the crimes for which men are sentenced to death. And women are, in still small but growing numbers, the judges, prosecutors, and defense attorneys embroiled in the process. Second, and more importantly, the decision to impose the death penalty and the procedures for doing so present traditionally male ways of looking at the problem, presenting judges and juries with a limited means of considering the issues: Universal standards are divorced from context, dichotomous choices ar e imposed in place of a range of alternatives, and emotions are excised from the procedure. Imposing a feminist lens on the procedure will round out the largely one-sided argument. For these reasons and others, it is appropriate to look at the death penalty from a feminist perspective. How has the system affected the lives of women? How does the process and the punishment reflect the voices of women? Why are so few women sentenced with this penalty, and what does this imply about our culture? What is the feminist response to a procedure that ostensibly rids this country of the people who threaten women in the most violent ways? In Autumn 1998, Law and Contemporary Problems published an issue exploring the American Bar Association's Proposed Moratorium on the Death Penalty. (2) This note advances another argument in favor of the proposed moratorium-that, by employing feminist methodology to examine the death penalty, it becomes clear that the current procedural system fails to represent large numbers of those penalized under the system. Accordingly, the major purpose of this note is to start a conversation about the ways in which thinking from a feminist perspective may help us, as a society, to approach the death penalty in a more productive and holistic fashion. This note points out that, even when there is a horrible crime, and instinct calls for death, there are contextual factors that must be considered. Universal standards that require \"yes\" or \"no\" answers fail to address the needs of both the Victims of crime and its perpetrators. Until criminal procedure is reconfigured to better represent those voices, it is inappropriate for the democratic state to impose such a final and severe sentence. After a brief exploration of the need for a feminist perspective on capital punishment in Part II, Part III begins by determining which feminist methodology is most appropriate to an analysis of the death penalty. The","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"50 1","pages":"257-282"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77278113","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Response of Lester Brickman to Elihu Inselbuch, \"Contingent Fees and Tort Reform: A Reassessment and Reality Check\"","authors":"L. Brickman","doi":"10.2307/1192246","DOIUrl":"https://doi.org/10.2307/1192246","url":null,"abstract":"","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"1 1","pages":"295"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89802456","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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 resear
{"title":"Applying Suggestibility Research to the Real World: The Case of Repeated Questions","authors":"T. Lyon","doi":"10.2307/1192367","DOIUrl":"https://doi.org/10.2307/1192367","url":null,"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 resear","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"509 1","pages":"97-126"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77005864","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Nancy E. Walker (*) I INTRODUCTION The problems associated with assessments of children's reports of victimization in criminal proceedings came to national attention during the 1980s and 1990s in a series of highly publicized trials of daycare staff. (1) In the McMartin Preschool case, (2) more than 350 children claimed to have been molested at the preschool and a number of public locations including a market, a car wash, and a church. (3) During interviewing, some children reported that, in addition to experiencing sexual abuse, they had been taken on plane rides and forced to drink blood and to watch animals being mutilated. (4) Prosecutors said that the suggestive techniques used to elicit retrospective reports from such young children were appropriate, whereas the defense claimed that the interviewing and videotaping procedures were inept. (5) When the trial ended in January of 1990, several jurors reported that they believed some of the children had in fact been molested but that the state had failed to prove the identity of the perpetra tor(s). (6) This three-year trial--the longest-running criminal trial in the history of the United States--cost taxpayers between thirteen and fifteen million dollars, produced no convictions, and destroyed the lives of many individuals connected to the case. (7) In the end, it was not possible to determine whether the reports provided by the children interviewed were accurate. Research completed since the McMartin trial shows that the skill of the interviewer directly influences whether a child relates a true memory, discusses a false belief, affirms details suggested by others, embellishes fantasies, or provides no information at all. (8) For example, Sena Garven and colleagues demonstrated that the coercive techniques used by interviewers in the McMartin case elicited substantially more false allegations from children than did simple suggestive questions. (9) This finding is particularly important given the fact that suggestive questions have long been known to have a negative impact on the quality of children's reports. (10) When exposed to the "McMartin techniques" for less than five minutes, children in the study conducted by Garven and colleagues showed error rates of nearly sixty percent. (11) Moreover, children subjected to social influence techniques became more acquiescent as the interview proceeded. (12) As these findings demonstrate, the specific techniques employed by an interviewer have a direct effect on the quality of the report obtained, a conclusion that has been heeded in recent appellate court opinions. (13) For example, in State v. Michaels, the New Jersey Supreme Court considered whether the state's interview techniques in the case had been "so coercive or suggestive that they had a capacity to distort substantially the children's recollections of actual events and thus compromise the reliability of the children's statements and testimony based on their recollections." (14) An amicus b
{"title":"Forensic Interviews of Children: The Components of Scientific Validity and Legal Admissibility","authors":"N. Walker","doi":"10.2307/1192369","DOIUrl":"https://doi.org/10.2307/1192369","url":null,"abstract":"Nancy E. Walker (*) I INTRODUCTION The problems associated with assessments of children's reports of victimization in criminal proceedings came to national attention during the 1980s and 1990s in a series of highly publicized trials of daycare staff. (1) In the McMartin Preschool case, (2) more than 350 children claimed to have been molested at the preschool and a number of public locations including a market, a car wash, and a church. (3) During interviewing, some children reported that, in addition to experiencing sexual abuse, they had been taken on plane rides and forced to drink blood and to watch animals being mutilated. (4) Prosecutors said that the suggestive techniques used to elicit retrospective reports from such young children were appropriate, whereas the defense claimed that the interviewing and videotaping procedures were inept. (5) When the trial ended in January of 1990, several jurors reported that they believed some of the children had in fact been molested but that the state had failed to prove the identity of the perpetra tor(s). (6) This three-year trial--the longest-running criminal trial in the history of the United States--cost taxpayers between thirteen and fifteen million dollars, produced no convictions, and destroyed the lives of many individuals connected to the case. (7) In the end, it was not possible to determine whether the reports provided by the children interviewed were accurate. Research completed since the McMartin trial shows that the skill of the interviewer directly influences whether a child relates a true memory, discusses a false belief, affirms details suggested by others, embellishes fantasies, or provides no information at all. (8) For example, Sena Garven and colleagues demonstrated that the coercive techniques used by interviewers in the McMartin case elicited substantially more false allegations from children than did simple suggestive questions. (9) This finding is particularly important given the fact that suggestive questions have long been known to have a negative impact on the quality of children's reports. (10) When exposed to the \"McMartin techniques\" for less than five minutes, children in the study conducted by Garven and colleagues showed error rates of nearly sixty percent. (11) Moreover, children subjected to social influence techniques became more acquiescent as the interview proceeded. (12) As these findings demonstrate, the specific techniques employed by an interviewer have a direct effect on the quality of the report obtained, a conclusion that has been heeded in recent appellate court opinions. (13) For example, in State v. Michaels, the New Jersey Supreme Court considered whether the state's interview techniques in the case had been \"so coercive or suggestive that they had a capacity to distort substantially the children's recollections of actual events and thus compromise the reliability of the children's statements and testimony based on their recollections.\" (14) An amicus b","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"23 1","pages":"149-178"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85285325","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Robert P. Mosteller (*) I Introduction The purpose of this symposium is to examine the treatment of children as victims and witnesses in criminal trials, most frequently involving sexual abuse, over the last quarter of the twentieth century and, from that experience, to draw lessons. In this essay, I examine what we have learned about the hearsay exception for "statements for purposes of medical diagnosis or treatment." (1) Earlier, I studied this exception as applied in child sexual abuse prosecutions and found it being stretched beyond the bounds of its theoretical justification. (2) In this essay, I reexamine our national experience with the exception over the past decade and find both a maturation of the exception and at least a partial disintegration. Briefly, the hearsay exception admits statements made by a person for the purpose of either receiving treatment or allowing a doctor to diagnose without any expectation of treatment. (3) The statements may concern the individual's present symptoms, medical history, or the general character of the condition or injury that prompted the medical visit. To be admissible, the statements must be "reasonably pertinent to diagnosis or treatment," apparently from the perspective of either the declarant or the medical expert. Although central to the exception, no definition of the term "medical" is provided in the rule itself or in the accompanying commentary. Finally, the availability or unavailability of the person who made the statement is irrelevant to admissibility. The exception is applied in a relatively straightforward and uncontroversial manner in typical civil cases involving accidents, injuries, sickness, and treatment. Its use is far more debatable as applied in child sexual abuse cases when one of the key issues is whether a child's statements describing sexual abuse, particularly statements identifying the abuser, are admissible. To illustrate how the use of the exception can, in my judgment, be very troubling, consider the following hypothetical case: A four-year-old female child, in the care of a single mother and her current live-in boyfriend, is found by social workers to be malnourished and poorly clothed. She is also apparently emotionally withdrawn. A physical examination reveals irritation in the genital area that is suggestive of sexual abuse several days earlier, but could also be fully explained in other ways. When asked by the examining pediatrician about her genital area, the child responds with very little information and the best that can be determined is that "it hurt." Because of the conditions of her care, the child is temporarily taken from her mother's custody. While in emergency care, the child is interviewed several times by social workers trying to determine whether sexual abuse occurred. She provides no additional information that would suggest sexual abuse. The interviews are not recorded. Investigators continue to suspect abuse because of an unproven but reported in
{"title":"The Maturation and Disintegration of the Hearsay Exception for Statements for Medical Examination in Child Sexual Abuse Cases","authors":"Robert P. Mosteller","doi":"10.2307/1192366","DOIUrl":"https://doi.org/10.2307/1192366","url":null,"abstract":"Robert P. Mosteller (*) I Introduction The purpose of this symposium is to examine the treatment of children as victims and witnesses in criminal trials, most frequently involving sexual abuse, over the last quarter of the twentieth century and, from that experience, to draw lessons. In this essay, I examine what we have learned about the hearsay exception for \"statements for purposes of medical diagnosis or treatment.\" (1) Earlier, I studied this exception as applied in child sexual abuse prosecutions and found it being stretched beyond the bounds of its theoretical justification. (2) In this essay, I reexamine our national experience with the exception over the past decade and find both a maturation of the exception and at least a partial disintegration. Briefly, the hearsay exception admits statements made by a person for the purpose of either receiving treatment or allowing a doctor to diagnose without any expectation of treatment. (3) The statements may concern the individual's present symptoms, medical history, or the general character of the condition or injury that prompted the medical visit. To be admissible, the statements must be \"reasonably pertinent to diagnosis or treatment,\" apparently from the perspective of either the declarant or the medical expert. Although central to the exception, no definition of the term \"medical\" is provided in the rule itself or in the accompanying commentary. Finally, the availability or unavailability of the person who made the statement is irrelevant to admissibility. The exception is applied in a relatively straightforward and uncontroversial manner in typical civil cases involving accidents, injuries, sickness, and treatment. Its use is far more debatable as applied in child sexual abuse cases when one of the key issues is whether a child's statements describing sexual abuse, particularly statements identifying the abuser, are admissible. To illustrate how the use of the exception can, in my judgment, be very troubling, consider the following hypothetical case: A four-year-old female child, in the care of a single mother and her current live-in boyfriend, is found by social workers to be malnourished and poorly clothed. She is also apparently emotionally withdrawn. A physical examination reveals irritation in the genital area that is suggestive of sexual abuse several days earlier, but could also be fully explained in other ways. When asked by the examining pediatrician about her genital area, the child responds with very little information and the best that can be determined is that \"it hurt.\" Because of the conditions of her care, the child is temporarily taken from her mother's custody. While in emergency care, the child is interviewed several times by social workers trying to determine whether sexual abuse occurred. She provides no additional information that would suggest sexual abuse. The interviews are not recorded. Investigators continue to suspect abuse because of an unproven but reported in","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"66 1","pages":"47-95"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90761554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Since the early 1990s, policy analysts seeking important opportunities for reform in the Medicare program have looked at the experience of private markets and managed care in the private sector. Managed care organizations (“MCOs”), in general, and health maintenance organizations (“HMOs”), in particular, seem to have hit the wall in recent years in their ability to contain costs. They have experienced a public backlash against many of their policies and procedures, resulting in marketplace, legislative, and legal reactions that have altered their operations. Nevertheless, many policy analysts continue to look to managed care and competition among private health plans as the bases for structural reform of Medicare. Proponents of market forces in health care often advocate both managed care and managed competition, but, although related, the concepts are quite different. For purposes of this discussion, we apply the term “managed care” to supply-side interventions meant to affect directly the efficiency and quality of health services delivery. In contrast, “managed competition” attempts to alter individuals’ demand for care among competing private insurers, thereby affecting provider behavior only indirectly.
{"title":"Using Managed Care Tools in Traditional Medicare — Should We? Could We?","authors":"R. Berenson, D. Harris","doi":"10.2307/1192282","DOIUrl":"https://doi.org/10.2307/1192282","url":null,"abstract":"Since the early 1990s, policy analysts seeking important opportunities for reform in the Medicare program have looked at the experience of private markets and managed care in the private sector. Managed care organizations (“MCOs”), in general, and health maintenance organizations (“HMOs”), in particular, seem to have hit the wall in recent years in their ability to contain costs. They have experienced a public backlash against many of their policies and procedures, resulting in marketplace, legislative, and legal reactions that have altered their operations. Nevertheless, many policy analysts continue to look to managed care and competition among private health plans as the bases for structural reform of Medicare. Proponents of market forces in health care often advocate both managed care and managed competition, but, although related, the concepts are quite different. For purposes of this discussion, we apply the term “managed care” to supply-side interventions meant to affect directly the efficiency and quality of health services delivery. In contrast, “managed competition” attempts to alter individuals’ demand for care among competing private insurers, thereby affecting provider behavior only indirectly.","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"95 1","pages":"139-168"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90440621","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Dorothy F. Marsil (*) Jean Montoya (**) David Ross (***) Louise Graham (****) I INTRODUCTION The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child. Another concern is that this trauma may impair children's memory performance and their willingness to disclose the truth. In response to these concerns, child witness innovations proliferated throughout the United States in the 1980s and 1990s. (1) Among the innovations were: placing a screen between child witnesses and the defendant during children's testimony; (2) transmitting children's testimony into the courtroom by closed-circuit television; (3) and admitting children's otherwise inadmissible hearsay, (4) including children's videotaped interviews. (5) These innovations spawned a fair amount of appellate litigation regarding their constitutionality . Much of the litigation focused on whether a given innovation violated the Confrontation Clause, (6) but questions about due process arose as well. Court decisions regarding the constitutionality of child witness innovations rest on a number of assumptions that are subject to empirical testing. This article examines many of these assumptions and evaluates whether they are supported by social science evidence. Part II of the article examines the use of shielding procedures in child sexual abuse prosecutions. It begins by exploring the Supreme Court's analysis of state laws providing protection by shielding the child witness from the defendant. Next, it explores various questions: Do child witnesses need protection from confrontational stress? Does shielding prejudice the defendant? Does it impact juror perception of the proceedings' fairness? Does shielding impact juror perception of the child witness? How reliable is children's shielded testimony? Does shielding impair juror ability to detect deception in the child witness? Part III examines the use of hearsay testimony in child sexual abuse prosecutions. As with Part II, it begins by painting a picture of the legal landscape. Specifically, it considers the evidentiary and constitutional implications of using hearsay when children are witnesses. Part III then addresses various questions: Does admitting hearsay testimony protect the child witness? Does admitting hearsay testimony prejudice the defendant? How reliable is hearsay testimony offered in trials involving child witnesses? How accurate are the hearsay witnesses? Are they able to reconstruct details of their out-of-court exchange with the child witness? Does the eyewitness report deteriorate as it is transmitted down the hearsay chain from the child to the hearsay witness? Part IV concludes the article. It highlights the insights gained from
{"title":"Child Witness Policy: Law Interfacing with Social Science","authors":"D. Marsil, Jean R. Montoya, D. Ross, L. Graham","doi":"10.2307/1192371","DOIUrl":"https://doi.org/10.2307/1192371","url":null,"abstract":"Dorothy F. Marsil (*) Jean Montoya (**) David Ross (***) Louise Graham (****) I INTRODUCTION The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child. Another concern is that this trauma may impair children's memory performance and their willingness to disclose the truth. In response to these concerns, child witness innovations proliferated throughout the United States in the 1980s and 1990s. (1) Among the innovations were: placing a screen between child witnesses and the defendant during children's testimony; (2) transmitting children's testimony into the courtroom by closed-circuit television; (3) and admitting children's otherwise inadmissible hearsay, (4) including children's videotaped interviews. (5) These innovations spawned a fair amount of appellate litigation regarding their constitutionality . Much of the litigation focused on whether a given innovation violated the Confrontation Clause, (6) but questions about due process arose as well. Court decisions regarding the constitutionality of child witness innovations rest on a number of assumptions that are subject to empirical testing. This article examines many of these assumptions and evaluates whether they are supported by social science evidence. Part II of the article examines the use of shielding procedures in child sexual abuse prosecutions. It begins by exploring the Supreme Court's analysis of state laws providing protection by shielding the child witness from the defendant. Next, it explores various questions: Do child witnesses need protection from confrontational stress? Does shielding prejudice the defendant? Does it impact juror perception of the proceedings' fairness? Does shielding impact juror perception of the child witness? How reliable is children's shielded testimony? Does shielding impair juror ability to detect deception in the child witness? Part III examines the use of hearsay testimony in child sexual abuse prosecutions. As with Part II, it begins by painting a picture of the legal landscape. Specifically, it considers the evidentiary and constitutional implications of using hearsay when children are witnesses. Part III then addresses various questions: Does admitting hearsay testimony protect the child witness? Does admitting hearsay testimony prejudice the defendant? How reliable is hearsay testimony offered in trials involving child witnesses? How accurate are the hearsay witnesses? Are they able to reconstruct details of their out-of-court exchange with the child witness? Does the eyewitness report deteriorate as it is transmitted down the hearsay chain from the child to the hearsay witness? Part IV concludes the article. It highlights the insights gained from ","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"59 1","pages":"209-241"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80376338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
John E.B. Myers (*) Ingrid Cordon (**) Simona Ghetti (***) Gail S. Goodman (****) I INTRODUCTION Exceptions to the hearsay rule grew out of intuitive beliefs about human nature. (1) Thus, dying declarations were thought to be reliable because dying declarants hesitate to meet their Maker with a lie upon their lips. (2) Excited utterances are reliable because traumatic stress is believed to still the capacity to lie. Statements to doctors are trustworthy because patients are believed to have an incentive to tell the truth to the doctor. Psychological science based on empirical study of human behavior played no role in the origin of most hearsay exceptions. The exceptions, after all, came into being long before William James and Wilhem Wundt established their laboratories in 1875 and 1879. (3) Today, psychological science has made tremendous progress, and it is appropriate to ask whether modern psychology supports or undermines the intuitive foundations of hearsay exceptions. This paper explores this issue by examining three exceptions: excited utterances, statements for purposes of medical diagnosis or treatment, and the residual hearsay exception. These selections are appropriate because the focus is child declarants, and these exceptions play key roles in child abuse litigation. II THE EXCITED UTTERANCE EXCEPTION The origins of the excited utterance exception can be traced to the eighteenth century. (4) The exception is invoked frequently in child abuse litigation. (5) The exception is codified in Rule 803(2) of the Federal Rules of Evidence, which provides that the hearsay rule does not exclude statements "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." (6) The primary rationale for the exception is that statements are trustworthy when made shortly following a startling event and while the declarant remains affected by the stress caused by the event. Traumatic stress is thought to lower the probability that statements are a product of conscious fabrication. (7) The excited utterance exception has three requirements. First, there must be an exciting event. Second, the out-of-court statement must relate to the event. Third, the statement must be made while the declarant is under the stress of excitement induced by the event. Courts consider several factors to determine whether hearsay statements were made under the stress of excitement caused by a startling event. We discuss these factors below, employing a two-step process. We begin by outlining legal principles. The legal analysis will then be followed by relevant psychological principles. We conclude the discussion of excited utterances by grappling with the fundamental question: Does traumatic stress still the capacity to lie? Some of the legal factors involved in this determination include: Spontaneity. For many courts, spontaneity is the most important factor in determining whether a statement was a pr
{"title":"Hearsay Exceptions: Adjusting the Ratio of Intuition to Psychological Science","authors":"J. Myers, I. Cordón, S. Ghetti, G. Goodman","doi":"10.2307/1192365","DOIUrl":"https://doi.org/10.2307/1192365","url":null,"abstract":"John E.B. Myers (*) Ingrid Cordon (**) Simona Ghetti (***) Gail S. Goodman (****) I INTRODUCTION Exceptions to the hearsay rule grew out of intuitive beliefs about human nature. (1) Thus, dying declarations were thought to be reliable because dying declarants hesitate to meet their Maker with a lie upon their lips. (2) Excited utterances are reliable because traumatic stress is believed to still the capacity to lie. Statements to doctors are trustworthy because patients are believed to have an incentive to tell the truth to the doctor. Psychological science based on empirical study of human behavior played no role in the origin of most hearsay exceptions. The exceptions, after all, came into being long before William James and Wilhem Wundt established their laboratories in 1875 and 1879. (3) Today, psychological science has made tremendous progress, and it is appropriate to ask whether modern psychology supports or undermines the intuitive foundations of hearsay exceptions. This paper explores this issue by examining three exceptions: excited utterances, statements for purposes of medical diagnosis or treatment, and the residual hearsay exception. These selections are appropriate because the focus is child declarants, and these exceptions play key roles in child abuse litigation. II THE EXCITED UTTERANCE EXCEPTION The origins of the excited utterance exception can be traced to the eighteenth century. (4) The exception is invoked frequently in child abuse litigation. (5) The exception is codified in Rule 803(2) of the Federal Rules of Evidence, which provides that the hearsay rule does not exclude statements \"relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\" (6) The primary rationale for the exception is that statements are trustworthy when made shortly following a startling event and while the declarant remains affected by the stress caused by the event. Traumatic stress is thought to lower the probability that statements are a product of conscious fabrication. (7) The excited utterance exception has three requirements. First, there must be an exciting event. Second, the out-of-court statement must relate to the event. Third, the statement must be made while the declarant is under the stress of excitement induced by the event. Courts consider several factors to determine whether hearsay statements were made under the stress of excitement caused by a startling event. We discuss these factors below, employing a two-step process. We begin by outlining legal principles. The legal analysis will then be followed by relevant psychological principles. We conclude the discussion of excited utterances by grappling with the fundamental question: Does traumatic stress still the capacity to lie? Some of the legal factors involved in this determination include: Spontaneity. For many courts, spontaneity is the most important factor in determining whether a statement was a pr","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"34 1","pages":"3-46"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80684394","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Amye R. Warren (*) Dorothy F. Marsil (**) I INTRODUCTION After more than two decades of continuous contemporary research on the child as a witness in legal proceedings, a great deal is known about children's eyewitness memory and suggestibility. Excellent reviews of this research are available, (1) and their summaries and conclusions will not be reiterated here. Instead, this article will focus on six areas representing some of the most intractable problems that will require further attention from scientists and practitioners alike. This list of issues is selective and somewhat idiosyncratic, but should serve to illustrate why the current understanding of children's suggestibility is far from complete. Research on each issue will be highlighted, concentrating primarily on studies published or presented in the past ten years. II Six REMAINING ISSUES A. Suggestibility is Not Limited to Preschool Children In the past ten years, research on children's capacities as witnesses has focused heavily on preschoolers, (2) who are disproportionately susceptible to suggestion. (3) The focus on preschoolers was based on both applied and theoretical grounds. For example, investigations in the McMartin Preschool case (4) and State v. Michaels (5) featured particularly problematic interviews with large numbers of very young children in day-care settings. Knowledge of cognitive development principles led child witness researchers to predict that preschoolers' relative cognitive limitations could lead to greater susceptibility to suggestive influences and, in turn, to a variety of problems for their interviewers. For example, Nancy Perry and her colleagues demonstrated that preschoolers have difficulty determining whether they really understand complex questions and frequently inaccurately answer questions that they do not understand. (6) Although the research attention devoted to preschoolers was certainly warranted, it has led to a relative neglect of the equally important population of older children. This trend, however, appears to be changing. In recent studies, researchers are increasingly including older children. (7) The findings indicate that suggestibility generally declines over the school years but that even adolescents can be significantly more suggestible than adults. (8) On the other hand, some studies demonstrate that, under certain conditions, older children and adults can be more suggestible than younger children. (9) The following sections briefly review six studies that included children older than preschoolers. Jennifer Ackil and Maria Zaragoza examined the suggestibility of first graders, third graders, fifth graders, and college students. (10) The subjects viewed a brief video and then heard an experimenter read a summary of the video that included some misleading information. (11) Either immediately afterwards or one week later, participants were given memory tests. (12) Evidence of suggestibility was found for all age groups, but first grad
{"title":"Why Children’s Suggestibility Remains a Serious Concern","authors":"Amye Warren, D. Marsil","doi":"10.2307/1192368","DOIUrl":"https://doi.org/10.2307/1192368","url":null,"abstract":"Amye R. Warren (*) Dorothy F. Marsil (**) I INTRODUCTION After more than two decades of continuous contemporary research on the child as a witness in legal proceedings, a great deal is known about children's eyewitness memory and suggestibility. Excellent reviews of this research are available, (1) and their summaries and conclusions will not be reiterated here. Instead, this article will focus on six areas representing some of the most intractable problems that will require further attention from scientists and practitioners alike. This list of issues is selective and somewhat idiosyncratic, but should serve to illustrate why the current understanding of children's suggestibility is far from complete. Research on each issue will be highlighted, concentrating primarily on studies published or presented in the past ten years. II Six REMAINING ISSUES A. Suggestibility is Not Limited to Preschool Children In the past ten years, research on children's capacities as witnesses has focused heavily on preschoolers, (2) who are disproportionately susceptible to suggestion. (3) The focus on preschoolers was based on both applied and theoretical grounds. For example, investigations in the McMartin Preschool case (4) and State v. Michaels (5) featured particularly problematic interviews with large numbers of very young children in day-care settings. Knowledge of cognitive development principles led child witness researchers to predict that preschoolers' relative cognitive limitations could lead to greater susceptibility to suggestive influences and, in turn, to a variety of problems for their interviewers. For example, Nancy Perry and her colleagues demonstrated that preschoolers have difficulty determining whether they really understand complex questions and frequently inaccurately answer questions that they do not understand. (6) Although the research attention devoted to preschoolers was certainly warranted, it has led to a relative neglect of the equally important population of older children. This trend, however, appears to be changing. In recent studies, researchers are increasingly including older children. (7) The findings indicate that suggestibility generally declines over the school years but that even adolescents can be significantly more suggestible than adults. (8) On the other hand, some studies demonstrate that, under certain conditions, older children and adults can be more suggestible than younger children. (9) The following sections briefly review six studies that included children older than preschoolers. Jennifer Ackil and Maria Zaragoza examined the suggestibility of first graders, third graders, fifth graders, and college students. (10) The subjects viewed a brief video and then heard an experimenter read a summary of the video that included some misleading information. (11) Either immediately afterwards or one week later, participants were given memory tests. (12) Evidence of suggestibility was found for all age groups, but first grad","PeriodicalId":39484,"journal":{"name":"Law and Contemporary Problems","volume":"199 1","pages":"127-148"},"PeriodicalIF":0.0,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89305809","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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