CHERYL AMIRAULT LeFAVE
Middlesex. May 6, 1999 - August 18, 1999
Present: Wilkins, C.J., Abrams, Lynch, Greaney, Marshall, & Ireland, JJ.
Constitutional Law, Confrontation of witnesses,
Assistance of counsel, Waiver of constitutional rights. Practice, Criminal, New
Indictments found and returned in the Superior Court
Department on January 21, 1985.
Following the decision of this court, 424 Mass. 618 (1997),
motions for a new trial, filed on April 29, 1997, and October 16, 1997, respectively, were
heard by Isaac Borenstein, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Catherine E. Sullivan, Assistant District Attorney (Lynn
C. Rooney, David W. Cunis, Abra C. Siegel, & Amy E. Bannes, Assistant District
Attorneys, with her) for the Commonwealth.
Daniel R. Williams, of New York, &
Sultan (Catherine J. Hinton with them) for the defendant.
The following submitted briefs for amici curiae:
Kevin S. Nixon for Scientists for the Accurate
Communication of Data.
Wendy J. Murphy for Leadership Council on Mental
Health, Justice, and the Media.
Sherry A. Quirk for One Voice/The American Coalition
for Abuse Awareness.
We deal once again with consequences of the multiple convictions of
Cheryl Amirault LeFave of rape of a child under sixteen years and indecent assault and
battery on a child under fourteen years. In Commonwealth v. LeFave,
407 Mass. 927 (1990), we affirmed those convictions, and in Commonwealth v.
415 Mass. 112 (1993), we vacated the trial judge's order revising the sentences that he
In 1995, a judge, not the trial judge (who had retired), allowed the
defendant's first motion for a new trial. See Mass. R. Crim. P. 30, 378 Mass. 900 (1979).
That motion alleged that she had been deprived of her right to "face-to-face"
confrontations with the child witnesses against her, guaranteed by art. 12 of the
Massachusetts Declaration of Rights. In Commonwealth v. Amirault, 424 Mass.
618 (1997), we agreed that the seating arrangement for the child witnesses violated the
defendant's confrontation rights under art. 12. Id. at 632. We nevertheless vacated
the order allowing the defendant's motion for a new trial and reinstated her original
convictions. Id. at 653. We concluded that the defendant had waived the
confrontation issue by not raising it earlier. Id. at 642-644. The art. 12
confrontation issue was clearly identified by the time the defendant's appeal from her
convictions was heard, but it was not argued, and thus it was waived. Id. at
643-644. Indeed, before trial, a judge twice adverted to the possibility of a violation of
the right to a face-to-face confrontation in the arrangement proposed for the seating of
child witnesses, but in challenging the arrangement defense counsel disavowed reliance on
a right to confrontation. Id. at 623, 642 n.17.
The case is again before us, this time on our allowance of the
Commonwealth's application for direct appellate review, because a judge in the Superior
Court, in two separate rulings on independent grounds, has allowed the defendant's second
and third motions for a new trial. The second motion for a new trial revisits the
confrontation issue, asserting that counsel was ineffective in not raising the
confrontation issue on direct appeal. The third motion for a new trial is based on a claim
that newly discovered "scientific evidence" demonstrates that "due to the
manner in which the allegations of child sexual abuse were investigated," evidence
presented against the defendant was "wholly unreliable." We shall discuss in
turn each order allowing the defendant a new trial and shall vacate both orders.
The Second Motion for a New Trial
The defendant's second motion for a new trial is based on the same
alleged trial error on which her first motion was based: a claimed violation of her art.
12 right of confrontation. In the second motion, however, she raises the issue vicariously
as a claim that she is entitled to a new trial because her counsel in her appeal from her
convictions was ineffective, in a constitutional sense, in not arguing the confrontation
issue. A major weakness in the defendant's contention is that the ineffectiveness of the
defendant's appellate counsel, who were also her trial counsel, could have been presented
in her first motion for a new trial.
Her counsel on that first new trial motion were well aware of the ineffectiveness of
counsel argument and indeed alluded in her brief to this court that her original defense
counsel may have been ineffective. See Commonwealth v. Amirault, 424 Mass.
at 645. On the record then before us, we commented on but did not rule on the possible
ineffectiveness of original defense counsel at the trial. We did not discuss the
possible ineffectiveness of appellate counsel, but it is clear that the defendant had the
opportunity to argue the issue as part of her first motion for a new trial.
The defendant waived the claim of appellate ineffective assistance of
counsel because she had a fair opportunity to raise the denial of her confrontation right
and "may not belatedly invoke that right to reopen a proceeding that has already run
its course." Id. at 639. "[T]he concern for finality demands that a
defendant present every claim and argument he might fairly have had available to him the
first time around." Id. Just as the defendant waived her right to challenge
the denial of her art. 12 right to confront child witnesses face to face by not arguing
the issue on appeal from her convictions, she waived her right to challenge the
ineffectiveness of her counsel on appeal by not pressing the point in presenting her first
motion for a new trial. See id. at 644.
The motion judge gave inadequate consideration to the question whether
the defendant had waived the ineffective assistance of counsel claim by failing to argue
the confrontation issue in connection with her first motion for a new trial. He stated
that "the ineffective assistance of counsel argument was not presented as part of the
first new trial motion." That is, as we have pointed out, not the test for
determining waiver. The ineffective assistance issue was available when the first motion
for a new trial was presented. The issue was certainly open to be argued, and the motion
judge's conclusion that it was not "ripe" for determination is meritless. As
noted already, the defendant identified the issue in her brief prior to our 1997
The judge was not entitled, under Mass. R. Crim. P. 30 (b) or
otherwise, to grant a new trial without considering and deciding the consequences of the
fact that the defendant had waived the ineffective assistance issue. Commonwealth
v. Amirault, 424 Mass. at 640. The power to give relief when a waived issue is
"raised for the first time by a [postconviction] motion for a new trial should be
exercised only in those extraordinary cases where, upon sober reflection, it appears that
a miscarriage of justice might otherwise result." Commonwealth v.
417 Mass. 619, 626 (1994), quoting Commonwealth v. Harrington, 379 Mass.
446, 449 (1980). See Commonwealth v. Watson, 409 Mass. 110, 112 (1991);
v. Deeran, 397 Mass. 136, 139 (1986); K.B. Smith, Criminal Practice and
Procedure ?? 2070, 2084 (Supp. 1999) ("the rule of waiver applies equally to
constitutional claims which could have been raised, but were not raised on direct appeal
or in a prior motion for a new trial").
The only basis on which the motion judge could properly have dealt with
the waived ineffective assistance of counsel issue was on the standard of a substantial
risk of a miscarriage of justice. See Commonwealth v. Amirault, 424 Mass. at
646; Commonwealth v. Curtis, supra at 626. We considered the waived
confrontation issue in the appeal from the allowance of the first motion for a new trial
and concluded that the defendant had not met her burden of showing that there was a
substantial risk of a miscarriage of justice in the circumstances of the child witnesses'
testimony. Commonwealth v. Amirault, 424 Mass. at 653. The fact that the
defendant has grounded her substantial risk of a miscarriage of justice claim on the
ineffectiveness of appellate counsel in failing to argue the confrontation issue in the
direct appeal from her convictions adds nothing to her position.
The results of the court's recent efforts to define a substantial risk
of a miscarriage of justice do not alter the conclusion expressed in Commonwealth
v. Amirault, supra at 645-651, that the defendant did not meet her burden of
showing that there was a substantial risk of a miscarriage of justice. See
v. Alphas, ante 8, 13 (1999). This court's traditional treatment of the
substantial risk issue calls for us to decide if we have a serious doubt whether the
result of the trial might have been different had the error not been made.
substantial risk of miscarriage of justice if court persuaded that error did not
materially influence guilty verdict).
That standard was the principal consideration in Justice Cutter's seminal opinion
advancing the test of a substantial risk of a miscarriage of justice. Commonwealth
v. Freeman, 352 Mass. 556, 563-564 (1967). We applied the standard in
v. Amirault, 424 Mass. at 647, where we said that there would be a substantial risk
of a miscarriage of justice if we were left "with a serious doubt that the
defendants' guilt had been fairly adjudicated."
We repeat what we said in
Commonwealth v. Amirault, 424
Mass. at 653: "[A]ll of the child witnesses in the two trials testified in the
physical presence of the defendants, testified under oath, were subject to
cross-examination, and sat in front of the jury who could observe their demeanor and
assess the weight and credibility of their testimonies. Moreover, there were several
actual face-to-face encounters with the child witnesses throughout the trial. . . . We
conclude that in these circumstances, the defendants have not met their burden of showing
there was a substantial risk of a miscarriage of justice." (Citation omitted.) We are
additionally warranted in our conclusion that the seating arrangement for the child
witnesses was not particularly significant by the decision of experienced defense counsel
not to challenge that arrangement on art. 12 grounds, even when the judge inquired whether
he wished to do so. Commonwealth v. Amirault, supra at 626, 645 n.18.
The forceful, one might say enthusiastic, indorsement of an interest in
finality and the application of waiver in Commonwealth v. Amirault,
at 639-644, apparently struck some as a radical and unwelcome departure from precedent. In
fact, the Amirault opinion made no significant change in our treatment of
postappeal motions for a new trial. It articulated society's justified interest in
finality that has long been implicit, and sometimes explicit, in our announcements that
any late-arriving issue will prevail only if the issue presents a substantial risk
of a miscarriage of justice. The defendant's second motion for a new trial should have
The Third Motion for a New Trial
The defendant's third motion for a new trial is based on a claim of
newly discovered evidence. A defendant
seeking a new trial on that ground must establish both that the evidence is newly
discovered and that it casts real doubt on the justice of the conviction.
v. Grace, 397 Mass. 303, 305 (1986). Newly discovered evidence is evidence that was
unavailable at the time of trial and could not have been discovered with reasonable
diligence. Commonwealth v. Moore, 408 Mass. 117, 126 (1990).
v. Boston Elev. Ry., 312 Mass. 495, 497 (1942).
In reviewing an order granting or denying a motion for a new trial, we
accord deference to the views of a motion judge who was also the trial judge.
v. Grace, supra at 307. If, however, as here, "the motion judge did not
preside at trial, we defer to that judge's assessment of the credibility of witnesses at
the hearing on the new trial motion, but we regard ourselves in as good a position as the
motion judge to assess the trial record." Id.
The defendant claims that the testimony of Dr. Maggie Bruck, who has a
doctorate in experimental psychology, constitutes newly discovered evidence that explains
how children can speak of disturbing sexual acts that they did not experience. The judge
found that there were no studies available at the time of trial that identified the impact
of suggestive interviewing techniques on the reliability of the testimony of the child
witnesses. He, therefore, determined that the studies on which Dr. Bruck relies were newly
discovered. The judge also found that without Dr. Bruck's testimony the jury could not
have understood the dangers of suggestive interviewing procedures. He concluded that had
Dr. Bruck's testimony been available at trial, there is a substantial risk that the jury
would have reached different verdicts.
This conclusion has meaning for the purposes of the defendant's new
trial motion only if the proffered evidence was in fact newly discovered. Perceived
deficiencies in the Commonwealth's case have no role to play in deciding whether the
evidence was new. Thus, much of the judge's thorough and critical analysis of the
Commonwealth's evidence at trial, although relevant to other issues that he considered, is
not relevant to the question whether, for the purposes of Mass. R. Crim. P. 30, Dr.
Bruck's expert testimony was new. We conclude that it was not.
Dr. Bruck's testimony was, of course, new in the sense that she did not
testify at the defendant's trial. Similarly, studies to which Dr. Bruck referred were new
in the sense that they were published after the trial. Her testimony, based on these
studies, does not differ in kind, however, from the testimony presented at trial. The
evidence available at the time of the defendant's trial included extensive opinion
evidence on the very subject of improper interviewing practices that the defendant argued
made unreliable the incriminating testimony of the child witnesses.
The motion judge made a significant error in concluding that Dr. Daniel
Schuman was not permitted to testify at the defendant's trial regarding the unreliability
of testimony based on improper interviewing practices. The judge may have been led to that
conclusion because out-of-State counsel for the defendant, in presenting evidence in
support of the motion, twice erroneously insisted that Dr. Schuman had not been allowed to
testify before the jury. Because the
judge erroneously determined that Dr. Schuman's testimony had been excluded, he
erroneously concluded that his testimony was not available at the time of the defendant's
trial. Moreover, the judge inexplicably does not mention or appear to consider the expert
testimony of Dr. Sherry L. Skidmore and Dr. William D. Erickson which the defendant
presented at trial. The judge's
misapprehension seems to have caused him to conclude that "[w]hile this Court agrees
with the general proposition that 'more' research may not present sufficient grounds for a
new trial, this is not such a case." The judge concluded that, at the time of the
defendant's trial, there was an unanswered question: "How could children come to
speak of disturbing sexual acts if they did not suffer them?" The answer to this
question was available for the defendant to advance at her trial. The defendant presented
evidence at her trial tending to show that the child witnesses' testimony was unreliable
as a result of improper interviewing techniques. The jury nevertheless believed the child
witnesses, despite evidence of the use of improper interviewing techniques and the
opinions of the defendant's experts.
We first set forth opinions that Dr. Schuman gave in the pretrial
proceedings. He testified that it was obvious that the interviewing skill and comportment
of the interviewer was "a critical variable." The offering of a reward to a
child for telling the interviewer what he or she wants to hear is inappropriate. Depriving
a child of something unless the child gives a particular account is highly coercive.
Inducements are improper and render the results invalid. Children who are pressured may
pick up the fact and often will fit themselves into the "set of social
expectations." Authority figures and persons in uniforms create an aura of pressure.
A biased interviewer who gives positive reinforcement to answers that are desired or
expected will cause a child witness to expand on those answers. The child may conform to
the expectations of what the child is supposed to say and becomes increasingly convinced
of the accuracy of what he or she has said. Repetitive interviews and multiple
interviewers of a child affect the child's capacity to report with neutrality. Interviews
in an emotionally charged atmosphere or by someone who is emotionally invested in the
outcome may affect the child's statements. It is a generally accepted understanding in
psychiatry that circumstances that have a meaningful impact on the children alter
children's memory, conviction, and belief.
At the defendant's trial, two experts, Dr. Skidmore and Dr. Erickson,
testified on her behalf. They noted the importance of a neutral interviewer and the need
to avoid adult influences to which children are particularly susceptible. Each also
identified and criticized many of the same interview techniques described by Dr. Bruck in
the defendant's presentation in support of her third motion for a new trial. Interviewers
should use open-ended rather than leading questions to ensure that the information comes
only from the child. Repetitive questions pressure a child to give different answers. Dr.
Skidmore testified that interviews of a child should not be held in an authoritative
place, such as a principal's office or a police department, or conducted by
authoritative-looking interviewers. Both Dr. Erickson and Dr. Skidmore testified that
children frequently mix fact and fiction and that they can fantasize about sexual contact.
Each commented on an interviewer's improper uses of anatomically correct dolls which was
apparent in videotaped interviews of child witnesses shown to the jury. Both experts
testified to the negative effects of referring to statements of a child's peers because
the technique could shape the response. There was expert opinion evidence available that
the impact of the use of multiple improper interview techniques would be cumulative.
In presenting Dr. Bruck's testimony, the defendant acknowledges that the
same concepts regarding interviewing techniques were presented or available at the time of
her trial. She argues, however, that Dr. Bruck's ability to discuss the consequences of
coercive interview techniques makes her testimony new. She asserts that the expert
testimony available at trial could not explain how suggestive interview techniques can
lead a child to make false allegations of sexual abuse. The defendant argues, therefore,
that Dr. Bruck's testimony is not simply "better than" the testimony offered at
trial because she would discuss recent studies that answer the question unanswerable at
trial, namely: "How could children come to speak of disturbing sexual acts if they
did not suffer them?" Dr. Bruck's opinion is that, when suggestive interviewing
techniques are used, "children may not only come to falsely report acts of sexual
abuse, but they may come to believe that they experienced the events they reported. These
children's memories may be permanently tainted by the sexualized suggestions of their
interviewers. These children can appear highly credible both to subsequent interviewers,
to family, and to jurors."
This opinion, however, does not differ significantly from the defense's
theory before and at trial. In her memorandum in support of her pretrial motion to
dismiss, the defendant stated that "repeated interviewing of young children can
induce in those children the subjective belief that things are true, when in fact they are
not." Dr. Skidmore similarly
testified at trial that children may incorporate ideas into their memory derived from
suggestive questioning and that pressure by an interviewer could modify children's
behavior as well as responses to questions. Dr. Erickson noted that interviewing
techniques may reinforce a story and fix it in a form which is repeated. In sum, the
answer provided by Dr. Bruck to the so-called unanswerable question is not remarkably
different from that presented by or available to the defendant at trial.
The defendant's allegedly new evidence lacks the characteristics
necessary to qualify as newly discovered evidence that could warrant granting a new trial.
Contrast Commonwealth v. Meggs, 30 Mass. App. Ct. 111 (1991). The important
point is that Dr. Bruck's proposed testimony was corroborative of evidence available at
the time of trial. Her evidence would have simply tended to support the opinion evidence,
available at the time of the defendant's trial, that improper investigatory techniques
could cause a child witness to state false facts. Undoubtedly, recent research has
broadened the scientific community's understanding of the effects of suggestive
questioning. We are faced, however, with the conflict between the constantly evolving
nature of science and the doctrine of finality. In weighing these competing factors along
with the interests of justice, we have concluded that expert testimony may not be
considered newly discovered for purposes of a new trial motion simply because recent
studies may lend more credibility to expert testimony that was or could have been
presented at trial. To hold otherwise would provide convicted defendants with a new trial
whenever they could find a credible expert with new research results supporting claims
that the defendant made or could have made at trial.
The orders allowing the defendant's second and third motions for a new
trial are vacated, and orders shall be entered denying both motions.
judge sentenced the defendant to concurrent terms of from eight to twenty years on three
rape convictions and concurrent terms of from eight to ten years on four indecent assault
and battery convictions.
The defendant's mother, who was convicted of similar charges, died on
September 12, 1997.
The defendant's brother Gerald was found guilty in 1986 in a separate
trial on eight indictments charging rape of a child and seven indictments charging
indecent assault and battery on a child. In Commonwealth v. Amirault, 399
Mass. 617 (1987), we affirmed an order, denying Gerald's motion for a new trial, and in
v. Amirault, 404 Mass. 221 (1989), we affirmed his convictions and our order
denying his renewed motion for a new trial. In Commonwealth v. Amirault, 424
Mass. 618, 653 (1997), we considered and affirmed the denial of Gerald's second motion for
a new trial which was based on the same ground as the defendant Cheryl Amirault's first
motion for a new trial.
addition, the judge ruled, in passing on the third motion for a new trial, that the child
witnesses' testimony was "forever tainted" and that they would not be allowed to
testify at any retrial. The judge relied on State v. Michaels, 136 N.J. 299
(1994), to rule that "the child witnesses will not be permitted to testify because
they have been subjected to very serious and repeated impermissible interviewing and
investigatory techniques and no independent evidence exists to support their claims. Thus,
their testimony has been forever rendered unreliable." In the Michaels case,
the Supreme Court of New Jersey sent the matter back for a "pretrial taint
hearing" as to whether statements and testimony elicited by improper interview
techniques nevertheless were reliable enough to warrant admission at trial.
320. Because we conclude that the defendant's second and third motions for a new trial
should have been denied, we need not discuss whether the child witnesses would be
disqualified from testifying at a new trial. The judge's statement that there was no
independent evidence to support the child witnesses' testimony discounts the child
witnesses' symptoms that were consistent with sexual abuse and the corroborating testimony
of the children's parents.
counsel on the defendant's direct appeal were also her trial counsel, the failure of
counsel to argue on direct appeal that they were ineffective at trial is not treated as a
waiver. Commonwealth v. Egardo, 426 Mass. 48, 49 (1997).
 In a
footnote, the defendant's brief stated the following:
"Surely, if the state of the law was such that trial counsel would
be expected to register a constitutional objection, then trial counsel's failure in that
regard was inexcusable and reflected incompetence. Accordingly, the defendants' federal
and state constitutional rights to effective assistance of counsel was [sic]
violated, since no rational trial strategy could account for the failure to object. See
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)."
In response to this presentation, we said:
"We do not suggest, as the defendants' new counsel invites us to
do, that the original defense counsel in these cases were ineffective. Indeed they were
experienced and mounted vigorous defenses, but the focus of their objections was
elsewhere. Furthermore, like the constitutional right of the accused to testify in his own
behalf, confrontation is not always an advantage to the accused: if the witness is firm as
he confronts the accused, this may add to his credibility; while the very upset or even
terror a child may show when confronted by the person he accuses may tell powerfully
against the accused. Experienced and competent counsel might well have concluded that it
was to the defendants' advantage to keep the emotional temperature as low as possible by
not insisting on confrontation." (Footnotes omitted.) Commonwealth v.
424 Mass. at 645.
We commented additionally that, "[i]n considering waiver, we are
entitled to consider the defense's apparent lack of interest in this issue," and that
"[i]nherent in the adversary system is the imperative that choices made by counsel
are binding on the defendant." Id. at 645 nn.18 & 19.
 The defendant
relies on Mass. R. Crim. P. 30 (c) (2), 378 Mass. 900 (1979), to argue that the
motion judge on the second motion for a new trial had discretion to permit the issue of
ineffectiveness of counsel to be examined on its merits. That rule provides that all
grounds for relief must be raised in the defendant's original or amended motion, and, if
any ground is not raised, it is waived "unless the judge in his discretion permits
[it] to be raised in a subsequent motion, or unless such grounds could not reasonably have
been raised in the original or amended motion." Under rule 30 (c) (2), the motion
judge must apply the same substantial risk of a miscarriage of justice standard that we
discuss above. A motion judge's discretion under rule 30 (c) (2) to grant relief from such
a waiver is limited if the conviction has already received appellate review. See
v. Curtis, 417 Mass. 619, 623, 626 (1994); Commonwealth v.
409 Mass. 110, 112 (1991); Commonwealth v. Harrington, 379 Mass. 446, 449
 The defendant
argues strenuously that we should grant a new trial because the art. 12 violation was not
harmless beyond a reasonable doubt, a standard used in reviewing preserved constitutional
errors. This standard of review is inapplicable, however, when a defendant has waived her
claim of error, and we review the alleged error on the substantial risk of a miscarriage
of justice standard. See Commonwealth v. Amirault, supra at 646-647;
v. Curtis, supra at 626. The standard of review that we discuss in this case
is also different from that applied in review of a denial of a new trial motion that
occurs in conjunction with (or prior to) consideration of the direct appeal from a
defendant's conviction. See Commonwealth v. Hallet, 427 Mass. 552, 554
 We shall
assume, but not decide, that the defendant should not be faulted for failing to raise the
issue in conjunction with her second motion for a new trial.
question at the pretrial hearing was whether Dr. Schuman's opinion testimony was generally
accepted and of sufficient weight under the principles of Frye v.
293 F. 1013 (D.C. Cir. 1923), so as to require the complete exclusion of the children's
judge further concluded that under Commonwealth v. Lanigan, 419 Mass. 15
(1994), Dr. Bruck's opinion would be admissible, and that her testimony would not intrude
on the province of the jury to assess the credibility of witnesses. We need not reach
these issues. The admissibility of such evidence under our Lanigan opinion remains
an open question. Compare United States v. Rouse, 111 F.3d 561, 567-573 (8th
Cir.), cert. denied, 522 U.S. 905 (1997) (holding expert opinion regarding suggestive
interviewing techniques and their effects admissible under Daubert v.
Dow Pharmaceuticals, Inc., 509 U.S. 579 ), with State v.
628 So. 2d 1116, 1127 (La. 1993) (noting that testimony based on psychodynamic theories is
of "highly questionable scientific validity" and "fails to unequivocally
pass the Daubert threshold"), and Richardson, The Problems of Applying Daubert
to Psychological Syndrome Evidence, 79 Judicature 10 (July-Aug. 1995).
 At Gerald's trial, Dr. Schuman testified that, if a parent, caretaker, or other
powerful figure on whom the child relies is fearful or angry about something, "the
child, in an effort to maintain the bond, in an effort to reach out altruistically,
becomes reassuring, compliant, and accommodating to expectations, including fearful
expectations." Dr. Schuman also noted at Gerald's trial that the tone of the
interview should be neutral, free of pressure, and anxiety.
defendant supported this proposition with several citations, including the following
"There is a myth propagated by 'abuse detectors' that 'children
don't lie about these things.' Yet there is no real evidence to back this up. On the
contrary Jean Piaget, in his monumental work, The Moral Development of Children,
showed that, until age five or six, a lie is whatever an adult says it is, notwithstanding
the often clumsy attempts by prosecutors and child service workers to establish that the
child knows the difference between truth and falsehood.
"Additionally, a child's responses can be conditioned by the
complaining parents and/or investigator's beliefs and responses (intentional and
unintentional) to what the child says or does. And, as previously mentioned, the
reinforcement the child typically gets in these interrogations is a powerful factor in
shaping its own responses and imbedding them in its conscious mind. Add repetition to
this, and it is all too easy for the child to confuse objective and subjective reality. It
is obvious that this can be tragic for the accused; it is also tragic for the developing
child who, at an unconscious level, suffers disturbance resulting from this schism."
McIver, The Case for a Therapeutic Interview in Situations of Alleged
Sexual Molestation, The Champion, 11, 12-13 (Jan.-Feb. 1986).
"It is entirely possible for otherwise ambiguous activities then to
be elaborated by the child or other reporters into genuine, truthful, but nonvalid
perceptions of abuse. A poignant emotional reality is that children in such situations are
not 'lying' but are not 'telling the truth' either in the customary or testimonial sense.
The child may have sufficient abstract concepts of right/wrong or truth/falsehood to
qualify as a competent witness in general, but in the particular matter at hand the
child may well be incapable of distinguishing an 'objective' truth from inevitable
Schuman, False Accusation of Physical and Sexual Abuse, presented at the
Annual Conference of the American Academy of Psychiatry and the Law (Oct. 1984).