Child Memory Issues in Sexual Abuse

Children have an inherent need to please their parents and authority figures. Consequently, repeatedly asking suggestive questions can elicit an affirmative response regardless of the actual reality of the past or what occurred. Children are particularly susceptible to being coerced or encouraged to “remember” a situation in the past a particular way. There are many motives for encouraging, coercing, or coaching a child to remember past circumstances in a particular way. Child sexual abuse charges can often be part of a case strategy for a divorce or a child custody battle, and consequently, there are motives to obtain full custody of the child or children as well as a financial motive for a settlement agreement. Grabel & Associates understands these delicate and nuanced issues, and if you are having a child’s testimony admitted against you, then you need expert legal representation that understands how to ask the right questions when cross-examining a child about allegations.

Michigan Supreme Court on Confabulation

Children are particularly susceptible to suggestion and having events seeded into their memories. Asking a child, a question such as, “Did John undress and touch you?” multiple times can eventually lead a child to agree, and in the future, the child might recall that John undressed and touched them regardless if it ever actually happened. The Michigan Supreme Court specifically addressed memory issues where people are in a "marked state of suggestibility" and questioned about the particular instances that were under investigation. The particular case had to do with refreshing witness recollection through hypnosis, but the general principle may be extended to persistent informal questioning of susceptible children and adolescents. The holding, in that case, was that the process of hypnosis is not a means of reliably obtaining accurate information of forgotten incidents or repressed memories, because of the potential for distortion, delusion, or fantasy. This process is called confabulation, and testimony obtained by witnesses which has been tainted by invasive questioning must be excluded in criminal cases.

This same principle may be extended to children who have trouble remembering events or details, and have been invasively questioned about the circumstances or situation. If the child is over ten years old, then they will likely be required to testify as to their recollection in court. An artful litigator can question a child about the circumstances in which they first recalled the incidents which are the subject matter of the case. These are just examples, and depending on the particular facts and circumstances of your case there are many legal, evidentiary, and factual arguments which may be made in your defense.

Understanding Hearsay, The Sixth Amendment Confrontation Clause, and Hearsay Exceptions

There is an entire body of law dedicated to what evidence may be allowed in court against a person. One of the most important rules of evidence is the prohibition against hearsay evidence under the Michigan Rules of Evidence 802. Hearsay is an out-of-court statement offered into court for the truth of the matter asserted. Put another way, hearsay statements are written or spoken statements that are offered into evidence to prove the content of that statement is true. For example, let us say that Amy Accountant stands accused of embezzling money from Bob Business owner. However, there is no actual admissible evidence that Amy stole any money from Bob, and the only evidence Bob has is a statement made by Harry Hearsay that, “Amy is probably stealing money to get her nails done.” Amy claims that no money is missing, but Bob bought a boat and went on a three week trip to Puerto Vallarta last quarter. The only evidence that Bob has against Amy is that he heard from Harry that Amy was stealing money to get her nails done.

If Bob took the stand and testified about what he would hear from Harry, then the evidence would be objected to as hearsay under MRE 802, because the law has an interest in protecting people from civil liability and criminal culpability that could result from relying on second-hand information. However, the legislature has carved out many exceptions to the prohibition against hearsay, and other specific statements have been determined to be “not hearsay.” Therefore, Harry would either need to claim an exception to hearsay or have Harry personally come into court and testify under oath. Requiring a witness to come before the court to testify and be available for cross-examination is one of the primary purposes behind the prohibition against hearsay because it helps enforce people’s sixth amendment constitutional right to confrontation. The confrontation clause of the sixth amendment grants all people the right to stand and confront their accusers and witnesses against them, and cross-examine accusers and witnesses against them in court with the help of an attorney. Consequently, since Harry is the person accusing Amy of stealing, Harry would have to come into court and testify and be cross-examined under oath.

Hearsay Exceptions Specific to Child Sexual Assault

MRE 803A is an example of a specific hearsay exception that relates to a child's statements about sexual acts. The purpose of the rule is to allow statements made by a child soon after an incident about a sexual act performed on or with the accused to be admissible without the child testifying. There are numerous things a prosecutor must do to prove the foundation of the exception before evidence can be admitted into court. One of the most critical parts of proving the foundation of this hearsay exception is that the child must have been under the age of ten when that statement was made. Additionally, the prosecutor must demonstrate that the statement was both spontaneous and made soon after the event. The purpose of these requirements is to ensure that the child was not coached, coerced, or told to make the statements as part of a conspiracy to manufacture evidence against the accused.

Refreshing a Child’s Memory if They Testify at Trial

If a child is over ten years of age, then they will likely be called as a witness to testify against the accused. Memory issues of recollection are prevalent among children, and it is not uncommon for them to be prompted or coached on how to answer questions before they take the stand to testify against the accused. Michigan Rule of Evidence 612 allows the prosecution to encourage a child to remember an event by presenting them with a writing or object to refresh the witness's memory.

A police report or therapist report containing the information the prosecution seeks to have admitted into evidence may be handed to the child before the witness answers the prosecutor’s questions. The defense counsel has the opportunity to examine all of these documents and cross-examine the witness. Therefore, an astute and prepared attorney has probing and relevant questions ready, because the purpose for why a document was created can explain motivations for the content of the document.

Why was the document prepared? What questions were asked to elicit the responses? These are just examples, but there are many ways to discredit false and fabricated reports used to attempt to direct a child's testimony.

Grabel & Associates Approach to Witness Reliability

A child’s statements may be less reliable than an adult’s recollections, and children are not only susceptible to outside influences but are eager to please adults. Therefore, it is necessary to comb through and investigate every document and investigative inquiry which is part of the record to search for inconsistencies or elements that could be used to show that a child has been coached to produce a specific answer. We will help you develop a comprehensive criminal defense approach, which will provide you with an opportunity to defend yourself against these damaging accusations. We are here to help you no matter what stage in the legal process you are in, and to develop an individualized, aggressive, and comprehensive legal defense strategy for you and your family. We are available 24 hours a day, seven days a week. Do not hesitate to contact Grabel & Associates at 1-800-883-2138 to schedule your free consultation today.