Coached, Coaxed And Coerced Children’s Testimony

The accused were said to fly in the air through a secret labyrinth of underground tunnels. They allegedly wore black robes and kidnapped children for use in their rituals.

These charges were not raised in Salem, Mass., in 1692. Nor were they part of the medieval anti-Semitism that, following the death of an English child in 1144, gave rise to a string of accusations of ritual murder and cannibalism. They were made in an American courtroom, in the 1980s, during a trial that lasted seven years and cost $15 million.

The trial, centered around the McMartin preschool in Manhattan Beach, Calif., was part of a wave of prosecutions in which daycare providers were accused of child abuse, often linked with Satanic rituals. As the charges grew in absurdity, skeptics were admonished to “believe the children.” The children, despite the lack of any physical evidence, said it was all true. They agreed that they had been forced to watch animal sacrifices, been brutally sodomized, and, in one case, been abused in a secret room by a clown.

The trials and the resulting convictions, many of which have since been reversed, were nonsense. They were a miscarriage of justice, the results of me-too prosecutors trying to get in on the latest big headlines. The daycare abuse investigations were reminiscent of the use of children’s testimony in the Soviet Union under Joseph Stalin. There, too, officials pressed children to inform on those close to them, including their parents. Those who provided significant “evidence” even received awards for their patriotism.

The only thing the so-called evidence proved was that children are willing to tell adults whatever they want to hear. In response to techniques that exploited their naive deference to authority, they gave what they thought were the right answers.

Adults implicated by children’s uncertain testimony are the most obvious victims, but children are hurt by these proceedings as well, pressed into offering testimony in cases that can end up destroying those closest to them.

We all have the right, under the Constitution, not to talk to the police if we don’t want to. We have the right to refuse consent for unwarranted searches. But, as I have written before, rights provide protection only if we understand and exercise them. Doing so can be difficult, even for adults. This is why, in the case of Miranda v. Arizona, the Supreme Court ruled that criminal suspects must explicitly be told their rights. But children, with their less developed cognitive resources, may be unable to understand and exercise their rights even if told what they are.

We need better procedural checks to protect both children and adults from coached, coaxed and coerced testimony. The Supreme Court has a chance to insist on this when it rules later this spring in the case of Camreta v. Greene, which was argued on March 1.

The case involves a child abuse investigation. Nimrod Greene, the plaintiff’s husband, was arrested on charges of molesting a 7-year-old boy, identified in court papers as F.S. After the arrest, the boy’s parents reported that they suspected Greene may also have molested his own daughters, referred to in court papers as S.G. and K.G.

In response to these allegations, a social worker, Bob Camreta, and a deputy sheriff, James Alford, visited 9-year-old S.G.’s school to investigate. They pulled the girl out of class and questioned her in a separate room for one to two hours. They did this without a warrant or parental consent. The interview was not monitored or recorded.

After the interview, Camreta concluded that S.G. had been abused. She and her sister were removed from their parents’ custody by court order and were subjected to intrusive physical examinations, which their mother was not permitted to attend. The examinations were inconclusive, and the charges involving Nimrod Greene’s daughters were eventually dropped. He pleased no contest to the separate charges involving the boy, F.S.

We cannot know with certainty what happened during the interview at S.G.’s school, since it was not recorded, but S.G. later said that she was scared and confused by the repeated questioning. She reported that, after she told Camreta her father sometimes touched her, referring to his innocent hugs and kisses:

The man started asking me if sometimes those were bad touches, and I said, no they weren’t, but he kept asking me over and over again, and I would say, no, I don’t think my dad touched me in a bad way.... For over an hour, Bob Camreta kept asking me the same questions, just in different ways, trying to get me to change my answers. Finally, I just started saying yes to whatever he said.

During another interview, after she was removed from her parents’ custody, S.G. told investigators that her earlier statements had not been true and that her father had never abused her.

The Ninth Circuit Court of Appeals found that S.G.’s rights were violated, as were her mother’s and her sister’s. Since S.G., as a minor, could not meaningfully consent to the interview, Camreta should have been required to obtain permission from her parents, who could have consented on her behalf, or to demonstrate probable cause and obtain a search warrant before conducting the in-school interview. His failure to do so, the court held, amounted to an unlawful search and seizure in violation of the Fourth Amendment.

The authorities argue that the fact that the interview occurred in a school justified proceeding without a warrant or court order, based on a “reasonable suspicion” that the children were in danger. There are legal precedents that allow school officials to conduct searches without a warrant. However, this exception is based on the “special need” to maintain discipline that exists within schools. S.G.’s case had nothing to do with maintaining school discipline. Furthermore, the social worker was accompanied by an armed police officer, rather than a school official, making it clear that the investigation was a law enforcement matter.

Despite finding that Camreta and Alford’s actions violated S.G.’s rights, the appeals court found that the officials could not be held liable personally for damages. They had “qualified immunity” because the legal rights involved were not “clearly established,” so Camreta and Alford could not have been expected to know that what they were doing was wrong. This finding is reasonable. There is no evidence that either official was doing anything other than trying to protect the Greene children in a way they reasonably believed was legal.

The Greene case case cries out for the Supreme Court to set down clear guidelines for the interrogation of children. The court, however, may be inclined to do the opposite, by sidestepping the case entirely.

During oral arguments, several justices suggested that there may be little left to decide. The qualified immunity ruling is unlikely to be overturned, especially given the low bar for what officials ought to know about children’s rights which the court set in Safford Unified School District #1 v. Redding. There is, therefore, no real possibility of penalties. In addition, S.G. is now over 17 and as a result no longer has any possibility of further contact with child services. “There is no case or controversy between S.G. and the petitioners,” her lawyer, Carolyn Kubitschek said, prompting Chief Justice John Roberts to reply, “Then why are you here?”

Justice Antonin Scalia chimed in, "It takes two to tango, and a case or controversy requires somebody on the other side who cares a fig about the outcome."

The fact that all of us should care about the outcome simply does not matter. We are not parties to the case.

There is no technical reason why interviews with children, especially those who are not accompanied by their own attorneys or parents, should not be recorded from start to finish. Such recordings could spare a child from having to appear in court, or could allow a defense lawyer to explore contradictions between what a child tells investigators and what he or she later says on a witness stand or in a deposition. Authorities would be forced to back off repetitive questioning or other high-pressure tactics. Children’s testimony would still be admissible, but it would be fairer and more accurate.

But Camreta v. Greene may not give us the solution, thanks to those legal technicalities. If the high court steps back from this particular docket, we’re going to have to wait — maybe quite awhile — for another instance in which a child recants a story, and someone makes a federal case out of it.