Document Type

Article

Publication Date

2000

Abstract

In this Article, Professors Ceci and Friedman analyze psychological studies on children's suggestibility and find a broad consensus that young children are suggestible to a significant degree. Studies confirm that interviewers commonly use suggestive interviewing techniques that exacerbate this suggestibility, creating a significant risk in some forensic contexts-notably but not exclusively those of suspected child abuse-that children will make false assertions of fact. Professors Ceci and Friedman address the implications of this difficulty for the legal system and respond to Professor Lyon's criticism of this view recently articulated in the Cornell Law Review. Using Bayesian probability theory, Professors Ceci and Friedman assess the implications of children's suggestibility for fact-finding in adjudication. Based on the constitutionally compelled principle that an inaccurate criminal conviction is afar worse result than a failure to gain an accurate conviction, even a slight risk of false allegations is significant. Professors Ceci and Friedman present several policy implications that follow from their analysis. First, interviewers should use leading questions only as a last resort, and they should completely avoid some strongly suggestive techniques that create particularly significant risks of false allegation. Second, except in very limited circumstances the fact that a child has been subjected to suggestive questioning should not preclude her from testifying. Instead, in appropriate cases, courts should be receptive to expert evidence on the suggestibility of children. Furthermore, in some extreme cases in which the child's allegation is essential to the prosecution and the child was subjected to very strongly suggestive influences, a criminal conviction should be precluded. To the extent that reliability is a factor in determining the admissibility of hearsay statements, in some circumstances children's statements should be considered unreliable. Finally, absent exigent circumstances, all interviews conducted as part of a criminal abuse investigation should be videotaped, to reduce the uncertainty as to whether interviewers have used suggestive questioning techniques.


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