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1
Interviewing Children: Pitfalls and Best PracticesACSA Every Child Counts Symposium
January 14, 2015Presented by: Lenore A. Silverman
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Child Witnesses
Memory is deceptive because it is colored by today’s events.
-Albert Einstein
What if source of that memory is a child? Interviewing child witnesses requires
specific training and skill
3
Child Witnesses
How are child witnesses different? Use of language Ability to remember and explain events
accurately Susceptibility to suggestion Desire for attention Emotional responses to questioning
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Bullying and Harassment
Bullying Preventing and redressing student-student
bullying and harassment is priority for the DOJ and ED
OSEP issued letter emphasizing school districts’ obligation to ensure students with disabilities who are targets of peer bullies continue to receive FAPE
Who investigates allegations of bullying and harassment?
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Bullying and Harassment
OCR Authority to send investigators to schools to
interview students “Opt-out” practice for parent consent Without permitting other adults to be present Without recording interviews Notes and transcripts are heavily redacted
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Bullying and Harassment
Civil Law Suits Students and families filing law suits against
school districts Allegations that bullying caused students’
injuries (and in some cases suicide)
Press coverage or social media may influence testimony of student witnesses
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Bullying and Harassment
Sexual Harassment or Abuse Abuse may be by school personnel or other
students Consider whether CPS or police report is
required Be sensitive - balance need for information with
further trauma investigation may cause Be wary of gossip versus first-hand knowledge
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Bullying and Harassment
What can school districts do? Don’t rely on outside agencies for information Be prepared to immediately investigate reports
of in-school bullying
Make appropriate responses regardless of external investigations
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Religious Expression in School Civil suits alleging unconstitutional
regulation of religious expression on campus Principal preventing fifth grade student from
handing out invitations to Christmas party at her church to classmates
Cheerleaders permitted to write Bible verses on banner used at football games
Be prepared for effect of media coverage and community response on student testimony
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Stages of Development
Early Childhood (3-6 years)Middle Childhood (7-10 years)
Adolescence (11-18 years)Children with Disabilities
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Early Childhood (3-6 years) Restricted understanding of language
Difficulty with complex words, prepositions, pronouns or place words (“here” and “there”)
Difficulty consistently answering how, when why questions
Not consistent comparing or sequencing events Difficulty understanding another’s perspective May not differentiate between events experienced
versus events thought about Try to please adults
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Early Childhood (3-6 years)
Suggestions for questioning Don’t use legal jargon
Q: Do you swear to tell the truth? A: No, I don’t swear!
Don’t just ask if child understands term, ask for example of how to use it
Don’t ask if child knows difference between right and wrong
Use one or two syllable words when possible Be specific, don’t use “this” “that” “here” or
“there” Use names, not pronouns
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Early Childhood (3-6 years) Suggestions for questioning
Use short sentences Don’t ask compound questions Avoid “how” “when” “why” questions Don’t use negatives “Isn’t it true that…” Tie experiences to event in child’s life such as
birthday or music class Q: Were you watching TV?
A: Yes. Q: What was on? A: Sesame Street.
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Middle Childhood (7-10 years) Difficulty with abstract terms and complex
sentence structure Difficulty with concepts of time and duration Still learning concept of cause and effect Use numbers in approximations Better at generalizing words Understand others have different perspective Experience questioning by adults as negative Unlikely to admit they do not understand question
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Middle Childhood (7-10 years) Suggestions for questioning
Don’t use legal jargon Don’t use passive voice Don’t just ask if child understands, ask for an
example Use simple questions Avoid negatives Link time periods to something meaningful in
child’s life such as weekend of favorite TV show
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Adolescence (11-18 years) Greater ability for narrative and complex grammar Difficulty with complex negatives Developing ability to Difficulty with concepts of time and duration Still learning concept of cause and effect Use numbers in approximations Better at generalizing words Understand others have different perspective Experience questioning by adults as negative Unlikely to admit they do not understand question
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Adolescence (11-18 years)
Suggestions for questioning Don’t use legal jargon Don’t use passive voice Don’t just ask if child understands, ask for an
example Avoid multiple negatives Be sensitive to your tone of voice, facial
expressions and body language
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Children with Disabilities Understanding nature and severity of
disability is critical Gather information to provide baseline for
child’s abilities and/or limitations What is impact on child’s ability to understand
language? How is thinking and reasoning impacted? What is impact on child’s ability to understand social
conventions? Behavior? Is there emotional issue that could be exacerbated
during interview? Is child taking medication that could impair
judgment?
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Children with Disabilities
Suggestions for questioning Minimize distractions Avoid over-stimulating environments Allow for movement Take frequent breaks, if necessary Consider hearing visual and physical limitations
– provide appropriate accommodations
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Children with Disabilities
Suggestions for questioning Use short sentences and limit information Break question into simple parts, avoid
compound questions Check for understanding frequently Be aware of impulsivity in answering questions Allow for long silences to account for processing
time
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Children with Disabilities
Suggestions for questioning Pay attention to eye contact and body language Notice changes in behavior
Fatigue? Lack of understanding? Increased anxiety? Sensory overload? Processing issues?
Consider whether child can interpret social cues
and language Use concrete language
Understand how emotional disturbance may impact answers
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Case Example
Excerpts from deposition of Student B, 10th grade student, regarding incidents of bullying
he allegedly observed in 6th and 7th grade
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Case Example Checking for understanding
Q. And do you know what it means to take an oath subject to penalty of perjury?
A. I do not. Q. Okay. When you raised your hand with the court reporter,
what did that mean to you? A. That I was promising I would tell the truth… Q. And do you understand that under the law that if a person
takes an oath and then they lie that that’s considered perjury and a crime
A. Yes, I do. Q. Okay. So it’s very important you tell the truth today.
You understand? A. Yes, I do.
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Case Example
Open questions to more specific Q. Well, how close did you become in sixth grade? A. We became close enough that he would talk to be almost every day. Q. Okay. Before he died, had you ever been to his house? A. No. Q. He never invited you to his house? A. No Q. Did you ever go to his house? A. No. Q. Did you ever do anything outside of school together? A. No.
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Case Example Breaking down questions
Q. What did you observe [in gym class]? A. As they were walking, they would run up into the back
of A and knock him down. Q. They would run into him. A. Yes. Q. And knock him down. Who? A. One of the boy’s names was Q. How many times did you see X knock A down? A. Several. Q. Three times?
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Case Example Breaking down questions
A. More than that. Probably -- Q. Five times? A. It was at least every day. Q. Okay. So every day over the course of a semester? A. Yes. Q. During sixth grade? A. Yes. Q. So 30 or 40 times? A. Yes. Q. So your testimony under oath is that would
knock -- run into A and knock him down almost every day or every other day?
A. Yes.
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Case Example Presenting adverse information
Q. Well, I looked up A’s schedule and it shows that A had PE third period during the spring semester of sixth grade. Do you think you’re mistaken about having gym class with him in sixth grade?
A. No, I’m not. Q. You’re not even though the records don’t line up at all
and you’re under oath? I want you to think long and hard about whether he was in your sixth grade PE class.
A. Yes, he was. Q. Okay. So if all the other testimony shows he had it
during third period, you’re still –
A. He was in my gym class.
29
Case Example Presenting adverse information
Q. We pulled A’s schedule for seventh grade and the records show that A had PE in seventh period not fifth period. So I want you to think long and hard in your memory about
whether A was in your gym class in seventh grade. A. He may have – not have been in seventh grade. Q. So all the things you told us happened in seventh
grade might not have happened at all.
A. No. Q. And so in the statement you gave…about seventh
grade PE class, this is not correct. True?
A. Yes. Q. These are not your memories? These are not
true statements? A. No.
30
Case Example Presenting adverse information
Q. And is it fair to say that the – the statements about witnessing bullying in Exhibit 1 aren’t true? A. Yes. Q. And that the affidavit – or excuse me, this whole
statement, Exhibit 1, is just not true? A. Most of it is not true, no. Q. Why did you sign a statement where you agreed to
tell the truth? Why did you sign a statement had so many statements that aren’t true?
A. I don’t know.
31
Case Example
Understanding motivation Q. Just a few minutes ago, Mr. B asked you kind of why
you – you made up all these stories and you said you didn’t know. Okay. So I’m going to ask you a question. Would it be fair to say you did this because you wanted to help A?
A. Yes. Q. And all these stories that you – you made up, did your
mother know about them? A. No.
32
Additional considerations
Suggestibility and False MemoriesInvestigating School Misconduct
Responding to Requests for Interviews
Adverse Child WitnessesUse of Experts
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Suggestibility and False Memories Suggestibility
Child’s susceptibility to suggestions about non-existent details about events
False Memories Forming memories of events that never
occurred by being questioned Interviewers can create both, intentionally
or accidentally, through questioning
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Suggestibility and False Memories Younger witnesses are more susceptible Weak memories are more vulnerable than
strong memories Experiences that are repeated produce
stronger memories Time delay between events weakens
memory Multiple interviews can both strengthen
and weaken memories
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Suggestibility and False Memories Suggestion for reducing suggestibility
and false memories Conduct interview as soon as possible after
event Use neutral interviewer Prior to interview, instruct child “I don’t know”
or “I don’t understand” are acceptable responses
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Suggestibility and False Memories Suggestion for reducing suggestibility and
false memories cont. Begin interview with open question, move to
more specific Do not repeat specific questions Do not react, positively or negatively, to
responses Do not invite child to speculate Do not offer possible answers
37
Investigating School Misconduct When conducting internal investigations of
school-based misconduct, consider the following: Timing – interview student ASAP Preparation – review school records and speak
with teachers Setting – make student comfortable, meet in
private Warm-up – speak with student about interests
and observe language and body cues Question about event – begin with open
questions, move to more specific
38
Responding to Requests for Interviews
External personnel may not be trained in how to interview children effectively
Outside agencies may have agenda for investigation
If possible, insist on being present during interviews or ask that interviews be recorded
Document concerns and objections Be familiar with state and local laws related
to requests by law enforcement and CPS
39
Adverse Child Witnesses
Tips for challenging adverse testimony Find out when child was first questioned Understand child’s developmental level
(and/or disability) Was child questioned appropriately?
Review school records Is information contained in discipline, health, academic
records, class schedule or police report relevant? Understand child’s perspective on investigation
Does child have motivation for testimony?
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Adverse Child Witnesses
Tips for challenging adverse testimony, cont. Create comfortable, non-threatening environment Build rapport
Explain who you are and what you will be asking, listen carefully, pay attention to your body language
Challenge child’s testimony Give child opportunity to answer developmentally
appropriate questions If answers seemed coached, ask child to explain in own
words Ask for information that can be challenged by other evidence Weighs pros and cons of challenging child directly with
extrinsic evidence
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Use of Experts
Consider use of experts to explain: Developmental stage Effects of disability on testimony Dangers of inappropriate techniques
Experts may be from school psychology or special education departments
42
Summary
Questioning child can be stressful for all involved
Understand developmental levels Consider children’s desire to be helpful Goal is complete and reliable information
Thank you for attending!And thank you for all you do for
students!!
Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice.
We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.