Did Your Mom Help You Remember?: An Examination of Attorneys’ Subtle Questioning About Suggestive Influence to Children Testifying About Child Sexual Abuse

Abstract

Researchers studying children’s reports of sexual abuse have focused on how questioners overtly assess coaching and truthfulness (e.g., “Did someone tell you what to say?”). Yet attorneys, and defense attorneys, in particular, may be motivated to ask about suggestive influence and truthfulness in subtle ways, such as with implied meaning (e.g., “Did your mom help you remember?”). Such questions may be particularly challenging for children, who may interpret statements literally, misunderstanding the suggested meaning. The purpose of this study was to examine and categorize how attorneys’ ask about suggestive influence and truthfulness. We wanted to learn how attorneys subtly accuse suggestive influence, and how frequently this occurred. We hypothesized that questions indirectly accusing suggestive influence would be common, and that defense attorneys would ask more subtle questions, and fewer overt questions, than prosecutors. We examined 7,103 lines of questioning asked by prosecutors and defense attorneys to 64 children testifying about alleged child sexual abuse. We found that 9% of all attorneys’ lines of questioning asked about suggestive influence or truthfulness. The majority (66%) of these were indirect accusations. Indirect accusations of suggestive influence spanned a range of subtleties and topics, including addressing conversational influences (e.g., coaching), incidental influences (e.g., witnessing abuse), and others. We also found defense attorneys were less likely than prosecutors to ask about suggestive influence and truthfulness overtly. We conclude that attorneys commonly ask about suggestive influence and truthfulness in subtle ways that developing children may struggle to understand, and which may result in affirmations of influence, even when allegations are true.

Myths and Misunderstandings About Child Sexual Abuse in Criminal Investigations

“…This is supported by researchers who find that defense attorneys frequently raise issues related to suggestive influence in court in order to establish the extent of a child’s credibility (Denne et al, 2020). Suggestibility concerns are often raised in both direct and subtle ways, implying the child may have been told what to say (St George et al, 2022b). Such subtle attacks on child credibility are difficult for children to interpret (Wylie et al, 2022), meaning they may lead to misinterpretations.…”

Developmental Considerations in How Defense Attorneys Employ Child Sexual Abuse and Rape Myths When Questioning Alleged Victims of Child Sexual Abuse

“…Evidence suggests that defense and prosecuting attorneys talk to children differently. Attorneys are sensitive to the developmental variation of child witnesses, and they sometimes vary the structure and content of their questions in ways that reflect developmental trajectories (Denne et al, 2020; St. George et al, 2022; Stolzenberg et al, 2020).…”

“…Evidence suggests that defense and prosecuting attorneys talk to children differently. Attorneys are sensitive to the developmental variation of child witnesses, and they sometimes vary the structure and content of their questions in ways that reflect developmental trajectories ( Denne et al, 2020 ; St. George et al, 2022 ; Stolzenberg et al, 2020 ). For example, Stolzenberg et al, (2020) found that defense attorneys asked more yes/no questions to younger children, whereas prosecutors did not vary the use of yes/no questions by the child’s age.…”

“…Furthermore, when asking about complex or confusing topics, prosecutors do so more directly. In a study assessing attorneys’ questioning about suggestive influences, for example, St. George, Sullivan et al (2022) found that prosecutors asked more direct questions about suggestive influence than defense attorneys, while defense attorneys asked more subtle and suggestive questions, including questions with multiple meanings that children struggle to understand. Similarly, Sullivan et al, (2022) found that defense attorneys’ use of suggestive questioning styles resulted in more instances of children misunderstanding than the questioning styles of prosecutors.…”