|"Due Process Is Good Psychology," as appeared
in Michigan Lawyer Weekly.
Bio: Michael G. Brock, MA, LLP, CSW is licensed as both a master’s level psychologist and a certified social worker. He is in private practice at Counseling and Evaluation Services in Wyandotte. Brock has been in the therapy field since 1974 and, in the past five years, custody evaluations have become the majority of his practice. Brock has done over 200 evaluations and he can be reached at (313) 802?0863 or (313) 601?4979.
Due Process Is Good Psychology
By Michael G. Brock
About a year ago, while testifying in a child custody case, an attorney (whose client I had not recommended for custody) objected to my testimony on the grounds that it was hearsay. The judge responded by asking, “Isn’t the entire process of a psychological evaluation essentially hearsay?” Counsel had no response.
I don’t know how others in the courtroom were affected by that brief transaction, but I was troubled. I don’t like the idea that what I do is based entirely on hearsay, but it may be so. To be sure, there are other factors. Testing can be more objective than some other forms of evidence, but is there any proof that it is relevant to any given legal dispute? The word forensic is probably not even correctly used in connection with psychological testimony, since what psychologists do is ultimately more art than science.
Still, a good psychologist can bring insights to a case that attorneys and judges don’t have. But these insights have to do primarily with a certain skill at interpreting the dynamics of relationships between people, and also assume a rudimentary understanding of the applicable laws. Those assumptions are often unjustified. I still read reports by “hired-gun” psychologists which show clearly that they have never read any of the statutes, nor the forensic literature pertaining to the case. What is most alarming, however, is the willingness of mental health professionals to provide evidence of criminal wrongdoing by people they have never interviewed or even seen.
Even more disturbing is that prosecutors and the courts accept this testimony as if it were absolute truth, as if mental health professionals have some magical power to know things hidden from “mere mortals.”
The Little Rascals Daycare Case
As an example, I will use the ongoing case of the Little Rascals Daycare Center in Edenton, N.C. Prosecutor Nancy Lamb managed, with the help of mental health professionals, to convince more than one jury that a group of people (with families of their own) who were all upstanding citizens with no prior criminal histories, did conspire to ritually molest and rape most of the children of the daycare center, despite a total absence of physical evidence. What is the probability of that?
The jury in the trial was allowed to read the children’s therapists’ records as if they were fact. The therapist never had to appear in court. Prosecutor Nancy Lamb herself practiced a little “voodoo” psychology by telling the jury that when Dawn Wilson (one of the defendants) held and played with her child during breaks in the trial, it wasn’t because she loved the child — it was all a show for the benefit of the jury. No psychologist could have accurately reported on the state of mind or the motives of Wilson when she played with her child. However, had a psychologist known that Wilson had been offered a plea bargain which included no jail time if she pointed the finger at the others, and had told prosecutors to “find yourselves another patsy,” that psychologist might have known something about Nancy Lamb’s state of mind when she made those statements.
In fact even those who ended up taking a plea bargain in this case, one of whom had been imprisoned without charge for three years, gave no evidence against themselves or one another. It is this author’s understanding that this is not accepted plea bargaining practice in serious cases. Usually the accused must describe the crime. This is good psychology; it helps the court avoid convicting innocent people, since even the discouraged are reluctant to describe a crime they didn’t commit.
Moreover, another one of the defendants served six years before his conviction was overturned. The prosecutor, after failing at her first attempt to bring this defendant back to trial, sought yet another trial on related charges. Her lack of understanding psychological principles is profound.
In the article “The Little Rascals Daycare Case, the Ingredients of Two Successful Prosecutions,” (Journal of Child Sexual Abuse, August 1994) Nancy Lamb states, “Prosecutors began meeting with the entire group of parents early and on a regular basis in order to relay information to them concerning the progress of the case … and instructed families to refrain from discussing specifics among themselves in order to avoid the later inevitable defense claims of hysteria and cross pollination of information.” Of course, what these support group meetings did was to reinforce the hysteria and the cross pollination which had already begun. Could anyone believe that these parents would come together and not discuss this case among themselves, considering that the case was the reason for them to all be there? It is similar to telling a group of people at an Alcoholics Anonymous meeting not to talk about alcohol.
Two female defendants served time in the Little Rascals Day Care case, as have many women involved in day care cases. These types of cases require a rudimentary knowledge of the people utilizing day care services. Despite many arguments to the contrary, people who leave their children in day care feel guilty. Any suggestion that their child may have been molested triggers an incredible intensification of this guilt response, which, paradoxically, can only be alleviated by extracting a report from the child that the rumor is true.
In another case, decorated police officer Grant Snowden was convicted of molesting several children in his wife’s daycare center, largely on the strength of the testimony from a little girl who was clearly led (this author read the transcripts) to say things that she initially denied. Snowden served 12 years before his sentence was overturned. This reversal was due partly to the help of noted research psychologist Dr. Stephen Ceci. Ceci pointed out the obvious — that if you work on children long enough, you can get them to say anything; not necessarily intentionally, but just by creating an atmosphere of hysteria. Ceci’s research has since shown that it isn’t too hard to get children to believe something is real that, in fact, did not happen.
Moreover, once it has been done it is extremely hard, if not nearly impossible, to then deprogram children. Those children involved in Ceci’s experiments had not had the emotionally intensive grilling by everyone from parents to police to prosecutors to mental health professionals that kids suspected of being abused have to go through. Ceci also found that mental health professionals also were much more likely to report erroneous information about a child if they were first supplied this misinformation.
Criminal forensic psychologist Terrance Campbell, Ph.D., discussed in two recent articles the difficulty children have distinguishing what they remember from what they have been told or what has been suggested to them. In point of fact, it is very easy to plant a memory in a child’s mind. To a 3- or 4- year-old child, these memories will be as real as any other memory. Campbell quotes a story by Piaget, who is considered to be the father of developmental psychology. Piaget’s story centers on his alleged abduction from, and his rescue by his nanny as a child; an abduction the nanny later confessed never happened, but had been fabricated by her for dramatic effect. This type of what Ceci calls “false beliefs” have been easily duplicated in his research laboratory. Preschool children lack the ability to distinguish what they remember from what they have been told they remember.
Presumption Of Guilt & Due Process
Dr. Campbell is speaking as much to the legal community as to the mental health community. Isn’t what Dr. Campbell is discussing a basic principle of due process? Isn’t he saying, “Don’t lead the witness?” “Don’t contaminate the evidence?” Isn’t this the patient saying to the doctor, “Have faith in the medicine you practice?” It may be understandable that the American Psychological Association would put out a position paper on anatomically correct dolls which says, in effect, “There is no conclusive evidence that they provide useful information regarding proof of child molestation … but they may be the best tool we have,” because that would be normal psychological process — use what you have until you have something better. But instincts and orientation are to defend the defenseless child, and their training also leads psychologists in that direction.
Lawyers and judges deal with a more subtle form of psychological truth — the wisdom that it is instinctive for most people to presume guilt, hence the need for the presumption of innocence. The fact that, until recently, a person could only be tried once for the same crime presumes that if a person can be tried indefinitely, the prosecution can fine tune its case, resulting in an unfair process. Prosecutors in the trial of the police officers who beat Rodney King bragged that they had learned from mistakes in the first case, resulting in a conviction the second time around. The defense has to keep winning, but the prosecution only has to win one time, not counting appeals.
The presumption of due process that it is better for the guilty to go free than for the innocent to be convicted is in direct contradiction to the attitude of the prosecutors in the Espy case, that, “It is OK to spend $17 million to prosecute an innocent man because it might keep someone from breaking the law.” This expresses the belief that a people who are intimidated are more easily controllable. This is bad law and bad psychology. It is doubtful that our founding fathers ever intended that control of our country be turned over to any prosecutor, however “special,” but rather that it stay in the hands of elected officials.
Ultimately, due process is much more vital to the survival of our democracy than the practice of psychology. And if mental health professionals have something to offer the legal process, it seems only sensible to require that the information stand up to some sort of scrutiny. There are exquisite psychological principles underlying the concept of due process. Why is it considered unacceptable on direct examination for the witness to be led? Any psychologist should understand that it is because some people are easily led to wrong conclusions. Even the most uneducated and unsophisticated understands that it is easier to lead a child than it is to lead an adult. So when some mental health professionals say, “believe the children,” what they are really saying is “ignore the context of the statements, the method in which they were gathered and accept that a presumption of guilt is not only acceptable, but necessary whenever the issue of sexual abuse is in question.”
Such a statement is neither legal nor psychological; it is essentially political. It is the notion that some classes of people, especially women and children, have been victimized in the past by not being believed, or, in the case of rape victims, being humiliated by having unfair evidence presented at trial which had nothing to do with the case at hand. Some changes needed to be made, and have been made in the law. But the concept has gone beyond this to the state that a presumption of guilt by a mental health professional is considered legitimate grounds for criminal prosecution. When it is not grounds for prosecution, in custody/visitation disputes it is frequently grounds to allow a parent only supervised visitation, which makes the ultimate ruling less important than the accomplished fact of the other parent having interim custody.
There are cases where a child’s story should have been believed but was not. For example, a woman told this author that her teenaged daughter had accused her husband of trying to molest her. The case was not prosecuted, but the man was sent for therapy, as was his wife. She did not want to believe that her husband was guilty. However, she was troubled by the fact that when her daughter told her about it she described the exact sexual MO the woman’s husband used with her. To me, this piece of information, provided inadvertently, was powerful psychological evidence that the approach had taken place. Sexual MO is a very individual matter, and the child’s knowledge of it could have been gained no other way than experientially. The mother was advised not to let the husband back into the house for any reason, and to pursue the matter in the courts.
But the incidence of false allegations of sexual abuse are by no means limited to those made by women against men. This author had recently finished work on a custody evaluation when a father brought in a young child who alleged that her mother had molested her. For many reasons, I did not believe the allegations, but was required by law to report the matter to protective services. The child confessed to the protective services worker that her father had put her up to it. Mother, who despite the allegations did nothing to attempt to alienate her husband from the children, obtained custody.
Many cases that are up for evaluation these days involve allegations of physical or sexual abuse. Sometimes it is merely innuendo, but usually it comes up because it is the ultimate weapon. Never is the axiom “It is impossible to prove the negative” more true than in this type of case. It is not like a murder case where a defendant can prove that he was on a ship in the middle of the ocean at the time the crime occurred, or a rape case where DNA tests can prove the semen does not belong to the defendant. Every parent, like day care providers, has opportunity. And the idea of making a mistake and giving unsupervised visitation to a man or woman who might have done such an act is so disturbing that the court usually feels forced to presume guilt. However, a thorough investigation will generally turn up inconsistencies if the allegations are false.
There is another reason why this is a perfect allegation in custody disputes. Men, as a general rule, are more sexually aggressive than women. Therefore, allegations of this nature made against men are more likely to be believed. Why do people tell such terrible lies under oath? Because custody of one’s children is “all the marbles.” To quote a lawyer friend, “People get a little crazy on this subject.” Another reason is that mothers, even those who are professional and educated, presume ownership of their children. The amount of parenting time the father has put in over the years has little effect on this presumption.
Conscientious lawyers and judges see the adversarial process as creating some problems. The proper interaction of law and psychology needs to be more clearly defined. This can best be done by upholding the best principles of law as they have evolved over time. In the article “Family Wars,” a psychologist and lawyer suggested that allegations of sexual abuse in custody cases had to be disproved or these allegations would result in a presumption of guilt. A psychologist may be forgiven this kind of thinking, but for a lawyer to say this in print is disturbing. It is the kind of thinking that allows prosecutor Nancy Lamb to continue to hound the defendants in the Little Rascals Day Care case. How does one prove a negative?
Ultimately, it is up to the legal profession to protect the integrity
of due process of law, and to work with mental health professionals to
determine the appropriate role of psychological testimony. Mental health
professionals must have some humility before the law, and if they are going
to participate in the legal process, they must make some effort to learn
how it works. People’s lives are at stake, and they deserve their constitutional
guarantee of a fair trial in which the evidence presented for or against
them is valid and given a weight commensurate with its true value and reliability.