The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.
In Part 1 of this article, Joanne Solchany, PhD, ARNP, looked at child development stages for children from infancy through adolescence and highlighted how trauma interplays with these stages. In Part 2, Julie Kenniston, MSW, LISW offers guidance on forensic interviews with child victims in court. In Part 3, Steven Kelly, JD, will share tips on developing a litigation strategy in criminal court. The articles are based on a webinar developed for Navy Special Victims Counsel and co-hosted by the ABA Center on Children and the Law and the Center for Professional Development on October 16, 2014.
The secret to successful forensic interviews with child abuse victims? Developmental sensitivity.
“I’m going to tell you how to take information about development and put it into your language so you can maximize the amount and accuracy of information you get from children and minimize potential trauma,” said Julie Kenniston, MSW, LISW. As Kenniston framed her presentation for attorneys who represent child sexual assault victims she boiled down her approach to three key elements:
1. Give three interview instructions.
After introducing herself and asking something about the child to establish rapport, Kenniston lays out three basic instructions before starting a forensic interview. The instructions empower children during the interview process
Correct me if I make a mistake. With younger children, it may help to give an example (e.g., Question: “If I said you were 30, what would you think?” Answer: “I’m NOT 30! I’m 6.” Let them know that’s what you want them to do – tell you when you’re wrong and correct you.)
Say “I don’t know.” Don’t guess. Use this question to illustrate: “If I asked you what I had for breakfast this morning, what would you say?” The child should say “I don’t know.” Follow up by saying that’s what you want them to say when they don’t know the answer.
Say “I don’t understand.” Be clear that it’s ok for the child to speak up and say he doesn’t understand something. It is especially important in the court process where words are often long and have different meanings (court = place to decide legal issues AND place to play basketball).
2. Use Narrative Event Practice (NEP)
At the core of a successful forensic interview is Narrative Event Practice. “NEP will make the biggest difference in determining if a child is competent,” said Kenniston. She explained that it demonstrates three elements of competency (see box). NEP also teaches kids how to communicate and makes them the expert in telling their own situations, she said. NEP is an interviewing tool that allows the interviewer to practice asking questions with the child before an actual forensic interview.
How does NEP work? Kenniston outlined the steps:
- Pick a neutral topic (e.g., something the child told you she was interested in, but avoid questions relating to the abuse or trauma).
- Ask the child to tell you everything about the topic.
- Don’t interrupt and allow pauses.
- Follow up with “narrative inviting” questions to elongate the conversation and teach the child how to talk with you (e.g., “So John, I heard you say that you got ready for soccer. Tell me all about that.” versus “What color is your uniform?” that invites a one-word response.)
- Focus on actions – what the child did (e.g., getting ready for soccer versus description of field). Research shows much richer information is obtained by focusing on what the child did.
- Listen to the child’s ability to describe activities in logical sequence.
In addition to helping determine a child’s competency, the approach offers benefits to the child. It helps engage the child and prepare him for the courtroom experience. Kenniston noted how NEP allows the interviewer to explain and practice with the child how information will be shared. Through NEP, the interviewer shows the child she will listen and pay attention, that she is interested in what the child has to say and won’t interrupt, and that the child is the expert in his own life details and will have the chance to share them.
NEP also benefits the interviewer by providing a baseline of the child’s ability and willingness to communicate. Through narrative inviting and posing open-ended questions, it provides data that is unsolicited or suggested by the interviewer. The interviewer is able to get a sense of the child’s perception of events and ability to observe. Information shared through NEP can be corroborated by a multidisciplinary team in investigative activities after the interview. The interviewer can also refer back to NEP if the child is having trouble communicating or using fewer words during a forensic interview (“Remember when we talked about how you got ready for soccer…”)
3. Focus on Who, What, Where Questions
When questioning children, questions tend to fall into seven types:
- How long
- How many times
All children should be able to answer the first three questions: who, what, where. Kenniston cautioned against venturing into when, how long, how many times, and why questions, all of which can create problems. When questions create issues because it’s often hard for kids to recall time. Similarly, how long questions are time-based. It is unrealistic to expect kids to give a number in response to How many questions. Why questions often make a child feel blamed and create confusion because they ask for someone else’s motivation for doing something.
Who, what, and where ask for concrete information that most children can handle. Younger children, especially, are concrete and literal in their thinking. Questions seeking more abstract information may cause a child to shut down or guess.
Kenniston’s three elements—clear interview instructions; Narrative Event Practice; and who, what, where questions—will kick start a successful forensic interview with a child victim. Try them out in your next child interview to see if they help focus interviews and bring positive results.
Stay tuned: In Part 3, Steven Kelly, JD, offers guidance on representing child victims in criminal court.
Claire Chiamulera is CLP’s editor.
NEP and Child Competency
What makes a competent witness? Kenniston outlined these elements:
- Ability to recollect and recall information—demonstrate there is a memory you are accessing and verbally sharing it.
- Ability to perceive information accurately.
- Ability to differentiate truth from lies—demonstrate this knowledge and know what will happen if a lie is told. (For many years, competency determinations focused considerably on this element and demonstrations of the child’s understanding of truth and lies. More recent research finds just saying “Do you promise to tell the truth?” is the critical piece. Demonstrations of understanding of truth and lies do not provide information on whether the child will actually tell the truth.)
- Ability to speak from personal knowledge of the facts.
- Interviewers can use NEP to establish these competency elements.