Wichita, Kansas (TFC) – Recently, a Sedgwick County Judge ruled in favor of a sweeping motion presented by Attorney Sarah Swain, making inadmissible statements obtained using the “Finding Words” method in child sex abuse cases. This ruling was the catalyst of changing the way the State of Kansas may gather and present evidence in future child sex abuse prosecutions.
One of the most important aspects about the law, history tells us, is how much impact it can sometimes have. Every now and then, courts are induced to take a hard look at a practice, procedure or a law that clearly needs to change. Most of the time, the important changes that occur, while noticed by some, do not get spoken about as much as they should. Mainstream media goes with what sells. Certainly, the “side that lost” the legal argument has no interest in promoting the loss. The layman usually does not have a clear understanding of legal decisions any more than they can describe how to perform oral surgery.
What does happen, at least some of the time, is that these legal changes get integrated into our lives and become common knowledge, such as Miranda Rights (“the right to remain silent” etc.). How many of us know that Miranda is the name of a the person whose attorneys argued for the court to “change” that practice? Or that the case originated in Arizona? See what I mean.
One of the most polarizing types of prosecutions in this country is that of child sexual abuse. Any person with any semblance of a normal conscious knows why that is. For years, our society has been trying to figure out how to best achieve justice in these types of cases. In our zeal we have overlooked something just as important and in my view, horrific. The erosion of due process. Prosecuting and convicting people without the proper real evidence to do so. What seems to be forgotten so often is prosecutions are always supposed to be about “seeking justice”. The process of how this is done is paramount and now, thanks to attorney Sarah Swain’s persistence, justice, at least in these types of cases in Wichita, Kansas, has been placed on a better road.
For years now, when an allegation of child sex abuse comes to the attention of law enforcement personnel or social services, in 20 states, gathering the evidence was done by the method called “Finding Words”. In 1990, a child advocacy center in Minneapolis called CornerHouse developed one of the first forensic interview training programs in the United States. In 1998, the American Prosecutors Research Institute, the non-profit affiliate of the National District Attorneys Association, partnered with CornerHouse and presented its model on a national stage, calling the course Finding Words. Because the demand for the course was so great, APRI launched a new initiative entitled “Half a Nation” by 2010. The idea behind Half a Nation was simple: if APRI could establish locally taught Finding Words courses in half the states by the end of the decade, thousands of professionals could be taught the art and science of interviewing children and hundreds of thousands of children would benefit. Armed with a million dollar grant from the Children’s Bureau of the United States Department of Health and Human Services, APRI established the Finding Words curriculum in seventeen states. Kansas was one of those states. The goal was to have over one million children impacted by the program by 2010.
The problem with “Finding Words” is that it is NOT SCIENCE.
For years, challenges to the Finding Words interview process were made by defense attorneys arguing that the interviewer was not properly trained. By the end of 2006 every appellate court reviewing those cases said it met the legal standards for testifying as experts on forensic interviewing issues.
There were over three dozen published and unpublished appellate opinions in Minnesota by 2006, discussing interviews conducted by CornerHouse or those trained through CornerHouse. Several of these cases note the expertise of these interviewers. In Georgia, the appellate court rejected a defense claim that a deputy sheriff trained through Finding Words was insufficiently trained to conduct a forensic interview.The court found the investigator had “taken specialized training courses in interviewing children in sex abuse cases… conducted the interview in a specialized,‘child-friendly’ environment… and he employed a known method for interviewing child victims, the RATAC method…”
The problem with Finding Words was not the training but the method itself. As Attorney Swain has been arguing for some time now, the method itself was not proven science and did not meet the “Daubert” test.
In 1993, the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc. The Court, in Daubert, set the standard for expert testimony. Not on the basis of the expert, but properly based on the whether the underlying reasoning or methodology was “scientifically valid”. In a unanimous decision the court reasoned:
…the trial judge must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. (emphasis added.)
It is here that Attorney Swain made her case, and properly so. For under the Daubert test, Finding Words could not stand. As Swain pointed out in her motion:
…why are Finding Words interviewers experts? Because they have been recognized as such by the courts. Why have they been recognized as such by the courts? Because they are experts.
Swain’s argument clearly pointed out the lack of peer review, the lack of error rate analysis and the failure of the state’s own endorsed witness Ms. Kelly Robbins to offer any scientific reliability evidence on the Finding Words methodology. On the contrary, Ms. Robbins essentially offers nothing in the way of real methodology in her testimony.
…Ms Robbins even asserts in her previous testimony that Finding Words has been peer reviewed because each interview in the Child Advocacy Center is “peer reviewed” — by her. This Finding Words is reliable because she says it is.
What is paramount here is that these 20 states that use Finding Words are putting people in jail as a result of it and defense attorneys who have not been doing their due diligence have allowed Finding Words to go scientifically unchallenged even though Daubert existed before Finding Words was ever created.
What has finally resulted from Swain’s continued effort is a court ruling with teeth. Judge David Kaufman’s ruling noted:
What was established at the motion herein was testimonial evidence of Dr. Barnett who opined that 1) Finding Words protocol has never been validated as proper interviewing method, and 2) validity is a function of reliability and Finding Words has not been subject to any reliability studies.
One cannot emphasize enough the importance of proper evidence gathering. Victims demand justice and defendants are entitled to due process and to confront the evidence against them. Unless a proper method is used then criminals go unpunished and innocent people go to prison. In Kansas for example, anyone prosecuted for child sex abuse, if convicted, is facing a mandatory life sentence to prison. It is this reasoning above all else that makes this ruling so significant.
For example, a proper method of interviewing children believed to have been sexually abused is the NICHD or the National Institute of Child Health and Human Development investigative protocol.
NICHD is a flexibly structured protocol incorporating a wide range of strategies believed to enhance retrieval. forensic interviewers need to elicit information from event specific memories of the investigated incidents rather tha generic or scripted statement, especially when interviewing children who have experienced multiple incidents of abuse. Child Abuse and Neglect Vol 24 No. 6 pp 733-752
NICHD protocol, unlike Finding Words, has extensive research supporting it. As Swain noted:
Michael Lamb and Kathleen Sternberg, two eminent developmental psychologists who worked for the U.S. National Institute of Health and Human Development, spear-headed the development of the NICHD Protocol. Their goals were to enhance the competence of interviewers and to enhance the ability of children to provide accurate and coherent accounts of their experiences.
The accuracy is the most important factor. More than a decade of research has shown that effective interviewer training can begin with the proper use of the NICHD Protocol because it allows interviewers to maximize the amount of information obtained from free-recall memory by using open-ended prompts. The NICHD Protocol requires fewer more risky focused questions be used and does not advocate the use of anatomical dolls and other risky techniques. Remember, the goal here is justice. Justice for the victim when necessary and justice for an accused when innocent. Considering how many persons have been convicted in this country wrongfully any movement to better produce true justice should be embraced by all.
Sedgwick County is no longer using Finding Words as a way to gather evidence in child sex abuse allegations. That is very important. Changing unjust laws and practices is very important. This ruling should establish a standard of gathering evidence with a scientifically proven methodology that will achieve justice for the victims and, ensure due process standards are adhered to so innocent people do not go to jail or have their children wrongfully taken away. This case should lead change across the State of Kansas and throughout the country. Sarah Swain again has championed justice and no doubt attorneys everywhere need to take a hard look at this.