The Forgotten Witness
Communication skills are not only needed for the hard interrogations, but predominantly to be effective with all levels of correspondence in order to extract information. Witnesses can help an investigator include or exclude evidence, information, or facts. Briefly, a witness is a person who has observed an incident, event, or watched a crime take place. They can be a pivotal component to a case in which a detective gathers and preserves data, corroborates physical evidence, and develops leads.
Statements should be obtained as soon as possible after an incident and carefully documented, keeping in mind all legal considerations as to the method information is extracted and recorded. Whether witnesses are considered material or immaterial should not be weighed (as to their inclusion or exclusion) during an investigation; this discretion is reserved for the prosecutor. Officers should keep mindful of documentation and recording processes; the work should not just be acceptable but meticulous. Do all persons always pan out as useful? No, but you may not know their merit until later.
The Forgotten Witness
One type of witness is often overlooked or disregarded because of special circumstances. What do I mean by this and who is sometimes omitted? Child witnesses are often forgotten.
Investigators may ignore their importance because their cognitive reasoning and language skills are underdeveloped which becomes difficult to judge. Furthermore, their intellect may not yet be fully formed to an ability we would deem as useful in an investigation and worthy of a court witness. However, when children are present during an incident, they hold pieces to a puzzle which may make all the difference in a case.
I found child witnesses can be very beneficial. This became blatantly obvious when I was trained as a forensic child interviewer which aided in my 7 year assignment in Crimes Against Children. Discovering children behold critical information at a young age is an understatement and their retention is quite remarkable.
Forensic Interviewing and Framework
How do you use these statements in an investigation? Do you disregard them due to the age of the discloser? This is a debatable question with no defined answer.
Forensic interviews are designed to bring out truthful and actual information while avoiding traumatic harm to the child. They are unique in their probative nature, style, and method; keeping prime the child victim’s fragile mental status and physical safety. At the same time, information can be gathered to assist Victim’s Services in therapy or other needs for the child and their family. Child advocacy centers are set up in many states to provide these services. Additionally, many agencies have established collaborative teams to investigate as a multi-agency process.
The focus in the interview between the interviewer and child is only on what is real, not allowing pretend interactions, thoughts, or make believe. Nor does it introduce things to the child they did not experience or see. The question technique used is open ended and specific to proven models. These interview methods were designed to obtain a true statement, free from coaching or taint.
Initially, a child forensic interview process was intended for children subjected to sexual assault and child abuse. After my initial training, I used forensic interviewing skills in homicides and major crimes when the children were witnesses to such an event. Attorneys will argue the legalities and moral obligations of using a child witness in a trial, however, law enforcement involvement enters prior to any suppression issues. An officer may take whether a child can testify into consideration, however, establishing credibility and the legalities is something for attorneys to revisit during court preparation. What must be carefully evaluated and kept priority is the child’s mental well-being and psyche.
What age is too young to gather information? I don’t think we really know a definite age, but we do know it depends upon the cognitive skills of a child. In my early patrol days, we put a number on it, limiting any interview to age 4. This changed during my detective career. My newly acquired skills were an advantage when I was assigned to assist the lead detective on a missing person case. The case manifested into a dynamic homicide in which we interviewed a child who was only 3 years old and a sibling who was just 4 years of age. They were both below the age I had ever interviewed a child.
The children’s information acquired from the interviews was used to obtain a search warrant. The search warrant was crucial in getting into the home where later police discovered the woman’s body inside a duffel bag. The interviews did not come up in trial nor were the children required to testify.
The interviews took place at our children’s advocacy center (a child friendly facility) where forensic interviews were conducted every day in casework involving crimes against children. The children’s interviews were video and audio taped. I don’t need to watch them to recall what they said. It will be forever ingrained in my head.
In this case example, two young children were present in the home when their mother was brutally killed by their father. They watched this happen; this I am certain. The daughter used words to describe the encounter in her interview such as “mommy, daddy fight“, “mommy’s face was red,” “daddy shoot”, “ mommy cry“ , “mommy fell down the stairs“, “mommy sleep”, and “daddy cleaned the house”. She told the story while demonstrating and drawing a picture of her father shooting her mother. Her brother stated, “daddy used a bat, hit mommy”, “blood everywhere”, “mommy have owies on her head”, “mommy not wake up“, and “mommy dead.” He also drew pictures.
What was pieced together with evidence and statements from persons with knowledge, suspects (there were two in this case), family, neighbors, acquaintances, etc., and physical evidence was the following conjecture:
The husband and wife got into an argument because she was leaving him the next day, divorcing him because of his drug problems. During the argument, the two became physical. He grabbed a shotgun and swung it like a bat, hitting her in the head. She tried to defend herself and the confrontation continued for quite some time until her death from blunt force trauma. He had beaten her over and over, at times using the shotgun like a bat. He had shoved the barrel into her head, leaving a pattern injury or impression of it which was found at autopsy. She had fallen down or was shoved down the stairs during this confrontation. No shots were fired.
How did we interpret what happened? The children’s statements given were juxtaposed to the actual events. A person may think on the surface the children’s words were not “exact” or “factual” compared to the physical evidence. I beg to differ. Both the children’s stories were true from their perspectives from which they observed the altercation and adequate for the stage their cognitive skills were developed at that young age.
The daughter saw her father shove the barrel into her mother’s head and perceived the action of the gun appropriate to its use: pointing forward, hand on the stock of the gun, aiming the barrel forward. This resembled a person’s stance. The firearm was readily recognized to her as such a device. The son saw the gun being swung and the motion the same often used in baseball or softball with a bat. He viewed it how a bat would be used. Perhaps he didn’t recognize the instrument as a firearm. You have to take into account the child’s age, stress, and the trauma of the event. Both saw their mother fall down the stairs after getting beaten. The mother’s face was red from blood. She was asleep or in that still, quiet position identified by the daughter. One child possibly knew his mother was dead. They both saw her fall down the stairs; an action they could comprehend. The other information they may not come to understand until later, if they remember. The father was convicted of murder. The other suspect (a friend of the father’s) was a material witness (after the fact) and eliminated as a suspect. He was not charged with homicide.
Victim/Witness Mental Health Priorities and Legal Considerations
How does the investigator evaluate the child’s trauma while obtaining case information? Careful consideration must be taken in these delicate cases to evaluate priorities. Mental health professionals are invaluable and services should be readily available once a child discloses such information. It was our practice to have a mental health professional viewing the interviews via live feed. Children witnesses were considered victims of violent crime even though the violence was only observed and no physical harm came to them. It was imperative that proper victim and mental health services were offered and provided during an investigation process.
Is it often best to conduct the interview as soon as possible or wait until the loss can be addressed through family support and/or counseling before talking with the child? Not only are children’s statements important, it is crucial to get them right away. You have to take into account contamination, coaching, threats, and also the child’s alertness, attention span, and sleep information. Perhaps it is more beneficial to take their statements first thing in the morning versus at 11 o’clock at night.
However, the child must not be tainted by other persons in the meantime, so the investigator must evaluate which is best for all circumstances. Waiting is detrimental to the case and plays to the validity of the child’s statement. Family can taint the child’s statement or memory and they can cause more trauma without first getting what we investigators call a “clean” statement. This can be unintentional.
If a child does not give a statement, counseling can sometimes provide a disclosure. However, it depends on the situation whether the statement can be used by the prosecutor. The Crawford decision limits these statements in court. Statements given to a psychologist or psychiatrist during medical treatment and recovery can successfully be brought into court. Contradictorily, if the doctor is acting as an agent for police, the statements may be challenged and could ultimately be suppressed. Other exceptions exist as well.
In many of my child molestation cases, the perpetrator took a deal after seeing the audio and video recording of the child talking about the allegations against them. In the homicides I have worked, the child witness took the stand once. She recalled nothing because at the age of 18, she did not remember what happened when she was 3 years old. However, the psychiatrist was able to bring her statements into court made while she was a toddler because she was seeing the doctor for medical treatment outside the scope of the case, and law enforcement was not involved.
Whatever comes forward in court is a matter for the prosecutor. The investigator must gather the facts and evidence. This includes any witness statements. It is important for a thorough investigation to include everyone…even when they are thought to be unwary.