What You Should Know About Taint Hearings

Thousands and thousands upon years of existence have helped us, as humans, develop a tremendous understanding of behaviors and psychology. Through various techniques, methods, and philosophies, it’s possible to delve into the mind and access deeply layered emotions and experience profound breakthroughs.

In all that understanding, though, we’ve yet to find a way to ensure that memories are 100% clear cut and aren’t impeded by our own perspective and interpretation.

Of course, most adults can keep the crux of a story together, to the point that we can rely on a grownup to correctly corroborate facts as witnesses. They’re not going to confuse faces and can comprehend the experience, for the most part.

Even then, adults can still fall victim to memory errors, manipulations, and coercions that alter their recollections.

Conversely, the brains of younger children have yet to develop to the point where they can grasp what’s going on around them. Therefore, calling on a child’s accurate retelling of memories is a much bigger ask.

For this reason, taint hearings – which often scrutinize government investigating and interviewing methods and their impact on a witness’s knowledge of events – are commonly relied upon to assess the reliability of child witnesses.

As we delver deeper into this issue, we’ll rely on the following article: Ashish S. Joshi, Taint Hearing: Scientific and Legal Underpinnings, The Champion, Nov 2010, page 37.

Witnesses must testify from personal knowledge. This is something that’s been mandated, federally and by state, as a rule of evidence.

In the instance that witnesses can’t meet these expectations because their memories have been manipulated or changed, the testimony is “tainted.”

The purpose of a “taint hearing” is to determine whether or not a witness’s testimony has been tainted to such a degree that the witness cannot viably recount their own personal knowledge and therefore won’t be allowed to testify.

These hearings are most common for children because of the outside influences that can impact their ability to maintain the integrity of their personal knowledge. Once a child has made an abuse allegation, true or false, they are then surrounded by concerned parents or caregivers, investigators, and psychologists, etc. They’re repeatedly asked questions about what’s happened.

And those close to the situation become more inclined to coerce explanations, instead of objectively encouraging a retelling of the alleged abuse.

Many psychological studies have shown that children’s susceptibility to memory alteration and manipulation outweighs that of adults. It has gotten to the point that this phenomenon is being recognized by legal bodies throughout the US.

While a child’s memory might be less reliable than that of an adult witness, that doesn’t mean they can’t be valuable. Completely discounting the testimony of all children would have led to a disturbing amount of crimes going unpunished.

The taint hearing is the legal system’s rigorous filter that attempts to ensure a just legal outcome.

During these hearings, judges must discern the soundness of the interviewing, questioning, and counseling methods. Namely, they’ll assess the suggestiveness of these techniques, and if it seems they could have altered the child’s memory and compromise their first-hand knowledge.

There is an overarching consensus on the interrogation methods applied with children. It’s shared by most field professionals, and pinpoints the following factors as undermining the child witness interviewing process:

• Not enough investigatory independence
• The interviewer chases a preconceived notion of what happened
• The outside influences on the child’s statements aren’t controlled
• The cooperative conversationalist effects of the interviewer aren’t controlled
• Source monitoring failures aren’t controlled
• A reliance on leading questions by the interviewer
• A reliance on repeated questions by the interviewer

Another issue that can arise is a child is swayed when hearing the alleged abuser being attacked and smeared. Furthermore, sometimes, there are biases towards the accused displayed by interviewers that can send children off track with how they recall the events.

Also, mild threats, tone of voice, over-encouragement, and bribes can be subtly communicated to children by the counselor or interviewer.

Throughout most states, the legal system has acknowledged that once a child’s memory has been tainted, the memory of the facts are so distorted that it can’t be redeemed. On top of that, upon this tainting, the problem can’t be remedied.

Thus, the National Center for the Prosecution of Child Abuse, the National District Attorneys Association, and the American Prosecutors Research Institute collectively reached an understanding.

Through cooperative research between the three entities, shared protocols were adopted to ensure the proper questioning, interrogation, and counseling of child witnesses in abuse investigations. Openness, neutrality, and objectivity are at the forefront of those guidelines.

A crucial sign of lacking objectivity is when an interviewer fails to examine alternative hypotheses that could suggest the accused’s innocence. There’s also the chance of there being a failure to challenge outlandish statements that children might make.

Fending off false allegations of abuse means discrediting your accuser through any means available. Don’t hold back on attacking the credibility of a child witness. Otherwise, you’re opening yourself up to the potential failings of investigators, counselors, and interviewers to remain objective.

Remember, you didn’t do anything.

It’s up to you and your defense team to find evidence that your accuser’s memory has been tainted. This way, you can mount enough proof to help you move on from this ordeal, unscathed.