For the Defense - Vol. 4, Issue 4 - 17

event, decide which details to reports, and
encourage narrative that are in the child's
own words.142
*	Specific questions (also called focused or
directive prompts) ask children to provide
additional details about information the
child has already provided that might not
be clear or needed to be elaborated. These
questions are identified by their letters, as
the prompts begin with wh or h- (i.e. "What
happened..." "How do you know...?)143
*	Option-posing questions (also called closed,
forced-choice, multiple-choice and yes/no
questions) provide information that a child is
asked to select, accept or reject (i.e., "Did he
touch you on your front private, your back
private or somewhere else?" "Were your
clothes on or off?")144
*	Suggestive or leading questions introduce
information that a child has not previously
mentioned, and may also suggest the desired
response (i.e., "He also touched you on your
butt, right?") 145
Open-ended and focused questions elicit
the most reliable information, whereas optionposing, suggestive and leading questions will
elicit the least reliable information.146 A type of
an option-posing question is the "something
else" question, in which a child is provided a
limited number of answers and the option of
"something else" to indicate all the options are
false.147 A 2017 study investigated the accuracy of
"something else" questions in ninety-four 2- to
5-year old children.148 The children were touched
in a public part of the child's body, a week
later each child was interviewed and asked 30
forced-choice questions about where they were
touched.149 The children were divided into three
even groups.150 In the first group they were asked
questions which included the correct answer
in the first or second response (true question
group).151 The second group, all the responses
were incorrect (false question group).152 The third
group the children did not have the relevant
information to correctly answer the questions
(unanswerable question group).153
The true question group answered correctly 61
percent of the time.154 When something else was
added as a selection the correct answer dropped

to 54 percent.155 Children in the false question
group indicated a false answer 69 percent of
the time when the something else option was
given.156 In the unanswerable group they gave
incorrect answers at the rate of 77 percent.157
This issue arises of what would occur when
SANEs are questioning children regarding sexual
assault for medical purposes, but the questioning
is suggestive and non-conforming to the best
practices of forensic interviews. At that point, a
defense attorney may raise the issue of taint to
exclude the testimony of a victim.
In the establishment of the taint doctrine, in
State v. Michaels, Margret Michaels "a nursery
school teacher was convicted of bizarre acts of
sexual abuse against many of the children who
had been entrusted to her care."158 In 1985, the
mother of one of Ms. Michael's students took
her four-year-old to the pediatrician, because he
was covered in spots.159 During the medical exam
in which a rectal temperature was taken, the
child stated "this is what my teacher does to me
at nap time at school."160 Upon returning home,
upon questioning by his mother, the child rubbed
his genitals and stated that the teacher "uses
the white jean stuff."161 The child was unable
to explain what the "white jean stuff" was, but
Vaseline and white cream was found in the first
aid kit in the nursery's bathroom.162 The child
further stated that Ms. Michael's had "hurt" two
of his classmates.163
Ms. Michaels underwent nine hours of
questioning, and voluntarily took a lie detector
test which she passed.164 Regardless, Ms. Michaels
was charged initially with three counts of sexual
abuse.165 Upon further investigation, a second
indictment was filed for 174 counts of various
charges for alleged acts against 20 students in her
care.166
At trial, the bulk of the evidence was the
testimony of the children that had been elicited
pretrial during the investigation, with limited
physical evidence to support that the children had
been victims of sexual assault.167
On review, the New Jersey Supreme Court
found that the "interviewers lacked objectivity in
their investigation, used mild threats and bribery
techniques on the children, and negatively
reinforced denials of abuse, and that the child
interviews were generally 'highly improper...and
unduly suggestive.'"168 The Court found,
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For The Defense

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For the Defense - Vol. 4, Issue 4

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