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‘Suggestive interviewing’ expert allowed in child molestation trial

It’s a familiar charge against the profession: Lawyers can dig up an expert to get up on the stand and support even the most crack-brained of theories. 

The public’s natural skepticism of lawyers and their experts is in full bloom when it comes to criminal defense. 

Judges are supposed to be above the biases of the public, but since many of them are former prosecutors, defense lawyers typically face an uphill battle in getting an expert before a jury to test a novel theory. 

So it is certainly noteworthy when a lawyer breaks new ground in introducing expert testimony that could help the most unsympathetic of criminal defendants – those accused of molesting children.

 

Big Brother

John Tim Jenkins is caught in a nightmare. Whether it is a nightmare of his own making we do not know, but there are serious doubts.

In 2001, life was good for Jenkins. He had a job as the engineering manager at the Osram Sylvania plant in Versailles, Kentucky.

Life at home was classic American. Jenkins was married with a son about to go off to college and two teenage daughters.

With three kids ready to fly the coop and more time on his hands, Jenkins became a volunteer with the Central Kentucky Big Brothers program. This seemed a natural choice because he had been a Big Brother and his wife a Big Sister years earlier, before the couple had children.

Jenkins completed the extensive Big Brothers application and screening process, and was matched with a “little brother,” J.S., in September 2001.

At the time, J.S. was six years old and his parents were divorced. J.S. lived with his mother.

Jenkins’ relationship with J.S. seemed to be the ideal Big Brother relationship. They would go to ballgames and the movies, ride bikes and swim. Pretty typical stuff.

On occasion, J.S. would even eat dinner at the Jenkins’ home with Jenkins and his wife and family.

As part of Big Brothers’ standard procedure, periodic reviews were conducted with J.S. and his mother. Both child and mom seemed happy with Jenkins. Neither ever expressed any concerns.

In the reviews, the mother reported that J.S. talked about Jenkins a lot and looked forward to their activities together. The mom said the boy would be happy and excited after returning from his activities with Jenkins. For two years Jenkins was J.S.’s Big Brother with no concerns.

It all came crashing down on Oct. 3, 2008. That evening Jenkins took  J. S. – by now eight years old – and his six-year-old friend, B.F., to a swimming outing at the Falling Springs Arts and Recreation Center.

At the pool, two lifeguards became suspicious of the way Jenkins was playing with the boys. They saw Jenkins swim up under them and lifting them up out of the water. One of the lifeguards said at times it looked like “nibbling on their thighs.”

They reported their concerns to the head lifeguard, Roger Maybrier, who concluded that the three were playing a game of “shark” or “alligator,” where one person pretends to be a predator, and the others try to swim across the pool without getting “eaten.”

Greg Shanks, the life guards’ supervisor, also didn’t see anything amiss, but just to be sure he followed Jenkins and the two boys when they went to the locker room.

There, Shanks became concerned when he saw Jenkins and J.S. using the same shower stall. His concerns heightened when he questioned J.S. after he left the shower and learned that Jenkins was not his father.

Mind you, neither Shanks nor Maybrier, whom he called into the locker room to observe, saw any physical contact between Jenkins and either boy.

Shanks and Maybrier nonetheless concluded that something “fishy” was going on, so they called the police.

 

Suggestive interviews?

Officers from the Versailles Police Department arrived at the pool at approximately 8 p.m., and immediately separated Jenkins from the boys. B.F. was driven home, but J.S. was taken to the police station where he met Detective Rick Qualls.

Qualls decided that he needed a quieter venue, so once more J.S. was placed in a police car and this time taken to the Woodford County police station.

Understandably, by this time J.S. was upset and wanted his mother. Mom arrived at the station and Qualls informed her he was concerned that the boy may have been sexually abused.

By the time Qualls interviewed J.S., it was around midnight. He did so without the boy’s mother being present.

Much of the interview was taped and that record showed that for the first half-hour, J.S. denied that Jenkins had done anything sexually inappropriate. But Qualls was unrelenting and wouldn’t accept the boy’s denials.

Tired and distraught, the boy finally agreed with Qualls’ suggestion that he had been touched once.

In an interview with a social worker the next morning, J.S. indicated that Jenkins had touched him a second time.

The initial investigation resulted in a four-count indictment against Jenkins which included two counts of first-degree sexual abuse of J. S., and two counts of indecent exposure for showering in the nude in the presence of J.S. and B.F.

Months later, J.S. was interviewed by a forensic specialist at a children’s advocacy center. As a result of that interview, Jenkins was also charged with two counts of sodomy.

 

Expert testimony admissible

At trial, Jenkins wanted to introduce the testimony of Dr. Terence Campbell, a forensic psychologist. Campbell was to testify concerning improper interviewing techniques which can result in unreliable reporting by child witnesses.

According to Dr. Campbell, it is “absolutely” accepted by psychologists that young children are highly susceptible to suggestion, and that improper interviewing methods create a serious risk of false allegations of sexual abuse.

Dr. Campbell cited as improper interviewing techniques leading or suggestive questions, coercive or “forced-choice” questions, repeated questions, and repeated interviews.

The trial judge wouldn’t allow this testimony or the doctor’s conclusions that J.S. had been subjected to improper questioning that seriously undermined his claims of sexual abuse.

The judge ultimately concluded that the doctor’s opinions infringed on the jury’s prerogative to decide the credibility of witnesses.

Without the expert testimony, Jenkins was convicted of one count of sexual abuse and indecent exposure, and sentenced to five years in prison.

But last month the Kentucky Supreme Court reversed his conviction and ordered a new trial, concluding that Dr. Campbell’s testimony should have been admitted.

The court explained that “Dr. Campbell’s uncontroverted testimony and lengthy report clearly satisfied the Daubert standard to establish the scientific reliability of the principle that suggestive interviewing techniques can affect the reliability or accuracy of a child’s memory or recall.”

It also found the testimony to be highly relevant, “as there was significant evidence that improper interviewing practices were used in this case. … Dr. Campbell was able to review the recorded interviews, and apply the science directly to the interviews.”

Finally, the court concluded that “the testimony would assist the trier of fact, as the theories and principles are not within the knowledge of the average juror.” (Jenkins v. Kentucky)

This seems to be the right result. The evidence against Jenkins is rather thin, and doesn’t fit with the evidence of Jenkins’ relationship with the boy in their two years together in the Big Brother program.

Given the circumstances of his interview with Detective Qualls, an expert’s opinion on whether J.S.’s accusations were the product a flawed process would certainly seem helpful in determining the boy’s credibility.

Naturally, no one wants to cut accused child molesters any slack, but this is one of those cases in which a court plainly sensed an unjust result, and took a step towards preventing future injustice.     

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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