Forensic interviewing: Where are we now?

By Michael G. Brock

Somehow, I’ve spent most of my working life in the legal arena. After completing my bachelor’s degree and trying to find a job I was confronted with the reality that I would have to obtain a union card of some sort – that is to say, some kind of training to make myself marketable. After being accepted to WSU and Detroit College of Law, I decided to pursue an advanced degree in mental health. But I never gave up my interest in law, or in literature and creative writing, in which I had obtained my bachelor’s degree. Ultimately, my work in a forensic capacity allowed me to combine the three interests, and has made for an interesting and challenging career. And while these days I focus my attention and marketing on driver’s license and substance abuse evaluations, I still do an occasional child custody case or forensic interviewing consultation.

Ten years ago I was doing a lot of custody evaluations, and would frequently run across allegations of abuse in the course of the evaluation process. This happened so frequently that I began to attend conferences on the subject, including one by Kathryn Kuehnle (spring 2000), at which the late Beth Clark gave me a copy of Michigan’s Forensic Interviewing Protocol1. The implementation of this Protocol had become Michigan Law with the publication of the original version in 19982 and remains so today. Though it has gone through a few revisions, elaborations and clarifications, it remains essentially the same document that was created by Deborah Poole with the assistance of the Governor’s Task Force on Child Abuse and Neglect and the Department of Human Services in 1998. The essential features of this document are the elements of the phased interview: prepare for the interview, introduce yourself and build rapport, establish the ground rules, conduct a practice interview, introduce the topic, (most importantly) elicit a free narrative, question and clarify, and close the interview.

Despite the fact that the protocol had been law for two years at the time I first became aware of it, no one in private practice was using this tool, and most – like me – had never heard of it. Indeed, in 2002, James Bow etc al. published a research paper in which they stated that only a third of mental health professionals (MHPs) were utilizing any type of protocol for investigating allegations of abuse that arose during a child custody case which they were investigating on behalf of the court.3 When I looked into why this was, it was explained to me that this law applied specifically only to State employees, such as P.S. workers, police officers, or facilities set up specifically for the investigation of abuse allegations. The only such facility in the tri-county area in 2000 was at Care House in Oakland County.

I was baffled why this Protocol, which represented the state of the art in conducting interviews of children and was based on solid research published by the American Psychological Association4, should not be followed by MHPs, especially those performing child custody interviews. One would think that at least they would be sensitive to the need to obtain clean evidence, even if a treatment professional might lack sophistication regarding the proper intersection of law and his particular discipline. Even there, however, every MHP ethics code warns about the dangers of mixing dual and conflicting roles, and enough MHPs have gotten into trouble by doing so that they now tend to be more cautious about rushing into areas where they lack expertise.

Of equal concern to me was that there was no protocol being utilized at that time by the physicians interviewing children in these cases5, and they would often engage in questioning children inappropriately. Indeed, it is a very difficult thing to question a child in a non-leading, non directive way, with open ended questions, and to sit patiently and wait for a child to provide a narrative of events around an allegation of abuse. If one is patient, however, children can provide remarkable detail, which gives a valid allegation of abuse more credibility, and insures that we are not rushing headlong to judgment regarding statements that may have been thrown into the mix by someone hoping to gain the edge in a child custody battle. Anyone working in family court has heard many such unfounded allegations. Now we had a tool to help us accurately differentiate true from false allegations, but few were using it.

I began researching the literature and utilizing the Protocol for my own work immediately after finding out about it, and, as recommended, I also video-recorded the interviews. With family court Judge Bill Callahan, I gave presentations on the Forensic Interviewing Protocol at a seminar sponsored by the Guidance Center in December 2000, and at the Dearborn/Downriver Bar Association in February 2002. At the time, I didn’t think too much about those presentations. I found I didn’t really like conducting seminars and, after a scheduled presentation to the Michigan Association for Professional Psychologists on the subject was cancelled due to lack of interest, I confined myself to my work in the courts and articles in this column.

However, The Guidance Center seminar had an impact. Then director Michael Lott decided that he would set up a forensic interviewing program in his clinic and asked if I would run it. I said no thanks; I would rather remain in private practice. However, he proceeded with the project and obtained the contract to provide these services for the State in Wayne County.

Ten years ago, in January 2003, I did an evaluation in a messy divorce case at 3rd Circuit Court involving allegations of abuse. I did a custody evaluation that included a taped forensic interview, and the case wound up settling. Prior to my involvement, the child was taken to Children’s Hospital, and an MHP not employing any protocol stated that he thought abuse had occurred. He recommended that child have abuse counseling. After giving testimony I wrote a letter to the interviewing party outlining the ways in which I felt he had mishandled the case. My feeling was that Children’s Hospital, of all places, should be doing this right.

The letter quoted the MHP’s work and went on to say:

“Like the doctor’s examination, the hospital MHP’s interview did not support any type of trauma to the child. Despite being asked leading questions, the child denied that there had been any type of mistreatment and, specifically, that she had not been sexually mistreated by her father. She further reported that she had not touched or even seen her father’s penis. However, the interviewer – seemingly grasping at straws for a reason to believe that this abuse had taken place – interpreted a drawing as being evidence the child had been sexually abused because the hips were curved. And because the child did not disclose what the mother had told the MHP, he concluded that the child was lying. However, it apparently did not occur to him that the mother could be lying. It is important that the reported aggressive behavior which the MPH stated was the reason for the child entering therapy came about after therapy started, and was nowhere reported [in the therapist’s notes] to be a reason for starting therapy. Yet this information could only have come from the presenting parent.