EXPERT WITNESS: The junk science of trauma assessment, America's greatest threat to due process

By Michael G. Brock

Procedural Due Process, Definition:
Principle required by the Constitution that when the state or federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard.1

Some examples of procedural protections that may be required for certain types of deprivations:

1. Elevated burdens of proof that the government must satisfy, such as “beyond a reasonable doubt” (criminal cases) or “clear and convincing evidence” (termination of parental rights).

2. The right to counsel.

3. The right to a pre-deprivation hearing.

4. The right to cross-examine witnesses.

5. The right to have a neutral person review an adverse decision.

6. The right to recover compensation for a wrongful deprivation.

7. The right to be present when adverse evidence is presented to the fact-finder.2

Substantive Due Process, Definition:
Substantive due process is the notion that due process not only protects certain legal procedures, but also protects certain rights unrelated to procedure:3
Barion Perry v. New Hampshire SCOTUS (Jan 11, 2012), Justice Sotomayor, dissenting.

“This Court has long recognized that eyewitness identifications’ unique confluence of features—their unreliability, susceptibility to suggestion, powerful impact on the jury, and resistance to the ordinary tests of the adversarial process—can undermine the fairness of a trial. Our cases thus establish a clear rule: The admission at trial of out-of-court eyewitness identifications derived from impermissibly suggestive circumstances that pose a very substantial likelihood of misidentification violates due process. The Court today announces that that rule does not even ‘com[e] into play’ unless the suggestive circumstances are improperly ‘police-arranged.’ ...

“Our due process concern, however, arises not from the act of suggestion, but rather from the corrosive effects of suggestion on the reliability of the resulting identification. By rendering protection contingent on improper police arrangement of the suggestive circumstances, the Court effectively grafts a mens rea inquiry onto our rule. The Court’s holding enshrines a murky distinction—between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions—that will sow confusion.4 It ignores our precedents’ acute sensitivity to the hazards of intentional and unintentional suggestion alike and unmoors our rule from the very interest it protects, inviting arbitrary results. And it recasts the driving force of our decisions as an interest in police deterrence, rather than reliability. Because I see no warrant for declining to assess the circumstances of this case under our ordinary approach, I respectfully dissent ...”

Trauma assessment is neither ethical, scientific, or in any way consistent with due process of law when used in a forensic capacity, as noted by Stephen Sparta in the “Handbook of Psychology, Volume 11, Forensic Psychology:” “Communicating Trauma in Forensically Relevant Terms: Evaluators should not rely solely on DSM diagnostic formulations to define forensically relevant issues. This diagnostic classification system was not developed to address legally relevant questions such as proximate cause in civil cases, the best interests of children in custody disputes, or whether children require the protection of the Juvenile Court in child abuse cases.” (P. 212)

Indeed, trauma assessment concerns itself with diagnosing and treating trauma, and if that trauma is alleged to be the result of a crime, then there needs to be a finding5 that such a crime has been committed before treatment for the effects of that crime commences. Moreover, Michigan’s Supreme Court decided in People v. Peterson6 that Child Sexual Abuse Accommodation Syndrome (CSAAS) could not be presented as evidence of guilt in a court of law unless the reverse was argued by the defense. Like CSAAS, trauma assessment, when used as a forensic tool, attempts to assess whether a crime was committed against a child based, not on the well-developed and legally defensible methodology of forensic interviewing, but on the behavioral symptoms of the child.

Although it portends to be a new discipline subject to rigorous scientific standards, it is subject to the same subjective fallibility as the CSAAS, which is cited by proponents of trauma assessment as a forensic tool in their writings.

In her article, “Allegations Of Sexual Abuse Of A Child: What To Do When A Single Forensic Interview Isn’t Enough7,” Kathleen Faller cites the article that introduced the concept, acknowledging that it was not research, nor intended for forensic use, but she goes on to say that it is valuable for diagnostic purposes: “In his landmark article, the Child Sexual Abuse Accommodation Syndrome (CSAAS), Roland Summit, community psychiatrist and pioneer in the practice area of sexual abuse, described the dynamics of children’s responses to sexual abuse ... Although Summit stressed that the CSAAS is not a diagnostic tool but an explanatory tool to give clinicians, investigators, and courts an understanding of the coping behaviors of children who have been sexually abused, research has provided support for his clinical observations ...”

In point of fact, there is considerable research that shows CSAAS is not a reliable indicator of whether a child has been abused. Bow, et., al., (2002) found that, “The assessment of allegations of sexual abuse in custody cases is complex ... Motives of the parties involved may range from a need to protect the child because of safety concerns to vengeance, vindictiveness, and hostility over the marital break-up. Therefore, the evaluator needs to explore and understand the family system and evaluate the validity of the complaints ... there is much overlap in the types of symptoms exhibited by children from high-conflict divorces and children who have been sexually abused, which makes it difficult to distinguish between the two groups.”8

The literature warns that assessing childhood trauma should follow proper forensic procedures: “When conducting interviews, the evaluator should be careful not to offer suggestions, distort the meaning of child communications, or follow misleading avenues of questioning due to the examiner’s prior expectancies. Possible contamination in a trauma assessment could result from an evaluator’s starting the evaluation by asking the child questions with specific content reflecting the DSM criteria. Instead, the examiner might begin asking open-ended questions that elicit the child’s descriptions. This is especially important when working with preschool children, who may be deferential to older/authority figures. Additionally, because recall may be a function of a malleable and reconstructive process subject to various contaminating influences, the interviewer may wish to inquire about how many prior occasions the child was interviewed and under what conditions.”9

Faller and those who believe that abuse can and should be diagnosed by the assessment of symptoms the child has alleged to exhibit ignore the potential for vindictiveness by recommending in the above referenced article that, “... An initial intake appointment is scheduled with the non-offending caregiver (emphasis mine) to gather background information on the child, explain the process, and complete necessary paperwork. This caregiver ideally should be the adult who has custody of the child and can sign release forms for collecting background information, as well as the person who best knows the child and is prepared to give a good developmental history, describe the child’s family situation, and inform the Forensic Evaluator of particular accommodations that might be necessary. The caregiver is also asked to suggest several topics or events that might be safe and interesting topics for the child for use in practicing narrative conversation ... Additionally, the caregiver may be asked to complete two standardized measures: The Child Behavior Checklist (Achenbach, 1991), [and] the Sexual Behavior Inventory (Friedrich, 1999). The use of these two instruments, as well as Briere’s Trauma Symptom Checklist, is suggested, but not required as part of the FE protocol.”

The fundamentally antithetical quality of this type of evaluation to any semblance of due process should be so obvious that it should not require any explanation to someone with a legal background. None the less, since this most egregious kind of junk science is being accepted as evidence in a court of law, let’s explore the many ways in which it violates the presentation of reliable evidence in court: First, in a case where the legitimate science, the forensic interview has failed to produce a confirmation of abuse10, Faller recommends, “An initial intake appointment is scheduled with the non-offending caregiver.”

Therefore, this investigation proceeds with the presumption that there is a guilty party (the accused), and an innocent party (the accuser).

What does the term, non-offending caregiver mean? It means that this person is not a suspect, but is the nurturing parent, not the one who is inflicting harm on the child. But if there is a non-offending caregiver, that clearly implies that if there is another caregiver, that person is the offending caregiver. We are not proceeding with any scientific objectivity here, or any realistic alternative hypothesis. We already know what happened: there was a crime, the accused did it, and the accuser can help us get the evidence out of the child that will confirm what we already know. There is really no reason to go any further to understand that this is a denial of the fundamental right of the accused to a presumption of innocence, not only at trial, but–more importantly in dealing with young children—in the accumulation of “evidence” that will be presented at trial. An investigation that begins with a presumption of guilt, like a trial that begins with a presumption of guilt, will inevitably come to a conclusion that supports the only hypothesis that investigation is prepared to accept.

But let us suppose an alternative hypothesis, for one moment, that the allegations of abuse are entirely false, and even though the non-offending caregiver has coached, bribed and browbeaten her child to make allegations against her father, the child has not made a credible allegation against the offending caregiver. If we then ask this non offending person to provide “background information on the child ... and complete necessary paperwork. [And if this] caregiver [is] the adult who has custody of the child and can sign release forms for collecting background information [and has 24/7 access to the child to continue brainwashing], as well as the person who best knows the child and is prepared to give a good developmental history [which history we accept without question because we know her to be the non-offending caregiver], describe the child’s family situation [with unquestioned accuracy], and inform the Forensic Evaluator of particular accommodations that might be necessary. [And we also rely on this] caregiver ... to suggest several topics or events that might be safe and interesting topics for the child for use in practicing narrative conversation ... [And] additionally, [ask] the caregiver ... to complete two standardized measures: The Child Behavior Checklist (Achenbach, 1991), [and] the Sexual Behavior Inventory (Friedrich, 1999) [which we will assume to be completely truthful and objective],” is there any possible way we are going to explore that hypothesis with objectivity, and are not going to conclude that the child has been traumatized by the offending parent, and we have a load of junk science to prove it?

This is prima facie not science, nor does Faller claim it is: “As this article demonstrates, the body of research that either directly or indirectly supports extended assessments is modest. Only one randomized study has been undertaken, and it has the limitation of being conducted at multiple sites where researchers had to rely upon the written reports and responses of clinicians ... Most strategies employed during extended assessments have not been subjected to rigorous research ...” But is there any support in the constitution or the Fry or Daubert standard for accumulating evidence in this manner, and can in be done without irretrievably contaminating the child’s memory and therefore the reliability of the evidence at trial?

To me the answer is clearly no. If you doubt it, just ask yourself if you would like to have your child interviewed multiple times by someone who presumes that you are the offending caregiver, and whose methods are clearly designed to prove it, over multiple meetings, with authority figures who have never met or evaluated you being provided information by your ex-wife, with whom you are engaged in a bitter custody battle. To say you think it’s fair would be at best disingenuous, so why is this latest mental health fad sweeping the courtrooms of the nation?

I guess for one thing, there is an unwillingness for most legal professionals to seriously attempt to understand the science that is presented in their court. Most of what passes for mental health science can be a bit vague. However, that is not the case with mental health forensics, for which there are clear rules, and consistent research. Much of that research has been codified into law, and that which hasn’t has been codified into the ethics codes of the major mental health professions. Michigan Forensic Interviewing Protocol (Protocol) is a superb instrument, and Debra Poole is a scientist with a fine mind and high level of integrity.

The basic rules of forensic practice are well known to those who practice forensic mental health, and are not hard to find if you care to do the research. All of the ethics codes have been posted online for decades, and updated periodically. The American Psychological Association has also made public its “Specialty Guidelines for Forensic Psychology11,” and “Guidelines for Child Custody Evaluations in Family Law Proceedings.12”

The Zur Institute has posted the following guidelines from most of the mental health ethics codes on its website so you don’t have to search for them:13
American Academy of Psychiatry and the Law (AAPL) Ethics Guidelines for the Practice of Forensic Psychiatry14 ... “Psychiatrists who take on a forensic role for patients they are treating may adversely affect the therapeutic relationship with them. Forensic evaluations usually require interviewing corroborative sources, exposing information to public scrutiny, or subjecting evaluees and the treatment itself to potentially damaging cross-examination. The forensic evaluation and the credibility of the practitioner may also be undermined by conflicts inherent in the differing clinical and forensic roles. Treating psychiatrists should therefore generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purposes ...  referral to another evaluator is preferable.”

American Association for Marriage and Family Therapy (AAMFT) Code of Ethics, 2015 ...  “Marriage and family therapists avoid providing therapy to clients for whom the therapist has provided a forensic evaluation and avoid providing evaluations for those who are [treatment] clients ... Marriage and family therapists avoid conflicts of interest in treating minors or adults involved in custody or visitation actions by not performing evaluations for custody, residence, or visitation of the minor ...”

American Counseling Association (ACA) Code of Ethics ... Client Evaluation Prohibited. “Counselors do not evaluate current or former [treatment] clients, clients’ romantic partners, or clients’ family members for forensic purposes. Counselors do not counsel individuals they are evaluating ... Counselors who provide forensic evaluations avoid potentially harmful professional or personal relationships with family members, romantic partners, and close friends of individuals they are evaluating or have evaluated in the past.”

American Psychological Association (2016) ... “A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist ... Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence, or effectiveness in performing their functions as psychologists or (2) expose the person or organization.”

American Psychological Association (2009). Guidelines for Child Custody Evaluations in Family Law Proceedings ...  “Psychologists strive to avoid conflicts of interest and multiple relationships in conducting evaluations ... The inherent complexity, potential for harm, and adversarial context of child custody evaluations make the avoidance of conflicts of interest particularly important. The presence of such conflicts will undermine the court’s confidence in psychologists’ opinions and recommendations, and in some jurisdictions may result in professional board discipline and legal liability.

“... Psychologists refrain from taking on a professional role, such as that of a child custody evaluator, when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to result in (1) impaired impartiality, competence, or effectiveness; or (2) exposure of the person or organization with whom the professional relationships exists to harm or exploitation ... Subject to the same analysis are multiple relationships, which occur when psychologists in a professional role with a person are simultaneously in another role with that person, when psychologists are in a relationship with another individual closely associated with or related to that person, or when psychologists promise to enter into another future relationship with that person or with another individual closely associated with or related to that person ... Psychologists conducting a child custody evaluation with their current or prior psychotherapy clients, and psychologists conducting psychotherapy with their current or prior child custody examinees, are both examples of multiple relationships. Psychologists’ ethical obligations regarding conflicts of interest and multiple relationships provide an explainable and understandable basis for declining court appointments and private referrals.”

American Psychology Association-Law Society, Division 41 of the American Psychological Association ... “Providing forensic and therapeutic psychological services to the same individual or closely related individuals involves multiple relationships that may impair objectivity and/or cause exploitation or other harm. Therefore, when requested or ordered to provide either concurrent or sequential forensic and therapeutic services, forensic practitioners are encouraged to disclose the potential risk and make reasonable efforts to refer the request to another qualified provider. If referral is not possible, the forensic practitioner is encouraged to consider the risks and benefits to all parties and to the legal system or entity likely to be impacted, the possibility of separating each service widely in time, seeking judicial review and direction, and consulting with knowledgeable colleagues.”

National Association of Social Workers Code of Ethics (2008), “Social workers who anticipate a conflict of interest among the individuals receiving services or who anticipate having to perform in potentially conflicting roles (for example, when a social worker is asked to testify in a child custody dispute or divorce proceedings involving clients) should clarify their role with the parties involved and take appropriate action to minimize any conflict of interest.” (2017) “Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client ... (Dual or multiple relationships occur when social workers relate to clients in more than one relationship, whether professional, social, or business. Dual or
multiple relationships can occur simultaneously or consecutively.)”

National Board for Certified Counselors (NBCC) Code of Ethics, 2016, “[Counselors] shall not provide forensic evaluation services concerning current or past [treatment] clients or client’s family members. Also, NCCs shall not provide forensic evaluation services regarding their own family members, friends or professional associates.”
————
For the courts to ignore these admonitions against performing what are obviously dual and conflicting roles, which preempt the court’s authority, destroy evidence, and deny those accused of crimes against children any kind of fairness or due process, is to facilitate injustice. By the time evidence gets to court from a “trauma therapist” there is no valid way to discern what did and did not happen. Moreover, the process is tailor made for psychopaths to exploit and they do so. This process largely discriminates against men, resulting in many innocent persons going to prison, and others being denied contact with their children, and their children with a loving parent. It benefits neither children, nor society as a whole, and it is the responsibility of legal professionals to stop it by educating themselves and allowing only forensically valid evidence in the courtroom.

Courts have an obligation to keep in mind that therapists are not forensic experts and are therefore not qualified to give evidence to the court; and that therapy is not an investigative tool: “Although information obtained from an investigative interview might be useful for making treatment decisions, the interview is not part of a treatment process. Forensic interviews should not be conducted by professionals who have an on-going or a planned therapeutic relationship with the child.”15

They should also be mindful that treating a child for the effects of a crime that has not been proven to exist usurps the power of the court; that Protocol is mentioned 5xs in the “Michigan Child Protection Law16” as the right way to ascertain abuse; that trauma is mentioned zero times in the Child Protection Law and that trauma assessment is not a forensic tool; that forensic is mentioned 61xs, Alternate Hypothesis(es) is mentioned 26xs, Narrative is mentioned 41xs, Open-ended questions are mentioned 49xs, and Trauma is mentioned zero times in the Protocol. The word “forensic” is mentioned 8xs in the American Psychological Association Guidelines for Conducting Child Custody Evaluations, and trauma is mentioned zero times. That trauma assessment does not constitute an evaluation sufficient to make custody recommendations; nor does it follow forensic procedures, or produce results that any mental health discipline ethics code considers reliable evidence.

Forensic investigators are supposed to record interviews or take verbatim notes, and these records are available to all parties in a dispute as stated in the laws cited in the Protocol. “Trauma therapy” notes are often not discoverable and therefore constitute secret evidence. At best, these records reflect only what the interviewer considered relevant at the time, and violate the stated purpose of forensic investigation, which is to produce evidence and serve as the basis for testimony by a mental health professional. Admitting testimony based on secret evidence obtained by forensically invalid (treatment) techniques violates the fundamental forensic principle of transparency.

Due process of law is the underlying principle of the American Judicial System, to wit: “due process of law–n. a fundamental principle of fairness in all legal matters, both civil and criminal, especially in the courts. All legal procedures set by statute and court practice, including notice of rights, must be followed for each individual so that no prejudicial or unequal treatment will result. While somewhat indefinite, the term can be gauged by its aim to safeguard both private and public rights against unfairness. The universal guarantee of due process is in the Fifth Amendment to the U.S. Constitution, which provides ‘No person shall ... be deprived of life, liberty, or property, without due process of law,’ and is applied to all states by the 14th Amendment. From this basic principle flows many legal decisions determining both procedural and substantive rights.”17

Forensic science is forensic because it follows due process of law, and science because it follows the scientific method18, in pursuit of the truth for use in the court. Trauma assessment in a forensic context follows neither, is based solely on subjective interpretation, and has roots that cannot be discovered or scrutinized as to method and accuracy. But due process includes the right to a presumption of innocence, and an unbiased tribunal. Therapy which includes only one party to a dispute violates this principle of fairness in the legal process, including the right to know and confront the evidence used against one in a trial.

The therapeutic principle of subjective truth, as described by “trauma experts” in their writings and in testimony at trials I have been a part of—which states that the client’s perception of the truth, and not what actually happened is what matters—has no place in a court of law, the goal of which must be to seek objective truth sufficient for making sound legal decisions. Evidence supplied by “trauma therapists” that begins with a presumption of the truthfulness of the person (usually the custodial parent) who is presenting the child for therapy, and actively mines for information from the child to support the allegations made by the presenting parent is completely lacking in objectivity, should not be allowed by the courts, does not provide reliable evidence, and has no place in forensic evaluation or a court of law.

“Trauma evaluation” is a biased and unscientific process that completely ignores decades of research that clearly points to the forensic interview as the most accurate way to obtain the maximum amount of unbiased information from a child, and the constant reinvention of the wheel by persons who have an ideological axe to grind and no understanding of how they are trampling on others’ rights in their effort to save the world should be seen for what it is by the courts—the very junkiest of junk science. Junk science investigators and their investigations are biased in the extreme, and seek only inculpatory, while ignoring exculpatory evidence. “Trauma assessors” are ideologues who believe all evidence is evidence that supports their preconceived notion of what happened; i.e., recantation is evidence of abuse, and unwillingness to disclose is evidence of intimidation on the part of the person abusing the child.

The same dynamics at play in criminal trials are also at play in civil courts, and although the standard of proof is lower, the stakes are still very high for all concerned, and it is imperative that the courts always seek to obtain clean and forensically sound evidence. Reinterpreting someone else’s results because you didn’t like your own findings is not a scientifically valid technique, as I have seen practiced by “trauma experts” who did so without having been there, seen videotape of the session, or read a verbatim transcript of the interview.

There are many reasons a child may make a statement of abuse, but these “disclosures” are not valid if they do not contain a narrative. Coaching is a very real phenomena, and must be considered as an alternative hypothesis by the persons doing the forensic interview. Third party input in these cases is almost invariably biased and useless. Multiple interviews are known to produce increased disclosures, but the more times a child is asked a question, the more likely there are to view their first responses as not believed or believable, and possibly not true, and this phenomenon increases when coaching is involved.

Children who do not want to see their non-custodial parent are not always expressing their own opinions, but may be expressing the attitudes of a parent who is engaged in malicious coaching. These efforts are routinely discounted and ignored by “trauma specialists” who have a strong confirmation bias. Everyone who has done a number of child custody evaluations (as I have) has seen many examples of this phenomena. Oakland County Judge Lisa Gorcyca was recently censured by the High Court for taking what she probably suspected was deliberate alienation out on the kids in a rather harsh manner. She may not have chosen the best way to address the issue, but she was right to seek a solution to deliberate alienation. The courts must recognized this phenomenon and find a solution to it if the goal of the legal system is indeed the pursuit of justice.

Malicious coaching/alienation is mentioned in the Protocol under “alternative hypotheses: ‘Someone coached the child to report abuse.’” P. 29. Coaching a child to say that someone committed a crime against them that could put them away for a long time is clearly malicious. It is also stated as an alternative hypothesis in the Protocol that, “Repeated questioning made the child believe abuse occurred.” P. 29. Children are routinely interviewed over and over (12 times in one case in which I recently gave testimony) without revealing abuse, but regardless of how many times false allegations are made, the accusing parent is rarely subjected to scrutiny, and never prosecuted for a false allegation unless there is a clear statement by the child that her custodial parent put her up to it. Even when that happens, as in the case of People v. Shae Lynn Mullins,19 circuit court judges are reluctant to prosecute lest it keep other liars from committing the same crime. The prosecutor in this case appealed the case and won a conviction, but the sentence for this criminal was one week in jail for making four false allegations. This is hardly a deterrent.

“Extended Forensic Interviews,” are merely an end run around existing laws and best practices for mental health experts engaged in forensic interviewing. The Department of Justice in a September 2015 bulletin called, “Child Forensic Interviewing: Best Practices20” said, “The literature clearly explains the danger of repeated questioning and duplicative interviews.” (P. 1). The paper further states, “Historical Context: In the 1980s, several high-profile cases involving allegations that daycare providers had sexually abused multiple children in their care became the subject of considerable analysis because of the interview techniques that were used (Ceci and Bruck, 1995). Law enforcement depended on mental health practitioners because of their ability to establish rapport with children. However, mental health practitioners often used therapeutic techniques that were later deemed inappropriate for forensic purposes, primarily because of concerns regarding suggestibility. The courts scrutinized the interview procedures used in these early cases and found that techniques that invited make-believe or pretending were inappropriate for criminal investigations ... The American Professional Society on the Abuse of Children (APSAC) wrote the first practice guidelines—Psychosocial Evaluation of Suspected Sexual Abuse in Young Children (APSAC, 1990)—the title of which reflects the initial focus of these interviews: mental health. Today, the focus has shifted from the mental health or clinical perspective to a forensic perspective.
Even the nomenclature changed to include terms such as “forensic interview” and “child forensic interview training.” (P. 3)

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