THE EXPERT WITNESS: Is forensic science an oxymoron?

By Michael G. Brock

“Three types of culture—the culture of the prosecutor’s office, American popular culture, and the culture created by the modern legal norms of criminal justice—shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called “hard blows, not foul ones.” But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly—nobody had to.”
—Ken White
Confessions of an ex-prosecutor

“One of the pious sermonizers who failed to speak out [about the armed takeover of the administrative building by radical students at Cornell] and who fancied himself a political philosopher wrote an article for The New York Times Magazine explaining to the world why capitulation had been necessary at Cornell. The ‘social contract,’ he averred, was about to be broken, and we would have returned to ‘the state of nature,’ the war of all against all, the worst evil, so that anything to keep that from happening was justified. He proved therewith that he had never understood what he had been teaching, for the contract theorists (from whose teachings the American form of government was derived) all taught that the law must never be broken, that the strength of the law is the only thing that keeps us away from the state of nature, therefore that risks and dangers must be accepted for the sake of the law. Once the law is broken with impunity, each man regains the right to any means he deems proper or necessary in order to defend himself against the new tyrant, the one who can break the law.”
—Allan Bloom
The Closing of the American Mind, P. 318-319

“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.”
—Justice Louis Brandeis
Dissenting, Olmstead v. United States, 277 U.S. 438 (1928)

“The idea of trying to create crimes just because we disagree with Trump politically, and target him, really endangers democracy. It reminds me of what the head of the KGB said to Stalin: ‘Show me the man, and I will find you the crime.’ This is where things happen in darkness and secrecy...”
— Alan Dershowitz
radio interview with John Catsimatidis1

“If I’ve learned anything from these decades of working on these [study of false memory] problems, it’s this: just because somebody tells you something and they say it with confidence, just because they say it with lots of detail, just because they express emotion when they say it, it doesn’t mean that it really happened. We can’t reliably distinguish true memories from false memories, we need independent corroboration.”
—Elizabeth Loftus
Ted Talk, 9/23/20132

Debra Ann Poole, the primary author of the Michigan Forensic Interviewing Protocol, came out with a new book on forensic interviewing in 2016 called, “Interviewing Children, The Science of Interviewing Children in Forensic Contexts.” Her previous book, written with Michael Lamb, “Investigative Interviews of Children” (1998), established the scientific basis for the first Michigan Protocol, and the one developed by Michael Lamb, known as the NICHD Protocol. Both protocols have been subsequently updated and these protocols or modifications/facsimiles of them are in wide use. In fact, it is fair to say that all effective interviewing protocols have certain elements in common:

“The protocols described later in this chapter [7] shared core recommendations derived from basic principles of memory retrieval and social influence, such as the benefits of eliciting freely recalled narratives, following witnesses’ trains of thought, and avoiding suggestive questions.”3

Dr. Poole reviews these similarities, as well as cautioning against the use of protocols that have not been published, are not readily available, cannot be tested and, therefore, may not stand up to scientific scrutiny.4

Chapter 1 of the new book is a sort of primer on how adults’ typical methods of conversing with children are ill-suited to forensic investigation, giving rise to the need for an alternative conversational style aimed at finding out what information the child has available, rather than whether the child has understood what the adult has imparted and knows the right answers, or whether the child is telling the truth about what the adult already knows to be true. Poole states:

“Adults’ usual style of conversing with children is inappropriate in forensic contexts because this directive style increases the risk that children will speculate, misinterpret questions, and answer falsely because of memory intrusions, source-monitoring errors, and confabulations.”5

In the best of all possible worlds, without any ill intentions, adults may consciously or unconsciously lead children to provide the answers they expect to hear.6 Confirmation bias can be so strong, it can lead interviewers to confirm allegations of abuse when the child has said nothing at all, and provide prosecutors grounds to pursue criminal prosecution.7 Therapy too, is a poor vehicle for eliciting forensic truth from children, and Poole once again, as she does in Michigan’s Protocol8, warns about mixing the roles of forensic interviewer with that of therapist:

“Clinicians providing treatment can inadvertently harm the credibility of children’s allegations when they cross over into a forensic role by mining for disclosures or assuming an investigative role following disclosures. As Kathryn Kuehnle and Mary Connell (2010) explained, ‘When therapists directly take on an investigative role, asking questions to ‘facilitate disclosure,’ they may interfere in the forensic investigation. Under such circumstances, the risk is that the child’s memories and statement become so tainted or inaccurate that a miscarriage of justice results. Abused children’s statements may come to appear unreliable or the therapist may unwittingly shape and reinforce the erroneous statements of non-abused children ... Furthermore, children who are exposed to ongoing questioning and probing are effectively denied the needed therapeutic support that occurs within a relationship premised on neutrality regarding an unconfirmed allegation of sexual abuse.

For example, when parents report to a therapist that their child made a specific comment about having been touched inappropriately, the therapist should follow mandated reporting laws and make an immediate report to CPS but should not conduct an interview of the child regarding the comment. However, if a child makes a spontaneous, suspicious but ambiguous statement during a therapy session (e.g., ‘Daddy touched my pee pee’), the therapist may need to respond with one or two open-ended questions (e.g., ‘Tell me about that’) to determine if what is being described crosses the line from innocuous touch (e.g., wiping the child after toileting) and enters the range of reasonable suspicion (e.g., rubbing the child’s genitals). (p. 557) Activities during therapy that can compromise cases include repeated presentation of sexual abuse prevention books and detailed exploration following reports of abuse. Abuse prevention books can establish a strong atmosphere of concern about abuse while also imparting knowledge to the child that can lead to sexual acting out and verbal mimicry, thereby making it difficult to determine the source of the child’s information. In turn, exploration of a potential disclosure that exceeds what is necessary to make a reporting decision (Kalichman, 1999) raises questions about the clinician’s objectivity and influence on the report.’”9

Despite the fact that these concerns have been widely expressed in the forensic literature and virtually all existing protocols, there are still many jurisdictions where therapy is seen and used as an investigative tool by the courts, and legal decisions are made in civil and criminal proceedings based on therapist’s findings and recommendations. Given how long-standing and universal admonitions against using such evidence in court are from the scientific community, the fact that it is still being done is a testimony to the willingness of legal professionals to rate their intuition higher than available scientific research, and their willingness to be swayed by political propaganda that has no basis in law or fact, but is rather the result of mass hysteria whipped up by the media.

Michigan’s Forensic Interviewing Protocol begins by saying that there are two overriding features of a forensic interview:

“First, forensic interviews are hypothesis-testing rather than hypothesis-confirming (Ceci & Bruck, 1995). Interviewers prepare by generating a set of alternative hypotheses about the source and meaning of the allegations. During an interview, interviewers attempt to rule out alternative explanations for the allegations. For example, when children use terms that suggest sexual touching, interviewers assess the children’s understanding of those terms and explore whether touching might have occurred in the context of routine caregiving or medical treatment. When children report details that seem inconsistent, interviewers try to clarify whether the events could have occurred as described ... Second, forensic interviews are child-centered. Although interviewers direct the flow of conversation through a series of phases, children should determine the vocabulary and specific content of the conversation as much as possible...interviewers should avoid suggesting events that have not been mentioned by children or projecting adult interpretations onto situations...”10

In chapter 2 of her new book, Dr. Poole elaborates on this theme by adding two more goals of forensic interviewing. In addition to those mentioned above, the forensic interviewers should also engage in “exploration that supports the broader investigation, and [keeps] an eye on commander’s intent.”11 Exploration of the broader investigation includes obtaining detailed narratives, which are likely to elicit confessions, and/or retrieval of physical evidence, which is likely to support prosecutions.

Regarding the commander’s intent, Poole states:

“If [this concept] seems abstract, consider the goals of a sexual abuse interview conducted as part of a criminal investigation. A narrow goal would be to collect evidence pertinent to the hypothesis that Mr. Jones, the elderly neighbor of a 12-year-old boy, sexually abused the child. With this goal in mind, an interviewer could easily forget to ask whether the boy was victimized by other perpetrators or has knowledge of other children’s abuse by the suspect. A broader goal would be to explore whether the boy has knowledge of sexual abuse against children (i.e., himself or others). An interviewer with this goal in mind would likely probe for knowledge about other possible victims but might not explore comments suggesting reckless endangerment or other criminal activity. Still another goal could be to determine the boy’s knowledge of criminal activity against himself and others. This goal seems overly broad, however, because it encompasses such things as physical assaults and drug crimes over an unrestricted time period, thereby stretching conversation well beyond purposes of the investigation. A compromise might be to explore whether this boy has been the victim of sexual abuse and, following mention of any criminal activity, to fully explore those statements (including whether the boy has knowledge of other perpetrators and victims).”12

It is noteworthy that these additions to the stated goals and procedures of the forensic interview are clearly pro-prosecution modifications. They are troubling in that they add additional reasons for prosecutors and members of the prosecution team to seek additional inculpatory evidence, while providing no motivation, restraints or methods, or even a stated purpose for the forensic interviewers—who see themselves as part of the prosecution team—to seek, or be aware of how to look for exculpatory evidence. It is a shortcoming of this book and virtually all forensic literature that the phenomena of malicious coaching and false allegations is generally ignored, as though it did not exist, nor are methods to investigate possible ways to explore it ever discussed.

At one point in the book, Poole talks about her general discomfort when a child makes a spontaneous disclosure without any prompting:

“If you were in a noninvestigative conversation with a child, and that child began disclosing abuse or neglect, how would you handle it? There are two ways I can think of. The first is allowing the child to disclose. Once the child is done, I could test for forensic competency, ask whether the child told the truth, and ask whether the child needed to correct any of the story. The second way would be to stop the child from disclosing, test for forensic competency, complete a practice interview, and then attempt to reengage in the disclosure. I have tried both methods, and I am never satisfied with either. In the first, I question the validity of the disclosure.13 The second stops any momentum the conversation had, and it is hard to get the child back to the disclosure. What are your thoughts?”14

She is generally dissatisfied with the two alternatives of either asking for a narrative (tell me all about that) and seeking to establish the ground rules after the fact, or stopping the child to go through laying the ground rules before asking the child for a narrative. What she doesn’t say is that these spontaneous outcries are prima facie suspicious and suggestive of coaching. I discussed this with my daughter, a teacher at a prep school in Newark, and formerly at a middle school in the Bronx. Her response to me was that kids with a normal home life typically complain about their parents, those from severely dysfunctional homes volunteer nothing.

It is also clear to me that any child can be taught to repeat phrases, “He put his private in my private,” “white stuff came out,” “My daddy touch my peepee,” “His thing got hard.” What is much more difficult to do if it didn’t happen is tell a convincing narrative that has some degree of probability. For example, is it probable that a child molester would rape a child once or even twice on the same day, and never touch the child before or after? If the allegation were true, is it probable that no one else would observe blood, damage or semen? I have seen people prosecuted on such evidence, and additional evidence that was literally fed to the child by the forensic interviewer. Such improbable stories would never be questioned by a zealous prosecutor, or by most judges.

One thing I have noticed in cases where I thought the allegations were false, is the difference between the detail and flow of the practice narrative (which all protocols call for) and the narrative of the alleged abuse. Particularly, a talkative child can tell an involved story about a trip to Aunt Martha’s or the apple orchard with lots of animation and few pauses; but when asked to provide a narrative of the alleged abuse, they can repeat a few memorized phrases and have difficulty connecting the dots. Typically, the forensic interviewer builds the rest of the story by asking questions like, “Who cleaned you up?” “Where did he get the rag?” “How many times did this happen?” and many other questions that require short answers, fill in the blanks, and make it sound like the child is telling the story, when actually, the interviewer is the ghost writer.

Indeed, even the title of this book, “The Science of Conversation in Forensic Contexts,” raises significant questions about credibility, when, as Poole points out, there are certain rules to scientific analysis. First of all, it starts with a presumption of skeptical neutrality, presumes that the experiment can be duplicated by others with the scientific method, and presumes that alternative hypotheses will be seriously considered. It assumes that questioning will not be leading or suggestive, and also that someone will be making an honest attempt to evaluate the quality of the interview and the evidence it produces. But there is no procedure for such evaluation, and to assume that someone (the prosecuting attorney) with clear monetary, career, ego and ideological investment in the outcome of a case is going to be objective is naïve to the point of being stupid.

Keep in mind that there are prosecutors who refuse to videotape these forensic interviews, despite it being defined as best practice by the Protocol15 which is law in the State of Michigan (and may others). The clear intention of not preserving the evidence of these interviews is that the prosecution believes they can make a better case with bad evidence than with good. But who is going to do anything about it? Does anyone outrank the prosecutors? They truly are above the law, and the judges see them as the good guys, since many of them were prosecutors before they became judges.

Experience is that alternative hypotheses (mentioned 27 times in Dr. Poole’s new book) are not considered in the forensic interviews I have reviewed, nor is there any real attempt to obtain a narrative (mentioned 119 times) from the alleged victim.16 Questioning is typically highly leading and suggestive. Interviewer bias is mentioned only once in the book, as a rationale for conducting “blind” interviews; i.e., where the interviewer is not aware of the specific allegations. This form of interview is never used in my experience. Hence, it is clear in most cases that the interviewer sees her job as helping the child confirm the allegations she already believes to be true. The presumed truth of the accusation and guilt of the accused, the interviewer’s belief that their sole purpose is confirming these presumed facts, and the goal of getting a conviction are universally evident in those interviews that I have reviewed.

But the greatest danger to the liberty of the wrongly accused is not how badly the interview is done or how improbable the story the child tells. It is the fact that the decision to prosecute rests solely with the prosecutor. As long as there is any kind of disclosure, there is nothing to stop a prosecutor from pursuing the case. And they need guilty people to justify their existence. Therefore, the prosecutor, a person with no objectivity and a clear interest in the outcome of the case, is the sole determiner of whether there is probable cause to indict and make the accused stand trial. If they do proceed with bad evidence, the overwhelming probability is that they will obtain a conviction anyway.

Juries are simply not sophisticated enough to understand whether an interview has been conducted with sufficient scientific objectivity to produce valid results. They have all at some point heard it said: “The accused is entitled to a presumption of innocence,” but in truth, they have no idea what that means. They have been bombarded by “Law and Order Special Victims Unit” (sex crimes) programs that tell them every one charged is guilty, and that most men are perpetrators waiting for an opportunity. Only a sophisticated attorney is going to try for a taint hearing, and only a courageous and impartial judge, who is willing to roll the dice on reelection, is going to make an impartial ruling and toss the bad evidence before it gets to a scientifically ignorant jury. Moreover, that also assumes the criminal court judge is not completely scientifically ignorant, and that he is willing to look at the scientific evidence.

What matters to prosecutors is whether they can make the case, and they know the jury will be leaning in their direction when they walk into the courtroom. Moreover they will try to keep defense experts from testifying, claiming that they haven’t taken the Michigan Prosecutor training in forensic interviewing and therefore are not qualified to offer an opinion about how it is conducted. This is despite the fact that the State will not allow anyone but people being trained to work for the prosecution from taking this training.17 They don’t even make the content of their courses available to non-prosecution team members on their web site. Try it and you will get a flashing red light that you are unauthorized to see the content.

More and more our government works in secret without scrutiny from the public or the press, while “law and order” politicians on both sides of the isle are willing to keep it that way. More and more, forensic “science” is just another prosecutorial tool. According to the National Academy of Sciences Report on Forensic Science of 2009: “The current forensic science system is not based on science. The analysis is frequently subjective. The same technique used by different analysts can lead to different results. The same technique used by the same analyst on the same sample can lead to a different result. Anecdotal information (“In my training, knowledge, and experience...) makes its way into the Courtroom. Crime labs are needlessly secretive.”18

Perhaps it always has been that much of what passes for courtroom science has no basis in science at all, and has never been subjected to scientific scrutiny that would involve some kind of control group and independent verification. But even when there is a scientific basis for evidence, since it is not subjected to oversight and scrutiny, its purposes are routinely twisted to serve the interests of those who control its production and application. In the absence of any objective standards the unsupported allegation of a child becomes truth beyond a reasonable doubt, which means that the absence of any reliable evidence is proof beyond a reasonable doubt. If you want corroborating proof you are a bad person who wants child molesters on the street. You must be doing it for the money. This is not law, this is the religion of fanatics, the kind the enlightenment and our government of ‘laws, not of men’ was meant to protect us against.

The general public can readily see this when they are debating climate change, which is something that will affect us at some point in the future, but they turn a blind eye to same principles in a matter that affects Americans every day in courtrooms across the country. The truth is that most people think the problem is miniscule and will never touch them. It does touch them, and it is massive. We have 2.3 million people incarcerated and that number is increasing daily. It is the most of any country in the world, and the largest percentage of any country’s population. Part of the reason for this is that any of us is subject to arrest, prosecution and imprisonment at any time on the whim of a child or a disgruntled ex. It affects us all in the form of productive people being taken out of the workforce and their children’s lives, insurmountable national debt, a rapidly eroding our infrastructure, financial instability as a nation, and the mortgaging of our children’s future. In fact, it’s hard for me to see a future if this lawlessness of the legal establishment is allowed to continue.

It is the ultimate irony that the lawlessness of the legal establishment is proving to be the undoing of our government of laws.
1John Bowden, The Hill, 8/20/2017,


3Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 7 (Kindle Locations 3357-3359). Kindle Edition.

4“To promote transparency in the legal system and foster the research that improves our ability to serve children, families, and communities, it is critical for policymakers to insist that the protocols they adopt be publicly available. This recommendation does not prevent professionals or organizations from holding copyright to their research reviews and training materials, but it does send a message that interview procedures should be available for the asking and, therefore, testable.” Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 7 (Kindle Locations 3375-3378). Kindle Edition.

5Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 1 (Kindle Locations 520-522). Kindle Edition.

6“Even supportive adults can intentionally or unintentionally coach or nonverbally cue a child, thereby contaminating the interview.” Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 6 (Kindle Locations 3180-3181). Kindle Edition.

7June 18, 2011, Detroit Free Press, How Judicial Cowardice Prolonged a Travesty, by Brian Dickerson, “By January 2008, when Bloomfield Hills District Judge Marc Barron convened a hearing to determine whether the Wendrows’ daughter could have been the source of the terrible allegations against her parents, courts across the country had long since concluded that [facilitated communication] was a experiment was conducted in which the ‘facilitator’ was unable to duplicate ‘communication’ when out of earshot of the question, but [the Court] allowed the State (purporting to represent the people of Michigan) to continue prosecuting its non-case and hold Julian Wendrow in jail for a total of 80 days before finally deciding to drop all charges.”  Note: the original article can no longer be found on line, but was quoted in the following article by this author.

8Michigan Forensic Interviewing Protocol, 3rd Edition, 2011 , P. 1, “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.”

9Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 2 (Kindle Locations 779-793). Kindle Edition.

10Michigan Forensic Interviewing Protocol, 3rd Edition, 2011 , P. 1,2

11Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 2 (Kindle Locations 571-573). Kindle Edition.

12Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 2 (Kindle Locations 742-752). Kindle Edition.

13But she offers no way to test that validity, or what to do if she determined the disclosure to be invalid. Typically, if the disclosure doesn’t make sense, the forensic interviewer will embellish it until it does. I’ve had cases where the adults’ reports were nothing like those of the child, and another where the first report was so absurd it was rejected, but the presenting parent went home and concocted another story. The inconsistencies bothered the prosecutor not at all, nor would they consider prosecuting a false allegation. They helped refine the story until they felt they had something they could work with and proceeded to indict.

14Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 4 (Kindle Locations 2089-2095). Kindle Edition.

15“The Governor’s Task Force on Child Abuse and Neglect supports as a best practice the videorecording of investigative forensic interviews of children at child advocacy centers or in similar settings.” Michigan Forensic Interviewing Protocol, 3rd Edition, 2011 , P. 3

16“Therefore, an interviewer’s first priority when working with a young child is to elicit a sufficiently detailed narrative to allow the investigative team to evaluate the plausibility and coherence of information across reported disclosures.” Poole, Debra A., Interviewing Children: The Science of Conversation in Forensic Contexts, Chapter 2 (Kindle Locations 647-649). Kindle Edition.

175/29/2017@ 10:29 AM. Ms. Doerr: I am a private practice mental health professional who sometimes serves as an expert witness in sex abuse cases. I would like to attend the below seminar [Forensic Interviewing of Children: Click Here] if possible. Could you please send me an application? Thank you, Michael Brock, LMSW,
(Response) 5/30/2017@9:22 AM Michael-At this time, our Forensic Interviewing seminars (2-day or 3-day) are only open to individuals in our target audience (Law enforcement, Prosecutors, CPS/DHHS, CAC forensic Interviewers) as determined by our contract administrators.  (at link provided on site Registration is limited to: Staff employed by a Michigan prosecutor’s office, the Department of Attorney General or U.S Attorney’s Office. [Government email address must be used absent permission.]

18Professor Constantine Gatsonis, co-chair, Forensic Science Committee, Strengthening Forensic Science in the United States: A Path Forward, 2009
Michael G. Brock, MA, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. Much of his practice in recent years relates to driver license restoration and substance abuse evaluation, but he also consults and serves as an expert witness regarding forensic interviewing and the use of forensic interviewing protocols in cases of child sexual abuse allegations. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail:, website,