Charles J Brainerd And Valerie F Reyna

The present chapter focuses on the scientific study of children's false memories and how susceptibility to false memories changes with age. These topics are instructive examples of how applied issues in child development—in this instance, a form of child maltreatment—can stimulate research literatures that are not only vigorous but also rigorous and theory driven. The form of maltreatment in question is child sexual abuse (CSA). Although it is always important, as a matter of principle, to assess the reliability of children's memory reports of any form of maltreatment, it is of overwhelming significance in the case of CSA. There are two general reasons: when witnesses are seen as unreliable, the guilty are free to re-offend, and innocent defendants pay exceptionally high prices, including conviction, for false accusations.

Strict penalties are applied in CSA cases. CSA is not only a major (class 1) felony throughout the United States, it is a crime for which the law metes out harsh punishments. Readers will be aware, of course, that allegations of CSA produce instant public calumny, and convictions on first-time CSA charges lead to lifetime public branding of adult defendants as child sex offenders. However, readers may be unaware of the following additional facts:

1. In some states (e.g., Illinois), an elementary school child or adolescent who is found guilty in juvenile court of a first-time count of CSA must register for life as a child sex offender.

2. The minimum term of imprisonment for conviction on any count of CSA is usually 15 to 25 years, and the maximum term is life. In many states, the law requires that the sentences that are imposed for convictions on separate counts of CSA must run consecutively, so that adult defendants who receive even the minimum term for two counts are effectively imprisoned for life. For purposes of comparison, in most states a defendant who is convicted of capital murder might expect to receive a sentence of 10 to 15 years and to serve roughly 8 years.

Moreover, if a child has been sexually abused and the wrong person is accused, charged, and/or tried, then by definition the guilty person is at large and can continue to prey upon children. While investigation and prosecution are following the wrong path, the guilty person is free to create a succession of new victims or to pile trauma upon trauma by revictimizing the same child. Thus, convicting innocent defendants in CSA cases has extremely undesirable consequences—regardless, as lawyers like to say, of whether you are pro-defense or pro-prosecution—and that brings us back to the study of children's false memories.

CSA is a very private crime that typically leaves little physical evidence, is rarely observed by third parties, and frequently involves only a single child victim and a single perpetrator. Consequently, children's memory reports are practically the whole of the evidence when it comes to implicating a specific person in such a crime (Ceci & Bruck, 1995; Ceci & Friedman, 2000). The memory reports that provide such evidence range from informal statements made to adults and other children to somewhat more formal statements that are made during initial police investigations, to very formal statements that are made during forensic interviews and sworn testimony. A forensic assessment of the probable reliability of such reports in specific cases must rely on the research literature on children's memories, and the science of false memory is the pertinent segment of that literature (Brainerd & Reyna, 2005).

Consequently, the study of children's false memories, in contrast to the parallel literature on adult false memory, is a field that has been embroiled in controversy since its inception—specifically controversy about its implications for the investigation and prosecution of CSA. Interestingly, although such research has provoked contention, there is little or no dispute among researchers about the basic results of the experiments. The bone of contention is forensic application. It is advisable, therefore, to begin this review with a sketch of some historical facts about the law's treatment of CSA and about how research findings have figured in CSA prosecutions. Those topics form the substance of the first section below. The remainder of the chapter is then devoted to the scientific literature, summarizing what has been discovered about children's false memories and the theoretical ideas that are used to explain those findings. An important feature of this summary is that it is heavily theory driven; it is as much about the theoretical hypotheses that are confirmed and disconfirmed by particular results as it is about the results themselves. The predictions that are made about children's false memory by theories such as constructivism (Bransford & Franks, 1971), the source-monitoring framework (Johnson, Hashtroudi, & Lindsay, 1993), and fuzzy-trace theory (Reyna & Brainerd, 1995) figure centrally. A key reason for this emphasis, as we have pointed out elsewhere (Brainerd, Reyna, & Poole, 2000), is that when it comes to legal applications of research on children's false memory, there is nothing so practical as a good theory. The details of legal cases differ from one another, as well as from the features of experimental procedures (Reyna, Holliday, & Marche, 2002). If the evidence that is presented by scientific experts is to be maximally useful, it must provide triers of fact with valid principles of memory that cut across the details of specific situations. It is theoretical principles, not data points from individual studies, that triers of fact most need to help them understand the facts of a case, reconcile inconsistencies, and fulfill their constitutional obligation to determine the credibility of testimony.

CSA and the Law: A Précis of Some Recent History

Although this was not true a century ago (see Binet, 1900; Stern, 1910), in recent decades the study of children's false memories has been intimately connected to the investigation and prosecution of CSA (for reviews, see Brainerd & Reyna, 2005; Ceci & Friedman, 2000). For instance, the literature is replete with studies that focus squarely on phenomena that often figure in CSA cases but that might not otherwise have been studied in the context of children's false memories, such as whether rumors create false memories (e.g., Principe, Kanaya, Ceci, & Singh, 2006), whether false memories are more or less common for traumatic than for nontrau-matic experiences (e.g., Howe, 1997; Howe, Courage, & Peterson, 1995), whether forensic interviews that use anatomically detailed dolls falsify children's memories (e.g., Goodman & Aman, 1990), whether children have false memories of genital touches (e.g., Saywitz, Nicholas, Goodman, & Moan, 1991), and whether secrecy instructions falsify children's memories (e.g., Bottoms, Goodman, Schwartz-Kenney, & Thomas, 2002; Pipe & Goodman, 1991). In short, the topography of research has been shaped by forensic considerations.

In modern societies, sexual contacts with children are heavily punished because they are viewed as particularly heinous crimes that are deeply repugnant to our moral conceptions. The historical record documents little concern with issues of child welfare in the United States or Western Europe until the seventeenth century; indeed, infanticide of babies who were thought to be unhealthy was common practice until that era. Subsequently, public concern with child welfare grew in direct proportion to the changes in sanitation and medical practice that steadily reduced the death rate for infants and young children. The child labor laws of the nineteenth century are well-known examples of this evolving concern. Still, the recognition of CSA, in particular, by the law is a surprisingly recent phenomenon.

In 1962, a seminal paper in the history of child welfare was published by Kempe, Silver, Silverman, Droegemueller, and Silver (1962). Kempe et al., who were pediatric researchers, identified the battered child syndrome, which soon received wide publicity and stimulated a flood of state statutes that were aimed at protecting children against physical abuse. Eventually, in 1974, the U.S. Congress passed a federal statute, the Child Abuse Prevention and Treatment Act. A very important feature of this law is that it encompassed sexual and emotional abuse of children as well as the physical abuse that Kempe et al. had focused on. The National Center on Child Abuse and Neglect was also established by Congress and was charged with gathering national statistics on abuse and making periodic reports of their findings to the nation. Data that were presented in early reports by the Center seemed to show that reports of CSA were rising steeply (Poole & Lamb, 1998). Although some scientists argued that these data were seriously flawed (for a review, see Ceci & Bruck, 1995), the result was that investigations and prosecutions of CSA also rose sharply, with over 1 million adults having been charged with CSA by the early 1990s. False-memory research became imperative as an adjunct to these prosecutions.

In CSA cases, the burden of proof is primarily on children's memory: CSA typically does not leave physical evidence that can be used to prosecute suspects, and when it does, that evidence (e.g., trauma to vaginal or rectal tissue) is not usually a reliable indicator that one person rather than another is guilty. Further, many of the acts that the law defines as CSA are not the sorts of behaviors that would leave physical traces on children's bodies or on their clothing. Examples are adults who make statements to children that contain explicit sexual content and suggest specific sexual acts; adults who show sexually explicit films or pictures to children; adults who read stories containing sexually explicit content to children; adults who instruct children to observe them while they masturbate or engage in sexual activity with other adults; and adults who touch the surface of a child's vagina, rectum, or breast. If penetration of a child's rectum or vagina by an adult does leave detectable tissue damage, the damage may no longer be detectable by the time a medical examination is conducted. Finally, even when such tissue damage is present and is verified in a medical examination, it is not the sort of evidence that points to the guilt of a specific person. The latter determination requires that additional physical evidence be present—such as hair, tissue, or bodily fluids—that can be linked to a specific person. Statistically speaking, such evidence is rare in CSA cases (Brainerd & Reyna, 2005).

In the modal CSA case, then, the only reliable information about specific acts of abuse and about specific perpetrators is stored in children's memories. Consequently, children's memory reports supply the key evidence. In the United States, some major changes were made in the investigation and prosecution of CSA that were designed to ensure that such memory evidence finds its way into the courtroom. One change involved modifications to the legal procedures that were used with child witnesses, and another change involved modifications in the investigative procedures that were used to secure memory reports from children. Once those procedures were in place and several defendants had been convicted, reviews of a few of the more high-profile cases by scientists and by attorneys raised doubts about the reliability of the evidence upon which the convictions were based (e.g., Bruck & Ceci, 1995). This, in turn, stimulated research on the conditions that foment false-memory reports in children. Before considering such research, we briefly summarize two changes in legal procedures that prompted doubts about evidentiary reliability in CSA cases.

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