Consider the case of an infant who has several healing broken bones that are consistent with shaking the child and pulling or twisting the child's leg. The criminal element that needs to be established is causing the injuries to the child, yet the behaviors that resulted in satisfying that charge (shaking the child or twisting a child's leg) may not, in and of themselves, involve a criminal act.. A number of cases of this nature have come to our attention where the focus of the interview, and especially the interrogation of the suspected abuser, were improper, which contributed to the suppression of the subsequent admission.
In this type of investigation, it is improper to select as a principal issue whether or not the subject is responsible for the child's injuries, in this case the broken bones. Consequently, it would be improper to ask a suspect, "Did you break your child's ribs?" or, "Did you do anything to break your child's upper leg bone?" The reason for this is that the guilty suspect may not know if his treatment of the child was responsible for the broken bones (unless it was a compound fracture where the bone penetrated the skin). Furthermore, through defense mechanisms, the guilty suspect may come to truthfully believe that his handling of the child did not result in the injuries.
Consider the analogous case where three individuals randomly fired weapons into a crowd of people where a person died from gunshot wounds. In this case, it would be improper to question a suspect as to whether or not he killed the victim. The reason for this is that the person responsible for causing the death would not know if it was a bullet from his gun that struck the victim, and may also come to believe that probability alone would favor the fact that it was more likely one of the other two shooters who fired the fatal shot. In this case, the issue of killing the victim is secondary to whether or not the subject was one of the three persons who fired a gun into the crowd.
Once an investigator understands this concept it becomes much easier to structure the interview and interrogation of a person suspected of physical abuse to a child. The focus of the interview generally should not be if the subject caused the injuries, but rather did the subject engage in any behaviors that may have caused the injuries. As a sample list of questions for the previously mentioned case, the investigator may ask:
|At any time did you shake the child? |
|What caused you to do this? (What was the subject's emotional state?) |
How long did you shake him?
Where did you hold him when this happened?
How often have you done this?
Did anyone see you do this?
What was the child's physical appearance after the incident?
|At any time did you pull the child's leg? |
|Why did you pull his leg? (What was the subject's emotional state?) |
Demonstrate how hard you pulled his leg.
Was anyone else present when you did this?
What was the child's physical appearance after pulling his leg?
|At any time did you twist the child's leg? |
|Why did you twist his leg (What was the subject's emotional state?) |
Demonstrate the twisting action.
Was anyone else present when you did this?
What was the child's physical appearance after twisting his leg?
Obviously, there are many other topical areas that should be covered with the subject such as the child's general temperament, whether the subject was intoxicated or under the influence of drugs while taking care of the child, his explanations for the child's injuries and whether the subject was physically abused as a child. The important point being made here is that for the purpose of detecting deception, the focus of the interview should not center on whether the subject caused the child's injuries but whether he engaged in any behaviors that may have resulted in the injuries.
A subject guilty of physically abusing a child is likely to either minimize or outright deny engaging in behaviors that may have resulted in the child's injuries. The direct positive confrontation should address these behaviors, not that the suspect caused the child's injuries. It would, therefore, be improper to start out the interrogation, "John, the results of our investigation clearly indicate that you caused your son's broken leg." As mentioned earlier, the suspect guilty of child physical abuse often refuses to cognitively accept responsibility for injuries to the child and therefore, at an intellectual level, he is telling the truth when he responds, "That's crazy. I would never do anything to harm my child." Even though the subject has shaken his child and twisted his leg (and knows that he has lied about these activities during the interview), in his mind he may refuse to accept responsibility for causing the child's injuries. To continue the interrogation based on the premise that he is responsible for breaking the child's leg invites a later claim of a coerced-internalized confession. In this circumstance, the defense argues that the investigator attempted to convince the suspect that he must be guilty of the charge against him.
A proper confrontation statement would be directed toward the suspect's denial of engaging in behaviors that may have caused the child's injuries. An example confrontation would be, "John, after reviewing all of our evidence, it is clear that you have (shaken the baby) (twisted the baby's leg)." This confrontation addresses a specific behavior. The suspect knows whether or not he did or did not shake the baby or twist the baby's leg. If the investigator is uncertain as to what action the suspect may have engaged in to cause the child's injury, an ambiguous confrontation may be desirable such as, "Jim after reviewing all of our investigative findings it is clear that you have not told the truth about the nature of contact you had with your son."
The interrogation theme, presented after the confrontation, is intended to recreate the circumstances for engaging in the behaviors which may have led to the child's injuries. Possible themes include losing one's temper because of the child's behavior (crying, failure to sleep, talking back) or having an affected judgment because of alcohol or drug use. It would be improper to suggest a theme that the suspect inadvertently or accidentally engaged in behavior that caused the child's injury. One does not inadvertently or accidently shake a child or twist a child's leg to the point of causing physical injury. Suggestions of accidentally injuring the child may be interpreted by some courts as offering a promise of leniency. Possible alternative questions to elicit the first admission of guilt might be, "Do you shake the child every single day, or does that just happen on rare occurrences?" or, "Did you twist the leg completely around where you heard the bone break, or was is a partial twist?"
If the suspect acknowledges engaging in behaviors that may have resulted in the injuries the confession must carefully document the dates, times and frequencies of engaging in this behavior. Because these behaviors are difficult to quantify, it may be useful to videotape the suspect recreating the shaking, twisting or pulling action on a life-size doll. It would also be important to include within the confession the suspect's state of mind at the time of the behavior (being angry, intoxicated, frustrated) and any noticeable effects on the child following the behavior (crying, lethargy, discomfort). It must be remembered that in many cases of physical child abuse, the symptoms of the abuse will not directly correlate to the offender's behavior. That is, the injuries may not be apparent until days or even weeks following the abuse. There are exceptions to this guideline such as when the child dies as a direct result of the abuse (suffocating the child, bending the child's head resulting in a broken neck) or when bruising, swelling or bleeding occur in direct proximity to the behavior. Absent these criteria, the confession should not contain the statement, "I caused my son's broken leg by twisting it" or, "I killed my child by shaking her." These statements invite the defense argument that his client could not possibly be certain that his behaviors resulted in the reported injuries (or death) and, because of that, the confession was obviously coerced and should be considered untrustworthy.
A confession is traditionally considered an acknowledgment of committing a crime and in most situations a person certainly knows whether or not he committed a particular crime. However, in some cases of physical abuse to a child the guilty party may not realize that the shaking of a child caused a cerebral hemorrhage or that the twisting of a child's leg resulted in a fracture. Under this circumstance, it is important that the interview and interrogation focus only on behaviors the suspect knows he either did or did not engage in.
Every prosecutor and child protective service investigator would love to go into a court with a signed confession acknowledging that the defendant did cause the reported injuries to the child. The reality is that some individuals responsible for causing injury to a child do not know for certain that their actions caused the injuries. However, an abuser certainly knows whether or not he shook a baby, twisted a leg, pulled an arm or pushed the child's head against a wall. Under this circumstance, the statement or confession from a suspected abuser should attest to his acknowledged treatment of the child. Whether this treatment in all probability led to the child's injuries is a question for a judge or jury to decide.
Child sexual and physical abuse cases present a number of unique issues such as the one discussed in this web tip. Professionals who investigate these cases will greatly increase their skills by attending our 3-day course specifically addressing this topic.