‘This incident happened when there were 10 people in the house?’ Exploring a framework to categorize defense attorneys’ plausibility questioning in CSA trials

ABSTRACT

While researchers find that attorneys in CSA trials dedicate substantial time to questioning children about the plausibility of their reports, we know of no study to date that has assessed the types of plausibility issues attorneys raise, the relative frequency of different types, or if attorneys vary their plausibility questioning depending on case characteristics. In the current study we explored these questions. Guided by the story model of jury decision-making, we proposed defense attorneys would raise plausibility issues by (1) highlighting jurors’ misconceptions about CSA dynamics; (2) highlighting confusing or implausible statements made by the child; and (3) offering alternative explanations for events. We conducted a content analysis of the cross-examinations of 134 children aged 5–17 testifying about alleged CSA. We found that attorneys raised all three proposed types of plausibility questioning, and they varied their plausibility questioning somewhat by age, severity, child-defendant relationship, and the number of victims in the case. Attorneys’ preferred strategy was to highlight jurors’ misconceptions about CSA. Prosecutors should address jurors’ misconceptions preemptively in direct examinations of children or through expert testimony. Beyond implications for courtroom practices, our plausibility framework may apply to plausibility concerns raised in other crime types, something researchers should explore.

KEYWORDS:

• child sexual abuse
• attorney questioning
• content analysis
• plausibility
• story model of jury decision-making

Disclosure statement

No potential conflict of interest was reported by the author(s).

Data availability statement

The data that support the findings of this study are available from the corresponding author, Suzanne St. George, upon reasonable request.

Notes

1 Rape myths are ‘attitudes and beliefs that are generally false but are widely and persistently held, and that serve to deny and justify male sexual aggression against women’ (Lonsway & Fitzgerald, 1994, p. 134). They include such myths as ‘victims provoke rape with their dress or behavior’; ‘most rape reports are false’; and ‘if a person doesn’t resist, you can’t call it rape’; among others.

2 For example, in the context of abuse, a person may describe penetration. Questioning the plausibility of this act may include assessing the child’s clothing placement, as penetration through clothing may be logically improbable. Questioning the honesty of such a claim may instead focus on if someone else told the child to describe penetration, or if the child is lying about penetration, and questioning about consistency may ask why the child described penetration at trial, but not in their disclosure to police.

3 Assessing if CSA allegations are false (e.g. motivated by a custody dispute) or misunderstandings (e.g. normal, non-abusive behavior) is an important function of the defense attorney’s role in the adversarial process. However, in practice, questioning may be less about revealing false reports, and more about exploiting jurors’ misconceptions about the frequency of false reports and motives for fabrication. Given false reports of CSA are uncommon (2-5%) (O’Donohue et al., 2018), and rates of attrition, particularly in the early stages of case processing (e.g. investigation), are high (Block & Williams, 2019; Christensen, 2016; Christensen et al., 2016), false reports of CSA that make it to the point of trial are probably very rare. Nevertheless, researchers reveals exaggerated and empirically unsupported skepticism in children’s reports of CSA (Goodman-Delahunty et al., 2017). Defense attorneys, therefore, may exploit this skepticism by framing children’s reports as implausible and therefore, fabricated, or lacking the necessary elements to rise to the level of abuse.

4 Although the laws, practices, and procedures for assessing a defendant’s guilt vary somewhat across regional and international jurisdictions (e.g. the size of the jury, the standard of proof, and whether a child must testify in court, [Braun, 2019]), we expect that the conceptual and cognitive processes that jurors undertake to arrive at their verdicts is consistent across locations.

5 Some general plausibility questioning may ask about rape myths (e.g. the presence of force or resistance) and misconceptions about CSA (e.g. the presence of witnesses). Despite some overlap, general plausibility questioning as we define it differs conceptually from rape myths and CSA myths. First, while it includes specific components of both rape myths and CSA misconceptions, it excludes others. General plausibility questioning focuses on specific abuse episodes, while questioning about rape myths and CSA misconceptions may include questions more peripheral to the abuse incident, like questions about disclosure. Furthermore, while rape myths and CSA misconceptions may invoke plausibility concerns – concern that the abuse occurred as described, conceptually, they also may invoke concerns about suggestibility and honesty. Questions about motives to lie (i.e. rape myths; St. George et al., 2021a) and disclosure denials (i.e. CSA misconceptions; Denne et al., 2022) relate more to concerns that the child lied or was coached, than if they described abuse occurring in plausible ways.

6 A defense attorneys’ broader case strategy may include offering an alternative narrative for the alleged crime and the defendant’s role in it. Alternative explanations plausibility questioning may be one way the defense offers evidence to support their narrative. For example, an attorney offering a mistaken identity narrative may question a child about their certainty that the defendant was the abuser and offer other evidence suggesting an alibi.

7 Given some cases involved multiple children testifying, some testimonies were clustered within defense attorneys. We estimated models with robust standard errors to address this clustering, and we compared these results to those presented here. Results were not substantively different across models. Effect sizes were the same and standard errors changed only slightly (e.g. at the .01 decimal). The p-value of penetration on alternative explanations plausibility changed from .038 in the regular model to .051 in the robust standard error model.

Additional information

Funding

This work was funded by the Eunice Kennedy Shriver National Institute of Child Health and Human Development [grant number HD087685].