Good Enough for Government Work: The Constitutional Duty to Preserve Forensic Interviews of Child Victims

Abstract

Lucy S. McGough (*) I INTRODUCTION In a Memphis, Tennessee day-care abuse investigation, police investigators made videotapes of their interviews with young alleged victims. As might be expected, some of the children gave inconsistent accounts. (1) Quite unexpected, even shocking, is the fact that, after reviewing the interviews, an assistant attorney instructed the investigators to destroy the tapes so that they would not be available for discovery. (2) No verbatim transcripts were made, and the tapes were reused for other investigations. The Tennessee Supreme Court held that such behavior constituted willful prosecutorial misconduct in violation of Brady v. Maryland, (3) which requires disclosure of exculpatory evidence, that is, evidence that tends to support a claim of innocence. (4) In reversing the conviction and remanding for a new trial, the court barred the use of the children's videotaped interviews as proxy witnesses on retrial. (5) Any prosecutor concerned with controlling the flow of evidence would quickly appreciate the lesson of this Tennessee case: Destruction of a record is verboten, but if no record is ever made, there is nothing to disclose. Can the Constitution be so easily sidestepped? Is there a constitutional duty cast upon a prosecutor to preserve evidence, that is, to videotape a forensic interview of a child? This article proceeds with confidence on the premise that a forensic interview of a child by a member of the prosecutorial team offers many opportunities for compromising the reliability of the child's remembered account. A vast volume of research data now exists that documents the conclusion that the forensic interviewing of children is a very delicate, sophisticated, and high-risk enterprise. (6) Furthermore, there are so many additional advantages from videotaping for the administration of the criminal justice system, far outweighing any suggested disadvantages, that videotaping of forensic interviews of children should become standard operating practice. But, as this article reveals, videotaping is not universally required, and, indeed, off-the-record forensic interviews of children continue to be tolerated as "good enough for government work." Part II of this article presents a brief overview of the practice of videotaping forensic interviews of child victims. Part III explores the Supreme Court's evidence preservation cases and the contours of the prosecution's duties under the Due Process Clause. Part IV analyzes the nature of forensic interviewing and argues that even under the Court's current narrow interpretation of an accused's entitlements, videotaping is constitutionally mandated by fundamental fairness under the Due Process Clause. II THE PRACTICE AND BENEFITS OF VIDEOTAPING As the term is used in this article, "forensic" evidence is, to some degree, malleable in that it is evidence that the state can shape, as opposed to prevenient and fixed evidence that the state has collected. (7) A forensic interview of a child usually occurs soon after at least one interview has taken place in which the child has alleged abuse. This forensic interview is conducted for the purpose of creating evidence that will be admissible at trial, either as a recording of the interview or as testimony of the interviewer about what transpired during the interview. The salient features of a forensic interview of a child are that the state arranges, directs, and otherwise controls the creation of the evidence; that there is an opportunity for interviewer distortion of the evidence; that once contamination occurs, the distortion may be irreversible; that the state agent (the interviewer) cannot himself produce a faithful alternative record of the myriad interactions that occur during the interview; that the defendant cannot replicate this evidence by any other means; and that this evidence is the most critical and may be the only evidence of proof of the accusation. …