For the past 27 years, I have worked with child custody and criminal investigations in the state of Michigan. These types of investigations are divided into two broad investigative categories: behavioral science and hard science (DNA, serology, trace evidence, finger prints, chemistry, geology, biochemistry, etc.). For the most part, my investigative practice is behavioral in nature. Within the field of investigative behavioral science is witness identification and profiling. Witnesses legally fall under eyewitness testimony, which is generally presumed to be better than circumstantial evidence.
However, witness testimony can also be flawed, incorrect, and biased, according to studies in the investigational area of memory, eyewitness testimony, forensic interviewing, and false testimony. Faulty observations, lying, biases, and witness contamination can also negatively impact a witness and the justice process. In my past experience with interviewing witnesses, I have learned that witnesses often have additional motives other than their concern for justice being done. In order to identify any negative behavioral influences, a witness profile should be written for each individual witness.
What is a witness? A witness is anyone who has direct knowledge relevant to a legal proceeding. Only those limited by youth or mental incapacity are excluded. Ordinarily, witnesses are allowed to state only their direct knowledge and are required to express facts rather than opinions (Hillaker, F.L., Identifying, Profiling and Measuring Consistent Deviant Behaviors over Time, In Child Custody Investigations, 2007).
Definition of Witness Behavioral Indicators – A witness who sees, hears and/or perceives an event may testify to the event and that testimony can serve as evidence. Witness behaviors are those behaviors, internal (subconscious) and external (outward or conscious), which are exhibited by the witness’s thought, word and deed. The witness’s behaviors may indicate positive or negative outside behavioral influences from groups and individuals who come into contact with the witness. Witness behaviors are discovered by scientific study of a witness’s background. The practitioner should be looking for disease or the dysfunctional manifestation of (a) witness contaminator (s). The most significant examples of witness behavioral indicators are witness statements that change significantly over time and witness statements that never change, remaining verbatim.
There are five investigative elements to consider when investigating witnesses:
1. The length of time between the act and when the witness ‘reveals’
2. Who the witness revealed to
3. The relationship between the witness and the first person he or she revealed to
4. All family dynamics
5. The government interaction with the witness
Witness contamination occurs all the time in legal matters, but is under-recognized. If you have been involved in a legal matter where a witness gave mistaken or false testimony and you thought there was something more going on than you could identify, it is likely that a witness contaminator was involved.
Two case examples of possible witness contamination:
1. I was retained by an attorney to behaviorally profile a sex crimes case in Michigan. In my preliminary investigations, I discovered that the alleged victim was bipolar and known for lying, based on information from the victim’s immediate peer group. A covert interview with the victim was conducted, and, on three different occasions, the victim admitted that the defendant did not commit criminal sexual conduct; but, rather, the victim and the defendant engaged in consensual sex. The case was being pursued because the victim did not like the defendant anymore. There were also two other substantial behavioral elements discovered that impeached the victim’s claim that she was sexually violated.
2. In another sex crimes case I investigated, I observed the victim rights advocate and the Michigan state police officer shaking their heads ‘yes’ and ‘no’ to assist a testifying child witness with her answers. The misconduct was not seen by the defense attorney; but was observed by the judge, who did not say anything or admonish the court room work group.
Definition of (a) Witness Contaminator(s) – One or more who are present (indirectly or directly in communication) and/or have a direct presence of proximity to a witness who has knowledge of salient events.
Definition of Salient Events – Salient events are those fluid events that occur over time and are directly influenced by those who are involved and interacting in those particular events. The participants of salient events can be two or more persons.
Witness contaminators transmit their own thoughts and beliefs about a particular set of events onto a witness/victim, which influences the witness’s memory. As a result of this contact, the witness’s memories may be altered and impure. The contaminator may or may not have an agenda for communicating with a witness on an inappropriate level. That inappropriate level is when a witness contaminator changes the witness’s memory of salient events.
The witness may or may not know that their memories are being changed, influenced and/or affected. Witnesses’ memories may change slightly from an external influence and may alter testimony, changing the outcome in legal proceedings.
Who can be a witness contaminator? Potentially anyone who has contact with, or is in the presence of the witness can potentially be a witness contaminator. This includes parents, grandparents, foster care parents, social workers, therapist counselors, teachers, child protective services workers, forensic interviewers, police, friends, relatives, and peer group members.
How to detect witness contaminators? Many behavioral elements serve as predictors and evaluators that indicate witness contamination. There are three witness contaminator levels that indicate witness contamination through behavioral indicators. The main behavioral witness contaminator element is ‘intent.’
Witness contaminator levels, based on observations and evidence-based behaviors can be divided as follows: (1) Naïve, (2) Active and (3) Obsessed Alienators.
1. Naïve Witness Contaminators include persons who are passively concerned about the witness’s well-being and the witness’s relationship to someone else. The contaminator has a genuine concern for the witness’s well-being on their behalf, be it in a personal setting, in a legal setting, or in some other setting. The contaminator may be stating things to the witness/victim that do not seem right, and they may or may not know they are communicating inappropriately (In part: Darnell, D., North Dakota Law Review, Volume 75, (1999 pp. 1-3).
Naïve Witness Contaminator Behavioral Indicators
Someone who:
- Has contact with the witness/victim
- Has concern for the witness/victim and knows the witness/victim on personal or professional level
- Has inappropriate and/or frequent contact with the witness/victim or their family
- Makes inappropriate contact with the witness/victim.
- As a lay person, tries to counsel the witness/victim about their feelings
- May be mentally ill
2. Active Witness Contaminators are those who know better than to contaminate witnesses. They may include investigators, those who have a vested interest in the witness or the case and those who may or may not have been forensically trained in how to properly interview witnesses. Contaminators may think they have the witness’s well-being in mind or feel they know what is in the best interest of the witness, and they do not follow normal investigative forensic guidelines when investigating these types of cases. The contaminator may or may not realize they have inappropriately contaminated the witness/victim’s memory about an event and does not have the best interest of the witness or victim in mind (In part: Darnell, D., North Dakota Law Review, Volume 75, (1999, pp. 1-3).
Active Witness Contaminator Behavioral Indicators
Someone who:
- Has contact with the witness/victim
- Has concern for what the witness/victim may know
- Communicates with the witness/victim
- Makes assumptions about the alleged event
- Has inappropriate and/or frequent contact with the witness/victim
- Makes inappropriate physical contact with the witness/victim
- Talks about the case in front of the witness/victim
- Talks to others about the legal case the witness/victim is involved in
- Shares common concerns about the witness/victim
- Talks about the behavioral elements of the case
- As a lay person, counsels the victim about their well-being
- Is on a mission about the witness/victim and has a specific agenda
- May be mentally ill
3. Obsessed Witness Contaminators have an overt or covert cause to change the witness/victim’s memory. The contaminator has targeted someone by false allegations in a legal proceeding. Most witness contaminators have enough self-control or insight to recognize how their behavior is negatively impacting the witness. The witness contaminator(s) may feel justified in what they are doing and believe they are protecting the witness at any cost. A clinical investigator who is not emotionally attached to the case will be able to recognize these behaviors. (The behavioral key here is the perceived reality of the witness contaminator may not serve the best interest of justice being done.) Some obsessed contaminators may encourage others to “get involved” in seeking their misguided sense of justice (In part: Darnell, D., North Dakota Law Review, Volume 75, (1999, pp. 1-3).
Obsessed Witness Contaminator Behavioral Indicators
Someone who:
- Has had contact with the witness/victim
- Has a concern for the witness/victim
- Who communicates with the witness/victim
- Does not apply or use forensic interviewing or investigative methods
- Does not use accepted behavioral psychological investigative methods
- Has frequent contact with the witness/victim
- Has communicated inappropriately with the witness/victim
- Repeatedly talked to and/or questioned the witness/victim
- Talks to others about the case
- Shares concerns about the case with others
- Is hypothesis-confirming as opposed to hypothesis-testing
- Has an aggressive investigative style
- Has an aggressive personality
- Has a preconceived set of notions about the case/witness/victim
- Threatens the witness in any way with psychological or physical harm
- Takes charge of an investigation, family dynamic or family crisis
- Seems to be on a mission to get to the truth
- Is mentally ill
- Does not use clinical behavioral investigative methods
No one behavioral contaminator indicator means witness contamination. You should look at the totality of the family dynamics before scoring your witness profile.
The question arises: What is the best interest of the investigator’s legal case vs. the best interest of the witness?
Remember, when investigating witnesses and looking for witness contamination, it is always easier to discover what an investigator did wrong after the fact. When investigators and/or others are around witnesses who have direct knowledge of relevant facts of a legal proceeding, there is a transference of human communications – good or bad – concerning a witness’s memory of a salient event.
Frequency of contact, others’ motives and reality-based investigations
Family dynamics and criminal defense investigations can be complicated to pursue and investigate. Relationships and friendships are, at times, fleeting and ever-changing. Witnesses’ motives should be thoroughly investigated and examined behaviorally.
A good behavioral investigative rule to follow when investigating witness’s behaviors is to investigate not only the witnesses but the people who come into contact with the witness from the time the witness reveals they have knowledge of an event they witnessed to when the witness testifies at trial. The behavioral science is clear when discovering witness contamination: There are frequently people who make inappropriate contact with witnesses/victims.
We are all emotional human beings who do not see things with “new eyes,” but rather with emotionally biased eyes [and we are all fallible]. Children’s and adults’ statements in the court [room] setting is a dynamic process that does not start when the witness is sworn, but from the case intake when contact is first made with the witness. The behavioral investigative process is a dynamic process; a systematic, thorough investigation must be made, and all relevant behavioral cases and family dynamics need to be analyzed in depth. Prior interpersonal relationships, family dynamics and witnesses’ individual psychological [makeups] need to be analyzed and compared to the behavioral aspects of the case. The investigative question arises, how can we, as investigators, avoid contamination of a witness of [...] thought, word and deed (Luther, M., 1529) […] and avoid negatively impacting the investigative process (Hillaker F. L., Delta College, Lecture, 1993-2001).
Thus we should consider, “An investigator [or anyone who comes into contact with a witness] should by hypothesis-testing rather than hypothesis-confirming. A systematic, thorough inquiry must be must be made when investigating children and adults as witnesses” (Hillaker F.L. Identifying, Profiling and Measuring Consistent Deviant Behaviors over Time, In Child Custody Investigations, 2007 & Delta College lecture, 1993-2001).
As a parent, if your child became a victim/witness, would you not talk to your child about their feelings?
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