Does Your Child Forensic Interviewing Technique Meet Daubert Standards? In NC, Likely No (2019)
In order for evidence to be admissible in a court of law in federal and many states courts, including North Carolina, Daubert standards must be met. The Daubert standard comes from the Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993). Under Daubert , the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.
The "Gold Standard" if you will, of child forensic interviewing is the NICHD protocol. The protocol is an international evidence based investigative interviewing technique for the interviewing of children. There is ample research on this protocol and the use of the protocol has been deemed to meet Daubert in state and federal courts. This is the protocol I recommend every forensic interviewer utilize. It will stand up to scrutiny.
However, if you sample law enforcement professionals, child forensic interviewing professionals, and child advocacy professionals across North Carolina, you will find that the majority who have received training in a formal interviewing protocol have received training in the RADAR protocol. The RADAR protocol is taught through UNC's CMEP/CFEP program as well as at the North Carolina Justice Academy. The RADAR protocol does not currently have any peer reviewed publications (criteria 2). There is not a known or potential error rate (criteria 3). The protocol has not attracted widespread acceptance within a relevant scientific community (criteria 5). If there is testing regarding the theory (criteria 1) and existence of standards controlling the operations (criteria 4) those are not readily published or available for scrutiny.
In my work as a child forensic interviewer as well as a trial consultant, I am often asked to scrutinize interviews that have been completed by other interviewers, most often from child advocacy centers and law enforcement professionals. In a different post, I will discuss the common problems I find in the actual interview, but for this post, I want to discuss the selection of the technique used. If there is a technique or protocol used (very often there is not), it is overwhelmingly the RADAR protocol.
In discussion with those advocating the use of the RADAR protocol, I frequently raise concern that it does not meet Daubert. For arguments sake, we can discuss whether it meets Frye. I would argue that only in North Carolina would the protocol meet Frye (yet NC is not a Frye state) because the protocol is, to my knowledge, only used in North Carolina. Those of us who work in fields in which we support the pursuit of justice, we need to question why we are using protocols that do not meet basic standards for admissibility.