When Questions Create Memories: Interrogative Contamination and the Reliability of Child Testimony in POCSO Cases

A child may have no reason to lie yet still remember an event differently from how it occurred. Children can give accurate accounts but may also be particularly susceptible to suggestion during retrieval for centuries, the courtroom has struggled with a paradox a child was considered innocent enough to be believed, yet too immature to be trusted. In 1849, this paradox made an appearance, a girl under five, Jane Pattrey, was prevented from giving evidence because she appeared unable to understand the nature of the oath. Law has evolved since then; the law has now come to acknowledge that children are not incompetent to testify. As stated in the case of Dattu Ramrao Sakhare v State of Maharashtra, the testimony of a child is sufficient for a conviction if the child is able to understand the questions, responds sensibly, and has integrity, although it is the responsibility of the court to be cautious about coaching.

The above reasoning was reiterated in the case of Ratansinh Dalsukhbhai Nayak v State of Gujarat where the Court faced a challenge from the prosecution on the issue of coaching of the child witness. The Court held that mere questioning of the child about the incident did not constitute coaching and that her evidence was true and genuine.

This issue has been recognized time and again by the Supreme Court. As stated in Panchi v State of U.P., the evidence given by a child witness can’t be rejected only on the grounds of age of the child but has to be considered with greater care and caution since the child is very likely to get affected by other people and hence may easily fall into the trap of being tutored. This issue was raised as to whether the testimony was given voluntarily by the child or was it the result of some influence by others.

In Mohd. Kalam v State of Bihar, it has been held again that the evidence given by a child witness should not be rejected out rightly but has to be scrutinized for its genuineness and freedom from any outside influence. In State of M.P. v Ramesh, the court took this one step further by noting that although some portions of the child’s statement may be seen as tutored, the rest of the statement can still be considered for evidential purposes provided that the two statements are separable and the untutored statement inspires confidence. This approach demonstrates how contamination is generally understood by the Indian courts, that is, as an influence that can be pinpointed and separated from a generally reliable account. However, the issue that arises from this approach is: what if the contamination is not the result of the influence of another person on the mind of the child? What if the contamination was done through the process of questioning itself? The child doesn’t necessarily have to be tutored for his/her account to be contaminated. The key difference here is that between tutoring and contamination of interrogation. The former asks about whether the individual has contributed to the child’s version; the latter asks about whether the process through which the child’s story was acquired might have had an effect on his/her memory. Indian jurisprudence has taken care of safeguards for the former. But the latter is relatively an untapped area, and the issue becomes relevant when in a courtroom the consistency of the child’s version is treated as a sign of credibility.

How Questions Shape Memory

However, memories cannot be treated as a tape recording because it involves reconstructive processes where any kind of information received after the incident might become a part of it during its recollection. One can find a good example in the retrospective of Elizabeth Loftus about the misinformation effect, where she shows the impact of the post-incident information on the person’s memory Consequently, one should consider that a retrieval process may affect the memory in question. This vulnerability of children has a great impact on the importance of the way the questions are posed. For example, an Indian study conducted by Ramaswamy et al., concerning preparation interventions for sexual abuse child victims before going to court, highlights the importance of helping children to refresh their memory without contaminating the process of collecting evidence through suggestion or coaching. In particular, the authors mention that an open-ended question like "who-where-what" is very useful for building up the child’s story and memory.

Repetition itself poses another issue. In their study of an actual forensic case involving six interviews conducted over four months, Orbach, Lamb, La Rooy and Pipe identified both consistent and emerging new information through repetition. Thus, repetition cannot be viewed as either good or bad; its impact will depend on what question is being asked, how it is asked, and under what conditions the information is retrieved. The principle of reality monitoring gives another way of approaching the question. The meta- analytical study conducted by Gancedo et al. demonstrates how people discriminate memories acquired through direct experience from information acquired through cognitive processes while accepting the possibility of errors. New information acquired during the interview process will make it hard for the child to discriminate between this information and his/her initial experiences. Nevertheless, Indian law continues to conceive contamination in the context of tutoring. The

Supreme Court in State of Madhya Pradesh v. Balveer Singh acknowledged the need to differentiate the child’s narration from those elements in it that may have been shaped in response to what the child had been told to say. Nevertheless, tutor contamination and interrogative contamination are two different problems. Tutor contamination poses the question of whether there is anyone who has coached the child in providing her narrative, while interrogative contamination poses the question of whether the very process of obtaining the narration has in itself contaminated the child’s memory. The child, therefore, could provide a completely genuine narration without realizing that she was repeating something that had been distorted during prior recollection.

The Missing Step of Interrogation

The issue becomes clearer when one considers the statutory framework not only in terms of where and by whom the statement of the child is to be recorded, but also in how the child is to be interrogated. The procedure provided for in s 24-26 POCSO Act contains crucial procedural protections: the child’s statement shall, as far as practicable, be recorded by a woman police officer at a place of the child’s choice; the officer shall be dressed in plain clothes; the child shall be protected from any contact with the accused. The child’s statement before a Magistrate shall be recorded as it has been made. Under sec 26, the presence of a parent or another trusted person, as well as audio and video recording, is allowed. The procedural framework has also passed into force of law through the BNSS. That which was previously provided in s 164(5A) CrPC is substantially repeated in s 183(6) BNSS, including, among others, safeguards related to children or persons with disabilities and interpreters or special educators. Nevertheless, these sections regulate the conditions of recording of the statement and not the interview procedure itself. This is most evident in the Patna High Court’s SOP for POCSO Courts. Questions are required to be asked through the Special Court and not by the prosecutor or the defendant directly, and the court is supposed to discourage any aggression on the part of the questions while at the same time reducing repeated appearances by the child. This SOP regulates who is allowed to ask and how the questions can be asked but says much less about the cognitive influence that these questions might have. The questions can thus fulfill all the criteria of indirectness, non-aggression, and child-friendliness and yet include some kind of assumption about the incident. The issue is not just whether or not the child was pressured into giving his answer, but also the way in which the question was phrased, giving the child the assumed answer. However, the legal framework cannot protect the validity of the testimony simply by making sure that the child is comfortable during the testimony. Rather, it needs to ensure the protection of the memory that will form the basis of this testimony. In order to achieve this, Indian courts need to draw a distinction between tutoring and interrogative contamination and conduct an investigation into how the child was questioned prior to their testimony. The procedure for POCSO should be guided by evidence-based questioning: open-ended questions, no repetition, no leading or assumption-based questions, and videotaping of all interviews.

Abhishek Anand

NUSRL, Ranchi