Expert Opinion

Recantation in Legal Contexts

When an eyewitness or victim recants, is it enough to halt an execution, lead to an exoneration, or influence prosecutors to drop a case?

By Lindsay C. Malloy, Jillian Rivard, MA, Allison P. Mungo, BA, and Peter Molinaro, MA

In recent years, recantation (i.e., the “taking back of” previous claims) has captured the attention of psychologists, legal scholars, and popular media. When an eyewitness or victim recants, is it enough to halt an execution, lead to an exoneration, or influence prosecutors to drop a case? Does a recantation damage a victim/witness/suspect’s credibility or change the minds of fact finders? In September of 2011, national and international media outlets covered the potential execution of Troy Davis, a man who had been convicted of murdering a Georgia police officer in 1989. Protesters’ signs claimed, “Too much doubt!” The doubt was cast largely by seven of the nine eyewitnesses recanting their prior testimony against Davis. The recantations were not persuasive to the courts, and Troy Davis was given a lethal injection on September 21, 2011. The Davis case illustrates the challenges and uncertainty that may result when people change their stories and recant their statements in legal contexts.

When evaluating the veracity of individuals’ claims, legal professionals and fact finders would benefit from a more comprehensive understanding of recantation, including the factors that influence its likelihood. Furthermore, it is critical that empirical research be made available to expert witnesses so that appropriate conclusions can be drawn about recanted statements. In this article, we will (1) call for additional research on recantation; (2) describe briefly a few methodological difficulties associated with studying recantation; and (3) highlight the importance of being mindful of the various interpretations of, and potential motivations behind, recantations.

Given children’s increased vulnerability to suggestion and external influences, their recantation of prior allegations, especially the underlying reasons why they recant, has been the subject of much debate (see London, Bruck, Ceci, & Shuman, 2005; London, Bruck, Ceci, & Wright, 2008; Lyon, 2007, for reviews). In fact, much of the research on recantation has focused on child sexual abuse allegations and consists of archival reviews of children’s case files. Because corroborative evidence rarely exists in child sexual abuse cases, children’s statements often become the primary focus of investigations and prosecutions. If such critically important statements are recanted, there may be little evidence to support an allegation. However, as evidenced by the previously discussed case of Troy Davis, recantations occur in a variety of other case types. More research is needed; in particular, it is critical to examine the prevalence and predictors of recantation among various types of crimes. Recently, Gross and Gross (2013) published preliminary findings concerning recantation from the National Registry of Exonerations. In their sample of 1,068 exonerations, 250 involved victim or witness recantations. Murder cases accounted for most of the recantations (55.6%; n = 139) followed by child sexual abuse cases (26.8%; n = 67). In addition to expanding the field research on recantation, it is imperative to conduct laboratory analogue studies, so that the underlying mechanisms of recantation and potential intervention strategies can be tested experimentally.

The limited research on recantation can be partially attributed to the methodological challenges inherent in examining it. For example, to study recantation in laboratory contexts, a minor act of wrongdoing (e.g., broken toy, cheating) must be committed and then disclosed by all participants. However, there may be individual differences in the rates or timing of initial disclosure which hinder the ability to draw firm conclusions about subsequent recantation. Furthermore, when examining “real world” cases in archival reviews, studies may differ in the specific definition of recantation and/or the length of time that cases are followed from initial disclosure (e.g., Bradley & Wood, 1996; Malloy, Lyon, & Quas, 2007). Currently, our lab is conducting a detailed analysis of substantiated child sexual abuse claims which were recanted during a dependency investigation (n=58). We are interested in, for example, what occurred post-recantation (e.g., whether claims were reaffirmed suggesting that recantations represent just temporary inconsistencies in children’s reports). Although most children were interviewed again after recanting, in 29% of the cases (n=17), no interviews were conducted post-recantation. Furthermore, children who were older, alleged more severe abuse, and had medical evidence consistent with abuse were significantly more likely to be interviewed again. Thus, it is possible that rates of reaffirmation are underestimated, and case or child characteristics may determine who has the opportunity to reaffirm.

It is important to consider the various interpretations of recanted statements and to be aware of how recantations are evaluated in different contexts and with different populations (Malloy & Lamb, 2010). For example, investigating child sexual abuse allegations, Malloy et al. (2007) found that children’s vulnerability to adult familial influences predicted recantation (i.e., those who were younger, had made accusations against a parent figure, and had nonoffending caregivers who reacted unsupportively to disclosure were more likely to recant). However, recantation was unrelated to whether children’s allegations were corroborated by external evidence (e.g., medical evidence, suspect admission) or to whether custody issues affected the involved parties. In other words, it appears that at least some children recanted true allegations of sexual abuse, seemingly due to familial pressures. It is imperative to be attentive to both concerns about the risk of false allegations as a result of children’s suggestibility, and the potential external pressures that may exist for children (and adults) to falsely deny or recant allegations of wrongdoing.

The underlying meaning of, and motivation for, recantation and the corresponding weights given to the original versus recanted statement by others may depend in part on the legal role of the speaker. For example, false confessors may be presumed to be telling the truth when confessing and only recanting to avoid punishment. Redlich, Kulish, and Steadman (2011) found that self- reported false confessors were more likely to have received prison sentences than self-reported true confessors. The authors speculated that perhaps false confessors had tried to recant their statements which resulted in more punitive sentences – an important question for future research. In our recent work (Molinaro & Malloy, 2013), we examined jurors’ evaluations of statements from young victims, witnesses, and suspects. For adolescent suspects, recantation neither impacted impressions of the perceived quality of their confession statements nor their overall blameworthiness (both of which were rated as high). In contrast, when jurors read recanted statements from victims, witnesses, and younger suspects (age 10), they rated the quality of their initial statements as less compelling. This research further supports the premise that recantation is differentially evaluated based on both the juvenile’s age and legal role. Despite the methodological challenges, more laboratory and field research is needed on the prevalence and predictors of recantation, including the potential differences across various types of crimes. Additionally, research should continue to examine jurors’ and judges’ perceptions of recantation.

References

Bradley, A.R., & Wood, J.M. (1996). How do children tell? The disclosure process in child sexual abuse. Child Abuse and Neglect, 20, 881-891.

Gross, A.E., & Gross, S.R. (2013). The National Registry of Exonerations witness recantation study: Preliminary findings. Retrieved from http://www.law.umich.edu/special/ exoneration/Documents/RecantationUpdate_5_2013.pdf

London, K.L., Bruck, M., Ceci, S.J., & Shuman, D.W. (2005). Disclosure of child sexual abuse: What does the research tell us about the ways that children tell? Psychology, Public Policy, & Law, 11, 194–226.

London, K., Bruck, M., Wright, D. B., & Ceci, S. J. (2008). Review of the contemporary literature on how children report sexual abuse to others: Findings, methodological issues, and implications for forensic interviewers. Memory, 16, 29–47.

Lyon, T.D. (2007). False denials: Overcoming methodological biases in abuse disclosure research. In M.E. Pipe, M.E. Lamb, Y. Orbach, & A.C. Cederborg (Eds.), Child sexual abuse: Disclosure, delay, and denial (pp. 41-62). Mahwah, NJ: Erlbaum.

Malloy, L. C., & Lamb, M. E. (2010). Biases in judging victims and suspects whose statements are inconsistent. Law and Human Behavior, 34, 46-48.

Malloy, L., Lyon, T. D., & Quas, J. A. (2007). Filial dependency and recantation of child sexual abuse allegations. Journal of the American Academy of Child and Adolescent Psychiatry, 46, 162–170.

Molinaro, P. F., & Malloy, L. C. (2013, March). Statements from youth in legal contexts: The role of age, legal role, and consistency. Paper presented at the annual meeting of the American Psychology-Law Society, Portland, OR.

Redlich, A. D., Kulish, R., & Steadman, H. J. (2011). Comparing true and false confessions among persons with serious mental illness. Psychology, Public Policy, and Law, 17, 394–418.