How to Keep Out The Forensic Interview

by: Ryan Scott • May 21, 2025 • no comments

For the past couple of years, I have encouraged a variety of arguments for keeping out the forensic interview in child sex cases. Not a lot of appellate success so far. Right now, though, I want to focus on excluding it under OEC 403. I've made the argument a couple of times myself, I've written an appellate brief on the issue, I've read other appellate briefs on the issue, and I've read trial transcripts where the arguments were raised. Here is a step-by-step process for what I think is the best way to maximize your chances of either keeping out the interview or winning on appeal, although my thought process is constantly involving.

(1) Get a transcript of the CARES/Children's Center/Liberty House interview. (2) Identify individual statements that should be kept out for the usual reasons, and write a motion in limine to keep out the individual statements. (3) Have a checklist of everyone the complainant disclosed to prior to the forensic interview. Include a summary of what was said in each one. (4) Identify every way that the interview as a whole is different than prior statements made by the complainant.

There is "heads I win/tail you lose" aspect to the probative value of the interview. If the statements are consistent with prior statements, the probative value is that consistency. If there are additional or different details, then it is a demonstration of the "process" of disclosure.

Consequently, when you are highlighting any differences, what you want to note are the following:

(5) The age of the complainant at the time of the interview. The probative value of an interview when the child is 10 is likely to be much higher than when they are 17. (6) Whether the details are "additional" or "inconsistent." (7)