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From: "Alex Constantine" <[EMAIL PROTECTED]>
To: "Lloyd" <[EMAIL PROTECTED]>
Cc: "Lynn" <[EMAIL PROTECTED]>
Subject: Debunking "False Memory" Myths
Date: Monday, September 11, 2000 9:00 PM
From: Trial
Journal of the Association of Trial Lawyers of America
November 1997
Debunking "false memory" myths in sexual abuse cases
by Wendy J. Murphy
An aggressive litigation strategy can head off defense claims that memories
of trauma are all in the victim's head.
For many years, adult survivors of child sexual abuse have been filing civil
claims for damages. In some cases, plaintiffs file their claims decades
after the abuse ends because the nature of the trauma renders them incapable
of filing earlier.
These cases can be broken down into two categories. In "recovered memory"
cases, victims had no memories of the abuse until years later. In
"appreciation" cases, victims remembered being abused but did not appreciate
the causal relationship between the childhood abuse and the psychological
and emotional injuries they suffer as adults. This article addresses an
issue that is likely to come up only in the former category of cases.
Recovered memory cases are facing new and substantial pre-trial hurdles,
sometimes leading to dismissal orders and summary judgment decisions that
deny victims their day in court. At the heart of the problem is the largely
contrived controversy around "false memory syndrome" and the alleged
unreliability of "repressed" memories.
While public debate about so-called false memories has been raging for
years, increasing numbers of trial and appellate court decisions involving
this issue are just now being issued. These decisions reflect significant
lack of uniformity among the courts, not only in the results but also in the
reasoning and even in the context within which the memory issues are
analyzed.
The typical defense strategy in these cases is to file pre-trial motions
challenging the reliability, and hence admissibility, of expert testimony
regarding recovered memories. In some cases, these motions are filed as
early as the preliminary injunction stage. Reliability issues are also
raised in motions to dismiss and for summary judgment.
Usually, the defense also seeks to offer its own "expert" testimony to
counter the plaintiff's scientific evidence that the mind can avoid or
repress traumatic information and then recall it years later.
The plaintiff's best approach is to anticipate this defense strategy and
take the first step by filing a motion to exclude the defendant's evidence.
Plaintiffs should file this motion early to persuade the court that the
defendant's assets should be attached because the claim has merit.
While there is not yet a reported court ruling on this type of motion, this
strategy will likely work as a preemptive strike against inevitable attacks
on the plaintiff's experts. It will also provide judges with accurate
information about the scientific reliability of traumatic memory evidence.
Defense use of Daubert
To support their efforts to exclude recovered memory evidence, defendants
generally rely on the U.S. Supreme Court decision in Daubert V. Merrell Dow
Pharmaceutical, inc.[1] Under Daubert, the proponent of an expert opinion
based on scientific knowledge must establish the opinion's reliability and
relevance before it may be admitted. Whether the proponent has satisfied
these requirements "entails a preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid
and of whether that reasoning or methodology properly can be applied to the
facts in issue."[2]
The relevance prong is fairly straight-forward. As the Court noted, "Expert
testimony which does not relate to any issue in the case is not relevant
and, ergo, nonhelpful."[3] Defining "helpfulness" in Daubert, the Court said
there must be a "valid scientific connection to the pertinent inquiry as a
precondition to admissibility."[4]
The reliability prong is more problematic. Most courts properly read Daubert
to determine reliability by examining the integrity of the methodology
behind the opinion. However, Daubert's application has been awkward in
recovered memory cases because the decision discussed scientific reliability
in a toxic tort case involving objectively testable "hard" science.
Daubert's indicators of reliability have limited value when the testimony at
issue is rooted in behavioral or "soft" sciences.
It would be reasonable for a court to rule that classic scientific
principles cannot resolve the reliability question in recovered memory
cases. But, if an attempt is made to determine reliability, traumatic memory
research should be judged by standards different than those applied in
Daubert. For example, a court might apply the standards used to determine
the admissibility of diagnoses listed in the fourth edition of the
Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Published by
the American Psychiatric Association, this book is the foremost diagnostic
manual of the mental health profession.
In a small but disturbing trend, some courts read Daubert to require the
plaintiff to demonstrate the scientific reliability not only of expert
testimony involving traumatic memory science, but also of lay testimony.
This effectively requires the plaintiff to prove the reliability of his or
her own memory. In effect, some courts have required plaintiffs to establish
their personal credibility to a degree of "scientific certainty," even
though personal credibility in a civil trial can be established by a mere
preponderance of the evidence.[5]
When a Daubert hearing leads to the exclusion of the expert's opinion and
the plaintiff's personal testimony, summary judgment for the defense almost
always follows because the plaintiff usually has little, if any, evidence
remaining. While a few courts have reached this drastic result, more
sophisticated decisions properly acknowledge the overwhelming scientific
support for the reliability of recovered memory evidence. In these cases,
summary judgment is denied, and the credibility of the plaintiff's testimony
is, as it should be, determined by the jury. [6]
Another common defense tactic is to try to have the case dismissed on
statute of limitations grounds. Under state laws, the statute of limitations
may or may not be tolled in recovered memory cases. Most states have some
flexibility, if not in the common law, then by statute.
When the defense challenges a filing delay, courts sometimes undertake a
Daubert analysis of traumatic memory science to determine whether the
plaintiff should be allowed to rely on expert testimony to justify the
delay.
Plaintiff lawyers who understand the defense strategy in these cases can
head it off by taking the first step into the recovered memory debate.
Filing an affirmative motion to exclude the defendant's expert evidence
about "false" memories is an aggressive way to defend traumatic memory
science. The motion may be filed according to Daubert's standards or under
Federal Rule of Civil Procedure 403 (general helpfulness) or 702
(helpfulness of "scientific, technical, or other specialized knowledge").
Lawyers may also use state law analogues to Daubert and the federal rules.
The defense will seek to introduce as evidence published and unpublished
studies purporting to demonstrate the existence of "false memory syndrome."
The defense will also seek to introduce research allegedly showing that the
mind can be "implanted" with false memories of sexual abuse. Defendants may
also try to offer evidence that traumatic events--for example, the space
shuttle Challenger explosion--are highly memorable and cannot be repressed.
The plaintiff's motion to exclude this evidence should argue that none of it
evaluates whether the mind is capable of repressing child sexual abuse.
Accordingly, the evidence should be excluded regardless of scientific
reliability because it is irrelevant and cannot assist the jury in deciding
issues in the case.
The reality of traumatic memories
Of course, plaintiff lawyers who file this type of motion must understand
the research that supports the reliability of traumatic memories and be able
to argue its validity effectively.
Research conducted over more than 100 years shows that the mind can avoid
conscious narrative or visual recall of traumatic information and recover it
years later. Several recent publications provide good overviews of the
scientific support for recovered memories of sexual abuse survivors.[7]
In studies dating back to the 19th century, French philosopher and
psychologist Pierre Janet found evidence that victims of trauma experienced
amnesia for some or all aspects of the trauma.[8] According to Janet,
traumatic memories consist of images, sensations, and emotional and
behavioral states. This is different from narrative memory--what lay people
commonly refer to as memory--otherwise known as symbolic or explicit memory.
Janet observed that intense emotional experiences could lead to continuous
and retrograde amnesia that splits off the traumatic memories from ordinary
consciousness. The traumatic information is nonetheless retained as
"unconscious fixed ideas" that cannot be assimilated into consciousness as
long as they have not been acknowledged and understood. Inability to
understand and face the trauma causes it to intrude into consciousness in
the form of terrifying perceptions, obsessional preoccupations, and anxiety
disorders.
Janet's findings have consistently been confirmed in studies over the past
century, including several in recent years (see accompanying sidebar). His
research helps explain why some visual memories are recovered when
stimulated by an emotional reminder of the traumatic event. To some extent,
this is like the emotional reminder a person experiences when he or she
hears an old love song or smells the cologne or perfume of a loved one.
Because of strong support in the research, recovered memory science has been
recognized as valid by a number of medical authorities:
American Psychiatric Association. The DSM-IV recognizes the existence of
posttraumatic stress disorder, dissociative amnesia,and dissociative
identity disorder [9]. Each of these terms, which refer to what lay people
usually call "repression," describe a fragmenting of the brain during a
traumatic experience. This fragmenting process illustrates why trauma
victims often cannot relate a cohesive visual narrative of child sexual
abuse and why sometimes the memories of those incidents resemble seemingly
unconnected and sometimes objectively unbelievable pieces of events.
These diagnoses reflect a well-established scientific recognition that the
mind can avoid conscious visual recall of traumatic experiences. In most
cases, the mere fact that these diagnoses are listed in the DSM-IV should be
ample evidence to establish the reliability of expert scientific testimony
about recovered memories.
The association has also issued a formal "Statement on Memories of Sexual
Abuse," which noted, Children and adolescents who have been abused cope with
the trauma by using a variety of psychological mechanisms. In some
instances, these coping mechanisms result in a lack of conscious awareness
of the abuse for varying periods of time. Conscious thoughts and feelings
stemming from the abuse may emerge at a later date.[10]
American Medical Association. A report of the AMA's Council on Scientific
Affairs confirmed that there are cases in which amnesia resulted from
childhood sexual abuse and that the "recovered memories proved to be
correct."[11]
British Psychological Society. This organization issued a working group
report that called the false memory position on repression "extreme."
According to the report, the scientific evidence reveals that between
one-third and two-thirds of abuse victims had periods when they "totally or
partially forgot the abuse." The report also noted that there is "much less
evidence on the creation of false memories."[12]
American Psychological Association. A recent association report acknowledged
that "it is possible for memories of abuse that have been forgotten for a
long time to be remembered." [13]
Defense evidence
To counter this overwhelming evidence that the mind is capable of repressing
traumatic memories of child sexual abuse, defendants will attempt to have
their experts testify about "false memory syndrome," the implanting" of
"false memories," and the "highly memorable nature" of traumatic events.
Plaintiff lawyers can makea strong case that none of these is reliable or
relevant to child sex abuse cases.
False memory syndrome. This simply does not exist as a recognized medical
condition. The phrase was coined by the False Memory Syndrome Foundation, an
organization formed to provide legal and emotional support to those accused
of sexual abuse.
While nobody would argue that memory is perfect, imperfection is hardly
enough to merit recognition of a medical syndrome. Indeed, the DSM-IV
nowhere recognizes this condition, and no studies or research exists to
suggest that anyone suffers from it.
Defense experts sometimes try to demonstrate that false memories exist
because people have been known to allege that they were sexually abused as
children, only to recant later.
While recantations do occur, albeit infrequently, they usually occur because
the victim was rejected by his or her family, because the memory was too
painful to manage, or because the victim was threatened. Sometimes, a victim
agrees to recant his or her story as part of a confidential settlement.
Whatever the motivation for recantations, this hardly demonstrate the
existence of "false" memories.
Given the lack of any scientific basis for false memory syndrome evidence,
testimony about the syndrome clearly cannot satisfy Daubert's reliability
prong. Moreover, this testimony has no probative value in most of these
cases. Without probative value or scientific integrity, this testimony
should be excluded.
"Implanted" memories. Defense experts often testify about studies showing
that people are suggestible and may be misled to believe, for example, that
they saw a certain color or witnessed a particular event. These studies do
not involve protracted, secret child sexual abuse, so the testimony has no
bearing on most recovered memory cases.
Moreover, there is no scientific evidence to suggest that the mind is
capable of being "implanted" with wholly false memories of sexual abuse. In
a recent study, scientists tried to mislead adult test subjects to believe
that they had been lost in a shopping mall as children. They also tried to
convince them that they had experienced rectal enemas as children.
While 3 out of 20 subjects erroneously claimed to have been lost in the mall
(a relatively common and familiar experience),no subjects would erroneously
agree that they had had a rectal enema.[14]
Defense experts, nevertheless, will try to testify that it is possible to
implant false memories of sexual abuse based simply on the fact that human
beings are vulnerable to suggestion. To be sure, advertising would not exist
if people were not suggestible to some degree. However, persuading a person
to buy a product is a far cry from implanting a wholly false memory of rape.
The highly memorable nature of traumatic events. Defense experts will try to
offer anecdotal testimony about reactions to traumatic public events like
the Challenger explosion and the assassination of John F. Kennedy. They seek
to prove that these experiences are highly memorable and not capable of
being repressed. But these public events in no way compare with the highly
personal and often protracted trauma of child sexual abuse.
Even if the testimony that the defendant's experts wish to offer could be
seen as originally relevant in some cases, courts could exclude it because
it imposes on the jury's function of determining the credibility of a
witness.
This evidence will confuse, mislead, and unfairly prejudice the jury against
the plaintiff, and it will needlessly consume the court's time in the trial
of collateral issues.
Aggressive Strategy
Overwhelming scientific evidence demonstrates that the mind is capable of
avoiding conscious recall of traumatic memories of sexual abuse and then
recovering them. Whether the mind behaved in this manner in a particular
case should be an issue for the jury.
The defendant's approach in these cases to counter well-established science
with tangential research. This tactic threatens to deny sexual abuse victims
their day in court by questioning their personal credibility under the guise
of seeking "scientific reliability."
Plaintiff attorneys who pursue an aggressive litigation strategy that
anticipates this defense will help level the playing field. The key is to
support the plaintiff's case by providing the court with overwhelming
evidence of the reliability of traumatic memories.
Supportive studies on recovered memories
The following research studies, among others, support the reality of
traumatic memory loss as a result of sexual abuse. These studies should be
included in the plaintiff's motion to exclude testimony by the defense on
so-called false memories.
-F.Albach et al., Memory Recovery of Childhood Sexual Abuse, Dissociation
(1997, in press)
-J. Briere & J. Conte, Self-reported Amnesia for Abuse in Adults Molested in
childhood, 6J. Traumatic Stress 21 (1993)
-A. W. Burgess et al., Memory Presentations of Childhood Sexual Abuse, 33 J
Psychosocial Nursing & Mental Health Servs. 9 (1995)
-C. Cameron, Women Survivors Confronting Their Abusers: Issues, Decisions
and outcomes, 3J. child Sexual Abuse 7-35 (1994)
-DM. Elliott & J. Briere, Posttraumatic Stress Associated with Delayed
Recall of Sexual Abuse: A General Population Study, 8J. Traumatic Stress 629
(1995)
-Shirley Feldman-Summers & Kenneth S. Pope, The Experience of "Forgetting"
Childhood Abuse: A National Survey of Psychologists, 62 J. Consulting &
Clinical Psychol 636 (1994)
-Judith Lewis Herman & Emily S. Schatzow, Recovery and Verification of
Memories of Childhood Sexual Trauma, 4 Psychoanalytic Psychol. 1 (1987)
-Richard P. Kluft, The Argument for the Reality of the Delayed Recall of
Trauma, in TRAUMA AND MEMORY: CLINICAL AND LEGAL CONTROVERSIES 25 (Paul S.
Appelbaum et al. eds., 1997)
-Elizabeth F. Loftus et al., Memories of Childhood Sexual Abuse: Remembering
and Reprising, 18 Psychol. Women Q 67 (1994)
-Melissa A. Polusny & Victoria M. Follette, Remembering childhood Sexual
Abuse: A national Survey of Psychologists' Clinical Practices, Beliefs, and
Personal Experiences, 27 Prof. Psychol.: Res. & Prac. 41 (1996)
-Catherine M. Roe & Mark F. Schwartz, Characteristics of Previously
Forgotten Memories of Sexual Abuse; A Descriptive Study, 24 J. Psychiatry &
L. 189 (1996)
-T.A. Rosler & T.W. Wind, Telling the Secret: Adult Women Describe Their
Disclosures of Incest, 9 J. Interpersonal Violence 327-38 (1994)
-Lenore Terr, What Happens to Early Memories of Trauma? A Study of Twenty
children Under Age Five at the Time of Documented Traumatic Events, 27 J.Am.
Acad. Child 7 Adolescent Psychiatry 86 (1988)
-B.A. van der Kolk, The Body Keeps the Score: Memory and the Evolving
Psychobiology of Postraumatic Stress, 1 Harv. Rev. Psychiatry 253 (1994)
-B.A. van der Kolk & R. Fisler, Dissociation and the Fragmentary Nature of
Traumatic Memories: Overview and Exploratory Study, 8 J. Traumatic Stress
505 (1995)
-L.M. Williams, Recall of childhood Trauma: A Prospective Study of women's
Memories of Child Sexual Abuse, 62 J. Consulting & Clinical Psychol. 1167
(1994)
*********
Notes:
1. 509 U.S. 579 (1993).
2. Id. at 592.
3. Id. at 591 (quoting 3 JACK B. WEINSTEIN ET AL., WEINSTEIN'S EVIDENCE
702{02}l, at 702-18(1988)).
4. Id. at 592.
5. State v. Hungerford, 1997 N.H. Lexis 64, *24 (N.H. 1997); S.V. v. R.V.,
933 S.W.2d 1, 18-20 (Tex. 1996) (but see powerful dissent by Justice Owen).
6. Shahzade v. Gregory, 923 F. Supp. 286 (D. Mass. 1996); see Hoult v.
Hoult, 57 F3d 1(1st Cir.1995); Isely v. Capuchin Province, 877 F Supp. 1055
(E.D. Mich. 1995); Phinney v Morgan, 654 N.E.2d 77, 80 (Mass. App. Ct),
review denied, 656 N.E.2d 1258 (Mass. 1995); Ault v. Jasko, 637 N.E2d
870,872 (Ohio 1994).
7. DANIEL BROWN. MEMORY TRAUMA TREATMENT AND LAW (1997); JENNIFER J. FREYD,
Betrayal Trauma: The Logic Of Forgetting Childhood Abuse (1996); B.A. van
der Kolk & R. Fisler, Dissociation and the Fragmentary Nature of Traumatic
Memories: Overview and Exploratory Study, 8 J. TRAUMATIC STRESS 505(1995).
8. See generally PIERRE JANET, LAUTOMATISME PSYCHOLOGIQUE (1889).
9. DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS �300.12, at 478-81,
�309.81. at 424-29, �300.14, at 487(4th ed. 1994).
10. American Psychiatric Ass'n, Statement On Memories Of Sexual Abuse
(1993).
11. COUNCIL ON SCIENTIFIC AFFAIRS. AM. MED. ASS'N, MEMORIES OF CHILDHOOD
ABUSE (1994).
12. BRITISH PSYCHOLOGICAL SOC'Y, REPORT BY THE WORKING GROUP ON RECOVERED
MEMORIES (1995).
13. AMERICAN PSYCHOLOGICAL ASS'N. FINAL REPORT FROM THE WORKING GROUP ON
INVESTIGATION OF MEMORIES OF CHILDHOOD ABUSE (1996).
14. K. Pezdek, Planting False Childhood Memories: When Does It Occur and
When Does It Not? paper presented at the 36th Annual Meeting of the
Psychonomics Society (Nov. 10-12, 1995).
Wendy J. Murphy is of counsel with the Boston law firm of Brody, Hardoon,
Perkins & Kesten. She acknowledges the contributions of Professors Cynthia
Bowman and Elizabeth Mertz of Northwestern University School of Law, who
generously shared with the author a legal brief in which they compiled much
of the scientific research on recovered memories. �1997, Wendy J. Murphy;
Used By Permission.
------------------------------------------------------------------------
Following is the APA-style citation for this article, which may be copied
and pasted into your document.
Murphy, Wendy J. (1997). Debunking "false memory" myths in sexual abuse
cases. Trial: Journal of the Association of Trial Lawyers of America,
November, 1997. Retrieved September 11, 2000 from the World Wide Web:
http://idealist.com/facts/murphy.shtml
To link to this document:
<A HREF="http://fmsf.com/murphy.html">Debunking "false memory" myths in
sexual abuse cases</a> by attorney Wendy J. Murphy.<p>
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