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NC State Supreme Court on Repressed Memory Case

FMSF News Alert - March 20, 2013

Dear FMSF Friends,

While movies, books and television still frequently romanticize recovered memories, the courts continue to battle the scientific status of recovered memories. J Bean's update of a North Carolina case shows how the law in that state is slowly taking shape. It helps to make the slow pace of change more understandable when we remember that such battles need to take place in each of our states. - Pam

State Supreme Court Weighs in on Repressed Memory Case

--J. Bean

In the January News Alert we provided a summary of the decision(s) in North Carolina v King, in which we concluded that the decision effectively barred all repressed/recovered memory testimony from North Carolina courts. Further developments have modified that result.

The Case: In 2005, Melvin King was criminally charged based on his daughter’s alleged repressed and recovered memories of sexual abuse. Based on a precedent established in Barrett v Hyldburg (1), the state was required to present expert testimony regarding repressed memory before the alleged victim’s recovered memory testimony could be admitted as evidence.

An evidentiary hearing was held by the trial court to determine whether the recovered memory testimony would be admissible. Dr. James Chu testified for the prosecution explaining the theory of dissociative amnesia (aka repressed memory). Dr. Harrison Pope testified for the defense, showing the flaws in the research and pointing to the extreme amount of disagreement surrounding these theories in the relevant scientific community.

After weighing the testimony of both experts, the trial court found that the expert testimony should be excluded, saying in part, "The scientific aura surrounding repressed memory theory and an expert who would testify about it might become so firmly established in the minds of potential jurors that they may assign undue credibility to repressed memory evidence."(2) This decision was upheld by the appellate court.

Because the decision in Barrett v Hyldburg required expert testimony and the decision in King excluded any such expert testimony, this effectively barred any claims of repressed and recovered memories from reaching North Carolina courtrooms.

Update: The prosecution appealed this decision to the North Carolina Supreme Court. This court again affirmed the trial court’s decision to exclude the expert testimony, and consequently any testimony regarding the memory repression of the alleged victim in King saying, "When a judge concludes that the possibility of prejudice from expert testimony has reached the point where the risk of the prejudice exceeds the probative value of the testimony [NC statutory rules prevent] admission of that evidence."(3) (4)

The court then stressed that this decision was based solely on the evidence presented in King, affirming only that the trial court had not abused its discretion by excluding the expert testimony in this case. The state supreme court further found that the alleged victim could testify to her memories, but may not offer any explanation as to her latent recall which includes mention of repressed/recovered memories without the (already disqualified) expert testimony. Therefore, if the state chooses to continue with its case, it would be up to the defense to broach the subject of the dissociative amnesia controversy and by doing so "possibly igniting a duel of experts". (3)

Reasoning for this modification was due in part to Dr. Harrison Pope’s testimony indicating that "He would consider changing his position if confronted with a study conducted using reliable methodology that yielded evidence supporting the theory [of repressed memory]. " (3)

This modification by the NC Supreme court in King now leaves the North Carolina state courts open to considering a claim of repressed/recovered memory in the event that a reliable study confirming the theory of dissociative amnesia is ever conducted and accepted by the relevant scientific community.

After seven years in the courts, the case of State v King has been dismissed based on violations of the defendant’s 6th Amendment right to a speedy trial.(5)

(1) Barrett v Hyldburg: 487 SE 2d 803, 127 NC App. 95 - NC: Court of Appeals, 1997

(2) State v King: 713 SE 2d 772 - NC: Court of Appeals, 2011

(3) State v King: 733 SE 2d 535 - NC: Supreme Court, 2012

(4) N.C. Gen. Stat. 8C-1, Rule 403

(5) Chappell, J. "Judge: Man Charged in Sex Case Denied Speedy Trial." The Pilot Sept 15, 2012