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THE STATE OF NEW HAMPSHIRE

SUPREME COURT

No. 95-429

The State of New Hampshire,

Plaintiff/Appellant

V.

Joel Hungerford,

Defendant/Appellee

The State of New Hampshire,

Plaintiff/Appellant

V.

John A. Morahan,

Defendant/Appellee

____________________________________

BRIEF OF THE FALSE MEMORY SYNDROME FOUNDATION
AS AMICUS CURIAE IN SUPPORT OF THE DEFENDANTS/APPELLEES

____________________________________

Attorney for Amicus Curiae:

Thomas A. Pavlinic, Esquire
116 Defense Highway, #501
Annapolis, MD 21401
(410) 974-6003

Local Counsel:

Paul A. Maggiotto, Esquire
58 Pleasant Streeet
Concord, NH 03301
(603) 225-5152


TABLE OF CONTENTS

TABLE OF CITATIONS

INTEREST OF AMICUS CURIAE

STATEMENT OF CASE

ARGUMENT

A. The Repressed Memory Phenomenon

1. The development of false memories

2. The repressed memory debate

B. Repressed Memories: A Review of Current Scientific Understanding

1. The rich body of research on memory processes does not support the theory of "repression"

2.Despite over 60 years of trials, no scientific study has as yet documented memory loss of a verified event and eliminated other plausible explanations for observations

3. The unreliability of "repressed memories" is recognized by professional organizations: Corroboration is required

4.Absent corroboration, no internal test of the reliability of a specific "repressed memory" claim has been found

5. No set of psychological symptoms or behavioral traits has been shown to be probative of the accuracy of "repressed memories" of trauma

C. Application of the Frye Test and the Daubert Criteria to "Repressed Memory" Theory

D. Judicial Response to Repressed Memory Claims in Sister States

CONCLUSION

ACKNOWLEDGMENT OF ASSISTANCE

APPENDICES:

Appendix I- List of FMSF Advisory Board Members

Appendix II- Excerpts from Fredrickson, R., Ph.D. (1992), Repressed Memories, New York: Simon and Schuster. Quotes refer to memory retrieval techniques.

Appendix III- Yapko, M.D. (1994), "Therapists reveal their attitudes about memories and suggestions of abuse," Chapter 2, in Yapko, M.D., Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma, New York: Simon and Schuster.

Appendix IV- Report to the Mental Health Subcommittee, Crime Victims Compensation Program, Department of Labor and Industries, State of Washington. Crime Victims’ Compensation and Repressed Memory, May 1, 1996.

Appendix V- Data Excerpted from the FMSF Legal Survey, February, 1997; Sample of Reports of Lawsuits Brought Against Mental Health Care Workers Alleging Creation of False Memory Syndrome through the Use of Repressed Memory Therapy.

Appendix VI- Pope, H.G. and J.I. Hudson (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25:121-126.


TABLE OF CITATIONS

CASE

Ault v. Jasko, 70 Ohio St.3d 114, 637 N.E.2d 870 (1994)

Baily v. Lewis, 763 F.Supp. 802 (USDC, Pa., 1991)

Barrett v. Hyldburg, Superior Court, Buncombe County, North Carolina, Case No. 94-CVS-0793 (January 23, 1996)

Borawick v. Shay, 68 F.3d 597 (2nd. Cir., Conn., 1995) [cert. denied]

Burpee v. Burpee, 152 Misc.2d 266, 578 N.Y.S.2d 359 (NY, 1991)

Commonwealth of Pennsylvania v. Crawford, 682 A.2d 323 (Pa.Super, Jul 30, 1996)

Daubert v. Merrell Dow Pharmaceuticals, Inc. 113 S.Ct. 2786 (1993)

Doe v. Maskell, 342 Md. 684, 679 A.2d 1087 (1996)

Engstrom v. Engstrom, Superior Court, Los Angeles County, California, Case No. VC-016157 (October 11, 1995)

Fager v. Hundt, 610 N.E.2d 246 (Indiana, 1993)

Franklin v. Stevenson, Third Judicial District Court, Salt Lake County, State of Utah, Case No. 94-090177PI

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

Hunter v. Brown, 1996 WL 57944 (slip copy) (Tenn.App., Feb 13, 1996)

Kelly v. Marcantonio, 678 A.2d 873 (R.I., July 11, 1996)

Lemmerman v. Fealk, 534 N.W.2d 695 (Mich., 1995)

M.E.H. v. L.H., 669 N.E.2d 1228, 218 Ill. Dec. 702 (Ill.App.2nd Dist.)

McCollum v. D’Arcy, 138 N.H. 285, 638 A.2d 797 (1994)

Meiers Post v. Schafer, 427 N.W.2d 606 (Mich.Ct.App., 1988)

Messina v. Bonner, 813 F.Supp. 346 (U.S. Dist. E.D. Pa., 1993)

Nicolette v. Carey, 751 F.Supp. 695 (W.D. Mich. 1990)

Olsen v. Hooley, 865 P.2d 1345 (Utah, 1993)

Peterson v. Bruen, 792 P.2d 18, 106 Nev. 271 (1990)

Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 303, 533 N.W.2d 780 (1995), cert. Denied

Ramona v. Isabella, Superior Court of the State of California, for the County of Napa, Case No. 61898

Roe v. Doe, 28 F.3d 404 (4th Cir. 1994)

S.V. v. R.V., 1996 WL 112206, 39 Tex. Sup. J. 386 (Tex., March 14, 1996)

State v. Coolidge, 109 N.H. 403 (1969)

State of Rhode Island v. Quattrocchi, 681 A.2d 879 (R.I., Jul 31, 1996)

Travis v. Ziter, 1996 WL 390629 (Ala., Jul 12, 1996)

Tyson v.. Tyson, 107 Wash.2d 72, 727 P.2d 226 (Wash., 1986)

Urie v. Thompson, 337 U.S. 163,93 L.Ed. 1282,69 S.Ct. 1018 (1949)

TEXTS AND TREATISES

American Medical Association (1993, June), Resolution No. 504, "Misuse of hypnosis and other techniques of ‘Memory Enhancement/Creation.’"

American Medical Association: Report of the Council on Scientific Affairs (1994), C.S.A. Report 5-A-94. "Memories of childhood abuse," Action of the AMA House of Delegates 1994 Annual Meeting

American Psychiatric Association (1994), The Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Washington, D.C.: American Psychiatric Association

American Psychiatric Association, Board of Trustees (1993), "Statement on memories of sexual abuse," approved by the Board of Trustees of the American Psychiatric Association on December 12, 1993

American Psychological Association (1995), "Questions and answers about memories of childhood abuse," Washington, D.C.: American Psychological Association

American Psychological Association, Council of Representatives, Working Group on Investigation of Memories of Child Abuse (November 11, 1994), Interim Report

Australian Psychological Society Limited, Board of Directors (1994), "Guidelines relating to the reporting of recovered memories."

Banks, W.P. and K. Pezdek (eds.) (1994), "Editorial: The recovered memory/false memory debate," Consciousness and Cognition, 3

Bass, E. and L. Davis (1988), The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse, New York: Harper & Row

Beahrs, J.O., J.J. Cannell, and T.G. Gutheil (1996), "Delayed traumatic recall in adults: A synthesis with legal, clinical, and forensic recommendations," The Bulletin of the American Academy of Psychiatry and the Law, 24:1:45-55

Beitchman, J.H., K.J. Zucker, J.E. Hood, G.A. daCosta, and E. Cassavia (1992), "A review of the long-term effects of child sexual abuse," Child Abuse and Neglect, 16:101-118

Bonanno, G.A. (1990), "Remembering and psychotherapy," Psychotherapy, 27:175

Bowers, K.S. (1991), "Dissociation in hypnosis and multiple personality disorder," Journal of Clinical and Experimental Hypnosis, 29:3:155-177

Bowman, C.G. and E. Mertz (1996), "What should the courts do about memories of sexual abuse? Toward a balanced approach," Judges’ Journal, 25:4:7-17

Briere, J. and J. Conte (1993), "Self-reported amnesia for abuse in adults molested as children," Journal of Traumatic Stress, 6:21-31

Cahill, L. and J.L. McGaugh (1995), "A novel demonstration of enhanced memory associated with emotional arousal," Consciousness and Cognition, 4: 410-421

Campbell, T.W. (1995), "Repressed memories and statutes of limitations: examining the data and weighing the consequences," American Journal of Forensic Psychiatry, 16:2:25-51

Canadian Psychiatric Association (1996), "Position statement: Adult recovered memories of childhood sexual abuse," dated March 25, 1996

Carmines, E.G. and R.A. Zeller (1982), Reliability and Validity Assessment, London: Sage Publications

Choiniere, M. (1996), "The false memory debate: Will the victim please stand up?" 12 Journal of Contemporary Health Law and Policy 675

Christianson, S.A. (1992), "Emotional stress and eye witness memory: A critical review." Psychological Bulletin, 112:2:284-309

Courtois, C. (1992), "The memory retrieval process in incest survivor therapy," Journal of Child Sexual Abuse, 1:1

Dawes, R. M. (1993a), "Prediction of the future versus an understanding of the past: A basic asymmetry," American Journal of Psychology, 106:1-24

Dawes, R.M. (1993b), "Cognitive bases of clinicians’ overconfidence," paper presented at FMSF Conference "Memory and Reality: Emerging Crisis," April 16-18, 1993 in Philadelphia

diNado, P.A., K. Moras, D.H. Barlow, R.M. Rapee, and T. Brown (1993), "Reliability of DSM-III-R anxiety disorder categories: Using the Anxiety Disorders Interview Schedule-Revised," Archives of General Psychiatry, 50:251-256

Dineen, T. (1996), Manufacturing Victims, Toronto: Robert Davis Publishing

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Faigman, D.L. (1995), "Mapping the Labyrinth of Scientific Evidence," 46 Hastings Law Journal 555

Fawcett, J. (ed.) (1995), "Editorial: A critical look at recovered memories," Psychiatric Annals 25:12

Femina, D.D., C.A. Yeager, and D.O. Lewis (1990), "Child abuse: Adolescent records vs. adult recall," Child Abuse and Neglect, 14:227-231

Frank, R.A. (1996), "Tainted therapy and mistaken memory," Applied and Preventive Psychology, 5:135-164

Frankel, F.H. (1993), "Adult reconstruction of childhood events in the multiple personality literature," American Journal of Psychiatry, June 1993, 150:6:954-958

Frankel, F.H. (1996), "Dissociation: The clinical realities," American Journal of Psychiatry, 157:7:64-70

Frankel, F.H. and C.W. Perry, (eds.) (1994, Oct.), "Editor’s note," The International Journal of Clinical and Experimental Hypnosis

Freeland, A., et al. (1993), "Four cases of supposed multiple personality disorder: Evidence of unjustified diagnoses," Canadian Journal of Psychiatry, 38:245-247

Freud, S. (1995). Complete Psychological Works of Sigmund Freud, Standard Edition, Vol. 2, London: Hogarth Press

Ganaway, G.K. (1995), "Hypnosis, childhood trauma and dissociative identity disorder: Toward an integrative theory," International Journal of Clinical and Experimental Hypnosis, XLII:2:127-144

Gardner, M. (1994), "The tragedies of false memories," Skeptical Inquirer, 18:464-470

Garry, M. and E.F. Loftus (1994), "Pseudomemories without hypnosis," The International Journal of Clinical and Experimental Hypnosis, XLII:4:363-378

Goldzband, M.G. (1995), "The hottest topic," Psychiatric Annals, 25:8:477-485

Good, M.I. (1992), "The reconstruction of early childhood trauma: Fantasy, reality, and verification," JAPA, 42:1:79-101

Green, B.L. (ed.) (1995), "Introduction to special issue on traumatic memory research," Journal of Traumatic Stress (1995) 8:4

Green, R. (1996), "Special Report: False memory syndrome," The Psychiatry Forum, 16:i-vi

Grossman, L.R. and M. Pressley (eds.) (1994), "Introduction to the special issue on recovery of memories of childhood sexual abuse," Applied Cognitive Psychology, 8

Halleck, S.L., et al. (1992), "The use of psychiatric diagnoses in the legal process: Task force report of the American Psychiatric Association," Bull.Am.Acad.Psychiatry Law, 20:4:481-499

Hayes, J.L. (1994). "The necessity of memory experts for the defense in prosecutions for child sexual abuse based upon repressed memories," 32 Am.Crim.L.Rev. 69

Herman, J.L. and E. Schatzow (1987), "Recovery and verification of memories of childhood sexual trauma," Psychoanalytic Psychology, 4:1-14

Hicks, R.D. (1991), In Pursuit of Satan, Buffalo: Prometheus Books

Holmes, D. (1974), "Investigations of repression: Differential recall of material experimentally or naturally associated with ego threat," Psychological Bulletin, 81:632-653

Holmes, D. (1990), "The evidence for repression: An examination of sixty years of research," in J. Singer (ed.), Repression and Dissociation, Chicago: University of Chicago Press

Horowitz, M. (1993), "Stress-response syndromes," in J.P. Wilson, B. Raphael (eds.), International Handbook of Traumatic Stress Syndromes, New York: Plenum

Howe, M.L. and M.L. Courage (1993), "On resolving the enigma of infantile amnesia," Psychological Bulletin, 113:305-326

Jacobs, D.M. (1992), Secret Life: Firsthand Documented Accounts of UFO Abductions, New York: Simon & Schuster

Johnson, M.K., M.A. Foley, A.G. Suengas, and C.L. Raye (1988), "Phenomenal characteristics of memories for perceived and imagined autobiographical events," Journal of Experimental Psychology: General, 117:371-376

K.H. (1994), "Dad wins Suit against daughter’s therapists: Case may open door to new area of malpractice suits," Psychiatric News, June 3, 1994

Kihlstrom, J.F. (1993), "The recovery of memory in the laboratory and clinic," paper presented at the joint convention of the Rocky Mountain Psychological Association and the Western Psychological Association, Phoenix, Arizona, April, 1993

Kihlstrom, J.F. (1994), "Exhumed memory," in S.J. Lynn and N.P. Spanos (eds.), Truth in Memory, New York: Guilford Press

Kihlstrom, J.F. (1997), "Suffering from Reminiscences: Exhumed memory, implicit memory, and the return of the repressed," in M.A. Conway (ed.), Recovered Memories and False Memories

Kihlstrom, S.F. and J. Harackiewicz (1982), "The earliest recollection: A new survey," Journal of Personality, 50:134-148

Kotre, J. (1995), White Gloves: How We Create Ourselves through Memory, New York: The Free Press

Lanning, K.V. (1989), "Satanic, occult, ritualistic crime: A law enforcement perspective," The Police Chief, 62:83

Lanning, K.V. (1992), "Investigators guide to allegations of ‘ritual’ child abuse," Behavioral Science Unit, Federal Bureau of Investigation

Lief, H.I. (1992, Aug.), "Psychiatry’s challenge: Defining an appropriate therapeutic role when child abuse is suspected," American Journal of Psychiatry

Lief, H.I. and J.M. Fetkewicz (1995), "Retractors of false memories: The evolution of pseudomemories," Journal of Psychiatry and Law, 23:411-435

Lindsay, D.S. and J.D. Read (1994), "Psychotherapy and memories of childhood abuse: A cognitive perspective," Applied Cognitive Psychology, 8:4:281-338

Lindsay, D.S. and J.D. Read (1995), "‘Memory work’ and recovered memories of childhood sexual abuse: Scientific evidence and public, professional, and personal issues," Psychology, Public Policy, and the Law, 1:4:846-908

Lipton, A. (1994, December), "Status of lawsuits," paper presented at Memory and Reality: Reconciliation, joint conference of FMSF and Johns Hopkins Medical Institutions, Baltimore, MD, December 9-11, 1994

Loftus, E. and K. Ketcham (1994), The Myth of Repressed Memory: False Memories, and Allegations of Sexual Abuse, New York: St. Martin’s

Loftus, E.F. (1993), "The reality of repressed memories," American Psychologist, 48:5:518-537

Loftus, E.F., E.M. Milo and J.R. Paddock (1995), "The accidental executioner: Why psychotherapy must be informed by science," The Counseling Psychologist, 23:2:300-30

Loftus, E.F., J.R. Paddock and T.F. Guernsey (1996), "Patient- Psychotherapist privilege: Access to clinical records in the tangled web of repressed memory litigation," 30 University of Richmond Law Review. 109

Lucas, W.B. (1993), Regression Therapy: A Handbook for Professionals, Vol. 1, "Past Life Therapy," and Vol. 2, "Special instances of altered statework," Crestpark, CA: Deep Forest Press

Mack, J. (1994), Abduction: Human Encounters with Aliens, New York: Scribners’ & Sons

Mai, F.M. (1995), "Psychiatrists’ attitudes to multiple personality disorder: A questionnaire study," Canadian Journal of Psychiatry, 40:154-157

McElroy, S.L. and P.E. Keck (1995), "Misattribution of eating and obsessive-compulsive disorder symptoms to repressed memories of childhood sexual or physical abuse," Society of Biological Psychiatry, 37:48-51

McHugh, P. (1992), "Psychiatric misadventures," American Scholar, Fall: pp. 498-510

McHugh, P.R. (1994), "Psychotherapy awry," The American Scholar, Winter:17-30

Melchert, T.P. (1996), "Childhood memory and a history of different forms of abuse," Professional Psychology: Research and Practice, 27:438-446

Merskey, H. (1995), "Post-traumatic stress disorder and shell shock," in G.E. Berrios and R. Porter (eds.), A History of Clinical Psychiatry, New York: New York University Press

Merskey, H. (1996), "Ethical issues in the search for repressed memories," American Journal of Psychotherapy, 50:3:323

Michigan Psychological Association (1995), "Position paper: Recovered memories of sexual abuse," adopted by MPA Executive Council, dated May 17, 1995

Mitchell, S.A. (ed.) (1996), Symposium on the "False Memory Controversy," Psychiatric Dialogues, 6:2

Mott, T., Jr. (ed.) (1994), "Editorial: The use of recovered memory outside of therapy," The American Journal of Clinical Hypnosis, 36:3

Murray, J.M.K. (1995), "Repression, memory and suggestibility: A call for limitations on the admissibility of repressed memory testimony in sexual abuse trials," 66 University of Colorado Law Review. 477

Nagy, T.F. (1994), "Guidelines and direction when treating clients with repressed memories," The National Psychologist, 3:8-9

Nash, M.R., T.L Hulsey, M.C. Sexton, L.L. Harralson, and W. Lambert, (1993), "Long-term sequelae of childhood sexual abuse: Perceived family environment, psychopathology, and dissociation," Journal of Clinical and Consulting Psychology, 61:2:276-283

Nashel, H.M. (ed.) (1995, Fall), "Editor’s Page," Journal of Psychiatry and Law

Neisser, U. and N. Hersch, (1992), "Phantom flashbulbs: False recollections of hearing the news about the Challenger," in E. Winograd, U. Neisser (eds.), Affect and Accuracy in Recall: Studies of Flashbulb Memories, New York: Cambridge Univ. Press

Nelson, K. (1993), "The psychological and social origins of autobiographical memory," Psychological Science, 4:7-14

Ofshe, R.J. (1992), "Inadvertent hypnosis during interrogation: False confession due to dissociative state," The International Journal of Clinical and Experimental Hypnosis, XL:3:125-156

Ofshe, R.J. and E. Watters (1994), Making Monsters: False Memories, Psychotherapy and Sexual Hysteria, New York: Charles Scribner’s Sons

Orne, M.T., D.A. Soskis, D.F. Dinges, and E.C. Orne (1984), "Hypnotically induced testimony," in G.L. Wells & E.F. Loftus (eds.), Eyewitness Testimony: Psychological Perspectives, New York: Cambridge University Press

Paris, J. (1996), "A critical review of recovered memories in psychotherapy: Part I-Trauma and memory," Canadian Journal of Psychiatry, 41:201-205

Perry, C. (1995), "The false memory syndrome (FMS) and ‘disguised’ hypnosis." Hypnos, XXII:4:189

Piper, A. (1993), "‘Truth serum’ and ‘recovered memories’ of sexual abuse: A review of the literature," Journal of Psychiatry and Law, Winter, 1993

Piper, A. (1994), "Multiple personality disorder," British Journal of Psychiatry, 164:600-612

Piper, A. (1995), "A skeptical look at Multiple Personality Disorder," in J. Berzoff, M. Elin and L. Cohen (Eds.), Multiple Personality Disorder: Critical Issues and Controversies, Northvale, NJ: Jason Aronson, Inc

Piper, A. (in press), "Twelve serious questions for proponents of multiple personality disorder" Psychiatry: Interpersonal and Biological Processes

Poole, D.A., et al. (1995), "Psychotherapy and the recovery of memories of childhood sexual abuse: U.S. and British practitioners’ opinions, practices and experiences," Journal of Consulting and Clinical Psychology, 63:3:426-437

Pope, H.G. and J.I. Hudson (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25:121-126

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Roediger, H.L. and K.B. McDermott (1995), "Creating false memories: Remembering words not presented in lists," Journal of Experimental Psychology, 21:4:803-814

Rogers, M. (1993), "Survey results of therapist personal background, experience, knowledge base and attitudes," paper presented at "Memory and Reality: Emerging Crisis," FMSF Conference, Valley Forge, Penn., April 16-18, 1993

Rogers, M.L. (1994), "Factors to consider in assessing complaints by adult litigants of childhood sexual abuse," Behavioral Science and the Law, 12:279-298

Roozendaal, B., et al. (1996), "Interaction of emotionally activated neuromodulatory systems in regulating memory storage," in Brain Processes and Memory, proceedings, 16th Symposium on Brain Processes and Memory, Tokyo, 1995, Amsterdam: Elsevier

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Sarbin, T.R. (1995), "On the belief that one body may be host to two or more personalities," International Journal of Clinical and Experimental Hypnosis, XLIII:2:163-183

Schacter, D.L. (1996), Searching for Memory: The Brain, the Mind, and the Past, NewYork: Basic Books

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Slovenko, R., (1995), Psychiatry and Criminal Culpability, New York: Wiley Publishing

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Spanos, N.P. (1996), Multiple Identities and False Memories: A Sociocognitive Perspective, American Psychological Association: Washington, D.C

Spanos, N.P., C.A. Burgess and M.F. Burgess (1994), "Past-life identities, UFO abductions, and satanic ritual abuse: The social construction of memories," The International Journal of Clinical and Experimental Hypnosis, XLII:4:433-446

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Yapko, M. (1994), Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma, New York: Simon and Schuster

MAGAZINE AND NEWSPAPER ARTICLES

Crews, F. (1994, November 17), "The revenge of the repressed," New York Review of Books, pp. 54-60

Ewing, C.P. (1994), "Plaintiff awarded $500,000 in landmark ‘recovered memories’ lawsuit," Monitor American Psychological Association, Judicial Notebook, July, 1994

Fine, J. (1994, July), "Seeking evil: The hell of prosecuting satanic ritual abuse," The California Lawyer, p. 50

Gustafson, P. (1996, June 7), "Crime, courts and public safety: Some suits alleging Humenansky implanted false memories settled," The Minneapolis Star Tribune

Haller, K. (1996, April), "Satan’s Theater," Connecticut Magazine, 59:4: 51-55, 84-91

Hallinan, J.T. (1997, January 5), "Repressed ? Or False Memory: Debate heats up as state seeks to stop paying therapy bills," The Seattle Times, p. 1

Hollingsworth, C. (1995, June 21), "Altered fate: Is this life giving you trouble? Let psychiatrist Brian Weiss take you back to another one," Chicago Tribune, p. 1

Keenan, M. (1995, June 22), "The devil and Dr. Braun: America’s foremost satanic-abuse psychiatrist goes on trial," New City, Chicago, IL, p.9

Moore, L. (1995, Aug. 26), "False-memory phenomenon? Psychologist says alien sighting might be similar to false memories of abuse," The Montreal Gazette, p. B-2


INTEREST OF AMICUS CURIAE

The False Memory Syndrome Foundation (hereinafter "FMS Foundation" or "Foundation") is a 501(c)(3) institution located at 1955 Locust Street, Philadelphia, PA 19103. The Foundation is a non-profit organization founded in March, 1992 to promote and sponsor competent scientific and medical research of False Memory Syndrome [1] and to disseminate the results to the public and professional community.[2] The FMS Foundation documents cases in which adults "recover" allegedly "repressed" memories and accuse their parents or others of sexually abusing them when they were children. The FMS Foundation Scientific and Professional Advisory Board is comprised of prominent researchers and clinicians from the fields of psychiatry, psychology, social work, law and education.[3] Since its formation, over 20,000 families and professionals have contacted the Foundation to ask for help.

Childhood sexual abuse, real or imagined, is an issue fraught with high emotion. The FMS Foundation deplores child abuse and agrees that society must support real victims of abuse. Of grave concern to the FMS Foundation is that the proliferation of false allegations will discredit legitimate charges of childhood sexual abuse.

Despite popular misconceptions, there is little empirical support for the assumed prevalence of repression or even for the theory of repression itself.[4] The notion that memories can be involuntarily lost to consciousness and later accurately retrieved is, at present, an unproven hypothesis. There is, however, a long history of research and scientific data supporting the premise that human memory is highly suggestible and malleable.[5] The FMS Foundation believes that there is strong evidence to support the view that certain psychotherapeutic techniques, theories and practices have led many people to falsely believe they were sexually abused as children. Furthermore, a large body of scientific evidence casts doubt on the premises upon which such therapies are based.

Because of the lack of general acceptance by the scientific community for the theory of repression and the impossibility of determining the truthfulness of a specific repressed memory allegation without objective corroboration, repressed memory claims present special equitable and evidentiary problems for the courts. The acknowledged danger of fraudulent claims and of problems of proof where filing is delayed by decades is, therefore, compounded in repressed memory cases. With no contemporaneous evidence of abuse, the decade-delayed claim of sexual abuse rests only on a newly emerged "repressed memory" of uncertain origin. Courts are faced with the task of objectively ascertaining a "discovery" date while the larger scientific community does not even accept the theory that memories can be repressed and later accurately recovered. In fact, as yet, no accepted method has been developed for distinguishing between a memory which may have been unconsciously "repressed" and one which was merely forgotten.

The FMS Foundation, and the families, former patients and professionals who have requested its help, seek, in the interest of justice, a thoughtful consideration of this situation. Amicus files this brief in the hope that prudent judicial reasoning in these emotionally charged cases be based on sound understanding of the repressed memory phenomenon.

STATEMENT OF THE CASE

Amicus accepts the statement of the case as presented by the parties in their respective briefs.

SUMMARY OF ARGUMENT

Amicus has structured its brief to provide A) an overview of the source of the "repressed memory" phenomenon and the controversy over the validity of the theory of repression; B) a summary of the current understanding of the concept and definition of "repressed memory" as it exists in the medical and scientific communities; C) a consideration of the Frye test and the Daubert criteria as it applies to "repressed memory" claims; and D) a review of judicial response to repressed memory claims in other jurisdictions.

ARGUMENT

A. THE REPRESSED MEMORY PHENOMENON

1. The Development of False Memories

No one questions that childhood sexual abuse exists or that society must protect victims of such abuse. However, the emergence during the past decade of the practice of "recovered repressed memory" therapy, based on faulty assumptions regarding memory, repression and suggestibility, has created a cultural climate in which false allegations of childhood sexual abuse are made all too frequently.

The FMS Foundation Legal Survey has examined nearly 800 civil and criminal lawsuits based on claims of recovered repressed memory that have been filed in the United States during the last decade. The survey indicates that in at least 90 percent of cases, the "memories" on which the claim is based were "recovered" or elaborated while the complainant was in therapy.[6] It is, therefore, important to examine what is known of the circumstances under which the majority of these "memories" emerge. Several common factors have been implicated in fostering the development and reinforcement of false memories. These include a belief system legitimized by authority figures, transfer dependence on the therapist, suggestion, leading questions, the use of hypnosis and similar techniques, cultural influences (e.g., books, films, television talk shows) support groups, social contagion and social consensus -- all factors which have been shown capable of furthering the vulnerable individual’s conviction in the reality of false but confidently held memories.[7]

The effect of suggestion on memory has been widely discussed by memory researchers, social scientists and clinicians. The American Medical Association [8] summarizes by saying:

Questions have been raised about the veracity of such reported memories, one’s ability to recall such memories, the techniques used to recover these memories, and the role of the therapist in developing the memories... It is well established, for example, that a trusted person such as a therapist can influence an individual’s reports.... [and citing Loftus] There have been reports of therapists advising patients that their symptoms are indicative -- not merely suggestive -- of having been abused, even when the patient denies having been abused. ... Other research has shown that repeated questioning may lead individuals to report events that in fact never occurred.

Hypnosis, in one form or another, e.g., guided imagery, meditation, visualization, trancework, relaxation techniques, sodium amytal, journaling, "inner child" work, etc. is often employed to "recover" repressed memories.[9] These practices occur despite scientific evidence that hypnotic procedures do not enhance the accuracy of recall but that subjects often become overconfident in their inaccurate recall. It is also well-established that hypnosis is known to increase suggestibility and confabulation, memory hardening, source amnesia and loss of critical judgment.[10]

Researchers have likewise concluded that leading questions and suggestive interviews, whether or not administered in a hypnotic context, also increase the subjects’ confidence in their inaccurate recall.[11] For example, incest-focused literature is widely cited as an external source of suggestion which greatly influences subjects both in and out of therapy resulting in detailed and confidently held false memories.[12] In addition, it is well-established that the belief system held by the subjects directly affects the experience recalled under hypnosis.[13]

Several recent surveys of therapists’ practices and beliefs regarding hypnosis, memory and the use of suggestive techniques have revealed a number of widely held misconceptions, which, when communicated to clients, can directly lead to the creation of false, confabulated memories.[14]

For example, the Poole study [15] was conducted in response to the controversy and concern as to whether false memories could be the result of suggestive procedures. This study sampled highly trained clinicians in the U.S. and Britain and found that 71 percent used various techniques (e.g., hypnosis, guided imagery, interpretation of dreams, etc.) to help clients recover suspected memories of childhood sexual abuse. In addition, approximately half of the clinicians surveyed reported recommending books related to sexual abuse and, 44 percent specifically recommended the book, The Courage to Heal.[16] The study challenged those recovered memory proponents who claim that few, if any, clinicians use multiple memory recovery techniques and ancillary practices to promote memory recovery, finding "a significant correlation between the number of memory recovery techniques used and estimates of the percentage of women who recalled sexual abuse during therapy." The study concludes that these findings "indicate an urgent need to investigate the safety of memory focused therapy."

Yapko’s 1994 study [17] focused on therapists’ views on hypnosis, noting that hypnosis, in one form or another (e.g., imagery, guided meditation, visualization [18]), is commonly used as a tool for uncovering memories of abuse. The disquieting results of this survey show that a significant number of therapists’ beliefs directly contradict established scientific evidence. For example, 18 percent responded that people cannot lie when in hypnosis, 28 percent responded that hypnosis can be used to recover accurate memories of past lives, 54 percent responded that hypnosis can be used to recover memories of actual events as far back as birth and 47 percent responded that they have greater faith in details of a traumatic event when obtained hypnotically than otherwise. Yapko concludes that the survey data suggests that "too many psychotherapists treat their patients on the basis of their personal beliefs and philosophy, and NOT according to an objective consideration of the facts." [Emphasis in original.]

Also significant, are studies which have examined cases of "recovered" memories of past life regression,[19] alien abduction,[20] and satanic ritual abuse.[21] A preeminent hypnosis researcher, the late Nicholas Spanos, examined these phenomena and concluded that the subjects believe such memories are real and not imagined because they have been legitimized by authoritative sources, culled through hypnosis or hypnotic techniques and further reinforced by popular books, professional conferences, the media and group participation.[22]

Another study by Lindsay and Read points out that these same conditions are found in cases of recovered memories of childhood sexual abuse:

... the overall strength of the suggestiveness of some forms of memory recovery therapy appears to be very high (i.e., the suggestions concern long-ago events, are GIVEN BY AN AUTHORITY FIGURE, supported by interpretations of dreams and current physiological symptoms, ENHANCED WITH HYPNOSIS AND SIMILAR TECHNIQUES, elaborated through exercises such as using family photographs as recall cues, and SUPPLEMENTED WITH POPULAR BOOKS AND SUPPORT GROUPS). [Emphasis added]. Id. At 321.

Lief and Fetkewicz surveyed forty subjects who retracted their allegations of childhood sexual abuse, satanic ritual abuse and murder, etc.[23] This study reveals the evolution of pseudomemories, the influence of the therapist and the nature of the therapy. Once again, these subjects recounted those all too familiar factors which contributed to the creation of their pseudomemories, i.e., transfer dependence on the therapist, use of memory enhancing techniques, including hypnosis and hypnotic techniques and cultural influences including self-help literature (e.g., The Courage to Heal), films and television. The study concludes that recovered memory therapy, based on the erroneous assumption that the recovery of memories of childhood sexual abuse is a healing process, is instead causing enormous harm to patients and their families and threatens the practice of all psychology.[24]

As discussed, a disturbing number of clinicians, ignoring sound science, employ practices which have been shown to lead to the creation of false memories. It is, therefore, imperative that the courts carefully examine the circumstances and conditions in which allegations of recovered repressed memories of childhood sexual abuse emerge.

2. The Repressed Memory Therapy Debate

A number of distinguished scientific journals have responded to the controversy by devoting entire issues to the subject of recovered repressed memories featuring peer- reviewed articles from both proponents and critics of the theory.[25] Many of the journals explain the reasons for these special issues in their editorials or introductions. For example, the editors of the International Journal of Clinical Hypnosis in the October, 1994 issue wrote:

... the debate centers on the increasing number of cases involving recall, often with the aid of hypnosis or hypnosis-like procedures such as relaxation and guided imagery. It is our intention to capture the concerns of academicians, thoughtful clinicians, and experimental psychologists whose work provides the only basic science available to the field.

The editors of Applied Cognitive Psychology noted in their editorial that the legal implications of the debate are especially relevant, "because the scientific evidence seems to contradict the opinions of some memory recovery therapists who are viewed by courts as experts about memory recovery" and expressed frustration in that "we were not able to identify a commentator who provided in-depth insights into the presumed therapeutic benefits of various memory recovery techniques." [26]

The presumed benefits of repressed memory therapy were recently the focus of a study by the Washington Department of Labor and Industries which concluded that such therapy is damaging to clients.[27] Following the study’s alarming data, the State of Washington now plans to eliminate funding for repressed memory therapy from its crime victims compensation program begun in 1990 (in those six years, more than $2.5 million was spent on counselors who practice repressed memory therapy).[28]

Even some proponents of the theory have begun to take a more cautious stance in response to what has been termed, "the issue at the intersection of psychology, public policy and the law in the 1990’s." [29] For example, following the highly publicized Ramona [30] verdict, many professional articles appeared advising therapists on ways to avoid malpractice liability in cases involving false "recovered" memories.[31] One such article recently written by a mental health professional who believes that "repression may account for some lack of recollection of abuse," nevertheless, advocates written informed consent and investigative interviewing procedures for therapists and strongly advises against the use of techniques known to encourage false memories. For example, the article emphatically warns of the dangers of creating false memories through the use of "techniques... such as hypnosis, relaxation, guided imagery, sodium amytal interviews, group therapy, "homework" assignments which include recommending certain books, pamphlets, articles, films or television programs." [32]

In recent years there has been a sharp increase in malpractice lawsuits against mental health professionals brought by former adult patients and third parties alleging injuries due to the creation of false mental images which had been assumed to be recovered repressed memories of actual events. Although jury awards in the millions have been reported, many of these cases are still at trial court level or have settled out of court under strict confidentiality agreements.[33]

Not surprisingly, as a result of high settlements and jury awards, insurance companies have begun to establish policies which no longer knowingly provide insurance coverage for services that include memory recovery therapy or any other therapy that encourages regression, dissociation or dependence.[34]

Some states have introduced legislation that would require informed consent for novel and experimental therapeutic techniques, including recovered memory therapy, not yet demonstrated either safe or effective.[35] This legislation entitled, "Truth and Responsibility in Mental Health Practices Act," drafted by Minneapolis psychologist and lawyer, R. Christopher Barden, proposes that therapists obtain written informed consent from patients to include a statement that the treatment has been proven reasonably safe and effective by reliable and valid scientific studies and warning of the potential risks of any therapeutic treatment considered.

In addition to recovered memory therapy, Barden points to "over 400 schools of therapies" (e.g., past-life regression, corrective parenting, primal scream therapy and multiple personality therapy - to name but a few), which are unsupported by reputable scientific evidence (noting cognitive-behavioral treatment for depression and anxiety as examples of psychotherapies which are supported by the data).[36]

The controversy surrounding the theory of repressed memory of childhood sexual abuse has grown into a heated debate which has divided the mental health community into two distinct camps. Yet, over the din of this contentious battle the words of memory researcher, Elizabeth Loftus, must be heard.

Nonetheless, when we move from the privacy of the therapy session, in which the client’s reality may be the only reality that is important, into the courtroom, in which there can be but a single reality, then we as citizens in a democratic society are entitled to more solid evidence.[37]

B. REPRESSED MEMORIES: A REVIEW OF CURRENT SCIENTIFIC UNDERSTANDING

"Repressed memory" [38] claims rely on the assumption that an individual can selectively lose all recollection of sexual abuse trauma so that the overall autobiographical memory system is otherwise intact. In many instances the alleged traumatic incidents are claimed to have been repeated over many years, often from infancy to adolescence and spanning several developmental phases.[39] The theory further assumes that because of major trauma, such as sexual assault, it is common for an individual to experience complete absence of awareness or memory of the traumatic event until years, even decades later, when accurate recollections return. This memory recall process is posited to be an involuntary one, in which the individual has no conscious control over the timing or direction of the emerging memories.[40] If this theory of repression were true, it would have significant consequences for our understanding of normal memory functions and the human response to stress.

Because of the potential repercussions of widespread memory loss of stressful life events, researchers from many areas have responded by considering the question from each of their own discipline’s perspectives and knowledge. For example, the theory described above has been widely questioned by experimental psychologists who study normal processes of recall and forgetting.[41] Neurobiologists have yet to find evidence that, absent physical trauma to the brain, memories which were never encoded, or which were selectively lost, could subsequently be recalled.[42] Known mechanisms of memory distortion studied by academic psychologists are not believed to explain the unconscious memory loss hypothesis of "repression."[43] Survey studies of the general population (as distinct from anecdotal, unverified clinical reports) have failed to corroborate the existence of verifiable "repressed memories."[44] Many clinicians and psychiatrists have cautioned that suggestive therapeutic practices may lead patients to wrongly evaluate mental images as accurate memories of actual events.[45]

Sociological understandings of the influence authority figures and groups may have on an individual’s belief system have provided insight into the mechanism by which mental images may be taken to be actual memories.[46] A growing number of books and articles by philosophers of science have decried the misuse of science and over-reliance on anecdotal evidence in this area. Some have cited "repressed memories" as an example of "pseudoscience." [47] In short, the theory of "repression" has been widely critiqued by professionals in many related scientific disciplines, each concluding that the theory does not conform with well-established findings in their own area.

This overview will consider "repressed memories" in the light of general memory research, known examples of memory distortion, specific studies searching for evidence of unconscious memory loss and retrieval, conclusions of professional organizations and studies of sexual abuse victims. Each of these areas must be considered in order to understand the breadth of the search for validation of the theory of "repression" and in order to understand the import of the paucity of reliable support for the theory.

1. The Rich Body of Research on Memory Processes Does Not Support the Theory of "Repression."

During the past century, a great deal has been learned about normal processes of recall and forgetting. This history of research findings explains how memory stores and organizes experiences so they can be recalled, but is, however, at odds with the current theory of "repression" found in some professional literature, popular media and self-help books.[48]

Most of us have had the experience of forgetting -- or not thinking about -- an event and then suddenly recalling it, perhaps while reminiscing with old friends, revisiting a place after many years, or looking at childhood photos. Most of us have also remarked on the differences in how two people remember the same event or have been struck by the difference between a remembered image and a photographic image. Both are examples of normal memory processes. In the first instance, an example of "cued memory", the memory was forgotten, but not lost to conscious recall. The second example demonstrates what memory researchers call the reconstructive nature of memory. Such remembrances, which have been the subject of extensive research, are not considered evidence that "repression" or "dissociation" occurred.[49] In fact, from this perspective, because of the circumstances under which "repressed memories" are recovered and recounted, it is generally believed they may be even more susceptible to reconstruction and confabulation.[50]

There is also a long history of research on the effect emotion has on the strength of recall. The evidence shows that strong emotions generally create unwanted and intrusive memories, as opposed to blocking them.[51] For example, studies of war veterans, Holocaust survivors and victims of natural disasters show that most often people suffer from hypermnesia, unbidden intrusive recollections -- not amnesia.[52] That traumatic events are memorable is quite logical: If, for example, a person developed amnesia after being bitten by a snake, he might place himself in the same jeopardy over and over again.

Evidence from both field and lab studies indicates that under highly emotional situations, if anything, it is the memories for peripheral, rather than central details of the episode that may be lost. Rarely does the amnesia cover the entire event.[53]

Recent neurobiological studies have demonstrated how emotionally charged events sear themselves into our memories. Researcher Larry Cahill [54] and his colleagues from the University of California, Irvine, compared volunteers’ recall of two sets of films -- one containing disturbing scenes of violence and animal mutilation, and the other containing emotionally neutral content. PET scans of an area of the brain, known as the amygdala, show that the more an emotional scene elevated metabolic activity the more likely the subjects were to remember the scene.

Memory researchers have found that the "repression" conceptualization has not provided answers to basic questions: How can traumatic experiences be accessible for long periods of time and then suddenly become inaccessible as a function of additional similar experiences? Repetition is known to generally improve memory. Why should certain emotionally charged memories lead to memory loss, when others seem to enhance memory at least for the core event? What type of mechanism could account for such retroactive erasure? [55]

In reply to such challenges, trauma theorists have suggested that repressed memories work differently form ordinary memories because persistent trauma results in long-term changes in the brain structures that subserve memory processing.[56] Some have even suggested that traumatic memories are stored in a different part of the brain [57] or that various parts of the body can, despite a lack of conscious memory, hold "feelings" or "body memories." [58] However, at present, there is no evidence that the human brain works in this way or that different body parts are capable of remembering.

In fact, proponents’ confusion over this theory leads to contradictory claims about "repression" which are often found in "repressed memory" litigation. On the one hand, it has been suggested that "forgetting," "motivated forgetting," [59] and "massive repression" are just different degrees of memory loss along a continuum so that "repressed memory" claims ought to be admitted at trial in the same way as any claim based on normal recollection. If a repressed memory is similar to a forgotten memory, the discovery rule could not apply. On the other hand, "repression" is posited to operate differently; as an unconscious process which renders the individual "blamelessly ignorant" [60] of their cause of action and unable to understand and investigate the alleged wrongdoing. An objective, reliable method would certainly be required to determine that the memory loss was indeed involuntary and unconscious. One recent decision focused on the lack of any available scientific method to distinguish between something that was "repressed" and something that was merely "forgotten." Maryland’s highest court concluded, following an extensive evidentiary hearing on the reliability of "repressed memory" claims, that if a "repression" claim cannot be distinguished from a claim delayed because the complainant had "forgotten" (or presumably had not been thinking about) a possible cause of action, it must be treated in the same way: it must be dismissed as time-barred. (Doe v. Maskell, 342 Md. 684, 679 A.2d 1087 (1996)). If repression is posited as a new psychological construct, it must be proven valid prior to being relied upon by the trier of fact.

Although a broad range of mechanisms are known to produce various kinds of memory disturbances and have been examined by memory researchers and theorists, none are, at present, considered capable of contributing to a supposed amnesia for traumatic events. Dr. Kihlstrom emphasized that "the available research does not support other claims -- such as that traumatic stress typically induces dissociative or repressive processes resulting in amnesia, or that children subjected to repeated trauma engage in defensive dissociation, or that exhumation of traumatic memories is important to therapeutic outcome." [61]

As Kihlstrom noted, the supposed link between "dissociation" and memory loss on the scale posited under the "repression" theory, has come under scrutiny but has been rejected. Even the American Psychiatric Association Diagnostic and Statistical Manual [62] mentions the great disagreement among scientists regarding the diagnosis of "dissociative amnesia:" "some believe that the greater awareness of the diagnosis (of dissociative amnesia) among mental health professionals has resulted in the identification of cases that were previously undiagnosed. In contrast, others believe that the syndrome has been over diagnosed in individuals who are highly suggestible." at 479. The DSM-IV specifically states that "there is currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence." at 481. It also states that "there are no tests or set of procedures that invariably distinguish dissociative amnesia from malingering..." at 480. Dissociative amnesia is quite rare but may occur temporarily in the presence of continuing stress.[63] Published examples of dissociative amnesias do not involve the excision of all knowledge of a series of events. The obvious fact should also be mentioned: dissociation does not necessarily produce amnesia of repeated stressful events. For example, persons who have been trained to dissociate to cope with painful repeated medical treatments, using a known dissociative technique, hypnosis, do not develop amnesia for the crises.[64]

As many critics of the theory have pointed out, the operational definitions used to explain the so-called theory of repression remain ill-defined and even contradictory. The terms "repression" and "dissociation" have been appropriated from psychoanalytic uses, thus adding to the confusion. Two fundamental issues in Freud’s work continue to be at the heart of the repressed memory debate: 1) whether the images represent recollections of actual events or are confabulations at least partly based on fantasy, and 2) whether the repression mechanism is always an involuntary unconscious process, regardless of how it is applied. Even Freud’s numerous references to the terms "repression" and "dissociation" show uncertainty over whether he took them to be part of a voluntary intentional process.[65] Freud’s shift to an oedipal perspective, replacing the assumption that his patients’ "stories" were of early childhood abuse with their attribution to a repression of the subject’s own unacceptable ideas, fantasies, emotions or impulses, was the "cornerstone" as Freud would later say, "on which the whole structure of psycho-analysis rests." [66]

Current use of the terms, even by proponents of the theory of "repression" apparently view the repression/dissociation mechanism, at least some of the time, as a voluntary, conscious process.[67] The ambiguous state of understanding in this area cannot provide a sufficiently reliable basis to conclude that a claimant alleging "repressed memories" or "dissociation" is necessarily "blamelessly ignorant" of their cause of action.

2. Despite Over 60 Years of Trials, No Scientific Study Has As Yet Documented Memory Loss of a Verified Event and Eliminated Other Plausible Explanations

Despite anecdotal claims of the widespread occurrence of repression of childhood sexual abuse, comprehensive reviews [68] of the literature used to support the theory of repression reveal that, as yet, there is no experimental evidence to support the authenticity of such memories or even to confirm their very existence. Regardless of what the phenomenon of unconscious loss of memory is called, or what mechanism is proposed to explain how such amnesia might occur, there is currently insufficient evidence to show that individuals do, in fact, "repress" such memories.

David Holmes, Ph.D. Professor of Psychology at the University of Kansas, carefully examined studies offered as verification of the existence of repression in 1974 and again in 1990.[69] In the 1990 report, he concluded that, "[d]espite over sixty years of research involving numerous approaches by many thoughtful and clever investigators, at the present time there is no controlled laboratory evidence supporting the concept of repression." [70]

In addition to anecdotal case reports, support for the theory of "repression" is most frequently drawn from three research studies (Herman and Schatzow, Briere and Conte, and Williams).[71] Although a casual reading of the studies may give the misleading impression that there is scientific evidence to support the idea that complete repression of multiple abusive experiences extending over long periods is a common occurrence, when evaluated with even minimal scientific standards, the work does not support this position. In spite of the fact that these studies have received strong negative reviews from the relevant scientific community,[72] misinterpretations of their limited findings have been cited over and over until they begin to carry the weight of accepted truth.

As a result, these studies must be closely examined for what they do and do not say.[73] Peer review has shown their design to be so severely flawed that any conclusions which could be reliably drawn are extremely limited. For example, none of the studies takes into account the fact that forgetting and non-reporting of significant life events occur for a variety of reasons unrelated to memory repression.[74]

In addition, the logical, conceptual and methodological difficulties of interpreting a subject’s non-reporting or their report of a memory of a past lack of memory have not been, as yet, adequately addressed.[75] In an effort to understand why subjects might not report a verified history of abuse (as in the Williams study) Femina and colleagues [76] interviewed those subjects who had not previously disclosed their history of abuse a second time. Those subjects were specifically asked whether they recalled the events. When confronted, all of the subjects admitted that they had actually remembered the experiences, but had chosen not to reveal them during the initial interview.

Another recent interview-based study [77] attempted to minimize the most obvious methodological flaws found in many of the surveys in this area and provides insight into the linguistic and conceptual confusions held by subjects when asked about memory loss. This study found that none of the subjects who had reported some degree of memory failure about past sexual abuse, agreed with the statement, "I would not have been able to remember the abuse even if someone had told me about it because I simply did not have any memories of it at that time." This is an operational definition of unconscious memory loss. However, nearly half of the same subjects were willing to hypothesize that "Apparently I had repressed it -- I unconsciously blocked out the memories because it would have been too painful to remember it."

Despite this confusion by lay persons when reporting memory loss and imprecise theorizing about the repression mechanism, very few studies have sought objective corroboration of the object of recall; a necessary criteria if the images are to be considered "memories" of actual events. As Dr. John Kihlstrom [78] cautioned, "[I]ssues pertaining to corroboration, and the distinction between remembering abuse and believing that one was abused, should not be dismissed lightly."

The most extensive review of all published studies pertinent to repressed memories was conducted by Drs. Harrison Pope and James Hudson of Harvard Medical School and the Biological Psychiatry Laboratory, McLean Hospital.[79] They point out that if repression were as common as it is assumed to be, one would expect to find ample evidence of repression of events which could be independently verified. In fact, Pope and Hudson’s review led them to conclude that "recent evidence is insufficient to permit the conclusion that individuals can ‘repress’ memories of childhood sexual abuse" because none of the studies 1) presented confirmatory evidence that abuse had actually occurred, nor did they 2) demonstrate that their subjects had actually developed amnesia.[80] The studies, Pope and Hudson determined, may show that people can forget their abuse, but examples could not be found supporting the notion that a recollection of childhood trauma can be completely banished from awareness and then accurately reproduced in memory. This important study is one of the most complete reviews of current scientific literature regarding the repression phenomenon and is attached hereto as Appendix V.

It is unwise to assume the existence of "repression" until we have ruled out other simpler possibilities for why people may fail to report past life events, including biological amnesia, early childhood amnesia, ordinary forgetfulness, allegations of forgetfulness for secondary gain, and elective non-disclosure. As Drs. Pope and Hudson point out, whether repression exists is a testable hypothesis, but it has not yet been appropriately tested. Pending satisfactory proof, therefore, the most reasonable scientific posture is to maintain skepticism. It follows, therefore, that the burden of proof must rest on those who theorize that it is possible to selectively repress and later accurately recover a series of memories.

3. The Unreliability Of "Repressed Memories" Is Recognized By Professional Organizations: Corroboration Is Required.

In light of these findings and in response to growing concerns of the mental health community, several professional organizations, including the American Medical Association and the American Psychiatric Association, have recently issued statements cautioning against assuming that "recovered repressed memories" are inherently accurate and reliable. With varying emphasis, all acknowledge the uncertainties of the current data. Each professional organization, which has issued an official statement regarding repressed memories, stresses that because it is not yet known how to distinguish true memories from imagined events, external corroboration is necessary in order to determine the accuracy of the "memories."

In June, 1994, the American Medical Association issued a statement [81] which reads:

The AMA considers recovered memories of child sexual abuse to be of uncertain authenticity, which should be subject to external verification. The use of recovered memories is fraught with problems of potential misapplication.

Similarly, in December, 1993, the Board of Trustees of the American Psychiatric Association [82] responded to the "passionate debates" regarding "repressed memories" which they feared may have "obscured the recognition of a body of scientific evidence" regarding memory research and proper therapeutic techniques and assessment. They recognized that the content of such a "memory" may be modified:

The retrieval and recounting of a memory can modify the form of the memory, which may influence the content and conviction about the veracity of the memory in the future. Scientific knowledge is not yet precise enough to predict how a certain experience or factor will influence a memory in a given person. ..While some aspects of the abuse situation, as well as the context in which the memories emerge, can contribute to the assessment, there is no completely accurate way of determining the validity of reports in the absence of corroborating information.

A special panel of the American Psychological Association issued an interim report in November, 1994,[83] which summarized the consensus of current research literature regarding several types of memory loss which include "forgetting":

There are gaps in our knowledge about the processes that lead to accurate or inaccurate recollection of childhood sexual abuse.... The mechanism(s) by which such delayed recall occur(s) is/are not currently well understood.

The Michigan Psychological Association [84] issued an even more critical assessment of the lack of reliable evidence supporting the theory of repression:

Given the nature of the scientific evidence to date, there is substantial potential for harm in treating claims of recovered memories of sexual abuse as presumptively valid. We must await the accumulation of pertinent and scientifically valid research on this issue before recommending the routine or uncritical acceptance of recovered memory in the absence of corroborative evidence...At present there are no scientifically valid criteria that would generally permit the reliable differentiation of true recovered memories of sexual abuse from pseudomemories.

A recent position paper of the Canadian Psychiatric Association [85] concluded that "serious concern exists about uncorroborated memories recovered in the course of therapy." The guidelines relating to recovered memories issued by the Australian Psychological Society [86] likewise note that "the available scientific and clinical evidence does not allow accurate, inaccurate or fabricated memories to be distinguished in the absence of independent corroboration." It further noted that, given the suggestibility of clients and the ways that psychologists can "shape the reported memories of clients through the expectations they convey, the comments they make, the questions they ask, and the responses they give," psychologists are encouraged to "record intact memories at the beginning of therapy, and be aware of any possible effects from outside the therapeutic setting (e.g., self-help groups, popular books, films, television programs)."

The unanimous call by professional organizations for corroboration of "repressed memories" is indicative of a strong lack of confidence in the reliability of the theory itself. Prudent judicial thought must acknowledge that these professional organizations, referring to sound empirical studies, have concluded that there is no special training which might enable one to determine the accuracy of images claimed to have been recovered from years past.

4. Absent Corroboration, No Internal Test Of The Reliability Of A Specific "Repressed Memory" Claim Has Been Found.

Specific signs and symptoms of repressed memory claims have been conjectured -- but soundly rejected by clinicians and memory researchers -- as indicative of the individual "memory’s" supposed validity. Based on Content analysis alone, it appears ill-advised to accept all "repressed memory" claims as historically accurate.[87] For example, "recovered memories" from early childhood have been specifically questioned because normal memory for very early childhood experiences is generally considered unavailable due to the immaturity of the child’s brain. Most cognitive psychologists place the end of this "childhood amnesia" at between age two and four.[88] Children slowly develop the ability to relate experiences in the form of autobiographical memory and store them in long-term memory.[89] Due to the immaturity of a child’s neuro-development prior to age 7 or 8, a child may, especially over time, be unable to recall the origin of the memory of a given event. The child may have difficulty distinguishing recollection from something he or she imagined, dreamed, or had been told. Studies of this phenomenon, called "source amnesia" or "source monitoring" have shown that children and adults may confuse memories of actual childhood events with imagined childhood events especially as time goes on.[90]

Due to the normal social, moral and cognitive development of adolescents, the likelihood of repression by this age group has also been questioned by researchers. The American Medical Association specifically noted that, "most controversial are those ‘memories’ that surface only in therapy and those from either infancy or late childhood (including adolescence)."[91]

In addition, many have noted that physical evidence of "repressed memory" claims of years of satanic ritual abuse, infanticide, murders, egregious abuse by multiple perpetrators, or abductions by aliens should, if true, exist. However, evidence of such "memories" has not been found.[92] Some proponents have acknowledged that these "memories," therefore, may not be accurate recall and suggest that they may instead be "symbolic expressions of pain and anger." [93] If so, it is reasonable to ask, what principled criteria is available, other than the "surface believability" of the claims, to distinguish between possible accurate recall and "symbolic expression"?

5. No Set Of Psychological Symptoms Or Behavioral Traits Have Been Shown To Be Probative Of The Accuracy Of "Recovered Memories" Of Trauma

Individuals may strongly, albeit mistakenly, believe detailed but false mental images are real memories of actual events. Therefore, even if testimony based on "recovered repressed memories" were to be admitted at trial, there exists no reliable way to determine its accuracy without corroboration of the alleged abuse. In making this point, Amicus does not wish to minimize the reality of sexual abuse of children nor to trivialize the injury that such abuse may cause.

Clinical psychologist Michael Yapko summarizes the issue by stating that greater levels of certainty, emotionalism or detail about a memory do not necessarily indicate a greater likelihood of its accuracy. This is reported to be the consensus of many of this country’s experts on memory, suggestibility and the treatment of abuse survivors.[94]

It is known, for example, that confidence, especially for emotional events, is often mistakenly high.[95] In addition, once false memories have been established, they are not easily changed by contrary evidence.[96]

Many studies have shown that there is no set of psychological disorders or behavioral traits exhibited by a majority of sexually abused children. Further, for every symptom that is exhibited by any percentage of sexually abused children, an even larger number do not exhibit that symptom.[97] Accord, Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830, 835 (1992). There is no set of psychological symptoms or behavioral traits that has been shown to be probative of the accuracy of "recovered memories" of trauma.

A recent meta-review conducted by Dr. Bruce Rind and Philip Tromovitch [98] compared self-reports of psychological distress of individuals who had experienced childhood sexual abuse with psychological reports from the general population published in seven national probability samples. Their comprehensive review points out that the assumed correlation had relied on findings from unrepresentative clinical samples that greatly overestimate the intensity of the correlation and did not take into account confounding variables, that is, other factors which may have contributed to the subjects’ psychological malaise.

Attempting to establish a causal connection between any set of psychological characteristics and a specific event years past presents significant empirical and logical problems. As Dr. John Kihlstrom [99] has argued, even were it true that many abused children grow up to have particular symptoms, that is not enough to establish a causal connection between a long past event and the present condition. The DSM-1V [100] admonishes that "nonclinical decision makers should be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual’s mental disorder or its associated impairments. Inclusion of a disorder in the Classification (as in medicine generally) does not require that there be knowledge about its etiology."

Many supposed indicators of sexual abuse are associated with a wide range of emotional problems unrelated to sexual abuse. For example, psychological disorders, such as low self-esteem, suppressed appetite, relationship difficulties, sexual dysfunction and sleep disorders, have been suggested as the result of childhood sexual abuse. These traits may, however, also describe persons suffering from a wide range of emotional problems unrelated to sexual abuse. In fact, the traits listed above are characteristic of clinical depression, which has multiple etiologies.[101] Mental disorders may be the result of any number of experiences, genetic factors, chemical imbalance, bodily disease, the understandable response to life events, or combinations of these factors.

Not only "recovered memories," but also some symptoms attributed to sexual abuse may, in fact, be iatrogenic in origin. The profound distorting effect of therapist’s suggestion has been widely discussed by memory researchers, social scientists, clinicians and professional organizations.[102] This distortion is particularly strong when the therapist communicates the bias that a client’s symptoms are indicative, and not merely suggestive, of a history of abuse.

Neither theory nor empirical research support the notion that post-traumatic stress disorder (PTSD) is an inevitable consequence or even the most prevalent result of childhood sexual abuse. According to the DSM-III-R and DSM-IV,[103] "a recognizable trauma must exist which would cause distress symptoms in most people" in order for PTSD to be an appropriate diagnosis. Therefore, a PTSD diagnosis is properly made only where evidence of a recognizable traumatic event exists. To offer a PTSD diagnosis, without such evidence, but as proof of the existence of a particular hypothetical event is an example of faulty circular reasoning.

In fact, the development of the mistaken belief that one’s history included abuse and betrayal by trusted family or friends may result in symptoms similar to PTSD.[104] In most instances it is difficult to determine whether PTSD symptoms result from the process of encouraging a patient to recall images of a heretofore unknown history of broken trust and abuse, or from real events.[105]

A contemporary diagnosis of dissociation or dissociative identity disorder has been proffered in some "repressed memory" cases as proof of alleged wrongful acts years earlier, a reason for delayed discovery, or as proof of injury. It should be noted, however, that dissociation has been linked to several sources other than childhood sexual abuse,[106] including the level of an individual’s suggestibility.[107] A dissociative patient’s plasticity may make the patient particularly responsive to suggestion. Dissociative patients reports of their own histories may be compromised because dissociative symptoms can predispose some patients to confabulate fantasy, dream and actual experience.[108]

Numerous researchers and clinicians have argued persuasively that multiple personality disorder (MPD), a subset of dissociative identity disorder, may be an artifact of suggestive and self-confirming therapeutic technique.[109] There is insufficient evidence to confirm a probative relationship between a history of childhood sexual abuse and multiple or borderline personality disorder.[110] Many of the techniques (including hypnosis) used to diagnose and treat MPD may, in fact, reinforce its symptoms.[111]

In summary, no scientific proof exists to support the proposition that, in response to repeated traumatic events, and only after such a history, an individual will develop a particular set of symptoms. To infer otherwise is to make a common logical error of "affirming the consequence" and, in the view of the American Psychiatric Association, 1992 Task Force,[112] is a "misuse of psychiatric expertise."

The substantial shortcomings in the quality of evidence available for a fair adjudication of repressed memory claims may not be overcome by expert opinion evidence regarding sex abuse and its etiology, diagnosis, signs, symptoms and effects. If it is agreed that no expert, without external verification, can determine the veracity of a repressed memory claim, can a jury of lay persons be expected to reliably decide?

C. APPLICATION OF THE FRYE TEST AND THE DAUBERT CRITERIA

As this court is aware, New Hampshire affirmed, in State v. Coolidge, 109 N.H. 403 (1969), the general-acceptance test enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) which served to control the admission of scientific evidence. In 1985, New Hampshire adopted the New Hampshire Rules of Evidence modeled on the Federal Rules of Evidence. Four years ago, the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. 113 S.Ct. 2786 (1993) held that the FRE superseded Frye and set forth a new standard for the admission of scientific evidence. Under either analysis, Frye or Daubert, the result is the same, i.e., the repressed memory theory has gained neither general acceptance in the relevant community nor does it meet the criteria for admitting scientific evidence.

The standards enunciated in Daubert require that the court, in its gatekeeper role, ensure that scientific testimony is both based on a reliable foundation and is relevant to the issues at hand. Justice Blackmun wrote in the Daubert decision that "in order to qualify as ‘scientific knowledge,’ an inference or assertion must be derived by the scientific method." Since the phenomenon of the repressed memory theory fits squarely into this category, an analysis under Daubert is relevant. To this end, it may be helpful to the court to review the elements of sound scientific method and its limitations as they relate to the theoxy of repression. As discussed below, the theory fails to meet each of the four criteria for admitting scientific evidence as set forth in Daubert.

1) The Verifiability Of The Theory Or Technique. I.E. Whether It Can Be (And Has Been) Tested. Id. at 2796.

As Justice Blackmun explained, "the statements constituting a scientific explanation must be capable of an empirical test," indeed, "the criterion of the scientific status of a theory is its falsifiability, or refutability, or testability." Id. at 2796. A hypothesis has not really been "tested" unless the test could potentially "falsify" or disprove the original hypothesis or rule out other reasonable hypotheses explaining the same results.[113] When this scientific principle of evidence is ignored or misused, the result has been termed "pseudoscience" or "junk science." [114]

The problem of falsifiability (i.e., ruling out other reasons which might explain the same results) is, perhaps, the main objection against the theory that sexual trauma causes selective, unconscious memory loss which can accurately return years later. Although several studies have been offered as support for this concept, most serious critiques of those studies’ methodologies point out that, to date, none has ruled out other obvious explanations for the findings.[115] An individual may not report a traumatic history for many reasons. That they may had forgotten or chosen not to think about or to report the event, has been shown to account for a significant number of individuals who do not report a history.[116] In addition, the distinct possibility that a report of past memory loss and subsequent recollection is due to confabulation, cannot be ruled out, especially in light of the evidence that false memories may develop under certain circumstances.[117] Where clinical and anecdotal reports do not consider this range of probable explanations, their observations are generally considered unreliable sources of probative information.

2) The Soundness Of The Theory Or Technique, That Is, Whether The Scientific Theory Or Technique Has Been Published And Subjected To Peer Review

Publication does not, of course, necessarily correlate with reliability and "is not a sine qua non of admissibility." Id. The value of peer review is that "it increases the likelihood that substantive flaws in methodology will be detected." Id. It depends on open evaluation of published findings according to the norms of science held by a group of peers.

Peer review generally focuses on research design, findings, and conclusions in the light of two fundamental interrelated concepts: 1) validity which is a gauge of how well a particular indicator measures what it is supposed to measure rather than reflecting some other phenomenon, and 2) reliability which concerns the extent to which a procedure yields the same results on repeated trials.[118] Anecdotal or clinical reports serve to identify, through example, an area deserving further study, but are not generally evaluated under peer review. With such reports, there is, for example, no guarantee of unbiased reporting and observations cannot reasonably be applied to the general population without further research.

Peer review has pointed out that certain basic and indispensable scientific principles, such as the use of control variables in experimental design, have been ignored in far too many of the studies purporting to support the theory. For example, when investigating the prevalence of "repression" one possible control would allow for the determination of a base-rate of non-reporting of stressful events in the general population. This data has, in fact, been collected by the U.S. government and by several insurance companies [119] and shown to be nearly identical to the rate of non-reporting in so-called "repression" studies.

Several proponents of the "repression" theory have misleadingly limited their evaluation to only one aspect of the question of validity, called construct validity.[120] As most elementary texts on research design point out, construct validity can only be achieved where other related variables are well-measured.[121] However, as described above, other clearly related variables have not, as yet, been well measured - or, in some studies, even identified. It is possible to answer such questions of attribution, but as Drs. Pope and Hudson emphasize, sound research design is needed. Where researchers have attempted to determine the reasons for non-reporting or to understand what a subject meant when she claimed a past memory loss, the importance of these other factors becomes readily apparent.[122] Peer review, after examining the quality of research design has concluded that "repression" is clearly not the most probable explanation for reported memory loss.

3) Does The Study Measure What It Purports To Measure, That Is, Has A Rate Of Error Been Determined, Or Can A Potential Rate Of Error Be Determined. Id. at 2796.

All scientific questions, and especially in the social sciences, involve a mixture of potential causal factors. In addition, the precision of the techniques available to scientists vary. As David Faigman [123] pointed out, "Science does not come conveniently pre-packaged into valid and invalid containers." This is why it is essential to be able to predict a "rate of error" for a study or technique. A "rate of error" is essentially an estimate of how reliably a test measures what it is supposed to measure. If we are unable to estimate the rate of error, we are in the dark about how much the test results can be relied on.

Applying the rate-of-error concept in this area is not at all straightforward, but it is possible. However, at present, in most studies purporting to find evidence of "repression," no estimation of a rate of error was attempted. These studies did not even attempt to determine their ability to distinguish between subjects who forgot or those who chose not to report and subjects who may have actually lost conscious memory. An estimate of rates of error must also consider the prevalence of false memories which the individual mistakenly assumes to be accurate.

Several memory researchers and philosophers of science have emphasized that in order to determine the true association between child abuse trauma and unconscious memory loss, we need to know how many abused children do recall the abuse, and how many who report a recollection of abuse were not in fact abused. The true association between child abuse and unconscious memory loss can only be determined once the probabilities of all four possibilities implied by the premise that abuse results in "repression" have been determined. In other words, a 2x2 probability table must be constructed in order to allow the sound retrospective inference of child abuse to be made.[124]

4) Has The Theory Or Technique Passed The Above Tests According To The Scientific Community, That Is, Does It Meet "General Acceptance" By The Relevant Scientific Community. Id. at 2796.

The theory of "repression" has been subjected to years of peer review and rejected. Some of the theory has already been rejected outright, much remains untested, but unlikely, and some may be untestable.

Because of the dramatic implications if the theory of repression should be true, it has undergone careful scrutiny from the broader scientific community.[125] Were it true that humans commonly lose all knowledge of stressful or traumatic events, this would radically change the way we think about ourselves and our relationship with our environment. Because of the widespread ramifications of the theory, the relevant scientific community must extend beyond, for example, clinicians who treat patients in this area.[126] It must include scientists who are prepared to apply the norms and findings of their field to the proposed theory. The underlying purpose of the standard of "general acceptance by the relevant scientific community" is to provide a measure of the reliability of any proffered scientific theory. As Justice Blackmun emphasized, the admissibility inquiry should focus on the relevance and reliability of the scientific principles and methodology of the proposed expert testimony.

Amicus submits that it is ill-judged to recognize the scientific validity of the theory of "repression" when there is no documented basis for doing so. The "repression" of memories is not accepted by the medical community and is not supported by reliable, valid science. Courts in other jurisdictions have recognized the inadequacies of the theory of repression and limited the access of repressed memory claims to the judiciary.

D. JUDICIAL RESPONSE TO REPRESSED MEMORY CLAIMS IN SISTER STATES

Jurisdictions throughout the country which have considered repressed memory cases have become increasingly skeptical of such claims. The evolution of the legal and scientific communities’ awareness and maturing understanding of both the phenomenon and issues involved in repressed memory claims from approximately 1986 to the present, is relevant to any review or discussion of case law and/or legislative intent.

In order to understand the events leading up to the sudden proliferation of lawsuits involving claims of repressed memory of childhood sexual abuse, it is necessary to review the circumstances which resulted in many states amending or effecting a delayed discovery rule to their statutes of limitations specifically to allow civil claims for childhood sexual abuse decades after the alleged event.[127]

In the late 1980’s, the first civil repressed memory suit to argue for the delayed discovery rule was unsuccessful, Tyson v. Tyson, 107 Wash. 2d 72, 727 P.2d 226 (Wash., 1986) [Superseded by Wash. Rev. Code #4.16 (1988)]. There, the Washington Supreme Court expressed concern about the length of time which had elapsed since the alleged abusive events, and about the lack of "objective, verifiable evidence." Id. at 227. The court, noting the subjectivity of plaintiffs claim, concluded:

It is proper to apply the discovery rule in cases where the objective nature of the evidence makes it substantially certain that the facts can be fairly determined even though considerable time has passed since the alleged events occurred. Such circumstances simply do not exist where a plaintiff brings an action based solely on an alleged recollection of events which were repressed from her consciousness and there is no means of independently verifying her allegations in whole or in part.

Nevertheless, in 1989, a woman claiming repressed memories, Patti Barton, found she was prevented from bringing suit under Tyson and so began an intensive lobbying campaign which resulted in Washington’s enactment of the first statute of limitations to apply the discovery doctrine to civil cases of childhood sexual abuse.[128]

Many states followed Washington’s lead. Legislators were sympathetic to testimony from groups, including plaintiffs’ attorneys, victims rights organizations, NOW and other similarly disposed parties which argued that plaintiffs who were traumatized into repressing memories of alleged incidents should be allowed their day in court. Either scientific critiques of the theory were unavailable or not presented and many legislators based their legislation on faulty, incomplete, anecdotal and one-sided testimony.[129]

Before the controversy surrounding the scientific validity of repressed memory theory became well-known, many courts and legislatures accepted this intriguing new theory and gave special exception to this class of claims. However, courts and legislatures today have the benefit of a broader base of knowledge of the scientific study on the validity of the theory of repressed memory. As a result, legislatures are now reluctant to make statutory changes to the statutes of limitations and more and more decisions reflect a recognition of the problems inherent in repressed memory claims.

The Texas Supreme Court in S.V. v. R.V., 1996 WL 112206,39 Tex. Sup. J. 386 (Tex., March 14, 1996), recently reviewed the legislative history of childhood sexual abuse statutes and pointed out that the "first generation" of statutes simply adopted the discovery rule or extended the statute of limitations for some fixed period of time after the minor reached majority while the "second generation" of changes gives greater weight to avoiding the danger possibly of fraudulent claims. Id. at 23. At the same time these "first generation" statutory changes were made, there were additional influences at work which may have contributed to the rise in the number of lawsuits.[130] Most notably, however, were the numerous incest survivor books which appeared encouraging readers to sue as part of the healing process.[131]

As discussed, in the earliest repressed memory case, Tyson v. Tyson, supra, the court specifically declined to extend the discovery rule without objective, verifiable and corroborating evidence of the alleged events. As Tyson and other courts have since noted, the component of independent, objective and verifiable injury is often absent in such cases.[132] The evidentiary issues raised in Tyson nine years ago continue to lie at the heart of repressed memory litigation. The problems Tyson anticipated have resurfaced in case after case. Indeed, courts continue to conclude that, despite the fact that Tyson was superseded by statute, the integrity of the decision stands and, as many courts have recently determined, remains applicable to repressed memory claims today.[133]

Problems of proof in repressed memory lawsuits brought based solely on testimony derived from a theory which is not scientifically valid, have not gone unnoticed by the courts. Obviously, if the only evidence supplied is one person’s word against another, in light of the emotional and prejudicial nature of the allegations themselves, an unbiased judgment may well be impossible and erroneous judgments the norm. As one legal treatise summarized, "These cases are difficult to defend, especially when the ‘evidence’ is as ephemeral as the spectral appearances used to condemn young girls and women as witches in Salem, Massachusetts over 300 years ago."[134]

As a result, many courts which have recently reviewed and analyzed the current findings concerning the phenomenon and scientific validity of the theory of repressed memory, have ruled that absent objective, verifiable evidence of both the theory of repressed memory and the actual claims asserted, tolling exceptions do not pertain to repressed memory claims. Other courts have gone a step further, ruling that these cases not be allowed to proceed, irrespective of statute of limitations issues, based on their findings that the theory of repressed memory does not meet the criteria of reliability under the standards for admitting scientific evidence. These recent decisions represent a clear recognition of the phenomenon separate and apart from genuine claims of childhood sexual abuse.

In Rhode Island, the Supreme Court recently held that the reliability of repressed memory theory must first be determined prior to extending the statute of limitations. The court ruled that if the trial court found the theory to be accepted as scientifically valid, then that court would have to determine whether the evidence showed that plaintiff actually repressed the memory or was of "unsound mind." Kelly v. Marcantonio, 678 A.2d 873 (R.I., July 11, 1996) (No. 94-727-Appeal, 95-39-Appeal).

In Pennsylvania, the Superior Court recently reversed a murder conviction based on testimony derived from repressed memories stating that the trial court should have analyzed whether, in Pennsylvania, the admission of the revived repressed memory testimony was appropriate. See, Commonwealth of Pennsylvania v. Crawford, 682 A.2d 323 (Pa.Super., Jul 30, 1996). And, in Rhode Island, the State Supreme Court overturned the conviction of lawyer John Quattrocchi III, because the trial court failed to hold a preliminary hearing, without a jury, to determine whether his accuser’s "flashbacks" of abuse were reliable. See, State of Rhode Island v. Quattrocchi, 681 A.2d 879 (R.I., Jul 31, 1996).

The Maryland Appeals Court in Doe v. Maskell, infra. declined to apply the discovery rule to a repressed memory claim. The court resolved that, "[T]he studies purporting to validate repression theory are justly criticized as unscientific, unrepresentative and biased," [135] and concluded:

After reviewing the arguments on both sides of the issue, we are unconvinced that repression exists as a phenomenon separate and apart from the normal process of forgetting. Because we find these two processes to be indistinguishable scientifically, it follows that they should be treated the same legally. Therefore we hold that the mental process of repression of memories of past sexual abuse does not activate the discovery rule. Id. at 693.

The Michigan Supreme Court in Lemmerman v. Fealk, supra, declined to allow two consolidated repressed memory claims to toll the statute of limitations under either the discovery rule or the insanity disability exceptions. The court found that to do so would "endanger precisely those policy goals advanced by the statutes of limitations," citing Tyson approvingly as the basis for its decision. Id. at 702. The court stated,

The reprehensible nature of such acts also carries with it, however, the potential for unwarranted castigation of those unjustly accused of such acts because of the alleged reawakening of memories by a phenomenon not yet fully understood or accepted by the medical and psychological community. Id. at 703.

Other courts have recognized the potential for serious harm to innocent defendants that is peculiar and particular to repressed memory claims.

[a]llowing such lawsuits to proceed absent any evidence other than the alleged victim’s testimony based wholly upon newly recovered memories -- the reliability of which is yet to be proven -- can, in light of the stigma associated with even the accusation that an adult has sexually abused a child, be disastrous." Roe v. Doe, 28 F.3d 404, 409 (4th Cir. 1994) (Hall, J., concurring.)

In Texas, the Supreme Court in S. V. v. R. V., supra, considered the evidentiary issues particular to repressed memory claims. There, after a review of the law in other jurisdictions in determining the applicability of the discovery rule, the court noted that the presence or absence of corroborative evidence has often been critical to those decisions particularly because the scientific community was split as to the reliability of "recovered" memories.[136] The court, after a review of both the facts of the case and the science of memory and theory of repression, concluded:

[t]he scientific community has not reached consensus on how to gauge the truth or falsity of "recovered" memories. To rely on memories alone for objective verification of abuse, this gauge is necessary. For purposes of applying the discovery rule, EXPERT TESTIMONY ON SUBJECTS ABOUT WHICH THERE IS NOT SETTLED SCIENTIFIC VIEW -- INDEED NOT EVEN A MAJORITY SCIENTIFIC VIEW -- CANNOT PROVIDE OBJECTIVE VERIFICATION OF ABUSE. Id. at 19. [Emphasis added.]

The court concluded that without additional corroborative evidence, the plaintiff could not satisfy the objective, verifiable evidence element necessary for application of the discovery rule. And, significantly, the court also recognized that expert testimony on the subject could not satisfy the evidentiary issues as to the reliability of the scientific validity of repressed memory theory.

The court also strongly disagreed with the dissent’s argument that because of the degree of culpability associated with defendant’s actions that led to the delay, and because of the lifelong effects of abuse on the victim, the discovery rule should apply, stating, "[T]his, of course, assumes that all defendants are guilty, some are not. Limitations always bars some valid claims, but this is the price of repose." Id. at 24.

Similarly, in a case of first impression, Hunter v. Brown, 1996 WL 57944 (slip copy) (Tenn.App., Feb 13, 1996), currently on appeal in the Tennessee Supreme Court, the court concluded:

[t]he inherent lack of verifiable and objective evidence in these cases distinguishes them from cases in which Tennessee courts have applied the discovery rule previously. We find that there is simply too much indecision in the scientific community as to the credibility of repressed memory. Id. at 4.

Justice Franks in a concurring opinion, pointed out that the trial judge is charged with acting as a gatekeeper to "ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable." Id. at 6.

Significantly, Justice Franks also concluded that he would not leave the determination of the applicability of the discovery rule to the legislature in repressed memory cases noting his concern that the legislature, "could validate a scientific theory not generally accepted." Id. at 6.

In Alabama, the Supreme Court in Travis v. Ziter, supra, noted in its analysis as to whether post traumatic stress disorder and repressed memory constituted an "insanity" disability, that there was no consensus of scientific thought in support of the repressed memory theory. The court concluded that the tolling provision was not intended to protect those persons claiming to suffer from a mental illness that affects only an understanding of a particular legal right noting that the consequences of such an interpretation would "invite unwelcome results." Id. at 6.

In M.E.H. v. L.H., 669 N.E.2d 1228, 218 Ill. Dec. 702 (Ill.App.2nd Dist., Aug, 1996), the Illinois Appellate Court declined to apply the discovery rule to a repressed memory claim finding that, by definition, an individual claiming "repressed" memories knew of the alleged event at the time it occurred. The court, noting they were not the first court to hold the discovery rule does not apply to cases in which a plaintiff claimed to have repressed memory of childhood sexual abuse, proceeded to cite Tyson approvingly.

Other courts have found it unacceptable, under the guiding principles of the statute of limitations and sound public policy, to force persons to defend themselves against ancient claims unsupported by objective, verifiable and corroborating evidence. For example, in Wisconsin, the Supreme Court in Pritzlaff v. Archdiocese of Milwaukee, supra, held that to allow the claim to proceed despite the passage of twenty-seven years since the alleged incidents, would be contrary to the public policy. In this case, plaintiff did not claim that she repressed knowledge of the alleged misconduct, but that she was unable to make a causal connection between the alleged acts and her emotional harm. The court noted that in most cases which have allowed the discovery rule, there is tangible evidence which can be directly traced to the tortious conduct. Here, the court noted the lack of reliable proof of the alleged injury and that the damages claimed were "emotional" and "psychological," concluding, "[W]hile some courts have blind faith in all phases of psychiatry, this court does not." Id. at 788, citing Steele v. State, 97 Wis.2d 72, 97, 294 N.W.2d I (1980).[137]

Many recent decisions have been based in large part on the lack of consensus and scientific support for the theory of repressed memory. In addition, a number of trial courts, following pre-trial evidentiary hearings, have concluded that the theory of repressed memory and expert testimony derived therefrom do not meet the criteria under standards for admitting scientific evidence, including Frye, Daubert or the Federal Rules of Evidence. These courts, in their gatekeeping function, have ruled that such evidence sought to be introduced is not reliable and should not be received at trial.[138]

For example, in the repressed memory civil suit, Engstrom v. Engstrom, Superior Court, Los Angeles County, California, Case No. VC-016157 (October 11, 1995), currently on appeal, plaintiff alleged that he had no memory of being sexually molested by his father 20 years earlier until the events were "retrieved in therapy." The court granted defendant’s motion that, pursuant to the authority of Kelly/Frye, a 402 hearing be held regarding the scientific validity of the repressed memory phenomenon and retrieval process. At the hearing, the court heard testimony from psychologists, psychiatrists and social psychologists on behalf of both parties. Pursuant to Kelly/Frye, the inquiry focused on whether the mental mechanism of repressed memory is falsifiable or testable and whether that mechanism had been tested. And, further, the inquiry focused on whether the techniques or procedures used in the memory retrieval process had received a general consensus of approval as valid and reliable within the relevant scientific community. Following the 402 hearing, Judge James Sutton ruled that plaintiff had not satisfied the burden of proof as required under the Kelly/Frye test, stating:

...[I] am a committed believer in the Kelly-Frye principle, that before such evidence, if it is questioned, can be used in a court of law in a way that in this case could have life-destroying effect, then I’m going to make damn sure and doubly damn sure that it’s good science. Reporter’s Transcript of Proceedings, September 7, 1995 at 14.

...There is not, in the language of the Kelly case which I quoted, a sufficient cross-section of the scientific community, even those who oppose it, that demonstrates that this is an acceptable scientific technique...Again, I will refer to it in the pejorative term. In my term, this is junk science. Reporter’s Transcript of Proceedings, September 7, 1995, at 35.

Judge Sutton ruled that no expert would be permitted to testify in support of the theory nor would the plaintiff be permitted to testify to any "memories" which were recalled subsequent to the initiation of therapy. As plaintiff had no other evidence to support the claim against his father, the court granted a non-suit.

These thoughtful trial court decisions emphasize the importance of the court’s gatekeeping function in repressed memory litigation.[139] Several courts have noted the hazards of allowing the emotional content of the allegations themselves to prejudice both judges and jurors in their detenninations.[140] As one legal scholar noted, "juries, using common knowledge, derived largely from the media reports and personal experiences with memory, may accord undue credibility to the repressed memory." [141]

As previously stated, it is crucial that a review of these cases include recognition that, in the years since Tyson, courts and legislatures have matured in their understanding of the scientific issues involved in the theory of repressed memory. Some courts were initially cautious, and, while they allowed the delayed discovery rule and held that the reliability of the evidence was a question of fact for the jury, nevertheless gave specific directives to the lower courts requiring corroborating, verifiable evidence of the alleged injury and/or to validate the phenomenon of memory repression itself.[142] However, there were also those decisions in which courts unequivocally accepted repressed memory theory as valid and gave special exception to this class of claims. Unfortunately, these decisions have engendered confusion and stalled the swift end to the repressed memory phenomenon.[143]

To allow these cases to proceed based on an unproved and unsubstantiated theory, unsupported by objective, verifiable and corroborative evidence in cases of such serious consequence, not only vitiates common sense and the legal principles underlying the statute of limitations, but also compromises the judicial integrity of our legal system.

CONCLUSION

When considering whether to admit scientific evidence and testimony derived therefrom, vigorous examination of the scientific validity of the theory upon which such evidence is based is critical in order to prevent the jury from being misled by unproven and unscientific methods. In summary, empirical data does not exist to support the assumed prevalence of repression as a common response to trauma, the mechanism by which repression is posited to operate, or even to verify the concept of repression itself. Furthermore, studies have shown that no intrinsic test exists that can determine the reliability of "recovered repressed memories". There is no reliable method of determining the accuracy of "recovered repressed" memory by examining its content or characteristics. No set of behavioral or psychological symptoms has been reliably shown as probative of the accuracy of the "recovered memory" of trauma.

On the other hand, it has been well documented that false memories can easily be implanted and are often accompanied by misleading affect and confidence. The available data indicate the relative ease with which psychotherapy can mistakenly persuade clients that they were sexually abused as children. It is well accepted among professionals and professional organizations who have studied this issue that repressed memories of childhood sexual abuse should be subject to external verification.

After careful examination under either a Frye or Daubert analysis, the result is the same: the theory clearly fails to meet the criteria for admitting scientific evidence. To allow such evidence to proceed, in light of the serious consequences resulting from false allegations, contradicts public policy and compromises the integrity of our legal system.


ACKNOWLEDGMENT OF ASSISTANCE

Counsel wishes to thank False Memory Syndrome Foundation researchers, Anita Lipton and Merci Federici, for their invaluable contribution in the preparation of this brief.

/S/
Thomas A. Pavlinic, Esquire
The Conte Building
116 Defense Highway, Suite 501
Annapolis, MD 21401-7037
(410) 974-6003
(410) 974-6019 (Facsimile)

Attorney for Amicus Curiae
False Memory Syndrome Foundation

Paul A. Maggiotto, Esquire
58 Pleasant Street
Concord, NH 03301
(603) 225-5152
(603) 224-224-2686 (Facsimile)

Local Counsel

NOTES

[1] A definition of "false memory syndrome" has been suggested by John F. Kihlstrom, Ph.D., Professor of Psychology at Yale University, New Haven, Connecticut as follows: "A condition in which a person’s identity and interpersonal relationships are centered around a memory of a traumatic experience which is objectively false but in which the person strongly believes...."

[2] The FMS Foundation is approved by the American Psychological Association to offer continuing education for psychologists. The FMS Foundation has co-sponsored two scientific conferences with Johns Hopkins Medical Institutions on the issues of False Memory Syndrome as follows: "Memory and Reality: Reconciliation," December 9-1l, 1994, Baltimore, Maryland and "Basic standards of care in diagnostic and therapeutic practices with memory and the process of family reconciliation," March 30, 1996, San Diego, California. A third scientific conference entitled, "What’s new in the ‘memory wars’ and what it means for clinical practice," is scheduled for March 21, 1997 in Baltimore, Maryland. In addition, the FMS Foundation has sponsored two continuing education seminars as follows: On May 17, 1996, at the University of Pennsylvania, Philadelphia, Pennsylvania, entitled, "Appropriate standards of care in working with client memory" and on October 4, 1996 at Loyola University, Chicago, Illinois, entitled, "Clinical issues in dealing with false memories: Prevention and family reconciliation."

[3] A list of the FMS Foundation Advisory Board members is attached hereto as Appendix 1.

[4] See, e.g., Frankel, F.H. (1993), "Adult reconstruction of childhood events in the multiple personality literature," American Journal of Psychiatry, June 1993, 150:6:954-958; Holmes, D. (1990), "The evidence for repression: An examination of sixty years of research," in J. Singer (ed.), Repression and Dissociation, Chicago: University of Chicago Press; Lindsay, D.S. and J.D. Read (1995), "‘Memory work’ and recovered memories of childhood sexual abuse: Scientific evidence and public, professional, and personal issues," Psychology. Public Policy, and the Law, 1:4:846-908; Lindsay, D.S. and J.D. Read (1994), "Psychotherapy and memories of childhood abuse: A cognitive perspective," Applied Cognitive Psychology, 8:4:281-338; Pope, H.G. and J.I. Hudson (1995), "Can memories of childhood sexual abuse be repressed" Psycho1ogical Medicine, 25:121-126; Tillman, J.G., M.R. Nash and P.M. Lerner (1994), "Does trauma cause dissociative pathology?" in S. Lynn and J. Rhue (eds.), Dissociation: Clinical. Theoretical and Research Perspectives, New York: Guilford Press, pp. 395-414.

[5] See, e.g., Loftus, E.F. (1993), "The reality of repressed memories," American Psychologist, 48:5:518-537.

[6] Lipton, A. (1994, December), "Status of lawsuits," paper presented at Memory and Reality: Reconciliation, joint conference of FMSF and Johns Hopkins Medical Institutions, Baltimore, MD, December 9-11, 1994, and unpublished research.

[7] See, e.g., Loftus, E.F. (1993), Id. at 524; Spanos, N.P. (1996), Multiple Identities and False Memories: A Sociocognitive Perspective, American Psychological Association: Washington, D.C.; Lief, H.I. and J.M. Fetkewicz (1995), "Retractors of false memories: The evolution of pseudomemories," Journal of Psychiatry and Law, 23:411-435.

[8] American Medical Association: Report of the Council on Scientific Affairs (1994), C.S.A. Report 5-A-94. "Memories of childhood abuse," Action of the AMA House of Delegates 1994 Annual Meeting.

[9] Courts need to be aware of the distinction between, for example, ‘journaling’ and simply keeping a diary in the context of ‘memory retrieval therapy’. Operational definitions of these terms can be found in the leading self-help "incest-survivor" literature. See, e.g., Appendix II attached hereto. Researchers have recognized that, whether intentionally or unintentionally, many of these techniques induce trance states identical to formal hypnosis, and, as such, pose the same problems of suggestibility and creation of confabulated and false memories. Therefore, it is argued that judicial standards governing hypnosis should be considered in repressed memory cases. See, Choiniere, M. (1996), "The false memory debate: Will the victim please stand up?" 12 Journal of Contemporary Health Law and Policy 675. Also, see, Piper, A. (1993), "‘Truth serum’ and ‘recovered memories’ of sexual abuse: A review of the literature," Journal of Psychiatry and Law, Winter, 1993. The author notes that "by definition, during an [sodium] amytal interview, a patient is in a hypnotic state," and thus advises, "the procedure, and any information derived from it, should be treated in both medical and legal settings in the same manner that hypnosis would be." Also, see, Perry, C. (1995), "The false memory syndrome (FMS) and ‘disguised’ hypnosis." Hypnos, XXII:4: 189. The author defines such memory retrieval techniques as ‘disguised’ hypnosis.

[10] Orne, M.T., D.A. Soskis, D.F. Dinges, and E.C. Orne (1984), "Hypnotically induced testimony," in G.L. Wells & E.F. Loftus (eds.), Eyewitness Testimony: Psychological Perspectives, New York: Cambridge University Press, pp. 171-183; American Medical Association (1993, June), Resolution No. 504, "Misuse of hypnosis and other techniques of ‘Memory Enhancement/Creation."’ See, also, Piper, A.(1993), Id. This study on the use of sodium amytal concludes, "the amytal interview cannot be considered to guarantee access to anything remotely resembling truth."

[11] Spanos, N.P., C.A. Burgess and M.F. Burgess (1994), "Past-life identities, UFO abductions, and satanic ritual abuse: The social construction of memories," The International Journal of Clinical and Experimental Hypnosis, XLII:4:433-446; Garry, M. and E.F. Loftus (1994), "Pseudomemories without hypnosis," The International Journal of Clinical and Experimental Hypnosis, XLII:4:363-378.

[12] Loftus, E.F. (1993), at 533.

[13] See, footnote 11, infra.

[14] Mai, F.M. (1995), "Psychiatrists’ attitudes to multiple personality disorder: A questionnaire study," Canadian Journal of Psychiatry, 40:154-157; Poole, D.A., D.S. Lindsay, A. Memon and R. Bull (1995), "Psychotherapy and the recovery of memories of childhood sexual abuse: U.S. and British practitioners’ opinions, practices and experiences," Journal of Consulting and Clinical Psychology, 63:3:426-437; Rogers, M. (1993), "Survey results of therapist personal background, experience, knowledge base and attitudes," paper presented at "Memory and Reality: Emerging Crisis," FMSF Conference, Valley Forge, Penn., April 16-18, 1993; Yapko, M. (1994), "Therapists reveal their attitudes about memories and suggestions of abuse," Chapter 2 in Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma, New York: Simon and Schuster. Attached hereto as Appendix III.

[15] Poole, D.A., et al. (1995), Id.

[16] See, Lindsay, D.S. and J.D. Read (1995), Id. The authors describe The Courage to Heal and other self-help books as "alarmingly suggestive" noting that "in such books, an authoritative source explains that many people have histories of CSA of which they are unaware, that many common psychological problems are evidence of hidden abuse histories, that doubting abuse is often a sign of "denial," and that recovering memories is a painful but important step toward healing. These books prescribe memory recovery exercises to enhance imagery and lower memory-monitoring criteria, and provide vivid personal accounts of people who have recovered memories of previously unsuspected histories of CSA."

[17] Yakpo, M. (1994), Id.

[18] See, e.g., Appendix III attached hereto.

[19] Past life regression memories have been legitimized by the beliefs of a few well-educated professionals, despite the American Psychiatric Association’s condemnation of such controversial therapy as "pure quackery." See, Hollingsworth, C. (1995, June 21), "Altered fate: Is this life giving you trouble? Let psychiatrist Brian Weiss take you back to another one," Chicago Tribune, p. 1. See, e.g., Weiss, B.L. (1988), Many Lives, Many Masters, New York: Simon & Schuster. Also, see, Lucas, W.B. (1993), Regression Therapy: A Handbook for Professionals, Vol. 1, "Past Life Therapy," and Vol.2, "Special instances of altered statework," Crestpark, CA: Deep Forest Press.

[20] See, e.g., Moore, L. (1995, Aug. 26), "False-memory phenomenon? Psychologist says alien sighting might be similar to false memories of abuse," The Montreal Gazette, p. B-2. The article describes a study by Concordia University psychologist and director of a Montreal hypnosis clinic, Jean Roch Laurence, who believes vivid accounts of alien abductions are similar to false memories of childhood sexual abuse in that they have been implanted by therapists. Dr. Laurence notes that subjects who "come with a well-established belief system are usually much harder to convince (of an alternative explanation for their abduction experiences)." See, also, Mack, J. (1994), Abduction: Human Encounters with Aliens, New York: Scribners’ & Sons; Jacobs, D.M. (1992), Secret Life: Firsthand Documented Accounts of UFO Abductions, New York: Simon & Schuster.

[21] Despite the total lack of evidence, the idea of a multigenerational satanic cult that ritually abuses children is believed and supported by many mental health professionals. See, e.g., Spanos, N.P., C.A. Burgess and M.F. Burgess (1994), Id.; Ofshe, R.J. (1992), "Inadvertent hypnosis during interrogation: False confession due to dissociative state; mis-identified multiple personality and the satanic cult hypothesis," The International Journal of Clinical and Experimental Hypnosis, XL:3:125-156; Ofshe, R.J. and E. Watters (1994), Making Monsters: False Memories. Psychotherapy and Sexual Hysteria, New York: Charles Scribner’s Sons; Wright, L. (1994), Remembering Satan: A Case of Recovered Memory and the Shattering of an American Family, New York: Alfred A. Knopf; Spanos, N.P. (1996), Id.; See, also, Lanning, K.V. (1989), "Satanic, occult, ritualistic crime: A law enforcement perspective," The Police Chief, 62:83; Hicks, R.D. (1991), In Pursuit of Satan, Buffalo: Prometheus Books. See, also, Fine, J. (1994, July), "Seeking evil: The hell of prosecuting satanic ritual abuse," The California Lawyer, p. 50; Keenan, M. (1995, June 22), "The devil and Dr. Braun: America’s foremost satanic-abuse psychiatrist goes on trial," New City, Chicago, IL, p. 9.

[22] Spanos, N.P. (1996), Id.

[23] See, Lief, H.I. and J.M. Fetkewicz (1995), Id. The authors note, "‘Face validity’ that the recanters’ memories are pseudomemories is apparent from the high percentage who report satanic ritual abuse, murder, and other violent crimes that, if true, should provide physical evidence, and from the higher percentage of cases in which there are memories of abuse occurring during a period of infantile amnesia or even earlier (during fetal life or birth). Doubt of the historical accuracy of the memories is also increased by the large number who accuse multiple perpetrators." at 414.

[24] See, e.g., Dineen, T. (1996), Manufacturing Victims, Toronto: Robert Davis Publishing. The author states in the preface, "Unfortunately this junk (e.g., recovered memory therapy) has come to predominate applied psychology and, while I admire the efforts of those few colleagues who are trying to re-establish a connection between the science and the practice of psychology, this book is not intended to contribute to any ongoing attempt on their part to save the profession."

[25] See, e.g., Frankel, F.H. and C.W. Perry, (eds.) (1994, Oct.), "Editor’s note," The International Journal of Clinical and Experimental Hypnosis, Special Issues; Mott, T., Jr. (ed.) (1994), "Editorial: The use of recovered memory outside of therapy," The American Journal of Clinical Hypnosis, 36:3; Nashel, H.M. (ed.) (1995, Fall), "Editor’s Page," Journal of Psychiatry and Law; Fawcett, J. (ed.) (1995), "Editorial: A critical look at recovered memories," Psychiatric Annals 25:12; Mitchell, S.A. (ed.) (1996), Symposium on the "False Memory Controversy," Psychiatric Dialogues, 6:2; Green, B.L. (ed.) (1995), "Introduction to special issue on traumatic memory research," Journal of Traumatic Stress, 8:4; Banks, W.P. and K. Pezdek (eds.) (1994), "Editorial: The recovered memory/false memory debate," Consciousness and Cognition, 3.

[26] Grossman, L.R. and M. Pressley (eds.) (1994), "Introduction to the special issue on recovery of memories of childhood sexual abuse," Applied Cognitive Psychology, 8.

[27] See, Report to the Mental Health Subcommittee, Crime Victims Compensation Program, Department of Labor and Industries, State of Washington dated May 1, 1996 attached hereto as Appendix IV.

[28] Hallinan, J.T. (1997, January 5), "Repressed ? Or False Memory: Debate heats up as state seeks to stop paying therapy bills," The Seattle Times, p. 1.

[29] Lindsay, D.S. and J.D. Read (1995), p. 1.

[30] Ramona v. Isabella, Superior Court of the State of California, for the County of Napa, Case No. 61898. On May 13, 1994, a jury awarded plaintiff father $475,000 against his daughter’s therapists for negligence in providing health care and implanting or reinforcing false memories of childhood sexual abuse. See, "Jury finds therapists implanted false memories of incest," The Sacramento Bee, May 14, 1994, p. A-1.

[31] K.H. (1994), "Dad wins suit against daughter’s therapists: Case may open door to new area of malpractice suits," Psychiatric News, June 3, 1994; Ewing, C.P. (1994), "Plaintiff awarded $500,000 in landmark ‘recovered memories’ lawsuit," Monitor American Psychological Association, Judicial Notebook, July, 1994; Nagy, T.F. (1994), "Guidelines and direction when treating clients with repressed memories," The National Psychologist, 3:8-9.

[32] Frank, R.A. (1996), "Tainted therapy and mistaken memory," Applied and Preventive Psychology, 5:135-164.

[33] Recently, juries have awarded a total of over $5 million in two separate malpractice suits against St. Paul psychiatrist, Dr. Diane Humenansky, for implanting false memories of childhood sexual abuse, multiple personality disorder and satanic ritual abuse. See, also, Gustafson, P. (1996, June 7), "Crime, courts and public safety: Some suits alleging Humenansky implanted false memories settled," The Minneapolis Star Tribune. See, also, "Data excerpted from the FMSF Legal Survey, February, 1997: Sample of reports of lawsuits brought against mental health care workers alleging creation of False Memory Syndrome through the use of repressed memory therapy," attached hereto as Appendix V.

[34] As the Director of Clinical Services for Preferred Mental Health Management, Inc., Wichita, Kansas, stated, "[I]t is our experience that such sorts of therapy tend to make patients worse and carry with them a high risk of creating false memories," in a letter dated January 30, 1995 from Douglas E. Mould, Ph.D., Director of Clinical Services to Herman Ohme, Co-Chair of the National Association for Consumer Protection in Mental Health Practices. See, also, Schachner, M. (1994, June 27), "‘False memory’ risk surfaces: Providing mental health benefits could lead to lawsuits," Business Insurance. In Texas, Rockport Insurance Associates Mental Health Practitioner’s Application, Edition 1/15/96, specifically states that applicants are not eligible for malpractice insurance if "[Y]ou use hypnotherapy to assist clients in recovering failed or repressed memories of possible abuse."

[35] See, e.g., 1995 NH H.B. 236, 1995 MO H.B. 669, 1995 OR S.B. 806, CO 1996 H.B. 1157, TN 1995 S.B. 2668.

[36] Robinson, K. (1996, Nov. 13), "The End of Therapy: Freud is out, Prozac is in, who needs therapists?" Seattle Weekly,;Merskey, H. (1996), "Ethical issues in the search for repressed memories," American Journal of Psychotherapy, 50:3:323 at 332.

[37] Loftus, E.F. (1993), Id., at 534.

[38] Throughout this brief, Amicus uses the term "repressed memory," "memory repression," or "massive repression" to refer to this concept. At the same time, Amicus also recognizes that the term "repressed memory" is semantically misleading in that it mistakenly implies the existence of an actual event as the object of memory. As discussed above, this is not necessarily the case. It has been shown that under certain circumstances, memory traces of images from fantasy, dreams, or suggestive experiences, may be confabulated and mistakenly interpreted by the individual as a memory of an actual event. As will be discussed below, there is no scientific support for the supposition that memories can be selectively excised from consciousness while the whole of memory remains intact. This conclusion is generally accepted regardless of the label given the supposed phenomenon. It should also be noted that the term "repression" is currently taken to be distinct from the original Freudian use of the term.

[39] The FMSF Legal Survey of trial level lawsuits based on repressed memory claims, found that approximately one-third of the claimants alleged recovered memories of abuse from prior to age 3. Over 40 percent of the claimants alleged ongoing abuse lasting over a 10 year period -- all memory of which is claimed to have been lost. Nearly one-quarter of the claimants alleged repressed memories of childhood sexual abuse spanning at least 14 years. This data was taken from Complaints or attorney summaries in 213 trial level cases.

[40] This operational definition is essential in litigation where the complainant argues that he/she is "blamelessly ignorant" of his/her cause of action in a way that someone who merely "forgot" or "chose not to think about" certain incidents would not be.

[41] See discussion, infra, Section B-2.

[42] See, e.g., Weaver, C.A. (1996), "Memory: An owner’s manual," The Baylor Line, Fall:32-39.

[43] See, e.g., Kihlstrom, J.F. (1997, "Suffering from Reminiscences: Exhumed memory, implicit memory, and the return of the repressed," in M.A. Conway (ed.), Recovered Memories and False Memories.

[44] See discussion, infra, Section B-3.

[45] See, e.g., Beahrs, J.O., J.J. Cannell, and T.G. Gutheil (1996), "Delayed traumatic recall in adults: A synthesis with legal, clinical, and forensic recommendations," Bul. Am. Acad. Psychiatry Law, 24:1:45-55; Campbell, T.W. (1995), "Repressed memories and statutes of limitations: Examining the data and weighing the consequences," American Journal of Forensic Psychiatry, 16:2:25-51; Dwyan, J. (1995), "The illusion of familiarity: An alternative to the report-criterion account of hypnotic recall," The International Journal of Clinical and Experimental Hypnosis, XLIII:2:194-211; Frankel, F.H. (1996), "Dissociation: The clinical realities," American Journal of Psychiatry, 157:7:64-70; Freeland, A., et al. (1993), "Four cases of supposed multiple personality disorder: Evidence of unjustified diagnoses," Canadian Journal of Psychiatry, 38:245-247; Ganaway, G.K. (1995), "Hypnosis, childhood trauma and dissociative identity disorder: Toward an integrative theory," International Journal of Clinical and Experimental Hypnosis, XLII:2:l27-144; Goldzband, M.O. (1995), "The hottest topic," Psychiatric Annals, 25:8:477-485; Good, M.I. (1992), "The reconstruction of early childhood trauma: Fantasy, reality, and verification," JAPA, 42:1:79-101; Green, R. (1996), "Special Report: False memory syndrome," The Psychiatry Forum, 16:i-vi; Halleck, S.L., et al. (1992), "The use of psychiatric diagnoses in the legal process: Task force report of the American Psychiatric Association," Bull. Am. Acad. Psychiatry Law, 20:4:481-499; Lief, H.I. (1992, Aug.), "Psychiatry’s challenge: Defining an appropriate therapeutic role when child abuse is suspected," American Journal of Psychiatry; McElroy, S.L. and P.E. Keck (1995), "Misattribution of eating and obsessive-compulsive disorder symptoms to repressed memories of childhood sexual or physical abuse," Society of Biological Psychiatry, 37:48-51; McHugh, P.R. (1994), "Psychotherapy awry," The American Scholar, Winter: 17-30; Merskey, H. (1996), Id.; Paris, J. (1996), "A critical review of recovered memories in psychotherapy: Part I-Trauma and memory," Canadian Journal of Psychiatry, 41:201-205; Sarbin, T.R. (1995), "On the belief that one body may be host to two or more personalities," International Journal of Clinical and Experimental Hypnosis, XLIII:2:163-183.

[46] See, e.g., Ofshe, R.J. (1992), Id.

[47] Carl Sagan’s recent book devoted two chapters to the "pseudoscience" of alien abductions, "channellers," astrology, past life regression, and recovered "memories" of satanic ritual cults. Sagan. C. (1996), The Demon-Haunted World: Science as a Candle in the Dark, New York: Random House. See also, e.g., Dawes, R.M. (1993b), "Cognitive bases of clinicians’ overconfidence," paper presented at FMSF Conference "Memory and Rea1ity: Emerging Crisis," April 16-18, 1993 in Philadelphia and to Nevada Psychological Assn., May 22-24, 1993 in Squaw Valley, Nevada; Gardner, M. (1994), "The tragedies of false memories," Skeptical Inquirer, 18:464470.

[48] See, e.g., American Psychological Association (1995), "Questions and answers about memories of childhood abuse," Washington, D.C.: American Psychological Association; Bonanno, G.A. (1990), "Remembering and psychotherapy," Psychotherapy, 27:175; Garry, M. and E.F. Loftus (1994), Id., Kihlstrom, J.F. (1994), "Exhumed memory," in S.J. Lynn and N.P. Spanos (eds.), Truth in Memory, New York: Guilford Press; Loftus, E.F. (1993), Id.;,Roediger, H.L. and K.B. McDermott (1995), "Creating false memories: Remembering words not presented in lists," Journal of Experimental Psychology, 21:4:803-814; Spence, D.P. (1994), "Narrative truth and putative child abuse," International Journal of Clinical and Experimental Hypnosis, 42:4:289-303.

[49] See, e.g., Kihlstrom, J.F. (1994), Id.

[50] See, e.g., Loftus, E.F. (1993), Id.

[51] The Michigan Psychological Association noted that "On the basis of long clinical and research experience, it is apparent that in the majority of cases sexual abuse is remembered, not forgotten." In "Position Paper: Recovered memories of sexual abuse," Adopted by MPA Executive Council, May 17, 1995. See also, Dittburner, T. and M.A. Persinger (1994), "Intensity of amnesia during hypnosis is positively correlated with estimated prevalence of sexual abuse and alien abductions." Perceptual and Motor Skills, 77:3:1:895-898; Horowitz, M. (1993), "Stress-response syndromes," in J.P. Wilson, B. Raphael (eds.), International Handbook of Traumatic Stress Syndromes, New York: Plenum, p. 49-60; Lindsay, D.S. and J.D. Read (1995), Id.; p. 8-10.

[52] For a review of these studies, see, e.g., Pope, H.G. and J.I. Hudson, (1995), Id.; Schacter, DL. (1996), Searching for Memory: The Brain, the Mind, and the Past, NewYork: Basic Books.

[53] See, e.g., Christianson, S.A. (1992), "Emotional stress and eye witness memory: A critical review." Psychological Bulletin, 112:2:284-309.

[54] Cahill, L. and J.L. McGaugh (1995). "A novel demonstration of enhanced memory associated with emotional arousal," Consciousness and Cognition, 4: 410:421.

[55] Dr. Richard Ofshe, social psychologist at the University of California, Berkley, points out that, "Trying to examine the many theories that explain this concept of robust repression is like trying to get a grip on fog...In some accounts of memory repression, children go from abuse to abuse without any previous knowledge of the last incident. In other accounts they survive long periods of abuse remembering their experiences, and then, at some later time, push the knowledge into their subconscious. This leads to some obvious questions: if children forget trauma instantly, wouldn’t this phenomenon have been documented again and again over human history as well as in contemporaneous cases of childhood trauma? Or, if children store up memories of abuse and then repress them en masse, what triggers the repression if it is not the abuse itself?" In Ofshe, R. and E. Watters (1994), Id., pp. 25-44.

[56] See, e.g., van der Kolk, B.A. and R. Pilsner (1995), "Dissociation and the fragmentary nature of traumatic memories: Overview and exploratory study," Journal of Traumatic Stress, 8:505-526.

[57] See, e.g., testimony of Dr. Bessel van der Kolk State of New Hampshire v. Hungerford, infra., Admissibility Hearing, March 28, 1995: "Normal memory is stored in the mid-brain, in an area known as the hippocampus, whereas traumatic memories are stored in what’s called the amygdala." It is, however, generally believed that the amygdala plays a modulatory role in emotion laden learning, but that memories are not actually stored there. See, e.g., Roozendaal, B., L. Cahill, J.L. McGaugh (1996), "Interaction of emotionally activated neuromodulatory systems in regulating memory storage," in Brain Processes and Memory, proceedings, 16th Nihon International Symposium on Brain Processes and Memory, Tokyo, 1995, Amsterdam: Elsevier..

[58] Courtois, C. (1992), "The memory retrieval process in incest survivor therapy," Journal of Child Sexual Abuse, 1:1.

[59] "Motivated forgetting" is described as a phenomenon in which an individual may actively and consciously push unacceptable or anxiety-provoking thoughts and impulses out of the conscious mind in order to avoid thinking about them.

[60] This phrase is attributed to Urie v. Thompson, 337 U.S. 163, 170,93 LEd. 1282,69 S.Ct. 1018 (1949).

[61] Kihlstrom, J.F. (1994), 14. Amnesia due to physical brain injury is generally permanent and irreversible. Certain amnesias result in temporary loss of information about personal identity or result in memory loss of an entire period of time, not the selective excision of specific category of memory over a long period of time.

[62] American Psychiatric Association (1994), The Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Washington, D.C.: American Psychiatric Association.

[63] Merskey, H. (1995), "Post-traumatic stress disorder and shell shock," in G.E. Berrios and R. Porter (eds.), A History of Clinical Psychiatry, New York: New York University Press.

[64] Dinges, D.F., E.C. Orne, P.B. Bloom, et al. (1994), "Medical self-hypnosis in the adjunctive management of organic pain: A prospective study of sickle cell pain," Presented at the NIH Workshop on Biobehavioral Pain Research, Rockville, MD, Jan. 19, 1994.

[65] Freud first used the term "repression" in 1893 in Studies on Hysteria, referring to "a question which the patient wished to forget, and therefore intentionally repressed from his conscious thought and suppressed." Later in a 1915 article, "Repression," Freud spoke of the "censorship of the conscious" and formulated the concept clearly: ‘The essence of repression lies simply in turning something away and keeping it at a distance from the conscious." [emphasis added] Freud, S. (1995), Complete Psychological Works of Sigmund Freud. Standard Edition, Vol. 2, London: Hogarth Press. A relevant summary of Freud’s use of these terms is found in Erdelyi, M.H. (1990), "Repression, reconstruction, and defense: History and integration of the psychoanalytic and experimental frameworks," In Singer, IL. (ed.) Repression and Dissociation, Chicago: Univerisity of Chicago Press, p. 1-32.

[66] Crews, F. (1994, November 17), "The revenge of the repressed," New York Review of Books, pp. 54-60.

[67] See, e.g., testimony of Plaintiff’s expert Judith L. Herman who stated that "Through the practice of dissociation, voluntary thought suppression, minimalization, and sometimes outright denial, they learn to alter the unbearable reality." Flanagan v. Grant, 897 F.Supp. 637 (Mass., 1994). The court rejected the claim that due to "dissociation" Plaintiff "did not fully experience the extent of the damage and dissociated her thoughts from feelings" and therefore the suit was dismissed as time-barred.

[68] See Footnote 4.

[69] Holmes, D. (1974), "Investigations of repression: Differential recall of material experimentally or naturally associated with ego threat," Psychological Bulletin, 81:632-653; Holmes, D. (1990), Id.

[70] Holmes, D. (1990), Id., concluded that the evidence of repression most frequently offered by clinicians, "consists of impressionistic case studies, and in view of the data concerning the reliability and validity of clinical judgments, those observations cannot be counted as anything more than unconfirmed clinical speculations - certainly not as ‘evidence’ for repression." pp. 96-98.

[71] Herman, J.L. and E. Schatzow (1987), "Recovery and verification of memories of childhood sexual trauma," Psychoanalytic Psychology, 4:1-14; Briere, J. and J. Conte (1993), "Self-reported amnesia for abuse in adults molested as children," Journal of Traumatic Stress, 6:21-31; and Williams, L. (1994), "Recall of childhood trauma: A prospective study of women’s memories of child sexual abuse," Journal of Consulting and Clinical Psychology, 62:6:1167-1176.

[72] See, e.g., Crews, F. (1994), Id.; Kihlstrom, J.F. (1996), "The trauma-memory argument and recovered memory therapy," in K. Pezdek and W.P. Banks (eds.) The Recovered Memory/False Memory Debate, San Diego: Academic Press; Kihlstrom, J.F. (1993), "The recovery of memory in the laboratory and clinic," paper presented at the joint convention of the Rocky Mountain Psychological Association and the Western Psychological Association, Phoenix, Arizona, April, 1993; Lindsay, D.S. and J.D. Read (1995), Id.; Loftus, E.F., E.M. Milo and J.R. Paddock (1995), "The accidental executioner: Why psychotherapy must be informed by science," The Counseling Psychologist, 23 :2:300-309; Loftus, E. and K. Ketcham (1994), The Myth of Repressed Memory: False Memories, and Allegations of Sexual Abuse, New York: St. Martin’s; Ofshe, R.J. and E. Watters (1994), Id.; Pope, H. G. and J.I. Hudson (1995), Id.; Tillman, J.G., et al., (1994), Id.

[73] Jon Conte’s testimony described the implications of results of the study he co-authored. "It’s not a random sample of the community. It’s not even a random sample of people who were in treatment....We never claimed that this proves amnesia. It doesn’t. In fact, what we are interested in is self reported amnesia." State of New Hampshire v Hungerford, infra., Admissibility Hearing, March 29, 1995, pp. 120-123.

[74] For reviews of the numerous studies (including a series of reports by the U.S. Dept. of Health, Education and Welfare) which show a high rate of non-disclosure of past events to be common in many normal settings, see, e.g., Loftus, E.F. (1993), Id.; Pope, H.G. and Hudson J.I. (1995), Id. These surveys have shown that, when asked, between 15 percent and 25 percent of survey participants failed to report an automobile accident, a hospitalization, or a serious medical problem which had occurred within the previous year. In light of figures such as these, it does not seen quite so dramatic that people might also fail to report a sexual trauma that occurred to them 17 years earlier. Normal forgetting alone may account for the failure to report these events.

[75] Similar questions often arise in "repressed memory" litigation. See, e.g., Doe v. Maskell, infra.

[76] Femina, D.D., C.A. Yeager, and D.O. Lewis (1990), "Child abuse: Adolescent records vs. adult recall," Child Abuse and Neglect, 14:227-231.

[77] Melchert, T.P. (1996), "Childhood memory and a history of different forms of abuse," Professional Psychology: Research and Practice, 27:438-446. The author states, "It is sometimes assumed that individuals’ affirmative responses to inquiries about the lack of continuous memory of abuse imply repression of the experiences, but the nature of the lack of memory recall that has been reported by many sexual abuse survivors has not been investigated and, consequently, remains unclear."

[78] Kihlstrom, J.F. (1997), Id.

[79] Pope, H.G. and J.I. Hudson (1995), Id.

[80] Ibid. Excluded from the repressed memory review were cases where the victim had tried not to think about the events, pretended the events never occurred, forgot about the incidents, appeared to derive some secondary gain from claiming amnesia or where biological factors or physical head injury might have been responsible for the reported amnesia.

[81] American Medical Association (1994), Id.

[82] American Psychiatric Association, Board of Trustees (1993), "Statement on memories of sexual abuse," which was approved by the Board of Trustees of the American Psychiatric Association on December 12, 1993.

[83] American Psychological Association, Council of Representatives, Working Group on Investigation of Memories of Child Abuse (November 11, 1994), Interim Report.

[84] Michigan Psychological Association, (1995), Id.

[85] Canadian Psychiatric Association (1996), "Position statement: Adult recovered memories of childhood sexual abuse," dated March 25, 1996.

[86] Australian Psychological Society Limited, Board of Directors (1994), "Guidelines relating to the reporting of recovered memories."

[87] An examination of the content or characteristics of a specific "repressed memory" enable one to reliably determine its accuracy. See, e.g., Rogers, M.L. (1994), "Factors to consider in assessing complaints by adult litigants of childhood sexual abuse," Behavioral Science and the Law 12:279-298.

[88] See, e.g., Howe, M.L. and M.L. Courage (1993), "On resolving the enigma of infantile amnesia," Psychological Bulletin, 113:305-326; Kihlstrom, J.F. and J. Harackiewicz (1982), "The earliest recollection: A new survey," Journal of Personality, 50:134-148; Loftus, E.F. (1993), Id; Nelson, K. (1993), "The psychological and social origins of autobiographical memory," Psychological Science, 4:7-14.

[89] See, e.g., Kotre, J. (1995), White Gloves: How We Create Ourselves through Memory, New York: The Free Press.

[90] See, e.g., Lindsay, D.S. and J.D. Read (1994), Id, for a review; Johnson, M.K., M.A. Foley, A.G. Suengas, and C.L. Raye (1988), "Phenomenal characteristics of memories for perceived and imagined autobiographical events," Journal of Experimental Psychology: General, 117:371-376.

[91] American Medical Association (1994), Id.

[92] See, e.g., Lanning, K.V. (1992), "Investigators guide to allegations of ‘ritual’ child abuse," Behavioral Science Unit, Federal Bureau of Investigation.

[93] The rationalization which allows that some "repressed memory" claims may be "symbolic expressions" comes from, e.g., Bowman, C.G. and E. Mertz (1996), "What should the courts do about memories of sexual abuse? Toward a balanced approach," Judges’ Journ al, 25:4:7-17.

[94] Yapko, M.D. (1994), Id, pp. 160, 168. See also Australian Psychological Society (1994), Id., which listed a series of factors which need not necessarily correlate with the validity of the reported memories: the presence or absence of detail, the level of belief in the memory, and the emotion associated with the memory.

[95] Weaver, C.A. (1993), "Do you need a ‘flash’ to form a flashbulb memory?", Journal of Experimental Psychology, 122:1:39:46.

[96] Neisser, U. and N. Hersch, (1992), "Phantom flashbulbs: False recollections of hearing the news about the Challenger," in E. Winograd, U. Neisser (eds.), Affect and Accuracy in Recall: Studies of Flashbulb Memories, New York: Cambridge Univ. Press, pp. 9-31.

[97] See, e.g., Walker, L. (1988), Handbook on Sexual Abuse of Children: Assessment and Treatment Issues, New York: Springer, p. 77. See also, Beitchman, J.H., K.J. Zucker, J.E. Hood, G.A. daCosta, and E. Cassavia (1992), "A review of the long-term effects of child sexual abuse," Child Abuse and Neglect, 16:101-118; diNado, P.A., K. Moras, D.H. Barlow, R.M. Rapee, and T. Brown (1993), "Reliability of DSM-III-R anxiety disorder categories: Using the Anxiety Disorders Interview Schedule-Revised," Archives of General Psychiatry, 50:251-256; Lindsay, D.S. and J.D. Read (1995), Id.; Poole, D.A., et al. (1995), Id, ;Tillman. J.G., et. al., (1994), Id; Yapko, M.D. (1994), Id.

[98] Rind, B. and P. Tromovitch (1998), "A meta-analytic review of findings from national samples on psychological correlates of child sexual abuse," The Journal of Sex Research, 34: 237-258. The authors found the size of the effect on psychological problems due to childhood sexual abuse quite small (less than one-half of 1 percent) and the effect of related factors (including temperament, and negative social factors within the family or peer group) somewhat more significant. See also, Pope, H.G. and J.I. Hudson (1995), Id.

[99] Kihlstrom, J.F. (1997). The author writes, "[T]his is a critical point, the research on explicit and implicit memory lends no support whatsoever to the notion that historical events can be inferred on the basis of mental and behavioral phenomena such as images and dreams, emotional feelings, bodily sensations, and intrusive behaviors....Nor, of course, is it legitimate to refer to these complaints and symptoms as evidence that the patient was in fact abused, in the absence of independent, objective evidence concerning the abuse itself." See See also, R. M. Dawes (1993a), "Prediction of the future versus an understanding of the past: A basic asymmetry," American Journal of Psychology, 106:1-24.

[100] American Psychiatric Association, (1994), DSM-IV, at xxiii. Dr. Robert L. Spitzer, task force chairman for the DSM is quoted regarding the DSM: "The emphasis is on description of the problem, not the why and how, because in most cases we don’t really know," in Slovenko, R. (1984), "Syndrome evidence in establishing a stressor," Journal of Psychiatry and Law, 12:443-447. See also, American Psychological Association (1995), Id; Slovenko, R. (1995), Psychiatry and Criminal Culpability, New York: Wiley Publishing.

[101] The Canadian Psychiatric Association (1996) in its position statement regarding recovered memories concluded, "Common symptoms such as depression, anxiety, anorexia or overeating, poorly explained pains, and other bodily complaints have all been used as proof of alleged sexual abuse. There is no support for such propositions. Psychotherapy based on such assumptions may lead to deleterious effects." See also, American Psychological Association (1995), Id; Slovenko, R., (1995), Psychiatry and Criminal Culpability, New York: Wiley Publishing; Beitchman, J.H., et al. (1992), "A review of the long-term effects of child sexual abuse," Child Abuse and Neglect, 16:101-118; For recent reviews of the literature, see, e.g., Tillman, J.G., et. al., (1994), Id; Lindsay, D.S. and J.D. Read, (1995), Id; Paris, J. (1996), Id.

[102] See, e.g., American Medical Association (1994), Id.;.; American Psychiatric Association (1993), Id.; Ofshe,R.J. and E. Watters (1994), Id.; Yapko, M.D. (1994), Id.; Lindsay, D.S. and J.D. Read (1995), Id.; Lindsay, D.S. and J.D. Read (1994), Id.; Loftus, E.F. (1993), Id.

[103] American Psychiatric Association (1994, 1987), Diagnostic and Statistical Manual of Mental Disorders, Id., The DSM-III lists three and the DSM-IV lists four additional factors to be considered as criteria for PTSD that overlap with several other diagnoses.

[104] Evidence of just such tragic circumstances was documented in a malpractice suit filed by Laura Deck against her former therapist in January 1994, King County Superior Court, Washington State and settled in April, 1995. The circumstances are reported in the FMSF Newsletter, June 1995.

[105] See, e.g., McHugh, P. (1992), "Psychiatric misadventures," American Scholar, Fall: pp. 498-510. Dr. McHugh, director of psychiatry and behavioral sciences at the Johns Hopkins University School of Medicine, explains that behavioral displays imitating physical or mental disorders may be derived from an individuals more or less unconscious effort to appear more significant to others and are shaped by suggestion and sustained attention. If improperly diagnosed the behavioral display will continue, expand and spread.

[106] Tillman, J.G., et. al. (1994), surveyed several studies that identified confounding factors such as chaotic households or other family pathology. These factors appear to alter the causal relationship between trauma and symptomotology.

[107] Several researchers have noted that dissociative patients commonly test as highly hypnotizable. For a recent review, see, Ganaway, G.K. (1995), Id.; See also: Lindsay, D.S. and J.D. Read (1995), Id.; Piper, A. (1995), "A skeptical look at Multiple Personality Disorder," in J. Berzoff, M. Elin and L. Cohen (eds.), Multiple Personality Disorder: Critical Issues and Controversies, Northvale, NJ: Jason Aronson, Inc.; Nash, M.R., Hulsey, T.L., Sexton, M.C., Harralson, L.L. and Lambert, W. (1993), "Long-term sequelae of childhood sexual abuse: Perceived family environment, psychopathology, and dissociation," Journal of Clinical and Consulting Psychology, 61:2:276-283; Spiegel H. (1974), ‘The grade 5 syndrome: The highly hypnotizable person," The International Journal of Clinical and Experimental Hypnosis, 22:303-319; Tillman, J.G., et. al. (1994), Id.

[108] See, e.g., Tillman, J.G., et al. (1994), Id.

[109] See, e.g., Piper, A. (1995), Id.; Spanos, N.P. (1994), "Multiple identity enactments and multiple personality disorder: A sociocognitive perspective," Psychological Bulletin, 116:143-165; Lindsay, D.S. and J.D. Read (1995), Id.

[110] Ganaway, G.K. (1995), Id; Bowers, K.S. (1991), "Dissociation in hypnosis and multiple personality disorder," Journal of Clinical and Experimental Hypnosis, 29:3:155-177; Spanos, N.P., J.R. Weeks and L.D. Bertrand (1985), "Multiple personality: A social psychological perspective," Journal of Abnormal Psychology, 94:3:362-376; Frankel, F.H. (1993), Id.; Seltzer, A. (1994), "Multiple personality: A psychiatric misadventure," Canadian Journal of Psychiatry, 39:7:442-445.

[111] Ganaway, G.K. (1995), Id; Piper, A. (1994), "Multiple personality disorder," British Journal of Psychiatry, 164:600-612; Piper, A. (in press), "Twelve serious questions for proponents of multiple personality disorder" Psychiatry: Interpersonal and Biological Processes.

[112] Halleck, S.L., et al., (1992), Id.

[113] Daubert citing philosophers of science, C. Hempel and K. Popper.

[114] Huber, P.W. (1993) Galileo’s Revenge: Junk Science in the Courtroom, New York: Basic Books. See also, footnote 47, infra..

[115] For recent reviews of studies purportedly supporting the repression theory, see, e.g., Kihlstrom, J.F. (1997), Id.; Lindsay, D.S. and J.D. Read (1995), Id.; Loftus, E.F., M. Garry, and J. Feldman (1994), "Forgetting sexual trauma: What does it mean when 38 percent forget?" Journal of Consulting and Clinical Psychology, 62:1177-1181; Ofshe, R. and E. Watters (1994), Id.; Pope, H.G. and J.I. Hudson (1995) Id.; Robbins, S.P. (1995), Id.

[116] See, discussion Section B-2, infra.

[117] See, discussion, Section A-1, infra.

[118] The meanings of these terms is slightly different when applied to legal evidentiary issues than when used by scientists. When related to evidentiary issues, validity is a measure for determining whether the testimony is grounded in, or a function of, established scientific methods or principles, i.e., whether it is scientific knowledge. Reliability generally is akin to the question of whether the testimony will assist the trier of fact, in view of its being trustworthy.

[119] See, footnote 74, infra.

[120] Construct validity refers to a demonstration that a theory rests on a developing pattern of consistent findings involving different researchers using different theoretical structures across a number of different studies.

[121] See, e.g., Carmines, E.G. and R.A. Zeller (1982), Reliability and Validity Assessment, London: Sage Publications, p. 26.

[122] See, footnotes 76 and 77, infra.

[123] Faigman, D.L. (1995), "Mapping the Labyrinth of Scientific Evidence," 46 Hastings Law Journal 555.

[124] See explanation of the use of a probability table in e.g., Dawes, R.M. (1993a), Id; Kihlstrom, J.F. (1997), Id.; McHugh, P.R., Unpublished manuscript, History and the Pitfalls of Practice.

[125] See footnotes 41-47, infra.

[126] Even if the relevant scientific community were limited to clinical psychiatrists and psychologists, many from this group have, in their writing and practice, clearly demonstrated their skepticism over the theory of "repression" and their concern that suggestive practices may lead to the development of false memories and injury to patients. See footnote 45, infra.

[127] Murray, J.M.K. (1995), "Repression, memory and suggestibility: A call for limitations on the admissibility of repressed memory testimony in sexual abuse trials," 66 U.Colo.L.Rev. 477, at 485. The author states, "[a]t least twenty-eight other states have adopted similar legislation. Twenty-five of these statutes are modeled after Washington legislation, and provide for a period ranging from two to ten years to bring suit after the discovery of the injury. Most of these ‘discovery’ statutes also contain a requirement of diligence or due care, but five of them do not... .[A]t least nine other states have considered similar legislation. but some of them are hesitating before embracing the statutory changes." [Footnotes omitted.] [Emphasis added.] See, also, Frank, R.A. (1996), Id. The author notes that the extended statutes of limitations on child sexual abuse laws have encouraged lawsuits by people seeking to recover memory of abuse using unproved techniques [citing Los Angeles Times editorial, 17 April 1994], at 137.

[128] Ernsdorff, Gary M. and E.F. Loftus (1993), "Let sleeping memories lie? Words of caution about tolling the statute of limitations in cases of memory repression," The Journal of Criminal Law & Criminology 84:1; Loftus, E.F. (1993), Id.

[129] For example, Patti Barton’s therapist used the technique of "visualization" whereby she remembered eye surgery at the age of 7 months and visualized her father "stuck his tongue in my mouth" at age 15 months of age. (Loftus, E.F. (1993), supra at 529). The legislature could not have been aware of the available scientific evidence which shows that such early memories are not stored and available for recall (see, footnote 88, infra). In addition, no professional organization had yet published reports on the efficacy of recovered memories. For example, the legislature would have been unable to avail itself of the American Medical Association (1994) report which states, "most controversial are those ‘memories’ that surface only in therapy and those from either infancy or late childhood (including adolescence)." Also, see, e.g., Haller, K. (1996, April), "Satan’s Theater," Connecticut Magazine, April 1996, Vol. 59, No.4. The article reviews the testimony presented at the Connecticut General Assembly’s Judiciary Committee hearing which included many misstatements of fact and concludes, "No one stepped forward to testify that ‘recovered memory’ was far from a proven methodology in getting to the truth. The House and Senate passed the bill unanimously," Id. at 85. The article chronicles a repressed memory civil suit which was instituted 3 months after Connecticut extended the statute of limitations for childhood sexual abuse claims from two to seventeen years. See, Borawick v. Shay, 68 F.3d 597 (2nd. Cir., Conn., 1995) [cert. denied].

[130] See, e.g., Merskey, H. (1996), Id.. The article explains the present day "sexual abuse hysteria" from a historical perspective, and, in addition, cites contributing factors such as the violation of scientific standards by large numbers of practitioners engaged in repressed memory therapy and that the reporting of sexual offenses is often confused, misleading and exaggerated. The author concludes that the theory of repressed memory will eventually self-destruct because it depends on implausible memories, without corroboration, and advances no criteria to distinguish true from false memories, together with the reductio ad absurdum elements (e.g., belief in Satanic ritual abuse).

[131] See, e.g., Murray, J.M.K. (1995), at 495-497. Also, see, e.g., The Courage to Heal, Id. at 307-311. The book contains a section entitled, "The Application of the Delayed Discovery Rule," written by a California attorney (who alleges repressed memories of childhood sexual abuse herself), which states: "They [my clients] get strong by suing."

[132] See, e.g., S.V. v. R.V., supra; Lemmerman v. Fealk, 534 N.W.2d 695, 699, 702 (Mich., 1995); Hunter v. Brown, 1996 WL 57944 (Slip copy) (Tenn.App., Feb 13, 1996); Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d 303, 533 N.W.2d 780 (1995), ccrt denied.; Travis v. Ziter, 1996 WL 390629 (Ala., Jul 12, 1996).

[133] See, e.g. S.V. v. R.V., Lemmerman v. Fealk, Hunter v. Brown, M.E.H. v. L.H., all infra.

[134] Loftus, E.F., J.R. Paddock and T.F. Guernsey (1996), "Patient-Psychotherapist privilege: Access to clinical records in the tangled web of repressed memory litigation," 30 U.Rich.L.Rev. 109:113; See, also, e.g., Messina v. Banner, 813 F.Supp. 346, 348 (U.S. Dist. E.D. Pa., 1993). The court stated, "[T]he evidence offered... consisted of notes, cards and letters plaintiffs wrote to defendants... which did not suggest in any way that anything was amiss between the parties. Plaintiffs explain that these documents are evidence of their "denial" in the therapeutic meaning of the words.; Roe v. Doe, supra." The court stated, "[A]t first, plaintiff experienced dreams or "images" of her cousin abusing her but she did not know how to interpret them; Borawick v. Shay, supra. The court cited the "inherent incredibility" and "fanciful" nature of the allegations themselves in its decision.

[135] Citing, Pope, H.G., and J.I. Hudson (1995).

[136] The court also noted, "From our review of the law in other jurisdictions, it is clear that courts have moved more cautiously than legislatures in this area... the ‘overwhelming trend’ among state legislatures had been to apply the discovery rule in childhood sexual abuse cases, although it noted that in following this pattern the Oklahoma legislature, heeding concerns expressed by its supreme court, had also required objective, verifiable evidence of both abuse and repression of memory." Id. at 41, 42.

[137] See, also, Messina v. Bonner, supra at 349-350. Here, again, between their psychological injuries and the alleged sexual abuse. Two sisters sued their mother and stepfather for events alleged to have occurred eighteen to twenty-four years prior. The court expressed concern over the lack of evidence and the "subjective" qualities of the claim, stating: "[p]recisely because cases like this present such serious issues, the fact finder should have the freshest and most reliable evidence from the maximum number of witnesses....[P]sychology has, since the time of Freud, been in the business of exploring and finding subjective reality. The courts, on the other hand, are in the business of trying to find objective reality."

[138] See, e.g., Barrett v. Hyldburg, Superior Court, Buncombe County, North Carolina, Case No. 94-CVS-0793 (January 23, 1996). The court stated, "This court is of the opinion, considering all of the evidence that has been presented, the arguments of counsel, the court emphasized the practical dangers of allowing the statute of limitations to toll until plaintiffs made the "connection the scientific evidence, the deposition evidence, the case law, and the matters contained in the file, that the evidence sought to be introduced is not reliable and should not be received into evidence in this trial."

[139] See, e.g., Franklin v. Stevenson, Third Judicial District Court, Salt Lake County, State of Utah, Case No. 94-090177P1. In December, 1996, Judge Kenneth Rigtrup reversed the jury’s verdict in a repressed memory civil suit ruling that plaintiffs testimony should have been considered unreliable. The Order Granting JNOV and Final Judgment states that the court could see no difference between hypnotic suggestion and the "inherently unreliable" techniques used to enhance plaintiffs memory, concluding, "there is no scientific evidence in this cases...that there is any scientific basis for ‘recovery’ of a memory through the use of these techniques." Several jurors said they ruled in plaintiffs favor because they believed she could have retrieved her memories using the therapist’s techniques which included: guided imagery, writing with the non-dominant hand, trance-work, relaxation, communicating with metaphorical "inner children" and journal writing. See, also, Wagner, N. (1996, Nov. 20), "Verdict reversed in sex-abuse suit: Judge rules recall techniques used in trial unreliable," The Salt Lake Tribune.

[140] See, e.g., Baily v. Lewis, 763 F.Supp. 802, 803 (USDC, Pa., 1991). The court stated, "[I]t is imperative...that the shocking nature of the alleged facts not affect the judgment of the courts with respect to controlling legal principles;" Burpee v. Burpee, 152 Misc.2d 266, 578 N.Y.S.2d 359 (NY, 1991) The court stated, "[L]aw, not feelings, must govern us or there will be no law at all."

[141] Hayes, J.L. (1994), "The necessity of memory experts for the defense in prosecutions for child sexual abuse based upon repressed memories," 32 American Criminal Law Review 69.

[142] See, e.g., Meiers Post v. Schafer, 427 N.W.2d 606 (Mich.Ct.App., 1988); Nicolette v. Carey, 751 F.Supp. 695, 699-700 (W.D. Mich. 1990); Peterson v. Bruen, 792 P.2d 18, 106 Nev. 271 (1990); Olsen v. Hooley, 865 P.2d 1345 (Utah, 1993); McCollum v. D’Arcy, 138 N.H. 285, 638 A.2d 797 (1994). The court rejected the requirement of independent corroborating evidence to apply the discovery rule but noted that on remand, plaintiff has the burden to ‘validate the phenomenon of memory repression itself and the admissibility of evidence flowing therefrom;’ Fager v. Hundt, 610 N.E.2d 246,252 (Indiana, 1993). The court remanded the case to trial for further consideration of the motion for summary judgment, however, noting, "the plaintiff submitted no affdavits or depositions of qualified witnesses providing expert opinion to support the scientific validity of repressed memory...."

[143] See, e.g., Ault v. Jasko, 70 Ohio St.3d 114, 637 N.E.2d 870 (1994). The court stated, "There is a phenomenon among sex abuse victims ... which causes victims to repress information regarding abuse." But, see, J. Wright dissenting. "Because I believe the methods used by psychologists and psychoanalysts to retrieve repressed memories are unreliable and are not sufficiently established to have gained general acceptance in the fields of either forensic or clinical psychology, I respectfully dissent."

APPENDICES

Appendix I - List of FMSF Advisory Board Members

Appendix II - Excerpts from Fredrickson, R., Ph.D. (1992), Repressed Memories, New York: Simon and Schuster. Quotes refer to memory retrieval techniques.

Appendix III - Yapko, M.D. (1994), "Therapists reveal their attitudes about memories and suggestions of abuse," Chapter 2, in Yapko, M.D., Suggestions of Abuse: True and False Memories of Childhood Sexual Trauma, New York: Simon and Schuster.

Appendix IV - Report to the Mental Health Subcommittee, Crime Victims Compensation Program, Department of Labor and Industries, State of Washington. Crime Victims’ Compensation and Repressed Memory, May 1, 1996.

Appendix V - Data Excerpted from the FMSF Legal Survey, February, 1997; Sample of Reports of Lawsuits Brought Against Mental Health Care Workers Alleging Creation of False Memory Syndrome through the Use of Repressed Memory Therapy.

Appendix VI - Pope, H.G. and J.I. Hudson (1995), "Can memories of childhood sexual abuse be repressed?" Psychological Medicine, 25:121-126.

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