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Repressed Memories: Do Triggering Methods
Contribute to Witness Testimony Reliability?
Camille L. Fletcher
I. INTRODUCTION
Many legal scholars contest the validity of repressed memories for
evidentiary purposes. To gain support for repressed memory theory,
proponents offer examples of horrifying experiences of little girls
whose minds cannot handle severe trauma and who, in turn, repress
the memories of these experiences.
1
Opponents of the theory likewise
produce images of families torn apart by false accusations of child
molestation and sexual abuse.
2
The truth appears to lie somewhere in
between these two extreme views.
Repressed memories can be retrieved in different ways. For some,
common occurrences, such as a glimpse of one’s own child, may
trigger recovery.
3
Others enter therapy for other psychological
problems, and the repressed memory “comes out” during therapy.
4
Typically this therapy-based recovery occurs though hypnosis,
suggestion, or regression therapy.
5
When a memory is “recovered”
through therapy, outside influences can create room for greater error.
6
J.D. Candidate, 2003, Washington University School of Law.
- See Franklin v. Duncan, 884 F. Supp. 1435, 1438-40 (N.D. Cal. 1995), aff’d , 70 F.3d 75 (9th Cir. 1995). In this case, a witness claimed to recover a repressed memory of her father killing her childhood friend, twenty years after the incident occurred. Id. at 1438.
- See Joseph A. Spadaro, Note, An Elusive Search for the Truth: The Admissibility of Repressed and Recovered Memories in Light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 30 C ONN. L. R EV. 1147, 1148 (1998).
- See Franklin , 884 F. Supp. at 1440. In Franklin , a witness testified that she had recovered the memory of her childhood friend’s murder while watching her daughter play on the floor. Id.
- See Douglas R. Richmond, Bad Science: Repressed and Recovered Memories of Childhood Sexual Abuse , 44 U. KAN. L. R EV. 517, 519-20 (1996).
- Id. at 523.
- See generally id. at 521-25 (criticizing the validity of therapy-induced memory
336 Journal of Law & Policy [Vol. 13:
For example, “recovery” may occur through supplementation of the
patient’s memory.
7 While issues of reliability are not completely
settled in the case of stimulus-triggered, spontaneous resurfacing of
repressed memories, this type of memory recovery more easily
avoids the potential problems of improper influence.
8
This Note seeks to address the issues involved with repressed
memories in legal settings. Part II of this Note examines the
differences between the various methods of memory retrieval,
showing how these differences may affect issues of reliability in
general, as well as in court settings. Part III analyzes two ways that
repressed memories are recovered: through therapy and through
spontaneous resurfacing. Because courts do not differentiate between
different types of repressed memory recovery, Part IV of this Note
proposes several ideas for increasing the probative value or
evidentiary weight of spontaneously recovered memories, as opposed
to memories retrieved through therapy. Part V concludes that
spontaneously resurfaced memories should be afforded greater
evidentiary value and admissibility in the courts.
II. B ACKGROUND OF M EMORY RESEARCH AND REPRESSED M EMORY SYNDROME ’ S PLACE IN LITIGATION
Recovered memories
9 gained acceptance in the psychotherapy
community before they were addressed by the legal community. In
the early 1980s, therapists used the concept of recovered memories to
explain a host of psychological maladies seen in therapy.
10 Soon
thereafter, recovered memories made headlines when a number of
celebrities claimed to have recovered repressed memories of
childhood abuse.
11 This publicity propelled the concept of recovered
recovery).
- Id.
- See infra Part II.F.
- The concept of repressed memories “refers to the complete absence of awareness or memory of a traumatic event from the time of its occurrence until a period of years thereafter.” Richmond, supra note 4, at 520. 10_. Id._ at 519-20. Psychotherapists have employed the concept of recovered memories to explain such maladies as sexual dysfunction, eating disorders, relationship difficulties, and low self-esteem. Id. at 519.
- Id. at 520. Notable figures, including Roseanne Barr Arnold and Marilyn Van Derbur,
338 Journal of Law & Policy [Vol. 13:
amnesia.
22
Sigmund Freud proposed the first theory of memory repression,
which served as a precursor to Repressed Memory Syndrome.
23 He
described repressed memories as constituting a defense mechanism
that enables people to suppress or “forget” overwhelming emotions,
memories, or feelings.
24 This allows people to cope better with the
world around them. The memory of the traumatic event still exists,
but is buried deep within the human psyche.
25 By this theory, a
person’s emotional survival depends upon the brain’s inability to
retrieve the memory and bring it into consciousness.
26
Repressed Memory Syndrome is distinguishable from a theory of
memory suppression.
27 Memory suppression involves the conscious
avoidance of a particularly painful memory.
28 People who suppress
memories of abuse retain a general awareness of the abuse inflicted
upon them.
29 They may not, however, retain knowledge of specific
injuries resulting from that abuse or of specific events of past abuse.
30
To function normally in society, the abuse victim actively suppresses
the memory of the childhood sexual abuse.
31 Suppressed memories
differ from repressed memories in that repressed memories are not
consciously “forgotten.” Further, once recalled to the conscious
- When a person forgets data or “memories,” the loss is attributable either to retrieval error in the sensory memory, or to data interference in the short-term memory. In either case, the forgotten information never advanced to the long-term memory. Id. at 55. However, when a person represses a memory, the data is already stored in the long-term memory, but cannot be accessed by the part of the brain that is responsible for outputting data. Id. at 61. This is why the person is said to be “unable to remember” the incident. Id. The “memory” is encoded into the person’s brain, though she does not realize it. Id. In contrast, amnesia is a form of memory loss that is attributed to actual brain damage or physical injury. Id.
- It is important to note that Freud made his proposals before modern views of memory functioning, such as the Information Processing System model, had been proposed. It is also important to note that while Freud is credited for the birth of psychoanalysis, his theory is only one of many in the filed of personality or psychology.
- Laura Johnson, Litigating Nightmares: Repressed Memories of Childhood Sexual Abuse , 51 S.C. L. R EV. 939, 942 (2000).
- Id. at 942-43.
- Spadaro, supra note 2, at 1155.
- Id. at 1157.
- Id.
- Id.
- Id.
- Id.
2003] Repressed Memories in Testimony 339
mind, repressed memories are recovered in whole.
32
The American Psychological Association (APA) formally
recognized Repressed Memory Syndrome in 1994. The APA referred
to it, however, as “Dissociative Amnesia.”
33 This formal recognition
of Repressed Memory Syndrome helps to legitimize the syndrome,
and gives therapists specific criteria to consider when diagnosing
patients.
34 However, not all therapists agree with the validity of the
Syndrome.
35 In fact, many opponents of Repressed Memory
Syndrome, both therapists and non-therapists, support a theory of
“False Memory Syndrome.”
36
- Id. at 1158. 33_._ THE D IAGNOSTIC AND STATISTICAL M ANUAL OF M ENTAL D ISORDERS 478 (4th ed.
- [hereinafter DSM-IV]. The DSM-IV states the following about Dissociative Amnesia:
The essential feature of Dissociate Amnesia is an inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by normal forgetfulness.... This disorder involves a reversible memory impairment in which memories of personal experience cannot be retrieved in a verbal form (or, if temporarily retrieved, cannot be wholly retained in consciousness).
Id. Dissociative amnesia (referred to in this Note as Repressed Memory Syndrome) usually consists of gaps in memory recall of a person’s life history that are later recovered. Johnson, supra note 24, at 943. The memory gaps identified with Repressed Memory Syndrome differ from normal gaps in memory because they are sporadic, involuntary, and associated with periods of trauma, distress, or impairment in a person’s life. Id. Repressed Memory Syndrome is not particular to a certain age group. Id. Children, adults, and elderly can repress and subsequently recover memories. Id. For example, studies addressing victims of physical and sexual abuse, victims of torture and concentration camps, victims of kidnapping, combat soldiers, and individuals who have experienced accidents and natural disasters all provide evidence of the partial or full recovery of repressed memories. Id. at 944. Sexually abused, traumatized children are especially susceptible to Repressed Memory Syndrome. Id. Sexually abused children cannot cope physically or psychologically with the abuse. Id. Children’s size, mental maturity, and dependant status often bar physical escape. Id. Thus, mental escape may become the only option. Id. Children find the memories of sexual abuse too overwhelming and must psychologically adjust in order to change their own perception of the situation. Id. Children who are victims of sexual abuse may acquire coping strategies such as “altering [their] state of consciousness” in order to “avoid reminders of traumatic events and, ultimately, memories of the event.” Id.
- Id.
- Harrison G. Pope et al., Attitudes Toward DSM-IV Dissociative Disorders Diagnoses Among Board-Certified American Psychiatrists , 156 AM. J. OF P SYCHIATRY 321, 322 (1999). The study, which surveyed 103 psychiatrists, found that many of those surveyed thought dissociative amnesia should not be included in the DSM-IV without reservations, or that it was not supported by strong scientific evidence. Id.
- Opponents of Repressed Memory Syndrome point to the American Psychological Association’s statement concerning the possibility of memory implantation. David Lynch, Post- Daubert Admissibility of Repressed Memories , 20 C HAMPION , Nov. 1996, at 14, 17. The
2003] Repressed Memories in Testimony 341
less reliable than that based on traditional experimentation,
researchers conduct case studies on repressed memories due to
significant ethical considerations.
42 Researchers have conducted
several case studies on memory repression.
43
One such case study found that sexual abuse victims repress
memories of the abuse. Linda Meyer Williams conducted a case
study involving women who were sexually abused as children.
44 She
first interviewed these women as little girls, when they were admitted
for medical treatment resulting from the abuse. She then interviewed
them again many years later.
45 Williams found that over one-third of
the participants failed to disclose their molestation during the later
interview.
46 This finding implies that the women repressed the
memory of sexual abuse in some capacity.
47 Opponents of Repressed
studies are used in researching repressed memories. A scientific experiment usually includes at least two groups: a control group and an experimental, or test, group. The control group might be given a placebo or nothing at all. Researchers use the control group to examine what would occur if the unknown element, or the element the psychologist is trying to prove, was not given to them. The test group is either given the element the psychologist is testing (e.g., a particular untested drug) or exposed to the condition that the psychologist is testing. In studying repressed memories, the control group would consist of people who have not gone through severe traumatic experiences. JOHN J. SHAUGHNESSY & E UGENE B. ZECHMEISTER, R ESEARCH M ETHODS IN P SYCHOLOGY 345 (McGraw-Hill 1997) (1985). The test group would include people being exposed to similar traumatic experiences, such as sexual abuse. In order to filter out confounds, which are independent variables that change the outcome of the test, the participants would share similar socio-economic status and would have similar social experiences. Id. at 25. Additionally, the test group subjects must all experience the same traumatic event. Id. A case study, in contrast, involves a person or group of people who have already gone through the event or have experienced the condition that the psychologist is trying to study. Id. at 308. A case study does not produce empirical data because the psychologist cannot control for confounds. Also, there is no control group against which to compare the case study participants. Id. Thus, a case study cannot prove causation, id. at 315, and case studies involving repressed memories can neither scientifically prove nor disprove the existence of Repressed Memory Syndrome.
- Spadaro, supra note 2, at 1191-92. “No study can ethically be done to directly show repressed memory distortion, due to the fact that such a study would require the researcher to induce trauma to the subject.” Id. For a discussion of a possible argument against the unethical implications in studying altered memories, see Lynch, supra note 36, at 15-18.
- See infra notes 44-59 and accompanying text.
- Linda M. Williams, Recall of Childhood Trauma: A Prospective Study of Women’s Memories of Child Sexual Abuse , 62 J. OF C ONSULTING & C LINICAL PSYCHOL. 1167 (1994).
- Id.
- Id.
- Williams controlled for the possibility that the women might not disclose the
342 Journal of Law & Policy [Vol. 13:
Memory Syndrome, however, criticized Williams’ study for not
conducting follow-up interviews to determine why the women failed
to report past sexual abuse.
48
Another case study found that people are able to repress
memories, then later recover them.
49 Dr. Judith Lewis Herman
conducted a case study, again involving women who were sexually
abused as children.
50 In this study, Herman asked women who had
reported past sexual abuse whether they had suffered memory loss
concerning the abuse.
51 Approximately two-thirds of the participants
claimed some level of memory loss in the past.
52 Participants
reporting more extreme traumatic events were found more likely to
experience memory loss of the abuse.
53 Herman’s study implies that
people are able to repress memories of past traumatic events, and
then recover them at a later date.
In contrast to these case studies, a third found that people’s
memories may be highly susceptible to memory implantation.
54
Professor Elizabeth F. Loftus conducted a study relating to memory
implantation.
55 Loftus used older family members to implant false
memories in participants’ minds regarding a fabricated incident of
being lost in a shopping mall as a young child.
56 Some participants
not only believed that the event occurred, but even supplied details to
Loftus regarding the event beyond those which the older relatives had
implanted.
57 Furthermore, some participants persisted in their belief
that they were actually lost in the mall even after Loftus and family
information of sexual abuse because of a desire to conceal embarrassing and personal events. Id. at 1167. This was accomplished by asking several highly personal questions that the women answered without hesitation. Id.
- See Spadaro, supra note 2, at 1159.
- Id. at 1160.
- Id.
- Id.
- Id.
- Herman interviewed fifty-three women who reported that they had been sexually abused in the past. Id. Most of these women were able to produced evidence of this sexual abuse. Id.
- See David Spiegel & Alan W. Scheflin, Dissociated or Fabricated? Psychiatric Aspects of Repressed Memory in Criminal and Civil Cases , 42 INT ’L J. C LINICAL & E XPERIMENTAL HYPNOSIS 411, 422 (1994).
- Id.
- Id.
- Id.
344 Journal of Law & Policy [Vol. 13:
happened.
67 The jury convicted Franklin-Lipster’s father of first
degree murder, and the judge sentenced him to life in prison.
68
In Borawick v. Shay ,
69 the plaintiff recovered repressed memories
through hypnosis therapy.
70 Before hypnosis therapy, she did not
“remember” her aunt and uncle sexually abusing her.
71 The plaintiff
testified, however, that during the course of her therapy she recovered
repressed memories of the sexual abuse.
72 She allegedly recovered
the first repressed memory while driving home from lunch one day.
73
She also testified that she recovered more repressed memories of
sexual abuse in subsequent days.
74 The defendant filed a motion to
exclude her testimony,
75 and the magistrate judge granted the
motion.
76 The motion was granted based on the hypnotist’s lack of
qualifications and the overall unreliability of the plaintiff’s
testimony.
77
- Id. at 1440. In addition, he told her that no one would believe her and that he would kill her if she told anyone. Id.
- Id. at 1438.
- Borawick v. Shay, 842 F. Supp. 1501 (D. Conn. 1994), aff’d , 68 F.3d 597 (2d Cir. 1995).
- Id.
- Id. at 1502-03.
- Id.
- Id. at 1502.
- Id. at 1502-03.
- Id. at 1502.
- Id. at 1501.
- Spadaro, supra note 2, at 1180-81. Magistrate Judge Joan G. Margolis contended that certain safeguards must be present to balance plaintiffs’ and defendants’ interests in such a sensitive case. Id. at 1180. Judge Margolis stated that these safeguards should at least provide “that the hypnotist be appropriately qualified, that he or she avoid adding new elements to the subject’s description, and that a permanent record be available to ensure against suggestive procedures... [and that] other evidence [be present] to corroborate the hypnotically enhanced testimony.” Id. In Borawick , the plaintiff’s hypnotist met neither the safeguards nor the other required qualifications. Id. at 1181. In addition, the court contended that Joan Borawick had accused many other people of sexually abusing her. Id. at 1180. She had claimed that men who were members of the Masons raped her when she was three years old, others had injected her with drugs, and that chanting people with black gowns had forced her to drink blood during a disturbing ritual. Id. The court asserted that Borawick’s wild accusations not only ruined her own credibility, but also ruined the reliability of her claims of memory recovery during hypnosis therapy. Id. at 1181-82.
2003] Repressed Memories in Testimony 345
Lawsuits that deal with repressed memories generally implicate
two main issues: the statute of limitations
78 and the admissibility of
testimony concerning repressed memory therapy.
79
D. Repressed Memory Syndrome and the Statute of Limitations
As the courts and the public become increasingly aware of
Repressed Memory Syndrome, “discovery” statutes tolling the statute
of limitations in sexual abuse cases have become increasingly
common.
80 In the context of Repressed Memory Syndrome, a
discovery statute may toll the statute of limitations until certain
causes of actions are discovered, or at least until causes of actions
should have been discovered with reasonable due diligence.
81
The State of Washington was the first to apply its general
discovery statute to civil actions involving childhood sexual abuse.
82
Other states have since followed suit.
83 While most states now
directly apply their discovery statutes in sexual abuse situations,
84
some states still depend upon the courts for this implementation in
childhood sexual abuse cases.
85
- Id. at 1164.
- Id. at 1170.
- Id. at 1166.
- See Ernsdorff & Loftus, supra note 39, at 142.
- See WASH. R EV. C ODE ANN. § 4.16.340(1) (West Supp. 2003).
- At least twenty-seven states have similar discovery statutes. See, e.g. , C AL. C IV. PROC. C ODE § 340.1 (West Supp. 2002); ILL. C OMP. STAT. ANN. § 5/13-202.2 (West Supp. 2002); M ASS. GEN. LAWS ANN. ch. 260, § 4C (West Supp. 2002); M O. ANN. STAT. § 537. (West Supp. 2002); NEV. R EV. STAT. ANN. 11.215 (Michie 2002); N.M. STAT. ANN. § 37-1- (Michie Supp. 2002); OKLA. STAT. ANN. tit. 12, § 95(6) (West 2000); S.D. C ODIFIED LAWS § 26-10-25 (Michie 1999); VA. C ODE ANN. § 8.01-249(6) (Michie Supp. 1999); WIS. STAT. ANN. § 893.587 (West 1997).
- See, e.g. , M O. ANN. STAT. § 537.046 (West Supp. 2002). Missouri’s statute provides: In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within five years of the date the plaintiff attains the age of eighteen or within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs.
Id.
- See Peterson v. Huso, 552 N.W.2d 83 (N.D. 1996). The North Dakota Supreme Court used the applicable discovery statute to determine that the statutory language, pertaining to the accrual of claims for relief, tolls the statute of limitations for causes of action for sexual assault and battery until the actual discovery of such action by the plaintiff. Id. at 86 (citing N.D. C ENT.
2003] Repressed Memories in Testimony 347
testimony is also needed to legitimize Repressed Memory Syndrome
in the minds of the jury.
91
In 1993, the United States Supreme Court, in Daubert v. Merrell
Dow Pharmeceuticals , set forth a new test to aid trial judges in
determining the reliability of expert testimony.
92 The Court proposed
four factors to consider when reviewing expert testimony: (1) the
ability of the expert’s theories and methods to be tested, (2) whether
these theories and methods have been subject to peer review, (3) the
rate of error present in the study or test results, and (4) the overall
degree of acceptance in the scientific community.
93
After evidence passes the Daubert , now Federal Evidence Rule
702 test,
94 federal courts must still apply the balancing test found in
Rule 403. This test balances the probative value of evidence against
the unfair prejudice the evidence might cause when heard by a jury.
95
When applying a Rule 403 balancing test, judges must consider the
persuasiveness of the expert’s testimony, as well as the risk of
Some commentators believe that the value of expert witness testimony in repressed memory cases outweighs the added cost and burden of these experts. See Johnson, supra note 24, at 963. They assert that both the complex nature and lack of agreement concerning Repressed Memory Syndrome requires expert witnesses to assist jurors in making sense of the confusing body of research. Id.
- See Daubert v. Merrell Dow Pharms., 509 U.S. 579, 580 (1993). While the intricacies of repressed memory theory are beyond the average juror’s experience and understanding, jurors often find Repressed Memory Syndrome intuitively plausible. Johnson, supra note 24, at
- Not surprisingly, lawsuits involving repressed memories “are usually fraught with the potential for wrongful conviction.” Id. This great potential for wrongful conviction in repressed memory cases stems from American society’s fascination with childhood sexual abuse allegations and the fact that although Repressed Memory Syndrome is scientifically documented, the psychological community has been unable to reach consensus on its probative value. Id.
- 509 U.S. at 588.
- Id. at 593-94. On December 1, 2000, Federal Rule of Evidence 702 was amended in order to codify Daubert. Rule 702, in its present form states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
FED. R. E VID. 702 (emphasis added). 94_._ In this Note, “Rule” refers specifically to the Federal Rules of Evidence.
- FED. R. E VID. 403.
348 Journal of Law & Policy [Vol. 13:
misleading the jury given the difficulty of placing proper weight on
expert testimony as compared with other witnesses’ testimony.
96
Within the scientific community, differences in opinion regarding the
reliability of Repressed Memory Syndrome make the Rule 403
balancing test especially important in repressed memory cases.
97
F. Spontaneous Resurfacing of Repressed Memories
In one category of recovery, repressed memories resurface
spontaneously through a triggering mechanism, such as a flashback
or a fleeting glance.
98 Spontaneous resurfacing of repressed memories
tends to occur instantaneously, although one such memory may
trigger the resurfacing of other repressed memories.
99
The spontaneity of the triggering mechanism makes it unlikely
that memory implantation plays a role because little human
interaction is involved in the recovery process.
100 People who
spontaneously recover a repressed memory may seek therapy,
however, to draw out the repressed memories more fully.
101
G. Repressed Memories Recovered in Therapy
Therapy may also trigger the recovery of repressed memories.
102
Therapy creates a risk-free environment so that any thoughts,
repressed or otherwise, may be expressed safely.
103 Therapists use
many devices in attempting to draw out repressed memories.
104 These
- Richmond, supra note 4, at 544-45. Courts have used section 403 of the Federal Rules of Evidence to keep expert testimony out of a trial. Id.
- Id. A potential problem arises under discovery statutes that toll statutes of limitations. Id. Many do not clearly address the issue of when the tolling of the statute of limitations for childhood sexual abuse ends and the running of the statute resumes. Id. It may end once the repressed memory is first “recovered,” when the person successfully completes therapy, or somewhere in between. Id.
- Ernsdorff & Loftus, supra note 39, at 138.
- See Borawick v. Shay, 842 F. Supp. 1501 (D. Conn. 1994), a ff’d , 68 F.3d 597 (2d Cir.
- (explaining Plaintiff’s claims that initial memory recovery led to a chain reaction of other recovered memories).
- See infra note 119.
- See infra note 120.
- Ernsdorff & Loftus, supra note 39, at 138.
- Id. at 138-39.
- See infra notes 124-28 and accompanying text.
350 Journal of Law & Policy [Vol. 13:
III. ANALYSIS OF REPRESSED M EMORY SYNDROME AND FALSE M EMORY SYNDROME
Opponents of Repressed Memory Syndrome tend to consider
repressed memories, as a whole, to be unreliable.
114 Most critics,
however, use examples of repressed memories recovered through
therapy as their primary means of debunking the theory.
115 This is
probably due to the nature of the two methods of recovering
repressed memory, spontaneous resurfacing and therapy.
Spontaneous resurfacing occurs as a result of two main actions.
116
Various triggering events, such as catching a glimpse of one’s own
child, may cause a spontaneous resurfacing of a repressed memory.
117
Spontaneous flashbacks may also cause the resurfacing of a repressed
memory.
118 Because recovery of the repressed memory is
spontaneous in either case, less room exists for outside influences to
taint the recovered memory.
119 Thus, this type of repressed memory
recovery seems more reliable than those memories recovered through
therapy.
120
- See supra note 2.
- See supra note 2.
- See Ernsdorff & Loftus, supra note 39, at 138.
- Franklin v. Duncan, 884 F.Supp. 1435 (N.D. Cal. 1995), aff’d , 70 F.3d 75 (9th Cir. 1995).
- See Ernsdorff & Loftus, supra note 39, at 138. A “flashback” is defined as: [R]eliving of a traumatic experience as if it were currently happening. Flashbacks can be stimulated by normal life experiences, especially milestones, such as marriage, birth of a baby, or death. They can be evoked by sexual encounters, or even by something as mundane as a particular laugh or certain expression.
Id.
- Id. As Ernsdorff and Loftus state, “The environment in which a memory is recalled may have subtle, or perhaps not so subtle, influences.” Id. See also Johnson, supra note 24, at
- Opponents of Repressed Memory Syndrome focus their criticism on the distortion, suggestibility, and malleability of memories, thus making false memories more likely in repressed memory cases. Id. Critics claim that, if ordinary memories are susceptible to outside suggestions, then a repressed memory of an event that may have occurred decades ago must be even more so. Id. In spontaneous resurfacing of repressed memories, these criticisms are less likely to matter since the repressed memory has less opportunity to be filtered through the suggestions and prodding of a therapist. Id.
- The environment surrounding the retrieval of a repressed memory may influence that memory. This implies that environment may also influence the accuracy and reliability of the memory. Thus, it is logical to conclude that a spontaneously recovered repressed memory is more reliable than a repressed memory recovered during therapy, as the latter has more
2003] Repressed Memories in Testimony 351
Spontaneous resurfacing of repressed memories, however, is not
completely free from the reliability issues that plague therapy-
recovered repressed memories. For example, people who recover
repressed memories through triggering events or flashbacks may seek
therapy to explain the painful memory, to cope with it, or simply to
learn more about it.
121
The second recovery method is therapy. Since therapy is believed
to be a safe, no-pressure environment, some scholars claim therapy is
the ideal place for repressed memories to surface.
122 Others criticize
therapy-recovered repressed memories because therapists now
diagnose Dissociative Amnesia more frequently than in the past.
123
Many criticize therapists for retrieving repressed memories in ways
that include questionnaires,
124 group therapy,
125 books,
126 fantasy
therapy,
127 and hypnosis.
128 Each of these techniques allows the
exposure to potential environmental pressures and influences.
- Some people enter therapy simply because they have a feeling or premonition that they were sexually abused as children, even before experiencing any spontaneous resurfacing of memories. Johnson, supra note 24, at 947. These patients implicitly demand recovery of repressed memories from the moment they enter therapy. Id.
- See Ernsdorff & Loftus, supra note 39, at 138-39. Many times, therapy provides a safe haven where the patient may open up to the repressed memories. Id. at 138. The therapist may act as a comforting companion to ease the patient through the painful process. Id. 123_. See_ Johnson, supra note 24, at 947. More therapists diagnose dissociative amnesia because there is greater awareness of the phenomenon of repressed memories and awareness of the prevalence of childhood sexual abuse in society. Id. Further, the DSM-IV recognizes Repressed Memory Syndrome as legitimate. Id.
- Ernsdorff & Lotus, supra note 39, at 159. Questionnaires can be used to bias a patient. Id. For example, one therapist gives a questionnaire to patients, containing detailed questions dealing with incest, but only general questions concerning one’s education, health, and work status. Id.
- Id. at 159-60. Group therapy benefits survivors of traumatic events, but it can also bias patients and implant false memories. Id. Patients may desire to belong to the group to gain acceptance by taking on the memories and thoughts of fellow group members. Id. Patients may also be influenced by fellow group members when they listen to detailed accounts of childhood sexual abuse and see others nodding, agreeing, and affirming the detailed account. Id. Expectations of therapists and group members influence the patient, especially when the patient’s history of behavior is similar to the one sharing her detailed account of past sexual abuse. Id.
- Id. at 160. Some therapists give patients books containing information about sexual abuse when they suspect the patient may have been sexually abused. Id. The books include a list that describes vague or common feelings that are associated with sexual abuse. Id. However, these feelings are also associated with common feelings of people who have not been sexually abused. Id.
- Id. Therapists use a technique in which they ask patients to “fantasize,” “make stories
2003] Repressed Memories in Testimony 353
IV. PROPOSAL FOR DIFFERENTIATING BETWEEN SPONTANEOUS RESURFACING AND RECOVERY DURING T HERAPY
The debate surrounding Repressed Memory Syndrome places
courts in a delicate situation. They must balance the interests of
victims who have actually suffered abuse with the interests of alleged
perpetrators who were falsely accused of abuse. The Federal Rules of
Evidence promote the admissibility of evidence, but call for judges to
be gate-keepers and exclude evidence that unfairly prejudices
juries.
135
Because courts must balance the concerns of true victims with
those of the falsely accused, they should focus on the recovery
methods of repressed memories. This would allow courts to filter
unwarranted claims by giving judges more assurance of valid or
reliable repressed memories. Testimony of repressed memories when
recovered by reliable methods has more probative value, aiding
courts’ efforts to differentiate between genuine and false claims of
repressed memories of sexual abuse. The differentiation between the
repressed memory recovery methods may also arm juries with the
necessary information to reach a just outcome.
Prior courts and researchers have considered Repressed Memory
Syndrome in cases to determine the reliability of repressed memories,
the admissibility of expert testimony, and the restrictions of statutes
of limitations.
136 Proponents of Repressed Memory Syndrome extol
its virtues and reliability, while opponents of Repressed Memory
Syndrome criticize it as unreliable and without merit.
137 Courts,
proponents, and opponents, however, ignore the difference between
various types of memory retrieval when determining whether
retrieved memories are credible. They fail to examine whether the
retrieval mechanism of the repressed memory affects, or should
affect, Repressed Memory Syndrome cases.
- See infra note 138.
- See, e.g. , Franklin v. Duncan, 884 F. Supp. 1435 (N.D. Cal. 1995), aff’d , 70 F.3d 75 (9th Cir. 1995).
- See Spadaro, supra note 2, at 1158.
354 Journal of Law & Policy [Vol. 13:
A. Greater Awareness and Limiting Instructions
Perhaps the least controversial proposal would be to raise
awareness among judges and attorneys of the different retrieval
mechanisms in repressed memory cases and the resulting reliability
of testimony recovered by each retrieval mechanism. Judges may
then consider how the repressed memory was retrieved when
applying the Rule 403 balancing test.
138 In cases where judges are not
well-versed in the various retrieval mechanisms, lawyers should be
knowledgeable enough to educate judges. Heightened awareness of
retrieval mechanisms will provide a more complete analysis for
determining the probative value of testimony involving repressed
memories. In addition, the court should give jury instructions that
account for the varying reliability of repressed memories retrieved
through different mechanisms. The instruction should inform the jury
that more evidentiary weight should be given to repressed memories
recovered through spontaneous resurfacing than through therapy.
139
138_. See_ FED. R. E VID. 403 (stating, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”). Evidence of repressed memories retrieved in therapy has less probative value than repressed memories recovered through spontaneous resurfacing. Thus, under the Rule 403 balancing test, it would be much harder to allow evidence of repressed memories retrieved in therapy to go to a jury.
- This jury instruction would probably be most effective if the trial contained expert testimony concerning various retrieval mechanisms, and if given after a jury instruction on the credibility of witnesses. The below instruction would provide an example of how this principle can be employed:
Witness’ Repressed Memory Testimony
In reference to witness’ testimony concerning repressed memories, you may consider the way in which the witness came to remember the repressed memory. You may consider whether the witness remembered the repressed memory through a therapy setting or through a spontaneous resurfacing, such as from a flashback or triggering mechanism. In deciding what weight and value you ought to give the witness’ testimony, you are warranted in placing more weight in the testimony if the repressed memory was remembered or retrieved through a spontaneous resurfacing than if it was remembered or retrieved through therapy.
