Recovered Memories in the Legal System
Admissibility of Recovered Memories in Court:
Recovered Memories: The Current Weight of the Evidence in Science and in the Courts
(Brown, Scheflin, & Whitfield, 1999).
Impact: In a 126 page review of how scientific evidence, the Daubert criteria, and opposing arguments manifest in court, Brown concludes that “For the purpose of a Daubert hearing, the generally accepted opinion in the general psychiatric community is that repressed memories or dissociative amnesia exists.” The current weight of the available scientific evidence on amnesia for childhood sexual abuse clearly meets the Daubert standards of admissibility.
Recovered memory and the Daubert criteria: Recovered memory as professionally tested, peer reviewed, and accepted in the relevant scientific community. (Dalenberg, 2006).
Excerpt: “Research during the past two decades has firmly established the reliability of the phenomenon of recovered memory. This review first highlights the strongest evidence for the phenomenon itself and discusses the survey, experimental, and biological evidence for the varying mechanisms that may underlie the phenomenon… It is concluded that the weight of the evidence should allow the recovered memory victim to come before the court.” “There should be no negative assumption as to the accuracy of the recovered memory victim (as compared to the alleged continuous memory victim) in courts of law. Both should be subject to the same standards of proof for their allegations.”
Repressed memory or dissociative amnesia: What the science says. (Scheflin & Brown, 1995). Excerpts on Jim Hopper’s Website.
Impact: In a survey of 25 studies of amnesia, the authors found that “these studies, when placed together, meet the test of science.” “These studies should have a direct impact on two significant and currently volatile legal issues. First, courts holding a Frye or Daubert evidentiary hearing involving expert or lay testimony on the issue of whether ‘repressed memory’ is reliable must, consistent with the science, hold either that such memories are reliable, or that all memory, repressed or otherwise, is unreliable.”
False Memory Defense used to discredit Recovered Memory Testimony:
(Mis) representations of the long-term effects of childhood sexual abuse in the courts. (Brown, 2000).
Impact: This study addresses the (mis) representations made by pro-false memory attorneys and expert witnesses in court regarding the long-term effects of childhood sexual abuse (CSA). In analyzing 5 pro-false memory positions, this study reveals that such pro-false memory testimony was based solely on a partial understanding of retrospective data and that pro-false memory experts do not cite the more recent prospective data. Reviewing the totality of the scientific evidence demonstrates that such pro-false memory testimony is inaccurate and has the potential of misleading the jury.
False memory syndrome: undermining the credibility of complainants in sexual offences. (Raitt & Zeedyk, 2003).
Impact: Individuals who bring charges of sexual assault (usually women and children) are liable to be portrayed as emotionally labile, unreliable, and disordered. The introduction of evidence relating to false memories replicates the stereotyping of female behavior as untrustworthy, reinforcing the courtroom disadvantage that women and children have historically faced. The courtroom use of FMS is the latest in that tradition of numerous rules of evidence and procedure that have had the effect of rendering the testimony of women and children incredible.
The “false memory” defense: Using disinformation and junk science in and out of court. (Whitfield 2001).
Impact: Accused, convicted and self-confessed child molesters and their advocates have crafted a strategy that tries to negate their abusive, criminal behavior, which we can call a “false memory” defense. Each of 22 of the more commonly used components of this defense is described and discussed with respect to what the science says about them. Armed with this knowledge, survivors, their clinicians, and their attorneys will be better able to refute this defense of disinformation.
Other:
Suits by adults for childhood sexual abuse: Legal origins of the “repressed memory” controversy. (Williams, 1996)
Impact: In the last decade there has been a proliferation of civil lawsuits by adults claiming to be survivors of childhood sexual abuse (CSA). To understand the controversy between recovered memories of childhood abuse and claims of ‘false memory syndrome,’ it is important to examine its legal origins, history and context. The very substance of the debate has been influenced by the needs of plaintiffs' attorneys to articulate CSA survivors' delay in suing perpetrators in terms that fit into traditional legal doctrines regarding what justifies delay.
Crime and memory. (Herman, 1995). Full Text.
Impact: Social controversy becomes particularly acute at moments in history when perpetrators face the prospect of being publicly exposed or held legally accountable for crimes long hidden or condoned. This situation obtains in many countries emerging from dictatorship, with respect to political crimes such as murder and torture. It obtains in this country with respect to the private crimes of sexual and domestic violence. This article examines a public controversy regarding the credibility of adult recall of childhood abuse, as a classic example of the dialectic of trauma.