I. REPRESSED MEMORIES OF CHILDHOOD SEXUAL ABUSE
A. The Repression Controversy
B. Repression of Memories of Childhood Sexual Abuse
C. Therapy and the Creation of False Memories II. LEGISLATIVE RESPONSE: EXTENDING OR TOLLING CRIMINAL
STATUTES OF LIMITATIONS III. PROCEDURAL REFORM: EXPERTS FOR THE DEFENSE
A. Why Expert Testimony?
B. The Content of Expert Testimony in Repressed Memory Cases
C. Admissibility Issues and Expert Testimony IV. CONCLUSION
Many States have recently enacted legislation that tolls or extends criminal statutes of limitations in cases of child sexual abuse.(1) These legislative actions parallel the tolling of the limitations periods in many states for civil suits based upon prior incidents of sexual abuse.(2) Most states took this action in order to increase reporting opportunities for abuse victims who, for either physical or emotional reasons, are not in a position to report incidents of sexual abuse that occurred prior to the victim reaching the age of majority.(3) These statutes have also opened the door to prosecution of alleged abusers based upon repressed memories of childhood sexual abuse recovered many years after the abusive incident.(4) The reliability of such memories has not yet been scientifically proven. Indeed, little research has been conducted on the subject. Nevertheless, many therapists believe in the truthfulness and validity of repressed memories, based upon experience with patients and anecdotal evidence.(5)
With the current lack of empirical proof of the reliability of a recovered memory, bringing serious criminal charges after the passage of many years based upon potentially unreliable and usually uncorroborated evidence is untenable. Not only are sexual abuse prosecutions based solely upon repressed memories of unproven reliability unjust under the basic tenets of our criminal justice system, they also present obvious practical difficulties in proving charges beyond a reasonable doubt. Allegations of abuse based upon repressed memories are often uncorroborated, since a long period of time normally elapses between the alleged abusive incident and the recovery of the memory. Juries, using common knowledge derived largely from media reports and personal experiences with memory, may accord undue credibility to repressed memories.
Prosecutions based upon repressed memories of childhood sexual abuse implicate a number of issues for potential defendants as well as for society. Defendants accused of sexually abusing children sustain irreparable damage to their personal and professional reputations even if they are ultimately acquitted. With such severe consequences at stake for potential defendants, the criminal justice system must question whether charges based upon uncorroborated memories of unknown reliability should be allowed to proceed. Furthermore, if research later proves conclusively that repressed memories are unreliable, a societal backlash may occur which could chill legitimate prosecutions of sexual abusers of children.(6)
This Note argues that since prosecutions for sex offenses against children based upon repressed memories are more likely to be instigated under newly extended or tolled criminal statutes of limitations, defendants must be provided with certain procedural safeguards in such cases. Specifically, due to the serious nature of these charges and their precarious evidentiary foundation, states that currently allow prosecutions based on repressed memories should adopt a bright-line rule requiring that, upon the defendant's request, a memory expert testify on his behalf.
I. REPRESSED MEMORIES OF CHILDHOOD SEXUAL ABUSE
A. The Repression Controversy
Most psychotherapists believe strongly in the concept of repression and incorporate that belief into their therapy strategies.(7) Sigmund Freud advanced the notion of repression as an ego-defense mechanism.(8) The general theory of repression holds that when an event occurs which is too shocking for the conscious mind to handle, the memory of the event is forced into the unconscious where it becomes inaccessible.(9) The memory may stay in the recesses of the unconscious for many years, or perhaps forever, but may at some point rise up into the conscious mind.(10) According to the theory, repression of memories of past trauma may lead to difficulties later in life including depression, substance abuse, low self-esteem, social and sexual dysfunction, and even suicidal tendencies.(11)
Experimental psychologists and others, however, question the very existence of repression.(12) The evidence used to validate repressed memories is almost exclusively anecdotal, and studies relied upon by clinicians have been widely rejected as speculative.(13) Due to the traumatic nature of the events thought to induce repression, controlled laboratory experiments on the subject cannot ethically be conducted.(14) Unless experimental proof becomes available, many in the field of psychology will remain critical of the theory of repression.(15) Moreover, clinical anecdotes and therapists, reliance on unsubstantiated theory to explain repression leave other therapists and laboratory researchers unconvinced as to the validity and usefulness of the theory.(16) Because scientists are currently unable to replicate the conditions believed to be necessary for repression to occur, controversy over the theory may never be conclusively resolved.
B. Repression of Memories of Childhood Sexual Abuse
Although figures on the incidence of sexual abuse of children vary, this type of abuse is tragically all too common.(17) Furthermore, the frequency of repression in cases of childhood sexual abuse is unsubstantiated.(18) While few studies provide evidence of the extent to which repression occurs, the available figures range from eighteen percent to fifty-nine percent.(19) Many therapists rely upon symptomology(20) and the emotional pain that often accompanies the retrieval of repressed memories as evidence of the truthfulness of their patients, memories of sexual abuse.(21) Therefore, those who make the case that repressed memories of sexual abuse are authentic usually rely upon individual clinical cases and anecdotes as evidence, neither of which are of scientific quality. As such, they should not be relied upon to support the validity or authenticity of repressed memories.(22) Because little is empirically known about repressed memories, jurists must presently rely on years of study of the reliability of standard memories to answer difficult authenticity questions which will inevitably arise in criminal sex abuse prosecutions based upon repressed memories. A review of this research shows that repressed memories are often exposed to factors that have been proven to affect and introduce error into standard memories.(23)
C. Therapy and the Creation of False Memories
Skeptics tend to believe that the repressed memories described in clinical reports are the result of the therapy process itself, specifically therapist expectations and suggestive techniques, rather than historical accounts from the client's past.(24) Suggesting that a person's memory may be false, however, should not imply that he or she is deliberately lying. Elizabeth Loftus asserts that there are at least two potentially interrelated ways in which false memories may emerge: first, the person may internally need to create an abuse memory to provide a screen for a real, but less tolerable, childhood memory; second, a person may draw from external sources, most notably from a therapist's suggestions, to assist in the creation of such memories.(25)
Memory may be divided into three stages--perception, retention, and retrieval.(26) Factors such as a person's mood when perceiving an event, information received after an event during the retention phase, and the environment, techniques used, and persons present during recall of the memory have been shown in experiments to affect a memory's accuracy.(27) Numerous studies prove that as time passes, memory becomes increasingly impressionable and vulnerable to new information. Thus, since repressed memories deal with events in the distant past, they may be extremely susceptible to new inputs.(28) Furthermore, since older memories are particularly malleable, they are especially likely to be influenced by new inputs at the retrieval stage. As such, the conditions under which they are recalled deserve close scrutiny.(29) Repressed memories may reappear spontaneously or through flashbacks stimulated by a triggering event.(30) Since many repressed memories of childhood sexual abuse are retrieved during therapy and much data exists concerning therapeutic processes and techniques, the discussion that follows will focus on issues implicated in the therapy process.
Therapy consists of talking exchanges between patient and therapist to develop insight into the patient's past.(31) Donald Spence has identified four opportunities for distortion of the historical truth of a patient's past during therapy: between what really happened and what the patient remembers as having happened; between what the patient remembers and what he articulates; between what the patient says and what the therapist hears; and between what the therapist hears and what she concludes.(32) Thus, there are multiple opportunities for the creation of false or altered memories of childhood sexual abuse during therapy.(33)
The retrieval environment and patient expectations during the retrieval process have been shown to play a large role in false memory creation.(34) Therapist expectations(35) also play an important role during the retrieval stage because memories may be falsified or altered through the psychoanalytic phenomenon of transference.(36)
In addition, a patient's memory may be altered by the therapist's interpretations of the patient's revelations and dreams, and through the subsequent process of reconstructing the patient's past based upon these interpretations.(37) False memories may be constructed through unintentional, as well as intentional, suggestions by therapists.(38) While some therapists do not recommend intrusive probing to aid in the recovery of early memories of traumatic events, others actively engage in such techniques.(39) Some therapists openly suggest to their patients that they were sexually abused as children, even in the absence of memories of such events.(40)
Furthermore, even if clinicians do not introduce the idea of sexual abuse, they will often reinforce the patient's mere suspicions without exploring other possibilities.(41) The therapeutic device of sending patients to incest survivor support groups may also unwittingly suggest false memories to patients.(42) Some therapists who suspect sexual abuse in their patients, past give them certain books or booklets to read containing criteria which, if satisfied, suggest that the patients were abused.(43) Whether intentionally, unintentionally or actively, therapists are helping their patients form false or altered memories of childhood sexual abuse through suggestion.
Despite the multitude of opportunities for the creation of false memories, the idea that repressed memories represent the historical truth of a patient's past is widely accepted among therapists. The validity of repressed memories, however, has never been, and may never be, empirically proven. Moreover, while it is clear that sexual abuse of children is a problem of great magnitude, it has not been shown that repressed memories of such abuse are reliable. Therefore, the criminal justice system must adapt to deal with the issue of repressed memories of childhood sexual abuse in states where prosecutions based on such memories may be initiated.
II. LEGISLATIVE RESPONSE: EXTENDING OR TOLLING CRIMINAL STATUTES OF LIMITATIONS
The majority of states have recognized that injustices may occur when statutes of limitations for child sexual abuse are too short. Due to the unequal balance of power between an adult abuser and a child victim, reports of abuse are often unlikely or impossible until a child reaches the age of majority.(44) Motivated by the belief that children under a certain age need additional time to report such a serious and personal crime, most legislatures have tolled or extended criminal statutes of limitations in child sexual abuse cases.(45)
All but four states have tolled or extended their criminal statutes of limitations for bringing child sexual abuse charges,(46) suggesting that the potential for prosecutions based on repressed memories may be the unintended consequence of an increased concern for the welfare of children. A number of states have chosen simply to extend the limitations period in cases of child sexual abuse, in recognition of the unique problems and societal concerns implicated in such cases.(47) Most states, however, have responded by enacting tolling statutes in which the limitations period does not begin to run until the victim reaches a certain age, usually the age of majority.(48) All of these responses still maintain a fixed period after which no criminal charges may be brought.
Although thirty-seven states have tolled or extended the limitations periods in cases of child sexual abuse, only seven states have enacted laws that are broad enough to reach many, if not all, repressed memory cases.(49) In these states, either the statutes of limitations are not triggered until the crime is reported, discovered, or should have been discovered; there is no statute of limitations if the victim is under a certain age; or the statutory period is extended significantly if the victim is a minor. When combined with the states that have no Statutes of limitations for criminal prosecutions or for felonies,(50) it appears that criminal prosecutions for child sexual abuse based upon repressed memories may noW he initiated in sixteen states.(51) This possibility raises a number of concerns centered around the lack of empirical data regarding the reliability of repressed memories and, consequently, the questionable evidentiary foundation for criminal prosecutions based upon such memories.(52)
III. PROCEDURAL REFORM: EXPERTS FOR THE DEFENSE
In their recent article, Gary Ernsdorff and Elizabeth Loftus suggest that specific procedural requirements be adopted in child sexual abuse cases based upon repressed memories.(53) One suggestion offered is that courts, at the defendant's reqUest, allow an expert to testify on the reliability of repressed memories and memories in general.
In most states, expert testimony is admissible at the discretion of the trial judge.(54) A few States, however, have declared that it is an abuse of discretion to disallow the use of expertS in certain circumstances.(55) For example, in Washington and South Carolina, courts have established bright-line rules that reqUire the admission of expert testimony concerning the reliability of eyewitness identification if the defendant offers such testimony.(56) In the sixteen states allowing prosecutions based upon repressed memories, a similar bright-line rule should be adopted to require the admission of expert testimony on the reliability of repressed memories.
A. Why Expert Testimony?
Expert testimony on memory reliability is advisable in child sexual abuse prosecutions based upon repressed memories for several reasons. Primarily, expert psychological testimony will impart to a jury or factfinder the relevant scientific information needed to make a proper evaluation of the memory evidence introduced by the State, as well as provide insight into the particular facts of the case at hand.(57) Secondly, while cross-examination is a crucial tool for effectively litigating issues and bringing out facts in the criminal trial, it will not adequate1y reveal and explore the relevant empirical psychological issues inherent in any prosecution based upon repressed memory.(58) Likewise, in the absence of expert testimony, a defense attorney's closing argument will not be able to effectively overcome possible juror misconceptions about the reliability of repressed memories if she is not able to present scientific evidence on the subject.(59) Finally, although a jury instruction may be able to focus the jury's deliberation on the issue of the reliability of the victim's repressed memories, it would not provide data to help jurors evaluate the value of the crucial evidence.(60) Without expert testimony on repressed memories, jurors will be denied the opportunity for the best possible understanding of the critical issue of their reliability.
B. The Content of Expert Testimony in Repressed Memory Cases
Experts on memory who testify in repressed memory cases can address several issues critical to those prosecutions. First, the expert can review the existing scientific literature and research on repressed memories and emphasize the fact that little is known about repression.(61) Second, the memory expert can explain the malleability and suggestibility of the memory processes of storage and retrieval, focusing on the mind's potential to form false memories.(62) Third, the expert can testify about witness confidence and the accuracy of recalled events in general by utilizing research on eyewitness identifications for support.(63) This testimony would demonstrate to the jury that there is no true correlation between the confidence of a witness and his or her accuracy.(64) Finally, an expert could apply the particular facts of a case to the existing scientific research and empirical evidence on memory.(65) For example, an expert could point out possible points of suggestibility in a therapist's treatment of a victim. Because of the questionable scientific basis for the authenticity of repressed memories, expert testimony as detailed above is vitally important to help protect defendants from wrongful convictions.
C. Admissibility Issues and Expert Testimony
Recently, much scholarly controversy has developed concerning the use of expert testimony.(66) The debate has centered around two basic criticisms of the expert testimony provisions of the Federal Rules of Evidence.(67) First, it has been argued that experts are currently "auctioned off" to the highest bidder and, as such, have become advocates instead of educators with no place in the courtroom.(68) Second, some commentators suggest that courts should engage in extensive and detailed screening before admitting expert testimony not based upon generally accepted scientific standards.(69)
Regarding the first argument, one must remember that the legal system in the United States is adversarial, and expert testimony will inevitably reflect that fact. Therefore, a substantive challenge to the problem of expert bias would require major changes in the structure of the current system. One commentator suggests that litigators themselves should take the ethical initiative and hire only objective, rather than adversarial, experts to testify for their clients.(70) This suggestion is, however, highly unrealistic in a system where zealous representation by attorneys and a "win-at-any-cost" attitude are the prevailing norms. Another idea to reduce the impact of the "battle of the experts," in which each side employs "hired guns" to support its respective position, is to adhere solely to the common law procedure in which trial judges select experts from an impartial panel that is chosen by groups of individuals involved in the appropriate field.(71) This approach would likely produce a less adversarial or biased group of experts for use in testifying at trial, but other sources of potential bias, including the ideological background of the group choosing the expert pool, would persist.
For criminal defendants in sexual abuse cases based upon repressed memories, the affirmative values of the adversarial system in the context of expert testimony outweigh any possible damage created by biased experts. When an individual's freedom is at stake, the importance of introducing all scientific evidence that may produce a reasonable doubt is clear. Consequently, in light of the questionable reliability of repressed memories and the crucial concern that the defendant receive a fair trial, the defendant must be allowed to introduce memory experts.
The second controversy concerns the general acceptability of scientific expert testimony. The admissibility of expert testimony in federal courts is governed by Rule 702 of the Federal Rules of Evidence, a form of which is used in most states.(72) In deciding whether to admit expert testimony on a particular issue, the trial court has broad discretion.(73) The factors a court should consider include the relevance of the proposed testimony to the legal issue, the reliability of the proposed testimony, the helpfulness of the proposed testimony to the jury, the potential for jury confusion or prejudice, and the possibility that the proposed testimony will waste the court's time.(74)
In addition, when the expert testimony concerns a novel scientific theory or method, an additional obstacle must be overcome before the evidence will be admitted. Until recently, Frye v. United States(75) defined the standard for admissibility of novel scientific evidence, requiring that the evidence be generally accepted in the relevant scientific community.(76) In June 1993, however, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc.,(77) which held that the Frye test had not survived the adoption of the Federal Rules of Evidence.(78) Although the admissibility test under Daubert still includes a general acceptance component, it is now only one of several factors that courts must examine when considering whether to admit scientific evidence.(79) Furthermore, the Daubert decision does not contain language limiting the holding to "novel" scientific evidence, suggesting that it is applicable to all proposed scientific expert testimony.
Psychological expert testimony on the reliability of memory is not of the type considered "novel". As such, it should not be subjected to the Frye inquiry, which is still commonly utilized in state courts.(80) The Frye test has been applied consistently in cases involving novel scientific techniques and devices such as polygraphs, breathalyzers, and blood tests, but has not been consistently applied to medical and psychiatric expert testimony.(81) The proposed expert testimony concerning the reliability of memory has been generally accepted and relied upon in the psychology field for many years.(82) Therefore, the admissibility standard for expert testimony on memory should encompass the dual requirements of proper subject matter and expert qualifications, rather than the Frye standard.(83)
Under the more liberal "proper subject matter" standard announced in Daubert, trial judges should exercise their discretion in favor of admitting expert testimony on memory reliability. The requirement that the subject matter of the expert testimony be a proper one has troubled many courts that have dealt with the issue of psychological expert testimony.(84) Courts have primarily relied upon two interpretations of this requirement: (1) that the expert testimony's subject matter must be beyond the knowledge and experience of the average layperson; and (2) that the expert testimony must not invade the province of the jury.(85) Expert testimony on repressed memory reliability in criminal trials of alleged child sexual abusers should be admitted under either interpretation.
Under the first interpretation, the test is a "common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject . . . ."(86) Expert psychological testimony on the accuracy of eyewitness identifications has been held admissible, almost universally, due to the lack of juror knowledge on the issues surrounding memory and identification.(87) Similarly, scientific evidence on the reliability of repressed memories is also beyond the knowledge and experience of most laypersons and should likewise be admitted by trial courts. Many jurors are likely to assume that repressed memories are accurate and may have no knowledge of the extensive research on false memories and how they are created. A memory expert would supply this type of information, substantially assisting in the factfinding process. Thus, courts should admit expert testimony on memory reliability pursuant to this interpretation of the proper subject matter requirement.
Similarly, the proposed expert testimony on memory is admissible under the second interpretation of the proper subject matter requirement, which mandates that such testimony not invade the province of the jury. According to this interpretation, expert testimony on memory in sexual abuse prosecutions based upon repressed memories may violate a once widely-held policy against the expression of opinion by experts on the ultimate issue of fact in the case--here whether or not sexual abuse was perpetrated on a child many years previously--which is a determination left properly to the trier of fact.(88) The Federal Rules of Evidence, however, state that expert testimony is admissible even if it relates to the ultimate issue to be decided by the trier of fact.(89) Thus, although expert testimony on memory relates to the ultimate issue in cases of repressed memory of childhood sexual abuse, the expert testimony should be admitted because it does not invade the province of the jury. It is for the jury to determine the weight to be accorded to the expert testimony, and the court should not use its discretion to exclude vital evidence for fear of minimal intrusion into the jury's province.
Another concern about admitting expert scientific testimony is whether such testimony will overwhelm the jury and cause them to give too much weight to the expert's testimony. One researcher asserts that no persuasive evidence has been published which suggests that expert testimony on eyewitness identification improves the judgment of jurors or influences their decisions substantially in either direction.(90) The dearth of evidence that juries overemphasize expert testimony, combined with the vital importance of protecting defendants, rights in criminal cases, indicate that trial judges must not exclude expert testimony on the mere supposition that juries will overvalue it.
Expert testimony should be admitted at the request of the defendant on the issue of memory reliability in criminal trials for childhood sexual abuse where the foundation for the charges is the recovered repressed memory of the complainant. More appropriately, in the sixteen states in which charges based upon repressed memories may currently be brought, a bright-line rule for the automatic admission of expert testimony on repressed memory should be adopted, with the Washington and South Carolina guidelines for the admissibility of expert testimony on eyewitness identifications serving as a model.(91) Although sexual abuse of children is a heinous crime for which offenders must be punished, the importance of safeguards for defendants charged with such reputation-damaging crimes must also be considered. This is particularly true when the foundation for the charges is the repressed memory of the complainant. It is only just that the procedural safeguard of a bright-line rule for the admissibility of expert testimony on repressed memory be adopted in all jurisdictions whose liberal statutes of limitations allow for the prosecution of sexual abuse cases on the basis of repressed memories. (1.) With the exception of South Carolina and Wyoming, which do not have criminal statutes of limitations, and of the seven states that have no statutes of limitations for felonies (Alabama, Kentucky, Maryland, North Carolina, Rhode Island, Virginia, and West Virginia), all but four states have recently enacted provisions that toll or extend criminal statutes of limitations in childhood sexual abuse cases. In these four states, the statute of limitations begins to run at the point when the abuse has stopped, with none of the exceptions recognized in other states. See Conn. Gen. Stat. Ann. [sections] 54-193(b) (West Supp. 1994) (five-year statute of limitations); HAW. Rev. Stat. [sections] 701-108 (2)(b) (1994) (six-year statute of limitations); N.Y. Crim. Proc. Law [sections] 30.10 (McKinney 1992) (five-year statute of limitations); Tex. Crim. Proc. Code Ann. [sections] 12.01(2)(D) (West Supp. 1994) (ten-year statute of limitations). (2.) Twenty-one states have enacted legislation that tolls the statutes of limitations in such civil cases. See Alaska Stat. [sections] 9.10.140(b)(1)-(2) (Supp. 1992) (action must be brought within three years after discovery); Ark. Code Ann. [sections] 16-56-130 (Michie Supp. 1993) (three-year limitation period begins upon discovery of abuse); Cal. Civ. Proc. Code [sections] 340.1 (West Supp. 1992) (civil actions for childhood sexual abuse may be brought within three years after discovery); Colo. Rev. Stat. Ann. [sections] 13-80-103.7 (West Supp. 1992) (action must be brought within six years of discovery of abuse); CONN. GEN. Stat. Ann. [sections] 52-577d (West 1991) (action must be brought within 17 years of reaching age of majority); FLA. Stat. Ann. [sections] 95.11(7) (West Supp. 1993) (action must be brought within four years from time of discovery of abuse); Idaho Code [sections] 6-1704 (1989) (action must be brought within five years of reaching age 18); Iowa Code Ann. [sections] 614.8A (West Supp. 1993) (action must be brought within four years of discovery of abuse); Kan. Stat. Ann. [sections] 60-523 (Supp. 1992) (action must be brought within three years of discovery of abuse); ME. Rev. Stat. Ann. tit. 14, [sections] 752-C (West Supp. 1992) (action may be brought up to six years after discovery of abuse); Minn. Stat. Ann. [sections] 628.26 (West Supp. 1993) (complaint may be filed up to three years after the offense reported to law enforcement authorities); Mo. Rev. Stat. [sections] [sections] 537.046 (Supp. 1991) (action must be brought within three years of discovery of abuse); Mont. Code Ann. [sections] 27-2-216(1)(b) (1991) (action must be brought within three years of discovery of abuse); Nev. Rev. Stat. [sections] 11.215 (Supp. 1993) (action must be brought within 10 years of discovery of abuse); N.M. Stat. Ann. [sections] 37-1-30 (Michie Supp. 1993) (action must be brought within three years of discovery of abuse); OR. Rev. Stat. [sections] 12.117 (1991) (action may be brought up to three years after discovery of abuse but not after victim reaches age 40); R.I. Gen. Laws [sections] 9-1-51 (Supp. 1992) (action may be brought within seven years of discovery of abuse); S.D. Codified Laws Ann. [sections] 26-10-25 (1992) (action may be brought up to three years after date of discovery of abuse); V1. Stat. Ann. tit. 12, [sections] 522 (Supp. 1992) (action may be brought within six years of discovery of abuse); VA. Code Ann. [sections] 8.01-249(6) (Michie 1992) (cause of action accrues on date of discovery of abuse, but no action may be brought later than 10 years after reaching majority age); Wash. Rev. Code Ann. [sections] 4.16.340 (West 1992) (action must be filed within three years of date of discovery of abuse); N.H. Rev. Stat. Ann. [sections] 508.4 (Supp. 1992) (incorporates the delayed discovery doctrine in all civil cases). (3.) See generally Jessica E. Mindlin, Comment, Child Sexual Abuse and Criminal Statutes of Limitation: A Model For Reform, 65 Wash. L. Rev. 189 (1990) (arguing that in order to protect child sexual abuse victims, states should extend the limitations period for bringing prosecutions). (4.) See Gary M. Ernsdorff & Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84 J. CRIM. L. & CRIMINOLOGY 129, 130-32 (1993) (arguing that caution should be exercised in the prosecution of alleged abuses based on long-repressed memories). In addition, there has been an increase in the number of civil suits based upon repressed memories. Id. at 131. (5.) Elizabeth F. Loftus, The Reality of Repressed Memories, 48 AM. Psychol. 518, 518-19, 523 (1993). Loftus cites two empirical studies that indicate that most therapists have a strong faith in the accuracy of their clients, recovered memories. Id. at 523. In one study, a survey of clinicians who had come across cases of ritualistic abuse in their practices found that 93% believed that actual harm was done as alleged by their clients. Id. at 523-24. In another small-scale study, 81 % of surveyed clinicians who had at least one repressed memory case stated that they invariably believed their clients. Id. at 524. (6.) This is particularly true in light of another recent phenomena involving allegations of sexual abuse of children which has recently received considerable media attention. This involves false allegations of abuse leveled against one parent, usually the father, by the other in bitter custody battles surrounding separations and divorces. See, e.g., Leslie Brown, Abused By Mother or Used By Father? Sexual Allegations Place Boy in Midst of Traumatic Tug of War, News Trib., July 6, 1994, at Al (citing study findings from late 1980's that although sexual abuse allegations were made in only about two percent of contested custody cases, five to eight percent of the reports are intentionally false). (7.) Id. (noting that psychoanalysis itself is based on the existence of repressed memories). Further evidence of this is that even the Diagnostic and Statistical Manual of Mental Disorders does not mention repression because its existence is inferred rather than clinically observable. Jacqueline Kanovitz, Hypnotic Memories and Civil Sexual Abuse Trials, 45 Vand. L. Rev. 1185, 1204 (1992) (citing The American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, xxiii-xxiv (AM. Psych. Rev. 3rd ed., 1987)). (8.) Kanovitz, supra note 7, at 1203-04. (9.) Id. (10.) Id. (11.) Ernsdorff & Loftus, supra note 4, at 137. (12.) Id. at 134. (13.) Id. After 60 years of studying research on the concept of repression, one researcher cautioned: "Warning. The concept of repression has not been validated with experimental research and its use may be hazardous to the accurate interpretation of clinical behavior." D. Holmes, The Evidence for Repression: An Examination of Sixty Years of Research, in Repression and Dissociation: Implications for Personality, Theory, Psychopathology, and Health 85, 97 (J. Singer ed., 1990), cited in Loftus, supra note 5, at 519. (14.) Ernsdorff & Loftus, supra note 4, at 134. (15.) Id. (16.) Loftus, supra note 5, at 519. (17.) Predictably, studies indicate a higher rate of childhood sexual abuse when psychiatric patient populations are surveyed rather than the general population. Kanovitz, supra note 7, at 1197 n.25. Inpatient surveys report incidence of sexual abuse to be between 22% and 44%, while outpatient studies report an incidence rate of 14% to 46%. Id. One study of the general population, which many researchers believe is accurate, found that 27% of women and 16% of men disclosed a history of sexual abuse. Ernsdorff & Loftus, supra note 4, at 129. (18.) Loftus, supra note 5, at 521. (19.) Id. at 522. The degree of variation may be accounted for in part by the participants in the study. The 59% figure is reported in a study by John Briere and J. Conte, which involved only patients currently undergoing therapy. Id. at 521. The 18% figure was obtained in a study of female outpatients involved in a substance abuse program and has been criticized because some of the participants may have been sexually abused but still repressing the memory (although this criticism may be raised with any study attempting to measure the incidence of childhood sexual abuse among adults). Id. at 522. More exploration of this issue is needed, but answers will be difficult to ascertain since "we are in the odd position of asking people about a memory for forgetting a memory." Id. (20.) Psychologist John Briere reports that there are four categories of psychological symptoms that commonly occur in victims of childhood sexual abuse: (1) post-traumatic stress symptoms which include intrusive memories, recurrent nightmares, sleep disturbances, feelings of guilt and isolation, and anxiety over dangers; (2) cognitive changes which involve perceptions of oneself as ugly, dirty, or evil and feelings of guilt, self-blame, helplessness, hopelessness, distrust of others, and fear of intimacy; (3) emotional changes including anxiety, depression, tension, feelings of impending doom or suicidal thoughts, and loss of interest in pleasure; and (4) interpersonal impairments including disturbances of relationships, self-destructiveness, chemical dependency, and social isolation. John Briere, Therapy for Adults Molested ad Children: Beyond Survival 5 (1989). Most people who enter therapy, however, will display one or more of these extremely varied symptoms, and as such, any reliance by therapists on Briere's symptomology study may be misplaced. (21) Loftus, supra note 5, at 524. Loftus cites several studies of psychotherapists in which 81% to 93% of therapists with experience treating patients with repressed sexual abuse memories believe their clients, claims Id. (22.) Ernsdorff & Loftus? supra note 4, at 155. (23.) Id. (24.) Id. (25.) Loftus, supra note 5, at 525. Another important external source may be stories of other victims heard through personal contact, literature, movies, or television. (26.) Ernsdorff & Loftus, supra note 4, at 155. The first stage of memory is perception, where a person experiences an event which then is committed to memory Id. at 156 The second stage is retention, when the memory of the event is often exposed to new information which may cause the memory to be altered Id. The final stage of memory is retrieval, when the memory is brought into the conscious mind. Id. at 158 (27.) Id. at 155-58. (28.) Id. at 157. (29.) Id. at 158 (30.) Id. at 137-38. (31.) Kanovitz, supra note 7, at 1244. (32.) Donald Spence, Narrative Truth and Historical Truth: Meaning and Interpretation in Phychoanalysis 119 (1982), cited in Marrianne Wesson, Historical Truth, Narrative Truth, and Expert Testimony, 60 Wash L Rev. 331, 338 (1985). (33.) Spence argues that therapists should admit that they are unable to reconstruct historical truths of a patient's past and accept that their interpretations are merely constructions of "narrative truths" which give a patient useful insight into, rather than a perfect fit with, her past. SPENCE, supra note 32, at 263-78. (34.) Id. For example, if a patient sees a therapist who specializes in childhood sexual abuse, she may form preconceived ideas about what will be uncovered during therapy. Id. (35.) Id. at 158-59 One of the key tenets of psychodynamic therapy is that the mind deals with stressful childhood events by forcing a person's most painful and important memories into the unconscious and that a person's problems will not be overcome until the repressed memories are confronted and dealt with. Kanovitz, supra note 7, at 1243-44. Therefore, if a therapist believes that a client may be repressing memories of childhood sexual abuse, she may affect the creation of false memories in therapy through the processes of transference, interpretation, and/or suggestion. (36.) Under the theory of transference, developed by Freud, a patient displaces childhood attitudes, feelings, and fantasies, originally associated with important people from the patient's past, onto the therapist, and through this transfer she reexperiences the past in the treatment context. Kanovitz, supra note 7, at 1244-45. One researcher has suggested that the nature of transference influences the patient to "retrieve" certain facts that are not part of the patient's historical past or to embellish vague memories simply to please the therapist or to be perceived as an exceptional patient. SPENCE, supra note 32, at 95. (37.) Kanovitz, supra note 7, at 1246-47. Because a patient's verbalizations are usually incomplete, therapists unconsciously fill in the gaps with their own meanings and assumptions. Id. at 1248 n.272. Furthermore, a patient's explanations, dreams, and memories are open to any number of interpretations, and an interpretive choice by a therapist may largely reflect her own experiences and biases as much as the patient's. Spence asserts that plausible interpretations of a patient's childhood recreated by the therapist are likely to be accepted by the patient as true and incorporated into her memory as part of her historical past. Spence, supra note 32, at 166-67. Patients who have little or no recollection of their childhood to counteract the truth of the therapist's account are likely to accept it. Since the new memory feels like any other, it becomes the truth to the patient and makes the transition into the patient's conceptualization of her past. Kanovitz, supra note 7, at 1249 n.280. (38.) Loftus, supra note 5, at 526. (39.) Id. (40.) Id. Loftus relates the comment of one therapist who asks patients "Your symptoms sound like you've been abused as a child. What can you tell me about that?" Id. Her concern particularly lies with anecdotal evidence that some therapists cannot take "no" for an answer when faced with an initial denial of childhood abuse by a patient. Id. at 526-27. (41.) Id. at 527. (42.) Id. Therapists often send patients to such groups whether their memories of abuse are retrieved or remain buried. The stated goal of one group, Survivors of Incest Anonymous, is to help remember the incest in order to stop being controlled by it. Id. Some writers on this subject utilize a theory known as proto-extension and its concern that the groups may encourage a person to remember details of others, stories as having happened to them. Id. (43.) Ernsdorff & Loftus, supra note 4, at 160. One book in particular, The Courage To Heal (Ellen Bass & Laura Davis, The Courage to Heal: A Guide for Women Survivors of Child Sexual Abuse (1988)), has been termed the "bible" of the recently-emerged incest book industry, and patient and therapist accounts suggest that it has played an important role in many cases of newly-discovered memories of childhood sexual abuse. Loftus, supra note 5, at 525. Readers are told: "If you are unable to remember any specific instances [of sexual abuse] but still have a feeling that something abusive happened to you, it probably did.... If you think you were abused and your life shows the symptoms, then you were." Bass & Davis, supra, at 21-22, cited in Loftus, supra note 5, at 525. Clearly, readers who have no memories of abuse receive the message that a substantial likelihood exists that abuse has in fact occurred. Loftus, supra note 5, at 525. This and similar books, particularly if suggested by a patient's therapist, along with the individual stories told in newspapers, magazines, and on talk shows, may greatly influence the creation of memories or at least direct the form of a search through an (44.) Mindlin, supra note 3, at 197. (45.) Id. at 197-98. (46.) See supra note 1. (47.) See Del. Code Ann. tit. 11, 205 (b)(1) & (e) (West 1987 & Supp. 1992) (five-year statute of limitations but if victim is under 18, statute of limitations extended until two years after reporting to law enforcement authorities); Kan. Stat. Ann. 21-3106(2) (Supp. 1993) (extending the statute of limitations from two to five years for victims under age 16); Miss. Code Ann. 99-1-5 (Supp. 1993) (extending statute of limitations until on or before the victim's twenty-first birthday if victim under age 21); Neb. Rev. Stat. 29-110(2) (Supp. 1992) (extending statute of limitations until seven years from date of crime or after victim's 16th birthday if victim under age 16). (48.) See Cal. Penal Code 803(g) (West 1994) (if victim under age 18 when crime involving substantial sexual conduct occurs, statute of limitations tolled to one year after date of report if independent corroborating evidence admissible at trial exists); GA. Code Ann. 17-3-2.1(a) (Michie Supp. 1993) (statute of limitations tolled until victim reaches age 16). (49.) See Alaska Stat. 12.10.020(c) (Supp. 1994) (action for offense committed against person under age 18 may commence at any time); Ariz. Rev. Stat. Ann. 13-107(B) (1989) (tolling statute of limitations until actual discovery of crime by law enforcement officials or until time when, through reasonable diligence, such officials should have discovered crime); Me. Rev. Stat. Ann. tit. 17-A, 8 (West Supp. 1994) (no statute of limitations for filing criminal charges if victim under age 16); N.D. Cent. Code 29-04-03.1 (Supp. 1993) (seven-year statute of limitations if victim under age 18, or limitations period extended to three years after reporting offense, whichever is longer); Ohio Rev. Code Ann. 2901.13(F) (Baldwin 1992) (requiring that corpus delicti of crime be discovered before statute of limitations tolled); Okla. Stat. Ann. tit. 22, 152(A) (West 1992) (five-year statute of limitations does not begin to run until crime is discovered); Utah Code Ann. 76-1-303(3) (Supp. 1994) (four-year statute of limitations does not begin to run until crime reported for sexual abuse of minor). (50.) See supra note 1. (51.) These states are: South Carolina and Wyoming (no statute of limitations for crimes); Alabama, Kansas, Maryland, North Carolina, Rhode Island, Virginia, West Virginia (no statute of limitations for felonies); Alaska, Arizona. Maine, North Dakota, Ohio, Oklahoma, Utah (broad extensions or tolling provisions). (52.) Ernsdorff & Loftus, supra note 4. at 154. (53.) See id. at 167-73. The procedural reforms suggested include requiring the use of fictitious names by both parties, mandating limitations on prior act evidence, drafting of a new jury instruction, and admitting expert testimony on the reliability of memory at the defendant's request. (54.) Most states follow the basic form and substance of Rule 702 of the Federal Rules of Evidence, which reads as follows:
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. Fed. R. Evid. 702. (55.) Ernsdorff & Loftus, supra note 4, at 171-72. (56.) In Washington, the testimony is admissible if: (1) an eyewitness identification is the principal issue at trial; (2) the defendant presents an alibi defense; and (3) there is little or no other evidence linking the defendant to the crime. State v. Moon, 726 P.2d 1263, 1266 (Wash. 1986), cited in Ernsdorff & Loftus, supra note 4, at 172. In South Carolina, the testimony is admissible if the main issue at trial is the identity of the perpetrator, if the sole evidence of identity is eyewitness identification, and if the identification is not subject to corroboration that provides independent evidence of reliability, or if the eyewitness suffers from mental or physical disability which would impair perception or reliability. State v. Whaley, 406 S.E.2d 369, 371-72 n.2 (S.C. 1991). (57.) See Frederick Woocher, Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan. L. Rev. 969, 1007 (1977) (analyzing expert testimony issues concerning eyewitness identification and arguing that expert testimony on the reliability of eyewitness identification should be admissible at trial). (58.) Id. at 1025. Woocher argues that cross-examination cannot effectively reveal that an eyewitness is honest but mistaken, as she is affected by various psychological factors. Id. This same criticism is applicable to testimony based upon repressed memories. (59.) Id. (60.) Id. at 1029. (61.) Ernsdorff & Loftus, supra note 4, at 172. (62.) Id. at 174. (63.) Id. at 172. (64.) Id. at 173. (65.) Some critics of psychological expert testimony argue that psychologists should not be allowed to express opinions concerning the facts of the case, and instead should be restricted to testifying on scientific data and research only. See, e.g.., Donald N. Bersoff, Psychologists and the Judicial System: Broader Perspectives, 10 Law & Hum. Behav. 151, 160 (1986). Most courts, however, allow experts to express opinions on the ultimate issue in a case on the ground that, when an expert applies her extensive knowledge on the issue of memory reliability to the facts of a particular case, she is expressing the educated opinion of an expert and not the speculation of a layperson. Furthermore, a jury instruction regarding the weight that should be accorded expert testimony would help to guard against the possibility of the jury placing undue emphasis on the expert's opinion. (66.) See, e.g., Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (1991) (describing judicial acceptance of unreliable expert testimony); Ronald J. Allen & Joseph S. Miller, The Common Law Theory of Experts: Deference or Education?, 87 Nw. U.L. Rev. 1131 (1993) (pointing out the tension between experts as factfinders and experts as educators); Terry O'Reilly, Ethics and Experts, 59 J. Air L. & Com. 113 (1993) (criticizing the "auctioning off" of expert witnesses). (67.) Fed. R. Evid. 702, 703. (68.) See, e.g.., O'Reilly, supra note 66, at 115. (69.) See Paul C. Giannelli, "Junk Science". The Criminal Cases, 84 J. Crim. L. & Criminology 105 (1993) (arguing that the reform of rules regarding expert testimony in civil cases should be extended to criminal cases). (70.) O'Reilly, supra note 66, at 128. (71.) McCormick on Evidence 27 (4th ed. 1992) [hereinafter McCormick]. (72.) Eleven of the sixteen states in which prosecutions for child sexual abuse based on repressed memories may be brought use a form of Rule 702. These states are Wyoming, North Carolina, Rhode Island, Ohio, West Virginia, Alaska, Arizona, Maine, North Dakota, Oklahoma, and Utah. See supra note 54 for text of Rule 702. (73.) See generally McCormick, supra note 71, at 25. (74.) Id. (75.) 293 F. 1013 (D.C. Cir. 1923). (76.) Id. at 1014. (77.) 113 S. Ct. 2786 (1993). (78.) Id at 2793-94. Daubert will act as precedent over federal courts only. Many state courts continue to operate under the Frye or similar analysis, and it remains to be seen whether states will adopt the newer test for admissibility of scientific evidence. West Virginia, one of the states in which prosecutions for child sexual abuse based on repressed memories may be initiated due to the fact that the state has no statute of limitations on felonies, has adopted the Daubert standard. See Mayhorn v. Logan Med. Found., No. 21933, 1994 W. Va. Lexis 215, at *11-12 (Dec. 9, 1994). (79.) Id. at 2797. The test under Daubert is a flexible one, with the main inquiry of the court focused upon the scientific validity of the underlying principles of proposed novel scientific evidence. Id. The factors to which a court should look include the methodology of the testing, peer review of and publications concerning the theory or technique, the potential rate of error, and the general acceptance in the
field. Id. at 2796-97.
One commentator described the decision as "invit[ing] judges to be aggressive in screening out ill-founded or speculathe scientific theories." Linda Greenhouse, Justices Put Judges in Charge of Deciding Peliability of Scientific Testimony, N.Y. Times, June 29, 1993, at A10, cited in Giannelli, supra note 69, at 107 n.14. Another commentator speculated that "Daubert suggests that in the end, discretion is the better part of valor and restrictions on novel testimony will be few." O'Reilly, supra note 66, at 124. It remains to be seen which approach will be taken by lower federal courts. (80.) For example, in South Carolina, one state in which charges based on repressed memories currently may be brought, the Supreme Court held that expert testimony on eyewitness identifications is not subject to a Frye-type analysis since the subject is a legitimate area of psychology with extensive research which dates back 95 years. State v. Whaley, 406 S.E.2d 369, 371-72 n.2 (S.C. 1991). Because much of the same scientific research and analysis would be involved in expert testimony on repressed memory, such testimony likely would not be subject to a Frye inquiry in South Carolina.
In addition, the courts of two other states in which prosecutions based on repressed memories may be initiated, Maine and Ohio, have expressly rejected the Frye test. See State v. Williams, 388 A.2d 500, 503-04 (Me.1978) (rejecting Frye test): State v. Williams, 446 N.E.2d 444,448 (Ohio 1983) (same). (81.) Woocher, supra note 57, at 1022. Some commentators argue that psychiatric clinicians do not qualify to testify under either the standard test of admissibility or the Frye test because they do not "achieve reasonable certainty and aid the trier of fact." David Faust & Jay Ziskin, The Expert Witness in Psychology and Psychiatry, 241 Science 31, 34 (1988). The testimony of experts on memory proposed by this Note, however, involves the employment of experimental psychologists as experts rather than clinicians. Therefore, this criticism is not applicable here. (82.) Woocher, supra note 57, at 1023. A psychologist testifying on memory reliability will point to established and accepted scientific research which has been conducted over at least 80 years. Id. (83.) Id. at 1022. It will not be difficult for experts in the fields of psychology or psychotherapy to meet the second prong of the admissibility standard, namely the expert qualification requirement. Id. at 1016-17. Expertise under Rule 702 is satisfied by widely varying qualifications, and a degree or formal training is not necessarily required. Fed. R. Evid. 702 advisory committee's note. (84.) Woocher, supra note 57, at 1016. (85.) Id. (86.) Fed. R. Evid. 702 advisory committee's note (citing Mason Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 418 (1952)). In four of the five states in which prosecutions based on repressed memories may be initiated where a form of Rule 702 has not been adopted by the legislature, the courts have placed particular emphasis on this requirement. See, e.g., In re Estate of Tidwell, 626 So. 2d 1297, 1300 (Ala. 1993) (holding that the purpose of expert testimony is to assist the factfinder where the subject matter is beyond the ken of the average juror); State v. Steadman, 855 P.2d 919, 924 (Kan. 1993) (deciding that the basis for the admission of expert testimony is necessity, arising from the particular circumstances of the case, because the subject is outside the normal experience and qualifications of lay jurors); Oken v. State, 612 A.2d 258, 273 (Md. 1992) (standard for admission of expert testimony is whether jury will receive appreciable aid to resolve the issues presented in the case), cert. denied, 113 S. Ct.1312 (1993); Swiney v. Overby, 377 S.E.2d 372, 374 (Va. 1989) (finding that expert testimony appropriate to assist factfinder in areas where people of normal intelligence and experience cannot make a competent decision). (87.) See, e.g.., supra note 80 (discussing South Carolina's admission of expert testimony on eyewitness identification); see generally Woocher, supra note 57, at 1017 (discussing common knowledge of laypersons in context of reliability of eyewitness identification). (88.) Woocher, supra note 57, at 1018. (89.) Fed. R. Evid. 704(a), which reads in pertinent part: "[T]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided l y the trier of fact." A second concern is that the expert testimony may relate too much to the credibility of the witness, another area that is reserved to the jury. Woocher, supra note 57, at 1018 (90.) Gary L. Wells, Expert Psychological Testimony: Empirical and Conceptual Analyses of Effects, 10 Law & Hum. Behav. 83, 86 (1986). (91.) See supra note 56 (describing the Washington and South Carolina…