Brandeis Brief Regarding the Admissibility of Expert Testimony on the Subject of False (Pseudo) Memories, Specifically Referring to Stewart v. Jones

Loran Joseph

Lindsey Kent

Christina Meissl

February 24, 2005

Psych 420

Robert Mauro

University of Oregon


Introduction

The trial court erred in its’ decision not to admit expert testimony regarding false memories. Three reasons were given for the courts decision that this testimony would violate the Federal Rules of Evidence; that the testimony would be prejudicial, that the idea of false memories is commonsense, and that the science upon which the testimony is based is not sufficiently developed. In each of these reasons the court erred, as will be shown in the following text.

Expert Testimony on False Memories is not Prejudicial

In order for testimony to be prejudicial it must lead to premature judgment or unwarranted opinion. However, in this case a premature judgment is more likely to be achieved from Mr. Jones’ expert testimony being disallowed. Rule 402 of the Federal Rules of Evidence states that:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules [509 U.S. 579, 7] prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Relevant evidence is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” (Rule 401). In this case, the testimony would definitely have a tendency to make the fact of Ms. Amelia Stewart’s memory of the abuse less probable. Thusly, expert testimony on false memories ( or pseudomemories) obviously does fall into this definition of relevance and should therefore be admitted.

Rule 702 states that:

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, [509 U.S. 579, 8] or education, may testify thereto in the form of an opinion or otherwise.

This rule also supports the admission of expert testimony on false memories into the trial of Mr. Jones.

However, Daubert v. Merrill Dow Pharmaceuticals (1993) established that “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The reliability of the expert testimony on false memories should have been determined at the evidentiary proceeding, at which time the testimony would have been admitted, due to the amount of peer-reviewed and published studies upon which the testimony is based (see References section).

Daubert v. Dow also brought up the issue of juries becoming confused by pseudoscientific testimony, stemming from the court’s abandonment of “general acceptance” established in Frye v. United States (1923). The general acceptance clause predated the Federal Rules of Evidence and set up a guideline for the admission of expert testimony and opinion, stating that, “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs” (Frye, 1923). However, the court also addressed the issue of befuddled juries by stating, “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence” (Daubert, 1993). This statement implies that judges should dismiss expert testimony that is both relevant and reliable on the basis of it not being generally accepted. Therefore, in the case of Mr. Aron Jones, the expert testimony concerning false memories should be heard and the jury be allowed to decide the merits.

While the Daubert decision rejects the “general acceptance” clause in favor of the more liberal leanings of the Federal Rules of Evidence (by stating that “the Frye test was displaced by the Rules of Evidence”), it will also be shown in later sections of this brief that research on false memories has been “generally accepted” by the psychological and psychiatric communities.

Having shown that the expert testimony on false memories is admissible under the Federal Rules of Evidence, if will be shown that it was prejudicial not to admit the testimony.

Research on repressed memories quickly led to research in the opposite direction, on false, created, and impressed memories. This research has led to the current stalemate of thought on the subject, as best evidenced by a statement from the American Psychological Association’s website, which states that:

Most leaders in the field agree that although it is a rare occurrence, a memory of early childhood abuse that has been forgotten can be remembered later. However, these leaders also agree that it is possible to construct convincing pseudomemories for events that never occurred.

This statement implies that research on each topic (repressed memories and false memories) is equally developed and reliable. Therefore, when applied to the Stewart v. Jones trial, it becomes clear that the court cannot disallow testimony on one topic and allow testimony on the other. That is obviously prejudicial toward the allowed opinion, and is exactly what has occurred in this case.

The New Hampshire Supreme Court decided, in 1997, that recovered repressed memories were inadmissible, due to the unreliability and general unacceptance in the psychological field. The Court said that, “[T]estimony that is dependent upon recovery of repressed memory through therapy cannot be logically dissociated from the underlying scientific concept or technique of recovery.” This decision also helps to show that the science of repressed memory and of psuedo memory are equally developed and must go hand in hand, especially in legal proceedings.

There have been several cases in the past where testimony on false memories was not introduced, and the defendant’s rights were abused.

George Franklin, whose case was heavily publicized, spent almost 7 years in prison for the murder of his daughter's childhood friend before his conviction was overturned in l995. Franklin's daughter, Eileen Franklin Lipsker, had testified against him at trial, drawing on supposedly recovered repressed memories of the day of the killing 20 years earlier. Many of the details she claimed to have witnessed had been published in the media years earlier, but Franklin's lawyers had not been permitted to introduce that fact into evidence at the trial. The exclusion of this evidence and the lack of any physical evidence implicating Franklin in the murder were among the grounds for reversal of Franklin's conviction. A year after Franklin's conviction was overturned, as prosecutors planned to retry him, it was disclosed that Eileen had been hypnotized by a therapist before the first trial. Posthypnotic testimony is barred in California because it is seen as unreliable. In July 1996, the prosecutors announced that they would not retry Franklin (Lipton, 1999).

There have been several malpractice cases brought against therapists by families of falsely accused defendents. “Of the few third-party lawsuits that have gone to trial, nearly three-quarters ended in a jury verdict in favor of the injured third party” (Lipton, 1999). There have also been many malpractice cases brought against therapists by their patients. “The overwhelming majority of these malpractice lawsuits were resolved by being settled out of court, many on the eve of a scheduled trial. A few settled during trial after the plaintiff presented her case” (Lipton, 1999).

All of these cases help to show that recovery of repressed memories is a very unreliable technique which may lead to false accusations, wrongful persecution, slander, libel, and etc. These memories need to be tempered with the introduction of testimony on psuedomemories. Juries and Judges need to see both sides of the issue in order to make a unprejudiced, informed, and well-thought decision.

The Idea of False Memories is not Commonsense

Everyone knows that memories exist, but does everyone know that a memory can be false? Think back on a memory. Can you see yourself in that memory? Now, if you can see yourself in that memory, how can that be as the situation really happened? In real time, you do not see yourself doing those actions; you do not see the world from outside your body as the remembrance of the memory shows. So because of this, we know that memories are reconstructed in our mind. Thus, memories can be reconstructed in ways that did not actually occur, creating false memories. “Vivid experiences of events that never occurred-could result from inaccuracies either in retrieving memories or in initially storing them” (Urbach et al). The general population does not know how the mind works in recreating memories, so how could the idea that memories can be false be commonsense? Most people feel that their memories are accurate but how can we be sure when memories are reconstructions, especially when people have differing opinions on how an event happened? It may be commonsense that people share different memories about situations, but this does not have to be due to false memories but differing perspectives. No one wants to admit that his or her memories may be wrong. The idea that memories can be false is commonsense knowledge stems from people not wanting to admit to being wrong, so there is an assumption that other’s memories can be false. But unless the entire general population understands exactly how the brain works when making and retrieving memories, it cannot possibly be commonsense that memories can be false. In some cases when a situation is talked about enough, new or different memories can be formed, creating implanted memories.

When a person tries to remember an event, memories can be implanted instead. Consider the case of Paul Ingram, who was arrested for child abuse in 1988. He had no memory of such events but over time he was described the events. As time passed, he began to recall some of the details of the events, soon after he admitted to the crimes. Ingram pleaded guilty to these accusations; however he now believes he did not commit the rapes. Sociologist Richard Ofshe was hired by the prosecution to show that Ingram was impressionable. Ofshe showed that over the course of time Ingram could believe that a situation actually happened, when in fact Ofshe made it up. This shows that Ingram was a “vulnerable man with a strong need to please authorities and a highly suggestible nature that made him fall easily into a trance” (Wrightsman, Greene, et al., 201).

The ways in which people are interrogated about a crime has a large impact on how they remember a crime. People can be convinced they committed a crime and even create memories for the crimes they are innocent of. This is bad for people convicted of a crime; they may be innocent but with the right type of questioning, an innocent person may end up believing he/she is guilty. For example, if police do not have convincing evidence that the person in question did the crime, by interrogating the person in a coercive fashion that person can become the suspect they were looking for. This person may fit the description of the suspect, but insist he is innocent, and can in time become guilty from his mind creating that memory. On the other hand, abusers are prime to have false memories; they have a motivation to forget the acts which they have inflicted on others. As well as this, abusers implant false memories into the minds of their victims or persuade them the abuse never happened. “They have considerable opportunity to influence or brainwash a child whom they may be with 24 hours a day by withholding or dispensing primary reinforcers, such as food or security” (Lein, pg.1).

Few studies have been done to determine whether memories are stored differently depending on the event. For example, is a traumatic event memory stored differently in the brain than memory that is from a non-traumatic event? Theory suggests that a traumatic event in childhood may lead to problems in storing and retrieving memories. “Normal memory is more malleable and subject to constructivist distortion influences. Traumatic memories are more emotional and are indelible and normally maintained by subcortical circuits involving the amygdala, which is not part of the medal temporal lobe system involved with declarative or explicit memory, the system typically studied by false memory researchers” (Lein, pg.2). The idea of dissociation can also be the explanation of why memories can be forgotten and later remembered. “Dissociation means that a memory is not actually lost, but is for some time unavailable for retrieval. That is, it’s in memory storage, but cannot for some period of time actually be recalled” (APA Online, pg.1). It is believed that this phenomenon can occur with victims of child sexual abuse; this mechanism is used as a way to protect the self from the painful memories. However, many believe that there is not enough empirical support for this theory.

The media has taken this idea and portrayed it to the extreme. They are showing and suggesting that the total memory of child abuse was completely unavailable, however this is the least possible of repressed memories. Most people do not actually forget the entire event; they seem to remember some form of the event if not all of it. It is very unlikely for a person to forget a traumatic memory such as child abuse, however the media likes to make us think that it is very possible for this phenomenon to occur. “Neuroscience research has found ample evidence that memories for traumatic events, far from being buried are more likely to be persistent and intrusive” (Cassel, pg.3). But how does the media account for all those people who see psychologists and never uncover child abuse memories? As well as the media portraying the extreme of repressed memories, Elizabeth Loftus has found that false memories can be formed by “media accounts, suggestions from others, ‘priming’ of expectations based upon past experiences or from accounts relayed be other people, and interviewing and investigating techniques” (Cassel, pg.3).