The admissibility of testimony based on recovered memories is an area of great debate. Whether retrieved through hypnosis or other means, the use of memories that were once unavailable to the witness as a basis for criminal prosecution is a sharply contested practice. Experts in the fields of law, psychology, and medicine, as well as several scientific disciplines, have offered opinions relevant to the discussion. The idea of repressed memory is as old as psychology itself. Sigmund Freud was the first to put forth the concept of defense mechanisms—mental processes by which individuals protect themselves from psychological harm. One of Freud’s more well-known defense mechanisms is repression. The concept essentially, is that some memories are too painful to be tolerated. In order to shield itself from psychological distress, the mind prevents those memories from reaching the level of consciousness. The memories, however, continue to reside in the unconscious. Repressed memories can later be recovered as a result of some triggering event. Triggers can occur spontaneously or be intentionally introduced by a therapist. While some memories recovered during therapy are the result of hypnosis, a therapist may employ other, nonhypnotic techniques as well.
For several decades, the concept of repression was widely accepted and therefore uncontroversial. The late 20th century, however, saw a growth in the number of criminal cases in which adult complainants reported they had recently recovered memories of being sexually abused as children. As a result, defense teams called into question the validity of recovered memories. So began the controversy that currently surrounds the ideas of repression and recovered memories. At opposite ends of the controversy are the extreme views: (1) that recovered memories are nearly always true and more accurate than continuous memories, or (2) that recovered memories are nearly always false memories, resulting from suggestive techniques employed by biased therapists. The vast majority of the scientific community takes either a moderately supportive or moderately critical view of recovered memories with both sides acknowledging the existence of genuine recovered memories as well as the reality that false memories can and do occur.
The lack of agreement among experts and the fact that no objective measure exists to either prove or disprove the existence of repressed memories leave courts with a difficult decision. How should the admissibility of testimony be handled when the account is based on recovered memories? A wide range of possible procedures exist for dealing with recovered memory testimony. Virtually all possibilities can be grouped onto one of four broad categories.
At one extreme, courts may simply choose to exclude all testimony based on memories recovered through hypnosis or any other therapeutic technique. The logic for this approach is that recovered memories cannot be separated from the process by which they were recalled. This view makes recovered memory testimony subject to the same standards applied to expert evidence. Since there are no procedures for recovering memories that can be considered either generally accepted or scientifically proven, any such testimony would fail both the Daubert and Frye standards.
Conversely, courts may choose to admit all recovered memory testimony. Doing so essentially assumes that the validity of the recovered memories is simply a question of credibility to be determined by a jury. Defense attorneys might then use cross-examination and expert witnesses to attempt to discredit the recovered memory testimony.
A more moderate approach to the issue is one in which decisions regarding admissibility are made on a case-by-case basis. Either before or at the outset of a trial, courts may review the available evidence to determine the reliability of the witness testimony. Factors considered may include, but are not limited to, how the memories were recovered, the acceptability of the method of recovery, the witness’s age at the time of the alleged incident(s) and the amount of time passed prior to recovery, as well as the presence or lack of corroborating evidence. This approach offers courts the flexibility to consider each case on its own merits. However, if new evidence comes to light during trial that influences the reliability of the testimony, considerable complications may arise.
An approach favored by many experts includes admitting recovered memory testimony into evidence while viewing it with an increased degree of skepticism when compared to other eyewitness accounts. Using this approach, a judge can offer special instructions to the jury to carefully evaluate the testimony and may elaborate on the reasons underlying the need for caution. If the judge finds the testimony especially weak, a directed acquittal can be entered and the jury excused.
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