[CTRL] Debunking False Memory Myths
-Caveat Lector- .. From the New Paradigms Project [Not Necessarily Endorsed] Note: We store 100's of related "New Paradigms Posts" at: http://www.msen.com/~lloyd/oldprojects/recentmail.html From: "Alex Constantine" [EMAIL PROTECTED] To: "Lloyd" [EMAIL PROTECTED] Cc: "Lynn" [EMAIL PROTECTED] Subject: Debunking "False Memory" Myths Date: Monday, September 11, 2000 9:00 PM From: Trial Journal of the Association of Trial Lawyers of America November 1997 Debunking "false memory" myths in sexual abuse cases by Wendy J. Murphy An aggressive litigation strategy can head off defense claims that memories of trauma are all in the victim's head. For many years, adult survivors of child sexual abuse have been filing civil claims for damages. In some cases, plaintiffs file their claims decades after the abuse ends because the nature of the trauma renders them incapable of filing earlier. These cases can be broken down into two categories. In "recovered memory" cases, victims had no memories of the abuse until years later. In "appreciation" cases, victims remembered being abused but did not appreciate the causal relationship between the childhood abuse and the psychological and emotional injuries they suffer as adults. This article addresses an issue that is likely to come up only in the former category of cases. Recovered memory cases are facing new and substantial pre-trial hurdles, sometimes leading to dismissal orders and summary judgment decisions that deny victims their day in court. At the heart of the problem is the largely contrived controversy around "false memory syndrome" and the alleged unreliability of "repressed" memories. While public debate about so-called false memories has been raging for years, increasing numbers of trial and appellate court decisions involving this issue are just now being issued. These decisions reflect significant lack of uniformity among the courts, not only in the results but also in the reasoning and even in the context within which the memory issues are analyzed. The typical defense strategy in these cases is to file pre-trial motions challenging the reliability, and hence admissibility, of expert testimony regarding recovered memories. In some cases, these motions are filed as early as the preliminary injunction stage. Reliability issues are also raised in motions to dismiss and for summary judgment. Usually, the defense also seeks to offer its own "expert" testimony to counter the plaintiff's scientific evidence that the mind can avoid or repress traumatic information and then recall it years later. The plaintiff's best approach is to anticipate this defense strategy and take the first step by filing a motion to exclude the defendant's evidence. Plaintiffs should file this motion early to persuade the court that the defendant's assets should be attached because the claim has merit. While there is not yet a reported court ruling on this type of motion, this strategy will likely work as a preemptive strike against inevitable attacks on the plaintiff's experts. It will also provide judges with accurate information about the scientific reliability of traumatic memory evidence. Defense use of Daubert To support their efforts to exclude recovered memory evidence, defendants generally rely on the U.S. Supreme Court decision in Daubert V. Merrell Dow Pharmaceutical, inc.[1] Under Daubert, the proponent of an expert opinion based on scientific knowledge must establish the opinion's reliability and relevance before it may be admitted. Whether the proponent has satisfied these requirements "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."[2] The relevance prong is fairly straight-forward. As the Court noted, "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, nonhelpful."[3] Defining "helpfulness" in Daubert, the Court said there must be a "valid scientific connection to the pertinent inquiry as a precondition to admissibility."[4] The reliability prong is more problematic. Most courts properly read Daubert to determine reliability by examining the integrity of the methodology behind the opinion. However, Daubert's application has been awkward in recovered memory cases because the decision discussed scientific reliability in a toxic tort case involving objectively testable "hard" science. Daubert's indicators of reliability have limited value when the testimony at issue is rooted in behavioral or "soft" sciences. It would be reasonable for a court to rule that classic scientific principles cannot resolve the reliability question in recovered memory cases. But, if an attempt is made to determine reliability, traumatic memory research should be judged by standards different than those applied in Daubert. For example, a
[CTRL] Debunking False Memory Myths
-Caveat Lector- .. From the New Paradigms Project [Not Necessarily Endorsed] Note: We store 100's of related "conspiracy posts" at: http://www.msen.com/~lloyd/oldprojects/recentmail.html From: "Alex Constantine" [EMAIL PROTECTED] To: "Lloyd" [EMAIL PROTECTED] Cc: "Lynn" [EMAIL PROTECTED] Subject: Debunking "False Memory" Myths Date: Monday, September 11, 2000 9:00 PM From: Trial Journal of the Association of Trial Lawyers of America November 1997 Debunking "false memory" myths in sexual abuse cases by Wendy J. Murphy An aggressive litigation strategy can head off defense claims that memories of trauma are all in the victim's head. For many years, adult survivors of child sexual abuse have been filing civil claims for damages. In some cases, plaintiffs file their claims decades after the abuse ends because the nature of the trauma renders them incapable of filing earlier. These cases can be broken down into two categories. In "recovered memory" cases, victims had no memories of the abuse until years later. In "appreciation" cases, victims remembered being abused but did not appreciate the causal relationship between the childhood abuse and the psychological and emotional injuries they suffer as adults. This article addresses an issue that is likely to come up only in the former category of cases. Recovered memory cases are facing new and substantial pre-trial hurdles, sometimes leading to dismissal orders and summary judgment decisions that deny victims their day in court. At the heart of the problem is the largely contrived controversy around "false memory syndrome" and the alleged unreliability of "repressed" memories. While public debate about so-called false memories has been raging for years, increasing numbers of trial and appellate court decisions involving this issue are just now being issued. These decisions reflect significant lack of uniformity among the courts, not only in the results but also in the reasoning and even in the context within which the memory issues are analyzed. The typical defense strategy in these cases is to file pre-trial motions challenging the reliability, and hence admissibility, of expert testimony regarding recovered memories. In some cases, these motions are filed as early as the preliminary injunction stage. Reliability issues are also raised in motions to dismiss and for summary judgment. Usually, the defense also seeks to offer its own "expert" testimony to counter the plaintiff's scientific evidence that the mind can avoid or repress traumatic information and then recall it years later. The plaintiff's best approach is to anticipate this defense strategy and take the first step by filing a motion to exclude the defendant's evidence. Plaintiffs should file this motion early to persuade the court that the defendant's assets should be attached because the claim has merit. While there is not yet a reported court ruling on this type of motion, this strategy will likely work as a preemptive strike against inevitable attacks on the plaintiff's experts. It will also provide judges with accurate information about the scientific reliability of traumatic memory evidence. Defense use of Daubert To support their efforts to exclude recovered memory evidence, defendants generally rely on the U.S. Supreme Court decision in Daubert V. Merrell Dow Pharmaceutical, inc.[1] Under Daubert, the proponent of an expert opinion based on scientific knowledge must establish the opinion's reliability and relevance before it may be admitted. Whether the proponent has satisfied these requirements "entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue."[2] The relevance prong is fairly straight-forward. As the Court noted, "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, nonhelpful."[3] Defining "helpfulness" in Daubert, the Court said there must be a "valid scientific connection to the pertinent inquiry as a precondition to admissibility."[4] The reliability prong is more problematic. Most courts properly read Daubert to determine reliability by examining the integrity of the methodology behind the opinion. However, Daubert's application has been awkward in recovered memory cases because the decision discussed scientific reliability in a toxic tort case involving objectively testable "hard" science. Daubert's indicators of reliability have limited value when the testimony at issue is rooted in behavioral or "soft" sciences. It would be reasonable for a court to rule that classic scientific principles cannot resolve the reliability question in recovered memory cases. But, if an attempt is made to determine reliability, traumatic memory research should be judged by standards different than those applied in Daubert. For example, a
