The problem of a witness recall of memory based on psychiatric intervention- the evidence of which is unreliable
It is humbly submitted that oral evidence all over the world forms the primary form of evidence. What a person sees, hears and probably experiences are part of the testimony which can be rebutted by a cross examination. In the adversarial form of criminal law, evidence of this type must be subject to a cross examination by the defence. In the case of a person submitting evidence based on the recall of past events that spans years previously, mostly a result of intervention by a third agent -- a doctor or other operator who using a drug, powerful suggestions or hypnotic trance induce the witness to give evidence based on what they submit is from the 'subconscious'. The problem with this evidence is that it cannot be put to the test of cross examination, nor does the witness himself or herself fully understand what he or she has stated.
There is a legal mist of uncertainty in acting upon this type of evidence, and by that alone. At best it could be tertiary supporting evidence provided other evidence -- either direct or secondary point to the events as stated by these types of witness. Such witnesses who have imagined the event, or confessed to things they never did, have actually hampered the proper administration of justice -- and have either caused harm to themselves and to other innocent persons. It is pertinent to submit here that most of these types of evidence comes out against the witnesses own parents,, or close associates and the events sought to be prosecuted occurred decades ago. The problem therefore in this matter is not merely appreciation of evidence, but also the quality and the question if this is evidence at all. To examine this it is proposed to illustrate the cases in detail, thus highlighting the problem.
2) Details of the problem:
The most significant cases that the courts dealt with in the type of witness use are of recent origin. However before considering the issue of evidentiary value, it is a necessity that the False Memory Syndrome be defined properly. To this end the most reliable definitions could only come from psychologists who deal with these types of cases. The leading authority in the matter is Dr. John Hochman, who is on the Scientific Advisory Board of the False Memory Syndrome Foundation in Philadelphia. In the Sceptic magazine the doctor discussed the issue at length and from his publication it can be summarized that the rash of litigations started by adults alleging that they had been subject to harassment by parents and many women in the United States "have undergone or are undergoing attempted treatment by psychotherapists for a non-existent memory disorder. As a result, these same therapists have unwittingly promoted the development of a real memory disorder: False Memory Syndrome." (Hochman, 2012)
Dr. John states that psychologists believed that childhood sexual abuse is the specific cause of numerous physical and mental ills later in life. The principle is that children immediately Repress all memory of sexual abuse shortly after it occurs, causing it to vanish from recollection without a trace. To help such people the 'Recovered Memory Therapy -- RMT', to recollect the incidents. Dr. John says that these RMT actually produce fantasies which are "misperceived by patient and misinterpreted by the therapist as memories. And these are very much False Memories." (Hochman, 2012)
These treatment involve the use of drugs that may produce hallucinations and the drugs that are used to 'wake' memories include the use of sodium amytal, a short acting barbiturate, which is incorrectly described as a 'truth serum' and hypnosis and guided imagery in which patients are told to close their eyes and are talked through a state of heightened imagination which has a quasi- hallucinatory quality. Often this produces a hypnotic state with either the patient or the therapist realizing that hypnosis is taking place. It is humbly submitted that at this stage the therapist and the patient are both out of control and there is no way of finding what is true, and what is an illusion that the mind of the patient sees. Much of what the patient brings out as 'memories may be the result of the therapists' suggestion to the patient, and the patient sees some event that did never occur. (Hochman, 2012)
Some "patients become convinced that their abuse was actually satanic ritual abuse -- SRA due to participation by relatives in a secret satanic cult. Some therapists believe SRA is the work of a vast underground cult network in the United States." (Hochman, 2012) In contrast, Prof. John argues that the Post Traumatic Stress Disorder has verifiable traumatic events, and cannot disappear from memory, and it is the recall of the event that the patient relives the trauma. (Hochman, 2012) For example "For those who were in Nazi concentration or underwent torture as POWs in Vietnam, this can become a disabling lifelong problem." (Hochman, 2012)
There is no method of recalling anything that has been slipped out of memory. An example is also submitted that in a study of children whose school was attacked by a sniper showed that those who were not at school grounds also insisted they had personal recollections of being in school during the attack. From the evidence point-of-view it is not acceptable to take on evidence something that is a result of administering hypnosis and sodium amytal are often rejected by courts. It is submitted that the foundation of this type of evidence is very shaky but courts in 23 states both tolled the statutes of limitations when molestation is alleged, based on the assumption that individuals should not be penalized for having repressed memories. (Hochman, 2012)
This can be seen in Hood v. Herald and the 1993 famous mater of Steven J. Cook v Joseph Cardinal Bernadin et al., where "the plaintiff announced over CNN that he was sexually molested years earlier when he was a seminary student by two clerics, including the then Archbishop of Cincinnati Joseph Bernadin. However a few months later, Mr. Cook dropped charges against the Cardinal, indicating that these were based on recovered memories from therapy, and he had come to learn that such memories could be unreliable." (Hochman, 2012)
Likewise in Ramona v. Ramona, there were issues of rape by the father. Interestingly some of the witness have been seen to retracting their false memories and are suing therapists for malpractice. Therefore it is humbly submitted that the problem is a very serious one that can get parents and public into harassment of someone's imagination of what happened say twenty years ago. While on one hand the law wants to admit it in evidence, on the other hand the problem is yet to be fully explained by psychiatrists.
3) Why this is a problem
There are a great number of issues, that relate to the nature of memory, 'the role of hypnosis in therapy to recover memories, the personality characteristics of client and therapist, and factors of suggestibility and absorption and if memories are recovered. (Gow, 1998) The psychiatric community is divided about the possibility of memories recovered in therapy of being accurate or false; and some examples of these are the notorious UFO abduction reports, past life therapy reports, and many more like 'multiple personality disorders and satanic ritual abuse' and so on. (Gow, 1998)
Unfortunately at present there is no research that can show without bias that a memory can be recalled in full without embellishment years after the alleged abuse has occurred. In MN v Doe 76C v Archdioceses of Saint Paul and Minneapolis, A10-1951, State of Minnesota Supreme Ct, July 25, 2012, an amicus brief for the Archdioceses in the case revealed that, Fr. Adamson had a history of abusing children. Doe claimed he was unaware of the abuse until 2002 when he had "a series of flashbacks" about Adamson touching him. Doe claimed that in therapy he remembered other incidents of abuse. John Doe 76C filed his case past the Minnesota statute of limitations. The court found that "Doe's expert testimony was inadmissible under the Frye-Mack standard. The rule governing admission of scientific evidence in Minnesota states (Rule 702): "If scientific, technical, or other specialized knowledge will assist the tier 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" (False Memory Syndrome Foundation Staff, 2013)
It is also necessary to cite North Carolina v King No COA10-1237, Ct Appeals NC, Aug. 2, 2011 and the 1997 decision in Barrett vs. Hydlburg. The complainant watched a movie "Not in My Family," the fictional account of a depressed woman who suddenly recovers memories of having been abused by her father. The court decided that Ms. Barrett could not testify about any "newly recovered memories" unless…