Admissibility of Repressed Memories

Rule 403

In Clark v. Edison, 881 F. Supp. 2d 192 - Dist. Court, D. Massachusetts 2012 the court warned that "...the jury might interpret testimony that a person's behavior is "consistent with" that of someone who has repressed memory of a traumatic experience as being testimony that the person actually experienced the phenomenon. All these risks, taken together, demand that a court exercise caution in admitting expert testimony of the kind at issue here..."  

"...After careful consideration, the Court has concluded that the balance under Rule 403 tips narrowly in favor of admission. The Court finds that, under the narrow circumstances of this case, the probative value of testimony of repressed-memory theory is not substantially outweighed by its risks..."

"...this is a civil, not a criminal case. For a variety of reasons, the balance under Rule 403 might well be drawn differently if the evidence were offered by the government in a criminal prosecution..."



In Doe v. Archdiocese of St. Paul, 817 NW 2d 150 - Minn: Supreme Court 2012, the court found "Before Frye-Mack expert testimony can be admitted, the proponent of the evidence must establish that the underlying scientific evidence "is generally accepted in the relevant scientific community," and that "the particular scientific evidence in [the case has] foundational reliability." Goeb, 615 N.W.2d at 814.

"...The district court excluded Doe's expert testimony on the theory of repressed and recovered memories because Doe failed to show that the theory is generally accepted in the relevant scientific community and failed to show "that the theory ofrepressed and recovered memory is reliable and trustworthy based on well-recognized scientific principles because of the significant methodological flaws in the studies presented by [Doe] in support of that theory and the lack of any test to show reliability." The court also concluded that inclusion of repressed and recovered memory as a diagnosis in the DSM does not establish general acceptance..."

"...With respect to its conclusion that the theory of repressed and recovered memory is not generally accepted in the relevant scientific community, the district court found that both psychological researchers and clinicians were members of the relevant scientific community and that, generally, clinicians widely accepted the concept ofrepressed and recovered memories and researchers widely did not..."

"...inclusion in the DSM-IV does not equate to general acceptance for several reasons: the Supreme Court recognized that a diagnosis in the DSM, "may mask vigorous debate within the profession about the very contours of the mental disease itself," Clark v. Arizona, 548 U.S. 735, 774, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006); the DSM is not a scientific paper; psychiatrists disagree about whether repressedand recovered memories should appear in the DSM; other courts have recognized that the DSM is an evolving document; and the DSM itself cautions against use in legal settings due to the "significant risks that diagnostic information will be misused or misunderstood [and that] [t]hese dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis." Am. Psychiatric Ass'n, Introduction to Diagnostic and Statistical Manual of Mental Disorders, at xxxii-xxxiii (4th ed., text rev. 2000). Ultimately, because of the serious debate within the relevant scientific community, the court concluded that the theory of repressed and recovered memory was not generally accepted..."

"...while Doe's experts claimed that 328 peer-reviewed scientific research articles confirmed the existence and scientific reliability of repressed memory, the studies were unreliable. Specifically, the court stated "that the studies [did] not provide sufficient information about the scope of the subject's purported amnesia and that the accuracy of the recovered memories has not been scientifically established..."

"...the court was supported by Doe's own expert, Dr. Chu, who conceded, "it was really impossible to know for sure whether or not [participants inrepressed and recovered memory studies] actually remembered those events." Because the district court concluded that Doe's experts' opinions were based on studies with overwhelming methodological flaws, it found that evidence on the theory of repressed and recovered memory was not foundationally reliable..."

"...the district court's order cut to the heart of the foundational reliability question, analyzing the underlying reliability, consistency, and accuracy of the theory ofrepressed and recovered memory — much as we contemplated in Jacobson, 728 N.W.2d at 529. After hearing 3 days of expert testimony and reviewing hundreds of studies, the court, in a thorough and painstaking analysis, found that evidence on the theory of repressed and recovered memory lacked foundational reliability..."

"...After conducting a 3-day hearing, consisting of the testimony of five experts, the district court concluded that the data and studies that purported to prove the existence of repressed and recovered memory lacked foundational reliability. In judging the overall reliability of the theory, the court found that while there are hundreds of studies on the theory of repressed and recovered memory, it was unconvinced that any of the studies had proved the existence of, much less the accuracy or reliability of, repressed and recovered memories..."

"...this finding is more than adequately supported by the record. Specifically, Dr. Chu testified that there is no method for actually establishing the accuracy of recovered memories without corroborating evidence and Dr. Pope testified that "there [is] no way to validate that [the people claiming memory repression] were literally unable to remember the event." Doe's expert, Dr. Dalenberg, also conflated "memory repression" with "forgetting." Moreover, Dr. Loftus testified that the significant post-event "suggestions" in this case made it more likely that Doe had suffered from memory distortion. Because there is ample evidence in the record supporting a conclusion that the theory of repressed and recovered memory lacks foundational reliability..."

North Carolina
The NC School of Law Blog posted this blog post outlining the admissability of repressed and recovered memories.