"Restored recollections": claims based on repressed memories of abuse.

• Author: Spikes, Larry B.

AS LAWYERS, we are familiar with the term "refreshed recollection." Witnesses do not have perfect memories, and their credibility depends, in large part, on their ability to remember critical facts.

Under the Federal Rules of Evidence, witnesses may testify from writings used to "refresh" their memories. Rule 612 provides that if a witness uses a writing to refresh memory either before or during testimony, the court, in its discretion, may order that the writing be produced to an adverse party, and the adverse party is entitled to inspect it, to cross-examine the witness regarding the writing and to introduce those portions of the writing that relate to the testimony. Under Rule 803(5), a writing or recording concerning a matter about which a witness once had knowledge but now has insufficient recollection is not excluded as hearsay. They may be read into evidence but may not be received as an exhibit unless offered by an adverse party.

But what rules apply when witnesses' testimony is based on events that are allegedly repressed or forgotten for years and then later recalled? Many lawyers are dealing with cases involving claims based on such "restored" memories or recollections in courtrooms.

The use of recovered memories of childhood sexual abuse in therapy has generated considerable media attention and debate among the legal and psychological communities. Some new media reports suggest that the verdict in Gary Ramona's case against his daughter's therapists challenged the validity of repressed memory syndrome.(1) Some experts in the psychological community, however, feel the current trend is a vicious backlash against a legitimate psychological theory.(2)

A lawyer representing the therapists in the Ramona v. Isabella suit in California blasted the news media's coverage of the case for overstating and exaggerating the supposed "message" the jury sent on this issue. According to Edward R. Leonard, one of the trial lawyers in the case, the jury's $500,000 verdict (the plaintiff was seeking $8 million) was the result of ambiguous instructions and general confusion. The jury did not conclude that Holly Ramona's memories were false, nor did they determine that any of the memories were implanted by the therapists. According to Leonard, what the jury did decide was that the therapists were too willing to accept assertions by their patient without doing additional work to confirm or to deny them.(3)

Michael Yapko, a clinical psychologist who is an expert on memory and suggestibility, estimates that more than 300 civil cases involving repressed memories of sexual abuse have been filed in recent years. Brandt Caudill, a lawyer in Orange County, California, who defends therapists in court, has predicted the next decade will bring a wave of cases involving sexual abuse that may consume some $250 million in court costs.(4) Given these types of estimates and predictions, defense counsel involved in repressed memory syndrome cases should familiarize themselves with the theory and prepare to either defend or defeat its validity.

Retrieved memories or "restored recollections" are seen in two basic types of cases: (1) claims brought by an adult who has allegedly repressed memories of childhood sexual abuse against the alleged abuser and (2) cases brought against therapists by parents or family members of a patient who has allegedly restored forgotten memories of abuse through therapy.

MEMORY IN COURTROOMS

The role of memory in the courtroom is a unique. The level of confidence witnesses have in their memories will directly affect their credibility. Jurors tend to believe that if witnesses have great confidence in a memory, the memory is more accurate. Psychological research, however, does not support this belief. In reality, witnesses who are somewhat tentative about their memories are probably closer to the truth than an overconfident witness.(5)

It seems natural to conclude that a memory that has been repressed for a long period and later retrieved is much less accurate than a memory of a more recent event that has never been forgotten. It also seems natural to conclude that testimony based on such memories could be easily impeached during cross-examination. According to some psychologists, a repressed memory is likely to be retrieved in bits and pieces and not all at once, thus the witness's testimony is likely to change over time. A primary example of this type of ever-changing testimony is Eileen Franklin-Lipsker's testimony in the trial of her father, George Franklin, for the murder of Eileen's best friend more than 20 years before the trial. The Franklin case was one of the first in a recent string of highly publicized cases involving either criminal charges or civil actions based on the recently retrieved memories of victims or witnesses. In 1989, Eileen Franklin, then 38 years old, notified investigators in San Mateo County, California, that she had witnessed her father sexually molest and murder her best friend 20 years earlier. An investigation was completed, charges brought...