Toward the Simplification of Civil Service Disciplinary Procedures

• Author: Honorable Richaid W Warts
• Pages: 05

. _ "Judge Advocate Generah COTS, United States Army Written when assigned a8 a Student. 44th Judge Advocate Omcer Graduate Course. The Judge Advocate Generals School. United States hmy, Charlolfemlle, V>r&+ma

Loftus and Me. Ketcham s180 wrote WITNESS

FOR THE DEFENSL

THE

ACCUSED,

IHE EITWITNEB~, m n THE E~LPERT

WHO PLT MEMOW

ON TRw (St. Martin's

Press 1991). See Fred L Borch, 1Cltnesa /or ihr De/e.ae, 134 MIL L REV 243 (1991)(book remew) Additionally, Dr. LaErvs has uniten numemw other books and articles on memori and eyewansas testimony She hks testified in hundred8 of eoun eseea

Genersh Schml United States kmyl.

RE~EUZD

BY CAPTAIN

HOLLY

COOK..

In January 1989, Eileen Franklin sat in her family room with her two-year old 60" in her arm38 and her skyear old daughter on the floor playing with friends. Eileen'B daughter asked her mother a simple question. When Eileen looked at her daughter to answer the question, Eileen suddenly remembered that she 6aw her father, George Franklin, brutally rape and murder her eight-year old best friend twenty years earlier. What triggered Eileen's flashbacks of this rape and murder after two decades? Haw detailed w e her

memory? How reliable was it? What evidence existed to corroborate her memory? Is corroborating emdenee neeeasary? These are some of the perplexing questions raised about repressed memories in the book, The Myth of Repressed Memory: False Memories and Allegations ofdezual Abuse.'

Renowned research psychologist and memory expert, Dr. Elizabeth Loftus, and wnter, Katherine Ketcham, cleverly mecases

like Eileen Franklin's to enlighten the public on what repressed memories are and how therapy can influence them. According to Dr.Loftus, people who believe in the concept of repression have faith in the mind's ability to defend itself from emotionally overwhelming events by removing certain experiences end emotions from conscious awarene88. Months, years, or even decades later, when the mind is better able to cope, the mind dredges these %pressed memories'' up piece by piece from their murky grave.

Dr Loftus 1s a skeptic of the theory of repressed memories She does not dispute the memoiies of people who have lived for years with dark secrets and oniy find the courage to discuss them in the supportive emironment of therapy People can push those memories out of their mmd, but they do not forget them. Dr Loftus only quea-tmns the memories commonly referred to as "repressed"-memaries that did not exist until someone went looking for rhem. She, along with other skeptics, look at the malleability of memory and ask for evidence and corroboration that a person can consciously repress their memories until the mind LS able to cope. LVithout such proof. she asks, how can anyone be certain that these long-lost memories represent fact and not fiction7

Dr. Loftus describes memory as a reconstructive process I"

u,hich a person can add new details thereby changing the quality of the memory Therapmts must be Sensitive to this reconstructive process and to the fact that they can bring thew own biases into the therapeutic envmnment If they are not. therapists can uninten. tionally contaminate the therapeutic enmronment and the memories of their patients Dr Loftus maintains that she IS not trying to attack therapy by making these observations She LJ merely trying to expose the weaknesses of therapy and to suggest ways to improve It

Many of the cases discussed m the book started when a female adult walked into a therapist's ofice iooking for help for specific problems [for example, eating disorders, depression, nightmares, reiationship problems) Initially, the patient had no thoughts of abuse. The therapist suggested that something in the patient's chdd-hood might be responstble for the current problems and helped the patient to search her background for the root of the problems If the patient claimed that she could not find anything, the therapist told her that she did not dig deep enough. If the therapist asked the patient if someone had abused her and the patient smd no, the therapist told the patient that she was in denial and should keep lwking in that direction. Gradually, the patient found repressed memories of child semal abuse

Therapists use specific techniques like suggestive questioning, dream work. journal writing, hypnosis, and group therapy to help patmts search thelr backpound for the root of their problems. Through these techniques, therapists can unknowingly Lmplant memories in the minds of highly impressionable indimduals who are lwking for answers to their problems. Once these Indimdual find the answers in their memories, they may not be able to distinguish between their Rbncated memories and their true memories. Eileen Franklin's case ~llustratesthese concerns.

%hat triggered Eileen's flashbacks7 That depends on who you ask Eileen reported that she remembered the murder while she Sat with her chddren m January 1989. However. Eileen's brother said Eileen confided to him that she had visualized the murder while she was m therapy and under hypnosis. Later, Eileen changed her story about being hypnotized and asked him to confirm that the memory had come back to her in a regular therapy session. Eileen's sister testified that Eileen told her that the memory returned in a dream shortly after Eileen went into thempy.

How detailed was Eileen's memory? How reliable was It? When Eileen told her story to detectives in November 1989, she remembered specific details and word-for-word conversations. Three days later, the detectives arrested her father for the murder. Eileen's repressed memory from when she was eight years old became the only evidence against her father. At the preliminary hearing SIX

months after the arrest, Eileen's amount of the murder had numw ous additions and subtractions. Dr. Loftus, who the defense called as an expert witness, claims that the changes in Eileen's story confirm what researchers already know about the malleability of memory. "Over time, memory changes, and the more time passes, the more changes and drstortions one can expect. As new events intervene. the mind incorporates the additional facts and details, and the oris-nal memory gradually metamorphoses." 1

The changes in Eileen's memory during thme SUL months were perfectly normal to Dr. Loftus. But haw much did Eileen's memory change during the twentyyear period of alleged repression? Howmuch did Eileen actually remember and how much did she incorpa. rate after conversations, newspaper reports, and television reports of the murder? Everything Eileen told the detectives matched the information printed ~n newspapers, even the information Eileen added and subtracted before the preliminary hearing. At the trial, she did not provide any new information. Dr. Loftus and other defense experts told the jury that memory fades with time and lases accuracy. However, despite this expert testimony and the lack of corroborating evidence, the jury convicted George Franklin of Rrst-degree murder.3

Eileen Franklin and other indivtduals recalling repressed memories clearly believe their new-found memories But what If

these individuals derive their memories not from facts, but from dreams, fears, or desires? What If there IS no way to prove that the

memories are true7 These allegations can destroy not only the mdl-itduals making them, but 8180 their families and the jndiv,duals accused of rhe abuse

The authors use actual eases to paint a s,mpathetic picture of how diffbcult It 1s far those accused to understand why the allega. tmns are made and to prove that nothing happened The authors mention that when patients reveal theu memories m therapy, theramsts encourage them to accept the memories 8s real If anyone asksthe patients to prove the abuse, supporters of the theory of repressed memories frequently say that patients are not responsible for proving that someone abused them and demands for proof are unreasonable. One therapist believes that the memories themselves are proof enough.' Another believes that If months or years later patients discover that they were wrong about the details, they always can apolog~re and set the record ~traight.~

Unfortunately, as the authors convincingly demonstrate through examples, the harm occurs once the patient aceu~es someone and It usually cannot be corrected George Franklin's mnilctmn illustrates this point.

George Franklin has been ~n jail since the ~onclusmn of his 1990 murder trial. In 1995, a United States district court judge reversed the conilction againat him concluding that "the risk of anunreliable outcome in this trial IS unacceptable."6 As at December 1995. prosecutors still were deciding whether to retry hlr Franklin The Las Angeles Times quoted the prosecutor who ong~nally tried the case as saying, "Let's be honest. ~n the five years since the eoniictmn, there IS a whole lot more skepticism about repressed memo- $' If the prwecution does not retry him, George Fianklin will be released after sewing more than five years of his sentence-but his life will never be the same.

Dr. Loftus's background as a researcher and expert on the workings of memory 16 critical for the discussion of repressed memo. ne3 Most of these memories involve some type of chdd sexual abuse, but the debate 1s not about the reality or horror of child abuse. The debate is about memory. Dr Laftus has conducted hun-dreds of memory-related experiments with thousands oi subjects.

She has molded peopie's memories. prompted them to recall nonexis-tent Items. and even implanted false memories ~n people's minds. making them believe m events that never happened All of her experiments prove that memory IS malleable and susceptible to sug-gestion. Accordingiy, uncorroborated memories that suddenly exist after someone suggests them makes those memories highly ques.

tionable

Despite their admitted skepticism in the theory of repressed memmes, the authors stnw to present the ISSUBS surrounding

...