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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 95-429
THE STATE OF NEW HAMPSHIRE
v.
JOEL HUNGERFORD
THE STATE OF NEW HAMPSHIRE
v.
JOHN A. MORAHAN
July 1, 1997
Steven M. Houran, acting attorney general (Cynthia L. White
and Mark S. Zuckerman, senior assistant attorneys general, on the
brief, and Mr. Zuckerman orally), for the State.
Paul A. Maggiotto, of Concord, by brief and orally, for
defendant Joel Hungerford.
Brennan, Caron, Lenehan & Iacopino, of Manchester (Michael
J. Iacopino on the brief), for defendant John Morahan.
Thomas A. Pavlinic, of Annapolis, Maryland, and Paul A.
Maggiotto, of Concord, by brief for the False Memory Syndrome
Foundation, as amicus curiae.
Dechert Price & Rhoads, of Philadelphia, Pennsylvania (Mary
A. McLaughlin on the brief), and Ford, Ford & Weaver, P.A., of
Portsmouth (Debra Weiss Ford on the brief), for the International
Society for Traumatic Stress Studies and the Family Violence &
Sexual Assault Institute, as amici curiae.
Mark J. Lopez and Steven R. Shapiro, of New York, New York,
and Paul A. Maggiotto, of Concord, by brief for the American
Civil Liberties Union, as amicus curiae.
Steven R. Sacks, of Concord, staff attorney, by brief for
NEA-New Hampshire, as amicus curiae.
BROCK, C.J. The State appeals the Superior Court's (Groff,
J.) ruling that the testimony of two alleged sexual assault
victims is not admissible in criminal prosecutions against the
defendants, Joel Hungerford and John Morahan. See RSA 606:10, II
(1986). We affirm and remand.
For our limited review of the underlying facts, we will rely
on the findings that the trial court made for purposes of its
ruling on the admissibility of the complainants' testimony. The
complainant in State v. Hungerford, Laura, is a woman in her late
twenties who had suffered from symptoms of clinical depression
and had experienced sexual problems in her marriage prior to
entering psychotherapy. Although she had no memory of being
abused by her father, defendant Hungerford, she sought therapy in
September 1992 after her sister claimed to have recovered
memories of being sexually abused by Hungerford. Laura began
therapy with Susan Jones, a social worker. According to the
trial court, Laura
explained to Ms. Jones that one of her motivations in
entering therapy was to explore the possibility that
she was sexually abused. Ms. Jones engaged in
traditional psychotherapy but did engage specifically
in "memory retrieval." In other words, a specific
purpose of her psychotherapy with Laura was in part to
retrieve or recover memories of possible or suspected
sexual abuse.
Laura participated in psychotherapy for approximately nine
months, including about one hundred sessions; during this period,
she "remembered" several episodes of sexual abuse. She recovered
several memories of her father penetrating her, digitally,
vaginally, and anally. She recovered these during sessions with
Ms. Jones, who instructed her "to close her eyes and focus on the
image," and to report "who she was afraid of." In order to
facilitate remembering, Laura was instructed to "close her eyes
and pretend it was a movie," or to "look around and see what
happened."
In March 1993, Laura experienced vaginal pain and a feeling
of disgust with her body while taking a shower. A green bar of
soap reminded her of a poster above her bed at the family home.
She subsequently experienced an "image or flashback" which
reminded her that two days before her wedding her father had
entered her bedroom, ripped the covers off of her bed, and raped
her. Part of this memory seems to have been recalled outside of
a particular therapy session, although Ms. Jones did examine the
"feeling" with Laura during therapy, and the trial court found
that "Laura did recover part or all of the memory of that rape at
a therapy session."
Laura reported each of these memories to the Amherst Police
Department in March 1993. After the allegations had been made,
Hungerford threatened to shoot himself, Laura, and Ms. Jones.
Laura and Ms. Jones were aware of this threat. After the
defendant made the threat, Laura had a nightmare about black
hair, which, after she had drawn a picture of it, Laura
recognized as her father's beard. After being instructed to
close her eyes, "[l]ook around," and see what was "so
terrifying," Laura remembered being tied to a bed with her father
beside her, and that something was inside of her vagina. She
remembered later, at home, that the object in her vagina had been
a gun.
The trial court described Ms. Jones' memory retrieval
techniques in some detail:
During these periods when Ms. Jones engaged in the
process of memory retrieval, Laura would close her eyes
for 15 or 20 minutes, during which the "memory" would
be explored. According to Ms. Jones, during these
periods, Laura would go into a "self-induced" trance.
Ms. Jones indicated that she did not induce the trance
with Laura, but rather Laura was able to "enter the
traumatic experience by her own access and design."
During these episodes, Ms. Jones would ask Laura if she
could see or hear anything or anybody, or if anything
was happening. These were the only times during
therapy[] that Ms. Jones used this "visualization"
technique.
Ms. Jones fashioned or relied on a so[-]called
"Repressed Memory Syndrome[,"] which appears
unrecognized in the field of psychology. Ms. Jones
also believed that dreams are often the first signs of
emerging memory, that flashbacks are a sudden reliving
of a scene of sexual abuse, and that violent nightmares
are a red flag for the existence of sexual abuse. Ms.
Jones also described the concept of repression to
Laura. Ms. Jones believed that Laura's visualizations
were memories of actual abuse. She believed that these
incidents of abuse occurred, and by her conduct,
communicated this belief to Laura. Laura believed that
Ms. Jones indicated that body pains were connected to
instances of past sexual abuse. Laura believed that
Ms. Jones validated the reality of the remembered
sexual abuse. Ms. Jones herself understood that by her
actions she had validated the abuse and affirmed the
memories for Laura.
The complainant in State v. Morahan, Sarah, presently is in
her early twenties. She reported to the trial court that she had
negative feelings about her parents, who had divorced, and
reported "suffering from depression, narciss[ism] and bulimia at
various stages of her life." Sarah began psychological
counseling in May 1988. After having been admitted to two
private psychiatric hospitals with suicidal ideation, Sarah
attended the DeSisto School, a gestalt, "`therapeutic boarding
school[,'] where students are required to attend psychotherapy."
While at the school, Sarah ceased taking the antidepressant
medication that had been prescribed for her previously.
At the DeSisto School, Sarah reported a recurring dream of a
man next to her in bed, and suspected she had been abused; at the
same time, she expressed conflicting feelings about her
grandfather. In 1991, after another hospitalization for suicidal
ideation, she reported further suspicions of sexual abuse; the
school provided Sarah with "inner child therapy" to "support her
and offer her belief and comfort, and to determine what had
happened." Sarah reported that her stepfather might have "done
something to her," and much of her therapy during this period
explored the possibility of sexual abuse.
After several months of therapy, in July 1991, Sarah
revealed in therapy that she "now remembered being raped by a
teacher in the seventh grade." According to the trial court:
In the next few months, Sarah continued to deal with
the alleged rape and develop her memory. She indicated
that she had become pregnant as a result of the rape
and aborted the pregnancy by an overdose of steroids.
In therapy, significant effort was directed to grieving
over the abortion. One of Sarah's therapists
considered her the classic abused child. Sarah also
attended dorm group sessions on a regular basis at
which participants talked of their problems, including
cases of sexual abuse. On June 8, 1993, Sarah[,]
accompanied by DeSisto School personnel, reported the
rape to the vice-principal at Hillside Junior High
School. Thereafter, she recovered further memories of
the rape while talking with her dorm supervisor and a
therapist. In mid-August Sarah reported the rape to
the Manchester Police.
Sarah was not questioned about the details of the assault at the
hearing. The instant prosecutions followed.
Both defendants moved to dismiss the prosecutions, asserting
that the complainants' testimony would not be admissible at trial
under State v. Cressey, 137 N.H. 402, 628 A.2d 696 (1993), New
Hampshire Rule of Evidence 702, State v. Coolidge, 109 N.H. 403,
260 A.2d 547 (1969), rev'd on other grounds, 403 U.S. 443 (1971),
or Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). The two cases were consolidated for purposes of
addressing the admissibility of the complainants' "repressed
memory" testimony. Over the State's objection, the trial court
ruled that a preliminary hearing was required to address this
question, and that the State would bear the burden of
demonstrating that the phenomena of memory repression and
recovery are reliable and have gained general acceptance in the
psychological community. The court concluded that "[t]estimony
that is dependent upon recovery of a repressed memory through
therapy cannot be logically disassociated from the underlying
scientific technique." The court required the State to
demonstrate "that the reasoning or methodology underlying the
testimony is scientifically valid; and that it is capable of
empirical testing and can properly be applied to the facts in
issue."
The court held a two-week admissibility hearing on the issue
of repressed memories. The two complainants testified at the
hearing, as did seven psychological professionals: Dr. Daniel
Brown, Dr. Bessel A. van der Kolk, Dr. Jon Robert Conte, Dr.
Elizabeth Loftus, Dr. Paul McHugh, Ms. Susan Jones, and Dr. James
Hudson. After the hearing and a review of the materials admitted
during the hearing, the trial court defined a repressed memory as
"the complete absence of awareness or memory of a traumatic event
from the time of its occurrence until a period of years
thereafter." See E. Loftus & K. Ketcham, The Myth of Repressed
Memory: False Memories and Allegations of Sexual Abuse 215-17
(1994) (describing repression as "a process of selective amnesia
in which the brain snips out certain traumatic events and stores
the edited pieces in a special, inaccessible memory `drawer'").
The court ruled that the State failed to meet its burden of
proving that there was general acceptance of the phenomenon of
repressed memories in the psychological community, and, further,
that the State had failed to demonstrate that the phenomenon was
reliable. The court accordingly ruled the testimony of the
complainants inadmissible. This appeal followed.
On appeal, the State argues (1) that the trial court erred
in requiring a preliminary showing of reliability or general
acceptance before the witnesses' testimony would be admitted, and
(2) that, assuming the preliminary showing was required, the
trial court erred in concluding that the State failed to make
such a showing. The issues raised in these arguments are
intimately related, and we address them together.
We accord the trial court's rulings on evidentiary matters
considerable deference, reversing only for an abuse of
discretion. See, e.g., State v. Briere, 138 N.H. 617, 620, 644
A.2d 551, 554 (1994). We review the trial court's determination
of the reliability of novel scientific evidence with similar
deference, see Cressey, 137 N.H. at 405, 628 A.2d at 698,
although we review the reliability or general acceptance of novel
scientific evidence independently when the determination is not
likely to vary according to the circumstances of a particular
case, see State v. Vandebogart (DNA), 136 N.H. 365, 376, 616 A.2d
483, 491 (1992). The level of scrutiny we employ in our
reliability inquiry will depend upon the complexity of the
evidence involved and the impact the evidence likely will have on
the trial itself. See, e.g., State v. Murphy, 451 N.W.2d 154,
157 (Iowa 1990).
We agree with the State that lay witnesses are presumed
competent to testify, see N.H. R. Ev. 601(a), unless they "lack[]
sufficient capacity to observe, remember and narrate as well as
understand the duty to tell the truth," N.H. R. Ev. 601(b). We
disagree with the State's assertion, however, that the trial
court's decision "was tantamount to an erroneous ruling that [the
witnesses] were incompetent" to testify. There seems to be no
question that Laura and Sarah believe that they "remember" the
events they describe; accordingly, a pure competence inquiry
would likely result in a conclusion that their testimony would be
admissible. See N.H. R. Ev. 601; Briere, 138 N.H. at 620-21, 644
A.2d at 554. An inconsistency in testimony or the failure to
remember aspects of some observed event typically does not
disqualify a witness on competence grounds; such gaps in
testimony "present questions of credibility for resolution by the
trier of fact." Briere, 138 N.H. at 620, 644 A.2d at 554
(quotation omitted).
The present inquiry is in part a question of competence,
however, insofar as we are inquiring into the ability of these
witnesses to "remember" the events that they seek to describe at
trial. See N.H. R. Ev. 601(b); State v. Iwakiri, 682 P.2d 571,
578-79 (Idaho 1984) (treating admissibility of hypnotically-
refreshed testimony as competence question); see also State v.
Mack, 292 N.W.2d 764, 769 (Minn. 1980). Because these witnesses
are not ordinary eyewitnesses with ordinary memories, we must
examine the reliability of their "memories," cf. People v.
Hughes, 453 N.E.2d 484, 494 (N.Y. 1983) (inquiring into
reliability of hypnosis as means of restoring recollection under
general acceptance test), just as we inquire into the reliability
of scientific evidence, see Cressey, 137 N.H. at 405, 628 A.2d at
698 (expert testimony must reach threshold level of reliability
to be admissible). We acknowledge that our inquiry is, in part,
into the trial court's determinations concerning the reliability
of the victims' memories. Their memories may be actual
recollections of actual traumatic events, manufactured narratives
of events that never occurred, or some combination of these. See
Loftus, The Reality of Repressed Memories, 48 Am. Psychologist
518, 524-25, 533 (1993) [hereinafter The Reality of Repressed
Memories]. Laura and Sarah may not know into which category
their memories fit. See Wells & Murray, Eyewitness Confidence,
in Eyewitness Testimony: Psychological Perspectives 155, 159-70
(G. Wells & E. Loftus eds., 1984) (eyewitness confidence in
memory not meaningfully related to accuracy).
Just as our inquiry is not purely one of competence, it is
not purely a question of the admissibility of scientific or
expert evidence, to be governed solely by reference to New
Hampshire Rule of Evidence 702. We recognize that treating the
testimony of a percipient witness to a crime as scientific
evidence is novel in our law, and that it does not fit precisely
within the confines of Rule 702. See Com. v. Kater, 447 N.E.2d
1190, 1195 (Mass. 1983). We agree with the trial court, however,
that a recovered memory that previously had been completely
absent from a witness's conscious recollection, see E. Loftus,
Memory 41-44 (1980) [hereinafter Memory], cannot be separated
from the process, if any, that facilitated the recovery. See
People v. Zayas, 546 N.E.2d 513, 518 (Ill. 1989). In this
context, "[t]he basic question is not so much whether the process
is scientific but rather whether a jury can realistically
evaluate the effect of [the process]," Kater, 447 N.E.2d at 1195,
on the witness's ability to testify to his or her recollection of
an event. See The Reality of Repressed Memories, supra at 523-
25. The trial court's gatekeeping power on questions of the
admissibility of scientific evidence is the most appropriate
procedural tool for evaluating this sort of evidence. See N.H.
R. Ev. 104(a); State v. Quattrocchi, 681 A.2d 879, 884 (R.I.
1996). We accordingly conclude that, when challenged, testimony
that relies on memories which previously have been partially or
fully repressed must satisfy a pretrial reliability
determination. See Quattrocchi, 681 A.2d at 884. The trial
court correctly ordered the pretrial hearing on admissibility.
The State vigorously argues that the processes of repressing
and retrieving memories are normal human functions, common to
every person's everyday experience, just as forgetting and
remembering are; accordingly, the State contends, such evidence
is not beyond the average juror's ability to comprehend, and
unique treatment is inappropriate. We disagree. Although there
are skeptics, it does seem to be accepted in the psychological
community that people are capable of repressing or dissociating
conscious recollection of all or part of certain traumatic
events. See, e.g., Ernsdorff & Loftus, Let Sleeping Memories
Lie? Words of Caution About Tolling the Statute of Limitations in
Cases of Memory Repression, 84 J. Crim. L. & Criminology 129,
133-34 (1993) [hereinafter Sleeping Memories]; Pope & Hudson, Can
Memories of Childhood Sexual Abuse Be Repressed?, 25 Psychol.
Med. 121, 121 (1995); Taub, The Legal Treatment of Recovered
Memories of Child Sexual Abuse, 17 J. Legal Med. 183, 187 (1996).
There is, however, a vigorous debate on the questions of how the
process of repression occurs, how the process of retrieval
occurs, and indeed if in fact retrieval is possible at all. See
Ault v. Jasko, 637 N.E.2d 870, 875-76 (Ohio 1994) (Wright, J.,
dissenting); Hough, Recovered Memories of Childhood Sexual Abuse:
Applying the Daubert Standard in State Courts, 69 S. Cal. L. Rev.
855, 859-63 (1996). A central and divisive question in this
debate is whether a person's memory of an event can be accurate
or authentic or "true," having been long lost in the person's
subconscious mind and subsequently remembered, either
spontaneously or by some method seeking to recover the memory.
See The Reality of Repressed Memories, supra at 523-29; Taub,
supra at 189-91. See generally Pezdek & Roe, Memory for
Childhood Events: How Suggestible is It?, 3 Consciousness &
Cognition 374, 380-83 (1994).
The phenomenon of repressing recollection of a traumatic
event, and subsequently "recovering" it, may be familiar to or
even accepted by parts of the psychological community, but it is
far from being familiar to the average juror. See Com. v.
Crawford, 682 A.2d 323, 326 (Pa. Super. Ct. 1996). Some well-
publicized accusations may ensure that many people have heard of
the concept of repressed memories, see Loftus & Ketcham, supra at
79-80 (describing mass media reports of celebrities recovering
previously repressed memories); a review of the scientific
literature on the subject reveals, however, that ordinary jurors
cannot be expected to analyze such claims without the assistance
of experts. See Sleeping Memories, supra at 162-63; Crawford,
682 A.2d at 325.
Our case law is clear that if the subject matter in dispute
is beyond the general understanding of a jury, the party bearing
the burden of proof must adduce expert testimony to explain such
evidence. Lemay v. Burnett, 139 N.H. 633, 634-35, 660 A.2d 1116,
1116-17 (1995); see Crawford, 682 A.2d at 324-25. Further,
expert testimony is required when the issues in a case are
particularly esoteric or when the matter to be determined by the
trier of fact is so distinctly related to a particular science,
occupation, business, or profession that it is beyond the ability
of the average layperson to understand. Wood v. Public Serv.
Co., 114 N.H. 182, 186, 317 A.2d 576, 578 (1974); see Lemay, 139
N.H. at 634-35, 660 A.2d at 1116-17.
The offered testimony of Laura and Sarah in the instant
cases, even if admitted, could not be understood by the average
juror without the assistance of expert testimony. Their memory
of the events described above, according to the theory, has
undergone a physiological process unlike ordinary memory, with
which an average juror would be familiar. Compare Wood, 114 N.H.
at 186-88, 317 A.2d at 578-79 (level of insulation required for
safe high voltage power lines within understanding of the average
juror) with Lemay, 139 N.H. at 635-36, 660 A.2d at 1117-18
(jurors could not assess whether particular diving conditions
rendered backyard swimming pool unreasonably dangerous without
expert testimony). Further, in the instant cases, the memories
are intricately related to the psychological therapy attendant to
their recovery. See Note, Recovered Memories of Childhood Abuse:
Should Long-Buried Memories Be Admissible Testimony?, 37 B.C. L.
Rev. 591, 630-35 (1996) [hereinafter Long-Buried Memories]. Even
though the General Court has referred to the phenomenon, it
remains outside of the understanding of the average juror. See
Laws 1990, ch. 213:1 (findings supporting extension of statute of
limitations for certain sexual assaults); McCollum v. D'Arcy, 138
N.H. 285, 289, 638 A.2d 797, 800 (1994) (noting that although
discovery rule applied to toll statute of limitations, the
proponent of recovered memory still bore "the burden . . . to
validate the phenomenon of memory repression itself and the
admissibility of evidence flowing therefrom"). The trial court
properly ordered the State to present expert testimony supporting
the reliability of the recovered memories.
We turn to the showing that the proponent must make before
evidence of the content of repressed memories will be admissible
at trial. New Hampshire Rule of Evidence 702 and the principles
we enunciated in Cressey, 137 N.H. 402, 628 A.2d 696, guide our
analysis. In Cressey, we evaluated the admissibility of expert
psychological testimony under Rule 702, and concluded that such
"testimony must rise to a threshold level of reliability to be
admissible." Id. at 405, 628 A.2d at 698. We did not define the
precise contours of the reliability inquiry for every case,
although we did indicate what sorts of concerns ought to guide
the inquiry. See id. at 408-10, 628 A.2d at 700-02; State v.
Cavaliere, 140 N.H. 108, 110-13, 663 A.2d 96, 98-100 (1995).
Specifically, we considered important the presence of objective,
quantifiable evaluation results, Cressey, 137 N.H. at 408-09, 628
A.2d at 700-01, the existence of a "logical nexus" between the
expert's observations and conclusions, id. at 409, 628 A.2d at
701, the verifiability of any interpretive steps, id. at 409-10,
628 A.2d at 701, and the likely difficulty of effective cross-
examination of the expert, id. at 410, 628 A.2d at 701. We apply
these principles in the repressed memory context -- both to the
witness claiming to have recovered memory and to the expert
explaining the phenomenon. Also helpful are the considerations
enunciated by the United States Supreme Court in Daubert, 509
U.S. at 592-95. In applying Federal Rule of Evidence 702, the
Daubert Court discussed four considerations bearing upon the
reliability and helpfulness of scientific evidence: (1) whether
the theory or technique has been or can be tested; (2) whether
the theory or technique has been subjected to peer review and
publication; (3) the potential or known error rate; and (4)
whether there is general acceptance of the theory or technique in
the relevant scientific community. Id. at 593-94.
The extensive case law from other jurisdictions considering
the admissibility of various types of refreshed recollection in
civil and criminal cases is helpful to our inquiry. In the
loosely analogous circumstance of offered testimony relying upon
memory that has been enhanced, refreshed, or recovered by
hypnosis, courts generally have divided into four groups: those
that categorically accept such testimony, those that
categorically reject such testimony, those that will admit the
testimony only if rigid procedural safeguards have been met, and
those that will admit the testimony only after a "totality of the
circumstances" review of the reliability of the particular
testimony. See, e.g., State v. Brown, 337 N.W.2d 138, 151 (N.D.
1983) (hypnotically refreshed testimony admissible and subject to
credibility challenge); People v. Shirley, 723 P.2d 1354, 1383-84
(Cal.) (testimony inadmissible under Frye test), cert. denied,
459 U.S. 860 (1982); State v. Hurd, 432 A.2d 86, 96-97 (N.J.
1981) (admissible if safeguards complied with); Iwakiri, 682 P.2d
at 579 (testimony admissible if, under totality of circumstances,
it is sufficiently reliable to merit admission). Limitations on
the admissibility of eyewitness testimony are generally justified
based upon the fact that inaccuracies can be injected into recall
during the hypnotic process by suggestion, confabulation, and
conflation of true memories with false memories, see Iwakiri, 682
P.2d at 576, and upon the inability of the adversarial process to
ferret out such inaccuracies because of memory hardening, see
e.g., Hurd, 432 A.2d at 95. See Cressey, 137 N.H. at 410, 628
A.2d at 701 (observing that psychologist's testimony of her
interpretation of her evaluations was impenetrable by cross-
examination). Outside of the preliminary question of whether to
toll the relevant statute of limitations, e.g., McCollum, 138
N.H. at 289, 638 A.2d at 799, few cases involve the more novel
question of the admissibility of repressed memories recovered
spontaneously, or during or attendant to participation in
psychological therapy. See Crawford, 682 A.2d at 327-28;
Quattrocchi, 681 A.2d at 881-84.
A review of the psychological literature on the subject of
memory repression and recovery convinces us that a case-by-case
approach, tempered with skepticism, is most appropriate in this
context. See, e.g., The Reality of Repressed Memories, supra at
530-32. See generally Pezdek & Roe, supra (reviewing studies of
suggestibility of children's memories); Williams, Recall of
Childhood Trauma: A Prospective Study of Women's Memories of
Child Sexual Abuse, 62 J. Consulting & Clinical Psychol. 1167
(1994) (suggesting loss of memory of sexual abuse may be common).
We are especially concerned with the influence of therapy on
the recovery of memory, as in the instant cases. The process of
therapy is highly subjective, with its purpose "not the
determination of historical facts, but the contemporary treatment
and cure of the patient." Tyson v. Tyson, 727 P.2d 226, 229
(Wash. 1986); see Quattrocchi, 681 A.2d at 882. This goal, along
with the expectations and predispositions of both therapist and
patient, tends to distort the "historical truth" of events in the
patient's life. Tyson, 727 P.2d at 229; see Wesson, Historical
Truth, Narrative Truth, and Expert Testimony, 60 Wash. L. Rev.
331, 337-38 (1985). Within the environment of therapy, a patient
may report memories in response to the perceived expectations of
the therapist, see, e.g., Taub, supra at 191, or in response to
other forces. See Sleeping Memories, supra at 138-39; Nelson &
Simpson, First Glimpse: An Initial Examination of Subjects Who
Have Rejected Their Recovered Visualizations as False Memories, 6
Issues in Child Abuse Accusations 123, 126-27 (1994).
Observations like the following are troubling:
[T]he goal of therapy [is to] creat[e] a coherent
"narrative truth" that accounts for the events in a
patient's life but that does not necessarily make
contact with the actual past. The goal is to account
for the client's symptoms and allow the client to
achieve closure with the past. But the truth of the
past is not particularly important; instead, the
patient "weaves together" a picture of the past that
accounts for his symptoms and allows him to understand
his life. Once the past has been reconstructed,
however, the past is effectively changed and the
original version is lost both for therapy and for all
other purposes. The patient's memory will never be the
same.
Comment, Repression, Memory, and Suggestibility: A Call for
Limitations on the Admissibility of Repressed Memory Testimony in
Sexual Abuse Trials, 66 U. Colo. L. Rev. 477, 511 (1995)
(quotations, footnote, and brackets omitted) [hereinafter Call
for Limitations]; see Loftus & Ketcham, supra at 265-67.
We do not mean to suggest that all or even a majority of
recovered repressed memories are "false." Rather, we merely
recognize that the memories are subject to many factors that may
affect their reliability, especially, as the trial court found in
the instant cases, the uniquely suggestive environment of
psychological therapy. See Loftus & Ketcham, supra at 265-67.
See generally R. Gardner, True and False Accusations of Child
Sexual Abuse 652-66 (1992). As we stated in Cressey:
By this opinion we do not seek to disparage the work
being done in psychology and the behavioral sciences,
for we can surely see its value; however, we are bound
to recognize that the separate fields of behavioral
science and criminal justice are different enough in
their foundations and goals that what may be considered
helpful information in one may not be so valued in the
other.
Cressey, 137 N.H. at 407, 628 A.2d at 699. Our approach today
reflects our attempt to balance "the legal and emotional needs of
survivors of childhood sexual abuse," Roe v. Doe, 28 F.3d 404,
408 (4th Cir. 1994) (Hall, J., concurring), with our duty to
ensure that defendants receive a fair trial and that individuals
receive a reliable and fair adjudication of their disputes.
Ordinary memory is imperfect. See Hall et al., Postevent
Information and Changes in Recollection for a Natural Event, in
Eyewitness Testimony, supra at 124, 126-27. Studies indicate
that memory is not a mechanism that merely reproduces one's
perceptions of events; rather,
memory, like perception, is an active, constructive
process that often introduces inaccuracies by adding
details not present in the initial representation or in
the event itself. The mind combines all the
information acquired about a particular event into a
single storage "bin," making it difficult to
distinguish what the witness saw originally from what
she learned later.
Note, Did Your Eyes Deceive You? Expert Psychological Testimony
on the Unreliability of Eyewitness Identification, 29 Stan. L.
Rev. 969, 983 (1977); see Shirley, 723 P.2d at 1377-78. See
generally Memory, supra at 13-33 (explaining how memory
functions).
The law has recognized that an eyewitness's recall of an
event or a person's face or features may be irretrievably altered
by suggestive identification procedures. See, e.g., State v.
Allard, 123 N.H. 209, 213, 459 A.2d 259, 262, cert. denied, 464
U.S. 933 (1983). Indeed, it may be "that the influence of
improper suggestion upon identifying witnesses probably accounts
for more miscarriages of justice than any other single factor --
perhaps it is responsible for more such errors than all other
factors combined." United States v. Wade, 388 U.S. 218, 229
(1967) (quotation and brackets omitted); see also Malpass &
Devine, Research on Suggestion in Lineups and Photospreads, in
Eyewitness Testimony, supra at 64, 74-86. Courts accordingly
exclude in-court identification that has resulted from an out-of-
court identification that is unreliable because tainted by
improper suggestion. See Allard, 123 N.H. at 213, 459 A.2d at
262.
Our recognition that ordinary memory is subject to
suggestion only emphasizes the limitations of eyewitness
testimony in any case, see Sleeping Memories, supra at 155; Hall
et al., supra at 126-27, and does not conclusively control our
evaluation of recovered memories. This point merely establishes
the post against which the reliability of recovered memories must
be measured. See, e.g., Hurd, 432 A.2d at 95. To establish that
a recovered memory is reliable, the proponent of its admission
must demonstrate a reasonable likelihood that the recovered
memory is as accurate as ordinary human memory. See id.; cf.
Shahzade v. Gregory, 923 F. Supp. 286, 290 (D. Mass. 1996)
(inquiring only into reliability of phenomenon of repressed
memories, not into creditability of particular memory). An
inquiry into the reliability of recovered memories generally will
comprise the first part of this burden. Further, because of the
great possibility of suggestiveness in therapy, see, e.g., The
Reality of Repressed Memories, supra at 526-27, if therapy or
some other formal technique has been utilized in order to
retrieve the memory -- or has been engaged in during the time in
which the memory was retrieved -- then further inquiry is
required to determine the effect of that process or technique
upon the reliability of the resulting memory. Cf. Call for
Limitations, supra at 512-14 (describing similarities between
effects of therapy, hypnosis, and interrogation on memory).
In determining the reliability of a recovered memory, --
that is, whether the recovered memory is reasonably likely to be
as accurate as ordinary memory -- the trial court should consider
the following factors: (1) the level of peer review and
publication on the phenomenon of repression and recovery of
memories, see Daubert, 509 U.S. at 593; (2) whether the
phenomenon has been generally accepted in the psychological
community, see id. at 594; (3) whether the phenomenon may be and
has been empirically tested, see id. at 593; (4) the potential or
known rate of recovered memories that are false, see id. at 594;
(5) the age of the witness at the time the event or events
occurred, see Williams, supra at 1168; (6) the length of time
between the event and the recovery of the memory, cf. Hall et
al., supra at 130; (7) the presence or absence of objective,
verifiable corroborative evidence of the event, see Meiers-Post
v. Schafer, 427 N.W.2d 606, 610 (Mich. Ct. App. 1988); and (8)
the circumstances attendant to the witness's recovery of the
memory, i.e., whether the witness was engaged in therapy or some
other process seeking to recover memories or likely to result in
recovered memories, see British Psychological Society, Executive
Summary: Recovered Memories 2.1, at 9 (1995). Cf. Isely v.
Capuchin Province, 877 F. Supp. 1055, 1064-67 (E.D. Mich. 1995)
(parameters for admissibility of expert testimony).
If the witness was engaged in formal psychological therapy
or some other process aimed at, or likely to facilitate, the
recovery of memories, then further inquiry into that process is
required. See Call for Limitations, supra at 511-12 (describing
influence of traditional psychotherapy on memory). In the case
of recovery attendant to therapy, this inquiry includes an
examination of the therapist's qualifications, the type of
therapeutic approach used, whether complaints of false
accusations have been filed against the therapist, whether the
therapist ordinarily seeks hidden memories or believes that many
psychological problems stem from sexual abuse, and whether the
therapist remains detached during the process or "validates"
allegations of abuse that arise. See Call for Limitations, supra
at 521 (suggesting some of these factors); cf. Nelson & Simpson,
supra at 125-29 (examining effects of various influences on
people who develop false memories); Taub, supra at 208-13
(discussing characteristics of individuals who retract claims of
recovered memories and their therapists).
Although phrased in different terms, the trial court applied
a test of reliability and general acceptance similar to the test
we enunciate today. We accordingly defer to its findings insofar
as they apply to the facts of these particular cases. See
Cressey, 137 N.H. at 405, 628 A.2d at 698; Vandebogart (DNA), 136
N.H. at 376, 616 A.2d at 491.
Considering our first factor, the trial court correctly
observed that the phenomenon of memory repression and recovery
has received extensive attention in psychological publications.
The parties presented photocopies of many articles from medical
and psychological publications on the issue, and a review of the
literature reveals many more. The level of peer review is high.
"[S]ubmission to the scrutiny of the scientific community is a
component of `good science,' in part because it increases the
likelihood that substantive flaws in methodology will be
detected." Daubert, 509 U.S. at 593. In the case of repressed
and recovered memories, the level of submission is high, but the
debate over methodology and the meaning of results continues.
See, e.g., Holmes, The Evidence for Repression: An Examination of
Sixty Years of Research, in Repression and Dissociation 85, 96-98
(J. Singer ed., 1990); Long-Buried Memories, supra at 635.
The psychological community remains deeply divided on the
reliability or accuracy of recovered memories. See Ault, 637
N.E.2d at 875 (Wright, J., dissenting); Sleeping Memories, supra
at 133-35; Taub, supra at 186-87. Despite common support for the
phenomenon in the therapeutic setting, scientists rest their
rejection of recovery of repressed memories on the absence of
confirming laboratory results. Compare Pope & Hudson, supra at
122-25 (criticizing methodology of clinical studies) with Herman
& Schatzow, Recovery and Verification of Memories of Childhood
Sexual Trauma, 1987 Psychoanalytic Psychol. 4(1), 11-13
(reporting high incidence of repression in group therapy study).
Of course, ethically, no complete laboratory study could ever be
completed on repression of events as traumatic as sexual abuse.
See Sleeping Memories, supra at 133-34; Memory, supra at 80-82.
According to the theory of repression, when a person
experiences a particularly traumatic event that is unacceptable
to the person's conscious existence, the person may repress the
memory of the trauma. E.g., Sleeping Memories, supra at 132-33.
Although the memory is not permanently "forgotten," it is
unavailable to the person's conscious thought process. Sleeping
Memories, supra at 132. True repression or traumatic amnesia
rendering a person unable to remember any part of a traumatic
event are distinguished from ordinary forgetting, see Loftus et
al., Memories of Childhood Abuse: Remembering and Repressing, 18
Psychol. Women Q. 67, 68-69, 82 n.1 (1994) [hereinafter Memories
of Childhood Abuse], motivated forgetting, Pope & Hudson, supra
at 122, incomplete memory, Williams, supra at 1168, and
psychogenic amnesia, Loftus & Ketcham, supra at 215-16. Cf.
Terr, Chowchilla Revisited: The Effects of Psychic Trauma Four
Years After a School-Bus Kidnapping, 140 Am. J. Psychiatry 1543,
1545-47 (1983).
Proponents of widespread repression and recovery of memories
of sexual abuse consider several facts to support the phenomenon:
the existence of psychogenic amnesia and post-traumatic stress
disorder, clinical studies in support of the phenomenon, and the
prevalence of patients reporting recovery of repressed memories.
See Long-Buried Memories, supra at 600-03; Memories of Childhood
Abuse, supra at 69-70. Discrete memory repression is a different
physiological phenomenon from psychogenic amnesia, where the
victim or witness of an extremely traumatic event temporarily may
forget ordinary personal details, such as name and address, in
addition to the details of the traumatic event. Loftus &
Ketcham, supra at 215-16. The typical symptoms of post-traumatic
stress disorder also do not support fully the notion of complete
memory repression. See, e.g., Kinzie, Posttraumatic Effects and
Their Treatment among Southeast Asian Refugees, in International
Handbook of Traumatic Stress Syndromes 311, 314-15, 318 (J.
Wilson & B. Raphael eds., 1993) (intrusive memories, recurrent
nightmares, and avoidance of memories common symptoms in
Southeast Asian refugees with post-traumatic stress disorder);
cf. Pynoos & Nader, Children's Memory and Proximity to Violence,
28 J. Am. Acad. Child Adolescent Psychiatry 236, 239-41 (1989)
(discussing memory disturbance and recall of children with post-
traumatic stress disorder differing in severity according to
proximity to violence, among other factors).
The clinical studies that support the prevalence of recovery
of previously completely repressed memories are subject to some
criticism in methodology, as the trial court noted in the instant
cases. See, e.g., Pope & Hudson, supra at 122-25. For example,
in one study, researchers reported that approximately 59% of
subjects -- patients who were referred by their therapists as
having histories of childhood sexual abuse -- answered
affirmatively when asked: "During the period of time between
when the first forced sexual experience happened and your
eighteenth birthday was there ever a time when you could not
remember the forced sexual experience?" Briere & Conte, Self-
Reported Amnesia for Abuse in Adults Molested as Children, 6 J.
Traumatic Stress 21, 23-24 (1993). Reviewers raised the
following methodological concerns: the subjects were "recruited"
by their therapists; it is unclear whether the reported
underlying events were confirmed in any way; it is unclear
whether the events were "sufficiently traumatic" to have been
remembered at every moment; and an affirmative answer to the
question conveys insufficient information to conclude that full
repression has actually occurred. Pope & Hudson, supra at 123.
Finally, the reviewers noted the possibility of suggestion in
therapy:
All [subjects] were in treatment with therapists who
were part of an "informal sexual abuse treatment
referral network[,"] and who, therefore, may have
communicated to their patients, explicitly or
implicitly, that repression of traumatic experiences
was to be expected. With this potential degree of
expectation, and with therapists choosing which
subjects would receive the questionnaire, it would not
be surprising if many subjects answered "yes" to a
question that asked if there was ever a time when they
could not remember an abuse experience.
Pope & Hudson, supra at 123; see Sleeping Memories, supra at 134.
Other studies are subject to similar complaints. See Pope &
Hudson, supra at 123-24 (reporting similar methodological
limitations in the study reported in Memories of Childhood Abuse,
supra); Memories of Childhood Abuse, supra at 71-73 (citing
methodological difficulties with previous studies).
Proponents of the phenomenon of recovering repressed
memories also rely on the very existence of a large number of
patients reporting recovery of repressed memories as validation
of the phenomenon. Cf. Loftus & Ketcham, supra at 209 ("`Why
would anyone invent a story that involved so much anguish and
suffering?'").
The stories the patients tell, they argue, are too
vivid and too painful to be the product of imagination
or fabrication. The emotional troubles these patients
have as adults are consistent with the kind of abuse
that they remember, and would not be so consistent and
so intense in response to a fabricated memory.
Long-Buried Memories, supra at 603 (footnote omitted). Apart
from its circularity, the argument lends more support to the
concept of suggestibility of memory than to the phenomenon of
repression. Cf. The Reality of Repressed Memories, supra at 525;
Nelson & Simpson, supra at 126-27.
The scientific literature supports the conclusion that, in
general, people remember traumatic events well. See, e.g.,
Malmquist, Children Who Witness Parental Murder: Posttraumatic
Aspects, 25 J. Am. Acad. Child Psychiatry 320, 324 (1986)
("Recollection of vivid memories of the event were present in all
16 of the children" studied). In fact, experiencing vivid,
intrusive thoughts of the event seems to be a more common memory
disturbance resulting from severe trauma than repression. See,
e.g., Wilkinson, Aftermath of a Disaster: The Collapse of the
Hyatt Regency Hotel Skywalks, 140 Am. J. Psychiatry 1134, 1137
(1983) (repeated recollection of event most frequent symptom
among those experiencing collapse). In a study examining the
effects on a group of children kidnapped on their school bus, for
example, examiners found the children to have intact and detailed
memories of the event, although they did observe some memory
disturbance. Terr, supra at 1545-46; see also Weine et al.,
Psychiatric Consequences of "Ethnic Cleansing": Clinical
Assessments and Trauma Testimonies of Newly Resettled Bosnian
Refugees, 152 Am. J. Psychiatry 536, 540-41 (1995) (many
survivors' lives "inundated with traumatic images," while in
others, "cognitive overload of the genocidal traumatic experience
creates an incomplete perception and registration of the
traumatic event").
There have been some cases where repression and later
retrieval of a memory of childhood sexual abuse have been claimed
to be corroborated from other sources, thus enhancing the
credibility of the phenomenon and increasing its acceptance with
some therapists. See Sleeping Memories, supra at 134. A recent
review of the literature, however, caused the reviewer to note
that "despite over sixty years of research involving numerous
approaches by many thoughtful and clever investigators, at the
present time there is no controlled laboratory evidence
supporting the concept of repression." Holmes, supra at 96; see
Taub, supra at 188. The scientific community is extremely
divided, at best, on the issue of recovery of completely
repressed memories.
A degree of scientific divergence of opinion is indeed
inevitable, but the degree of divergence surrounding
[recovery of repressed memories] is fundamental and
goes to the very validity of the process itself. This
kind and degree of divergence is notably absent in
other areas of scientific evidence generally deemed
admissible.
Reed v. State, 391 A.2d 364, 376 (Md. 1978). We cannot say that
the phenomenon has gained general acceptance in the psychological
community. Cf. Daubert, 509 U.S. at 594.
We turn to the next consideration, whether the phenomenon
may be empirically tested. As noted in the foregoing discussion,
it would be impossible, ethically, to test repression and
recovery of memory of severely traumatic events in a laboratory
setting. See Sleeping Memories, supra at 134. Almost all
studies of the phenomenon to date, accordingly, involve subjects
in the clinical or therapeutic context. See, e.g., Briere &
Conte, supra at 23-24; Herman & Schatzow, supra at 2-4. Further,
the studies of memory of childhood sexual abuse involve
retrospective self-reporting of prior, typically uncorroborated,
sexual abuse. See, e.g., Briere & Conte, supra at 23-24
(describing participant description of childhood abuse); Herman &
Schatzow, supra at 2-3, 10 (reporting that participants were able
to obtain confirmation of earlier abuse). One exception is the
study by Linda Meyer Williams, who interviewed 129 women who had
been treated for sexual abuse in a metropolitan hospital as
children approximately seventeen years earlier. Williams, supra
at 1169. Of these, forty-nine women, or 38% of the sample, did
not report the childhood abuse to the interviewer. Williams,
supra at 1170. Williams states that "[a]lthough some of these
women may have simply decided not to tell the interviewers about
the abuse, additional findings discussed later suggest that the
majority of these women actually did not remember the abuse."
Williams, supra at 1170. The "findings" to which she refers
include the relative openness of the subjects in answering other
personal questions, including other incidents of sexual,
physical, or emotional abuse. Williams, supra at 1170. Another
study has concluded that nonreporting of remembered abuse might
be explained by "embarrassment, a wish to protect parents, a
sense of having deserved the abuse, a conscious wish to forget
the past, and a lack of rapport with the interviewer." Pope &
Hudson, supra at 124 (quotation omitted). Considering this
similar study, Pope and Hudson concluded that it would be
"hazardous to conclude that Williams' 49 `non-reporters' actually
had amnesia." Pope & Hudson, supra at 124. Although empirical
testing is difficult, and subject to some methodological
complaints, it is possible.
It is difficult to estimate the number or rate of recovered
memories that are "false." Cf. Daubert, 509 U.S. at 594.
Although some individuals who have recovered memories have since
withdrawn their claims, Nelson & Simpson, supra at 126-28, there
is no way to track the percentage of such false memories,
especially when the phenomenon is still subject to such vigorous
debate. Cf. Gardner, supra at 661-64.
The remaining factors of the reliability inquiry relate to
Laura's and Sarah's memories themselves. The aspects of the
memories into which we inquire are, in part, factual; we
therefore defer to the facts found by the trial court in this
part of the inquiry. See, e.g., State v. Carroll, 138 N.H. 687,
696, 645 A.2d 82, 87 (1994). The charged acts in State v.
Hungerford rely on Laura's memories of Hungerford inserting a gun
into her vagina in 1990 and of him raping her two days before her
wedding in 1991 when she was twenty-two and twenty-three years
old, respectively. She began therapy in September 1992 with no
memories of the assaults and reported them to the police in March
1993. The length of time between the event and remembering was
approximately one and a half years, although the period was
longer for the uncharged events. Laura's therapist, Ms. Jones,
testified to what she perceived as corroborative evidence: the
similar claims of Laura's sister, Amy; the remarks of Laura's
mother regarding Hungerford's sexual habits with her and his
conduct in the household when the girls were children; and the
remarks of staff members at the therapy center where Hungerford
was attending therapy.
According to the indictments, the charged acts in State v.
Morahan occurred between December 1987 and March 1988, just
before Sarah began psychological counseling in May 1988. She was
thirteen years old and in the seventh grade at this time. Sarah
recovered her memory of the assault in 1991 and reported it to
authorities in 1993. There was no testimony at the admissibility
hearing about the details of the assault, and we discern no other
evidence tending to corroborate or not to corroborate the event.
In State v. Hungerford, Laura's age and the relatively small
period of time between the two charged acts and her recovery of
memory about them bear in favor of their reliability. Similarly,
in State v. Morahan, Sarah's age and the relatively short period
of time during which she had no memory of the assault bear
favorably on the memory's reliability. Children who are very
young are perceived to have incomplete narrative memories even of
traumatic events, see Pezdek & Roe, supra at 375-76; further,
scientists generally agree that individuals are almost completely
amnestic for the first few years of their own life, see L. Terr,
Unchained Memories: True Stories of Traumatic Memories, Lost and
Found 226 (1994). See also Briere & Conte, supra at 28; Call for
Limitations, supra at 498-99. Memory is subject to the influence
of innumerable external influences during the "retention" stage
of remembering, and thus a shorter period of time between the
event and recall offers less opportunity for suggestion. See,
e.g., Hall et al., supra at 132-40.
On the presence or absence of objective, verifiable
corroborative evidence, the trial court found that "[i]n neither
of these cases was there any corroboration or attempt to
corroborate the abuse," although the court did find that both
complainants demonstrated "serious psychological disturbances."
These findings are supported by the record. There was some
witness testimony that might have borne on the question of
objective corroborative evidence. For example, the corroborative
evidence relied upon by Ms. Jones in State v. Hungerford is
somewhat convincing. The accusations of Laura's sister are of
limited corroborative value. Compare Pope & Hudson, supra at 123
(alleged abuse of sibling of questionable corroborative value)
with Herman & Schatzow, supra at 10-11 (evaluating claim of
sibling abuse as corroborative evidence). Ms. Jones' evaluation
of the concerns of Hungerford's therapy center staff offer some
additional enlightenment, as do Hungerford's wife's reports.
They are not, however, directly corroborative. Cf. Meiers-Post,
427 N.W.2d at 609-10 (requiring objective manifested injury and
verifiable corroborative evidence, such as an admission by the
perpetrator, before tolling statute of limitations). We defer to
the trial court's finding that there was no corroboration of the
alleged acts.
We next address the circumstances attendant to the recovery
of the memories in the two cases, about which the trial court
made extensive findings. In State v. Hungerford, Laura was
engaged in therapy specifically focused on the issue of sexual
abuse. Although on appeal the State attempts to characterize the
therapy as being designed to help Laura "understand and cope with
her inner feelings," the trial court's conclusion that the focus
was recovery or retrieval of memories of sexual abuse is amply
supported by the record. Sarah, too, in State v. Morahan, was
engaged in therapy. Even if we were to agree with the State that
Sarah's therapy was not specifically aimed at recovering memories
and that she did not recover her memories during any particular
therapy session, we would nonetheless defer to the trial court's
conclusion that her memories were recovered attendant to therapy.
As the trial court found, "it is difficult to distinguish between
Sarah's therapy and real life, because it appears . . . that
psychotherapy permeated the everyday structure of her school and
social life." In its review of the circumstances attendant to
the recovery of memories in both cases, the trial court found
that the psychotherapy utilized by Ms. Jones and by the
DeSisto School to "retrieve" Laura's and Sarah's
memories of abuse, thoroughly and systematically
violated the guidelines and standards of the practice
of psychotherapy. Furthermore, the Court finds that
the techniques used in the course of psychotherapy in
both cases were highly suggestive.
Because the memories in the instant cases were recovered
during therapy or while the witness was engaged in therapy, we
ordinarily would proceed to examine more closely the
circumstances of the therapeutic environment, as discussed
earlier. Our review of the memories without regard to the
suggestiveness of the therapeutic process, however, convinces us
that they do not pass our test of reliability. The phenomenon of
recovery of repressed memories has not yet reached the point
where we may perceive these particular recovered memories as
reliable. "There probably will be a day, as there has been
regarding the forensic use of DNA, when courts can be given
reliable, competent information on the issue of repressed memory.
That day is not here." Ault, 637 N.E.2d at 874-75 (Moyer, C.J.,
dissenting). The indicia of reliability present in the
particular memories in these cases do not rise to such a level
that they overcome the divisive state of the scientific debate on
the issue.
In a particular case, the court may be satisfied with the
state of the scientific debate on the question of recovering
repressed memories, and with the general indicators of
reliability surrounding a particular recovered memory. If that
memory is recovered in the context of therapy, however, we still
will be greatly concerned with the suggestiveness of the
therapeutic process, and its ability to skew memory and one's
confidence in memory. See Loftus & Ketcham, supra at 150-73.
Because we need not engage in that inquiry in the instant cases,
however, we shall not.
Affirmed and remanded.
HORTON, J., did not sit; the others concurred.