“Repressed memories,” Daubert, and scientific evidence

The Myth of Repressed Memory by Dr. Elizabeth Loftus and Katherine Ketcham makes not only for fascinating, but in fact for outright startling reading. On the one hand, one has to wonder about how justice could possibly be served in an exceedingly liberal judicial environment where witness testimony is capable of securing a guilty verdict absent any other corroborating evidence whatsoever. Sure, it is the situation of “she said, he said” that is so prevalent in contemporary sexual abuse cases that are often tried years, and sometimes many years, after the events took place. In a case discussed in The Myth of Repressed Memory, however, Eileen Franklin’s testimony was not even that of a repressed victim – it was a testimony of an adult woman suddenly recalling (and under rather unclear circumstances) in minute details what she supposedly witnessed as an eight year old: the rape and murder of her best friend, Susan Nason, by Eileen’s father. It is astounding that the credibility of Eileen alone was deemed acceptably sufficient to convince a jury beyond a reasonable doubt of the guilt of the defendant who was her own father, and that all her testimony was supplanted with was a characterization of her father as an evil man, possibly a pedophile – accusations that were never required to be substantiated.

It is even more shocking to see how, in other cases, clearly manipulated children and/or their mothers tell fantastic stories of satanic cults and of sadistic sexual abuse, and that older family members actually get convicted on that basis alone, once again absent any physical evidence whatsoever. Prosecutors probably argued that the grotesque stories were a result of trauma the victims survived – but it is beyond my comprehension how such cases might be considered different from the Salem Witch Hunt trials. Is the U.S. judicial system of the 21^st c. at risk of reverting to the methods and practices of the Dark Ages?

Another issue touched upon, but not really discussed by Loftus and Ketcham, concerns the professional responsibility of “therapists” who use objectionable methods to first convince their patients that all their problems do, in fact, stem from something horrible that has happened to them in the past, and then push them into mental distress and drug abuse by pressuring them into dwelling extensively and often exclusively on those issues. Some of the most frequently quoted “therapeutic” methods consist of trying to “recall” or at least “imagine” the horrors the patients were supposed to have survived. Even if the testimony of such a misguided patient with “memories” that were often arrived at under hypnosis or suggestion is subsequently dismissed by the court or suppressed as unconvincing and inherently inadmissible, are therapists ever subjected to disciplinary proceedings for breach of any standard of professional ethics? What about those who, as the book describes, take on a patient with an eating disorder (a woman who basically is trying to lose weight, like Lynn), and drive her by such “therapy” into a mental institution and into multiple suicide attempts – does anything ever happen to such “therapists”? It does not seem to be the case, even if other therapists and psychiatrists may recognize the damage done and spend years trying to bring a victim of such “healing” back on her feet. The truly scary part is that some of the most destructive therapists discussed in The Myth of Repressed Memory are not only professionally licensed, but even hold advanced degrees, thus invoking their elevated professional qualifications as a kind of ultimate authority over their initially doubting patient. It is fascinating to observe how much the techniques of alienation, pressure, and group loyalty, not to mention brainwash and rampant drug abuse, are similar to the methods used by some of the most notorious religious cults for reeling in and holding on to their followers. The power aspect is just one of the benefits to both cult leaders and some therapists. Another one is money. Turning a patient into a “lifer” in psychotherapy secures, after all, a constant stream of income – and one whose life has been destroyed by harmful “therapy” is, of course, unceremoniously dumped as soon as she turns out to be unable to continue paying her bills (as the story of Lynn exemplifies).

To answer the rhetorical question of Ed Frischholz quoted by Dr. Elizabeth Loftus, “What do you suppose is going on out there?” – one needs to ask if psychotherapy is not, in fact, turning into a pseudo-scientific cult based on mere leaps of faith and mass hysteria.

At first glance, The Myth of Repressed Memory has precious little in common with Daubert et ux. v.Merrell Dow Pharmaceuticals, Inc. This case decided by the U.S. Supreme Court deals with personal injury (the influence of prescription medication on birth defects) and with technicalities under the Federal Rules of Evidence. The opinion of the court was that “The Federal Rules of Evidence, not Frye, provide the standard for admitting expert scientific testimony in a federal trial.” That part was uncontested. Subsequently, though, the court launches into “general observations” of a rather philosophical nature, trying to present its views on the nature of scientific method and knowledge. As far as it is publicly known, none of the Supreme Court Justices in this case was a trained scientist – hence the dissent of Chief Justice Rehnquist is all the more understandable, especially given that the “general observations” have no direct bearing on the case at hand, once the final ruling rendered such considerations moot in the first place.

The bulk of the Supreme Court decision in Daubert seems to focus on the nature of fact and knowledge. And yet, unlikely as it may sound, the cases described by Loftus exemplify what happens when courts take at face value the rather outlandish instigations of the majority opinion that, one, “We are confident that federal judges possess the capacity to undertake this review” (“whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue” )(592-593), and, two, that jurors are deemed capable of distinguishing science from pseudo-science (596). It is a known fact that many if not most jurors, for a variety of reasons rooted in the jury selection process, often do not come from the most educated strata of society, hence their judgment in matters scientific will be limited to their impression of the expert witness’s credentials and how persuasively (read: categorically) his claims will be presented. Jurors’ opinion will also be swayed by personal misconceptions, prejudices, empathy, etc. As for the judge, his ability to consider what is valid scientific method and what is not will in most cases be equally limited to the credentials of the expert witness. This is so because even the experts in the field differ substantially in their opinions about what constitutes acceptable methodology and how far conclusions drawn from it may reach. The story of Eileen Franklin described by Loftus is a clear case in point: the two experts in the matter have very different conceptions of memory processes, and one considers the research of the other either not rigorous or not relevant. If Dr. Elizabeth Loftus, a specialist in her field, considers the argument of Dr. Lenore Terr, another specialist, as based on leaps of faith and not on rigorous science, how can a judge with virtually no knowledge of the field base himself on reliable authority when deciding what is and what is not appropriate scientific method? The question of memory may be decided based on the beliefs of both the jurors and the court – regardless of expert opinions, they will believe what they already had believed or wanted to believe before, and use the expert’s arguments primarily if not exclusively to corroborate those very same personal opinions. But what in a case that considers, as in Daubert, medical and pharmaceutical information? What will the jurors understand from expert mumbo-jumbo describing biochemical molecular structure and advanced regression analysis and reanalysis of previously published and assessed data? In personal injury or medical malpractice cases, each side regularly presents its own expert witnesses – does not that fact alone suggest that, for the purposes of civil as well as criminal justice, scientific truth can be pretty much whatever we want it to be, because there will always be some published or unpublished research supporting either point of view? And how will jurors be able to weigh the credibility of evidence on either side? That question, however, touches on an altogether different subject: on the comparative merits of the common law system of justice assigning the role of finder of fact to a jury of laymen assembled pro hac vice.

The case of Eileen Franklin demonstrates how a non-scientist judge vested with authority to decide what is and what is not a scientific method does, in fact, admit evidence that has no basis whatsoever in scientific fact, and that results in a criminal conviction based solely upon - possibly imaginary - “recovered memories” obtained through hypnosis, suggestive therapy, and manipulations of the patient’s mind by a psychotherapist. How much farther away from verifiable science can “admissible scientific evidence” possibly get?