Considerations for experts in assessing the credibility of recovered memories of child sexual abuse: The importance of maintaining a case-specific focus.

In this article, the authors argue that a variety of psychological factors stand in the way of providing expert advice to the courts in terms of assessing the credibility of a complainant's account of sexual abuse when there is a significant delay in reporting. These include difficulties in assessing (a) the complainant's account of how he or she claims to have remembered or forgotten the abuse, (b) whether (and how) the claim of abuse originated within a therapeutic setting, and (c) the difficulty of generalizing from empirical evidence. It is argued that all of these issues can be more easily avoided if experts maintain a case-specific focus. In this article, the authors review both the psychological and legal controversies surrounding the false-recovered memory debate, discuss how courts approach the admissibility and use of recovered memory testimony, and conclude that expert witnesses should carefully consider the above points before drawing general conclusions from the literature and applying them to individual cases. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The admissibility of expert testimony based upon clinical judgment and scientific research.

In reading the American Psychological Association Final Report on the Investigation of Memories of Childhood Abuse (J. L. Alpert et al, see record 2000-13581-002), the authors recognized that one of its most important implications for the law is whether and to what extent clinical testimony on recovered repressed memories of childhood abuse should be admitted into evidence in a court of law. A review of the legal literature suggested that the law did not have a satisfactory answer to the question, and that any proposed answer would have to apply to all clinical and scientific expert testimony if it is to accepted and used by the courts. This article uses examples that are far beyond the scope of the Working Group's report, and provides a suggested legal framework for courts to use when addressing both types of proffered testimony across the legal spectrum. It is suggested that the solution proposed is most poignantly illustrated in the case of claims of recovered repressed memories of childhood sexual abuse. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Developmental reversals in false memory: A review of data and theory.

Can susceptibility to false memory and suggestion increase dramatically with age? The authors review the theoretical and empirical literatures on this counterintuitive possibility. Until recently, the well-documented pattern was that susceptibility to memory distortion had been found to decline between early childhood and young adulthood. That pattern is the centerpiece of much expert testimony in legal cases involving child witnesses and victims. During the past 5 years, however, several experiments have been published that test fuzzy-trace theory's prediction that some of the most powerful forms of false memory in adults will be greatly attenuated in children. Those experiments show that in some common domains of experience, in which false memories are rooted in meaning connections among events, age increases in false memory are the rule and are sometimes accompanied by net declines in the accuracy of memory. As these experiments are strongly theory-driven, they have established that developmental improvements in the formation of meaning connections are necessary and sufficient to produce age increases in false memory. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

"He Said, She Said": A Psychological Perspective on Historical Memory Evidence in the Courtroom.

Canadian courts are hearing an increasing number of allegations based on historical incidents. In most cases, complainants or witnesses report remembering the alleged offense continuously since its occurrence. In other cases (e.g., R. v Fran?ois, 1994), a witness reports that his/her memory was "recovered" after being blocked from conscious awareness for a lengthy period. Both continuous and delayed historical memory cases pose difficulties for legal decision-makers given the typical absence of corroborating evidence. Without clear guidelines for the assessment of allegations based on historical incidents, judges and juries may rely upon questionable assumptions about memory to assess the credibility of the allegation. A large body of psychological research on applied memory is relevant to the understanding and evaluation of such historical memory evidence. A review of this research indicates that the central details of most distant emotional/criminal experiences are recalled vividly and often accurately over time. However, some level of peripheral distortion can be expected for such events. In addition, amnesia for traumatic events may occur in rare cases. Conversely, completely mistaken memories for historical experiences also can occur. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Hypnotic memory enhancement of witnesses: Does it work?

Hypnosis is currently being used extensively by the police and other investigative agencies to "refresh" the memory of witnesses to a crime. The present author reviews the literature and discusses the issue of whether hypnosis can in fact enhance memory. In contrast to the myriad of anecdotal reports extolling the virtues of hypnosis for this purpose, controlled laboratory studies have consistently failed to demonstrate any hypnotic memory improvement. Although the relevancy of these laboratory studies may be questioned because they used verbal, frequently nonmeaningful stimuli in a low arousal environment, several recent studies that have used more forensically relevant, arousal-provoking stimuli persist in showing no hypnosis advantage. Since there is no clear documentation that hypnosis can improve memory, and since the courts have become increasingly reluctant to accept the testimony of witnesses who have undergone hypnosis because of the problem of suggestibility, several nonhypnotic procedures of memory enhancement are considered. (62 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Forensic psychological testimony: Is the courtroom door now locked and barred?

Beginning with the Supreme Court of Canada's decision in R v. Marquard (1993), it has become increasingly more difficult for lawyers to have proposed psychological testimony admitted into evidence at trial. By reviewing several recent cases, the author shows how courts are applying legal rules of admissibility in cases where expert psychological evidence is being proffered. Drawing on the review of case law, the author provides useful recommendations that will help psychologists ensure that—when appropriate—their testimony will be held admissible by courts. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The effects of clinical and scientific expert testimony on juror decision making in capital sentencing.

The Supreme Court and many state courts have assumed that jurors are capable of differentiating less accurate clinical opinion expert testimony from expert testimony based on more sound scientific footing and of appropriately weighing these two types of testimony in their decisions. Persuasion and jury decision-making research, however, both suggest that this assumption is dubious. The authors investigated whether mock jurors are more influenced by clinical opinion expert testimony or actuarial expert testimony. Results suggested that jurors are more influenced by clinical opinion expert testimony than by actuarial expert testimony and that this preference for clinical opinion expert testimony remains even after the presentation of adversary procedures. Limited empirical evidence was found for the notion that various types of adversary procedures will have a differential impact on the influence of expert testimony on juror decisions. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

What's wrong with believing in repression?: A review for legal professionals.

Some courts in recent years have tarnished their credibility by willingly and blindly adopting the theory of repressed memory. Such acceptance can destroy the reputations of falsely accused individuals, and, by failing to pay due attention to scientific evidence, gives credence to pseudoscience and demeans the scientific method. This paper was written to inform judges and attorneys about the relevant evidence, which shows that: (a) the concepts of repressed and recovered memory are not generally accepted in the psychological and psychiatric community; (b) the studies cited to support these concepts reveal significant flaws; (c) much empirical evidence has been accumulated against the theory of repression; (d) the studies using the best methodology offer the least support for the repression hypothesis; and (e) there is no evidence that recovered memories accurately reveal the specifics of long-ago events. Repressed- and recovered-memory theory is not supported by science. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The Second Generation of Mental Health Courts.

Mental health courts (MHCs) generally began to appear in 1997. Today, more than 80 courts exist in the United States. In the present article, the authors argue that the 2nd generation of MHCs has arrived. The authors compare 8 previously described courts (P. A. Griffin, H. J. Steadman, & J. Petrila, 2002) with 7 newer courts that have not been previously described in the psycholegal literature. The authors identify 4 dimensions distinguishing 1st- from 2nd-generation courts: (a) the acceptance of felony versus misdemeanant defendants, (b) pre- versus postadjudication models, (c) the use of jail as a sanction, and (c) the type of court supervision. The 4 dimensions are interdependent in that the acceptance of more felony cases contributes to the rise in processing cases postadjudication, using jail as a sanction and more intensive supervision. Potential reasons for the evolution of a 2nd generation are discussed. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Scientific study of witness memory: Implications for public and legal policy.

The legal system relies heavily on human memory. Crime investigations, criminal trials, and many civil trials depend on memory to reconstruct critical events from the past. Over the last 20 years or so, psychologists have developed a specific research literature on witness testimony. This research has been directed primarily at eyewitnesses, such as victims or bystanders to a criminal event. This issue of Psychology, Public Policy, and Law is devoted to the potential contributions of the scientific study of witness testimony to public policy and legal issues. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The offset of childhood amnesia: Memory for events that occurred before age 3.

Adult memory for the events surrounding the birth of a sibling was examined in 69 adults. The authors identified a steep offset for childhood amnesia for this event before the child reaches age 2? years. The authors also examined the accuracy of information recalled. Although the majority of the answers were accurate, false memories were a consistent feature of the data. Alternative explanations of the authors' data were considered by examining the amount of information an additional 57 adults had about a family birth for which they could have no memory. The pattern of results did not support the view that participants might be unable to differentiate between memories and knowledge about the event. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Science, common sense, and the determination of mental capacity.

In 1993, when the Supreme Court decided Daubert and created the modern standard for the admissibility of scientific evidence, it almost certainly did not consider its possible effect on evidentiary hearings in probate courts even though such courts routinely admit expert testimony in will contests and guardianship hearings. Probate courts also admit testimony of lay witnesses who express their opinion as to the mental capacity of the individual in question. Yet both expert and lay witnesses are only "fact bringers" and not "fact interpreters" because the ultimate question of capacity is legal, not factual. Because the determination of legal capacity is made by the judge or jury, the role of experts in capacity trials is not fundamentally different than that of lay persons. The limited role of the expert suggests that probate courts should allow great latitude in the admission of expert testimony because the fact finders must ultimately rely on their own amorphous sense of "legal capacity." (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The controversy over recovered memories.

Comments on the article by J. L. Alpert et al (see record 2000-13581-002), which presented the report of the American Psychological Association Working Group on Investigation of Memories of Childhood Abuse. The authors discuss 4 issues in this commentary: (a) the assumptions and evidence used to support the case for dissociated and recovered memories (noting that the evidence is weak and the assumptions internally inconsistent as well as contradictory to a mass of experimental evidence about human memory); (b) the process by which dissociated memories are said to be recovered (events that were originally very poorly encoded as fragmentary, kinesthetic memories cannot be recovered with accuracy later); (c) 4 bodies of relevant, but neglected, research on human memory (reminiscence and hypermnesia, effectiveness of retrieval cues, priming in implicit memory tests, and intentional forgetting); and (d) the issue of appropriate research strategies to gain evidence on the thorny issues of long-delayed retrieval of information. Current evidence does not support the conclusion that memories of repeated abuse are dissociated and recovered with accuracy years later. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Recollection rejection: False-memory editing in children and adults.

Mechanisms for editing false events out of memory reports have fundamental implications for theories of false memory and for best practice in applied domains in which false reports must be minimized (e.g., forensic psychological interviews, sworn testimony). A mechanism posited in fuzzy-trace theory, recollection rejection, is considered. A process analysis of false-memory editing is presented, which assumes that false-but-gist-consistent events (e.g., the word SOFA, when the word COUCH was experienced) sometimes cue the retrieval of verbatim traces of the corresponding true events (COUCH), generating mismatches that counteract the high familiarity of false-but-gist-consistent events. Empirical support comes from 2 qualitative phenomena: recollective suppression of semantic false memory and inverted-U relations between retrieval time and semantic false memory. Further support comes from 2 quantitative methodologies: conjoint recognition and receiver operating characteristics. The analysis also predicts a novel false-memory phenomenon (erroneous recollection rejection), in which true events are inappropriately edited out of memory reports. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Trivial persuasion in the courtroom: The power of (a few) minor details.

Investigated the influence of trivial testimonial detail on judgments of 424 undergraduates who served as mock jurors. Ss read a summary of a court case involving robbery and murder. In Experiment 1, detailed testimony influenced judgments of guilt, even when the detail was unrelated to the culprit. In Experiment 2, detailed testimony was especially powerful when an opposing witness testified that she could not remember the trivial details. Subsequent analyses suggest that the impact of detailed testimony on guilt judgments is mediated by inferences about the eyewitnesses. When eyewitnesses provided more detail, they were generally judged to be more credible, to have a better memory for the culprit's face and for details, and to have paid more attention to the culprit. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

"Memory work" and recovered memories of childhood sexual abuse: Scientific evidence and public, professional, and personal issues.

The authors review and critically evaluate scientific evidence regarding recovered memories of childhood sexual abuse and discuss the implications of this evidence for professional psychology, public policy, and the law. The discussion focuses primarily on abuse memories recovered through "memory work" by people who previously believed that they were not sexually abused as children. The authors argue that memory work can yield both veridical memories and illusory memories or false beliefs, and they discuss factors that could be used to weigh the credibility of allegations based on recovered memories. The article offers tentative recommendations regarding public education, training and certification of psychotherapists, guidelines for trauma-oriented psychotherapy, research initiatives, legislative actions, and legal proceedings. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

The admissibility of behavioral science information in criminal trials: From primitivism to Daubert to voice.

This article advances a 5-stage developmental view of evidentiary law's approach to the admissibility of behavioral science information in the criminal courts. The 1st, most primitive, developmental stage—often evident in cases involving testimony based on traditional psychiatric diagnoses—focuses on the credentials of the expert. The 2nd stage looks at whether other experts share the theory or methodology of the proffered expert (a stance encapsulated in Frye v. United States' general acceptance test). The 3rd stage of evidentiary development is more interested in the validity of the theory or methodology than in who, or how many, endorse it (a position reflected in Daubert ). The 4th stage is concerned with the extent to which the behavioral science information adds to the validity of the legal decision to be made (a stance related to, but more demanding than, Rule 702's helpfulness standard). The final (highest developmental?) stage recognizes that, when scientific proof of validity is unobtainable, there are still normative reasons for allowing consensus-based testimony which gives criminal defendants a voice in the process. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Are the memories of older adults positively biased?

There is disagreement in the literature about whether a "positivity effect" in memory performance exists in older adults. To assess the generalizability of the effect, the authors examined memory for autobiographical, picture, and word information in a group of younger (17-29 years old) and older (60-84 years old) adults. For the autobiographical memory task, the authors asked participants to produce 4 positive, 4 negative, and 4 neutral recent autobiographical memories and to recall these a week later. For the picture and word tasks, participants studied photos or words of different valences (positive, negative, neutral) and later remembered them on a free-recall test. The authors found significant correlations in memory performance, across task material, for recall of both positive and neutral valence autobiographical events, pictures, and words. When the authors examined accurate memories, they failed to find consistent evidence, across the different types of material, of a positivity effect in either age group. However, the false memory findings offer more consistent support for a positivity effect in older adults. During recall of all 3 types of material, older participants recalled more false positive than false negative memories. (PsycINFO Database Record (c) 2010 APA, all rights reserved)     

Cognitive mediation of inconsistency discounting.

Conducted 2 experiments to examine the effects of inconsistency and credibility information in a complex, multiple source, multiple communication criminal trial setting. The source of the inconsistent testimony was low in credibility. The testimony structure was manipulated such that association of the sources with the content of their testimony was facilitated (high person focus) or disrupted (low person focus). Ss participated as mock jurors who read testimony, rendered verdicts, and attempted to recall the testimony. Exp I, conducted with 96 paid Ss, demonstrated that discounting of inconsistent testimony was likely under conditions of high but not low person focus. Exp II, conducted with 48 undergraduates, examined the relation between jurors' spontaneous cognitive reactions at encoding and the jurors' verdicts. Only high person focus jurors discounted the inconsistent testimony at encoding. Results suggest that discounting occurs in the context of jurors generating an integrated cognitive representation of the trial events that is a function of both the actual testimony items and jurors' own spontaneous inferences. Several other information-processing consequences, such as the organization of recall and memory for consistent and inconsistent testimony items, were also examined. These data are considered in terms of their implications for recent cognitive elaboration models and models of juror decision making. (50 ref) (PsycINFO Database Record (c) 2010 APA, all rights reserved)