Supplement to Chapter 18
Copyright © 2001 DH Kaye
An early case on the admissibility of expert testimony about recovered memories is Shahzade v. Gregory, 923 F. Supp. 286 (D. Mass. 1996). Ann Shahzade sued her cousin, George Gregory, alleging episodes of "non-consensual sexual touching" from 1940-45, while she was between the ages of 12 and 17. She recovered her memory of these episodes during psychotherapy in 1990. Following a pretrial hearing, the court held the proposed testimony admissible under Daubert. The opinion relies on the testimony of Dr. Bessel van der Kolk, then an associate professor of psychiatry at the Harvard Medical School, who "discussed in detail several studies" that showed that only about 1/3 of victims of sexual abuse remember all the details, and 1/3 remember nothing. Van der Kolk further testified that the majority of clinical psychiatrists recognize the theory of repressed memory and the major detractors are "psychologists who do not treat traumatized patients." Defendant's expert, a clinical psychiatrist, stated that the 52 studies on repressed memories that he examined were methodologically deficient. The court also relied on the inclusion of the condition of "Dissociative Amnesia" in the American Psychiatrist Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV, 1994).
In Borawick v. Shay, 68 F.3d 597 (2d Cir. 1995), the district court prohibited a plaintiff from testifying based on hypnotically-refreshed recollections of sexual abuse by her aunt and uncle some 20 years earlier. The Second Circuit reasoned that the ruling, which treated hypnotically-induced testimony as per se inadmissible, was "not consistent" with Daubert's "flexible" approach and that Daubert did not apply directly because no scientific method or knowledge was involved. Nevertheless, the court of appeals affirmed the ruling under a "totality of the circumstances" approach, deeming the hypnotist to be unqualified and the accusations -- which extended to claims of rape by Masons, drugging by injection, and a ritual involving a dead pig and people dressed in black gowns -- "inherently incredible."