The Honorable Darlene O'Brien's Courtroom of Repressed Memory
Devastating account of Head Prosecutor, Eli Savit's case against Professor Chen
Note to the reader: There is quality information at the end in the footnotes and if you are concerned about this court case, you may find it illuminating.
Testimony in [square brackets] are redacted from the court documents. Substitutions are inferred from context.
Part I: The Evidence
For those just beginning to follow this story, Professor Peter Chen has been accused of heinous crimes. The Hall of Fame cybersecurity researcher stands charged on criminal sexual conduct of the first degree for which he may be sentenced to life in prison and the only evidence against him is that of repressed memory. The alleged incidents happened sometime during the robotics season from August 2017 to April 2018 at his home while his son was home playing outside.
The witness had no recollection of the events until 3 years later at the age of 15 while attending an intense therapeutic intervention camp.1 At least one of the witness’s therapists is a proponent of repressed memory, a harmful discredited psychotherapeutic concept, the mainstream practice of which is subject to license action i.e. a therapist may lose their license.2
The only evidence is repressed memory testimony, an exceedingly controversial psychiatric eyewitness evidence theory that courts in at least 12 states have found to be inadmissable.3 Yet Judge Darlene O’Brien has decided that the evidence is admissible to be levied against Dr. Peter Chen. It bears repeating, the only evidence is eyewitness evidence based on repressed memories. In Michigan, the judge has wide discretion as to how to apply the “scientific” criteria picking whichever criteria she wants to apply that she deems relevant (MCL 600.2955). This article covers evidence that will be presented during the trial, how repressed memory is prosecuted, and factors that may be included in Judge O’Brien’s decision.4
The witness is a victim of the mental health system if indeed her therapist tried to recover memories in therapy. Prior to the allegations, the witness had struggled with mental health issues. She had been diagnosed with Obsessive Compulsive Disorder before summer 2017. At the beginning of 5th grade, she found she no longer wanted to go to school and her parents switched her over to another school.5 Later that year, she joined the robotics team. She alleges the events happened during this time, at Professor Chen’s house when her friend, Dr. Chen’s son, was also home playing outside.
The parents of the witness and the Chen’s have been friends for 20 years. The mother of the prosecuting witness could have faced criminal charges as a mandatory reporter if she did not file a police report against Dr. Peter Chen. While at the therapy camp, her daughter’s therapist, her daughter’s temporary guardian at the time, had gotten the allegations down in writing and sent it to the mother digitally. The mother had little choice but to file a report or possibly face prison time, fines or both (MCL 722.633), and now does not want to interact with anyone working on the case.
Defense: But since these allegations were first made, you’ve been on top of trying to get more information, is that accurate from [your daughter]?
Mother: No, that’s not accurate.
Defense: You haven’t tried to get more information from [your daughter]?
Mother: No, because I knew that was the police’s job, and that was what the therapist was working with, and it was not my place to dig into some of the ugly details.
Two years after robotics ended and during the summer of COVID in 2020, the witness became increasingly depressed. On August 7th the witness was hospitalized. Her parents tried many outpatient programs in their area with no signs of improvement. While consulting with an educational consultant, the idea of sending her away to an intense therapy program was brought up. In September she was hospitalized again. Having exhausted their options in the area with little success, her parents decided to enroll her in the program.6
Defense: When you went down to the [camp] , that was an intense program that you were placed in, like a [redacted] is that correct?
A: Yeah.
Defense: And the program is for youth who struggle with mental health issues, behavioral issues, just issues in life, is that a fair statement?
A: Yeah.
It was at this camp in her most vulnerable state after two hospitalizations, and separated from her parents that the allegations were made. After a month of “intense” therapy in October 2020, the witness made her accusations in a letter home with the guidance of her therapist.7 The witness herself did not believe her own accusations which originated from a “gut” feeling; she wrote “I do not know if this is true.” She had some “flashbacks” or waking dreams while attending the camp.
Defense: In that very same letter, you said you were having flashbacks, is that right?
A: Yes
Defense: And you said that you feel like you have something that had been locked away from your brain?
A: Yeah
Defense: In the letter, you explicitly say I do not know if this is true, meaning the sexual assault allegations with Peter Chen, correct?
A: Yeah
This testimony demonstrates the witness, under oath, admits that she did not know if what she was writing was true.
Defense: It’s fair to say though that you wrote he was creepy and that caused your gut to say that he did something wrong correct?
A: Yes.
Defense: But at that point, you didn’t articulate what you are saying now in terms of your allegations?
A: No, I didn’t articulate it, no.
The witness, by her own admission, judged Dr. Peter Chen’s character, had a bad feeling in her gut and made allegations through that feeling. To recap, the 15 year old girl in her most vulnerable state after two hospitalizations was separated from her parents to whom she has never brought up such allegations before; under the guidance of her new temporary guardians, her therapists, wrote her “gut” feeling into narrative, the veracity of which the witness herself doubted. Prominent Scholar on the topic of recovered memory, Mark Pendergrast, quotes in his book, “It is inappropriately suggestive for a therapist to communicate to a client his or her belief that a dream or a flashback is a representation of a real life event, that a physical pain is “body memory” of sexual abuse,” in Memory Warp published in 2017. Surveys suggest that therapists across the country are engaging in this inappropriate practice of suggesting that a feeling is a memory of abuse; when they do they subject themselves to license action.8
Not only that, records show at least one of her therapists is a repressed memory proponent9, which is exactly the psychiatric theory that promulgated inappropriately suggestive therapy in the 90s.
Defense: There was a point where you said that – some of the memories or thoughts you have, had been repressed. I’m just wondering what that means to you?
A: To me it – my therapist can explain this better, it’s when you’re – like you’re not ready for – it’s like your brain will lock away trauma and it’s not ready for you to like know it yet ‘cause it’s too much and you’ve been through too much, and you like, you know, like you know, if you – if you find out, like especially me at that time, I would have – if I found out, I would have probably killed myself.
Dr. Chen has retained a psychologist by the name of Katherine Jacobs who can speak on the impact of suggestion on memory, and its effect on uncorroborated eyewitness evidence. She has spoken in several trials on this topic as a witness for the defense.
During the psychotherapy scandal of the Recovered Memory Movement in the 90’s, scores of women with mild depression had false abuse memories implanted in them by therapists. A 2017 survey estimates 9 million individuals have been affected since.10 The False Memory Syndrome Foundation reported 20,000 families have sought help.11
Just like the women harmed during the Recovered Memory Movement, the 15 year old girl has been lead to believe by her therapists that it is possible to have no memory of something ever and then recall it. It begs the question, why is this happening again? To understand unordinary eyewitness evidence used in prosecution, one may take a step back into the 80s when similar cases were first being prosecuted.
Part II: Eyewitness Evidence
Miami Method
If you are old enough to remember the "Miami Method" and Janet Reno, the Attorney General under President Clinton, you may very well be able to see where I am going with this.
Janet Reno began as a prosecutor, State Attorney of Dade County, Florida. She catapulted herself to national prominence by harassing small-time daycares and artfully positioning herself as a child advocate during the Satanic Daycare Panic of the 80s. Her platform would leverage her to an appointment from President Clinton to serve as Attorney General of the United States. During the 80s an increasing number of mothers were entering the workforce which resulted in many daycares being opened. Reno recognized that parents could not verify that their children were safe at these daycares and took advantage of those fears.
One of the daycares she decided to prosecute was ran by the Snowden family. She and a couple of consultants she hired, the Bragas, found children going to the Snowden's daycare and suggestively questioned the children multiple times until they conformed to her suspicions. In the transcripts of one of the interviews, Braga spends 33 pages of the interview suggesting possible sexual encounters to a child. Then she would mix pretense and reality until the child was confused. Some of the children were even hypnotized to get them into an ultra-suggestible mode to do the questioning through. Every allegation the children made came through Braga first as a suggestive question. Braga would go on to testify as an expert witness against the husband, Harold Grant Snowden.
Reno tried twice to convict the man. At first she tried this with one child, and the jury quickly threw it out. So she did it with five children and got a conviction. This became known as the Miami Method of prosecuting child sex abuse cases, overwhelming a jury with child testimony instead of presenting credible physical evidence. This is further buoyed by the expert witnesses used in court to say that children never lie.12
Reno didn’t stop there. The child advocate put a 17 year old immigrant girl in solitary confinement naked denying her access to sanitary napkins13, spent taxpayer dollars on 34 sessions with a company called Behavior Changers Inc to “recover memories” using hypnosis (Constitutional Chaos, p 32). Then, Reno nearly sent a 14 year old boy with diabetes into a hypoglycemic coma by periodically denying him food while he was in custody. She was trying to get a confession out of each of them for each of their respective cases and she succeeded on both accounts. The boy languished in prison thereafter for a year and half. For Snowden, a federal appeals court ruled that the expert witness testimony that “99.5% of children tell the truth,” rose to the level of a constitutional error, violating Snowden’s right to due process, and was considered an invasion on the jury’s province. Snowden had already served 12 years before his case was overturned.
Reno had a huge impact on legal proceedings involving child testimony, the procedures she pioneered made it difficult for the defense in cases involving children by setting rules up about how the defense can depose (ask questions to) a child witness and counties around the nation mimicked her procedures and organizational structure.14
Her numerous accusations of sexual misconduct by daycare operators whipped up parent’s fears across the country, rallying the public to her side. Fanning the flames of national paranoia, a string of similar prosecutions of daycares followed, a large percentage of which were dismissed, overturned, or acquitted.
Reno was a trend setter in her use of child testimony and the Miami Method style of prosecution inspiring their use across the country and beyond its borders; the number of children involved in legal proceedings for sexual abuse dramatically increased during the 80s and 90s and Reno was handsomely rewarded in the political arena as she ascended her role from Dade County State Attorney to Attorney General of the United States.
Repressed Memory Method
At the same time Reno ran the Miami Method of prosecution, the Repressed Memory Method of prosecution was also being piloted. What you call a repressed memory can be also suggestively coerced in many people using the same hypnosis, visualization techniques, and repeated suggestive questioning techniques that the Bragas used. Together they are known as recovered memory therapy (RMT) techniques (they probably hire the same hypnotist for both methods, the kids and the adults).
For this reason, repressed memories have been studied extensively and the foremost experts in the field agree that repressed memories should be treated with great skepticism. No studies have been able to document the phenomenon. Professor Elizabeth Loftus has done much in the way of pioneering memory science since the 90s. She received her Ph D. from Stanford in mathematical psychology, is known for her incredible work ethic, and has been named as the most influential female psychologist of the twentieth century. Her studies have demonstrated in a laboratory setting that false memories can be implanted15, recall of memories can lead to contamination, and that there is no known way to distinguish between rich false memories and real memories16.
The moral panic of Satanic Daycares of the 80s fed right into the rise of the Recovered Memory Movement between 1988 and 1993 before rapidly losing credibility in courts, mass media and professional journals (Memory Wars, pg 18).
While the primary witnesses for the Miami Method were small children, the Repressed Memory Method primary witnesses are by and large women between college age and middle age (Lost Daughters, p 18), but the method works for any young woman who can speak well. Slightly different prosecution models apply. Instead of kids doing the finger pointing, the prosecution has women doing the finger pointing. Instead of having multiple kids, you have one adult woman who can give lots of details. The credibility vouching mechanism here is the argument that women never lie about rape instead of children never lie.
The prevalence of sexual harassment and assault made the repressed memory theory approachable to anyone willing to listen. The public has no expectation of physical evidence being found since the alleged events are from possibly decades ago.17
DNA and The Downfall of Physical Evidence
In 1989, the first DNA exoneration took place. DNA technology just began getting good enough to exonerate people just as these two eyewitness evidence prosecution methods were getting piloted. Today, DNA and breakthroughs in PCR analysis has successfully exonerated 375 people around half of which were convicted after forensic science was misapplied to physical evidence. The DNA revolution has had such a profound impact on the courts that prominent law professors have criticized forensic science as an underdeveloped research culture for everything except DNA evidence; in 2009, the National Academy of Sciences came out in a famous paper stating, “With the exception of DNA analysis, . . . no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” The problem of junk forensic science has been called ‘systemic,’ and in the last decade, crime lab scandals have embroiled at least 20 states as well as the FBI.
States are now backlogged with thousands of cases each state on the hook for possibly hundreds of millions of dollars in liability for cases tried on admittedly unscientific evidence and tainted expert witness testimony used to sway the jury towards conviction.
Part III. Politics
Judges as Gatekeepers
The American burden of proof of guilty beyond a reasonable doubt would halt a single witness repressed memory testimony case if we take it at face value. However, expert witnesses may be incentivized to explain this improperly and mislead a jury. The prosecution gets to bring in emerging science, including theories with no empirical backing, so long as they find the right judge, and it takes time for the defense in general to counter the expert witness testimony with an expert of their own to provide an answer to new prosecutorial methods.
Before DNA, bite mark analysis was often used to tie people to crimes. Today, it has no validity. The Levon Brooks trial is the quintessential example of how badly a prosecution can go when the judge is asleep. A child dies in the community and the police and prosecutors are eager to find the perpetrator. The victim’s sister, a six year old girl claims she saw Brooks abduct the child. Dr. Hayne, a purported bite mark expert then comes in and claims with certainty that “it could be no one but Levon Brooks that bit this girl’s arm.” The mother of the victim did not believe the evidence and asked the jury not to sentence Brooks to death. The prosecutor unhappy with her statement, decides to harangue her in open court as a “failed” mother who thinks its “okay to kill little girls.” Brooks was sentenced to life in prison, serving 16 years before DNA evidence exonerated him.18
The Cadaver King and the Country Dentist by the Washington Post's Radley Balko and Tucker Carrington details the career of Dr. Hayne, the Mississippi medical examiner who did 80% of the state’s autopsies. He has made as much as two million a year, doing autopsies and testifying for the prosecution in cases just like this one.
Cadaver King details how a prominent Mississippi Supreme Court Justice, Diaz spoke out against Dr. Hayne's claims of certainty, and subsequently was called a supporter of “baby-killers” in a TV ad. He lost his seat in the next reelection cycle.19 “This is a political problem, not a medical problem,” stated a renown medical examiner Vincent Di Maio. “The government needs to do the right thing. But doing the right thing could hurt political careers[…].” Trial courts have a gatekeeping role to keep inadmissable evidence out of the courtroom, but death row exonerations made it clear that tainted testimony and unscientific evidence were making it in.20 With the DNA forensic science revolution, prosecutors and judges had their entire track record put under a microscope.
One ruling on the inadmissability of a forensic science method had rippling effects reaching deep into the past and far into the future, bringing to question the validity of past cases and setting the precedent to bar the method in future cases. Wrongful convictions – previously thought to be purely theoretical – were at risk of staining the records of judges and prosecutors. It is so onerous, that addressing it often spells political death.21
The Amnesia Prince and the Part-time Psychologist
If Dr. Hayne was the Cadaver King, then could Bessel Anders van der Kolk be an Amnesia Prince?
In Dr. Chen’s case, the expert witness who has been added by head prosecutor Eli Savit to establish that trauma underlies the witness’s repressed memories is Dr. Jim Hopper. He is a teaching associate at Harvard Medical School. According to his website, he’s been on the same side of the repressed memory debate since 1996. His CV has no contributions to the memory sciences in the last decade, though he often likes to criticize the work of Professor Elizabeth Loftus who has pioneered the field.22
Hopper did his post-doc under Dr. Bessel Anders van der Kolk, one of the most well-known repressed memory theorists of his time. In the wake of the Recovered Memory Movement, van der Kolk was chased out of court after Attorney Christopher Barden asked him to provide the data which formed the basis of his opinion. Van der Kolk dropped out of that case and all other cases citing that data. The data was discovered to have been falsified, Harvard Med School having convicted van der Kolk’s associate who transcribed said data of scientific misconduct. You can read the Barden and van der Kolk’s deposition here. Shortly after the deposition, Harvard Med School’s appointment of van der Kolk quietly ended, and Mr. van der Kolk moved to the Graduate School of Education.23
Trial Lawyer Christopher Barden recounts events of data falsification during the Recovered Memory Movement: “Another leader of the movement offered false testimony to a court of law, facilitated the fabrication of research data, refused a federal court order to turn over evidence, and finally claimed that the only copy of his data burned up in a mysterious fire that was never reported to the fire department or the university. Yet another admitted in court that she had never received even one research grant and that she personally destroyed the only copy of her research data because she claimed it “took up too much space.””24
Today Hopper continues to argue for the validity of repressed memory in courts. Van der Kolk cites Hopper in his book, and Hopper cites van der Kolk on his website.25 The two have done three papers together on traumatic amnesia and dissociation.26 In Hopper’s court documents that form the basis of his opinion, he states with absolute certainty that “"repressed" and "recovered" memories are well-established facts.”27 Stanford Ph D. Professor Loftus, whom he often criticizes and who was named most influential female psychologist of the twentieth century,28 testified to the Minnesota Supreme Court that she did not “see how anyone can, with a straight face, say that there is general acceptance [of the theory],” characterizing recovered memory as “massively controversial.”29
In the court documents which form the basis of his opinion, Hopper cites studies to show how accurate recovered memories are; the writer of said study could not actually give an error rate of how accurate recovered memories are, when put on the stand in front of the Minnesota Supreme Court in 2012 and admitted there is no known error rate despite supporting the idea that recovered memories are accurate.30
Minnesota is just one of at least 12 states where courts have successfully eliminated repressed memory theorists from the courtroom.31
While the repressed memory theorists struggle to produce error rates as to show how accurate the repressed memories are32, false implantation studies have revealed some significant portion of the participants can have memories implanted, estimates ranging from 20% to 46%.33
Hopper’s certainty about the validity and accuracy of repressed memory is reminiscent of the many charlatans that inhabited the now disgraced forensic sciences. Whether the Cadaver King from Balko’s book or an Amnesia Prince, the same scientific bravado that enchanted police and prosecutors continues today.
Dr. Elizabeth Loftus offers some wisdom, “If I’ve learned anything from these decades of working on these problems it’s this. Just because someone tells you something and they say it with confidence, just because they say it with lots of detail just because they express emotion when they say it, doesn’t mean it happened. We can’t reliably distinguish true memories from false memories. We need independent corroboration.”34
In much the same way that DNA has exonerated 375 people, Dr. Elizabeth Loftus continues her work today as an eyewitness expert for the defense, explaining that without corroboration it is not possible to know if someone’s memory has been altered, in hundreds of cases. This is related to Justice Sotomayor’s famous dissenting opinion in which she stated “the empirical evidence demonstrates that eyewitness misidentification is the single greatest cause of wrongful convictions” in America.35
People like Attorney Barden and his team rose to the challenge of debunking junk science used to substantiate uncorroborated eyewitness evidence, by consulting with Attorney Generals and licensing boards to prosecute and invoke license actions against recovered memory therapists. His work was featured on the front page of the New York Times.36
Dr. Barden reflects on the many cases he has seen. “Why would a patient want to believe they had been horribly abused by their own parents?” Dr. Barden writes, “The answer is that such patients had often been coercively instructed […] into believing they had indeed been abused as children, could not remember the abuse because they had repressed the memories, and would never get well and were likely to kill themselves[...].”37
The ideas that the witness has been exposed to in therapy have similar elements. When asked to give a definition of repressed memory, the witness stated “If I found out [about the repressed memories], I would have probably killed myself.”
A: To me it – my therapist can explain this better, it’s when you’re – like you’re not ready for – it’s like your brain will lock away trauma and it’s not ready for you to like know it yet ‘cause it’s too much and you’ve been through too much, and you like, you know, like you know, if you – if you find out, like especially me at that time, I would have – if I found out, I would have probably killed myself.
Dr. Barden later writes, “Regardless of the level of coercion or suggestion involved, once the patient lost the ability to distinguish such manipulated mental images of abuse from real memories, the production of any “recovered memory”—no matter how horrific or bizarre—was easily generated as long as it fit the expectations of the therapist.”38
Professor Loftus poses the ethical dilemma, “when should we use this mind technology.” She says, “the false memories aren’t necessarily bad or unpleasant.” Planting positive memories of eating healthy foods, they made people want to eat those foods more. “What these studies are showing is that you can plant false memories and they have repercussions that affect behavior long after the memories take hold. Well, along with this ability to plant memories and control behavior obviously comes some important ethical issues.”39
The incredible saga of the Recovered Memory Movement of the 90s has shown us that those who present themselves as scientific for profit deal great harm onto the families and communities trying to live their lives in peace. Families came back at the movement, suing for millions of dollars.40 Juries agreed with them. Repressed memory theorists have been excluded in at least a dozen states. Two states have ruled therapists have a duty to parents not to implant false memories in their daughters and sons.41
These harmful psychotherapeutic concepts are still in practice today; with no evidence to support their conclusions, it is little more than an experiment on children and women without their consent, lurking behind medical privilege in the courtroom. A review of false implantation studies found that it was remarkably formulaic to implant memories in therapy-like environments. 46% of participants had a false memory implanted when cued with autobiographical details like the names of their teachers and asked to imagine the event.42 Courts have tried to work through the abutting issues of medical privilege and addressing memory implantation in therapy which is clear from the way the questions are framed in the testimony43:
Defense: I know you’ve had a variety and a lot of different therapists, during the times you’ve been in therapy, have they made you do things like visualize scenes from – from past times in your life?
Prosecution: Your Honor, I’m – I’m gonna object at this point. What – what happened in a therapy session between [witness] and her therapist would be privileged. So, I – I don’t think that it would be – it’s – we’ve certainly had a lot of leeway in the fact that we know these therapy sessions existed and who the therapists were, but the actual contents of what happened in that therapy session would be privileged under her – [witness’s] medical privilege.
Defense: Your Honor, I’m gonna withdraw the question.
Court: Okay.
Defense: I – yeah –
Court: Because I was gonna sustain it, so let’s –
Defense: Yeah
Court: Move on.
They presented themselves as woman-first. They presented themselves as child advocates and by that same token took the public for a ride, enriching themselves. Janet Reno did in Dade County Florida, like the Cadaver King did in Balko’s book, like the Recovered Memory Movement did in the 90s.
Are we in the midst of another moral panic?
Our societal grief for victims has been used to trojan the courtroom with convictions that require no evidence in the 80s when Janet Reno pulled on the heartstrings of parents across the country to get convictions without any evidence, the same way the Cadaver King rode the grief and rage of a community to convict without credible evidence. The point here isn't that there aren't some real allegations, though for allegations with the properties of amnesia and fragmentary recall, research has shown that there is little evidence to support amnesia and fragmentary remembrances in lieu of brain damage; memory is malleable, and cueing autobiographical details in therapy with imagination exercises may lead to false memories. The point is that for someone looking to convict a particular individual, repressed memory may be the perfect vessel.
Outro
In the following weeks, I will be analyzing the court documents more, deconstructing the psychology arguments made in the court documents, discussing my interactions with the courthouse and much more. There has been a lot more to read than I initially thought.
Professor Chen’s trial has been delayed again, this time to November 28th. There has been at least three final pre-trial hearings held since I last published. It is quite possibly the oldest case in the court and was the oldest case on its pre-trial date.
I have not received all the documents added since the final pre-trials. Once I get that, I can post the redacted court documents in their entirety.
Defense: “So, at that point in time, you went down to the [camp] and-- when I say it was a [camp], did you guys like sleep outside and stuff or did you have cabins?” A: “We sleep outside” Defense: “Sleep outside. And I know you – you testified that you had some therapy while you were in that program –” A: “Yeah.”
“For 15 years, I’ve sat on national review panels, where I examine and consult on licensing and malpractice claims against therapists and behavioral health clinicians. I’ve seen countless license actions and malpractice lawsuits against therapists who use recovered memory techniques, believing they were doing good; in every case I’ve ever seen, the therapist lost, their actions deemed damaging, harmful, and contrary to industry practice. Forget Me Not: The Persistent Myth of Repressed Memories, Ley, David Ph.D, 2019.
Reforming Mental Healthcare: How Ending “Recovered Memory” Treatments Brought Informed Consent to Psychotherapy, Barden RC. 2014.
Rhode Island, State v. Quattrocchi (gives many details of what happened during therapy while recovering memories, and interactions between therapist, police, and patient); New Hampshire, Hungerford v Jones; Utah, Franklin v Stevenson (conceded trial court failed its gatekeeping role). See Tomika Stevens, The Admissibility of Expert Testimony on Repressed Memories of Childhood Sexual Abuse in Logerquist v. McVey: Reliability Takes a Back Seat to Relevancy, 2001 [online]
Maryland 2016, Scarborough v Altstatt (“unconvinced that repression exists as a phenomenon separate and apart from the normal process of forgetting”)
Pennsylvania 2016, Leone v Towanda Borough (“there is little empirical support for memory repression. In fact, there is no evidence to support their authenticity of veracity”)
Pennsylvania 2017, Hurley v Thompson (“finds that the conviction, based soley on “recovered” memories that were absent from the victim’s mind for several years, may be so insupportable as to fall below the threshold of bare rationality.”)
Nebraska 2006, Duffy v Father Flanagan’s Boys’ Home (excluded expert testimony about the theory of repressed memory).
Delware 2013, Keller v MacCubbin (rejected expert testimony of whether repression existed.)
Texas 2014, Harris v State (For a plea of not guilty by insanity, expert testimony for the defense proffered testimony on repressed memory theory. “His testimony concerned a dissociative disorder known as dissociative identity disorder (DID), formerly known as multiple personality disorder or repressed memory.” The jury took 10 minutes to convict Harris)
Washington 2012, State v Martin (Expert testimony proffered based its theory on repressed memory as the scientific basis for such an analysis i.e. “it begins with repressed memory and delayed recall.” Court determined that the theory was “not generally accepted in the scientific community.”)
California 1997, Engstrom v Engstrom. Wisconsin 1997, Doe v Archdiocese of Milkwaukee. Michigan 1997, Ramona v Ramona. See Grove and Barden, Protecting the Integrity of the Legal System, 1999 [online] listing these and more.
The Judge has wide discretion as to how she applies criteria to determine what evidence is scientific. They are laid out in (MCL 600.2955). In Michigan, she may choose to apply a criteria if she deems it relevant. For instance she may judge whether the concept has been peer reviewed, and if it has been replicated, and whether the basis of his opinion are reliable and exclude the testimony on those grounds.
Defense: There was a time where you were bullied at school and struggled with other kids at school? A: Yeah. Defense: And it came to a point where you just simply didn’t want to go to school, is that correct? A: Yeah.
– Mother’s Testimony –
Defense: Do you recall when she was bullied? Mother: The beginning of fifth grade, her best friend had left the school, and [my daughter] was struggling to make new friends.
[…]
Defense: Why did you remove [your daughter] from [fifth grade school] and have her attend [this other school]?
Mother: She was very anxious about starting back at school.
Defense: She was anxious, so you took her out of one school and put her into another?
Mother: She was experiencing a lot of increased anxiety and school refusal.
Defense: So after your daughter had some medical care, what happened next? Mother: She wasn’t showing improvement as we had hoped, so we hired an educational consultant to help us with continued therapeutic interventions.
The therapist instructed the witness to scratch out parts of her letter, deeming them not “serious” enough.
Forget Me Not: The Persistent Myth of Repressed Memories, Ley, David Ph.D, 2019.
The Return of the Repressed: The Persistent and Problematic Claims of Long-Forgotten Trauma, Otgaar et al. 2019.
A: To me it – my therapist can explain this better, it’s when you’re – like you’re not ready for – it’s like your brain will lock away trauma and it’s not ready for you to like know it yet ‘cause it’s too much and you’ve been through too much, and you like, you know, like you know, if you – if you find out, like especially me at that time, I would have – if I found out, I would have probably killed myself.
Defense: So, if I’m understanding you right, it’s – would it be fair to say that there were times after you say something happened that you had no memory of it?
A: Yes.
Defense: Okay then the – the memories that you say you have, you’re saying they were repressed, meaning that they came – came back at some point later, is that correct?
A: Yes.
Reports of Recovered Memories of Abuse in Therapy in a Large Age-Representative U.S. National Sample: Therapy Type and Decade Comparisons. [online]
“Since its formation, over 20,000 families and professionals have contacted the Foundation to ask for help.” See Althaus v. Cohen, et al. Amicus Brief. [online]
This sort of testimony may violate the defendant’s right to due process. Experts are not allowed to vouch directly for the witness’s credibility i.e. the prosecutor repeated the expert witness testimony that “99.5 percent of the kids tell the truth" over and over. Snowden v. Singletary, 1998. The Michigan Supreme Court threw out two cases for this reason in 2019. Michigan Supreme Court Reverses Criminal Sexual Conduct Convictions in Two Consolidated Cases Due to Improperly Admitted Expert Testimony, Ankey M, 2019. In summary,“holding that an expert witness's testimony bolstering the credibility of a child victim was improper and denied the defendant due process.” Snowden v Singletary.
“[…]And I use to be so cold, real cold. I would have my periods and they would just wash me and throw me back in the cell (Constitutional Chaos, p31).”
An ex-prosecutor of Reno team turned public-defender said “I would not give my babysitter a ride home by myself.” And that he can’t just use the “brainwashing” argument as simply anymore. See David Markus in PBS Frontline Report: The Child Terror, [online]
You're a defense lawyer now. You're on the other side now. Isn't it so that that very model that you helped to create when you were prosecuting Grant Snowden, now works against you?
It does. Rather effectively.
How?
Because I can't make the brainwashing argument as simply, and as easily as they were able to do. People are more sophisticated in how they handle the cases, how they question the children. And the public is more willing to support the State Attorney's office, and laws passed by the Legislature restrict the ability of the defense attorney to depose victims under certain circumstances. It allows a lot of hearsay evidence into evidence that wasn't allowed previously. It expands the use of other crimes evidence... [more] than would have been allowed in Snowden's case....
Loftus and Bernstein demonstrated that suggestive techniques can lead people to develop rich autobiographical memories. See Loftus & Bernstein Rich False Memories: The Royal Road to Success, 2005.
“We can’t reliably distinguish true memories from false memories. We need independent corroboration.” See Elizabeth Loftus How Reliable is Your Memory TED Talk, 2013 [online]
Prosecutors could argue “delayed-discovery” in court and bring in claims considered stale by the statute of limitations. For instance, Shazade v Gregory filed suit, alleging events 47 years prior to the filing.
The Cadaver King, Balko & Carrington 2018. at p159.
The Cadaver King, Balko & Carrington 2018. at p274.
A 2018 meta-analysis found that prosecutors nearly always won the Daubert challenges to scientific validity of evidence. See Brandon Garrett and Chris Fabricant The Myth of the Reliability Test, 2018.
From the perch of the highest legal office of the United States with her storied career of using hypnosis and the Miami Method of conviction, Janet Reno positioned herself as a science advocate. In 1994, recognizing that the number of DNA exonerations were only going to increase, she promoted the use of DNA after she “read the research”. She announced the “criminal justice system is not infallible [...] Our system of criminal justice is best described as the search for truth. See Janet Reno Case Studies in Use of DNA Evidence Foreword, 1996. https://www.ncjrs.gov/txtfiles/dnaevid.txt
Dr. Barden writes, “it is my understanding that Dr. van der Kolk is no longer affiliated with Harvard. His appt at Harvard ended shortly after my deposition of him.” stated an email linked in The Epidemic of Repressed Memory, pg 82, regarding the end of van der Kolk’s appointment as Associate Professor of Psychology at Harvard in 1997. “Van der Kolk fled from the process server and dropped out of multiple cases rather than turn over his claimed data,” (Christopher Barden email, Jan 13, 2017).
The Epidemic of Repressed Memory, Frontmatter. R. Christopher Barden. 2017.
The Body Keeps Score cites www.jimhopper.com as a resource. The study that Barden deposed van der Kolk about is hosted at www.jimhopper.com
James W. Hopper & Bessel A. van der Kolk, Retreating, assessing, and classifying traumatic memories (2001); van der Kolk et al, Exploring the nature of traumatic memory (2001); Hopper et al, Neural correlates of reexperiencing, avoidance, and dissociation in PTSD: Symptom dimensions of emotion dysregulation in responses to script-driven trauma imagery (2007)
The primary study Hopper references is the 1995 Williams study, and as an auxillary references the 1996 Dalenberg. Read about both in context with the modern debate here.
When psychological science fails to be heard: the lack of evidence-based arguments in a ministerial report on child sexual abuse, Dodier, Oliver et al 2019. Section “Does Dissociative Amnesia Exist”
The Most Eminent Psychologists of the Twentieth Century. https://journals.sagepub.com/doi/10.1037/1089-2680.6.2.139
Hopper claims that Holocaust survivors exhibited these symptoms. The studies he cites report a small percentage of Holocaust victims very rarely exhibited “psychogenic amnesia,” which is defined as “very rare phenomenon where someone wakes up in a hotel room and has no idea what their name [ is] or who they are.” Psychogenic amnesia reports clear up in hours, days and very rarely weeks, without any psychotherapy. It is defined by massive retrograde (past memory) amnesia, and not selected amnesia and fragmentary recall as purported by Hopper, that characterizes repressed memory. Psychogenic was renamed to “dissociative amnesia.” Dr. Chu was on the committee that added “dissociative amnesia.”
In the Minnesota Court Opinion, in Dr. Chu’s section summarizing his testimony, it states “repressed and recovered memory is identified as “dissociative amnesia” in the latest version of the DSM.”
There’s been a big effort to rename repressed memory to dissociative amnesia. See Patihis et al. Unconscious Repressed Memory Is Scientifically Questionable (2012) (“Changing the name “repressed memory” to “dissociative amnesia” may obscure issues rather than clarify.”) stated a paper Elizabeth Loftus co-authored. Repressed memory, a psychiatric theory, has been conflated with a DSM entry “dissociative amnesia,” which is considered to be by many in the field of questionable scientific validity, the studies of which are perceived to be fraught with issues. See Otgaar et al. & Mangiulli et al. The Return of the Repressed, Otgaar et al. (2019); A Critical Review of Case Studies on Dissociative Amnesia, Mangiulli et al. (2021).
The DSM itself cautions against its use in legal settings, it is not a scientific work, and it lists repressed and recovered memory as a “feigned” symptom” of other diagnoses. The Minnesota Supreme court agreed in that it that a diagnosis in the DSM “may mask vigorous debate within the profession about the very contours of the mental disease itself.” See Dr. Pope’s testimony in Doe vs Archdiocese.
The court quoted Former chair of the DSM Task Force, Dr. Frances. He said that the “psychological “Bible” has become a dangerous tool with a serious lack of oversight.” And that “[i]t is widely used (and misused) in courts.”
Dalenberg C. (1996) Accuracy, Timing, and Circumstances of disclosure in therapy of recovered and continuous memory
In Doe vs Archdioces (“Under examination, Dr. Dalenberg conceded that she could not give and did not know an “error rate” could be calculated as to how often or how accurately people repressed and recovered memories.” The district court “was also troubled by the fact that recovered memories cannot be shown to be accurate in the absence of independent corroboration.”)
See footnote 3 for list of states. From Protecting the Integrity of the Legal System: The Admissability of Testimony From Mental Health Experts Under Daubert/Kumho Analyses. William Grove & R. Christopher Barden (1999) (“ From writings of MPD advocates as well as our own review of cases, it appears that abuse is inferred from “recovered” (i.e. ostensibly formerly “repressed” or “dissociated,” then recalled) memories. Hence the causal inference is usually no stronger than the evidence for “repression” or “dissociation” of trauma memories. This evidence is quite feeble, and courts applying Frye or Daubert have very seldom held that this concept is admissable.”)
Harvard Medical School Professor of Psychiatry, Dr. Pope testified that methodological flaws made what Hopper may call “amnesia and delayed recall/recovered memory” studies worthless, that “a hundred times zero is still zero.” Dr. Pope testified to the Minnesota Supreme Court that there has been “voluminous” research questioning the existence of repressed and recovered memory. Doe v Archdiocese, 2012.
See footnote 42
‘Memory’ Therapy Leads to a Lawsuit And Big Settlement Section A. Page 1. Nov 6. 1997 NYT.
See footnote 24
See footnote 24
See Frontline Episode: The Search for Satan for the families’ perspectives. Attorney Barden won a 2.6 million lawsuit followed by another 2.6 milion dollar lawsuit culminating in a 10.6 million dollar settlement in Burgus vs Braun. ‘Memory’ Therapy Leads to a Lawsuit And Big Settlement Section A. Page 1. Nov 6. 1997 NYT (“This is the death knell for recovered memory therapy.”)
Michigan Supreme Court upheld this decision; watch here. The Utah Supreme Court came to a very similar conclusion as well Mower v Baird, decided 2018.
A Mega-analysis of Memory Reports from Eight Peer-reviewed False Memory Implantation Studies. Alan Scoboria et al. (2016) (“ [1] Providing participants with idiosyncratic self-relevant information […] such as the name of the actual teacher), [2] Encouraging Participants to imagine the suggested event during testing sessions […] The false memory rate was 46.1%”)
A 2016 study showed that once juries are made aware of the imagination exercises used during therapy, perceptions of guilt lowered and witness credibility plummeted compared to when such methods were concealed from the jury. The Effects of Memory Recovery Techniques on Juror’s Perceptions of Recovered Memories, Elisa Krackow and Alyssa Long, 2016 [online].
Thanks for this. I was wondering about the allegations. Are you planning publishing the transcripts? Where can I find them?