THE STATE OF NEW HAMPSHIRE

These cases involve indictments for aggravated felonious sexual assault.  The Court finds that the victims had no memory of the assaults in these cases for several years and that their memories were recovered through the process of psychotherapy.  The victims now wish to testify to the memory they claim to have recovered about the occurrence of these events.  A hearing was held to determine whether the victims' testimony would be admitted at trial.  The Court finds that the testimony of the victims as to their memory of the assaults shall not be admitted at trial because the phenomenon of memory repression, and the process of therapy used in these cases to recover the memories, have not gained general acceptance in the field of psychology, and are not scientifically reliable.

REQUIREMENT OF SCIENTIFIC ACCEPTANCE AND RELIABILITY

The State claims that there is no need for scientific or expert testimony in this matter and that the Court is misapplying the so-called "Frye Rule" and Rule of Evidence 702.  The Court has addressed this issue in its Order mandating this hearing but feels compelled to readdress the matter in this order.  Since at least 1969, scientific evidence has been admissible in New Hampshire only upon a showing that "the scientific principle involved must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. U.S., 293 Fed. 1013; State v. Coolidge, 107 N.H., 403; State v. Vandebogart (DNA), 136 N.H. 365.  In 1985 New Hampshire adopted the New Hampshire Rules of Evidence which were modeled on the Federal Rules of Evidence.  Rule 702 provides, "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise."

In Daubert v. Merrill-Dow Pharmaceuticals, Inc. 113 S. Ct. 2786, the United States Supreme Court held that Federal Rule of Evidence 702 (identical to New Hampshire Rule of Evidence 702) displaced the Frye test.  The State argues that similarly New Hampshire Rule of Evidence 702 has displaced the Frye test as adopted by Coolidge in New Hampshire.  However, on the occasions that the New Hampshire Supreme Court has had the opportunity to consider just this question, it has declined to do so.  State v. Vandebogart (DNA), 136 N.H. 365; State v. Cressey, 137 N.H. 402. In Vandebogart, the Frye test was specifically applied by the Court.  At the present time, the Frye test remains viable in New Hampshire.

In the State's view, these cases do not involve expert testimony or scientific method.  They simply involve the lay testimony of witnesses whose memories have been refreshed.  Their testimony is a matter of credibility for the jury.  The State's interpretation of Frye is extremely narrow.  Many jurisdictions have applied the Frye test under similar circumstances to evidence developed by, based upon, or which is the product of, scientific techniques.  In particular, those cases which have considered memories refreshed through hypnosis, have held that the question of the admissibility of the witnesses' testimony at trial must satisfy either the Frye test or a general test of scientific reliability.  People v. Shirley, 723 P.2d 1345 (Ca. 1982); Stokes v. State, 548 So.2d 188 (Fla. 1989); State v. Atwood, 479 A.2d 258 (Conn. 1984); Commonwealth v. Kater, 447 N.E.2d 1190 (Mass. 1983).  The analysis used in those cases is applicable here.  It is the lay testimony of the witness from the recovered memory which is sought to be prohibited, and it is the phenomenon of that memory and the process of which that memory is the product, which is to be subjected to the test of scientific acceptance and reliability.  Testimony that is dependent upon recovery of a repressed memory through therapy cannot be logically disassociated from the underlying scientific concept or the technique of recovery.

The concept of repressed memory and its recovery through therapy are clearly scientific processes.  The recovery of a victim's repressed memory through therapy is not the same as a simple refreshed recollection under ordinary circumstances.  If the victim's testimony is admitted, the jury will have to decide the credibility of the witness.  However, this determination must be predicated upon the jury's understanding of the method by which the testimony was developed.  The purpose of the Frye rule is to prevent the jury from being misled by unproven and unsound scientific methods.  "Frye applies to evidence developed by or based upon new scientific techniques; if the testimony is thus only as reliable as the process itself, it must be judged by the same standards of reliability." People v. Shirley, 723 P.2d 1354.  The techniques subject to Frye are not necessarily limited to the manipulation of physical evidence.  A new scientific phenomenon or process operating on a purely psychological basis is equally subject to the requirement of scientific acceptance and reliability.

Even, if we assume for purposes of argument that Frye is no longer the law in New Hampshire, displacement of the Frye test "does not mean, however, that the Rules of Evidence themselves place no limits on the admissibility of purportedly scientific evidence."  Nor is the trial judge disabled from screening such evidence.  To the contrary, under the rules, "the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable."  Daubert v. Merrill-Dow Pharmaceuticals, Ind., 113 S. Ct. 2786.  In New Hampshire, the principle that an expert's testimony must rise to a threshold level of reliability to be admissible under Rule 702 has been accepted.  State v. Cressey, 137 N.H. 402.

While the analyses in Daubert and Cressey focused on Rule 702 concerning expert testimony, it is clear that such a test of reliability and relevance would apply here.  The reliability of the victim's testimony of her recovered repressed memory depends on the reliability of the phenomenon of "repressed memory" itself and upon the reliability of the process used to recover it.  "It is of no consequence that results are offered by the expert or the subject herself.  The purpose is to prevent the jury from being misled by unproved and unsound scientific method." Albacher v. Bader, 700 S.W.2d 823 (Mo. 1985).  Even absent the requirements of Frye, before the testimony of the victims may be admitted, the scientific validity of the phenomenon of repressed memory and the process by which it was recovered must be ascertained.

In addition, the Court's directive in McCollum cannot be ignored.  In McCollum v. D'Arcey, 138 N.H. 285, the defendant sought dismissal of a civil action for sexual assault on the basis of the statute of limitations.  The alleged assault had occurred over 35 years before, but the plaintiff had no recollection of the assaults until her repressed memory was recovered through therapy.  The Court held that the discovery rule applied.  The Court remanded the case to the Superior Court for an evidentiary hearing as to the facts constituting the repression of the victim's memory and the process of its recovery.  The Court specifically directed that, "The plaintiff still carries the burden to substantiate her allegations of abuse and if challenged, to validate the phenomenon of memory repression itself and the admissibility of the evidence flowing therefrom."

The State argues that the Court in McCollum was simply directing the parties to present the facts regarding the memory repression and its recovery so that the Court could determine whether, in fact, the discovery rule tolled the statute of limitations.  While this is certainly true, the clear import of the Court's directive is inescapable.  Before any evidence flowing from the phenomenon of memory repression can be admitted, the validity of the phenomenon itself must be validated.  If nothing else, McCollum indicates a recognition by the Court that such a phenomenon is subject to the Frye rule and the requirement of scientific reliability.

Finally, the Court finds that expert testimony is required in this case, if the victims' testimony is to be admissible.  "A jury is often confronted with issues which require scientific or specialized knowledge or experience in order to be properly understood, and which are not subject to an intelligent determination simply on the basis of deductions made and inferences drawn from ordinary knowledge, common sense, and practical experience gained in the ordinary affairs of life.  On such issues, the testimony of a witness with special knowledge and skill is required in order to arrive at an intelligent conclusion." 31 Am.Jur.2d Expert and Opinion Evidence section 32.  New Hampshire has acknowledged in numerous instances that where common knowledge furnishes no criteria for judgment, or where proof depends on observation and analysis outside the common experience of jurors, expert testimony is required to establish the proof.  Russell v. Railroadm 83 N.H.246, 249, Martin v. Wentworth-Douglas Hosp., 130 N.H. 134, 136.

A jury can most assuredly understand the infirmities of memories and the motives that shape them in the normal course of their experience.  The jurors are completely capable of evaluating the accuracy of the memory and the credibility of the person testifying from it, by virtue of the ordinary knowledge, common sense, and practical experience by which we all make such determinations in our everyday lives.

However, the very concept of a "repressed" memory, that is, that a person can experience a traumatic event, and have no memory of it whatsoever for several years, transcends human experience.  There is nothing in our development as human beings which enables us to empirically accept the phenomenon, or to evaluate its accuracy or the credibility of the person "recovering" the memory.  The memory and the narration of it are severed from all the ordinary human processes by which the memory is commonly understood.  To argue that a jury could consider such a phenomenon, evaluate it and draw conclusions as to its accuracy or credibility, without the aid of expert testimony is disingenuous to say the least.  The Court finds that expert testimony is required if such testimony is to be admitted and therefore, the determination of the reliability of such evidence by the Court under Frye and Rule 702 is required in the first instance as well.

LAURA B. AND SARAH F.

The victims in these cases are two young women with differing psychological histories, who recovered memories of sexual abuse allegedly perpetrated upon them several years in the past.  The memories were recovered in both cases while the victims were being treated in continuing psychotherapy.  In the case of Laura B., the memories recovered were of childhood and adult sexual abuse allegedly perpetrated on her by her father, Joel Hungerford, from the age of 5 years to the age of 23.  In the case of Sarah F., the memories recovered were of one alleged incident of sexual abuse perpetrated upon her by her junior high school teacher, John Morahan, when she was 13 years old.  Neither victim had any memory of these events at any time from the moment of their occurrence until their recovery years later.  Laura recovered her memories when she was 26 years of age.  Sarah recovered hers when she was 19.

Laura B. is a 27 year old college educated woman who at the time of the initiation of her therapy suffered from symptoms of clinical depression, and was experiencing sexually related problems in her marriage.  Except for remembered episodes of crying as a child and problems with her sexuality, Laura appeared to have a relatively normal childhood, and was academically and socially successful.  She had childhood memories of idiosyncrasies of both her parents.  Specifically, she had memories of her father regularly barging into the bathroom when his daughters were using it, and in taking baths while the children were present.  Her mother was strongly religious and held strict sexual mores including denunciation of masturbation.  Her father had indicated on occasion that such sexual conduct was healthy and normal.  Laura had absolutely no memory of any sexual abuse by her father at any time prior to entering into therapy.

In 1989, Laura's sister Amy, in the course of her own psychotherapy, claimed to have recovered memories that she had been sexually abused by her father.  Upon learning of these accusations, Laura had an understandably mixed reaction.  On the one hand she did not want to believe that her father had committed such acts and she felt a need to support him.  On the other hand, she wondered about these claims and considered the possibility that she too could have unknowingly suffered such abuse.  Laura decided to seek therapy to address her present psychological problems as well as to explore the possibility of her own abuse at the hands of her father.  She sought out a therapist and entered into a professional relationship with Susan Jones, MSW.  She felt a rapport with Ms. Jones who professed experience with incest victims.

She began therapy with Ms. Jones in September of 1992.  She 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 not 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.  Early in therapy, a joint therapy session was held with Amy and Laura.  The purpose of this session was to address the relationship between the sisters.  However, the matter of Amy's claims of sexual abuse by her father was discussed.  Both Laura through her sister, and Ms. Jones, through Laura, already had an understanding of Amy's claims of abuse.

Laura remained in therapy with Ms. Jones for about nine months, involving approximately 100 sessions.  During the course of therapy, Laura remembered four episodes of abuse.  The first memory recovered by Laura in the fall of 1992, was a memory of being nude in the locker room of the Amherst Swim Club when she was three years old, and having an uncomfortable feeling.  Admittedly, this was not actually a memory of abuse.  Laura had had dreams of people walking into a bathroom where she would be.  She reported this dream to Ms. Jones, who requested that she draw a picture of the bathroom.  Susan Jones then asked "Do you want to find out where that bathroom is?" and inquired whether Laura wished to perform a visualization.  Ms. Jones asked Laura to close her eyes, focus, and to try to find out where the bathroom was.  As a result of that visualization, Laura reported her memory.

The first memory of actual sexual abuse occurred after Laura had an image, or a "flashback", of being terrified on her father's bed and not being able to leave, even though she wanted to.  Her father was in the dream and was not wearing pajama bottoms.  At therapy, Laura reported the image to Ms. Jones, who asked "Do you want to know if anything else happened?" Again Laura was asked to close her eyes and focus on the image.  Ms. Jones asked her who she was afraid of.  Laura then reported a memory during this process of her father rubbing his penis between her legs on his bed when she was 5 years old and ejaculating on her stomach.

Laura's second memory of abuse concerned an episode where she was digitally penetrated by her father in his car.  Laura had always remembered a conversation with her father in his car about masturbation, when she was about 12 years old.  In therapy, Ms. Jones "explored" this recollection by telling Laura to close her eyes and pretend it was a movie.  Laura was directed to pretend she was in a car which she could drive up alongside her father's car so she could "escape" to "safety" if necessary.  Ms. Jones instructed Laura to look around and see "what's happening." As a result, Laura then recovered the memory that her father had digitally penetrated her in his car on a dirt road.

At some later time, Laura "recovered" a third memory of abuse.  Laura had always had a dislike for a town in Norway, which she had visited with her parents in 1990.  She had recently experienced continuing pain in her rectum at work.  Laura discussed the rectal pain, or "body memory" as she referred to it, with Ms. Jones.  Laura suspected the pain had something to do with sexual abuse.  Ms. Jones again asked Laura to close her eyes, focus on her body pain, and "Look around and see what happened." "Do you want to explore it?" she asked.  During this process, Laura "recovered" a memory that her father had raped her vaginally and rectally in her hotel room in Norway.  After the assault, she and her father went out to dinner.

In March of 1993, Laura recovered a fourth memory of abuse.  While taking a shower in her home, she experienced vaginal pain and was disgusted with her body.  A bar of green soap reminded her of a poster above the bed at her family's home, and she experienced an image or flashback of her father coming into her bedroom, ripping the covers off her bed and raping her.  This rape occurred 2 days before her wedding.  It is unclear how much of this episode was visualized in the flashback and how much was "recovered" during therapy with Ms. Jones.  However, Ms. Jones did discuss the event with Laura, and did instruct Laura to close her eyes and focus on the feeling and what it was trying to tell her.  Subsequently, Laura did recover part or all of the memory of that rape at a therapy session.

Finally, after these matters had been disclosed by Laura to Detective Lyons of the Amherst Police Department in March of 1993, Laura recovered another memory of an event which she claims occurred in the summer of 1990.  Prior to the recovery of this memory, Mr. Hungerford had threatened to shoot himself, Laura and her therapist.  All were aware of these threats.  Sometime subsequent to these threats, Laura had a nightmare about black hair.  She drew a picture of it for her therapist and Laura recognized it as her father's beard.  Ms. Jones asked Laura to again close her eyes and focus.  She asked her "What is so terrifying?" "Look around." Laura then remembered being tied to the bed, her father beside her, and something was inside her vagina.  Later at home she recalled it was a gun that was inserted into her vagina.

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.

Sara F. is a 21-year-old woman with a multitude of emotional problems.  Severely asthmatic as a child, she required steroid medication and other intervention to control her asthma attacks.  Her parents divorced and Sarah has suffered feelings of hatred for her mother, abandonment by her father, and dislike for her stepfather.  All in all, Sarah appears as a seriously disturbed young woman.  She reports suffering from depression, narcissism and bulimia at various stages of her life.

Sarah had been hospitalized at Dartmouth Hitchcock Clinic in 1988 for suicidal ideation.  She was admitted to the Hamstead Hospital and subsequently attended the DeSisto School.  The DeSisto School is a "therapeutic boarding school," where students are required to attend psychotherapy.  This includes individual counseling and group sessions.  The DeSisto School staff practiced "gestalt" psychotherapy which has been characterized as a liberal, active, image-intense, psychotherapy.  When released from Hampstead Hospital Sarah had been prescribed antidepressant drugs.  These drugs were terminated by the School.

At the DeSisto School, Sarah reported having a recurring dream of a man next to her in bed.  She reported being furious at her grandfather, and she suspected abuse.  Sarah was admitted to the hospital in February of 1991 for acute suicidal ideation.  Shortly before her hospitalization, she was subjected to hypnosis, at her request, to seek out the source of the suspected abuse.  In May of 1991 Sarah reported more suspicions of sexual abuse.  At that time, "inner child therapy" was conducted to support her and offer her belief and comfort, and to determine what had happened.  Vague suspicions were reported by Sarah that her stepfather could have done something to her.  Much of her therapy from March to July dealt with this issue of suspected abuse.

On July 5, 1991, Sara reported in therapy that she now remembered being raped by a teacher in the seventh grade.  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.

PHENOMENON OF REPRESSED MEMORY

The concept of "repressed memory" of traumatic events has been a topic of considerable interest to both clinicians and researchers for one hundred years.  Giants of Psychology such as Freud and Janet considered the phenomenon, as well as their concerns with the credibility of such memories.  Research and studies of memory in general and traumatic memory in particular have indicated that in general, traumatic events are well remembered.  However, studies have indicated that some degree of memory disturbance is commonly associated with traumatic experiences.  Studies have indicated that hypermnesia, i.e. intrusive memories of the event, and partial amnesia of parts of the event, are common for those who have experienced a traumatic event.  Studies indicate that the gist of the traumatic event is generally extremely well retained, while the details may be inaccurate.  It appears that the extent of the amnesia may be affected by the degree of participation in the event, and the person's physical proximity to the action.

An important ground rule for the discussion of the matter of repressed memory is the consistent definition of the phenomenon.  The phenomenon of repressed memory is defined as the complete absence of awareness or memory of a traumatic event from the time of its occurrence until a period of years thereafter.  Thus this phenomenon must be distinguished from the generic term amnesia which includes hypermnesia and partial amnesia.

Various studies from the 1940's to the present have been conducted exploring the phenomenon of amnesia for traumatic events.  These studies concerned themselves with a wide variety of trauma victims, including combat veterans; convicted murders; victims of torture, physical abuse and rape; and survivors of concentration camps, natural disasters, and automobile accidents.  These studies indicate that some level of amnesia is commonly experienced for such traumatic events.

These studies, however, fail to distinguish adequately, if at all, between partial and complete amnesia.  While all studies indicate amnesia for certain details of a traumatic event, few present any evidence of total amnesia for the event itself.  Certain of the studies, in particular, those regarding war trauma, torture, concentration camp survivors, and victims of natural disasters, fail to adequately account for biological or biogenic causes for the amnesia.  Certain of the studies also fail to adequately account for drug and alcohol abuse as a cause of amnesia, for the effect of so-called "malingering," or for the influence of secondary gain.

Recent laboratory research has explored the theory that traumatic memory may be processed differently than ordinary memory.  This theory incorporates the concepts of childhood memory development from a behavioral to a narrative memory system.  Through a series of PET scans of the human brain during the occurrence of flashbacks, Dr. van der Kolk claims to have provided biological evidence that traumatic memory is in fact processed differently than ordinary memory.  Based on his studies, Dr. van der Kolk believes traumatic memory is sensual and emotional, and like childhood behavioral memory, cannot be verbalized on a narrative level.  Traumatic memory may not be as accessible as ordinary memory and it may be necessary to reinstate the emotional level of consciousness experienced during the trauma in order to retrieve the memory.  These studies represent the "cutting edge" of present traumatic memory research.

Several recent survey studies have been cited to support the existence of the phenomenon of repressed memories for traumatic events, e.g. Herman and Schatzow 1987, Loftus and Polansky 1992, Briere and Conte 1991, and Williams 1994.  Many of these were survey studies, not clinical studies.  Attempts to interpret the results of these studies as evidence of the existence of repressed memory are severely restricted because of certain methodological and other deficiencies inherent in the studies.  Many of the studies failed to adequately account for so-called childhood amnesia, that is the recognized inability or reduced ability of children to form narrative memories before the age of 5.  Few of the studies confirm or corroborate the occurrence of the alleged trauma in any way.  The survey studies also fail to confirm that any memory repression itself, actually occurred.  In many of the survey studies, including Briere and Conte, and Loftus and Polansky, the survey question was sufficiently ambiguous, that it is not possible to ascertain whether the failure to remember the experience was in fact memory repression, or merely normal forgetting or reluctance to disclose the event.

Even the highly regarded study by Linda Meyer Williams in 1994, which did confirm the occurrence of the traumatic event, exhibits serious methodological deficiencies which impair the validity of its results.  Specifically, the lack of a follow-up interview undermines confidence in the study's conclusion of the existence of repressed memory.  The failure to report abuse could have resulted from reluctance to disclose, ordinary forgetting or a myriad of other factors.  Furthermore, the influence of childhood amnesia in the Williams study was not sufficiently considered.  These methodological deficiencies in these recent studies have caused the field of psychology to approach the concept of repressed memory with some skepticism.

Various professional publications have concerned themselves with the issue of traumatic amnesia.  The Diagnostic Statistics Manual (DSM) is generally recognized as the standard in the field of psychology for diagnoses of psychological disorders.  The DSM IV includes as a characteristic symptom of Post Traumatic Stress Disorder, "recurrent and intrusive recollections of the event." It is also noted that "Stimuli associated with the event are persistently avoided?This avoidance of reminders may include amnesia for an important aspect of the traumatic event."

The DSM also included the diagnosis of Dissociative Amnesia.  "The essential feature of Dissociative Amnesia is an inability to recall important personal information usually of a traumatic or stressful nature, that is too extensive to be explained by normal forgetfulness.  This disorder involves a reversible memory impairment in which memories of personal experience cannot be retrieved in a verbal form, (or, if temporarily retrieved, cannot be wholly retrieved in consciousness)." Several types of memory disturbances have been described in the DSM IV for Dissociative Amnesia?None of the types of Dissociative Amnesia described in the DSM include full amnesia for the traumatic event.

Several scientific societies have published reports of their official position on repressed memories.  The British Psychological Society in a 1995 publication concluded after a review of the scientific literature that "complete or partial memory loss is a frequently reported consequence of experiencing certain kinds of psychological traumas including childhood sexual abuse.  These memories are sometimes fully or partially recovered after a good many years.  Memories may be recovered within or independent of therapy.  The question for debate has also shifted from the question of the possibility of recovery of memory from total amnesia to the question of the prevalence of recovery of memory from total amnesia."

The American Psychiatric Association in a 1993 statement was equivocal at best about the phenomenon of repressed memories.  In an interim report by the American Psychological Association's Working Group on Investigation of Memories of Childhood Abuse, published in November of 1994, it was reported that "Most people who were sexually abused as children remember all or part of what happened to them.  However, it is possible for memories of abuse that have been forgotten for a long time to be remembered.  The mechanism(s) by which such delayed recall occur(s) is/are not currently well understood." Even the members of the committee who prepared this report seem to disagree on the meaning of the conclusions.

The American Medical Association's Report of the Council on Scientific Affairs issued in 1994 concludes "that few cases in which adults make accusations of childhood sexual abuse based on recovered memories can be proved or disproved and it is not yet known how to distinguish true memories from imagined events in these cases."  The American Medical Association considers recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification.  The use of recovered memories is fraught with problems of potential misapplication."  Finally, the Australian Psychological Society Limited, in its publication of "Guidelines Relating to the Reporting of Recovered Memories" in October of 1994 stated, "Although some clinical observations support the notion of repressed memories, empirical research on memory generally does not.  Moreover, scientific evidence does not allow global statements to be made about a definite relationship between trauma and memory." Clearly, professional societies have not reached a consensus on the issue of repressed memories.

It is absolutely clear that a raging or robust debate exists in the field of psychology as to whether such a phenomenon as "repressed memory" as defined in these cases exists.  There is no reluctance to accept the existence of some limited partial amnesia as generally associated with trauma.  However, it is the concept of the total loss of memory of the traumatic event for a period of years, or "massive repression" which is highly disputed.  It is clear from the testimony of the expert witnesses, the literature, and the published opinions of the professional societies that there is not a general acceptance of the phenomenon of repressed memory in the field of psychology today. It is in fact clear that there is not only a lack of consensus, but a "violent" disagreement.  It is clear that the state has failed to meet its burden of proof in this regard.

In analyzing the admissibility of the testimony under Rule 702, the Court's inquiry is more flexible.  "Its overarching subject is the scientific validity - and thus the evidentiary relevance and reliability - of the principles that underlie a proposed submission.  The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Daubert v. Merrill-Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).  The Court must assess "whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can be applied to the facts in issue?Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed this methodology is what distinguishes science from other fields of human inquiry?" Daubert v. Merrill-Dow Pharmaceuticals, Inc. subra at page 2796.  Several factors have been identified to assist in determining the scientific reliability of the proposed principle.  1) The falsifiability, or refutability, or testability of the theory;  2) Whether the theory has been subjected to peer review and publication;  and 3) The general acceptance of the theory, Daubert v. Merrill-Dow Pharmaceuticals, Inc. subra.

In applying these and other considerations to the phenomenon of repressed memory, the Court finds that the reliability of the phenomenon has not been established.  The general acceptance of the theory has already been discussed.  Under Rule 702, it is not necessary that we determine a particular degree of acceptance within a particular scientific community.  However, the level and nature of the debate in this instance appears to extend across a panorama of scientific disciplines.  The Court suffers from a lack of confidence in the validity of the concept as a result of this continuing "scientific dialogue."

The consideration of peer review and publication is complex.  In one sense, it can be agreed that at a certain level studies have been published and submitted to peer review, and perhaps generally accepted.  Yet the peer acceptance of these studies relates mostly to tested and unchallenged hypotheses, upon the extrapolation of which, the theory of repressed memory relies.  The question is whether based on those studies, and that evidence, the present theory may be rationally and scientifically exhibited.  At that level the analysis must fail.  In this sense, there has been much publication and peer review, but little agreement.  The reason for such disagreement lies in the inappropriate application of many of these studies to this phenomenon, and the substantial flaws in methodology which have been mentioned in regard to these studies.  For these reasons, the testability may be seriously challenged and refutability may be seriously advanced.

Finally, the falsifiability of the phenomenon of repressed memories cannot be dismissed.  Every expert that has testified in this case, and probably every researcher and professional involved in this issue, will concede that there is absolutely no ability, absent independent corroboration or confirmation, to determine whether a particular "repressed memory" is false or true.  The potential of such false memories and the inability to identify them has readily been acknowledged since this controversial issue of memory repression surfaced one hundred years ago.  The very question of whether a "repressed" memory exists is simply a question of whether what is remembered is true or not.  It is either a memory, i.e. an actual recollection of an actual traumatic event, or it is a false memory, i.e. a manufactured narrative of an event which never happened. Furthermore, it must be acknowledged that "false" memories do occur. This is known by the existence of cases in which it is impossible that the events remembered occurred, such as in cases of remembered alien abductions.  A further indication of the potential for false memories are the recantations of a growing number of those who once claimed recovered memories.  Often, the experts, themselves, don't accept the truth of the recovered memory.  Dr. Conte believed that Laura's wedding rape memory was not true.  Ms. Brown claims to believe now that Laura's 3 year old, 5 year old, and gun rape memories are not true.

The implication of this potential falsifiability is devastating. Since the phenomenon of memory repression itself is beyond the life experience of the average juror, a juror has no basis to judge, evaluate, or determine the victim's testimony.  The experts in this case have impressed upon the Court that the vividness or completeness of the memory, or the confidence of the witness in the accuracy of the memory are not determinative of memory's validity.

Even if the experts could assess whether a memory was a true or false memory, in essence the experts would be advising or directing the jurors as to the truth or existence of the facts themselves.  They would be the sole arbiters of the credibility of the victim.  In State v. Cressey, 137 N.H. 402, 407, the Court indicated that "expert psychological evidence can only be admissible in a case such as this if it is at least partly based on factors in addition to and independent of the victim's accounts.  Otherwise, the experts' conclusions are of no value to the jury because they present no new evidence and are merely vouching for the credibility of the child victim witness." The expert testimony in this case goes far beyond that in Cressey.  Here it provides the only means by which the jury can determine the credibility of the victim's testimony.  In Cressey, the Court evidenced concern that a thorough cross-examination could not effectively expose any unreliable elements or assumptions in that expert's testimony.  In this case, that concern is increased dramatically.

PROCESS OF PSYCHOTHERAPY

Even if the phenomenon of "repressed memory", itself, were accepted, the processes of psychotherapy used in these cases failed to achieve the required level of scientific acceptability and reliability. Psychotherapy as reasonably practiced by competent professionals for the legitimate treatment of psychological and emotional conditions is clearly an established science, and the Court does not presume to criticize or denigrate that respected profession.  It is clear, however, that the psychotherapy utilized in these cases failed to exemplify the respected traditions of that profession.

Psychotherapy is a science, but also an art.  A wide variety of techniques and philosophies are embraced by various groups throughout the profession.  There is also a wide range of qualifications for professional therapist, ranging from a Masters Degree in social work to a Doctor of Psychology, or a Doctor of Medicine.  While there may be divergent opinions regarding the effectiveness of certain therapy techniques throughout the profession, there appears to be a general tolerance for a technique if it has claimed to have been of assistance in the treatment of patients.  Nonetheless, while there is no protocol for psychotherapy, there are recognized ground rules or standards within which psychotherapy, whatever form it assumes, must operate.

The therapist must maintain an atmosphere of confidentiality.  An atmosphere must be developed in which a patient feels safe in bringing forth any idea and expressing it.  The therapist should maintain a consistency in therapy.  This includes schedules and duration as well as technique.  The therapist must not allow his or her life figure to become involved in the therapy.  In other words, the therapist must not bring his or her own interest or bias into the process.  The therapist must not become involved in the real world of the client outside therapy.  The therapist is not the patient's friend and should not interact with the patient outside the therapy environment.  Finally a therapist must remain neutral.  He or she should not validate or confirm a client's experiences.

The purpose of psychotherapy is to assist an individual to make certain changes in his or her life, behavior, or perception.  There is a natural resistance to change and to therapy, and even modest success in therapy is difficult to achieve.  A therapist listens, and intervenes appropriately so that the therapeutic process may move the client toward the desired change, so long as those changes are technically feasible to achieve, and are reasonable, ethical, and moral.  In this interpersonal process, the therapist is responsible for the process, and the client for the content.  While a therapist should be successful in allowing the client to talk about an experience, the focus of the therapy is upon the experience, not the act of remembering it.  Memory recovery is not a major focus of psychotherapy.

There are no studies indicating that false memories have ever been implanted by the therapy process.  However, therapy is recognized to be inherently suggestive.  It is universally recognized that the processes involved in interactions such as psychotherapy are highly complex and undue suggestion may result.  Suggestion has been found to be multi- dimensional, and may be influenced by the "hypnotizability" of the subject, the providing of misinformation, social persuasion, and interrogation.  The significance of these factors in any given case will depend on the manner of inquiry, the credibility of the source, or the perceived power differential in the therapeutic relationship.  Any significant false recollection usually requires an environment in which these factors are able to operate at a relatively high level.  Nonetheless, because of the potential for suggestion the validity of the recovered memory is a source of concern.  Studies have indicated that false memories may be created in subjects by the use of misinformation and other techniques, although there is a dispute as to the mechanism by which such false memories are implanted and their stability.

Certain psychotherapy techniques raise universal questions of suggestion and thus the reliability of the recovered memory.  It is often difficult to establish a concrete definition of certain psychotherapy techniques utilized in the field of psychology, and whether a particular technique has been or is being employed in a specific instance appears to be often a matter of degree.  Use of so-called guided imagery, a process by which a therapist directs a client's visualization is considered highly suggestive.  Age regression therapy, by which a patient is encouraged to return to an appropriate time in his or her childhood and to experience an event as that child would, is considered suggestive.  Furthermore, a therapy by which a therapist communicates to his or her client a belief or confirmation of the client's beliefs or memories can be highly suggestive.

It is clear that a therapist must be careful not to repudiate or confront a client regarding his or her experience because such confirmation may be counter productive to the creation of a confidential environment.  However, it is equally clear that the therapist must retain his or her neutrality.  He or she must suspend judgment, listen, and try to understand.  The therapist must not confirm, reinforce or validate the client's experience.  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 a "body memory" of sexual abuse, or even that a particular memory recovered by a client is in fact a real event.  Therapists are trained not to communicate subtle messages to their clients.  A therapist must remain neutral in these matters, and guard against such confirmation by his or her conduct.

It is true that psychotherapy has no duty to investigate the reality of a client's experience in a forensic sense.  A psychotherapist is not a private investigator.  However, a therapist must be concerned about the accuracy of a client's information, and it is common, even in a clinical setting, to take steps to verify to some extent a client's experience.  It is inappropriate to be unconcerned with the truth of a client's experience during psychotherapy.  In the case of a person with no memory of sexual abuse, it is also inappropriate to engage in group counseling with other victims of sexual assault because of the danger that another patient's problem or experience will be inappropriately suggestive to the client.  It is also important that various mechanisms and concepts, such as repression, not be explained to a client in therapy, because of the obvious danger of suggestion.

Since suggestion is always an issue in therapy, it is the danger of undue or unreasonable suggestion that is of concern.  It is generally agreed that in order to create a false memory, a fairly high level of suggestion is required.  When psychotherapy has been conducted in a highly suggestive manner, there is significant danger that the memory recovered is unreliable.

In neither of these cases was there any corroboration or attempt to corroborate the abuse.  Both young women exhibited serious psychological disturbances.  Laura indicated a long history of depression.  Sarah F. had a complex history of various diagnoses including depression and culminating in suicidal ideation.  Although in both cases, anti-depressant medication was clinically indicated, neither psychotherapist referred the client for such medication and treatment.  In fact in Sara's case such medication was discontinued.

In both cases, the therapists were in part conducting therapy for the avowed purpose of recovering memories of sexual abuse.  Laura B. entered therapy suspecting abuse by her father solely on the basis of her sister's recovered memory.  An avowed goal of her therapy was to find out whether she too had been abused.  While there is much conflicting evidence regarding Susan Jones' motivation, it is clear to the court that Ms. Jones' agenda was memory retrieval.  At the DeSisto School, on the basis of a recurring dream, Sarah suspected she too was abused.  Once Sarah suspected sexual abuse, the therapy became directed toward the recovery of the memory of that suspected abuse.  Both therapies were conducted in complete disregard of the basic standards of psychotherapy, and therefore the therapy in each case must be considered to have been highly suggestive.

In Laura's case, visualization techniques were used which approach what has been described as guided imagery.  This was not a mere "relaxation" technique.  According to Ms. Jones, Laura went into self-induced trances on these occasions.  Ms. Jones clearly confirmed to Laura that her dreams and body pains were memories of real events.  At all times Ms. Jones communicated to Laura that her memories were accurate recollections of real events.  Ms. Jones became actively involved in Laura's real world by her active participation in reporting the events to Detective Lyons, although she was under no legal or professional obligation to do so.

In Sarah's case, it is difficult to distinguish between Sarah's therapy and real life, because it appears to the Court that psychotherapy permeated the everyday structure of her school and social life.  Sarah had regularly scheduled therapy sessions, and she also engaged in group dorm sessions with other students who had been sexually abused and at which such abuse was discussed.  It also appears that she had sporadic informal meetings with various school officials, including prior therapists.  Even her senior videotape, which is apparently a tradition to prepare at the school, concerned her experiences of sexual abuse.  It is clear that the professionals at the DeSisto School, systematically entered into Sarah's real world, and appeared to be an intimate part of it.

The entire philosophy of psychotherapy at the DeSisto School has been characterized as extremely liberal, visual, imagistic, and eclectic.  Inner child therapy and hypnosis were used in attempts to recover memories of Sarah's suspected abuse.  One of Sarah's therapists was convinced that Sarah presented the profile of a "classic" abused child.  It is clear that Sarah's therapist wholeheartedly confirmed and validated Sarah's suspicions of abuse and her ultimate recovered memory.  Even those memories of pregnancy and abortion, which because of Sarah's age, required caution and skepticism, were unabashedly reinforced and confirmed.

The Court finds that the psychotherapy utilized by Ms. Jones and by the DeSisto School to "retrieve" Laura's and Sarah's memories of abuse, thoroughly and schematically violated the guidelines and standards of practice of psychotherapy.  Furthermore, the Court finds that the techniques used in the course of psychotherapy in both cases were highly suggestive.  The Court finds that the processes of psychotherapy used in these cases have not gained general acceptance in the field of psychology, and are not scientifically reliable.

In determining the admissibility of the testimony of "repressed memories", it is not the Court's intention to determine which side of the debate is correct.  As stated during the hearing, as to the outcome of that debate, "only time will tell."  The Court's decision in this matter merely finds that based on the existing scientific evidence, the concept of "repressed memory" is not generally accepted in the field of psychology, and is not in that sense scientifically reliable.  In finding that the process of therapy used in these cases was unreliable, the Court does not in any way impugn the profession of psychotherapy itself.  The Court recognizes the daily contribution of psychotherapy to the mental health of our society, especially in the treatment of the recognized psychological ravages of sexual abuse.

It must be recognized, however, that "there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory or the clinical setting.  Scientific conclusions are subject to perpetual revisions.  Law, on the other hand, must resolve disputes finally and quickly.  The scientific project is advanced by broad and wide ranging consideration of a multitude of hypotheses, for those that are correct will eventually be shown to be so, and that in itself is an advance.  Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment - often of great consequences - about a particular set of events in the past.  We recognize that in practice, a gate-keeping role for the judge, no matter how flexible, inevitably on occasions will prevent the jury from hearing of authentic insights and innovations.  That, nevertheless, is the balance struck by the Rule of Evidence [and the Frye Rule], designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes." Daubert v. Merrill-Dow Pharmaceuticals, Inc. 113 S. Ct. 2786.

"We are bound to recognize that the separate fields of [cognitive and clinical psychology] 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.  [The concept of repressed memories, and the process of their retrieval] do not present verifiable results and logical conclusions that work to ensure the reliability required in the solemn matter of a criminal trial." State v. Cressey, 137 N.H. 402, 407.  The fact that the phenomenon of repressed memory may be validated in the future provides no justification for the introduction of such evidence in a trial today under our system of criminal justice.

So ordered. 5-23-95

William J. Groff, Presiding Justice

The expert witnesses were, for the State, Daniel Brown and Bessel van der Kolk of Harvard University and Jon Conte of the University of Washington; for the defense, Elizabeth Loftus of the University of Washington, James Hudson of Harvard University, and Paul McHugh of Johns Hopkins.