Ask the Expert
Traumatic Memories as Evidence: True or False?
Harold J. Bursztajn, M.D.
Dr. Harold J. Bursztajn, Associate Clinical Professor and Co-Director,
Program in Psychiatry and the Law, Harvard Medical School at the
Massachusetts Mental Health Center, practices both as a clinician
and as a forensic psychiatrist consulting locally and nationally
to attorneys and institutions.
CINCINNATI--A man who accused Cardinal Joseph Bernardin of sexually
abusing him in the 1970s dropped his lawsuit against the Roman Catholic
prelate yesterday, saying his memory was unreliable.-- Boston Globe,
March 1, 1994, p. 1
Neither perception nor memory is a copying process. -- Ulric
Neisser
The case of Cardinal Bernardin and that of Gary Ramona in California
are only the latest in which alleged memories of traumatic events have
been called into question. Just what is this "false memory syndrome" we've
been hearing about?
There is no single "false memory syndrome." Rather, there are
numerous variations involving the presence or absence of memories, or
even both together. A false positive memory occurs when one
remembers something that did not occur. A false negative occurs
when one does not remember something that did occur. Between these two
extremes, a person may remember a true event, but with false details,
or have a false memory with true details.
What does it mean if a person recants and withdraws the charge of past
abuse, as in Cardinal Bernardin's case?
Fortunately, false accusations are sometimes withdrawn before further
damage is done to both the accused and accuser. However, by itself
a recantation is only an indication, not a guarantee, that the original
charge was false. It isn't definitive proof of innocence because
a recantation can be influenced by the same distortions of memory
as the original accusation. For example, people sometimes use false
memories of abuse to maintain an attachment that they feel (consciously
or subconsciously) in danger of losing, such as a child's attachment
to the accusing parent in a custody dispute, or a patient's attachment
to a therapist. Under such emotional pressure, whether the charge
was true or false, a person may recant out of fear of losing the
relationship by persisting in making the accusation.
Do client reports to attorneys, depositions, or courtroom testimony reliably
elicit accurate memories?
No. Client reports to attorneys, depositions, and courtroom testimony
all are very often high-anxiety events. A highly anxious witness
is likely to block out specific memories that may themselves be filled
with anxiety. By way of compensation, albeit often unintentionally,
the witness may try to fill in the gaps, thereby inadvertently creating
false memories.
Can memories "uncovered" in therapy be considered reliable?
No. Whatever the patient communicates to a therapist constitutes clinical
evidence, which can easily be discredited unless there has been a
forensic evaluation of its reliability. The therapist, listening
empathically, responds so as to reduce the patient's distress and
guide the patient toward reintegration and growth. In other words,
the therapist is less concerned with "objective"
reality and more with the patient's emotional reality. The forensic evaluator
has a very different role, which is to weigh all the evidence with the
objectivity needed to reach and testify to one's conclusions with "reasonable
medical certainty." The forensic evaluator's task is not to treat
the patient, but to evaluate objectively the relationship between the
evaluee's self-reports and the events in question. Thus, it is not in
keeping with either the ethical or scientific standards of forensic psychiatry
to take the treating therapist's testimony at face value. Moreover, even
well-meaning therapists, in their rush to give anxious patients the comfort
of certainty, may unwittingly encourage patients to treat fantasies as
recollections.
Were these the decisive issues in the highly publicized Ramona case
in California?
On May 13 Gary Ramona was awarded $500,000 in damages by a jury that
found that two psychotherapists had encouraged Ramona's daughter
to recover false memories of sexual abuse by her father. One way
of reading this verdict is that the defendants were found liable
for engaging in a form of dual agency. That is, they were found to
have stepped outside their clinical role of empathizing with their
patient's subjective experience when they validated her unconfirmed
memories as objectively accurate.
How important a precedent Ramona will prove to be will depend
in part on another controversial question raised by the case -- that
of Ramona's standing to sue his daughter's therapists for malpractice.
Unlike other ex-patients who, along with the family members they had
previously incriminated, have sued their therapists for inducing false
memories of abuse, Holly Ramona remained satisfied with her therapy and
continued to believe that her father raped her. Her father was given
standing to sue by analogy with a California Supreme Court case, Molien
v. Kaiser Foundation Hospitals, in which a husband was allowed
to sue for negligent infliction of emotional distress after his wife
was misdiagnosed as having syphilis. If this analogy is sustained in
other jurisdictions as well, it may have a chilling effect on the practice
of psychotherapy.
What kinds of memories may, by either their presence or absence, influence
legal proceedings?
Since causality is so important in establishing liability for damages,
the misattribution of causality can be a key issue in litigation.
A person may be aware of both a past trauma and present symptoms,
but not realize the actual connection between the two (false negative
attribution). On the other hand, a person may accurately remember
a past trauma but inaccurately connect it to his or her present symptoms,
when in fact the impairment of function existed even prior to the
trauma (false positive attribution).
In what types of civil actions do questions of the reliability of memory
arise?
They arise in cases of alleged emotional injury caused by negligent acts
ranging from motor vehicle accidents to medical malpractice. Disputes
over memory are especially common in cases where childhood sexual
abuse is alleged, such as the Bernardin and Ramona cases. Often there
is a large gap between the time of the alleged event and the time
when the plaintiff "recovers" the memory with the help
of a therapist or a self-help book.
False allegations of sexual abuse often arise in divorce and custody
cases. However, one party's memory of the other's fitness as a parent
may be distorted in many other ways as well. In addition, one party
may charge the other with negligent infliction of emotional harm
based on what they remember the other party to have said or done,
when in fact what is remembered and what was actually said or done
may be quite different. This may be a matter not only of misremembering,
but also of misperception at the time of the event. In conflictual
situations, it is not unusual to project internal states of feeling
(fear) onto external reality (threat).
Isn't memory also often an issue when a will is contested?
Like the adjudication of divorce cases, the determination of testamentary
capacity is fraught with distortions of memory. For example, a physician
may confuse competent consent to treatment with competent disposition
of property, which is a very different matter in more ways than one.
In addition to the different statutory requirements, a person's capacity
to appreciate the benefits and risks may be impaired in one sphere
of judgment while being preserved in another sphere. Moreover, a
treating clinician may remember the deceased person as having been
either more or less competent than he actually was -- more competent,
if the person refused treatment and the clinician feels invested
in having honored that refusal; less competent, if the person is
remembered for his most confused moments (when everyone around him
was most anxious) rather than his most coherent moments.
What part does false memory play in criminal cases?
Distortions of memory play a part in both false confessions and false
eyewitness testimony. Just as false memories can be induced by sympathetic
therapists, so they can be elicited by hostile interrogators or cross-examiners.
This is one reason for the unreliability of confessions. Psychotically
depressed accused persons who already feel guilty are especially
vulnerable to the suggestion that they actually are guilty (see State
of Maine v. Angers, York County SS., April 12, 1992). As such,
they may manufacture memories to conform to both their own sense
of guilt and the examiner's expectations. In other instances, false
confessions may simply be the products of fear induced by coercion,
where the bottom line is "I would have said anything to get
them off my back."
Thus, after hours of leading and misleading questions, someone who is
in a vulnerable state (such as depression) may well remember committing
a crime that she did not in fact commit. Similarly, eyewitnesses
may have their memories biased by stereotypes and by the need to
identify someone as the perpetrator. On the other hand, victims or
eyewitnesses may be so traumatized that they block out the face of
the perpetrator. A common tendency is to fill in the gaps based on
preconceived or suggested stereotypes.
It seems remarkable that people can vividly remember things that never
happened, or forget equally important events that did happen. How do
such false memories arise?
Memories of particular events are not isolated, independent entities.
Rather, they take on meaning in a context of other memories that
a person uses to make sense of each new event. Traumatic experiences
can interfere with the flexibility with which people normally assimilate
new experiences and reconcile them with past experiences. Thus, someone
who was severely traumatized in the past may interpret new experiences
rigidly in line with the memory of that past trauma. The reverse
also occurs; that is, someone who has suffered a recent trauma may
reinvent the past in light of that recent experience.
When an experience is interpreted as being too threatening to assimilate,
it may appear in the form of intrusive thoughts or memories, or else
it may be "forgotten" in what we observe as amnesia. A
word of caution: An intrusive thought cannot be assumed to correspond
to a real event, any more than any other memory can. Its accuracy
must be assessed in the light of other available evidence.
Has recent scientific research given us a new understanding of how frightening
experiences persist in memory?
An article in the June issue of Scientific American describes
recent neuroscientific breakthroughs in tracing how the brain creates
and stores what are called "emotional memories."
Researchers have found that memories of terrifying experiences are retained
in a part of the brain called the amygdala. Under normal conditions these
emotional memories are kept under conscious control by the brain's cortex.
Under stress, however, an emotional reaction may be touched off in the
amygdala before it can be suppressed by the cortex. This picture of how
the brain functions, if confirmed by further research, helps explain
why Post-Traumatic Stress Disorder (PTSD) can be a lifelong -- if not
always evident -- condition. At the same time, it underscores the need
for caution in assessing the reliability of memory. The very fact that
emotional memories are stored in a different area of the brain from the
area that governs conscious thought suggests that reported memories cannot
automatically be taken to represent objective reality.
Besides Post-Traumatic Stress Disorder (PTSD), what other conditions
might lead to impairments of memory?
Memory may also be impaired by Amnestic Syndrome, which involves both
short- and long-term memory, or by Dissociative Disorders, which
involve a disturbance or alteration in the normally integrative functions
of identity, memory, or consciousness. Thus, one may see dissociative
fugue, which involves sudden, unexpected travel away from home, dissociative
identity disorder presenting as multiple personality disorder, or
a psychogenic amnesia involving the sudden inability to recall important
personal information. Other memory-impairing conditions include depression,
seizure disorders, alcohol and drug effects, and a variety of head
trauma syndromes, including post-concussive syndrome. This discussion
has focused on the effects of PTSD. The forensic evaluator must,
however, consider all of the above possibilities. It is also necessary
to rule out faking, lying and malingering, exaggerating, and various
more subtle adaptations leading to distortion of recollection.
Is hypnosis useful to distinguish true from false memories?
Hypnosis is a notoriously unreliable way to elicit memories, as the case
involving Cardinal Bernardin illustrates. Although, as per the Ramona case,
some claim that these problems can be surmounted through modifications
such as videotaping the hypnosis, there is no such thing as a forensic
psychiatric examination under hypnosis, since the client in such
a state is far too open to suggestion (which may elude the camera)
and far too ready to be coached.
Is corroboration by other witnesses sufficient to establish the veracity
of an eyewitness memory?
Not by itself, but it can be quite helpful. In the case of Father James
Porter, the accounts of numerous alleged victims living in different
parts of the country helped establish a high prior probability of
the truth of the accusations. Even then, each reported episode would
need to be examined carefully. On the other hand, the testimony of
many children in a town gripped by hysteria over alleged sexual abuse
at a day care center would have little corroborative value, given
the influence of suggestion and coaching. In Massachusetts the Salem
witchcraft trials are a stark reminder of the limits of corroboration.
Corroborative testimony, therefore, is just part of the overall body
of evidence to be evaluated.
How do forensic psychiatrists evaluate reported memories?
There is no substitute for a thorough forensic psychiatric examination
involving multiple interviews of the examinee, interviews with other
relevant parties, and review of other available data. Having taken
a careful developmental history to identify sources of anxiety, stress,
and trauma, the examiner must look for patterns of internal coherence
(how well the story hangs together, especially over several interviews),
tone, defensiveness, nonverbal cues, and external correspondence
(how well the story is corroborated by other sources of data).
The examination must be conducted with an openness to evidence and a
willingness to challenge one's own working hypotheses and tentative
conclusions. This is the opposite of suggestion or inducement. The
purpose is to understand the witness's interpretive framework, not
to impose one's own. That is done by the difficult task of creating
a safe environment and establishing sufficient rapport for the examinee
to say whatever he or she is thinking or feeling. In this working
alliance, created for the limited purposes of the examination, the
examiner and examinee can explore the memories offered without making
a premature judgment about how closely those memories correspond
to reality. In such an exploration one may encounter a host of unfamiliar
but nonetheless real interferences with remembering, which must be
ruled out prior to taking a self-report as a valid memory. These
include displacement to maintain psychic equilibrium, projection
to maintain self-esteem, and repression to avoid painful memories.
What are some pitfalls to avoid in a forensic psychiatric examination
when the accuracy of memory is at issue?
The main pitfalls involve using standardized instruments as shortcuts
to bypass the painstaking individual evaluation that is required.
These include the premature or inappropriate use of psychological
testing with a person whose anxiety or confusion would likely invalidate
the test results. Similarly, inappropriate suggestion may result
from the premature use of direct questions or self-report questionnaires.
In the end, nothing takes the place of data gathering, analysis,
and professional judgment tailored to the specific case.
Acknowledgment
The author thanks Albert P. Zabin, Esquire, for his sensitive editorial
suggestions.
Copyright on this material is retained by Harold
J. Bursztajn, M.D. Permission is granted by Dr. Bursztajn to reprint
this article in its entirety, including this copyright notice and the
by-line, for educational purposes only. Expressed written consent from
Dr. Bursztajn must be obtained before reproduction of this article for
any other purpose.