by Diana Brahams, The Lancet, July 29, 2000; Vol. 356: p. 358
"On July 20, US District Judge Breyer dismissed a claim by George Franklin for financial compensation that he claimed was due following the quashing of his 1990 conviction for murder of an 8-year-old girl in 1969 (Hanley C, www.nandotimes.com/nofra, accessed on July 24). The jury's finding apparently relied heavily on his daughter's unreliable "repressed memory". She had testified that she had seen her father smash in the girl's skull with a rock. Franklin spent six and a half years in prison before he was released and has since filed claims against his daughter's therapist, the prosecutors, detectives, and expert witnesses, but sought only a token $1 award from his daughter. Judge Breyer had earlier ruled that the detectives and prosecutors had not arrested Franklin without probable cause or violated his right to an attorney. Now dismissing Franklin's claims against his daughter's therapist and the expert witnesses, the judge also partly cleared his daughter of liability.
Franklin's conviction was quashed when a federal judge decided that the jurors were improperly told that, by staying silent in the face of his daughter's accusation during a prison visit, he had admitted his crime. He also said that the defence should have had the chance to prove that the details that Franklin's daughter claimed to remember first-hand had been published in newspaper articles. Prosecutors abandoned the idea of a retrial after learning that Franklin's daughter had falsely accused her father of a second murder.
This case has fuelled the debate on the concerns about 'repressed-memory', 'recovered memory', or 'false-memory' syndrome, although the syndrome is more usually targeted at recovering alleged cases of childhood sexual abuse. The tidal wave of 'recovered' unpleasant repressed memories peaked in the USA in the early 1990s; it damaged and divided families and was the focus of vituperative and polarised debate among psychiatrists, though few therapists using these techniques were medically qualified. In 1992 the False Memory Syndrome Foundation was founded in Philadelphia and soon had a membership of 18 000 families. The British False Memory Society set up the next year had 900 families.
In 1993 the American Psychiatric Association warned in a position paper that repressed memories could be false, especially when therapists were involved in the recovery process. In the UK, the Royal College of Psychiatrists' Working Group on Recovered Memories published its Guidelines for Practice in 1996. The group rejected the concept of massive repression and, as Brandon1 pointed out, it 'did not find convincing evidence that repeated sexual abuse is ever completely forgotten. . . '. Discussing the controversy about this syndrome, Brandon says: '. . . particularly disturbing was the beliefs of those employing 'recovered memory therapy' and the methods they used. Some therapists specialising in recovered memory therapy told their clients that 'intuitively', or perhaps as a result of symptom check lists, they had become convinced that their client had been abused as a child . . . The fact that they couldn't recall such memories was of no significance. They were encouraged to search for possible memories of abuse or to assume that they had been abused and to try, over as long as a year, to 'think themselves into abuse' . . . others were subjected to . . . repeated hypnosis or age regression in which they infallibly regressed not only to the age at which the abuse occurred but to the actual event . . .'
What weight, if any, should be accorded testimony gathered after repetitive interviews or hypnosis sessions (sometimes combined with drug therapy) and always with strong suggestions that abuse had occurred? Should it even be admissible in a court of law? A judge has discretion to exclude evidence that will not assist the court and/or that has been improperly obtained. The judge should review details of the interview process to ensure that it is acceptable practice and that testimony resulting from it can have any credibility in the light of the witness's psychiatric and emotional history. If evidence is ruled admissible, the full details of the interview process and evidence of criticisms of it should be put before the jury with a warning of the weight that can safely be given to testimony of this kind, together with, it is hoped, a direction on the need for corroborating evidence.
Interestingly, Brandon's analysis suggests that it was not the medical establishment but the American Insurance Industry's response to the backlash of legal claims that applied the emergency brake. With many US insurance companies now refusing to fund repressed-memory therapy and many US medical institutions forbidding such techniques on their premises, the therapy loses its status and the claims are killed off at source."
Brandon S. Recovered memories: some aspects of the controversy. Med-Leg J 1999; 67: 25-34.