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Fortunately, false accusations are sometimes withdrawn before further damage is done to both the accused and accuser.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.


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.