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False Memory and Buridans Ass


Cultic Studies Journal, 1997, Volume 14, Number 2, pages 207-289

False Memory and Buridan’s Ass: A Response to Karlin and Orne

Alan W. Scheflin, Esq.

Santa Clara University Law School


Abstract


According to the Karlin and Orne position supporting the per se exclusion rule for hypnotized witnesses, a person who has been lobotomized can testify in court, a person who has received massive electroshock treatments can testify in court, a person who has taken enormous dosages of mind-altering psychiatric drugs or psychedelics can testify in court, a person who has suffered substantial organic brain damage can testify in court; but a person who had been competently hypnotized by an experienced licensed professional who carefully followed strict guidelines to avoid undue suggestions, cannot testify in court. This paper rejects the Karlin and Orne position supporting per se exclusion on scientific and policy grounds; and it argues that the currently prevailing expert opinion of forensic hypnosis specialists, in the United States and abroad, also rejects the per se exclusion. In addition, this paper argues that Karlin and Orne are mistaken in their conclusions that (1) hypnosis always contaminates memory, (2) repressed memory does not exist, (3) there is a recognized practice or school of thought called “recovered memory” therapy, and (4) multiple personality disorder (MPD) or dissociative identity disorder (DID) is always iatrogenic.

It is a pleasure to respond to the Karlin and Orne (1996) paper for many reasons. First, because it is a quite thoughtful, well presented, nicely documented, and carefully prepared statement of what has become known as the “false memory” position, it allows a meaningful discussion and debate to proceed in a fruitful manner. Second, the authors are sincere in their concerns about the harm false memories may cause, and I am in agreement with them that some such harm exists and must be recognized, resisted, and removed. We are also in agreement that, as they note, childhood sexual abuse exists and is Amore widespread and horrific than the creation of false memories” about it (Karlin & Orne, 1996, p. 49, n. 2). Third, I would like to seize the moment to pay a debt of gratitude to Martin T. Orne for being the first, in the 1970s, to alert us to the potential forensic problems that might occur when hypnosis is used with memory, and again for being a pioneer in alerting us to the potential problems that might occur when memory is used as the basis of allegations of childhood sexual abuse. The worlds of science and law are certainly far richer due to his cautious foresight. My disagreement with him on some of the problems herein discussed is overshadowed by the many areas in which we are in agreement.

There are two separate issues of importance in this exchange of views, both of which were presented to the federal Court of Appeals for the Second Circuit in Borawick v. Shay (1995), the leading case establishing the appropriate test in federal courts for hypnotically refreshed recollection.1 The first concerns forensic hypnosis and the wisdom of the per se exclusion rule that prohibits testimony about any new memories first recalled during or after an hypnosis session has been held. In my view, and as a matter of judicial precedent, this is the only important issue because it is the only point that will bind other courts. Discussion by the court on any of the other issues addressed by Karlin and Orne is dicta, meaning that while it may be interesting, it does not have the force of law. Most of my response will be directed towards this first essential point.

The second issue concerns the controversial subject of what has been variously called “repressed memory,” “false memory,” “recovered memory” or, more appropriately, according to the DSMBIV, “dissociative amnesia.” As part of the “false memory” argument, discussions of multiple personality disorder (MPD), satanic ritual abuse, and alien abduction have become entwined and inevitable, although careful thinkers keep these different ideas apart. Because the Borawick case did not focus on these issues, my response will only touch on some of them; but the interested reader is advised to consult Brown, Scheflin, and Hammond (1997) for a fuller discussion of my views about them.

What unites these two social, scientific, and legal problems, besides their common concern about the malleability of memory, is that they are both painful illustrations of what has for seven centuries been known as the Buridan’s Ass dilemma.
Buridan’s Ass

Buridan owned an ass. One day, when the ass was very hungry, Buridan tried an experiment. He placed two bales of hay in front of the ass, one bale on the left and the other bale on the right. Both bales were equidistant from the ass and both bales were of equal size. Confronted with this dilemma -- which bale to choose first -- the ass died on the spot of indecision, having no better reason to select one bale over the other (Russell, 1945).

The story of Buridan’s Ass is in reality a logic puzzle credited to Jean Buridan (c. 1295B1356), an influential and controversial professor of philosophy at the University of Paris during the first half of the 14th century.2 Almost entirely forgotten today, it is unmentioned in contemporary formal logic books (Aldisert, 1989; Billig, 1987; Copi, 1982; Holland, Holyoak, Nisbett, & Thagard, 1986; Hurley, 1982), informal logic texts (Blair & Johnson, 1980; Nolt, 1984; Fogelin, 1982; Johnson & Blair, 1983; Scriven, 1976), and books on practical reasoning (Beardsley, 1975; Damer, 1980; Engel, 1982; Flew, 1977; Gula, 1981; Katz, 1986; Toulmin, Rieke, & Janik, 1984; Weddle, 1978). Rescher (1967) has noted that “there is almost no discussion in modern literature of the logical issues involved in resolving the problem of ‘Buridan’s ass’; that is, of reasoned choice in the absence of preference” (p. 428). Nevertheless, Buridan’s Ass serves as a potent metaphor for a dilemma that routinely faces lawyers, judges, and law students when courts are urged to choose between two opposing principles, two contradictory lines of precedent, or two competing opinions about what happened or did not happen in the past.

For example, in Attorney Grievance Commission of Maryland v. Wright (1986), clients filed an ethical complaint against an attorney claiming that he charged an excessive fee in closing out two joint savings accounts and paying from them the inheritance taxes owed. The case was sent to Circuit Court Judge Raymond G. Thieme, Jr. for an evidentiary hearing at which State Bar counsel produced three attorneys who expressed the opinion that the bill was excessive, and the defendant-attorney produced three attorneys who concluded that the bill was reasonable. Judge Thieme, Jr. found that the equal deadlock among the experts, “all of whom the Court knows to be attorneys of impeccable reputation,” prevented either argument from being successful. How then to decide the case? The judge proceeded to use the burden of proof which required the State Bar counsel to prove misconduct by clear and convincing evidence. Because this burden had not been met by the State Bar, the attorney could not be found to have charged an excessive fee.

Perhaps the most visible contemporary public illustration of the Buridan’s Ass dilemma was the confrontation in Congress between the testimony of Judge Clarence Thomas and that of Professor Anita Hill about alleged acts of sexual harassment. Both witnesses were highly believable and highly credible; yet, one of them was not telling the historical truth. How do we choose between them?

Placed in the contemporary debate concerning allegations of sexual abuse, the impact of the Buridan’s Ass problem has not gone unnoticed by courts struggling to resolve it. The excruciating difficulty in these cases is most cogently stated by Judge Jung of the Family Court in Fulton County, New York, in Karen B. v. Clyde M.(1991):

The Court is faced with a dilemma that often confronts a jury or judge, i.e., experts have rendered diametrically opposed opinions. The consequences of this Court’s decision to Mandi are potentially enormous. If she is placed with her mother, and the father limited or excluded from having contact with her, when in fact he has done her no harm, then a tremendous injustice results. If custody is placed with the father, and he has sexually abused her, an equal injustice with a potential for future harm ensues.3

In regard to the two issues to be addressed here, Karlin and Orne, like myself, are in the position of Buridan’s Ass. Suppose Sarah, a woman in her early 40s, tells us that after hypnosis she has recovered a memory of being sexually abused by her father 30 years earlier. Even though, for more than three decades, she had no recollection of the molesting, she is adamant that the memory reflects reality. Sarah’s father, William, vehemently denies the molesting ever occurred. Both father and daughter appear equally sincere, and each one appears equally persuaded that he or she is right.

What is the historical truth? Karlin and Orne and I are asked how to handle the case. We all desire to do the right thing and see that justice prevails. The differences between how I solve the Buridan’s Ass dilemma and how Karlin and Orne do so are the subject matter of this response. Before beginning, I would like to emphasize the fact that our goals are identical and they are pursued in good faith--to be fair, to be just, and to do what is right. Our dialogue hopefully will shed some light on these significant social, scientific, and legal issues.

False Premises, False Logic, False Conclusions

In this section I will attempt to show that the Karlin and Orne premises are fallacious, or their logic faulty, thereby leading them to false conclusions. I begin by noting that we must carefully distinguish between matters of science and matters of opinion or belief. For example, whether repressed memory exists, or whether it is, in the grandiose, and erroneous, language of Ofshe (1993), “the psychiatric quackery of the twentieth century,” comparable to the performance of “lobotomies,” (Ofshe & Watters, 1994), must be a matter of science. While some might believe that the Earth is flat, science informs us otherwise. Upholding the belief that the Earth is flat in the face of the overwhelming scientific evidence to the contrary is simply ignorance or bias. Thus, on some matters, the debate between Karlin and Orne and myself should be resolvable by looking at what the science says.

On other matters, however, such as the wisdom of applying a per se exclusion rule, our differences are on matters of policy, not science, thereby allowing reasonable minds to differ. But even in these policy matters, our conclusions may be based on quite differing interpretations of the underlying science. Thus, what the science says about the relationship between hypnosis and memory is fundamental to our answers to the policy questions concerning the wisdom of total exclusion rules.
Confirmatory Bias

One of the major problems with the Karlin and Orne paper is an exaggerated view of the facts coupled with a confirmatory bias in favor of believing in the ease with which false memories may be created or implanted. They are thereby inclined to perceive every event as proof of their rather extremely stated thesis, which causes them to unintentionally omit or misremember data so that it confirms their views. For example, in the second paragraph on page 43, they refer to the Cardinal Bernadin incident as evidence that memories recovered in therapy during an hypnotic age regression can lead to false accusations. But what they do not tell the reader is that the therapist in that case was not only untrained in hypnosis, but also unlicensed as a psychologist, having received a master’s degree in applied psychology 5 years earlier from an unaccredited institution (Crawford, 1994). The therapist was therefore incompetent to be working with patients at all.

If we remove the Karlin and Orne confirmatory bias, a different viewpoint emerges. It is clear that what is troubling in the Cardinal Bernadin situation is the false accusation itself and not how it came to be false. Thus, the Cardinal would have been equally as devastated if the accuser had based his false allegation on (1) a personal vendetta, (2) an overly suggestive reading of what Karlin and Orne call “recovered memory therapy” literature, (3) a bad therapist who encouraged the belief that the Cardinal was a molester, or (4) a distorted memory of another priest who actually did molest the accuser. Also, the accusation would have been as devastating, and as false, if it were claimed by the alleged victim that he never lost the memories. It is the falsity of the accusations, and not their source, that is troublesome. It is not crucial, and hardly relevant, that hypnosis was involved in this particular case. Indeed, most cases of false allegations of childhood sexual abuse have not involved hypnosis.

The confirmatory bias of Karlin and Orne further appears in their discussion of the Shirley (1982) case, which was one of the three major cases they specifically selected to emphasize in their argument. Karlin and Orne state that after Catherine, the alleged victim, was hypnotized, she stopped telling multiple versions of her story and instead her story “did not waver from her final version, which she told in court with considerable certainty” (p. 57). The implication here is that the hypnosis solidified a now consistent, but completely false, story which was told with confidence and coherence. Karlin and Orne have misremembered the facts, however. According to the California Supreme Court recitation of what actually occurred, the exact opposite of what Karlin and Orne report turns out to be true. The second paragraph of the majority opinion, written by Justice Mosk, clearly states:

The jury believed part of Catherine’s story, as it convicted the defendant of rape; but it also apparently found that she was lying when she described in detail the alleged act of oral copulation, as it acquitted the defendant of that charge. The jury doubtless had a difficult task, since Catherine’s performance as a witness was far from exemplary: the record is replete with instances in which her testimony was vague, changeable, self-contradictory, or prone to unexplained lapses of memory. Indeed, on occasion she professed to be unable to remember assertions that she had herself made on the witness stand only the previous day. (p. 245)

Thus, the hypnosis was ineffective in fabricating a coherent, consistent, false story; and the jury was not awed by the use of hypnosis -- they reached a reasoned approach which accepted some parts of the hypnotically refreshed testimony and rejected other parts of it, as juries do with testimony that was not hypnotically refreshed. Karlin and Orne’s false memory I presume was not the product of hypnosis. Rather, it was one of those tricks memory naturally plays; as they note on page 73, we are likely to remember facts and events in a way that they are more favorable to us or our ideas than may actually have been the case. The confirmatory bias occurs without the use of hypnosis.

Judging Professionals by the Conduct of Lay Practitioners

One cannot fairly attack hypnosis or therapy performed by competent, licensed professionals by pointing to the exploits of poorly trained, nonlicensed practitioners. Yet, when Karlin and Orne move from the Cardinal Bernadin episode and turn to the heart of their defense of the per se exclusion rule, from the more than 700 appellate cases involving hypnosis, and the hundreds more trial court cases, they specifically chose three cases to talk about as proof of the wisdom of their antihypnosis position (pp. 54B58). All three cases involve lay hypnotists. Although the authors do not say so, People v. Kempinski (1980) involved a police hypnotist. They correctly note that State v. Mack (1980) involved what they label as a “self-taught, lay hypnotist” (p. 56); and People v. Shirley (1982) involved a deputy district attorney who was trying to get the alleged victim to tell one consistent, coherent story rather than what she had been doing, which was changing her story every time she told it.

Thus, in the very heart of their defense of the per se exclusionary rule, we find a significant false premise -- Karlin and Orne fail to distinguish between the careful use of hypnosis by a licensed and trained professional, and the careless use of hypnosis by an untrained and nonlicensed lay hypnotist. It should be clear that the conduct of overzealous, incompetent, and biased lay hypnotists does not prove the need for the per se exclusion rule, nor should it be used as the basis for condemning hypnosis in general. This attempt to attack hypnosis by citing the misadventures of lay hypnotists would appear to be a longstanding and fundamental premise of the Karlin and Orne argument. In Karlin (1983), the author described only two cases involving the misuse of hypnosis in the criminal setting, but one of them involved a lay hypnotist.4 Also, Perry (1997), another advocate of per se exclusion, cites only cases involving lay hypnotists, including Borawick. Astonishingly, he somehow fails to report that the Borawick court accepted the “totality-of-the-circumstances” test and rejected the per se exclusion rule.

Thus, I repeat, it is a false premise to demean the work of licensed professionals by citing horror stories of the conduct of lay practitioners.

Confusing Hypnosis with the Malleability of Memory

Another major fallacy in the Karlin and Orne premises is that they mistakenly equate hypnosis with the malleability of memory. This mistake thoroughly permeates their entire argument. For example, Karlin and Orne reject the use of the State v. Hurd guidelines on several grounds, the first of which is that the guidelines Ado not prevent the subject from being influenced by other postevent information and turning such information into ‘memory ‘ during hypnosis” (p. 58, n. 5). As a mountain of evidence has demonstrated, however, this “postevent misinformation effect” is not a function of hypnosis; it is a function of memory because it will occur even if hypnosis is not used (Brown et al., 1997; Spear & Riccio, 1994; Zechmeister & Nyberg, 1982).

All researchers agree that one of the serious problems with memory is its ability to accept some forms of postevent misinformation suggestion. For example, Loftus (1979) discovered that if, after showing a short film to students, she later asked them if they had seen “a” gun, she got a relatively low report. But if she asked the students whether they saw “the” gun, many more reported that they did, even though there was no gun in the film. This relatively simple experiment is repeated constantly in real life as later impressions reshape our recollections of prior events. The postevent suggestion effect is especially significant when eyewitness testimony is used in courts of law to obtain convictions (Loftus, 1979; Ross, Read, & Toglia, 1994; Wells & Loftus, 1984; Yarmey, 1979).

Memory researchers all agree that “postevent misinformation effect” experiments with students at least demonstrate that under certain circumstances, some people can be led to report misinformation as if it were fact (Frischholz, 1990; Loftus, 1980). There is disagreement, however, regarding precisely how easy it is to distort memory by later misinformation. On the one side, Loftus and other false memory advocates believe that memory is easily distorted by suggestion (Loftus & Ketcham, 1994; Ofshe & Watters, 1994). These researchers make two points, both of which have been rejected by other researchers. First, they argue that memory is easily malleable by postevent misinformation. The most useful way to understand this argument is by way of slight exaggeration. Loftus and others show a film of a bank robbery and later provide misinformation about a minor (“peripheral”) detail. For example, they might ask whether the observer saw a pink shirt on the man in the back of the bank. Naturally, because most observers were not looking at the man in the back, who was actually wearing a blue shirt, the misinformation is accepted by a number of observers. False memory writers use this illustration to make a sweeping claim that memory is highly malleable. But if the observers instead were asked whether they saw the rocket ship, none of the observers would accept the misinformation, thus leading the experimenters to conclude, inaccurately, that memory is never malleable. The point is clearly made in the memory literature which discounts Loftus’s high numbers when misinformation involves “gist” rather than “peripheral” details (Smith & Ellsworth, 1987). Yuille (1980) found that a misleading question did not distort the accuracy of memory when it was clear that the observers had a clear and correct memory initially. Thus, in the misinformation experiment, the misinformation effect may work on some observers because they never initially encode the information about the man’s shirt in the back of the bank. When properly encoded, however, the misinformation effect virtually disappears. Smith and Ellsworth (1987) found that when the misleading information was presented by someone described as highly knowledgeable about the events, the misinformation effect was present, but not when the misinformation was presented by someone described as naive about the events. Thus, a social influence effect is present which accounts for the reported distortion.

Researchers not affiliated with the false memory movement have reached conclusions about the malleability of memory that are far more moderate (Brown et al., 1997; Frischholz, 1990). Smith and Ellsworth (1987), reviewing the experimental data, summarize it as follows:

Memories for some facts are relatively immune to alteration by the presentation of misleading information.... It appears that only memories that are somewhat indefinite are subject to distortion on the basis of subsequent information. (p. 299)

Second, false memory proponents argue that postevent misinformation distorts memory by destroying the old memory and replacing it with a new memory of the misinformation and a source amnesia that makes the later information appear to have been part of the original event. Other researchers, however, have rejected this conclusion and demonstrated that by bribes and other means, researchers are able to get observers to distinguish between false reports and false memories (American Society of Clinical Hypnosis, 1995). In other words, observers can tell the difference between what they saw and what they were later told (McCloskey & Zaragoza, 1985).

This problem of the alleged malleability of memory is not related to hypnosis. If hypnosis did not exist, memory would be just as malleable and just as receptive to postevent suggestion. In fact, an overwhelming number of the studies on postevent misinformation have not involved hypnosis at all. Where postevent misinformation experiments have been conducted, however, usually high hypnotizables have been the subjects. Because high hypnotizables appear more vulnerable to suggestion effects, false memory researchers have claimed that hypnosis can easily implant memories (Laurence & Perry, 1983). When other researchers have examined this data, however, it turns out that even among high hypnotizables, the number of subjects who respond to postevent misinformation even for peripheral details is relatively small (McCann & Sheehan, 1988). Furthermore, Spanos and McLean (1986) showed that later instructions given to the subjects were capable of almost eliminating the misinformation effect. They concluded that false reports, not memories, were involved. Naturally, using subjects who are not high hypnotizables and presenting misleading information about the gist of an event would demonstrate virtually no memory distortion.

It should also be noted that memory may be influenced by the very mechanism of retrieval itself -- without suggestion, without postevent misinformation, and without hypnosis. After noting that memory does not work like a camera or a video recorder, Loftus (1980) states:

When a person wants to remember something he or she does not simply pluck a whole memory intact out of a “memory store.” The memory is constructed from stored and available bits of information; any gaps in the information are filled in unconsciously by inferences. When these fragments are integrated and make sense, they form what we call a memory. (p. 163)

This process of “confabulation” is inherent to the nature of memory. A strict reconstructionalist view of memory, such as the one proposed by Loftus and false memory advocates, necessarily means that memory is always false in some respect by virtue of the manner in which memories are stored and then retrieved. On top of this inevitable confabulation effect is the postevent misinformation effect which may add an additional layer of distortion. But, as we have seen, the postevent misinformation effect is a function of the inherent malleability of memory. Most suggestions and subsequent events do not distort memory, however; only some do. Not all hypnotic retrieval suggestions distort memory either, though some might if they are improperly constructed.

Karlin and Orne thus falsely attribute to hypnosis defects that belong to memory itself. Remove the hypnosis, and memory would still have those defects.

Karlin and Orne also falsely attribute to hypnosis defects that belong to social influences on memory. As Beahrs, Cannell, and Gutheil (1996) have noted, “false memories are more likely to arise from social influence, either inside or outside of hypnosis or psychotherapy; intrinsic suggestibility (especially interrogative) and dissociative potential; and less so, simply from being hypnotized” (p. 50). Furthermore, in a comprehensive review of the last decade of research on hypnosis, Sheehan (1996) reaches the conclusion generally accepted by all except a few unwavering false memory advocates that “important conclusion that has emerged from the literature is that memory contamination is a function of memory and influence and not a danger specific to the use of hypnosis” (p. 13) (emphasis added). Karlin (1997) begins to show an understanding of this point when he wrote about the alleged increase in confidence that hypnosis, in his view, invariably produces:

As research during the past decade has shown..., these factors are, in general, not unique to hypnosis. For example, it has been well known for 2 decades that repeated retrieval of a memory comprises an important learning experience.... Recently, Shaw (1996) has shown that events that increase ease of recall, such as repeated recall trials, increase confidence in correct and incorrect information. As in hypnosis, the increase in confidence is independent of the accuracy of the memory. (p. 33)

The real point, which Karlin misses, is that social influence factors, including repeated retrieval attempts, account for the increase in confidence, not hypnosis. For example, Clark and Loftus (1996) have noted:

Social factors have been demonstrated in the laboratory as well. Luus and Wells (1994) showed that a witness’s confidence in an inaccurate identification can be artificially inflated or deflated, depending on whether the witness is informed that another witness picked the same or a different person from the lineup. (p. 142)

Because it is known that social influence factors can have an impact on confidence in memory, these factors can be accounted for in the retrieval process. In addition, cautionary warnings may prove helpful so that familiarity does not breed excess confidence. The point Karlin actually makes, however, is wrong. Karlin assumes that hypnosis, even used once with strict adherence to safeguards, automatically elevates confidence. The recent hypnosis literature demonstrates that this point is not accurate (Brown et al., 1997).

Thus, it is crucial to recognize two common mistakes made by those who fail to read the scientific literature with sufficient care. First, it is a mistake to believe that if false memories occur with hypnosis, hypnosis must have been the cause. Second, it is also a mistake to consider these false reports as if they were false memories.

In order to justify their position, Karlin and Orne would have to cite studies that show that the use of hypnosis, with strict adherence to carefully prepared guidelines, inevitably contaminates memory by causing more memory distortion than other memory retrieval techniques. But the scientific studies unequivocally show that this proposition is not correct (Brown et al., 1997).

Karlin and Orne also severely overstate the extent to which memory is malleable. In fact, as noted in Brown et al. (1997), analysis of the memory literature, the flashbulb memory literature, the autobiographical memory literature, the emotional memory literature, and the traumatic memory literature shows a profound consistency: memory is remarkably accurate for what memory researchers call the “gist” of an event. Ceci (1996) has recently publicly stated this same conclusion applies regarding the children’s suggestibility and memory literature.

Differentiating Between Proper Use and Abuse or Misuse

Karlin (1997) has recently extended his antihypnosis position to include an attack on the Guidelines published by the American Society of Clinical Hypnosis (ASCH) (1995). He describes two cases as important illustrations of the defect of the ASCH Guidelines, yet in neither case were the Guidelines completely followed. The fallacy here is criticizing the proper use of a technique by showing examples of harm caused when the technique is improperly used.

Case 1 described by Karlin (1997) involved at least seven violations of the ASCH Guidelines, including providing erroneous information about hypnosis, omitting factual information about memory, failing to conduct objective testing, reinforcing erroneous beliefs, reinforcing recalled material, and so on. Karlin himself notes many of these violations (pp. 20B26), but then tells us that the judge concluded that the appropriate safeguards had been met. The case was settled before trial. Despite the many violations listed by Karlin, he still states that “the safeguards suggested in the ASCH (1995) report acted to legitimize what was almost certainly created, not refreshed memory” (p. 26). This conclusion is clearly unwarranted. In the first place, Karlin does not explicitly state that the judge was ruling on the ASCH Guidelines. In a telephone conversation with him, Karlin confirmed to me that the judge’s ruling was not based on the ASCH Guidelines, but rather on the Hurd safeguards originally articulated by Martin T. Orne. Thus, it is unfair to attack the ASCH Guidelines if they were not followed, especially because the Hurd safeguards are substantially more lax than the ASCH Guidelines. Furthermore, if the ASCH Guidelines are not followed, but a judge says they were followed, the judge’s error can hardly be blamed on the Guidelines. Finally, the reasons for settlement are not given by Karlin. Had the case gone to trial, Karlin’s presentation of it makes it seem likely that the jury would disbelieve the hypnotically refreshed recollection because eyewitness and expert testimony was so strong against it.

Case 2 described by Karlin (1997) also involved violations of safeguards, as Karlin readily admits. The case was thrown out for that reason. This time Karlin is explicit that the Hurd safeguards were involved, not the ASCH Guidelines, which are substantially more rigorous.

It is interesting to observe that the original title of Karlin’s paper, as stated on page 87 of the Karlin and Orne article in the Cultic Studies Journal, correctly identifies the paper as involving the Hurd safeguards. The deliberate change of title, by someone in the editorial process, to constitute a critique of the ASCH Guidelines, when neither case involved these Guidelines, constitutes a defrauding of the reader.

In sum, Karlin (1997) argues against judicial use of the ASCH Guidelines in all cases because of the two cases he cites, neither of which involved the ASCH Guidelines at all. From his own report, however, it appears that in both cases the safeguards were not met, in neither case did a jury decide in favor of pseudomemory, and in one case the safeguards worked properly because the judge refused admission of testimony where the safeguards were not followed.

This point is especially important because in every case or illustration cited by Karlin (1997, 1983) or Karlin and Orne (1996), hypnosis was used improperly (serious violations of the ASCH Guidelines were present). Not one case or illustration they cite has involved strict adherence to the ASCH Guidelines. If they want to defend a per se exclusion rule, Karlin and Orne must argue, as they do, that the ASCH Guidelines will not cure the problems they claim exist when hypnosis is used in a forensic setting. But, most importantly, if they want to criticize the use of the ASCH Guidelines, they must do so using cases where the safeguards were carefully followed and injustice still resulted. And even in these latter cases, where the Guidelines were carefully followed, they must show that distortion or contamination is inevitably worse compared to other memory retrieval techniques. Karlin and Orne, and anyone else, will find that the scientific literature fails to support their view.

While Karlin (1997) and Karlin and Orne (1996) limit their criticisms of the ASCH Guidelines, and, indeed, reject the viability of any set of safeguards, to the forensic setting, it should be clear that their argument must also extend to the use of hypnosis in clinical settings. In brief, the Karlin and Orne position must be, at minimum, that hypnosis can never be used with memory in therapy because there is always the possibility of a real world legal consequence, and because hypnosis will always distort the emerging memory and will always destroy the original memory. Several cases have made it clear that the use of hypnosis in a purely therapeutic context may nevertheless disqualify the patient from later appearing as a witness in court (Scheflin, 1994b). The patient could then legitimately sue the therapist for deprivation of legal rights. For this reason, to protect patients and therapists from the devastating consequences of the per se exclusion rule, I was the first person to encourage therapists to utilize informed consent forms with patients whenever hypnosis is used (Scheflin, 1993; Scheflin & Shapiro, 1989).

Beyond the use of hypnosis with memory in therapy, would Karlin and Orne also condemn the therapeutic use of hypnosis for any purpose? False memory advocates are currently broadening their attack on therapy by extending and exaggerating their fears about the dangers of hypnosis. Two evolving lines of argument are being advanced by staunch false memory advocates, neither of which is supportable in the scientific literature.

First, there is the claim that even when hypnosis is not being utilized directly, its evil effects occur with techniques that are forms of “disguised” hypnosis. According to Perry (1995), disguised techniques are prevalent in stage hypnosis shows and have been acquired by “recovered memory” therapists. “Disguised” hypnosis, according to Perry, is any request for relaxation, imagination, and so forth. When famed mentalist Kreskin (1977, 1973) said he used suggestion, not hypnosis, in reality, he was using “disguised” hypnosis. Perry writes about a student who discussed with her mother whether she should participate in an hypnosis experiment. On the morning of the experiment, the mother said that maybe the daughter should not participate because “you might never come out of it.” This acted as a prehypnotic suggestion and the student had great difficulty coming out of the trance.

Of course, under this grossly expansive view, hypnosis becomes co-extensive with suggestion. Furthermore, because suggestion is everywhere, for example, in books, in the media, in conversations, and in therapy, it follows that everything is hypnosis. Does Perry really believe that the mother “hypnotized” her daughter?5

Perry also points to T. X. Barber’s views that other processes explain hypnotic phenomena. Guided imagery, for Perry, is one “disguised” hypnosis technique. Perry argues that the “recovered memory” therapists picked up these techniques and added to them their “New Age ideology which argues that insight into the cause of symptoms leads to their alleviation.” Does Perry doubt that this may be true in some cases?

Thus, under this first expansion of alleged hypnotic dangers, even therapists who do not use hypnosis are using hypnosis.

The second expansion is as unpersuasive as the first. In two recent articles, Orne and his associates ( Orne, Whitehouse, Dinges, & Orne, 1996; Orne, Whitehouse, Orne, & Dinges, 1996) have argued that low hypnotizables are also at risk from hypnosis. In other words, hypnotic consequences, especially bad ones, may affect people who, by definition, are not very responsive to hypnotic suggestion.

Thus, under this second expansion, even those patients who are not very affected by hypnosis are affected by hypnosis.

Newman and Baumeister (1996) recently theorized about the variables accounting for reports of UFO abductions, which is one of the main areas false memory advocates list as illustrative of pseudomemory implantation. They suggested an etiology rooted in a desire to escape from self-awareness and masochistic fantasies in persons high in fantasy proneness. Abductees, they suggest, then elaborate on hypnogogic hallucinations through the use of hypnosis, used with them by a UFO devotee who shares their beliefs and expectations. A discussion commentary on the paper by Orne and colleagues reinforces Orne’s (1979) long held position that “hypnosis provides a license for fantasy” (Orne, Whitehouse, Orne, & Dinges, 1996, p. 172), but then introduces a new wrinkle to false memory arguments. The Ornes now take the position, based on retrospective analyses of earlier research (e.g., Dinges et al., 1992; Whitehouse, Orne, Orne, & Dinges, 1991), that even medium and low hypnotizables are vulnerable to contamination from the inherently corrupting influence of hypnosis -- a position that cannot be supported by the bulk of research which shows (1) that the earlier studies were methodologically flawed, and (2) that other studies demonstrate that hypnosis does not contaminate the medium and low hypnotizables in the manner suggested by the Ornes (Brown et al., 1997). For example, Lynn and Kirsch (1996) debunk Newman and Baumeister’s (1996) theorizing by noting:

However, they present an unnecessary and exaggerated account of the role of hypnosis and fantasy proneness. False memories can be created with or without hypnosis, and the role of hypnosis in their creation is likely to be quite small. Similarly, the available data suggest that the trait of fantasy proneness is not likely to be of great importance.... Hypnosis does not reliably produce more false memories than are produced in a variety of nonhypnotic situations in which misleading information is conveyed to participants. (p. 151)

Even further, Lynn and Kirsch state that “the role of hypnosis in enhancing confidence in false memories is also exaggerated” (p. 152); and they strongly criticize the “outdated view” of hypnosis taken by Newman and Baumeister (1996). Lynn and Kirsch (1996) presented recent research evidence (Lynn & Pezzo, 1994) supporting the important role of preexisting, culturally derived beliefs in the formation of UFO scenarios.

The hypotheses of Newman and Baumeister (1996) were also challenged by McLeod, Corbisier, and Mack (1996). They noted that although hypnosis is often used by UFO “investigators,” it cannot account for the origin of these accounts because 30% of them are obtained without hypnosis, and 60%B70% of the information gathered by persons where hypnosis is used is obtained before the hypnosis was used -- a fact reinforcing the possible etiologic role of preexisting beliefs held by subjects. But even more damning of the conjecture that hypnosis creates such false memories is the fact that studies have documented that persons alleging alien abduction are not highly hypnotizable (Rodeghier, Goodpaster, & Blatterbauer, 1991), including when they have been compared to control subjects (Spanos, Cross, Dickson, & DuBreuil, 1993). Furthermore, when abduction reports which were elaborated through hypnosis were compared with material elicited in a nonhypnotic state from persons alleging a clear waking memory for the events without the use of hypnosis, the material was not found to differ in basic structure.

In short, when used carelessly, hypnosis can assist in the creation of false memories. When used carefully, however, hypnosis is a valuable method for retrieving memories that can be proven to be accurate. As Kline (1983) noted many years ago:

When the context within which any procedure, particularly hypnosis, is so altered as to bring about coercion, pressure, and heightened suggestibility, then we are likely to be faced with confabulation or pseudomemories. When any interrogation procedure of investigative process, including hypnosis, is used carefully and is part of the total evaluation of mental process, the results relating to recollections and thoughts may offer a very different picture for evaluation and eventual presentation within the courtroom. (pp. 122B123)

Interestingly, hypnosis has had a dual affiliation with the creation of false memories. A century ago, hypnosis researchers like Bernheim (1891/1980) had already explored the abuse of hypnosis in forensic settings. German hypnotist Albert Moll (1889/1958) cautiously observed that “retroactive hallucinations,” his term for “false memories,” “can be used to falsify testimony. People can be made to believe that they have witnessed certain scenes, or even crimes” (pp. 345B346).

While hypnotists for over a century have been accused of implanting false memories, they have also used false memory as a defense. Staples (1961) cautioned that a rarely acknowledged danger of hypnosis was the possibility that the hypnotist would be sued on the basis of a “false accusation of criminal assault” (p. 238). His paper reports a case of a physician who used relaxation in preparation for a manual ovary manipulation, which was brief and successful. The patient knew the doctor used hypnosis in his practice, though the doctor did not use that term with the patient. Experts agreed that the patient was a good hypnotic subject and that the manipulation might have inadvertently triggered an erotic fantasy or daydream. The physician was acquitted after experts testified that the patient “could have had a fantasy without the intent or knowledge of [the physician] and could have misremembered it as an actual fact.” (p. 241). Staples suggests that, in certain types of cases, a third person should be present or the entire session should be recorded.

Venn (1988) reports two cases, three years apart, where a colonel was accused of using hypnosis to obtain homosexual favors from two enlisted men. In each case, the colonel’s defense was that the men had “fantasized” the events while dreaming. AI cannot be responsible for [their] dreams,” the colonel complained (p. 15).

We shall certainly see a good deal more of the false memory defense in cases of alleged sexual assault.

Misconstruing the Nature of Therapy

I certainly agree with Karlin and Orne on the following points: (1) “psychotherapy is an influence process” (p. 66); (2) outcome studies uniformly find that psychotherapy is by far more beneficial than no treatment (p. 65) and newer techniques are even better for therapy patient improvement compared to controls (pp. 65B66); and (3) “with rare exceptions, psychotherapy has been a beneficent force during the past 100 years” (p. 65). I further agree with them that there are therapists who are performing below the standard of care, and that these therapists are causing harm to patients and others. Therapists who have a confirmatory bias in believing that every adult must harbor hidden memories of abuse, and who conduct the therapy solely to excavate these alleged memories, are practicing below the standard of care. In my own experience, I have seen these therapists in several contexts. In one court case, I testified that, in my opinion, an accusation against a father of molesting his daughter was false (In re Jennifer C., 1992). I suggested to the father’s attorney that she might want to break the cardinal rule of cross-examination: never ask a question unless you know the answer (Wellman, 1936). The attorney followed my advice and asked the therapist who diagnosed the child as abused whether the therapist had ever seen a child who was not abused. The therapist testified that she had never seen a child who was not abused. That testimony blew the case apart, and the father was vindicated against the false allegations by a court judgment in his favor.

In another instance, when I was lecturing in Cambridge, Massachusetts on “false memory” matters, my wife called me to tell about a visit from a friend who had recently suffered a triple tragedy: the development of an excruciatingly painful jaw problem, the death of her mother, and the death of her sister. Our friend, whom I will call Iris, went to a therapist who immediately asked if she had been sexually abused. Iris said that she had not been abused and was in therapy to deal with other matters. The therapist responded that people often are depressed because of things that happened to them as children that they no longer remember. Iris, with anger, retorted that people are also depressed when they are in constant pain and have lost two dear relatives. The therapy session ended at an impasse as the therapist still groped for hidden memories and Iris struggled to center the discussion on her grief. Iris never went back, but she did see another therapist who requested the medical record from the first therapist. Sure enough, the first therapist had written in the record that “the patient denies childhood sexual abuse.”

These two illustrations of bad therapists, practicing what Margaret Singer and Janja Lalich might call “crazy therapy” (M. Singer & Lalich, 1996), give the overwhelming number of good therapists a bad name. Along with Karlin and Orne, and Singer and Lalich, I too speak out against them.

I part company with Karlin and Orne, however, in several matters that generally involve what I consider to be their exaggeration of the influence of therapy and their suggestions for curing what they call “recovered memory” therapy.

While it is obviously true that psychotherapy is “an influence process,” so too is life in general. Influences are all around us and we too, in turn, seek to influence others. But Karlin and Orne, as well as the other “false memory” writers, depict the therapy session as if it were akin to a brainwashing program or a police interrogation in which irresistible Svengali-like authority figures manipulate their helpless, subservient patients. A mildly stated version of this belief appears in Loftus and Yapko, 1995:

The psychological literature is replete with examples of people who blindly obey authority figures whom they perceive as credible, and who conform to others ‘perceptions of ambiguous events (Aronson, 1992). Suggestibility is an inherent dimension of human personality, and is evident to some degree in virtually every interaction (Yapko, 1990, 1995). The interaction that takes place in the context of psychotherapy is predicated on the inevitable influence on the client by the clinician (Haley, 1973). It is not a question of whether such influence ensues, but one of to what degree and with what consequences [emphasis in original]. (Zeig, 1980)

Someone seeking therapy is already immersed in a perceptual frame that includes the following characteristics: (1) a belief that he or she is personally powerless to effect meaningful change; (2) a feeling of hopefulness that a trained “expert” can, through “objective” perspective and refined techniques, help resolve his or her problems; and (3) the notion that a person must conform to the therapist’s perceptions and comply with the therapist’s plan if he or she is to improve. The client is in a “one-down” position relative to the therapist, and, therefore, exhibits a higher degree of compliance in that special relationship than might exist in any of the person’s other relationships. (Haley, 1973, p. 185)

The evidence, however, is otherwise. Claims that there are thousands of women suffering from Afalse memory syndrome” (FMS) are clearly hysterical, and not scientific, reports. Hysteria also fuels the rhetoric linking “recovered memory” therapists to the Salem Witch Trials (Gardner, 1991) or, even more repulsive and insulting, to the extermination of Jews by the Nazis.

The numerical figures of victims who have had false memories of childhood sexual abuse implanted by therapists is generally drawn from the number of people who have contacted the False Memory Syndrome Foundation (FMSF). But it is foolish to believe that every person who contacts that group is necessarily a victim. Likewise, it is equally as fallacious to believe all recanters as it is to believe all accusers. Quite some time ago Erickson (1938) discussed repressed memory and the legal phenomenon of false recanting. It is also foolish to believe that perpetrators openly will admit their crimes and will not seek refuge in an organization like the FMSF; and it is clear that some proportion of perpetrators will be amnestic for the sexual abuse and therefore will sincerely believe in their own innocence.

In the only data-based scientific study to examine “false memory syndrome” on a population of women who alleged that they had been victims of childhood sexual abuse, Hovdestad and Kristiansen (1996) correctly note that “evidence for the claim that pseudomemories are stimulated by suggestive therapy techniques could, by definition, be collected only from women with recovered memories” (p. 319). Hovdestad and Kristiansen found that (1) “although 60.8% of the participants with recovered memories reported that their memories of the abuse...first surfaced at a time when they were in therapy, reports of the use of potentially suggestive techniques were rare” (p. 319); (2) hypnosis was used in only 7.8% of the cases (p. 320);6 (3) “women with recovered memories and those with continuous memories did not have different demographic profiles” (p. 327); (4) “there was no evidence that recovered memories were associated with certain types of therapy; in fact, 39.2% of the women recovered their memories independent of therapy” (p. 328); and, most significantly, (5) Aat most, 3.9% of women with recovered memories could be diagnosed with FMS, and the absolute estimates gave an upper limit of 13.6%, a rate equivalent to that among women with continuous memories” (p. 329). Hovdestad and Kriastiansen conclude that “even if the finding that 3.9% of the women with a recovered memory met the criteria for FMS was misinterpreted to argue that 3.9% have false memories, the false-allegation rate would be identical to the rate of false allegations for any crime, be it rape, robbery, or homicide” (p. 330). Thus, as the authors note, FMS may be “real,” but it is exceedingly “rare” (p. 330). Karlin and Orne’s image of therapy as a false memory manufacturing warehouse thus flies in the face of the facts. By contrast, however, these statistics are entirely consistent with the analysis presented in Brown et al (1997).

Given the reality of childhood sexual abuse, and the facts that (1) patients will report it whether or not it happened, and (2) perpetrators will deny it whether or not it happened, what should therapists do? Karlin and Orne recognize the Buridan’s Ass dilemma when they note the problem therapists face in working with memories of childhood sexual abuse:

Whenever psychotherapists occasion a patient’s recovery of a forgotten memory of ICA, a perpetrator takes the blame for the patient’s misery. The patient and the people who believe her may punish the remembered perpetrators without remorse. If the recovered memories of ICA were correct, it would be difficult to fault this position. But all too often, the “recovered memories” are destructive fantasies, shaped and elicited by a therapist who believes that ICA is at the root of the disorder and memories of it await uncovering by hypnosis. Exploring this hypothesis often devastates the accused, the accuser, and other family members.... This harm is occasioned by the transfer of the patient recollections of abuse from the therapeutic context to interactions with persons meaningfully involved with the patient outside therapy. Given the fictive nature of the narrative developed in psychotherapy (Spence, 1982), this is simplistic, naive, and unfortunate. (p. 66)

Thus, Karlin and Orne express a bias in disbelieving reports of childhood sexual abuse because ‘all too often” these reports are shaped by bad therapists. In fact, however, the reverse is true, as demonstrated by the Hovdestad and Kristiansen (1996) study. All too often, the reports are all too true. The Karlin and Orne bias does not obscure the important point that they are here admitting that long buried reports of childhood sexual abuse can be true. As long as it is possible that the memories may be true, therapists must work with them in therapy as if they are true (Scheflin, 1997a).

An extension of this negative and critical focus appears in Karlin and Orne’s belief that when a patient visits a therapist, a “fictive nature of the narrative [is] developed in psychotherapy” (p. 66). Because they see the whole therapy process as the social reconstruction of fantasy and imagination, which is exactly how they also see hypnosis, Karlin and Orne discount the historical truth of what comes out of therapy. Do they really think (1) that grieving patients basically make up stories with therapist collaboration so that the whole narrative is untrue? Or (2) that the “fictive nature” of the therapy narrative is any different than the fictive nature of autobiographical memory in general, including the stories we tell family, friends, and colleagues?

If we add to this belief in the fantasy story told by the patient Karlin and Orne’s additional belief that therapists are manufacturing false memories by the thousands, we have a pretty good picture of the Karlin and Orne premises. First, patients are not to be believed. Second, therapists are not to be believed. Third, hypnosis is not to be believed. Fourth, hypnotically refreshed recollection is not to be believed. And fifth, recollection in therapy is especially not to be believed. It is no wonder that Karlin and Orne favor a per se exclusion rule!

In my opinion, Karlin and Orne have become too mesmerized by Spence’s (1982) distinction between historical truth and narrative truth. Taken as an absolute, the distinction is dangerously erroneous, as I have argued in Scheflin (1997a).

Karlin and Orne are silent concerning what therapists should do with memories of childhood sexual abuse. We all agree that therapists should not implant or create such memories, but what if such memories spontaneously arise? As Karlin and Orne note, the memories may be “correct” or they may be “destructive fantasies.” There is no litmus test by which to tell the truth of any memory (Spiegel & Scheflin, 1994). As Kihlstrom (1993b) notes in his paper “Exhumed Memory”:

Do we have any way of telling which memories are valid, and which are the product of imagination? The short answer is no. In the final analysis, then there do not appear to be any internal criteria -- that is, standards that can be applied to the statements themselves -- that can serve to distinguish between accurate recollections and fabrications and confabulations. Nothing substitutes for external criteria -- that is, the verification of individual statements by objective evidence. In the absence of such independent corroboration, we have no means of reliably distinguishing between fact and fantasy.

It seems quite clear to me that therapists cannot fairly be held to a standard that punishes them if they believe memories that ultimately prove to be false or unprovable. Karlin and Orne solve this problem by an irrebuttable presumption that the memories are always wrong and so they should never be believed. Thus, although they know that such memories may be true in some cases, they refuse to permit any inquiry into the truth in all cases. In my view, by comparison, I believe therapists are entitled to believe what clients tell them for the purpose of doing therapy, and for the purpose of meeting the requirements of mandated reporting statutes (Levine, Doueck, & Associates, 1995). Historical validity is the work of lawyers, not therapists.

In a very interesting paragraph on page 66, Karlin and Orne write about two ‘rare exceptions” to the rule that “talk therapy” has produced “generally beneficent results”: blaming mothers of schizophrenic children (“schizophrenogenic” mothers), and blaming parents of autistic children. In both cases, according to Karlin and Orne, psychotherapy blamed persons outside “the therapeutic alliance” for what are largely biochemical, and not psychological, problems. Karlin and Orne claim that the profession was wrong in those instances of blaming the innocent and that the profession must “avoid repeating such harmful errors.” The crucial issue then becomes whether dealing with memories of childhood sexual abuse is the same type of error as blaming mothers of schizophrenics or parents of autistic children. It should immediately be clear that vast and important differences are involved.

Childhood sexual abuse is real, it occurs to millions of children, and there are valid reasons to assess blame. If schizophrenia and autism are biochemical in nature, the mothers or parents can never be blamed for the condition. But if mothers or fathers are molesting their children, blame is more than appropriate. Therapists, by hindsight, may have been wrong to conclude that psychological processes shaped schizophrenia and autism, but they are not wrong in noting that psychological processes underlie childhood sexual abuse.

Ironically, when therapists were completely wrong about the etiology of schizophrenia and autism, no ‘false blame syndrome” movement developed urging that countless lawsuits and disciplinary proceedings be filed against therapists. Now that most therapists are right that childhood sexual abuse exists and causes lingering psychological problems, a “false memory syndrome” movement preaches a full-scale legal assault on therapists, and it engages in many reprehensible practices such as those chronicled by K. Pope (1996).

Retrieving Only Accurate Memories

1. Does hypnosis always contaminate memory?

Karlin and Orne assume that hypnosis always contaminates memory, and therefore, safeguards never work. The “inevitability” thesis is well stated by false memory advocate John Kihlstrom (1993a):

Remembering is an act of reconstruction in which expectation and inference play major roles, whereas hypnosis is ultimately an act of the imagination in which normal reality testing is set aside. The hallucinating subject may believe he sees something, but there is nothing really out there; the age-regressed subject may believe she is five years old again, but she has not shrunk in the chair. Similarly, subjects given suggestions for hypermnesia may believe that they have recovered new memories, but this information may not be accurate. In the absence of objective corroborating evidence, there are no tests that can be applied to determine whether a memory is accurate. The situation is made worse by the fact that suggestion is central to hypnosis, raising the possibility that hypnotized eyewitnesses may be more vulnerable to leading questions and other postevent misinformation effects. Even when no new memories are produced, the popular belief in the efficacy of hypnosis may lead shaky eyewitnesses to become more confident in whatever it is that they do remember. (p. 739)

This view is demonstrably false. If there are instances where the use of hypnosis does not contaminate memory, then their thesis must fail. In fact, there are many appellate cases where either (1) the forensic hypnosis sessions produced no deviations from recorded prehypnosis statements, or (2) the deviations are independently corroborated. For example, the South Carolina Supreme Court, in its opinion in State v. Evans (1994), recites the usual list of dangers with hypnosis, but the court nevertheless finds no memory contamination and independent corroboration or the hypnotically recalled details. State v. Evans does not stand alone. As Karlin and Orne are aware, dozens of appellate cases reach these same conclusions: that no new or different memories resulted from the hypnosis, or that hypnotically refreshed recollection was independently corroborated (Raginsky, 1969).

2. Hypnosis does not always produce accurate recall.

Karlin and Orne echo other false memory writers when they claim that (1) hypnosis does not always produce accurate recall, and (2) it is not possible to tell which parts of hypnotically refreshed recollection are accurate and which are not. Karlin and Orne are correct, but their target is really memory, not hypnosis. As Kihlstrom (1993b) has observed, no memory carries with it its own stamp of authenticity. We cannot know, regardless of the retrieval technique, which memory is true and which is false. To say that hypnosis is unreliable because a memory elicited in hypnosis may be true or false is to fail to condemn all other retrieval techniques on precisely the same grounds. Once again, the problem here is with memory, not hypnosis.

It is sometimes claimed that hypnosis is unreliable because there is no research which shows an increase in accuracy of memory with hypnosis. But there are studies that show that when hypnosis is used properly, additional accurate information may become available (Brown et al., 1997). Are there any memory retrieval techniques which always show increased accuracy? There are none. Many studies, if not most studies, are instructive on how to avoid excessive contamination; they do not otherwise address increased accuracy.

The Karlin and Orne view, that hypnosis should never be used with memory because it inevitably contaminates memory, is thus unsupported by the science, the cases, and sound policy. The Wisconsin Supreme Court, in State v. Armstrong (1983), permitted hypnotically refreshed recollection to be introduced into evidence provided that certain safeguards are met. The trial judge must review the hypnotic session to determine whether the hypnosis has unduly tainted the memory. The court’s analysis, which avoids the Karlin and Orne error of confusing hypnosis with memory, is exactly correct: “There are no experts who can testify as to what specific effects hypnosis has had on the witness ‘memory; just as there are no experts who can testify that a normal waking memory of an event is in fact a completely accurate representation of what accurately occurred. The most a trial judge can do is review the hypnotic session to ensure that no impermissible suggestiveness has occurred” (p. 393).
The Existence of Repressed Memory

On page 44, the authors continue their criticism of therapy by stating that many therapists believe that “psychogenic amnesia” commonly follows traumatic stress. The authors then claim that this idea has “little scientific support.” The scientific facts, however, prove otherwise. First, the DSMBIV has replaced the term “psychogenic amnesia” with the term “dissociative amnesia,” and I will use that more appropriate designation. Second, and more important, is the fact that every study conducted on the subject, all of which are relevant to the guidelines suggested by false memory proponents Pope and Hudson (1995a, b), has documented dissociative amnesia in cases of childhood sexual abuse. Scheflin and Brown (1996) reviewed 25 studies, the only studies available at the time, and discovered that every one of them found dissociative amnesia. Since that article was written, five more studies have appeared, and they, too, reach the same conclusion as to the reality of dissociative amnesia (Brown et al., 1997). Thus, after a careful search of the scientific literature directly on point, 30 studies document dissociative amnesia; none find against it. Whitfield (1997) has recently raised the number to 36 studies, and Henderson (1997) has reported on study 37.

While objections may always be raised concerning the methodology of any particular study, these 36 studies reflect a variety of methodological procedures, not just one common experimental design. The first round of studies were surveys using clinical samples of persons in therapy (Albach, Moorman, & Bermond, in press; Briere & Conte, 1993; Cameron, 1994; Draijer, 1990; Ensink, 1992; Herman & Schatzow, 1987; Kluft, 1997; Loftus, Polonsky, & Fullilove, 1994; Roe & Schwartz, 1996; Pomerantz, 1996); or using therapists (Feldman-Summers & Pope, 1994; Fish & Scott, 1996; Polusny & Follette, 1996; Westerhof, Woertman, & van der Hart, in press). False memory advocates criticized this method on the grounds that it involved people who were in psychotherapy.

A second round of studies sought to correct for this point by asking survey questions of people entering psychotherapy (Gold, Hughes, & Hohnecker, 1994). False memory advocates criticized this method on the grounds that there was still sample selection and experimenter bias because of the psychotherapy setting.

A third round of experiments answered this objection by surveying nonclinical targeted and/or random samples -- people not in or entering therapy (Golding, 1995). College student populations in the United States (Bernet, Deutscher, Ingram, & Litrownik, 1993; Elliott & Fox, 1994; Golding, Sanchez, & Sego, 1996; Melchert, 1996) and Canada (Belicki, Correy, Boucock, Cuddy, & Dunlop, 1994) provided the resource for some of these survey studies, while others used random samples of people who responded to advertisements in newspapers (Hovdestad & Kristiansen, 1996; Kristiansen, Felton, Hovdestad, & Allard, 1995; Van der Kolk & Fisler, 1995), to toll-free telephone numbers (Roesler & Wind, 1994), to random telephone numbers (Elliott & Briere, 1995), or to mailed questionnaires sent to targeted persons who claimed to be victims of Father Porter, a priest who confessed and was convicted of sexually molesting dozens of boys and girls decades earlier (Grassian & Holtzen, 1996), or to targeted people claiming ritual abuse (Goodman, Qin, Bottoms, & Shaver, 1995). Once again, however, false memory advocates complained that these types of studies failed to document the existence of the alleged childhood sexual abuse.

To correct for this objection, a fourth round of studies was conducted, this time involving prospective designs which started with hospital records of actual abuse and involved tracking down the victims decades later (Burgess, Hartman, & Baker, 1995; Widom & Morris, in press; L. M. Williams, 1994). Once again, however, the false memory critics rejected this method because it failed to add a follow-up “clarification” interview as described by Femina, Yeager, and Lewis (1990). Scheflin and Brown (1996) have pointed out, however, that the use of such a “clarification” interview is unduly suggestive because it signals to the subject the answer the questioner wants to receive.

Taken as a whole, and especially considering the variety of designs, and the different methods within each design, these studies constitute a formidable body of research work demonstrating that proponents of repression have met their burden of proof.

Opponents of repression, who have failed to cite a single study in the world memory literature supporting their view, as a final attempt to save their belief that repressed memory does not exist, have argued that the scientific studies demonstrate only “forgetting,” not “repression.” This approach was adopted by a recent Maryland court to deny the existence of repression on the grounds that it is indistinguishable from forgetting. As we shall see, however, that court’s reasoning is both incomplete and fallacious. In Doe v. Maskell (1996), plaintiffs claimed repressed memories and requested application of the delayed discovery rule that would permit bringing a cause of action after the statute of limitations period expired (Spiegel & Scheflin, 1994). In denying plaintiffs ‘request, the court found that the crucial question was whether there was a difference between repressing and forgetting. Mere forgetting would be insufficient to toll the application of the statute of limitations. But the plaintiffs in this case claimed that they had not “forgotten,” but rather they had “repressed” the memories and “recovered” them much later in time. The heart of the court’s analysis is contained in this excerpt, reprinted at length because of the importance of the arguments raised:

To aid in an understanding of plaintiffs argument, we have extracted two implicit assumptions: 1. That there is a qualitative and quantitative difference between “repression” and mere “forgetting;” and 2. that this difference is of a sufficient quality to compel us to find that plaintiff is excused by operation of the discovery rule and had no reason to have known about the existence of her cause of action....

We begin by attempting to understand what repression is. Even defining the term is not easy; it originated with Sigmund Freud who used the term differently and sometimes contradictorily throughout his career. David S. Holmes, The Evidence for Repression: An Examination of Sixty Years of Research, in Repression and Disassociation: Implications for Personality, Theory, Psychopathology and Health, 85, 85B86 (J. Singer, ed., 1990) [hereinafter “The Evidence for Repression”]. Holmes chooses to adopt a definition of repression based on the manner in which the term is conventionally used: “It is my belief that in its general use the concept of repression has three elements: (1) repression is the selective forgetting of materials that cause the individual pain; (2) repression is not under voluntary control; and (3) repressed material is not lost but instead stored in the unconscious and can be returned to consciousness if the anxiety that is associated with the memory is removed. The assertion that repression is not under voluntary control differentiates repression from suppression and denial, with which it is sometimes confused....” The Evidence for Repression at 86.

The plaintiffs have provided us with several studies purporting to validate the diagnosis of repression. [The court here cites the four studies discussed by Pope and Hudson. It does not cite or discuss any of the other 26 studies.]

The Defendants have also offered significant scientific information tending to discredit the concept of repression and its application in this setting. These arguments against repression take several forms.

First, the adversaries of repression stress that there is no empirical, scientific evidence to support the claims that repression exists. The studies purporting to validate repression theory are justly criticized as unscientific, unrepresentative, and biased. See, for example, Harrison G. Pope, Jr. & James I. Hudson, “Can memories of childhood sexual abuse be repressed?,” 25 Psychol. Med. 121 (1995); The Evidence for Repression at 96B99. The reason for the failure of repression enthusiasts to obtain empirical evidence may be the nature of the process itself. As Dr. Jason Brandt of the Johns Hopkins University School of Medicine testified: “There are clear cases of people who claim that they don’t remember things that happened in their past for whom no neurologic cause can be found. They don’t have brain damage. They have nothing organically wrong that can account for [the claimed memory loss]. The question whether they remember or not, whether they truly have the mental state of a memory or not is impossible to determine.” “We know what they are reporting, we don’t know what they are experiencing. Furthermore, I believe that it is virtually impossible to distinguish psychogenic amnesia from faking, from malingering since the distinction between the two hinges on how conscious it is to the person and how willful it is, how intentional it is. And how conscious somebody is and how willful they’re being, are things that in spite of what we may say, we really don’t have any way of assessing.” Just because there is so far no empirical validation for the theory of repression is not alone sufficient reason to discount the concept, yet it does cast some doubt.

Second, critics of repression theory point out that the scientific, and specifically, the psychological community has not embraced repression theory, and that, in fact, serious disagreement exists. [T]he existence of consensus (or lack thereof) in the scientific community is a...useful measure for this Court to evaluate the acceptance, and acceptability of a scientific theory.

Finally, critics of repression theory argue that the “refreshing” or “recovery” of “repressed” memories is more complicated than repression proponents would have us believe. This argument takes two forms: (1) that memories refreshed with the assistance of a mental health professional are subject to manipulations reflecting the biases of the treating professional; and (2) that a repressed memory cannot be retrieved whole and intact from the cold storage of repression. Despite the defendants attempts to characterize this case as one of assisted or enhanced memory recovery, this is simply not a situation in which the plaintiffs ‘memories have been manipulated by one or more mental health professionals acting in the guise of treatment. Nonetheless, in crafting a rule we must consider the apparently very real dangers of iatrogenic (therapist created) memories of sexual child abuse....

After reviewing the arguments on both sides of the issue, we are unconvinced that repression exists as a phenomenon separate and apart from the normal process of forgetting. Because we find these two processes to be indistinguishable scientifically, it follows that they should be treated the same legally. Therefore we hold that the mental process of repression of memories of past sexual abuse does not activate the discovery rule. The plaintiffs ‘suits are thus barred by the statute of limitations. If the General Assembly should wish to rewrite the law, that is its prerogative and responsibility.

The Doe opinion contains many serious flaws, only a few of which will be dealt with at this time. First, the court primarily relies on one article by Pope and Hudson, and one chapter by Holmes to support its conclusion. Pope and Hudson are members of the Scientific Advisory Board of the False Memory Syndrome Foundation (FMSF), and so is Holmes. The FMSF argues against the concept of repression and in favor of the idea that it is easy to implant false memories. Because most of the major medical and mental health organizations accept repression, the FMSF Scientific Board at best can be described as a “respectable minority” under the “two schools of thought” doctrine (Brown et al., 1997; Jones v. Chidester, 1992). Their view is not the prevailing scientifically accepted view; it is the dissenting voice against the majority position. This point is even more significant when we directly turn to the Holmes chapter relied upon by the court.

In citing the chapter by Holmes, the court amazingly ignores the other 17 chapters in the book, all of them written by the field’s leading researchers in support of the concept of repression. Thus, the Holmes position does not represent the prevailing scientific view. Citing Holmes’s position on repression as the accepted view of memory scientists is the equivalent of citing Thomas Szasz as proof that psychiatrists in general do not believe in mental illness. Indeed, had the court read the Holmes chapter, the judges would have discovered that Holmes himself notes at the very beginning that his severely critical position is a distinct minority viewpoint in the prevailing scientific community. He writes that when he asked why he had been invited to participate, he was told that the book was intended to contain “the entire spectrum of points of view concerning repression and that my view was certainly ‘different’ from those of most of the participants” (J. L. Singer, 1990, p. 85). Thus, Holmes was honest in acknowledging that his antirepression position was at odds with mainstream mental health and research thinking, and so it is (Erdelyi, 1996). Gleaves’s (1996b) definitive paper on Holmes’s analysis makes it clear that any reliance on that analysis for an attack on amnesia for childhood trauma is woefully misplaced.

The Doe court also ignores the obvious point that the reason why it is possible to say that there is no laboratory proof of repression is because repression cannot be studied in the laboratory. Ethical codes prohibit the traumatization of human subjects used in experiments, especially when those subjects are young children and when the experiment involves their sexual molestation. As Pope and Hudson have noted in their two articles (1995a, b), the only relevant studies are those that involve actual traumatization of children. This traumatization cannot be duplicated in the laboratory. Furthermore, it is rather odd to believe that if something cannot be confirmed in the laboratory, it therefore does not exist.

The court cites the Pope and Hudson (1995a) article to support the view that no credible studies exist supporting repression. Yet, ironically, it fails to notice that the article itself distinguishes between “repression” and “forgetting” by making this distinction one of the criteria for evaluating the scientific studies. In other words, Pope and Hudson require that the traumatic events studied be the kind that are not likely to be forgotten. If they are “forgotten,” then, repression must exist. According to Pope and Hudson (1995b):

The burden of proof rests on those who hypothesize that human beings can actually expel traumatic memories from consciousness.

This required proof may be simply stated: To reject the null hypothesis and demonstrate “repression,” one need only exhibit a series of individuals who display clear and lasting amnesia for known experiences too traumatic to be normally forgettable. (p. 715)

Indeed, as Pope and Hudson (1995b) themselves correctly point out, to

demonstrate “repression,” one need only exhibit a series of individuals who display clear and lasting amnesia for known experiences too traumatic to be normally forgettable. It does not matter whether one terms this phenomenon “repression” (as we have here), “dissociation,” or “traumatic amnesia.” (p. 715)

Thus, repression, for Pope and Hudson, is lack of recall in precisely those situations where one would be expected never to forget. Most traumas for most people fall into the category of Ait was so terrible I will never forget it.” Constant intrusive thoughts and dreams of the trauma are one of its major consequences. Some traumas, however, like childhood sexual abuse where the victim is molested and betrayed by a primary caregiver (J. Freyd, 1996), are so severe that, for some people, repressing recollection of it is essential to survival. Is this really so surprising? Not to mental health professionals. Janet and Freud were well aware of repression and dissociative phenomenon a century ago (Brown et al., 1997). Erickson in 1938 was writing about the psychological and legal dynamics of repression, and also about “the not unusual legal situation in which a female, after sexual usage, testifies first against the offending male and then, after a period of suffering, reverses her beliefs and attitudes to testify sincerely in his behalf” (p. 551). Clinicians have reported memory loss in patients throughout the century. Even in trauma studies where some memory of the trauma has remained, a robust finding has been that some victims of all types of traumatization will suffer memory distortion and impairment (American Society of Clinical Hypnosis, 1995; Brown et al., 1997).

For example, substantial memory disturbances were found in some survivors of traumas such as earthquakes (Cardena & Spiegel, 1993), concentration camp experiences (Chodoff, 1963; Kinzie, Sack, Angell, Clarke, & Ben, 1986; Krell, 1993; Strom et al., 1962), pipeline explosions (Realmuto, Wanger, & Bartholow, Jr., 1991), rapes (Rothbaum, Foa, Riggs, Murdock, & Walsh, 1992), building collapses (Wilkinson, 1983), ethnic cleansing in war (Weine et al., 1995), and lightening strikes (Dollinger, 1985). These studies were not primarily focused on memory, but they all reported memory deficits in a substantial part of the populations studied. Interestingly, Dollinger (1985) found that 2 of the 38 children studied after watching lightening strike and kill a playmate had no memory of the event; and Weine et al. (1995) noted that some of the Bosnian refugees fleeing from “ethnic cleansing” “demonstrate a profound capacity for not knowing about traumatic events that they have reportedly experienced. Not yet 1 year after the war, some refugees question whether or not it happened at all” (p. 51).

One final semantic point. The concept of “forgetting” in common parlance is a generic term that includes all forms of not remembering, including repression, dissociation, amnesia, and so on. Therefore, it is not unusual for people who cannot recall to say they forgot. But the mechanisms for being unable to recall may be very different. In some instances, it may be a retrieval problem, while in others it may be an encoding or a storage problem. Technically, however, repression is different than ordinary forgetting; and Pope and Hudson (1995a, b) have identified an important difference: traumas not likely to be forgotten may be repressed.

The Doe court’s conclusion that severe childhood sexual abuse sustained over a long period of time was merely “forgotten,” and therefore was not worth legally recognizing, violates common sense, laboratory science, and human compassion.

Even without this scientific data, before many of the studies had been reported, some major mental health professional associations had recognized the concept of repressed memory. For example, the American Psychiatric Association (1993) “Statement on Memories of Sexual Abuse” specifically notes:

Children and adolescents who have been abused cope with the trauma by using a variety of psychological mechanisms. In some instances, these coping mechanisms result in a lack of conscious awareness of the abuse for varying periods of time. Conscious thoughts and feelings stemming from the abuse may emerge at a later date.

Similarly, the American Psychological Association’s (1996) Final Report from the Working Group on Investigation of Memories of Childhood Abuse acknowledges that “it is possible for memories of abuse that have been forgotten for a long time to be remembered” (p. 1). As noted by Presiding Judge Dalianis in State v. Walters (1995):

Finally, even Dr. Loftus conceded upon cross-examination that the APA policy which she helped to create notes that “it is possible for memories of abuse that have been forgotten for a long time to be remembered.”... The language of the APA report indicates that the challenge to recovered memories which is included therein concerns the mechanism by which the delayed recall occurs, rather than the fact of its occurrence.... Furthermore, Dr. Loftus acknowledged that dissociation from a traumatic event is a recognized phenomenon. (pp. 23B24)

Judge Dalianis found further proof of the existence of repressed memories from the testimony of Dr. Hudson, who stated that repression is not generally accepted in the scientific community. On cross-examination, however, Hudson proved himself to be unfamiliar with the scientific literature. According to Judge Dalianis:

The court is persuaded by the results of studies, elicited upon cross-examination of Dr. Hudson, that Dr. Hudson’s statement that no studies evidence the phenomenon of traumatic repression is incorrect....

In addition to the fact that the majority of experts and the recent studies evidence that traumatic amnesia is a recognized phenomenon, the general acceptance of the phenomenon is evidenced by the fact that it has been referenced in psychological works and studies for over one hundred years. Finally, the fact that traumatic amnesia is referenced in the Diagnostic and Statistical Manual utilized by all experts in the area of psychiatry and psychology persuades the Court that it is an acknowledged phenomenon. (pp. 24B26)

The American Medical Association Report of the Council on Scientific Affairs entitled “Memories of Childhood Abuse” (1994) considers the view that repressed memories do not exist to be “extreme.” The report cites studies showing that there are cases where amnesia for childhood sexual abuse exists because the “recovered memories proved to be correct” (p. 3).

The most thoughtful report was issued by the British Psychological Society (1995) because the report was based on thorough research and investigation. Significantly, the Society considered the false memory position on repression to be an “extreme position” (p. 6) and preferred to discuss the available scientific evidence for traumatic amnesia. The Society concluded that “forgetting of certain kinds of trauma is often reported” (p. 14) for very different kinds of trauma ranging from war trauma to childhood sexual abuse. The available evidence suggests between one third and two thirds of people have periods of time when they “totally or partially forgot the abuse” (p. 13). Regarding the evidence for false beliefs of childhood sexual abuse, the report drew a distinction between incorrect memories (event actually happened but some details are incorrectly remembered), false memories (event never happened), and false confessions. While “a great deal of evidence” is available about incorrectly remembering details, there is “much less evidence on the creation of false memories” (p. 29). Scientific evidence for the common occurrence of misremembered details about actual experiences (memory fallibility) cannot be used to support claims about false memories.

Turning to memory suggestibility, the report concluded that individuals who are highly suggestible, and less suggestible individuals in response to waking suggestions by “authority figures” or to hypnotic suggestions, may create false memories (p. 14). The report clearly cautions, however, that there is little evidence that “a few suggestive questions in therapy” lead to false memories. The phenomenon of false memories is different from forensic data on false confessions in that false memories are believed and retained over long intervals, while false confessions extracted through interrogation are not believed and are not stable. The report significantly concludes by stating that (1) “there is no reliable evidence at present that this [false memory] is a widespread phenomenon” (p. 3); and (2) the claim that false memories are largely a product of a therapist’s rigid beliefs about abuse in patients who do not present with abuse is not substantiated by the facts.

As a final point, the report also investigated the data on accusers and alleged offenders collected by the British False Memory Society, because many of the hypotheses about therapeutic suggestion of false memory were derived from these data. The reporters discovered, contrary to claims of false memory advocates, that only about one fourth of the accusers reported to have recovered memories after a period of total amnesia. Therefore, there was no solid evidence to support the claim that alleged false memories are primarily created in psychotherapy.

Therapists were instructed to be “open to the emergence of memories of trauma which are not immediately available to the client’s consciousness” (p. 25), but also alert to the possibility of therapeutic suggestion. When a patient reports a memory, “it is important for the therapist not to form premature conclusions about the truth status of a recovered memory” (p. 24).

The Kentucky Attorney General’s Final Report of the Task Force on Child Sexual Abuse (1995) also validates repressed memory:

The recent creation of the False Memory Syndrome Foundation has brought public and media attention to the controversy over whether memories of child sexual abuse reported by adult survivors are valid. In reviewing this issue, the Task Force looked at research studies which revealed that up to 60% of child sexual abuse survivors report incomplete, or a total absence of, abuse-specific memories at some point after victimization. Research has also shown that this type of delayed recall is often associated with more violent and terrorizing cases of abuse.

While the high standard of evidence required by due process has questioned the credibility of testimony based on delayed recall of abuse memories, these questions should result in additional research and case law, but should not serve to invalidate the actual experience of any abuse survivor. (p. 10)

Karlin and Orne move on to a related set of premises by rejecting claims that memories for traumatic events are stored differently in the brain from other emotional memories and that they emerge “unscathed through the mists of time” (p. 44). Once again, the science fails to validate their opinions. There is now available substantial evidence from the biochemical and neurological memory literature that traumatic memories are stored and retrieved differently in the brain from other memories (Bowman & Mertz, 1996; Bremner, Krystal, Charney, & Southwick, 1996; Brown et al., 1997; van der Kolk, McFarlane, & Weisaeth, 1996).

On the issue of the accuracy of these emerging memories, Loftus and Yapko (1995) observe that as of 1993, “there have been no studies specifically demonstrating the validity of repressed memories of childhood abuse that return in adulthood (Brewin, Andrews, & Gotlib, 1993)” (p. 178). As of mid-1997, however, there are two available studies in the world on this point, and they both conclude -- contrary to the Karlin and Orne and the Loftus and Yapko positions -- that so-called traumatically repressed memories are no less accurate than memories continuously and always remembered (Dalenberg, 1996; L. M. Williams, 1995).

Thus, as a matter of science, contrary to the Karlin and Orne belief system, dissociative amnesia is a real phenomenon recognized in every study and acknowledged by most of the major mental health organizations. Meanwhile the Karlin and Orne view has no scientific support; and, given the absence of such support, their claims might not even qualify as a “respectable minority” position.

In fact, in a recent letter from Pamela Freyd, Executive Editor of the FMSF, to the New York Times (P. Freyd, 1997), objection is taken with the view that the FMSF “seeks to brand most recovered memories as fabrications.” Instead, the FMSF:

has sought to bring to public attention the fact that when memories are “recovered” with the use of techniques such as hypnosis, sodium amytal, dream interpretation, participation in survivor groups and reading suggestive literature, those memories are not necessarily reliable. The FMS Foundation has stated since its inception that some memories are true, some a mixture of fact and fantasy and some are false -- whether the memories are continuous or remembered after being forgotten.

Theories about memory are fascinating and important. The current problem, however, is discriminating true from false memories.

I agree with Freyd that the real issue is the accuracy of any memory, no matter how it is retrieved. I also agree that memories long unavailable to the person, whether “forgotten” or “repressed,” may also be accurate. The L. M. Williams (1995) and Dalenberg (1996) studies demonstrate that repressed memories are no less accurate than continuous memory.

Thus, because all studies show that for some significant subset of the population of sexually abused children, accurate memories of the abuse may not become available for a substantial period of time after the abuse ended (Brown et al., 1997; Scheflin & Brown, 1996), courts and legislatures should (1) accept the legitimacy of repressed memories, (2) recognize that repressed memories are not more accurate because they are repressed, but they are not less accurate either, (3) acknowledge that the only true test of the accuracy of any memory is independent corroboration, and (4) adopt the view that any method of memory retrieval should be examined for undue suggestion under a “totality-of- the-circumstances” test. I have no quarrel with the Utah Supreme Court’s reasoning in Olsen v. Hooley (1993) that, as a tactical matter for accusers who want to win recovered memory cases, some corroborative evidence will be necessary to shift the burden of proof in their favor:

It is common knowledge that memory is not only elastic but malleable, thus raising the possibility that revived memories, even if true, are not entirely accurate.... Moreover, questions may be raised with respect to therapeutic methodologies used to revive memories because they may induce memories of events that never happened. The concern with respect to the reliability of memories revived in therapy is a matter of some scholarly debate....

Because of concerns about the reliability of memory in general to events that occurred long ago, apart from repression, and the difficulty of defending against claims of revived memories of sexual abuse, we think it necessary to require that a plaintiff who alleges repression of memory as a basis for tolling the statute of limitations produce corroborating evidence in support of the allegations of abuse.

The Iatrogenesis Accusation: Memory and Suggestion

The difficulties with the Karlin and Orne analysis are further compounded when the authors move, beginning on page 44, to their description of “iatrogenically created remote memory.” Even they acknowledge that their depiction “includes extremes” (p. 48), but the whole characterization is in fact a straw man for several reasons. First, their lament against “recovered” memory must be put in perspective. By definition, and quite obviously, every memory is “recovered” -- that is what it means to be a memory. Second, there is no official, authorized, recognized or legitimated “school” of “recovered memory therapy.” There are no professional conferences on this subject, there are no journals for this therapy, and there are no professional listings for “recovered memory therapy or therapists.” Where one sees references to “recovered memory therapy” is in the literature distributed by false memory proponents who initially coined the term for pejorative purposes and now, having repeated it enough, have come to believe it is real. Karlin and Orne’s depiction is a composite nightmare of bad therapy, but it is not an accurate portrayal of a recognized, existing school of treatment. It would be identically unfair to attack therapy because some therapists unethically have sex with their patients, or to condemn hypnosis because some professors of psychology use it to seduce students. I do not doubt that there are therapists who do some of the things described by Karlin and Orne, and perhaps a few might come close to doing all of them; but these therapists do not practice a legitimate form of therapy. Rather, they are performing below the recognized standard of care. Every profession unfortunately has its share of incompetents. The mental health associations do not support the practices described by the authors, and the overwhelming number of therapists do not act as described. Furthermore, the model for competent trauma treatment does not include the practices described by the authors (Brown et al., 1997).

Another aspect of the Karlin and Orne description of “recovered memory” therapy deserves mention. It has become commonplace for false memory advocates in their writings and courtroom testimony to assume that patients who read books like The Courage to Heal (Bass & Davis, 1988) become contaminated by suggestions contained in the book and begin manufacturing false memories accordingly. Indeed, some lawsuits were filed against the authors of The Courage to Heal on a variety of theories, all of which were unsuccessful (David v. Jackson, 1994; Mark v. Davis, 1994). What Karlin and Orne do not say, however, is that books on the other side of the repressed memory controversy that are equally as opinionated and polemical, such as those by Loftus and Ketcham (1994) and Ofshe and Watters (1994), which Karlin and Orne cite with favor, must then be considered equally as suggestive in the opposite direction. Indeed, false memory supporters and lawyers have been using these books as training manuals for recanters in precisely the same way as the therapists they criticized for using The Courage to Heal as a training manual for accusers. The suggestion dynamic, however, works both ways. In each case, the vulnerable patients are exposed to intensive peer group pressure, they are encouraged to read a distinctly one-sided propaganda-like literature, there is extensive networking with other patients who are further along in the indoctrination process, and the patients are bombarded with positive suggestions from benevolent figures of authority and influence who offer them “abuse excuses” for their past behavior. Whether practiced by therapist or lawyer, whether in favor of accusing or recanting, the process of undue influence runs in both directions.

The Iatrogenesis Accusation: Multiple Personality Disorder

The iatrogenic thesis is expanded by Karlin and Orne to include the entire diagnosis of Multiple Personality Disorder (MPD), now called Dissociative Identity Disorder (DID) in the DSMBIV. Their thesis is simple: patients are trained by therapists to act the role of a person with MPD. The MPD condition itself does not exist apart from its creation and shaping by the suggestions of therapists who believe in it.

It must be stated at the outset that the Karlin and Orne position is not accepted by the prevailing community of experts. Multiple Personality Disorder has been recognized in psychiatry for over a century, and has been officially endorsed since 1980 in the DSMBIII, and also in the following two revisions. The DSM is the officially recognized standard binding on psychologists, psychiatrists, and other mental health healers. While Karlin and Orne have every right to disagree with the DSMBIV position and lobby for change, it must still be acknowledged that they do not speak the prevailing accepted viewpoint. If they fail to abide by the DSMBIV position while it is in force, however, they would be committing malpractice. Their defense -- ”We do not believe in that condition” -- would be as ludicrous as the psychiatrist who fails to diagnose schizophrenia because he thinks it does not exist, or the automobile driver who does not believe in speeding laws and so does not obey them. In essence, the DSMBIV position is “the law” until reversed or overthrown.

In response to this position, some experts have argued in and out of court that the DSMBIV is not “the law” and should not be so considered. They argue that the DSMBIV is merely a consensus political document drafted by self-interested parties as a social convention carrying no more authority than any other expression of opinion.

Proponents of this “social consensus” view fail to recognize that “the law” itself is a “social consensus.” While everyone is free vocally to disagree with “the law” and urge changes in it, this disagreement cannot take the form of disobedience without civil or criminal consequences. So too for disagreements with the DSMBIV. Minority view proponents may strenuously urge revision or repeal of certain sections, but downright disobedience constitutes a violation of the prevailing standard of care set by that profession.

Perhaps the most foolish argument in the scientific literature that MPD is iatrogenic was published by Seltzer (1994). He tells a story about a therapist of his acquaintance who had eight MPD cases and was unable to cure any of them. When Seltzer took over the treatment by denying the existence of MPD and handling the patients as suffering from other disorders, all of the patients were cured. Therefore, according to Seltzer, MPD is iatrogenic. It does not take a rocket scientist to understand that all Seltzer has demonstrated, at best, is that his friend is a poor therapist. He has proven nothing. The laws of logic make it clear that it is improper to generalize from eight patients of one therapist to all MPD patients of all therapists. This glaring error, coupled with the absence of detail and the misunderstanding of the relevant science, should, at minimum, have been spotted in peer review.

Karlin and Orne are not this foolish. Quite the contrary. Their article raises exceptionally important points about the genesis, evolving history, and current understanding of the MPD/DID diagnosis. As they currently observe, MPD has moved from an exceedingly rare and relatively simple condition to a current epidemic in terms of the number of people diagnosed MPD, the number of alters these people possess, the alleged behavior of these alters, and the etiology of the condition beginning with childhood sexual abuse.

The questions and points raised by Karlin and Orne deserve answers. Unfortunately, the problem is not that there have been no answers, but rather that there have been too many. MPD has been a popular subject in the recent literature, and each author has provided an interesting but differing answer to the questions. Thus, Spanos (1996), consistent with his views on hypnosis, has argued that MPD is not a mental disorder, it is a social construction of a role played by a patient in response to cues offered by the therapist and the prevailing culture. This view is essentially the Karlin and Orne position. Along these same lines, Aldridge-Morris (1989) adds to the social role theory his additional belief that MPD “is a culture-bound variant of hysterical psychosis occurring in individuals with high ‘hypnotisability’” (back cover). Hacking (1995) places his solutions in the evolving and competing paradigms in the memory sciences and in the political struggles to understand victimization. North, Ryall, Ricci, and Wetzel (1993) began by attempting to sort out the rampant misinformation surrounding MPD, thereby allowing a presentation of objective facts. When they did so, they found themselves believing that MPD is a real condition, though one not properly understood by psychiatry. Saks (1997), in what is the definitive forensic work on the subject, finds MPD to be real, shows how the courts have dealt with the cumbersome questions of responsibility, and provides a careful analysis of how the law should treat MPD cases. Dozens of other authors have provided additional advice on the psychiatric, social, and legal issues involved (Bliss, 1986; Cohen, Berzoff, & Elin, 1995; Kluft, 1985; Kluft & Fine, 1993; Loewenstein, 1991; Putnam, 1989; Ross, 1989).

While it is easy to simply assert the belief that MPD is iatrogenic, it is far more difficult to prove or disprove the point. Karlin and Orne, in the few pages devoted to MPD, do not prove their case. I do not have the available space in this response to disprove it. In fact, certain points they make seem to me to be quite sound. Their ultimate conclusion, however, that all cases of MPD are iatrogenic, is not persuasive, and has recently been dismantled by Gleaves (1996a) in a masterful article articulating, and then refuting, the premises of the iatrogenic position. In essence, Karlin and Orne make a fundamental mistake in believing that because someone can be trained to act as if he or she has MPD, then it must be true that all cases of MPD are the product of therapist suggestion and training. Rather, as Fahy (1988) has clearly stated, while you can get someone to mimic the symptoms of MPD, you cannot iatrogenically create the actual disorder itself. Those who truly suffer from MPD, and those who simulate it by suggestion, score differently on a variety of objective tests. Furthermore, while some simulators may be very good at feigning the condition in the laboratory for a relatively short period of time, it is a far different matter to feign the condition over an extended period of time.

Fahy (1988) considered the relationship between hypnosis and MPD. He noted that Putnam, Guroff, Silberman, Barban, and Post (1986) found that hypnosis was used to facilitate the first report of an alter personality only in a minority (23%) of the cases. In an attempt to study what influence clinicians have on the creation of MPD, hypnosis has been used to “create” the condition. But, as Fahy noted, by using hypnotic suggestion Harriman (1942, 1943) “was unable to produce more-complex personalities, similar to those found in the clinical setting” (1988, p. 601). Kampman (1976) similarly was unable to use hypnosis to reproduce the complexity of the disorder. Fahy concluded:

There is scanty evidence that short-term exposure to hypnosis can induce well-developed alternates through the use of hypnosis alone. The experimentally induced personalities tend to be transitory, and their presence does not extend beyond the hypnotic experience.... The effects of long-term exposure to hypnosis within a clinical setting remain unknown, but there is little evidence that the therapeutic use of hypnosis is directly responsible for the disorder. (1988, p. 601)

In rejecting the Karlin and Orne position on MPD, I agree with Loftus’s (1995) observation that ADID (or MPD), whether authentic or whether created in a therapeutic exchange, has a reality to it that must be respected and treated with dignity.”

Karlin and Orne also address satanic cult activity; and, once again, their “one size fits all” explanation that everything is pseudomemory falls short of the mark. Most commentators agree on four points. First, there is little or no hard evidence for the existence of an international, intergenerational satanic cult network that “deals with large-scale baby breeding, human sacrifice, and organized satanic conspiracies” (p. 40) (Lanning, 1992). Second, there is no doubt that satanic crimes, including cannibalism (Martingale, 1993), do occur (Humes, 1991; Scammell, 1991; St. Clair, 1987). Third, hard evidence does exist for international child pornography rings that include ritual abuse of children (Lanning, 1992). Fourth, ritual abuse, including religious ritual abuse, does occur, and not infrequently (Goodman, Bottoms, & Shaver, 1995). Thus, as F.B.I. authority Ken Lanning (1992) has noted, AI believe that the majority of victims alleging ‘ritual ‘abuse are in fact victims of some form of abuse or trauma” (p. 39). Several states have passed legislation making ritual abuse a separate crime.7

While explanations like pseudomemory suggestion and urban legend (Victor, 1993) may provide partial explanations for some cases, they do not supply answers for all of the available data. A full discussion of this topic is not possible at this point, but interested readers are urged to examine Goodman and associates (1995) for the most thorough empirical investigation of the problem.

Finally, space limitations also prohibit examination of the statistical analysis developed by Karlin and Orne at pages 69B75. Readers are referred to Olio (1996) for a useful critique of the numbers and methodology.

Forensic Hypnosis: The Per Se Exclusion Rule

Karlin and Orne would close the courthouse door to Sarah, in the illustration used at the beginning of this response, simply because all of her relevant memories are posthypnotic. The door would remain closed, in their view, even though Sarah’s mother and sister claimed that they were aware of the molesting at the time it occurred and had not lost their own memories of the event. The mother and sister could testify, but not Sarah.

Thus, under the view espoused by Karlin and Orne, a person who has been lobotomized could testify in court, a person who had received massive electroshock treatments could testify in court, a person who had taken enormous dosages of mind-altering psychiatric drugs or psychedelics could testify in court, a person who had suffered substantial organic brain damage could testify in court, but a person who had been competently hypnotized by an experienced professional who followed strict guidelines and avoided undue suggestions could not testify in court. Does that position make sense to you?

In Harker v. Maryland (1986), the Maryland appellate court observed that “Dr. Martin Orne, a psychiatrist and frequent expert witness, believes that ‘hypnosis may be useful in some instances to help bring back forgotten memories following an accident or a crime.’” (p. 440).8 Why then slam the door in the face of this “useful” evidence?

The response that police may still use hypnosis on persons they do not intend to call as witnesses is little consolation for crime victims or witnesses faced with the choice of being disenfranchised from the courts, and thus re-victimized, if they seek to reacquire these memories and to recover from traumatization with the use of a technique known to produce additional accurate information. The burden of defending the per se rule has become increasingly heavy.

Brief History of Forensic Rules

The first case to permit hypnotically refreshed recollection into testimony was Harding v. State (1968). As a result of this decision, police departments across the country began training thousands of officers in forensic (investigative) hypnosis. No guidelines existed for the proper conduct of a forensic hypnotic interview, and the scientific literature was devoid of careful studies concerning the impact of hypnosis on memory. Indeed, it was not until the 1970s that courts became especially alerted by scientists to the suggestive dangers of eyewitness testimony, and it was not until the 1980s that courts were directly confronted with the malleability of memory as a reconstructive, rather than reproductive, process (Sporer, Malpass, & Koehnken, 1996).

In these early days of judicial evaluations of forensic hypnosis sessions, advocacy of a per se rule made a good deal of sense. Without sufficient knowledge from scientific studies, and with the threat that poorly trained police officers with a stake in the outcome of the cases would contaminate memory by being unduly suggestive, there was a grave danger that hypnosis could be so seriously abused that innocent citizens could be convicted of serious felonies. Indeed, one famous case from this era involved a police officer who had hypnotized a witness to obtain a description of a robber. The witness, in trance, said that the criminal wore a mask. This offered no problem for the police hypnotist. He instructed the witness that a person during hypnosis had the ability to remove the mask and see the face below. So informed, the witness complied and provided a description. An innocent man was almost convicted on the basis of this foolish evidence. Police misuse of hypnosis became known in many other cases from across the country (Laurence & Perry, 1988; Orne, 1979).

An additional consideration encouraged the advocacy of a per se exclusion rule at this time. Supporting the police use of hypnosis would have violated the ethics codes of the two major professional hypnosis organizations in the country -- the American Society of Clinical Hypnosis and the Society for Clinical and Experimental Hypnosis -- because the codes do not permit assisting lay persons in the practice of hypnosis. Cooperating with police in cases where the police do the hypnosis violated these codes. Furthermore, the Society for Clinical and Experimental Hypnosis, in October 1978, passed a Resolution condemning the police use of hypnosis. The International Society of Hypnosis, in August 1979, passed the identical Resolution. Both Resolutions may be found in Society for Clinical and Experimental Hypnosis (1979).

Today, by contrast, many scientific studies have provided the necessary knowledge concerning the relationship between hypnosis and memory, and guidelines have been developed that help ensure reliable interviews. The American Society of Clinical Hypnosis appointed an 11-member task force to prepare a report on memory and hypnosis.9 After more than a year of study, a draft of the Guidelines was prepared. The draft was sent to approximately 80 of the world’s leading scholars and researchers in the fields of memory, hypnosis, trauma, and suggestion for feedback and commentary. An enormous response was received by the task force, and the draft was substantially altered over a period of months to accommodate these viewpoints. When published in 1995, the final report -- Clinical Hypnosis and Memory: Guidelines for Clinicians and for Forensic Hypnosis -- represented the most major worldwide effort ever undertaken to establish working procedures for the use of hypnosis with memory. To this day the Guidelines is the most thorough and accurate document in the field and should be considered as setting the standard of care for the use of hypnosis with memory.

The United States Supreme Court’s Daubert Test

In the summer of 1993 the United States Supreme Court issued its significant decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., which changed the law in all federal courts and, as of the beginning of 1997, approximately two-thirds of the state courts, on the proper test for the admissibility of expert opinion testimony. The Court replaced the long-standing Frye (1923) reliability test based on general acceptance in the scientific community with a more complicated relevance test based on verifiability and falsifiability that now requires trial judges to be “gatekeepers” concerning the admissibility of the expert opinions. Commentators generally acknowledge, and the Court specifically noted, that the intention of the new rule is to permit more expert testimony to reach juries, but they disagree on how lenient or strict trial judges should be when faced with the softer behavioral or social sciences compared to the physical sciences.

Of the several hundred judicial decisions issued since the Daubert ruling appeared, only a small fraction have involved the behavioral or social sciences. Of these opinions involving the behavioral or social sciences, very few have directly addressed hypnosis or repressed memory issues. When courts have ruled in these areas, however, they have not accepted the Karlin and Orne position.

The Daubert (1993) decision in the United States Supreme Court has led several courts to hold that per se exclusion rules are no longer defensible. In two cases involving polygraph evidence, the United States Court of Appeals for the Fifth Circuit held that information obtained from a lie detector cannot automatically be excluded from evidence. In United States v. Posado (1995), the defendant in a drug trial was denied the opportunity to admit into evidence the results of a polygraph interview. The Fifth Circuit reversed this ruling:

Our precedent, with few variations, has unequivocally held that polygraph evidence is inadmissible in a federal court for any purpose.... However, we now conclude that the rationale underlying this circuit’s per se rule against admitting polygraph evidence did not survive Daubert v. Merrell Dow Pharmaceuticals. (p. 429)

The Posado judges then took note that the United States Supreme Court had stated that it was replacing the “austere” Frye rule of general acceptance in the scientific community with the “flexible” inquiry based upon the Federal Rules of Evidence which require that the trial judge make “initial determinations” that the evidence to be admitted is reliable (“as scientific, technical or other specialized knowledge” that is trustworthy) and relevant (“will it assist the trier of fact?”). A per se exclusion rule prohibits a judge from performing these tasks and is therefore indefensible under Daubert.

Of major significance is the fact that, as the court specially noted, “the government concedes that a per se rule against admitting polygraph evidence, without further inquiry, is not viable after Daubert” (pp. 431B432). Thus, if prosecutors agree that per se rules violate Daubert, their advocacy against such rules should carry great weight with the courts.

The Posado court also made a point of explaining that under Daubert, the scientific evidence does not have to be absolute truth. The Daubert justices had written that the reliability element is satisfied when the evidence offered is Amore than speculative belief or unsupported speculation.... Certainty is not required, but the knowledge asserted must be based on ‘good grounds’” (p. 433).

One year after its Posado decision, the Fifth Circuit again returned to the same issue and upheld its earlier ruling. In United States v. Pettigrew (1996), the facts closely parallel those in Posado because again a defendant in a criminal case sought to introduce polygraph evidence showing he had not intentionally deceived bank regulators. The Fifth Circuit reaffirmed the Posado rejection of per se exclusionary rulings and also reaffirmed the Posado court’s reasoning that polygraph evidence could still be excluded, but not automatically. The trial judge in each individual case must Abe guided by the twin precepts of [Federal Rules of Evidence] Rule 702: the scientific validity of the method, and ability to ‘assist the trier of fact to understand the evidence or determine a fact in issue...’” (p. 1514).

The Ninth Circuit Court of Appeals has also read Daubert to preclude per se exclusion rules. In United States v. Cordoba (1996), the court held that its per se exclusion rule against the admission of polygraph evidence was “effectively overruled” by the “flexible inquiry assigned to the trial judge by Daubert.” The court further noted that other per se rules were equally as vulnerable to abolition:

This holding is consistent with precedent in this circuit. We have held that Daubert overruled a per se rule excluding expert testimony regarding the credibility of eyewitness identification. See United States v. AmadorGalvan, 9 F.3d 1414, 1417B18 (9th Cir. 1993) (declining to follow per se rule of United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973) and instead requiring district courts to consider whether expert testimony regarding eyewitness identification meets Daubert requirements). Similarly, in United States v. Rincon, 28 F.3d 921 (9th Cir.), cert. denied, 513 U.S. 1029, 115 S.Ct. 605, 130 L.Ed.2d 516 (1994), we upheld a district court’s decision to exclude expert testimony on eyewitness identification under Daubert, stating: Notwithstanding our conclusion, we emphasize that the result we reach in this case is based upon an individualized inquiry, rather than strict application of the past rule concerning expert testimony on the reliability of eyewitness identification.... Our conclusion does not preclude the admission of such testimony when the proffering party satisfies the standard established in Daubert by showing that the expert opinion is based upon “scientific knowledge” which is both reliable and helpful to the jury in any given case.... District courts must strike the appropriate balance between admitting reliable, helpful expert testimony and excluding misleading or confusing testimony to achieve the flexible approach outlined in Daubert. (p. 228)

In May 1997, the United States Supreme Court, in United States v. Scheffer, agreed to decide the issue of whether per se exclusion rules in polygraph cases violate a criminal defendant’s Sixth Amendment constitutional right to present a defense. Scheffer thus appears before the Court in the same posture as the Rock v. Arkansas (1987) case did with hypnosis. The Court’s opinion, which is expected in early 1998, may simply follow Rock’s conclusion and abolish per se restrictions against polygraphs in criminal cases when applied to defendants, or it may further banish per se rules in general, and also clarify ambiguities in the interpretation of the Daubert standard (Fried, 1997). Although the Scheffer opinion could also uphold per se exclusions, commentators predict the Supreme Court will follow the recent trend towards total abolition (Fried, 1997).

More directly on point, in Rowland v. Commonwealth (1995), a stepmother saw her stepson shoot her and her daughter in the back. The stepmother’s physician diagnosed her as having posttraumatic stress disorder and he recommended she see Dr. William Wester, a psychologist. Wester agreed with the diagnosis and decided to treat her with hypnosis. Before beginning the hypnosis treatment, Dr. Wester, a former president of the American Society of Clinical Hypnosis with extensive forensic hypnosis experience, took complete statements from the stepmother about the shooting incident. The first statement was audiotaped; the second statement was videotaped. Following the videotaping, Dr. Wester used hypnosis for the first time. The stepmother’s statement while in trance was virtually identical to her recorded prehypnotic statements. The defendant requested that all testimony from the stepmother be suppressed, but the trial judge ruled “that the Commonwealth would be precluded from informing the jury that [the stepmother] had been placed under hypnosis. Further, he gave the defense leave to crossexamine her on this point, and ruled that, if the defense did so, then the Commonwealth would be allowed to introduce additional testimony to explain hypnosis” (p. 872). The defendant on appeal argued for a rule of per se inadmissibility. In a 4-3 decision, the Supreme Court of Kentucky held that a per se inadmissibility rule was inappropriate. The court cited the Court of Appeals decision which noted that a per se exclusion might violate Daubert. The dissenting judges favored the per se exclusion because of their erroneous belief that hypnotically refreshed recollection “inherently involves dangerous problems with reliability” (p. 874).

Thus, the Daubert decision seems likely to erode the per se exclusion rule in one of two ways. First, some courts, as we have already seen, will decide that Daubert mandates the abolition of automatic exclusion. Second, other courts will not see the mandate, but will respond to the spirit of Daubert’s desire for flexibility by shifting from total exclusion to case-by-case analysis rules. On this latter point, Perry (1997), after reviewing three recent repressed memory cases,10 notes:

At this point in the evolution of Daubert (1993) as the standard for determining the admissibility of scientifically based testimony, there appears to be a reluctance to impose per se exclusions of certain procedures that have a scientific base. In all three recovered-memory cases cited here, the tendency was to determine admissibility on a case-by-case basis. (p. 276)

It is not hard to understand why this is so. Perry’s own analysis provides an explanation. Perry states that the issue in recovered memory, hypnosis and polygraph cases is “one of unreliability.” He then defines “unreliability” so globally that even ordinary memory and ordinary perception would be per se excluded under his definition:

To say that a particular technique is unreliable is merely to indicate that on some occasions it will yield accurate information, and on other occasions the information will be inaccurate. Usually, there is no way of knowing whether, on any specific occasion, the technique or procedure is performed accurately or inaccurately. (p. 270)

False memory advocates have expressed alarm about this development abolishing per se exclusion rules and replacing them with case-by-case determinations (Perry, 1997; Slovenko, 1997), but for most people, the era of slamming the courthouse door in the faces of innocent victims will soon come to an end. When that happens, every person will at least be entitled to present his or her evidence to a judge and thereby have a day in court.

The Prevailing Expert Opinion

Most recent commentary by forensic hypnosis experts supports abolition of the per se exclusion rule. Scheflin & Shapiro’s Trance on Trial (1989) received a Manfred S. Guttmacher Award from the American Psychiatric Association. The ASCH (1995) Guidelines received the Society for Clinical and Experimental Hypnosis Arthur Shapiro Award for the “Best Book of the Year.” In addition, McConkey and Sheehan (1995), the two leading Australian forensic hypnosis specialists, have recently published a series of very instructive forensic hypnosis failures which serve as excellent examples of mistakes to avoid. They do not conclude, as do Karlin and Orne, that because forensic hypnosis can be done poorly by insufficiently trained individuals, it should not be done at all by well trained professionals. In fact, they expressly reject the per se exclusion rule in favor the “admissibility with safeguards” (p. 211) approach, which is a variation of the “totality-of-the-circumstances” test adopted by Borawick.

One important aspect of the McConkey and Sheehan (1995) text is their focus on the motivation of the hypnotic subject (Scheflin, 1997b). The authors draw attention to the fact that witnesses who undergo hypnosis are not always neutral and pure. Karlin (1997) makes this same point in civil cases involving automobile accidents.

Graham Wagstaff (1996), one of Britain’s foremost forensic experts, has just published a paper describing his experience as an expert for the defense in a case where a witness, who happened to be an off-duty police officer, observed certain parts of a crime, including the getaway car. The police used hypnosis, but, because the details that the officer gave were contradictory to the prosecution’s case, the use of hypnosis was not revealed until after the trial was over. In his report, Wagstaff concluded:

But I would argue that, instead of a blanket rejection of anything said by the witness in such cases, we must judge each case individually. Perhaps we might more usefully ask, what might be the effect of this particular hypnosis session, on particular statements, made by this particular witness? (p. 189)

In fact, virtually the only recent commentaries espousing the per se exclusion rule are articles by Orne (Karlin & Orne, 1996; Perry, Orne, London, & Orne, 1996) or by others who have adopted his definition of hypnosis (Giannelli, 1995; Karlin, 1997). For the development of many additional arguments against the per se exclusion rule, and additional data undercutting the scientific accuracy of the Orne view, see Brown et al. (1997).

The AMA Report

In 1985, a panel of the American Medical Association (AMA), led by Dr. Martin T. Orne, released a report on their study of hypnosis with memory. The AMA panel reached three important conclusions. First, the panel found no evidence of increased recollection by means of hypnosis for recall of memory for meaningless material. The experiments relied on dealt with nonsense syllables, or nonmeaningful word passages, learned under nonstressful conditions. The great bulk of the studies examined by the panel, where hypnosis was involved, fell into this category.

These studies are of questionable value to the forensic arena where meaningful information obtained under traumatic conditions is generally involved. Witnesses are not generally asked to recite silly poetry on the witness stand. Memory for nonsense is generally weak without hypnosis because the information is not important enough to be stored in long term memory. Hypnosis does not increase recall of this material, nor does anything else.

Second, the panel found no evidence of increased recollection by means of hypnosis for recognition memory.

Third, the panel found that when hypnosis is used for recall of meaningful past events, there is often new information reported. Thus, importantly, the AMA acknowledged a hypermnesia effect with hypnosis for the recall of meaningful material. This fact alone justifies its use. The fact that the material remembered may include accurate information as well as confabulations and pseudomemories is true also of prodded memory without hypnosis. The AMA also found that In some cases, these pseudomemories may be the result of hypnosis transforming the subjects ‘prior belief into thoughts or fantasies that they come to accept as memories. Furthermore, since hypnotized subjects tend to be more suggestible, they may become more vulnerable to incorporating any cues given during hypnosis into their recollections.

Several points are worth noting about these latter findings. Most importantly, the panel does conclude that hypnosis is capable of producing additional truthful information. The fact that the material produced might contain fantasies, confabulations, or imaginative generations is true of memory without hypnotic retrieval. The panel did not conclude that hypnosis was less effective than other memory retrieval techniques, nor did it conclude that hypnosis generates more fantasy, and so on, than other techniques. Thus, the panel in fact is concluding that, if used properly, hypnosis can retrieve unavailable truthful memories.

At the time the report was published, there was inadequate data to support the panel’s negative concerns about pseudomemories. As McCann and Sheehan (1988) have observed after an examination of the relevant literature, “only three studies to date, however, bear directly on the experimental creation of false memories in hypnotically responsive subjects” (p. 339). In fact, by 1985, when the AMA Report appeared, only one study was available. This study (Laurence & Perry, 1983, which was drawn from Laurence, 1982, and which is more fully discussed in Laurence, Nadon, Nogrady, & Perry, 1986), used a population of 27 high hypnotizables and involved the creation of a pseudomemory of awakening in the night to the sound of loud noises. Bernheim (1891/1980), a century ago, had conducted this same experiment; and Orne in 1982 had demonstrated it before BBC cameras for a documentary on forensic hypnosis (Barnes, 1982). This experiment was widely reported but little analyzed. The media reports were grandiose: hypnosis produces pseudomemories! The results, however, were significantly more modest. Only 13 of the 27 highly hypnotizable subjects accepted the pseudomemory in a waking state. Thus, slightly less than half of the most vulnerable population were induced to accept a misinformation suggestion. On closer look, however, only 6 of the 13 subjects were “unequivocal in their confidence that the suggested event had actually taken place” (McCann & Sheehan, 1988, p. 339). Thus, less than 25% of the most vulnerable population was willing to accept a pseudomemory of a peripheral detail in a nontraumatic setting.

A second study from the same Canadian laboratory appeared in 1986, one year after the AMA Report. Labelle and Perry (1986) replicated the earlier study, but this time they added that imagery and absorption were significant predictors of the likelihood that subjects would accept created memories. This point is very important for two reasons. First, it suggests that the problem of memory creation is not a problem with hypnosis, but may be inherent in those people with traits of imagination and absorption. Thus, hypnosis is not the culprit, we must look to individual differences. Second, this finding serves as a basis for using objective testing as a prelude to memory retrieval, including memory retrieval with hypnosis, just as the ASCH Guidelines require.

In addition to the paucity of reports available to the panel, there is the further problem that the initial Canadian study was not carefully examined. The third study referred to by McCann and Sheehan (1988), conducted by Spanos and McLean in 1986 also reported a high incidence of false memory acceptance in high hypnotizables (9 out of 11 subjects); but, when “hidden observer” instructions were given, only 2 of the 11 subjects continued to adhere to their pseudomemories. According to McCann and Sheehan (1988):

Spanos & McLean claimed that highly hypnotizable subjects exposed to the pseudomemory creation paradigm remain able to discriminate their pseudomemory imaginings accurately from actual memories and provide “memory” reports according to the expectations conveyed to them. Consequently, when the situation allows them to refute earlier pseudomemory reports while maintaining their self-presentation as deeply hypnotized, they can do so. (p. 340)

McCann and Sheehan (1988) further demonstrated that social influence context factors, not hypnosis, accounts for the acceptance of pseudomemories, thus disproving the Karlin and Orne thesis that hypnosis inevitably contaminates memory:

Pseudomemory response, like other hypnotic responses, is clearly shaped and determined by psychological factors of influence. It also appears that pseudomemory response should not be viewed as a standard posthypnotic reaction. (p. 345)

When these social influence factors are controlled, as they are in the ASCH Guidelines, the production of suggested pseudomemories disappears as a problem, except for the general issue of the malleability of ordinary memory. Furthermore, again refuting the Karlin and Orne inevitability premise, McCann and Sheehan’s studies show that (1) the pseudomemories are not really memories at all, and (2) contrary to the false memory position, the original memories do not get destroyed (see also McCann & Sheehan, 1987; McCloskey & Zaragosa, 1985):

Results from the present study and this independent study both indicate that hypnotic pseudomemory can be breached by exposure to incontrovertible evidence relating to original events, and that pseudomemory elements are not irreversibly integrated with original memories. (1988, p. 345 n. 4)

Thus, the AMA Report suffers from two significant deficiencies. First, there were almost no relevant studies available from which to draw scientifically acceptable conclusions. Second, the study that was available on pseudomemory production led the AMA researchers to incorrect conclusions about (1) the ease of hypnotically implanting memories, (2) the confidence in those memories, and (3) the issue of whether the original memories were retrievable or forever lost.

By contrast, the ASCH Guidelines had the advantage of an additional decade of experiments directly related to the central issues, and also had the advantage of direct input from over 80 of the world’s most significant authorities in the major fields of hypnosis, memory, social influence, and suggestion.

Karlin’s (1997) preference for the 1985 AMA Report is not benefited by the fact that the AMA reaffirmed that report in 1994 (American Medical Association, 1994) because the later Report did not involve hypnosis and did not involve examination, analysis, discussion, or even citation to post-1985 scientific studies. Rather, the 1994 Report on Memories of Childhood Abuse simply states that the old Report is still accurate and is reaffirmed. The 1994 AMA Committee must be seriously faulted for their scientific sloppiness in failing to discover that the earlier Report was substantially in error. To reaffirm a document after a decade without checking and reporting on its continuing scientific validity constitutes a violation of the prevailing standard of care for research because it implies knowledge where there is none.

While Karlin (1997) and others may continue to support the 1985 AMA Report, it is interesting to note that half of the eight-member committee that wrote that Report no longer considers its conclusions to be accurate. Three of the original members of the 1985 AMA Report helped write the ASCH Guidelines, and another member of the 1985 AMA Report has privately (not yet in print) expressed substantial doubts about its accuracy and viability. Other commentators have found additional serious deficiencies and inaccuracies in the 1985 AMA Report (Beahrs, 1988; Frischholz, 1996; Reiser, 1986).

Courts and legislatures should not rely on the 1985 AMA Report because it distorts the science, is erroneous in its conclusions, has been found to have numerous serious deficiencies, and because it has now been repudiated by at least half of the original members.

The Borawick Case

Karlin and Orne “see Ms. Borawick as a victim of inappropriate suggestions in hypnotic treatment” (p. 49, n. 2). Their analysis of the Borawick case, and their views about forensic hypnosis in general, flow from their belief that hypnotic encounters invariably contaminate memories. But what are the facts? According to the court, Ms. Borawick, during an hypnotic regression session conducted by a lay hypnotist, recalled that she had been sexually abused as a child by her aunt and uncle. Ms. Borawick was amnestic after the hypnosis, and the lay hypnotist did not inform her of what she had alleged during trance. Furthermore, the lay hypnotist testified that he had been careful to avoid undue suggestion and did not have any expectation that Ms. Borawick would claim to have been abused decades earlier. Nothing in the record suggests that the lay hypnotist expected these memories, implanted these memories, suggested these memories, or even pursued the therapeutic implications of these memories. Several months after the last hypnosis session, Ms. Borawick began consciously to recall sexual abuse by her father and others, including her aunt and uncle.

While Karlin and Orne may be correct in their assumption that the lay hypnotist implanted the memories, it is equally as plausible that he did not. The absence of an audio or visual record puts us in a Buridan’s Ass situation: there is no more reason to assume that the memories were implanted than to assume that they have a basis in fact. The Karlin and Orne assumption naturally leads to per se exclusion rules, whereas my view supports the conclusion that in some cases the memories might be a product of confabulation and suggestion, in others they might be accurate. The Karlin and Orne view assumes that the memories will never be true, but this view is unsupported by overwhelming evidence that, in many cases, recalled childhood sexual abuse has later been corroborated by independent physical evidence, including confessions by the perpetrator.11
The Hard Cases

Let us compare my solution to the hard cases with the solution offered by Karlin and Orne. In each of the following cases, Karlin and Orne would refuse to allow the complaining witness to have a day in court. They necessarily conclude that in all of these cases the memories are no longer reliable. My solution, by contrast, is to require each complaining witness, at a pretrial hearing, to demonstrate that the hypnosis involved more likely than not did not contaminate the memories by making them unreliable (Scheflin, 1994a).

Case 1: A 4-year-old girl went to her mother and said, “Daddy’s touching me in my private parts.” The mother had a breakdown and was hospitalized. The child, now in the custody of daddy, learned not to talk about this -- look what happened to mommy when she was told. Several years pass and the molestations continued. Medical records of the child were consistent with molesting, but the child would not talk when asked. After a year of therapy, hypnosis was used and the child talked about the molesting. New York courts would not admit her posthypnotic testimony despite the fact that there was independent medical corroborating evidence that she was molested. Without her evidence, there was no proof that daddy was the molester. Daddy retained custody.

Case 2: A patient comes to a therapist for depression. There are no memories of abuse as a child and no discussion of the subject in therapy. Hypnosis is used as a relaxation technique. While in trance, the patient has a recollection of having been abused years earlier. The therapist stops the hypnosis and it is not used again. Additional memories later surface outside therapy two months later. Independent corroboration of the truth of the memories is available.

Case 3: A patient comes to a therapist, and hypnosis is used for relaxation. One year, or 5 years, or 8 years later, the patient has a memory of childhood sexual abuse.

Case 4: A person uses a self-hypnosis audiotape purchased in a store. After listening to the tape, 2 months later, memories of childhood sexual abuse emerge.

It is most important to observe that Karlin and Orne’s view always disbelieves true victims, and not one of them will be permitted to testify. By contrast, I agree with the sentiment of the Michigan Court of Appeals in Lemmerman v. Fealk (1993), where the court noted that repressed memory cases always involve a delicate balance between harm to the defendant who must stand trial if the claim is stale, and harm to the plaintiff who is denied a day in court if the facts are true. What tips the balance?

We agree with those jurisdictions which initially consider as more weighty the harm to the plaintiff denied a remedy than the harm to the defendant confronted with a stale claim.... The fact that sexual molestation of children exists, is extensive and leaves deep scars on its victims can no longer be seriously questioned. Adults who have repressed child sexual abuse bring to the courts unusual circumstances and injuries not readily conforming to the ordinary constructs on which periods of limitations are imposed. (p. 230)

In essence, as the court later notes, “to protect parents or relatives at the expense of the children works an intolerable perversion of justice” (p. 230). The Supreme Court of Michigan ultimately decided to let the legislature make the final decision in repressed memory cases. (Lemmerman v. Fealk, 1995). Under my view, all alleged victims must prove before trial that it is more likely than not that their recovered memories are reliable.

If Buridan’s Ass forces the social choice between rejecting all claims of repressed memory, and thereby favoring parents, or permitting these claims to have a stringent case-by-case analysis to determine whether enough evidence of reliability is available, thereby favoring children, I stand with the overwhelming majority of courts and legislatures that favor protecting children by applying the delayed discovery doctrine to memories of childhood sexual abuse (M. R. Williams, 1996).

Even before the delayed discovery cases reached the courts, the law had already made it clear that children are entitled to special protections from violence. The mandatory reporting statutes that were enacted beginning in the 1960s demonstrate society’s concerns that abuse of children could only be prevented by sacrificing the sacred trust of confidentiality that obtains between a therapist and a patient (Kalichman, 1993). Though parents, often correctly, cried Afalse accusations” after each state legislature mandated reporting suspected abuse, legislatures continued to maintain the priority of children over parents.

Some recent examples may illustrate just how far society is willing to go to protect children from abuse. Two convicted killers -- one in Florida and one in Maryland -- received executive clemencies from their respective state governors because they had killed a parent who had repeatedly abused them (Weidlich, 1995). During the last decade, the “battered child syndrome” has started to result in some acquittals and some convictions on lesser charges (Weidlich, 1995). The plight of children was recently the subject of a disheartening New York Times editorial (Editorial, 1996):

If a true measure of a society is how well it treats its children, then America is in trouble. Far too many of the nation’s youngsters are the victims of poverty, violence and substandard education that leave them without the basic skills to earn their way and advance in a complex society....

Added to the threat of poverty is the threat of violence, in their own homes and in the community. Every day nearly 8,500 children are abused or neglected and 3 die from abuse. An additional 15 children a day die of gunshot wounds.

Frankly, as a parent, if I were accused of molestation, I would make the choice to allow my daughter her day in court, even though I knew the allegations were completely and totally false. I could not, in good conscience, tell her that her viewpoint was not worth hearing, and that the legal system had no interest in listening to her complaint. In my world, the children come first.

Conclusion

There are no scientific studies showing that hypnosis, when used correctly according to the ASCH Guidelines, necessarily distorts memory. Indeed, many appellate cases involve witnesses who had been hypnotized, but their story remained the same with no additional details.

There are no scientific studies showing that hypnosis, when used properly, is less effective as a memory refresher than other memory retrieval techniques.

The fact that with hypnosis may come false information as well as accurate information, and the fact that no one can tell the difference without independent corroboration, is meaningless because the same is true of every memory retrieval technique, and of memory itself. No technique may boast either that it always produces truthful information or that it can always tell the difference between accurate and inaccurate memories.

Every other area of suggestion considered by the law has rejected a per se exclusion rule: lineups, financial undue influence claims, eyewitness testimonies, police interrogations, and confessions. Only hypnosis has been singled out for such harsh treatment. Yet, the applicable science fails to support any reasons for total exclusion of hypnotically refreshed recollection.

In People v. Williams (1982), Judge Gardner, the appellate judge who wrote the opinion that the California Supreme Court in People v. Shirley reversed, colorfully stated his dissatisfaction with the per se inadmissibility rule of Shirley. His views are well worth revisiting:

However, much as I admire the writing style of Shirley, I am troubled by the concept that the testimony of a percipient witness as to relevant facts be deemed inadmissible simply because he has undergone hypnosis.

What next? Once we begin to rule evidence inadmissible because of our dissatisfaction with the witness ‘credibility based on improper memory jogging, where do we stop? What about witnesses who have been brainwashed, coached, coerced, bribed or intimidated? Are we going to reject all this testimony because it is suspect? I have no doubt that a corrupt polygraph operator could convince a witness of limited intelligence that his accurate memory is actually faulty and thus persuade him to testify to an untruth. The same is true with the socalled truth serums, hallucinogenic drugs or other exotic drugs only hinted at in C.I.A. suspense fiction. I have no doubt that through the misuse of these drugs a witness ‘testimony may become faulty and even suspect. Once having undergone exposure to something of this nature is the witness still going to be allowed to give his best recollection, or be precluded from testifying?

I am firmly of the belief that jurors are quite capable of seeing through flaky testimony and pseudoscientific claptrap. I quite agree that we should not waste our valuable court time watching witch doctors, voodoo practitioners or brujas go through the entrails of dead chickens in a fruitless search for the truth. However this is only because the practice is too time consuming and its probative value is zilch.... However, the idea that an eyeball witness to a transaction be denied the opportunity to tell a jury his recollections of what he saw is disturbing to me whether that recollection has been refreshed by hypnosis, truth serum, drugs, intimidation, coercion, coaching, brainwashing or impaired by the plain old passage of time. (pp. 501B502)

Notes
On May 28, 1996, the United States Supreme Court declined to review the Second Circuit’s opinion in Borawick v. Shay, thus leaving this opinion as a final judgment. Borawick v. Shay, certiorari denied 116 S.Ct. 1869, 134 L.Ed.2d 966 (1996).
Buridan was not the first to use the dilemma of two equal preferences although his name has now permanently attached to the illustration. Aristotle (384B322 B.C.), in his De Caelo (295b32), had used a similar analogy, but the first clear record of the dilemma as an issue of logic appears in the writings of an Arabic philosopher, Ghazali (1058B1111), who used the example of two dates that are placed in front of a hungry man. See Averroes, Tahafut al-Tahafut, translated by Simon van den Bergh, vol. 1, p. 21 (London, 1954). A contemporary examination of the Buridan’s Ass dilemma may be found in N. Rescher, “Choice Without Preference: A Study of the Logic and of the History of the Problem of ‘Buridan’s Ass,’” in Kant-Studien, 21, 142B175 (1959/1960).
These two dangers are not equal, however. While false accusations against a parent are reprehensible and debilitating, true accusations that go unacknowledged are even worse. The stigma of being falsely labeled as a child molester is a heavy burden to bear, but it does not compare with the burden borne by a true victim of parental abuse, especially one who is disbelieved. As psychologist Jennifer J. Freyd has cogently noted in her recent book, Betrayal Trauma: The Logic of Forgetting Childhood Abuse (Harvard University Press, 1996), the trauma experienced by a young child who is molested by a primary caregiver, such as a parent, is among the worst experiences that can happen to a person. The child must simultaneously trust the parent and yet also be the parent’s victim. The scars of the molesting never fully heal. To then be disbelieved, and placed in the custody of the molesting parent once again, is a horrible tragedy. To later be disbelieved again and denied a day in court to prove the truth is a senseless retraumatization resulting in an increased sense of helplessness and hopelessness.
The other case report discussed by Karlin appears to have involved a physician who failed to follow any recognized set of safeguards, including taping the sessions.
If they were not so dangerous, it would be hard to take these positions seriously. Not only is it bad enough to equate hypnosis with all suggestion, thereby making the terms synonymous, as the false memory advocates do; it is even worse to equate it with all relaxation. Does Perry think that therapists should keep their patients agitated in order to keep them out of trance? It should also be observed that, under the logic of Perry and the false memory advocates, any request for recall of the past is both suggestive and also the product of demand characteristics of wanting to please the questioner, etc. The request for information about the past also carries the implication that memory can reproduce prior events with accuracy. Logically, the false memory argument eliminates all memory from evidence.

In addition, the argument against suggestion misses the point. Suggestion is an inevitable process of the communication and information processing systems central to expression. Judges, as well as therapists and experimentalists, look for undue suggestion. This point was recognized in the invitation extended by the Institute for Experimental Psychiatry Research Foundation, where Dr. Orne works, to a reception during the False Memory Syndrome Foundation Conference held on April 16, 1993. The invitation said: “Mr. Alan Scheflin is cordially invited to a Reception, in honor of the scientific speakers and families afflicted by the creation of false memories through the misuse of suggestion” [italics added]. This phrasing is precise. It is when a phenomenon is misused or abused that unacceptable distortion occurs.

Finally, another major point is missed by Karlin and Orne when their discussion of hypnosis or suggestion is not specifically tailored to individual patients who vary in terms of their susceptibility to hypnosis or suggestion. Very little research has been done on the issue of individual differences related to hypnotizability versus suggestibility scales. In other words, many people may be suggestible and have memory contaminated without hypnosis, while others, even with hypnosis, may score very low on hypnotizability or suggestibility scales so that hypnotic influences will have no impact on their memories. It is likely that the malleability of memory is itself a function of individual differences -- that there is a relationship between hypnotizability and/or suggestibility and the ease of memory alteration or pseudomemory implantation/creation. Thus, the crucial issue is not whether hypnosis was used, but rather whether it was likely to have had an undue influence. The “totality-of-the-circumstances” test is essential to make this determination. Otherwise we have the senseless rule in existence now that automatically excludes hypnotically refreshed recollection whenever hypnosis is used even though no more than 10% of the population are likely to be vulnerable high hypnotizables.
The 7.8% figure must be further reduced because, as the International Society for the Study of Dissociation has noted in its Guidelines for Treating Dissociative Identity Disorder in Adults (Gleview, IL, 1994), Athe most common uses of hypnosis are for calming, soothing, containment, and ego strengthening,” rather than for memory retrieval.
California Penal Code, section 667.83 (added 1994); Idaho Code, section 18-1506A (added 1990); Illinois Revised Statutes, chapter 720, section 5/12-33 (added 1992); Louisiana Revised Statutes 14:107.1 (added 1989).
The court was quoting from Orne, The Use and Misuse of Hypnosis in Court,” International Journal of Clinical and Experimental Hypnosis, 27, 311, 317B318 (1979).
I was a member of the ASCH task force and played a principal role in the drafting of the Guidelines.
The cases reviewed by Perry are Isely v. Capuchin Province (1995), Shahzade v. Gregory (1996), and State v. Hungerford (1995). The first two opinions recognize the reality of repressed memory, but the third opinion does not. However, the third opinion has now been replaced with the New Hampshire Supreme Court’s decision in State v. Hungerford (1997) which expressly recognizes the reality of repressed memory and adopts a case-by-case analysis in repressed memory lawsuits. Hungerford itself rejects the repressed memory claim based on the particular facts of that case. Thus, every modern opinion in the repressed memory area accepts the reality of such memories and urges a case-by-case determination.
The Borawick case was written up in an article by Karon Heller, Satan’s Theater,” Connecticut Magazine, 51B55, 84B89 (April 1996). Unfortunately, the article contains significant factual errors, a misunderstanding of the relevant science, and the omission of information that the reader needs to know in order to make an informed choice about crucial facts. For example, the article portrays the plaintiff as unable to hold a job because she could not meet the high number of hours required by first-rank Los Angeles law firms. The article does not tell the reader that the plaintiff underwent several heart surgeries that prohibited her from meeting that schedule. Thus, the reader is left with the view that the plaintiff was a failure, not that the plaintiff had severe medical problems. After reading the correspondence between Helen L. McGonigle, plaintiff’s attorney, and the attorney for the magazine, it is clear that the magazine had little interest in providing its readers with factually accurate information. I thank Ms. Gonigle for supplying me with a 16-page response detailing several dozen biases, errors, and omissions contained in the article.

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Alan W. Scheflin, Esq., is a professor of law at Santa Clara University Law School, Santa Clara, California. He is forensic editor of the American Journal of Clinical Hypnosis and winner of the American Psychiatric Association’s Manfred S. Guttmacher Award for his work in hypnosis.