Note: This motion was filed in New Hampshire state court. New Hampshire at that time had not adopted Daubert's standard for evaluating the admissibility of scientific evidence.

THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS. SUPERIOR COURT

NORTHERN DISTRICT

ST.

STATE OF NEW HAMPSHIRE

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DEFENDANT'S MOTION TO DISMISS

NOW COMES the Defendant, xxxxxxxxxxx, by and through his attorneys, Brennan, Caron, Lenehan & Iacopino and respectfully moves this Court as follows:

1. The Defendant is charged with three counts of aggravated felonious sexual assault.

2. The alleged victim has stated that the incidents occurred sometime between December 7, 1987 and March 24, 1988.

3. According to the police reports, the alleged victims made the allegations in accordance with her repressed memory of the events which she recently retrieved.

4. According to the police reports, it appears that the earliest report was made on June 7, 1993.

5. According to the police reports, the alleged victim discovered the incidents during a family counseling session at the Desisto School, which is located in the Commonwealth of Massachusetts, sometime in August of 1991.

6. The allegations of the purported incidents are uncorroborated.

7. The allegations are a result of the recovery of repressed memories, which do not comport with the requirements of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). See also McCollomb v. D'Arcy, 138 N.H. 285 (1994); State v. Cressey, 137 N.H. 402 (1993); Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).

8. Repressed memory syndrome is not a uniformly acceptable technique within the scientific community, which would render any evidence or information obtained therefrom admissible in court. See New Hampshire Rule of Evidence 702.

WHEREFORE the Defendant prays for the following relief:

A. That this Court dismiss the indictments currently pending against him; and

B. For such other and further relief as may be just and proper.

Respectfully submitted,

John A. Monahan, Defendant

By his attorneys,

BRENNAN, CARON, LENEHAN & IACOPINO

Date: By:

Michael J. Iacopino, Esquire

85 Brook Street

Manchester, NH 03104

(603) 668-8300

STATE OF NEW HAMPSHIRE

Hillsborough, ss.

Northern District Superior Court

Docket No.

State of New Hampshire

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State of New Hampshire

xxxxxxxxxxxxxxxxxxxxx

JOINT MEMORANDUM IN SUPPORT OF DEFENDANTS'

MOTIONS TO DISMISS

INTRODUCTION

On March 27, 1995, a pre-trial hearing was held before this Court on the validity of memory repression and the admissibility of testimony flowing therefrom. Over ten days, the Court heard from various experts concerning the status of the "scientific knowledge" underlying the phenomenon known as memory repression or traumatic amnesia.⁽¹⁾

This memorandum, supported by the defendant's Requested Findings of Facts and Rulings of Law, incorporated herein by reference, addresses the State's failure to meet its burden of proof to establish the scientific validity of memory repression or traumatic amnesia and the reliability of the process of retrieving alleged "recovered memories."

ARGUMENT

Prior to the hearing, the Court held:

Before testimony of the victim's memory of the alleged assault may be admitted, a hearing shall be held at which the burden shall be upon the State to establish that the phenomenon of memory repression and the process of recovery through therapy have gained general acceptance in the field of psychology. The State must establish the validity of the phenomenon and process by demonstrating that the reasoning or methodology underlying the testimony is scientifically valid; and that it is capable of empirical testing and can properly be applied to the facts in issue. (See Daubert v. Merrill-Dow Pharmaceutical, Inc., supra, at 2796. See Order, September 14, 1994, p. 9.)After persistent arguments by the State that therapy was not a factor in the retrieval of Laura B.'s memories, the Court granted the State's request to reconsider or clarify its Order by holding that the State had the burden to establish that the memories were not recovered through therapy. However, the Court continued:

If the Court determines that the memory was recovered through therapy, it will also determine whether such process is reliable and the State has the burden to establish such reliability. See Order, November 4, 1994.The standard enunciated by the Court and the hearing was necessitated by the holdings of McCollum v. D'Arcy, 138 N.H. 285 (1994), Daubert v. Merrill-Dow Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993), Frye v. United States, 293 Fed. 1013 (1923) and State v. Cressey, 137 N.H. 402 (1993) and New Hampshire Rule of Evidence 702.

I. The Court's Concern as to the Validity of Memory Repression and "Recovered Memories" During Therapy is Relevant to the Facts in Issue in this Case.

A. Facts Specific to State v. Hungerford:

Laura B. testified at the hearing that she had no ability to recall the alleged incidents of sexual assault by her father until after she commenced therapy in September of 1992 with Susan Jones. She now asserts that she believes that she repressed or had traumatic amnesia for each incident almost immediately after it occurred. Testimony at the hearing further demonstrated that she started exploring nightmares, "body memories" and alleged flashbacks of sexual abuse at the hands of her father with Jones.

Laura B., Dr. Conte and Jones all testified that Jones used a memory retrieval technique which Jones called "visualization" or "imagery" in part to relax Laura, but also to "explore" these dreams, body pains and flashbacks. This procedure resulted in Laura uncovering what she believed to be were memories of sexual assaults when she was she was three years old standing alone in a bathroom at a swim club⁽²⁾; five years old on her father's bed; twelve years old in the family car; twenty-one years old traveling in Europe; and twenty-two years old tied to her parents' bed with a gun inserted in her⁽³⁾. Laura claims her memory of being raped two nights before here wedding was recovered at home via a "flashback." Jones was unsure, but believed some visualization or imagery work was done on the wedding incident, but not the gun incident. Det. Lyon testified that Laura told him she recovered the wedding rape during a counseling session in March 1993.

The Court need not resolve the discrepancy surrounding whether the wedding incident was specifically recovered during a therapy session or not. Experts for both the State and the defense testified that therapy can be an influence or catalyst to a recovered memory whether the retrieval occurs during a counseling session or not.⁽⁴⁾

B. Facts Specific to State v. Morahan:

Similarly, Sarah F., the complaining witness in the Morahan case, alleges that she repressed all memories of the alleged assault. These memories were not "recovered" until after her attendance at a therapeutic school which used Gestalt therapy, inner child therapy, and hypnosis at various times. During the course of her therapy, Sarah F. initially believed that her stepfather had sexually abused her. However, in July 1991, Sarah F. apparently recovered her memory of being raped by the Defendant. Additionally, she "remembered" feeling that she was pregnant and taking an overdose of her asthma medications in order to abort the pregnancy. She testified that she recalled bleeding vaginally as a result of taking the medication. The evidence at the hearing indicated that Sarah F. was incapable of becoming pregnant at the time of the alleged rape. The evidence also indicated that an overdose of her asthma medication would cause neither vaginal bleeding nor abortion.

Despite these physical impossibilities, Sarah F.'s counselors validated her memory and, in fact, engaged her in a course of "grief therapy".

II. The Existence of Memory Repression or Traumatic Amnesia is Not "Generally Accepted" in the Relevant Psychological or Psychiatric Community.

The Frye court held:

[W]hile the Courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.293 F. at 1014. The Frye court assumed that general acceptance indicated reliability and that only reliable evidence would be admitted. State v. Vandebogart, 136 N.H. 365, 373 (1992) quoting United States v. Jakobetz, 955 F.2d 786, 794 (2d Cir. 1992), cert. denied, 113 S. Ct. 104 (1992).In Vandebogart, the Court quoted from one commentator that Frye envisioned an "evolutionary process" leading to the admissibility of scientific evidence in which a concept or principle must pass through an experimental stage in which it is "scrutinized" by the scientific community. "Only after the technique has been tested successfully in this stage and has passed into the 'demonstrable' stage will it receive judicial recognition." Vandebogart, at 373, quoting P. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half Century Later, 80 Colum. L. Rev. 1197, 1205 (1980).

Experts for the defendants, as well as for the State, testified that there is a "raging debate" or controversy occurring in the psychological and psychiatric community as to whether memory repression or traumatic amnesia exists. One expert for the State, Dr. Brown, noted that this was "putting it mildly."The State attempted to deflate this controversy by eliciting testimony that the debate was primarily being raised by scientific researchers in psychology and psychiatry and not by therapists who treat patients. Assuming arguendo that this were true, the State would still have not met its burden of demonstrating "general acceptance" of the phenomenon in that the Frye standard contemplates a scientific principle which has been "tested successfully," "scrutinized" by the scientific community and that has passed into the "demonstrable stage." Vandebogart, at 373. To date, memory repression or traumatic amnesia has neither been successfully demonstrated nor withstood scientific scrutiny.

The State's assertion that the debate is limited to a small group of researchers who have only recently raised a concern is belied by the testimony of all of the defendants' experts, but especially by Dr. Paul McHugh. Dr. McHugh has been the chairman of the Department of Psychiatry at Johns Hopkins Hospital for the past twenty years. He testified that at no time during his career has this phenomenon ever been "generally accepted" in the psychological or psychiatric community, nor has it ever been taught as an established scientific principle at Johns Hopkins. If one of the leading psychiatric teaching and treatment hospitals in the world has not accepted the phenomenon of memory repression or traumatic amnesia, how can the State assert to this Court that the phenomenon has been "generally accepted?"

III. Testimony Underlying the Phenomenon of Memory Repression or Traumatic Amnesia is not Based on Reliable Scientific Knowledge.

A key question in determining whether testimony concerning memory repression or traumatic amnesia is based on scientific knowledge is whether the phenomenon is capable of being empirically tested or validated. Daubert, 113 S. Ct. at 2797. Daubert further identifies as a pertinent consideration whether the theory or technique has been subject to peer review and publication because it increases the likelihood that substantive flaws in methodology will be detected. Id.

The State failed to provide this Court with any evidence that the hypothesis of memory repression or traumatic amnesia can be empirically tested. Rather, the State's experts relied on a history of literature which purported to demonstrate the phenomenon of amnesia or repression for traumatic events. However, this literature cannot withstand scrutiny. The studies of combat soldiers, holocaust survivors or other victims of trauma, did not provide this Court with any evidence based on sound scientific methodology that the phenomenon of memory repression or traumatic amnesia as described by the complainant occurs.

As Dr. Hudson testified, the studies relied on by the State fail to support memory repression or traumatic amnesia because a large percentage of the subjects lost consciousness, which would not eliminate biological causes of amnesia, recovered memories under hypnosis or amytal, which is known to cause confabulations, and were not exposed to confirmed trauma or experienced confirmed amnesia. Some studies relied on by the State's experts, such as Dr. van der Kolk's reference to Archibald and Tunnebaum's study of war-related trauma or MacDonald and Gould's autobiography of Maggie MacDonald, provide no evidence of amnesia at all. At the time of Dr. van der Kolk's testimony, he was even unfamiliar with the substantive contents of Ms. MacDonald's autobiography. As the book's acknowledgments indicate, Ms. MacDonald had an astonishing ability to recall the events of her traumatic life.

Each study cavalierly offered by the State's experts was scrutinized and refuted by Dr. Hudson's testimony. The most a review of the historical literature concerning memory repression or traumatic amnesia can establish is that this phenomenon has been postulated as a possible hypothesis which has not been substantiated by reliable scientific proof. Indeed, as indicated by a review of trauma studies presented by Dr. Hudson, though "memory disturbances" may exist for individuals who experience traumatic events, amnesia for the core events does not occur. (See Hungerford Exhibit O).

The most recent studies relied on by the State specifically dealing with childhood sexual abuse also do not provide this Court with sound scientific evidence that the phenomenon occurs. The substantial methodological flaws present in these studies cannot be dismissed on the testimony of the State's experts that "every study has its flaws." In general, most of the studies fail to confirm the alleged trauma, fail to confirm the amnesia, and fail to define what is specifically meant when a subject responds to the ambiguous question "was there ever a time you did not remember the abuse."

In the Herman and Schatzow study, in which the trauma was allegedly documented by hospital records, no clarification interview was conducted with the subjects to determine if their failure to report the assault was based on memory repression or traumatic amnesia or some other factor such as embarrassment, protecting a relative, etc. These ambiguities are exactly the type of "substantive flaws in methodology" that the Daubert Court hoped would be exposed by peer review.

Most telling that the State's reliance on these studies is misplaced is the testimony of Dr. Jon Conte and Dr. Elizabeth Loftus. Each was a co-author of a study cited by the State's experts, Dr. Brown and Dr. van der Kolk, as demonstrating the existence of memory repression or traumatic amnesia.⁽⁵⁾ Both testified that their studies were not designed to prove the phenomenon, failed to demonstrate its existence and were methodologically flawed in this regard. Both have been on public record stating that asserting their studies proved the existence of memory repression or traumatic amnesia was incorrect and a misuse of their studies. Yet, the State continues to rely on these studies to assert testimony concerning memory repression or traumatic amnesia is based on scientific knowledge. Does the State purport to know more about the scientific validity of the studies than the authors themselves?

The methodological flaws identified by Dr. Conte and Dr. Loftus in their own studies exist in all the studies purporting to demonstrate the phenomenon for alleged survivors of childhood sexual abuse. Additionally, the State's experts could not even present to this court any study documenting memory repression or traumatic amnesia for an adult victim of sexual assault.

Studies were also offered by the State which have not even been published or subjected to peer review. Specifically, data by Elliot and Fox and Briere and Elliot do not appear to eliminate the methodological flaws present in other studies of childhood sexual abuse. Dr. van der Kolk's field trials for Post Traumatic Stress Disorder suffer from the same methodological flaw of an ambiguous question concerning a person's memory which fails to pinpoint memory repression or traumatic amnesia. Dr. van der Kolk's own testimony indicates his opinion that the field trials were not designed to establish nor prove the phenomenon exists. It is still unclear what relevance his PET Scan studies have for this Court. Though different portions of the brain might be activated during a traumatic experience, this does not provide this Court with any scientific proof that memory repression or traumatic amnesia occurs.

IV. Recovered Memories of Alleged Repressed Sexual Assaults are Too Unreliable to be Submitted in Evidence in a Court of Law.

In one sense, this Court need not resolve whether memory repression or traumatic amnesia is "generally accepted" in the psychological or psychiatric community or whether there is sound scientific evidence of its empirical validity. Regardless of the Court's resolution of those matters, it is clear the State cannot meet its burden that alleged repressed memories of sexual assaults can be reliably retrieved through therapy.⁽⁶⁾

All of the State experts acknowledged that false "memories" or false beliefs in previously repressed memories can and do occur. All the State's experts testified that there is no scientific evidence that repressed memories can be reliably retrieved by any triggering mechanism or memory retrieval technique. Once a person claims to have retrieved a memory, the testimony indicated there is no reliable way to distinguish an accurate memory from a false one.

The State may assert that that is true for any memory whether repressed or not. However, the State would be ignoring the testimony of its own experts. Dr. Brown testified that how much detail of the memory is recovered has no correlation as to its authenticity. In other words, if a complainant recalls an entire episode with every minor detail, or whether she only recalls a momentary fragment, has no bearing on the memory's truthfulness. The extent of the complainant's conviction as to the accuracy of the memory also has no bearing on its authenticity. Consequently, the jury is left with nothing to evaluate the truth of the complainant's testimony. Jurors are told to apply their common sense and experience in evaluating the credibility of witnesses, their demeanor, and the substance of their testimony. But, in a recovered memory case, the demeanor and conviction of a complainant who might well be convinced she was sexually assaulted, means nothing. The substance and content of her recovered memory means nothing. The jury is left with nothing in their common experience to evaluate the testimony. They have as much chance at making the right decision as to the defendant's guilt or innocence as if they flipped a coin in the deliberation room.

For these reasons, testimony based on recovered memories is immune from effective cross-examination and would deny the defendant constitutional rights pursuant to the Fourteenth, Fifth and Sixth Amendment of the United States Constitution as well as Part 1, Article 15 of the New Hampshire Constitution. For example, any challenge as to why Laura B. does not know how she was tied or untied to her parents' bed when assaulted can simply be answered by her claim that she "repressed it." Challenging why she did not report the assault when she was attacked as an adult, can be defended because she "repressed" them immediately. Challenging why she continued to return home to her father if he sexually assaulted her, she can respond by saying she "repressed" the previous assaults. Yet, when challenging why she apparently complied by undressing for her father before she was raped when traveling in Europe, she can testify it was a learned "dissociated" response to the "repressed" previous assaults.

In summary, as Dr. McHugh testified, testimony based on recovered memories is "irrefutable and undemonstrable." This same immunity from cross examination was a major concern in the Court's precluding expert testimony in State v. Cressey, 137 N.H. 402 (1993) (experts' opinion that children were sexually abused based in part on analysis of art therapy was not scientifically reliable to be admissible and was effectively immune from cross-examination.)

No more dramatic demonstration of the State's inability to prove the reliability of recovered memories exists than the testimony of Dr. van der Kolk. Numerous times the State attempted to elicit from him an opinion as to the accuracy of recovered memories. When the Court mandated that Dr. van der Kolk's testimony be based on an opinion to a reasonable degree of scientific certainty, he replied words to the effect that "only time will tell." Dr. Brown would not rely on a recovered memory unless a forensic assessment was performed determining a complainant's hypnotizability or suggestibility. Dr. Conte does not go that far, but rather would rely on the memory if "unduly suggestive" influences were not present, (i.e., if you cannot prove to me why it's false, then I will believe it's true.) Yet, he candidly admitted in his own forensic experiences he has seen memories believed by him to be false (arms in a horse's anus, worms in a vagina) when no undue suggestion existed. Consequently, in any given case, there is no discernable means to evaluate the reliability of the testimony.

The State's expert who examined Laura and her therapist cannot even agree as to what are reliable memories. Jones testified that she was unsure if the "gun incident" was a real event⁽⁷⁾ and felt all of Laura's memories, except the rape before her wedding, were "conglomerates." Dr. Conte testified that if allowed to testify as to his opinion as to the validity of Laura's recovered memory of being raped two nights before her wedding,⁽⁸⁾ he testified he would not be able to state it was reliable. Jones now claims that she believes Laura's recovered memory of being sexually assaulted on her father's bed at age five is nothing more than a dream.

If the complainant's therapist and an expert retained by the State cannot agree on what are reliable recovered memories, how can a lay jury? To allow a jury to decide Mr. Hungerford's or Mr. Morahan's guilt or innocence on the basis of the complainants' testimony of recovered memories puts them in an indefensible and untenable position which should not be allowed by this Court.

CONCLUSION

The State has not met its burden that the phenomenon of memory repression or traumatic amnesia and the process of memory recovery through therapy has gained "general acceptance" in the field of psychology or psychiatry. The State has not established the scientific validity of the phenomenon or that it can be empirically tested. Assuming arguendo, the phenomenon could occur, the State has not established the reliability of recovered memories. Consequently, testimony of the complainant or experts based on recovered memories should be inadmissible at trial. There is simply no scientific basis to believe you can be repeatedly sexually assaulted over eighteen years, including two nights before your wedding, and have no ability to recall the events.

Respectfully Submitted,

C:\wwwfpd\reprsmem.wpd

1. The phenomenon confronting the Court is the complainant's claim to have been the victim of numerous sexual assaults, some occurring while an adult, while having no memory or ability to recall the assaults until they were somehow "triggered" at a future time, often with the assistance of, or during the course of therapy. Whether this phenomenon is referred to by the mechanism of memory repression or traumatic amnesia is of no consequence in determining whether the testimony underlying the phenomenon is scientifically reliable. Herein, this phenomenon will be referred to as memory repression or traumatic amnesia.

2. Both Susan Jones and Det. Lyon recall Laura claiming her father was present in this memory. Laura now claims this is not so.

3. Jones' therapy notes indicate this memory was discussed in therapy on Mary 10, 1993. It is unclear why Laura did not disclose this incident in her interview with Det. Lyon in July 1993. Based on Lyon's testimony that Laura told him in September 1993, that she had "feelings" of a memory that she wanted to wait to discuss with her therapist, perhaps it took from May until September for Laura and her therapist to completely "explore" the memory.

4. As one expert testified, therapy and attempts to "recover memories" can become a "way of life."

5. Dr. Conte co-authored with John Briere, Self-Reported Amnesia for Abuse in Adults Molested as Children. See xxxxxxxs Exhibit LLLL; Dr. Loftus co-authored Memories of Childhood Sexual Abuse, Remembering and Repressing. See Hungerford's Exhibit MMMM.

6. The State elicited testimony that there was insufficient scientific evidence that therapy, popular books or believing your sibling was abused could "cause" a false memory. Certainly the implication of the testimony is that the defense cannot prove therapy causes false memories. The State's argument is simply a veiled attempt to shift the burden to the defendant to prove the unreliability of a recovered memory. In essence, the State wants the Court to adopt a presumption of reliability unless the defense rebuts it with proof of what caused the "false memory." Yet, the Court has made it unequivocally clear that the State bears the burden to prove the scientific validity of the phenomenon and the reliability of the retrieval process.

7. Which is the basis for Indictments arising out of the Summer of 1990.

8. Which is the basis for the remaining Indictments against Mr. xxxxxxxxx