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Ault v. Jasko8/31/1994
leeping Memories, supra, at 159-161. Further complicating the issue is the lack of clinical case studies supporting the concept of repression. Id. at 134. This is not surprising, however, given the ethical implications of reproducing in an experimental setting the trauma necessary to induce repression. Id.
Some variation in memory retrieval methods, however, can be explained. Psychotherapists who engage in recovered memory methods are considered either forensic or clinical. Hypnotic Memories, supra, at 1217-1218. Each group uses different techniques in attempting to retrieve a repressed memory because each group is attempting to accomplish something fundamentally different. The forensic psychotherapist is typically trying to elicit information that will be admissible at trial and, therefore, will not "prepare" the patient, make suggestions, or ask leading questions during therapy. See id. at 1217-1218. The clinician's purpose, however, is completely different. The clinician's goal is rehabilitation. The treatment program is provided solely to benefit the patient. If a patient's rehabilitation can be accomplished by assisting the patient to recall a traumatic memory heretofore repressed, whether the memory is fact or fantasy, the clinician will encourage the patient to recall that memory in whatever form. Id. at 1218. For it is not necessarily the recalling of an accurate memory with which the clinician is concerned, but with the patient's overall rehabilitation. Id. For example, in attempting to rehabilitate patients by helping them recall a traumatic memory, clinicians may reveal their own expectations before the session about the information they expect to recover, ask leading questions, and encourage patients to use their imagination. See id. at 1218-1219. As noted above, none of these techniques is appropriate in the forensic setting.
In my view, there are unmistakable parallels between the practice of retrieving repressed memories and the science of polygraphy. Courts consistently have been reluctant to accord credibility to the results of a polygraph test. This reticence can be traced back to the landmark case of Frye v. United States (C.A.D.C.1923), 293 F. 1013, in which the court stated that a scientific technique from which a deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs. This axiom has since been adopted by most courts as the standard in determining the admissibility of evidence based on a particular scientific technique. And while the United States Supreme Court has recently ruled that in federal trials Frye's "general acceptance" test, heretofore the exclusive test for admitting scientific evidence, was superseded by the adoption of the Federal Rules of Evidence, the court wenson to state that, under the Rules, courts "must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable," and that " idespread acceptance can be an important factor in ruling particular evidence admissible, and `a known technique that has been able to attract only minimal support within the community' may properly be viewed with skepticism." Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. ___, at ___ and ___, 113 S.Ct. 2786, at 2795 and 2797, 125 L.E.2d 469, at 480 and 483.
It is my belief that, like polygraphy, the practice of memory recovery is fraught with unreliability and, when used in the judicial system, should receive the same skepticism and critical examination given to the use of polygraphy. Not unlike the science of polygraphy, memory retrieval places unusual responsibility on the examiner. Based on the foregoing I can only conclude that the practice o
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