When we all bring up a memory in our head, we play it back like a videotape. This, however, is not how memory is stored. Memory, when stored, is actually broken up into sections and stored in schemas, the units of knowledge. Schemas can be changed or affected by the exact same categories as what they are supposed to store things in, such as societal values, which allows for prejudice to infiltrate. On top of this, during highly stressful situations, our brains tend to not store as much information as they do in regular moments. Regardless, the brain has to store the information in some way, and whatever it can’t it will fill in with knowledge stored in the schemas. Due to this, memory is not 100% fallible and when repressed memories come back to the surface, can we truly trust them to be correct? In the court of law, when in the midst of a trial and using repressed memories as evidence of a crime or wrongdoing, can we trust that evidence to be reliable, or are the factors involved in memory too random to trust?
A repressed memory is essentially, “a traumatic memory that gets stored away yet is inaccessible from conscious knowledge.” This belief is widely held by a wide margin of the country, both with those in scientific backgrounds and those of ordinary citizens. In a “Memory experts’ beliefs about repressed memory”, written by Lawrence Patihis, on a study she and her colleagues did, on the beliefs of repressed memory held by memory experts, the consensus was found that most do believe some traumatic events in our childhood are locked away and repressed, as well as the belief that you can bring those memories back to the surface with the correct form of therapy. In table 2 of the study, the table shows the mean scores on memory belief questions asked to the memory experts and then contrasted against various group breakdowns such as SARMAC, Psychoanalysts, undergraduates, and the general public of various countries like the UK, India, and the US. Score of 1 through 6 was used, 1 being strongly disagree with 6 being strongly agree. The table shows a heavy consensus between all contrasted groups on each question asked. When asked if memory is reconstructed, a score of 4 and 5 were the highest scores amongst all groups. Repressed memory does not usually come back all at once. It may not even come back at all and remain stuck in the unconscious.
More often than not, however, when it does come back, it comes back in pieces over time such as the case of Eileen Franklin. Eileen Franklin regained repressed memories of her father sexually assaulting her best friend, 8-year-old Susan Kay Nason, in the back of a van and then murdering her. The memories were so detailed and confident that the story of the events was believed by her therapist, the police, and ultimately the jury, who found her father guilty of first-degree murder. While memory is not the greatest, even when repressed, there is still a very high chance a good portion of her memory was indeed authentic. “Repression has been stated to be the foundation on which psychoanalysis rests its feet. Most of the repressed memories that have been uncovered with clinical studies, often show not memories of murder, but memory of various childhood traumas such as sexual abuse” (Loftus). Many researchers will state that from a clinical view, repressed memory has overwhelming evidence when you look at all of the studies and accounts of various similar stories. Despite the scientific studying of repressed memory being relatively imperfect at its best, there have been methods of validating the theory created by researchers who support it. Sigmund Freud first developed the concept idea of repression when he likened the idea of our consciousness to a multi-layered iceberg. Freud theorized that memories float above and below the levels of consciousness with repression being a “a defensive reaction to extreme anxiety in which the mind attempts to relieve the burden it faces by forcing a disturbing memory from consciousness” (Gordon, 1998).
On the legal side of memory, Federal Rule of Evidence 702 aka the New Daubert Standard, states a two-prong test for assessing the admissibility of scientific evidence. First, the reliability of the evidence and secondly, the helpfulness to the jury. To add to these two factors, “in order for something to be admissible as scientific, a testimony must be based on a scientifically tested and or testable theory, the theory must have been peer reviewed and published in a scientific journal, the theory’s error rate and standards for the particular technique or method must be known, and the theory must be generally accepted within the relevant scientific community” (Gordon, 1998). These rules are usually used as guidelines along with many other things for a judge to decide if a testimony is admissible or not. Keeping these in mind, the science of repressed memories fits some points of the Daubert prongs, and misses in others. While it does indeed, miss certain steps of the prongs, it isn’t an entirely missed point and thus judges tend to allow memory and memory-based testimony, such as eyewitness testimony, into court. Memory, including repressed memory, isn’t in its entirety, false information. There is many a truth involved in a memory, and not every case of a memory, involves false or tampered information. Judges realize that while memory can be faulty and is nowhere near perfect, it has its usefulness and isn’t always 100% unusable.
In another study done by Patihis, in the article “Are the “Memory Wars” Over? A Scientific-Practioner Gap In Beliefs About Repressed Memory”, they examined what undergraduates at the University of California, Irvine, believed about how memory works. Results showed that in table 1, approximately 80% percent of the undergraduates agreed that to some extent traumatic memories are indeed repressed. In the same table, over 70% agreed that to some extent those memories can be recovered accurately through the use of therapy. In a second study, done as a follow up based on the results from the undergraduates in their first study, Patihis decided to compare psychologists against the general public as well as undergraduates and then compared the current beliefs with beliefs held in 1992. What the results shown in figure 1 show, is that while there has been a shift in skepticism towards recovered memory in the last two or so decades, the consensus that memory can be repressed and recovered is still generally held as a plausible event as the major discourse appears to be mainly separated by the individual (undergraduate, public, Ph. D. psychotherapists, etc.). Figure 3 of this same study shows that undergraduates in 1995 and those in 2011, still highly agreed that repressed memories are accurate. While the evidence is certainly limited and has its fair share of disagreements, repressed memory and memory testimony involving these repressed memories, does indeed have some legal holding in the law and deserves to be considered being brought into court cases as evidence.
In the first study done by Patihis about memory experts and their opinions held on repressed memory, most of the experts, still could not conform to 100% certainty that repressed memory is a valid form of memory with one expert stating “repression is not well supported, although we do not know enough to rule it out completely. There is emerging and convincing evidence for retrieval inhibition, a lack of rehearsal can also lead to a sense of forgetting” (Patihis, 2018). On the opposite side of the same study, the most skeptical of experts, one of which spent approx. 70% of her time on research, stated she was skeptical because “memory is easily distorted, subject to error and is often a combination of fact, bias, post event information and prior knowledge” (Patihis, 2018). Essentially this is meaning that memory is nowhere near perfect and like anything, memory can be distorted or filled in with knowledge obtained from prior events or information obtained post event. As previously stated above, memory is stored in schemas and those schemas are also used to recall information in the future. Whenever something in memory can’t be completely encoded and remembered, it will pull information from schemas to fill in the missing pieces of a memory. In the same study done by Patihis, most of their sample memory experts, disagreed with the statement that traumatic memories are often repressed and could be recalled with therapy in an accurate manner. Even the memory expert that was in favor, agreed they were influenced by a lecturer.
Table 3 of the study, shows the same various groups average means based on the number of participants in a score of 1 to 100. The memory experts mean was 33.4, psychoanalysts got a 55.9 with only the US and Indian public having a score relatively positive within the 80th percentile. Every other group was either high 70’s or 50’s and below, thus showing a rather wide held belief that repressed memory is not very confided in. When it comes to the Franklin-Nason case, there is a chance not all of Eileen Franklin’s memory is 100% complete. Media reports and articles circulating from that time period, had much of the same details Eileen stated such as Nason’s skull being fractured and a crushed ring on Nason’s hand from attempting to defend herself from her attacker. Eileen’s memory also was not proven to be the greatest when recalling these events, as her narrative had changed various times from the initial police report down into the final testimony done in court. A repressed memory, may not even be a repressed memory, it could be a false memory. False memories are memory distortions where people will sometimes develop incredibly detailed or vivid memories of events that never actually happened. It can also sometimes be called memory illusion and its research has found much use in the accuracy and reliability of eyewitness memory, authenticity of child abuse, and many others. There has success in experimental studies where false memories have been created with the use of the misinformation method, in which you create a memory of something based on details that never occurred. While every individual is indeed different, the basis of memory is still the same.
The misinformation method is performed by having participants witness an event, then are given misinformation about the event, and finally are then tested for memory of the event. In a more current study done by the Beijing Normal University, 557 undergraduate students were recruited and asked to participate with 436 of them being asked to complete the misinformation test. Figure 1 shows off how the misinformation test was performed by being broken into three parts. Essentially, the participants were shown two stories each consisting of 50 colored slides and the order was randomized. After a 30-minute interval of filler tasks, the participants were asked to read narrations filled with misinformation. After a 10-minute interval of more tasks, participants took the recognition test. The test consisted of 18 questions with 12 critical and 6 control. Each had three choices and was given over a computer. Overall, those who had a high level of false memory had chosen half or more of the misinformation while those who had low level of false memory had only chosen less than approx. 10% of the misinformation. In a case more related to memory overall and its right to be allowed in court, is the McMartin Preschool Trial of the 1980’s. The McMartin case was one of biggest, if not the biggest, and most expensive criminal trial in American history, costing the United States government approx. 16 million dollars by the time it was over and resulting in zero convictions.
The case started in 1983 when a parent reported their two-year-old son was molested by staff member, Ray Buckey. Many more children during the course of the investigation were examined with various techniques now to have been deemed inappropriate. Out of those examinations over 300 charges of various types of abuse were brought out against various staff members including Ray’s mother and 5 other women who worked at the preschool. As the years dragged on, most of the charges against the members were dropped due to severe lack of evidence and in 1990 after two different trials, both of which ended up with hung juries, the government gave up and all members were acquitted. The results of this long, drawn out case, left staff members with ruined careers and lingering suspicion on them and many children and family feeling left deserted by the legal system. In the 1980’s and early 1990’s, many people in society held the belief that children could not possibly make up such strong lies regarding events so serious. As more research came into play far after the early 1990’s, this view has been diminished, especially due to results showing that children are highly susceptible to information and can be convinced of details surrounding an event and its details despite the fact said event never actually occurred. Children at first generally denied ever seeing any evidence of abuse at first but eventually gave the investigators the stories they wanted. In addition to interviews, Dr. Astrid Heger, concluded that 80% of 150 medically examined children, had been molested and based this statement not off of physical evidence but off of medical history and the belief that “any conclusion should validate a child’s history” (Linder, 2007). What this case helps to establish, is that memory is easily manipulated and it can be manipulated in ways outside of just the person who is recovering said memory. Memory can be affected and changed from numerous outside sources such as leading questions in interviews, that can end up “planting” a memory that never existed.
Memory, let alone testimony off of memory, is easily tampered with. Evidence, numerous studies, and various different types of cases, both past and more present, show that memory, repressed or not, is just too unreliable and should not be allowed in court. There is far more research and evidence showing numerous reasons why we shouldn’t allow repressed memory into court, than there is showing reasons as to why we should allow it. Repressed memory is not very accurate and there are far too many variables involving memory as a whole that allow the recovery of memory to be incomplete. From manipulation from outside sources, to your own brain filling in missing holes with information learned after the repressed event, and everything in between, the reliability of memory as a whole is too uncertain to be used as evidence and should not be accessible in a court of law. When an evidence is coming into play that can not effectively, reliably, or confidently, prove innocence or guilt, the evidence should be denied and become inadmissible for court. Memory fits all three of these criteria in all of the ways talked about above, and the cases and studies support this in excess.
