In State v. King, the N.C. Supreme Court recently clarified the rules regarding the admissibility of repressed memory evidence. In King the defendant was charged with sexually assaulting his daughter, a minor. When she was approximately 17 years old, the victim began suffering panic attacks and pseudoseizures, acting like a young child, speaking of a “mean man” who might hurt her, and identifying her father as the “mean man.” The victim was diagnosed with conversion disorder and referred to therapy. During therapy the victim recounted an event that occurred when she was seven years old. Specifically, she recalled getting out of the bathtub and hurting her “private area.” She did not remember how the injury occurred, but remembered that her father said she had fallen. She also remembered bleeding and going to the hospital where she was treated for a vaginal laceration. When the therapist asked the victim what she would think if a friend related this incident to her, the victim said that she would “wonder about abuse,” but added that she did not believe her father would do that. The therapist stated that the mind can protect itself by “going somewhere else when something very difficult or painful might be happening.” About three weeks later, the victim experienced her first “flashback.” When her boyfriend’s arm brushed against her, the memory “hit” that as she had been getting out of the bathtub, her father came in, lifted her against the wall, threw her on the floor, held her down, and raped her. The victim recalled that her father had threatened to hurt her if she told anyone. After reporting this memory to her therapist, the victim was referred to social services. An investigation resulted in the charges against the defendant.
The defendant made a pretrial motion to exclude expert testimony about “repressed memory” and synonymous terms. The defendant argued that the evidence did not satisfy Rule 702 and Howerton (as noted by the King court, the recent legislative changes to Rule 702 did not apply in this case). A hearing on the motion resulted in a battle of crimson experts. The State called James A. Chu, M.D., associate clinical professor of psychiatry at Harvard Medical School, as an expert in repressed memory. The defendant offered Harrison G. Pope, Jr., M.D., professor of psychiatry at Harvard Medical School, also as an expert in repressed memory. Pope testified that the theory of repressed memory is not generally accepted in the scientific community. Chu disagreed. The trial court granted the motion to suppress. Although it found Howerton satisfied, it excluded the evidence under Rule 403.
The State appealed, believing that it could not proceed to trial under the rule of Barrett v. Hyldburg, 127 N.C. App. 95, 100 (1997). Barrett was a civil action for assault and battery and other claims, all based on the plaintiff’s repressed memories. Barrett held that “testimony regarding recovered memories of abuse may not be received at trial absent accompanying expert testimony on the phenomenon of memory repression.” It reasoned that expert testimony is needed “to afford the jury a basis upon which to understand the phenomenon and evaluate the reliability of testimony derived from such memories.” The State believed that once the trial court refused to admit expert testimony of repressed memory, Barrett prevented the victim from testifying. Agreeing with the State’s characterization of Barrett, the court of appeals affirmed. The State sought further review.
The N.C. Supreme Court began by holding that the trial court did not abuse its discretion by excluding the expert testimony under Rule 403. It concluded that even if expert evidence is both relevant and admissible under Rule 702, the trial court still may exclude it under Rule 403. Here, there was no abuse of discretion in the trial court’s conclusion that because recovered memories are of “uncertain authenticity” and susceptible to alternative possible explanations, the probative value of the testimony was outweighed by its potential to confuse or mislead the jury. The court was careful to note that it was not promulgating a general rule as to the admissibility of repressed memory evidence. It stated:
[W]e stress that we are reviewing the evidence presented and the order entered in this case only. We promulgate here no general rule regarding the admissibility or reliability of repressed memory evidence under either Rule 403 or Rule 702. As the trial judge himself noted, scientific progress is “rapid and fluid.” Advances in the area of repressed memory are possible, if not likely, and even Dr. Pope, defendant’s expert, acknowledged that the theory of repressed memory could become established and that he would consider changing his position if confronted with a study conducted using reliable methodology that yielded evidence supporting the theory. Trial courts are fully capable of handling cases involving claims of repressed memory should new or different scientific evidence be presented.
The court then considered the impact of Barrett. It agreed that a witness may not express the opinion that he or she has experienced repressed memory, stating that such testimony required expert opinion. However, it found that Barrett went too far when it indicated that a witness’s testimony that he or she suddenly remembered traumatic incidents from childhood must be accompanied by expert testimony. It stated: “if a witness is tendered to present lay evidence of sexual abuse, expert testimony is not an automatic prerequisite to admission.” The court then remanded for proceedings consistent with its opinion.
So what does this mean with respect to repressed memory evidence? It means this:
- A victim may testify to his or her recollections of past events, including testimony that for some time period he or she did not recall, had no memory of, or had forgotten the incident.
- A victim may not express the opinion that these recollections are the result of repressed memory.
- To introduce evidence regarding the psychiatric theory of repressed memory, expert testimony is required.
- Such expert testimony must satisfy Rule 702.
- Even if such testimony satisfies Rule 702, the trial judge may exercise discretion to exclude it under Rule 403.