Due Process and the Admission of Expert Evidence on Recovered Memory in Historic Child Sexual Abuse Cases: Lessons from America

AuthorSinéad Ring
Published date01 January 2012
Date01 January 2012
Subject MatterArticle
Due process and the
admission of expert
evidence on recovered
memory in historic child
sexual abuse cases:
lessons from America
By Sinéad Ring*
Lecturer in Law, National University of Ireland, Galway
Abstract This article reviews the decisions of the US state courts on the admissi-
bility of expert testimony on recovered memory in historic child sexual abuse
prosecutions. Unlike their English and Irish counterparts, most US courts
scrutinise the reliability of expert evidence on recovered memory. In examining
the US decisions the article explores the challenges posed to the criminal
process by the contested scientific status of recovered memory theory. It sets out
due process arguments why expert evidence on the topic should not be
admitted in a criminal trial.
Keywords Expert evidence; Recovered memory; Due process; Historic child
sexual abuse prosecutions; the United States; Ireland; England and Wales; Law
* Email: sinead.ring@nuigalway.ie. This article is based on doctoral research at University College
Cork funded by the Irish Research Council for the Humanities and the Social Sciences. The
research for the article was carried out at Harvard Law School in 2010. I am grateful to the
anonymous reviewers for their insightful comments. Thanks also to Caroline Fennell, Catherine
O’Sullivan, Noelle Higgins and Carol Steiker for their comments on previous drafts. Any errors are
my own.
he admission of expert evidence in a criminal trial allows specialised
knowledge to inform the jury’s decision, and thereby contribute to the
accuracy of the trial verdict. However, when convictions are found to
have been based on unreliable expert evidence, the legitimacy of the entire
criminal justice system is undermined. The past decade has seen a rash of
high-profile miscarriages of justice involving unreliable expert evidence tendered
by the prosecution,1sparking a debate in academic2and political circles3about
how to prevent junk science and other forms of untested assertions masquerading
as expertise from reaching the jury. The main criticism is that the current liberal
admissibility test—which merely requires the expert to be qualified and the
evidence to be relevant4—allows expert evidence of doubtful reliability ‘to be
admitted too freely with insufficient explanation of the basis for reaching specific
conclusions, be challenged too weakly by the opposing advocate and be accepted
too readily by the judge or jury at the end of the trial’.5The publication of the Law
Commission’s recent Report on the subject heralds an important move away from
the current laissez-faire approach and towards increased scrutiny of the reliability
of expert evidence.6Similar proposals have been mooted in Ireland.7This article
resonates with the reliability debate and examines the particular challenges
posed to due process by expert evidence on recovered memory in historic child
sexual abuse cases.
1RvDallagher [2002] EWCA Crim 1903, [2003] 1 Cr App R 12; RvClark (No. 2) [2003] EWCA Crim 1020,
[2003] 2 FCR 447; RvCannings [2004] EWCA Crim 1, [2004] 1 WLR 2607; RvHarris [2005] EWCA Crim
1980, [2006] 1 Cr App R 5.
2 See, e.g., A. Roberts, ‘Rejecting General Acceptance, Confounding the Gate-Keeper: The Law
Commission and Expert Evidence’ [2009] Crim LR 551. Hartshorne and Miola advocate a specialist
gate-keeping panel to decide on the admissibility of expert evidence based on new theories and
techniques. J. Hartshorne and J. Miola, ‘Expert Evidence: Difficulties and Solutions in Prosecutions
for Infant Harm’ (2010) 30(2) LS 279 at 289.
3 House of Commons Science and Technology Committee, Forensic Science on Trial, Seventh Report of
the Session 2004–05, HC 96-I 2005.
4 C. Fennell, The Law of Evidence in Ireland, 3rd edn (Bloomsbury: Dublin, 2009) ch. 7; P. Roberts and A.
Zuckerman, Criminal Evidence (Oxford University Press: Oxford, 2004) chs 3 and 7. Reliability of
expert evidence is not a question of admissibility but rather a matter going to the weight of the
evidence: L. Heffernan, R. Ryan and E. J. Imwinkelried, Evidentiary Foundations (Tottel: Dublin, 2008)
5 Leveson LJ, ‘Expert Evidence in Criminal Courts—The Problem’, paper presented to the Forensic
Science Society, Kings College London, 16 November 2010 at 15.
6 Law Commission, The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales, Law
Com. Report No. 325 (2011), available at <http://www.justice.gov.uk/lawcommission/publications/
expert-evidence.htm>, accessed 22 October 2011.
7 The Irish Law Reform Commission has provisionally recommended the introduction of a judicial
guidance note outlining ‘a non-exhaustive and non-binding list of factors, based on empirical
validation’ to help the court assess the reliability of the proffered evidence: Consultation Paper on
Expert Evidence (LRC CP 52-2008) para. 2.390.

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