Noticeboard
| DOI | 10.1350/ijep.2007.11.2.139 |
| Date | 01 May 2007 |
| Published date | 01 May 2007 |
| Subject Matter | Noticeboard |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2007) 11 E&P 139–152 139
NOTICEBOARD
NOTICEBOARD
NOTICEBOARD
Expert evidence from psychologists—United States
Whether memories can be ‘repressed’ and later ‘recovered’ has been much
disputed. This controversy has drawn attention away from our growing under-
standing of how easily the memory of a witness may be manufactured,
manipulated or contaminated without the witness being aware that this has
happened. Dr Elizabeth Loftus, a Distinguished Professor of Psychology at the
University of California, Irvine, is a leading authority on false memory. In DeLong v
State 2006 Tex App LEXIS 10031, WL 3334061 she was called as a witness for a
defendant accused of sexually abusing three children, HW, JW and SK. During a
hearing to determine whether her evidence was admissible, she testified that she
could not say whether the memory of any of the children was false, but that the
circumstances in which they had made their complaints indicated suggestion of
the sort that could lead to a false memory. In her opinion it was ‘certainly possible’
that the circumstances surrounding HW’s complaint were consistent with the
formation of false memories. In the case of JW they were ‘absolutely consistent’
and in SK’s case suggestibility was a major worry. Her evidence was excluded on
the grounds of irrelevance.
In the Texas Court of Appeals Gardner J said that there were two issues: (1) was
Dr Loftus’s false memory evidence relevant and (2) was it reliable? Like all
evidence, expert testimony must be relevant (Tex R Evid 402, 702). In Schutz v
State 957 SW2d 52 at 75–6 (Tex Crim App, 1997) the court of criminal appeals
held that expert testimony on the characteristics of children who have been
manipulated was admissible because it was specialised information not
known to the average juror but that a direct comment on the truth of the
complainant’s allegations was not; jurors are as capable as experts of drawing
appropriate conclusions once they have been instructed about the signs of
coaching, coercion, and suggestion. In Schutz the court identified five categories
of evidence that touch on the credibility of the child who complains of sexual
abuse:
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