Do you believe that your memory works like writing something down in a book?
Or that memory functions as though your mind recorded things you've seen, heard, or experienced, like using a tape-recorder or video-camera?
Or maybe your brain consists of little empty cells into which we pour data, as on a computer spreadsheet.
Or better yet, a silicon based memory address like a spot on a memory chip, or a coordinate on a formatted hard drive.
Whatever the latest technology, we have a brain-memory model that coincides in time with it, always wrong and dangerous in a court of law.
The reason that the wrong memory model is fatal to innocence in court is that an expert with credentials from the most prestigious medical schools in the land will testify under oath advising the jury that the nonsense they've just heard is gospel truth with a reasonable degree of medical certainty. This means that all of my colleagues believe that your mind is like a tape recorder and if only we can strip away the emotion as was done here, what you have left is the truth.
Cargo-cult medicine was telling the equally benighted legal process how to kill innocent people. After all, we contract out (outsourcing and offshoring are the modern buzzwords), the validation issue in so many areas to outside experts.
We rarely rely on our own expertise, human experience, lessons from the past, etc. We just throw it away as though it never happened.
Law is not an accumulative body of wisdom, unfortunately.
The search for the correct memory model was on.
How does mind and memory really work?
***
Knowing how memory actually works became supremely important legally a few years ago when this nation experienced a phenomenon we weren't aware we'd seen before, although in actuality we probably had, in Salem, Massachusetts, in 1692.
America's recent experience occurred, typically, when certain upset women consulted talk-therapists or engaged in group counseling, where there was a predisposition to blame current emotional problems on sexual misbehavior allegedly perpetrated by trusted members of the family, friends, and teachers.
During the course of therapy, the women who performed the role of cooperating patients were encouraged to remember, under suggestive questioning by the therapist or the group, to remember the times they were sexually molested by these trusted people.
When the disturbed patient finally dredged up the 'memory' of the event, complete with appropriate emotion and graphic detail, she was rewarded with continued treatment by the trusted therapist, the promise of healing, and acceptance in the group.
Of course then the therapist would advise that in order to heal, the woman should not let the perpetrator, this man who had ruined her life, get away with it. The patient should sue him for all he was worth and go to the authorities who would prosecute him and put him in jail.
And this is what happened.
There were literally thousands of such cases.
I call it the Great American Sexual Molestation Accusation Outbreak of the 1980s, to liken it unfavorably to the Salem Witchcraft Accusation Outbreak of 1692.
There were so many accusations, and so many parents, grandparents, nursery school teachers, and day-care center workers claiming they'd been falsely accused that a foundation was established in Philadelphia to deal with, called the False Memory Syndrome Foundation.
I don't know whether they're still around, but they did good work at the time marshaling resources and information.
Proponents of the accusations argued that the memories were real and that the therapy had removed the emotional blockage that had prevented the memories from coming to the fore earlier, accounting for the delay.
The blockage, they argued, came from the trauma of having been sexually molested by a trusted caretaker.
Nonsense, opponents argued. Look at the concentration camp survivors. They would love to be able to block away the terrible things that happened to them. But this is not how the mind, memory worked.
I began to pay attention to studies concerning how the mind worked. When I'd learned enough to form an understanding that made sense to me, I wrote the following article, which I submitted to the San Francisco Recorder, the legal newspaper, which printed it.
The Recorder's sister legal newspaper in Washington, D.C., the Legal Times, asked if they could reprint it. I was pleased to spread the word at ground zero, so to speak, where it might do some good.
In writing articles on a controversial topic, such as child sexual molestation, condemnatory of public authorities and the medical profession for fomenting false accusations and miscarriages of justice, likening their behavior to Salem, I knew I was asking for trouble.
If there was anything wrong with what I was laying out for the world to see, I was sure to see it.
Why was debunking some sexual misconduct accusations controversial?
Because there were so many true accusations of sexual molestation of children and young women. I knew, because I used to prosecute them.
I'd been the lead attorney on the Rape (or Sexual Assault, as we called it) Prosecution Unit of the San Francisco District Attorneys Office in 1973 and 1974 when it was first established to develop expertise to provide better handling of such cases.
It may have seemed to some that I'd somehow switched sides and was now supporting criminal behavior.
That was the last thing I was trying to do.
I was simply trying to sort out good potatoes from bad potatoes, and couldn't see anything wrong with that. Can you?
I never received any communication in response to my several articles, which I am slowly re-publishing here, claiming that what I was saying was in the least bit wrong about what I was doing or saying.
Friends in the profession, however, found it a bit startling to see me holding forth on such a controversial subject. Like why would I want to be associated with that?
If you were a lawyer or thinking person in Salem, 1692, would you think yourself on the side of Satan and his agents, the witches, if you protested that the prosecutions relied on nothing better than 'spectral' evidence, the pre-conceptions, and the prejudices of the community?
That's how I saw myself, the defender of latter day witches, in our own time, which was not something I'd expected to be doing when I was in college, law school, or the district attorneys office.
As a result of the publication of my articles, I consider myself to have been peer-reviewed in the highest court in the land open to attorneys who write: the Court of Public Opinion, and not found wanting. I'm grateful.
To students I say this: As you do your good work, trying to make yourself relevant, by making a contribution to the world, keep notes. Write up what you think, and what you've found out through experience.
It doesn't have to be "original." There's no such thing as original. There's only the same old stuff repackaged in new, interesting, and often dangerous ways. Your job is to spot the fakes and blow the whistle.
At least, that's what I found myself doing. And that was plenty. The fact that it was me saying it, someone who had no claim to attention except that I was reporting true experience and trying to make sense of it, was sufficient.
I was the original, just as you are an original. The fact that it's YOU who is saying it makes it sufficiently original to deserve a hearing, or a read-through. If there's something false about what you say, you'll hear about it soon enough.
The article below is what I learned about memory. It was an eye-opener to me. I hope it will be to you, too. Or perhaps you already knew this. That puts you way ahead of the legal and medical profession as it stood in the early to mid-1990s.
I'll bet a lot of the members of these professions still don't have anything but the most juvenile conceptions of how the mind works.
The area of study that has grown up around such questions, called Cognitive Neouroscience, is new.
One of the best books on the subject is The Mind's Past, by Michael S. Gazzaniga, U.C. Press, 1998. See also Daniel L. Schacter's The Seven Sins of Memory, Houghton Mifflin, 2001.
For investigations into the suggestibility of children see the work of Elizabeth Loftus in Washington State and Stephen Ceci in publications of the American Psychological Association.
Here, with emboldened highlights added, is the article on memory, first published in September or October, 1994. It seems as right now as the day I wrote it.
UNCORROROBORATED SEX ACCUSATIONS: MEMORY OR INVENTION?
"Repressed memories" may be falsehoods made believable through the power of suggestion.
pullquote:
It is difficult to diagnose hysteria, because it means calling someone a liar.
pullquote:
Is the recovered memory epidemic the psychological quackery of the 20th century?
BY ROBERT SHERIDAN
Robert Sheridan is a California attorney who practices criminal defense and civil law, with a special interest in sexual abuse accusations. His office is in [San Francisco].
***
George Franklin, convicted of murder based on his daughter's "recall" from twenty years previously; Gary Ramona, whose daughter told therapists he had raped her years ago when she was a child; thousands of parents claiming their children's accusations were "false memories;" twenty executed and a hundred-fifty more condemned as witches in Salem, 1692, on the testimony of children.
What do these cases have in common?
Paul R. McHugh, director of the department of psychiatry and behavioral sciences at the Johns Hopkins University School of Medicine, in his article "Psychiatric Misadventures" in the Autumn, 1992, American Scholar, explains that the modern diagnosis for the Salem girls is hysteria, that is, behavioral displays imitating physical or mental disorders. It derives from the individual's more or less unconscious effort to appear more significant to others. The behavior is shaped by suggestion and sustained by attention, especially of powerful onlookers.
When Dr. McHugh was in San Francisco to accept an award for his article at the American Psychiatric Association (APA) convention last year [1993], he explained that it is difficult to diagnose hysteria because it means calling someone a liar especially when the individual has support.
Whenever there is a failure to diagnose hysteria, the behavioral display will continue, expand, and spread, usually resulting in trouble for everyone, Dr. McHugh explains. The helpful clinical approach, he says, is to consistently direct attention away from the behavior. It will fade away in a few days and then work on the true problem may begin.
[Ignore it and it will go away, he's saying. That's what they did in Salem when the Outbreak subsided. When some of the girls persisted in accusing, they were shushed and ignored. The Outbreak ended with the hysteria.]
Since the passage in 1974 of mandatory reporting laws where sexual abuse of a child is suspected hundreds of thousands of reports have been filed, often in divorce situations. Children have been removed from innnocent fathers and placed with manipulating mothers. The proof of the accusation was its making, for how could a four-year-old talk about oral copulation, for example, without having experienced it?
This has been the subject of considerable research and the answers include analyses of the influence of an adult, the susceptibility of the child to be influenced and the proneness of the professional listener to believe, reinforce, and suggest. It also involves understanding whether the mind works either like a tape recorder or as a reconstructor of experience or constructor of what is only imagined.
A mother may influence a child to believe by repeated questioning.
Authorities are more inclined to believe than to question influences on the child before arrival. They are rarely able to gauge their own influence, just as therapists often fail to understand they've imparted notions to a patient, as Dr. Griggs did when he told the Salem girls they were bewitched, sparking an outbreak.
"Never underestimate the suggestibility of a hysteric," goes a medical adage.
Paralysis, multiple personality disorder, bewitchment, and child molestation can all be suggested and imitated even when it doesn't exist in real life, as in the case of bewitchment.
The attitude that children never lie about sexual abuse dies hard. One juvenile detective recently said it was true "except in custody cases." Unfortunately, there are many of these.
Urged to show what her father did to her, a child would put together "anatomical dolls" (little doll, big genitals). This was taken as double-barrelled corroboration for a crime having been committed and for whodunit.
False accusations were causing immense harm. The medical-legal system not only wasn't protecting against miscarriages of justice, it was contributing to the problem. As in Salem, children were testifying as to things they "recalled." But were they really recalling?
If one believes the mind works like a tape recorder storing images for later retrieval, or that the brain is a computer that puts data in cells, and all you have to do is eliminate years of interference which block you from calling up the image as it was, then it is easy to believe repressed memory claims.
On the other hand, if the mind isn't a recorder or computer, then we should take another look.
At the 1993 APA symposium on repressed memory vs. false memory syndrome, some psychiatrists and psychologists claimed, as did Freud, that the mind "repressed" bad memories. Others said this was impossible, that Freud was wrong. Psychiatrists were in fundamental disagreement over how the mind worked!
When a patient claims sexual molestation occurring decades ago, it is either true or false, but, without investigation, or a better idea of what not to believe, how does the therapist know what to treat, trauma or delusion? It might make a difference.
The latest theory is that memory is reconstructed based on current conditions or needs. We accept the resulting image as true if we need to, even if it's false. Remember Santa Claus?
Gerald M. Edelman, a researcher in neurobiology and cognitive science and 1972 Nobel laureate in immunology explained in a May 2, 1994 profile by Steven Levy in The New Yorker that the brain is not a computer storing data in certain places. The brain doesn't have a bin for `Hollywood' or for your grandmother. For how could evolution have anticipated what we are going to think up next? The brain must cope with an unlabelled world. It must have some other way to produce the images we call memory than to reach into the "grandmother" cell.
There is no grandmother cell. Memory is not a re-run but a re-creation, not a movie but like the subsequent performance of a Broadway show; you can't produce the show unless you reassemble all of the actors, settings, cues, and the curtain is redrawn. When we fail to remember, we have failed to reassemble the necessary parts. Recollection is reassembly of the necessary parts, but we have difficulty distinguishing it from dreams, fantasies, imagination, hypnotic suggestion, etc.
Cognitive scientists and neurologists are now coming to a consensus that the leading candidate as the mental mechanism fostering false memory, and its close relative, "repressed memory" is "source amnesia," according to a N.Y. Times report of a neuroscience conference at Harvard Medical School in May, 1994, reprinted in the S.F. Chronicle May 31, 1994.
Source amnesia is an inability to recall the origin of the memory of a given event, according to the researchers.
"Once the source of a memory is forgotten, people can confuse an event that was only imagined or suggested with a true one," the article explained. The result is a memory that feels authentic but isn't.
Dr. Morris Meshulam, head of neurology at Beth Israel Hospital at Harvard Medical School, was quoted as saying,
"From the point of view of neuroscience, every memory is a fragile reconstruction of what the nervous system actually witnessed."
Dr. Daniel Schecter, a Harvard psychologist, said,
"Source memory defects -- retrieving the content without knowing its origin -- are a major cause of distorted memory, with people confusing whether they heard about, imagined, or had something happen to them."
In addition, "just because a memory is vivid does not mean it is more accurate."
The Salem testimony was notable for graphic detail that seemed to have "the ring of truth."
The American Medical Association issued a policy statement in June at its annual meeting that "Recovered memories of childhood sexual abuse are often unreliable and should not be assumed to be true."
It goes on to say, "The use of recovered memories is fraught with problems of potential misapplication. Few cases in which adults make accusations of childhood sexual abuse based on recovered memories can be proved or disproved. It is not yet known how to distinguish true memories from imagined events in these cases."
In an Associated Press report published in the Examiner June 16, Richard Ofshe, a social psychologist at UC-Berkeley, said the AMA position was too weak:
"The recovered memory epidemic is the psychological-psychiatric quackery of the 20th century."
Ofshe said that professional associations have trouble telling the truth about such issues because they "have a significant number of members whose careers are at risk because of the mistakes they have made. "
We will always have disturbed individuals making false claims for one reason or another. Bringing cases based on them, however, is the mistake of the professional listener, whose duty is to be alert for error factors. These occur first with the claimant and then with the listener. The claimant's problems may include: influence, pressure, contamination; responding to leading question; confabulation, misperception; fabrication for gain, spite, or revenge; hysteria or suggestion; or false memory/source amnesia.
Error factors contributed by the professional listener include: being the source of the false influence; failing to detect and reinforcing false influences; and inventing worthless corroboration.
No one likes uncorroborated cases. As a result, some "experts" find it [corroboration, which only means 'support' of any sort; caveat made up theories as support, i.e. giving imagined meaning to ordinary facts. Added 11/11/04] in theories where it doesn't exist in reality, as the doctor in Salem, 1692, did, when he pronounced the girls bewitched.
[Corroboration, or support, was imagined from the existence of birthmarks or wens in private areas of women; supposedly marks where the Devil suckled; pure fantasy served as corroboration to convict. We still do it today. Added 11/11/04]
For example, we call statements "disclosures" or take strange behavior as proof of molestation. Corroboration by advocates in children's cases is suspect, especially when it is subjective and theoretical. This was the error of Salem and with repressed memory cases. The justification in each situation, ironically, is the protection of children.
Great crimes can be committed in the name of children.
[Make that "are committed." See law professor Doug Linder's 'Trial of Socrates' here, and here.
Socrates was forced by the Athenians to drink the poison hemlock, having been convicted of impiety and "corrupting the youth," an early form of child abuse, by making young people think and thus challenge the pre-conceptions of their parents and elders, bringing about political upheaval.
Caveat thinking, indeed!
[Added 11/10/04]
***
Nov. 10, 2004
I'm SO glad I wrote that. I hope it helped drive a stake into the specter of false accusations.
The word 'specter,' incidentally, means 'ghost.'
Spectral evidence, the kind relied on at Salem, meant evidence that only the accuser claimed to see, when she said in open court that she saw "the devil in the shape of a woman" right there in court, next to the accused.
This graphic testimony, claiming to see what only she, the child, with all of her adult backers and confederates, was enough to convict. It was called "spectral evidence." Ghost evidence would convey the meaning better today.
This was a central feature of witchcraft trials in Salem, and seemed utterly convincing to judges, jurors, constables, and witnesses.
Supporters of the accusing child, fallen to the floor in an apparent fit, would beg the accused to stop tormenting her. Pressured by the apparent torment, and the crowd, into incriminating behavior, the accused would cooperate by agreeing to stop tormenting the child. When she did, the child recovered right away.
The accused, of course, now stood condemned in the eyes of the community, and the court. The sentence was death for those who maintained innocence and refused to confess or cooperate. The sentence was life for those who did.
What would you have chosen if you had been accused?
After the hangings - there were five, together, on one day, the people of Salem, and surrounding towns, began to feel uneasy. They had hanged five women, law-abiding women as far as anyone knew, on the word of disturbed children claiming to be under the influence of the devil.
Had these children been bewitched by the Devil or beguiled by something else. Satan, after all, was believed to be a pretty tricky fellow. He could fix things so that the REAL witches went free and only innocent people were convicted.
After the wind went out of the Salem sails and the townsfolk were restored to sanity over time, and apologized, both girls and magistrates, publicly, spectral evidence was outlawed in Massachusetts.
We only see it nowadays in the political arena in Washington when they're about to burn a politician at the stake for Party heresy, for being soft on communism, abortion, gay-marriage, or the like.
During the 1980s we saw it in the form of testimony based on alleged "repressed memory."
The quotes above from the doctors describing how memory works and doesn't work represents a latter-day apology, like the the Salem girls and magistrates, those few who did, in fact, apologize, for the miscarriage of justice, the 19 hangings.