Franklin v. Stevenson
Annotate this Casepublication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE
OF UTAH
----oo0oo----
Cherese M. Franklin,
Plaintiff and Appellant,
v.
Kenton Ray Stevenson and
Larae Wall Stevenson Kiniry,
Defendants and Appellees.
No. 970016
F I L E D
June 18, 1999
1999 UT 61
---
Third District, Salt Lake County
The Honorable Kenneth Rigtrup
Attorneys:
David K. Isom, J. Preston Stieff,
Mark O. Van Wagoner, Curtis L. Wenger, Salt Lake City, for plaintiff
Walter F. Bugden, Tara L. Isaacson,
Salt Lake City, for defendant
---
HOWE, Chief Justice:
¶1
Plaintiff Cherese M. Franklin appeals
from a final order granting defendant Kenton Ray Stevenson's motion for
a judgment notwithstanding the verdict.
BACKGROUND
¶2
In 1992, after experiencing inexplicable
panic attacks and hearing hallucinatory voices telling her to kill her
infant daughter, Franklin began treatments with a psychologist, Dr. Laurie
Hoover. Franklin's therapy included relaxation techniques such as deep
breathing and self-reflective techniques such as "communicating" with her
"inner child." It was while she was under Dr. Hoover's care that Franklin
began to "recall" previously "repressed" memories of abuse from her childhood.
It is unnecessary for us to recount here the specific allegations of abuse.
Suffice it to say the "memories" involved particularly heinous, traumatic
acts.
¶3
At first, Franklin feared that her
father had been the abuser. As her therapy progressed, she focused instead
on Stevenson, a cousin approximately seven years her senior. Once she became
convinced that Stevenson had committed the abuse, she filed this action
against him. Stevenson's mother was also named as a party to the suit.
Prior to trial, Stevenson filed a motion in limine questioning the reliability
of (1) the theory of repressed memory, (2) the therapeutic methods used
to recover the memories, and (3) Franklin's own testimony of her recovered
and repressed memories. Additionally, in this motion, Stevenson requested
the exclusion of the experts' testimonies regarding repressed memory in
general and Franklin's memories in particular, based on a lack of inherent
reliability. Furthermore, Stevenson requested that the trial court exclude
any evidence and testimony--either from the expert witnesses or Franklin
herself--derived from the memories that these therapeutic methods "recovered."
The trial court did not rule on this motion until the conclusion of the
plaintiff's evidence, when the trial court denied the motion. Following
the presentation of all the evidence, Stevenson again moved for exclusion
of testimony concerning repressed memory and recovery techniques, as well
as any testimony or evidence derived from Franklin's "recapture of memory."
The trial court also denied this motion. The jury returned a verdict against
Stevenson, but in favor of his mother.(1)
¶4
Stevenson moved for a judgment notwithstanding
the verdict ("j.n.o.v.") pursuant to Utah Rule of Civil Procedure 50, or
in the alternative, a new trial pursuant to Utah Rules of Civil Procedure
50 and 59, or a remittitur. The trial court granted the motion for a j.n.o.v.
The court drew a parallel between hypnotic suggestion and communicating
with one's metaphorical inner child and concluded that these therapeutic
techniques were "hypnosis-like" in nature. In its order, the court ruled
that Franklin "failed to establish, as a matter of law, the inherent reliability
of the methods used to recover a memory." The court excluded this evidence
and all related testimony from the record, then determined that insufficient
evidence remained to support the jury's verdict against Stevenson; therefore,
the court ruled, he was entitled to a j.n.o.v. Franklin now appeals.
ANALYSIS
¶5
Franklin makes three assignments
of error: first, that the trial court erred in striking her testimony following
the jury verdict and thereafter granting a j.n.o.v.; second, that the trial
court erred in equating hypnosis with the techniques Franklin's therapist
used; third, that Stevenson waived all objections to this testimony by
failing to object at the time the testimony was offered. We will address
each issue in turn.
I. JUDGMENT NOTWITHSTANDING THE VERDICT
¶6
Franklin contends that the trial
court erred in granting Stevenson's motion for a j.n.o.v. In addressing
such a motion, a trial court must look at the evidence and all reasonable
inferences in a light most favorable to the nonmoving party, granting the
j.n.o.v. motion only if this examination demonstrates that there
is insufficient evidence to uphold the verdict. See Seale v.
Gowans, 923 P.2d 1361 (Utah 1996); Gold Standard, Inc. v. Getty
Oil Co., 915 P.2d 1060 (Utah 1996);
Hansen v. Stewart, 761 P.2d 14 (Utah 1988); Utah R. Civ. P. 59. On appeal, this court must apply the
same standard. SeeBraithwaite v. West Valley City Corp., 921 P.2d 997 (Utah 1996);
Gold Standard, 915 P.2d at 1066; Hansen,
761 P.2d at 17.
A. Abridging or Amending Record when Considering J.N.O.V. Motion
¶7
Franklin argues that this court
should recognize that "[a] judge cannot grant a directed verdict or judgment
notwithstanding the verdict by ignoring evidence he has admitted on the
ground that the admission was error." 21 Wright & Graham,
Federal
Practice and Procedure: § 5041, at 229-30 (1977). Stevenson counters
that in Roche v. Zee this court stated that the purpose behind Utah
Rule of Civil Procedure 50 is to permit the trial judge to submit the case
to the jury for their determination, then if the verdict goes adverse to
the moving party, he can, when there is more time for deliberation, re-examine
and rule upon whether a jury question exists." 264 P.2d 855, 855-56 (Utah
1953). While we do not disagree with that statement, it does not follow
that after a jury returns a verdict, a trial court may strike evidence
already admitted into the record and thereafter grant a j.n.o.v. based
upon the abridged record. We are not alone in disallowing a trial court
to use an "abridged record" when deciding a j.n.o.v. motion. At least seven
other courts have also expressed their disapproval of such trial court
actions. See, e.g., Jackson v. Pleasant Grove Health Care Ctr.,
980 F.2d 692 (11th Cir. 1993) (holding that trial court in deciding j.n.o.v.
motion must consider record as presented to jury); Douglass v. Eaton
Corp., 956 F.2d 1339 (6th Cir. 1992) (same); Sumitomo Bank v. Product
Promotions, Inc., 717 F.2d 215 (5th Cir. 1983) (same); Midcontinent
Broad. Co. v. North Cent. Airlines, Inc., 471 F.2d 357 (8th Cir. 1973)
(same); Hernon v. Revere Copper & Brass, Inc., 363 F. Supp. 96 (E.D. Mo. 1973) (same); Pratt v. District of Columbia, 407 A.2d 612 (D.C. 1980) (same); Townsend v. United States Rubber Co., 392 P.2d 404 (N.M. 1964) (same). But see Aloe Coal Co. v. Clark Equip.
Co., 816 F.2d 110 (3d Cir. 1987) (criticizing this position in dicta
as unpersuasive). Because we now confront this issue for the first time,
we adopt the rule first proposed by the Townsend court:
A motion for judgment notwithstanding
the verdict, like a motion for a directed verdict, does not raise questions
relating to the competency or admissibility of evidence. Therefore, in
considering a motion for judgment notwithstanding the verdict, the evidence
must be taken as it existed at the close of the trial, and evidence admitted
over objection cannot be excluded nor can evidence be included which was
improperly rejected. Whether competent or incompetent,
all evidence
submitted to the jury must be considered by the court in ruling on a motion
for judgment notwithstanding the verdict, and such a judgment cannot
be entered on a diminished record after the elimination of incompetent
evidence.
Townsend, 392 P.2d at 406 (emphasis
added).
¶8
The Eleventh Circuit explained that
the parties' reliance on the evidence prohibited a trial court from excluding
or disregarding previously-admitted evidence when considering a motion
for j.n.o.v.
If evidence is ruled inadmissible
during the course of the trial, the plaintiff has the opportunity to introduce
new evidence. However, when that evidence is ruled inadmissible in the
context of deciding a motion for JNOV, the plaintiff, having relied on
the evidence already introduced, is unable to remedy the situation.
Jackson, 980 F.2d at 696 (citing
Midcontinent
Broad. Co., 471 F.2d at 358-59).
¶9
In Jackson, on numerous occasions,
the defendant challenged the plaintiff's expert's qualifications. On each
occasion, the lower court ruled that the expert was qualified. The Jackson
court held that "[h]ad the district court ruled during trial that [the
expert's] testimony was inadmissible, [the plaintiff] could have brought
in another expert to testify as to the appropriate standard of care . .
. , thereby precluding [the defendant's] motion for JNOV." Id. Upon
review of the trial proceedings below, it is evident that Franklin relied
heavily upon the admission of this later-excluded evidence, as did the
plaintiff in Jackson. We therefore hold that the trial court erred
in granting the j.n.o.v.
B. The Proper Remedy for Evidentiary Error
¶10
In so holding, however, we must
next consider the proper remedy in such cases. The same cases which condemn
granting a j.n.o.v. on an amended or abridged record also provide guidance
regarding at least one proper remedy. Where evidence has been erroneously
admitted during the course of a trial, instead of granting a j.n.o.v.,
the court may grant a new trial
where a motion for such has been made.
See Jackson, 980 F.2d at 696 n.4; Townsend, 392 P.2d
at 406. In the instant case, such a motion was made at the end of all the
evidence. Stevenson moved for a j.n.o.v., or, alternatively, a new trial,
or, alternatively, a remittitur. The trial court indicated that, as it
granted the j.n.o.v., there was no need to reach Stevenson's motions for
a new trial or remittitur, and therefore did not rule upon either motion.
¶11
Stevenson moved twice during the
trial to exclude portions of the plaintiff's body of evidence: first, in
a motion in limine, and second, in a motion at the conclusion of the presentation
of all the evidence. In these motions, Stevenson objected to the reliability
of both the recovery techniques and Franklin's own testimony concerning
the recovered memories, as well as to the experts' testimonies regarding
both the theory of repressed memory and Franklin's memories in particular.
Also, the motions included objections to the admission of any evidence
or testimony derived from the recovered memories. Although both motions
were denied, the plaintiff was aware that Stevenson was attacking the quality
of her evidence. There is no indication in the record that had the trial
court granted one or both of Stevenson's motions, the plaintiff could have
produced any new admissible expert testimony. This is not a case where,
if the evidence had been ruled inadmissible during the course of the trial,
the plaintiff could have produced new admissible evidence. As we conclude
below, the trial court erred in not finding the plaintiff's experts' testimonies
inadmissible. The plaintiff was not misled by this erroneous admission.
It would be a waste of judicial resources to remand the case to the trial
court for a ruling on Stevenson's motion for a new trial or a remittitur.
Nothing would be gained by such a remand. It is unlikely that, if sent
back, the plaintiff could meet the required foundational showing, which
we discuss below. Franklin's experts stated that they were unaware of any
documented support for these recovery methods. Based on these testimonies,
it is improbable that the trial court would be persuaded of the reliability
of any new evidence which Franklin could offer. Therefore, we conclude
that the proper remedy is to simply reverse the judgment entered on the
jury's verdict.
II. ADMISSION OF SCIENTIFIC EVIDENCE
A. The Role of a Trial Judge
¶12
It is axiomatic that the trial judge
is in a unique position to evaluate witnesses, evidence, and the trial
in its entirety. See, e.g., Valcarce v. Fitzgerald, 961 P.2d 305, 314 (Utah 1998) (stating that trial courts "are in the best position
to assess . . . the witnesses and to gain a sense of the proceedings as
a whole"); State v. Parsons, 781 P.2d 1275, 1282 (Utah 1989) (the
trial judge has "broad latitude to control and manage the proceedings and
preserve the integrity of the trial process"). As to the admission of scientific,
technical, or other specialized evidence, when counsel has made a proper
objection to its admissibility, a trial judge is charged with the responsibility
of being a "gatekeeper to carefully scrutinize [the] proffered evidence."
State v. Ramirez, 817 P.2d 774, 778 (Utah 1991). As gatekeeper,
it falls to the trial court to ensure that such evidence proffered by either
party meets the appropriate admissibility standard.
See id.
B. Admission of Expert Witness
Testimony Regarding
Scientific Evidence
¶13
Rule 702 of the Utah Rules of Evidence,
governing expert testimony, states: "If scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education, may testify thereto in the form
of an opinion or otherwise." However, in order for
new scientific
evidence to be admissible, a threshold reliability test must be met. This
court established that test nearly a decade ago in State v. Rimmasch,
775 P.2d 388 (Utah 1989), where we required a foundation establishing the
reliability of the scientific evidence. We stated that "evidence not shown
to be reliable cannot, as a matter of law, 'assist the trier of fact to
understand the evidence or to determine a fact in issue' and, therefore,
is inadmissible." 775 P.2d at 397-98 (quoting Utah R. Evid. 702). In making
such an analysis, a trial court may either (1) take judicial notice of
the "inherent reliability" of the evidence or (2) determine the inherent
reliability after a hearing on the issue.
Id. at 398.
¶14
The threshold level required for
judicial notice of scientific evidence is quite high, but once that threshold
has been established, the evidence is thereafter admissible, subject to
"a weighing in each case of its probativeness against its potential for
unfair prejudice." Id. at 401 (citing State v. Tanner, 675 P.2d 539, 543-44 (Utah 1983)). In Rimmasch, where this court was
asked to take judicial notice of "child abuse profile evidence,"(2)
we held that we were unable to take judicial notice of the reliability
of the scientific techniques behind such profile testimony, stating: "Not
only is there a lack of any consensus about the ability of the profile
to determine abuse, but the scientific literature raises serious doubts
as to the reliability of profile testimony when used for forensic purposes
to demonstrate that abuse actually occurred." 775 P.2d at 401 (emphasis
added) (citations and footnotes omitted). Where scientific testimony or
evidence is proffered, and judicial notice is inappropriate for reliability
reasons, the proponent of [such] scientific evidence
. . . must make an initial
foundational showing that convinces the trial court that the principles
or techniques underlying the proffered testimony meet [the] standard of
inherent reliability before the trial court can proceed to consider the
normal foundational questions appropriate to any expert testimony. In the
absence of such an initial showing, the evidence is to be excluded.
Rimmasch, 775 P.2d at 398 (citing
Philips v. Jackson, 615 P.2d 1228, 1236 (Utah 1980); Kofford
v. Flora, 744 P.2d 1343, 1347-48 (Utah 1987)). In sum, while a trial
court may "'tak[e] into account general scientific acceptance and widespread
practical application,'" 775 P.2d at 397 (quoting Phillips, 615
P.2d at 1234), absent a showing of the reliability of scientific
principles or techniques, such evidence must be excluded.
To quote a prior decision by this
court:
[Q]uestions may be raised
with respect to therapeutic methodologies used to revive memories because
they may induce memories of events that never happened. The concern
with respect to the reliability of memories revived in therapy is a matter
of some scholarly debate.
Because of the dearth of empirical
scientific evidence regarding the authenticity and reliability of revived
memories, the inherent reliability and admissibility of expert witness
testimony regarding memory repression and revival may be an issue that
will have to be reached at trial.
Olsen v. Hooley, 865 P.2d 1345, 1349-50 (Utah 1993) (emphasis added) (citations and footnotes omitted).
In the words of another court:
[T]he proffered expert must
be able to assure the Court that his/her theories have some degree of scientific
validity and reliability. In particular, the witness should testify as
to whether that theory can be, or has been, tested or corroborated and,
if so, by whom and under what circumstances; whether the theory has been
proven out or not proven out under clinical tests or some other accepted
procedure for bearing it out; and whether the theory has been subjected
to other types of peer review. In establishing this, the expert must show
that any underlying data and studies upon which he/she relies are of a
type reasonably relied upon in his/her field.
Isely v. Capuchin Province, 877 F. Supp. 1055, 1064 (E.D. Mich. 1995). We find these directions to be instructive
in trial court-level inquiries into the reliability of scientific evidence.
¶15
On cross-examination in this case,
Stevenson elicited concessions from both of Franklin's expert witnesses,
Dr. Bessel van der Kolk, and Franklin's therapist, Dr. Laurie Hoover, regarding
the lack of scientific foundation for the therapeutic techniques Dr. Hoover
used with Franklin. Specifically, Dr. van der Kolk testified as follows:
Q. Is there any scientific
literature, any studies that you are aware of that have been done that
show that asking a question with one hand and answering the question with
the non-dominant hand is a mechanism by which you can recover an accurate
memory of the past? Are there studies?
A. It's interesting that you ask
the question, actually, because this great Frenchman who knew more about
trauma than anybody else, Pierre Jenet . . . in 1889 in his book . . .
actually wrote about that very phenomenon.
. . . .
Q. Did his study deal with the issue
of validating the accuracy of the recovered memory, Doctor?
A. No, he didn't.
Q. Thank you. And are you aware of a single study as of 1996 that has validated this as a reliable technique for recovering memory, Doctor?
A. Not to my knowledge.
Q. Thank you. On re-direct, Franklin focused on the scientific acceptability of repressed memory itself and did not address the techniques used to recover the memories or the reliability of such techniques. Similarly, on cross-examination, Stevenson educed the following testimony from Dr. Hoover: Q. Do you believe that there is any scientific evidence to suggest that I could ask myself [a question] and I could answer that question with my nondominant hand and expect that I'm really getting the truth?
A. Is there any scientific evidence? I'm not aware of any studies specifically done on nondominant handwriting to support or disprove that. It is a common clinical technique. Franklin did not follow up on this testimony either, declining a re-direct examination of Dr. Hoover.
¶16
Stevenson raised questions and concerns
regarding the "therapeutic methodologies" and the "revived memories" numerous
times during the trial, pointedly querying the expert witnesses concerning
the reliability of and foundation beneath these therapeutic techniques.
Franklin, however, declined to address the issue with the witnesses. Understandably,
we are therefore left--as was the trial judge--in the wake of an Olsen-like
"dearth of empirical scientific evidence regarding the . . . reliability"
of the therapeutic techniques with serious questions and doubts concerning
the reliability of those self-same techniques. 865 P.2d at 1350. Neither
expert could assure the trial court that the therapeutic methods at issue
had any degree of scientific validity or reliability. Neither witness
could testify regarding any testing or corroboration of the techniques
Dr. Hoover employed, let alone the acceptance or review of those techniques
by their peers. In short, neither witness' testimony evokes confidence
in the reliability of the scientific evidence. Neither the record nor our
research indicate that these techniques enjoy a general acceptance within
the field,(3) and we are not persuaded that
the trial court could have properly taken judicial notice of the reliability.
¶17
Franklin's evidence clearly did
not meet the initial foundational showing of reliability that Rimmasch
requires. While no formal evidentiary hearing was held, the trial court
accorded Franklin every opportunity during the trial to lay this foundation
and address this issue. In the end, the trial court should have found the
evidence inadmissible, inasmuch as Stevenson, as hereinafter discussed,
made a proper objection to its admission. Instead, by admitting the evidence,
the trial court failed in its gatekeeping role. The trial court recognized
this when it granted the j.n.o.v.
¶18
Not only has this court held that
unreliable techniques are inadmissible as evidence, but also that any expert
testimony based upon unreliable techniques is also unreliable and inadmissible.
For example, Rimmasch, held that the trial court improperly admitted
expert testimony based upon unreliable scientific evidence, stating:
Although the court made
a finding that . . . [the] expert witnesses were experts, it made no
determination that the scientific principles and techniques upon which
their testimony was to be grounded were reliable. This is understandable
because there was no evidence before the court from which any such determination
could be made.
. . . .
For the foregoing reasons, we
find that the trial court violated Utah Rule of Evidence 702 when it admitted
the expert testimony founded upon the psychological profile.
775 P.2d at 404 (emphasis added). As in Rimmasch, the recovery techniques at issue in this case were unreliable. As a consequence, the portions of Franklin's experts' testimonies based on those techniques were also unreliable and inadmissible.
C. Admission of Lay Witness Testimony
Based on
Scientific Intervention
¶19
We have also held that, under certain
circumstances, inadmissible evidence taints a lay witness' testimony which
was based on that evidence. In State v. Tuttle, 780 P.2d 1203 (Utah
1989), we addressed the admissibility of a lay witness' testimony after
the witness had been hypnotized to obtain more complete descriptions of
the accused and other additional details of the scene of the crime. We
stated: "The policy of these threshold reliability tests applies to hypnotically
enhanced testimony just as much as it applies to the testimony of experts
because even if the one actually testifying is a lay witness, the hypnotically
enhanced testimony given by the witness is the product of scientific intervention."
Id. at 1211. Similarly, Franklin's testimony about her recovered
memories are the product of scientific intervention.(4)
Accordingly, this testimony is tainted by the unreliability of the recovery
methods used, and is therefore inadmissible.
¶20
At this time, however, we find it
appropriate to repeat our caveat from Rimmasch. We do not pretend
to suggest that our analysis has encompassed all the literature in the
field, and we do not mean to imply that these techniques are conclusively
unreliable as a matter of law. Instead, we simply determine that the
necessary threshold reliability of these techniques was not established
in the instant case. See 775 P.2d at 403. Trial judges, therefore,
must continue to explore this issue in individual cases and determine the
reliability--or lack of reliability--of such techniques when counsel has
made a proper objection to such evidence.
III. EQUATING HYPNOSIS WITH TECHNIQUES AT ISSUE
¶21
Franklin next contends that the
trial court erred when it equated hypnosis with the various therapeutic
techniques Dr. Hoover used on Franklin. While hypnotically-refreshed memory
and hypnotically-enhanced testimony is "inherently unreliable and inadmissible
as evidence" in Utah courts, Mitchell, 779 P.2d at 1119, we agree
with Franklin's position. There is insufficient evidence before us to conclude
that the two forms of therapies are sufficiently similar to warrant a wholesale
condemnation of the therapeutic techniques at issue in this case. However,
as stated above under the Tuttle analysis, because the scientific
reliability of the foundations on which these so-called "relaxation techniques"
are based was not established, the testimony based on memories recovered
through use of those techniques is thereby tainted.
IV. ALLEGED WAIVER OF OBJECTION TO ADMISSION OF EVIDENCE
¶22
Finally, Franklin asserts that Stevenson
waived all objections to Franklin's testimony by failing to timely object
to it and that Stevenson "made a strategic choice not to object to [Franklin's]
testimony on any ground. That decision constituted a waiver of any possible
evidentiary defect. . . . [Stevenson] has failed to preserve whatever potential
evidentiary objection he may have had either for a post-trial motion or
for this appeal." Franklin relies on several cases in support of this assertion.
See State v. Tillman, 750 P.2d 546, 551 (Utah 1987) (citing
general rule of appellate review requiring "contemporaneous objection"
or "specific preservation" for review on appeal); State v. Lesley,
672 P.2d 79 (Utah 1983) (upholding necessity to object to evidence to preserve
issue for appeal even where pretrial motion to suppress evidence had been
made and denied); Broberg v. Hess, 782 P.2d 198 (Utah Ct. App. 1989)
(refusing to address alleged error "[b]ecause there was no timely objection").
We agree with the necessity for both specific preservation and timely objections
before this court will address issues on appeal. However, we are not persuaded
by Franklin's argument.
¶23
The Lesley court held that
the failure to make either a contemporaneous objection or some specific
preservation of a claim of error precluded the appellate review of the
admissibility of evidence, where a pretrial motion to suppress had been
made and denied. 672 P.2d at 82. That case is inapposite to the present
case; here, the pretrial motion in liming was not denied until after the
presentation of the plaintiff's evidence. Broberg is not controlling,
as it merely requires some objection to the alleged error be made
at some point to the trial court. 782 P.2d at 201. Here, Stevenson made
an objection. He moved in liming to exclude any evidence and testimony
derived from memories Franklin recovered with Dr. Hoover's therapeutic
methods. The trial court did not rule on the motion until the end of the
plaintiff's case, and the motion acted as a continuing objection to the
admission of the evidence at issue. We therefore conclude that Stevenson
did not waive his objection to Franklin's testimony.
CONCLUSION
¶24
Based on the foregoing analysis
we hold that the trial court improperly abridged the record by excluding
previously admitted evidence before considering Stevenson's motion for
j.n.o.v. We also hold that the trial court improperly allowed this inadmissible
evidence into the record in the first place. Accordingly, we reverse both
the trial court's order for j.n.o.v. and the judgment against Stevenson.
---
¶25
Associate Chief Justice Durham,
Justice Stewart, Justice Zimmerman, and Justice Russon concur in Chief
Justice Howe's opinion.
1. Franklin does not appeal from the judgment entered on the jury's verdict in favor of Stevenson's mother.
2. Profile evidence consists of "various behavioral and psychological traits [often] characterized as being typical of sexually abused children." 775 P.2d at 394. Such traits are usually very general descriptive terms; namely, "guilt," "anxiety," "nightmares." Id. at 401.
3. In fact, our research suggests that the idea of memory repression itself, let alone the methods of recovery, is a point of disagreement within the medical, psychiatric, and psychological communities. See, e.g., Douglas R. Richmond, Bad Science: Repressed and Recovered Memories of Childhood Sexual Abuse, 44 U. Kan. L. Rev. 517, 564-65 (1996) (discussing views of the American Medical Association, the American Psychological Association, and the American Psychiatric Association); Julie M. Kosmond Murray, Repression, Memory, and Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory Testimony in Sexual Abuse Trials, 66 U. Colo. L. Rev. 477, 498-504 (1995) (same).
4. Scientific intervention may actually have had a greater degree of influence on Franklin's testimony. The hypnotized witness in Tuttle at least had a basic memory of the information intact prior to hypnosis. Here, Franklin's entire memory of the events owes its existence to the intervention and use of Dr. Hoover's therapeutic methodology.
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