What Makes Recovered-Memory Testimony Compelling to Jurors?

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Law and Human Behavior [lahu] PP189-341419 June 11, 2001 19:46 Style file version Nov. 19th, 1999

Law and Human Behavior, Vol. 25, No. 4, 2001

What Makes Recovered-Memory TestimonyCompelling to Jurors?1

Barbara L. Coleman,2 Michael J. Stevens,3,4 and Glenn D. Reeder3

Little is known about how jurors arrive at verdicts in cases involving recovered mem-ories of childhood sexual abuse. Study 1 investigated mock jurors’ reactions to therecovered-memory testimony of an alleged victim when a therapist intervened withhypnosis, suggestion, or symptom management. When a therapist used hypnosis, jurorsviewed the victim’s recovered-memory testimony as particularly accurate and credible,and favored the victim in their verdicts. In Study 2, mock jurors were presented with atherapist who was sued for allegedly influencing a client’s recall of false memories ofabuse. In this case, however, jurors viewed therapists who used hypnosis or suggestionas more likely to have created false memories, more responsible for having causedharm, and less competent, and tended not to favor these therapists in their verdicts.We discuss these seemingly contradictory findings in terms of how culturally formedexpectancies about hypnosis produce different causal explanations depending on thefocus of a trial.

Considerable research has been published on whether recovered memories of priorlife events actually occur and the extent to which these memories accurately reflectthe events that took place (Brewin & Andrews, 1998; Brown, Scheflin, & Whitfield,1999; Kihlstrom, 1994). Other studies have examined the extent to which recoveredmemories are influenced by suggestion and suggestibility relative to actual events(Brewin & Andrews, 1998; Green, Lynn, & Malinoski, 1998; Loftus & Ketcham,1996; Spanos, Burgess, Burgess, Samuels, & Blois, 1999). Although accurate mem-ories of past events can be recovered, not all recovered memories are accurate;

1This research was based on a master’s thesis by the first author under the supervision of the remain-ing authors. The findings were presented at the meeting of the American Psychological Association,Washington, DC, August 2000.

2School of Law, Tulane University, New Orleans, Louisiana.3Department of Psychology, Illinois State University, Normal, Illinois 61790-4620.4To whom correspondence should be addressed at Department of Psychology, Campus Box 4620, IllinoisState University, Normal, IL 61790-4620; e-mail: [email protected]

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0147-7307/01/0800-0317$19.50/1 C© 2001 American Psychology-Law Society/Division 41 of the American Psychology Association

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318 Coleman, Stevens, and Reeder

moreover, it is possible to create convincing memories of past events that neveractually occurred.

These investigations have powerful implications not only for the validity of re-covered memories, but for professional practice as well. In response to the growingnumber of legal cases involving childhood sexual abuse based on recovered memo-ries, the courts have had to evaluate rules governing the admissibility of recovered-memory testimony (Taub, 1996). Previously, statutory laws typically required thatcharges of abuse could be brought only within 1–3 years after the alleged victimreached majority age (i.e., typically 18 years old). Recently, however, the courts haveextended the time frame for discovery because of cases in which plaintiffs claimedno knowledge of the alleged abuse until after the traditional discovery period hadexpired (Brown et al., 1999; Woodall, 1999). With various cautionary stipulations(e.g., corroboration of abuse, repression, or both), delayed-discovery rules have beenenacted in which claims of recovered memories of childhood sexual abuse can befiled years after attaining majority age or after the memories themselves are re-covered (Brown et al., 1999; Woodall, 1999). Delayed-discovery rules have yieldedan increase in allegations of childhood sexual abuse brought to trial on grounds ofrecovered memories.

In addition to delayed discovery, cases that involve recovered-memory testi-mony must meet criteria for the admissibility of scientific evidence. Beginning in1923, the courts have appealed to Frye v. United States to establish the admissibility ofsuch evidence. Accordingly, scientific evidence must be accepted by its respective dis-cipline (Shuman & Sales, 1999). As for recovered-memory testimony, the “Frye” testmandates that the phenomenon of recovered memories must be generally acceptedwithin psychology before derivative testimony is allowed. Subsequently, in Daubertv. Merrell Dow Pharmaceuticals, Inc. (1993), the Supreme Court held that the FederalRules of Evidence, enacted in 1974, superseded the “Frye” test and required the pre-siding judge to establish whether scientific evidence that is introduced is relevant andreliable (Taub, 1996). Recently, in Kumho Tire Co., Ltd. v. Carmichael 5 (1999), theSupreme Court granted judges additional discretion in determining the admissibilityof specialized (e.g., clinical) testimony that may not be easily subjected to scien-tific evaluation. As a result of these rulings, the courts may admit even more cases

5A tire on Carmichael’s vehicle blew out while the plaintiff was driving with several passengers. Onepassenger died and others were injured in the ensuing accident. Carmichael sued Kumho Tire Co. thatmanufactured the tire that caused the accident. A tire expert explained in a deposition that a tire defectwas the likely cause for the blowout. At trial, the expert would have testified about the methodologyused to determine that the tire showed no signs of overinflation. However, the judge, applying Daubert,excluded the expert’s testimony as it failed to meet an adequate standard of reliability. A circuit courtsubsequently held that Daubert did not apply because the expert testimony did not rely on the utilizationof scientific principles. On appeal, the U.S. Supreme Court ruled that the judge correctly applied Daubertbecause a trial judge must evaluate whether expert testimony that “reflects scientific, technical or otherspecialized knowledge” has a “reliable basis in the knowledge and experience of [the relevant] discipline”(Kumho Tire Co., Ltd. v. Carmichael, 1999, p. 1174). Thus, the majority opinion extended Daubert toinclude specialized testimony that is not purely scientific and granted judges greater discretion in deter-mining the reliability of expert testimony. The implication of Kumho for psychology is that judges havemore latitude in deciding whether clinical evidence is reliable and what factors to consider in makingthat determination (Shuman & Sales, 1999). At present, it remains unclear how Kumho will impact theadmissibility of recovered-memory testimony in cases alleging childhood sexual abuse.

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Recovered-Memory Testimony 319

involving recovered-memory testimony of alleged childhood sexual abuse (Shuman& Sales, 1999; Taub, 1996).

Suits have been filed not just by individuals who have recovered memories ofchildhood sexual abuse, but also by clients who have recanted recovered-memorytestimony and by alleged perpetrators accused on the basis of such testimony. In thelatter cases, therapists have been charged with malpractice for using recovery meth-ods that may have suggested or produced false memories (e.g., Ramona v. Ramona,1994). Because the validity of recovered memories is not always clear, a trend hasemerged of holding therapists liable for harm caused to clients and third parties,especially when therapeutic techniques are applied that may recover convincing, yetinaccurate or false memories of abuse (e.g., hypnosis; Brown et al., 1999; Loftus &Ketcham, 1996; Woodall, 1999). Not only may clients accept false memories as ex-planations for their current functioning, but jurors may accept them as well, in whichcase those wrongly accused of abuse based on recovered-memory testimony faceunjust and tragic consequences. Guidelines have been developed for therapists whowork with suspected childhood sexual abuse to minimize the suggestion or validationof memories of such abuse in order to avoid malpractice allegations and preserveevidence (e.g., proceeding cautiously with information about recovered memories,interpersonal support, and symptom management; Courtois, 1999; Pope & Brown,1996).

Recovered memories remain controversial among researchers and practition-ers because of conflicting evidence of how accurately these memories depict pastevents, and recovered-memory testimony continues to stimulate legal debate (e.g.,delayed discovery, admissibility of evidence). Because jurors are increasingly beingsummoned to evaluate recovered-memory testimony that can be neither corrobo-rated nor discounted in order to render verdicts, researchers have begun to investi-gate beliefs held by the general populace about repression, repressed memories, andrecovered-memory testimony. There appears to be widespread belief in the mech-anism of repression and the accuracy of recovered memories, although recovered-memory testimony is considered by men to be less credible than testimony in whichpast events were never forgotten (Golding, Sanchez, & Sego, 1996). Because womentend to believe recovered-memory testimony, they are more likely to convict analleged perpetrator as well as award larger damages (Golding, Sego, Sanchez, &Hasemann, 1995; Griffith, Libkuman, Kazen, & Shafir, 1999; Key, Warren, & Ross,1996). These findings suggest that many potential jurors hold views that could in-fluence verdicts in cases involving allegations of childhood sexual abuse based onrecovered memories.

Research on factors that impact jurors’ opinions about recovered-memory testi-mony is needed. For instance, therapists have been accused of applying interventionsthat may validate or create false memories, including therapist suggestion, self-helpbooks, and hypnosis, which is considered particularly problematic (Courtois, 1999;Loftus & Ketcham, 1996; Pope & Brown, 1996). Validation of recovered memo-ries can be as subtle as a nod of a therapist’s head (Courtois, 1999). In a survey ofclients who retracted allegations of childhood sexual abuse based on recovered mem-ories, 80% reported using self-help books as a recovery method (Lief & Fetkewicz,

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1995). As for hypnosis, a substantial body of research has demonstrated that al-though hypnotically recovered memories can seem vivid and believable, they canalso be distorted or false (Brewin & Andrews, 1999; Brown et al., 1999; Green et al.,1998; Kihlstrom, 1994; Spanos et al., 1999; Woodall, 1999). In spite of research to thecontrary, a significant minority of therapists incorrectly believe that false memoriescannot be created iatrogenically by the suggestive ingredients of hypnosis (Loftus &Ketcham, 1996; Pope & Brown, 1996). It is not surprising, then, that there have beencalls to limit recovered-memory testimony from hypnotized witnesses because it isso persuasive yet unreliable (Burgess & Kirsch, 1999; Karlin & Orne, 1997; Loftus& Ketcham, 1996).

Although the scientific community has signaled its opposition to hypnoticallyrecovered memories of childhood sexual abuse (Council on Scientific Affairs of theAmerican Medical Association, 1986; Kihlstrom, 1994), the general public may bemore ambivalent. People invest hypnosis with enormous power, viewing it as ther-apeutically effective yet unconventional and potentially hazardous. This seeminglyinconsistent outlook toward hypnosis very likely reflects a shared set of response ex-pectancies acquired from the media through promotional advertising and theatricaldepictions of the technique (e.g., dramatic portrayals of age regression through whichone supposedly can re-experience past events; Council, 1999). Given such conflictingexpectancies, it is unclear how prospective jurors will respond to trial evidence con-cerning hypnotically recovered memories of childhood sexual abuse. As describedlater, three theoretical issues guided our research.

The first issue concerned whether the focus of a trial is on the potential benefitsof hypnosis or on its potential drawbacks. Precisely because hypnosis is widely seenas both an especially powerful and risky technique (Burgess & Kirsch, 1999; Council,1999), we proposed that jurors would regard the products of hypnosis and the ther-apist who applies hypnosis either positively or negatively depending on their goalsand responsibilities in a trial (Behnke, 1999). Study 1 of this paper focused jurors’attention on the potential benefits of hypnosis in facilitating the accurate recall ofrepressed memories. Jurors were asked to ascertain whether a victim was sexuallyabused as a child. They received instructions to evaluate the accuracy and credibil-ity of recovered-memory testimony before rendering a verdict. These instructionsfocused jurors on the question of whether hypnosis, as an effective yet unconven-tional technique, can reveal the truth in this unusual circumstance, one that involvesrepressed memories. We assumed that jurors would search for a coherent, domain-specific causal account of the evidence (Pennington & Hastie, 1992). That is, theywould seek a way to make sense of evidence indicating the possible recall of re-pressed memories. Because the recovery of repressed memories may be regarded assomewhat unusual, jurors should seek a potentially powerful, but unusual cause forsuch an event. Indeed, research on causal attribution and counterfactual reasoningindicates that people tend to explain unusual events by citing unusual causes (Hilton& Slugoski, 1986; Roese, 1997). Jurors in suits alleging childhood sexual abuse mayregard hypnosis as just such a cause. Jurors may find it plausible that hypnosis canunearth memories of abuse that really occurred. In other words, hypnosis offers acompelling way of understanding how repressed memories of actual events can bediscovered. Consequently, we anticipated that these jurors would form favorable

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impressions of recovered-memory testimony based on hypnosis and render verdictsfavorable to the victim who underwent hypnosis.

Study 2 of this paper focused jurors’ attention on the potential draw backs ofhypnosis in creating false memories. Jurors were presented with evidence allegingmalpractice on the part of a therapist who employed hypnosis to recover memo-ries of childhood sexual abuse. Jurors were asked to ascertain whether a therapistfailed to provide a reasonable standard of care that resulted in harm. Thus, they werecharged with evaluating the professionalism of a therapist’s conduct rather than theveracity of recovered-memory testimony. Based on evidence that conflicting culturalexpectations of hypnosis as both powerful and dangerous coexist (Council, 1999), weproposed that different expectancies about hypnosis become dominant when jurorsundertake the distinctive goals and tasks involved in suits alleging therapist mal-practice as opposed to sexual abuse (Behnke, 1999). In focusing on the harm thatmay have occurred via improper treatment, jurors again should look for an extraor-dinary cause for an exceptional event (Hilton & Slugoski, 1986; Roese, 1997), onethat involves professional negligence. Jurors in cases involving therapist malpracticemay suspect that hypnosis, a potentially dangerous and unconventional technique,can produce false memories of childhood sexual abuse that injure clients and thirdparties. Thus, because hypnosis offers a persuasive account of how methods for recov-ering repressed memories can have deleterious consequences (Pennington & Hastie,1992), we anticipated that jurors in cases involving malpractice would form unfavor-able impressions of recovered-memory testimony when obtained through hypnosisand render unfavorable verdicts to a therapist who uses hypnosis.

A second issue guiding our research concerned the professional qualificationsof the therapist. Because a therapist’s perceived expertise is associated with positivetreatment outcomes (Lambert & Bergin, 1994), we proposed that jurors would re-gard the clinical effectiveness of better educated and trained therapists more highly.Hence, in suits alleging childhood sexual abuse and therapist malpractice, jurors willform more favorable impressions of an alleged victim’s recovered-memory testimonyand render more favorable verdicts to a victim and therapist, respectively, when thetherapist is better qualified.

The final issue in our research concerned the identity of the plaintiff in a mal-practice case involving a therapist who uncovered memories of childhood sexualabuse. No published research has compared jurors’ responses in suits alleging ther-apist malpractice in which the plaintiff is a former client, who originally allegedchildhood sexual abuse, as opposed to an alleged perpetrator of abuse (Behnke,1999). Although any plaintiff in a suit alleging malpractice might be viewed sym-pathetically, we anticipated that jurors’ reactions to recovered-memory testimonyand their verdicts might differ because of the retraction of such testimony and themotives inferred for each plaintiff’s suit. We proposed that jurors would be relativelymore sensitive to the injustice suffered by an alleged perpetrator wrongly accusedon the basis of recovered-memory testimony. Unlike a client who retracts earlierstatements about abuse, an alleged perpetrator may appear to have played no rolein producing the disputed memory and seem motivated solely by the desire to re-dress any reputational damage that may have occurred. Therefore, in cases involvingmalpractice, we expected that jurors would form more unfavorable impressions of

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recovered-memory testimony and render more favorable verdicts when the plaintiffis an alleged perpetrator.

STUDY 1: SUIT ALLEGING SEXUAL ABUSE

We compared how jurors would respond to recovered-memory testimony whenhypnosis, therapist suggestion, and symptom management were used and when thesetechniques were administered by a master’s-level or doctoral therapist.

We hypothesized that

1. Jurors would perceive the recovered-memory testimony produced by hypno-sis as more accurate and credible, view the therapist who employed it as morecompetent, and render more favorable verdicts for plaintiffs when hypnosiswas applied.

2. Jurors would perceive the recovered-memory testimony produced by a ther-apist with a doctorate as more accurate and credible, view such therapists asmore competent, and render more favorable verdicts for plaintiffs.

Method

Participants

Sixty undergraduates (20 men, 40 women) between 18 and 24 years old vol-unteered. Forty-nine were White, 10 African American, and 1 Asian American; allwere U.S. citizens. Approximately two-thirds reported household income of $25,000 –$75,000. None had served as jurors, 15 (25.00%) had undergone psychotherapy, and13 (21.67%) were aware of litigation involving recovered memories through themedia.

Design

Participants responded to three trial scenarios involving recovered-memory tes-timony. Each scenario represented a cell in a 3 (Recovery Method) × 2 (Therapist’sDegree) design containing one within-subjects factor (method: hypnosis, therapistsuggestion, or symptom management) and one between-subjects factor (degree: mas-ter’s or doctorate). Dependent variables included the accuracy of recovered memo-ries, the credibility of the plaintiff’s (i.e., the alleged victim) testimony, the therapist’scompetence, and the favorability of verdicts for the plaintiff or defendant (i.e., allegedperpetrator).

Materials and Procedure

Participants were tested in small groups after giving consent. They first providedbackground data and ratings on their pre-existing beliefs about recovered memories.Participants then read a paragraph that contained a summary of the generic elementsof civil law that did not comport to a certain jurisdiction, a distillation of the burden ofproof required in civil cases, and a description of the judgements ordinarily made byjurors in civil suits (Golding et al., 1995); jury instructions specific to the fictional court

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cases described later were not provided. Next, participants received three fictionalcourt cases in which a male defendant was charged with childhood sexual abuse basedon recovered-memory testimony offered by a 27-year-old female plaintiff. Becausemost reported instances of childhood sexual abuse involve an alleged victim who isfemale and an alleged perpetrator who is male, this modal case was used to promote asense of realism among participants (Golding et al., 1995). All scenarios began withthe same general information about the case, followed by details of the plaintiff’scharge in which she claimed to have been sexually abused 20 years earlier by thedefendant, a neighbor. She claimed to have forgotten (i.e., repressed) the abuseduring this 20-year period, but had recently recovered memories of it and was nowsuing for $1 million in damages. The plaintiff described her memories as having beendeeply repressed. Unlike normal suppression, in which individuals are motivatedto forget, yet remain capable of voluntarily remembering, the plaintiff testified thatshe had no awareness since childhood of having been sexually abused and that hermemories returned unexpectedly and involuntarily. The defendant’s case followedin which he professed innocence in response to the accusation of abuse. Scenariosdid not include cross-examination, redirect, expert testimony, or rebuttal testimonyand witnesses.

Scenarios were identical except for variations in the method used to recovermemories (i.e., hypnosis, therapist suggestion, or symptom management) and thegender-disguised therapist’s degree status (i.e., master’s or doctoral). Hypnosis wasapplied by the therapist with the stated intent of exploring possibly repressed child-hood incidents that bore on the symptoms presented. Therapist suggestion con-sisted of an opinion that manifest symptoms were characteristic of childhood sex-ual abuse and encouragement to read a self-help book for survivors of such abuseand join a therapy group for survivors. In symptom management, the therapistfocused on the remediation of presenting concerns, but welcomed discussion ofmemories of childhood sexual abuse that were recovered independently of treat-ment, cautioning that such memories are not always accurate. Master’s therapistswere described as having completed 2 years of formal training that included asupervised practicum; doctoral therapists completed 4 years of training includinga year-long supervised internship. The basic features common to each scenariowere adopted from Golding et al. (1995), to which we added material pertain-ing to the recovery method and therapist’s degree status. To minimize demandcharacteristics, several master’s-level and doctoral clinicians were invited to in-spect the details and contextual information contained in the scenarios (see Keyet al., 1996). Specifically, they were asked to offer their impressions of the au-thenticity, distinctiveness, and impartiality with which each recovery method andlevel of therapist training was depicted. We used this feedback to render the sce-narios as qualitatively similar as possible. Scenarios are available from the secondauthor.

Participants were randomly assigned to one level of therapist’s degree status.The presentation order of recovery methods was randomized across participants inorder to reduce the possibility of carryover effects; that is, we wanted to minimizethe potential influence of participants’ responses to the initial recovery method ontheir responses to recovery methods presented later.

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After reading each scenario, participants rated in unvarying order the accuracyof recovered memories, the credibility of the plaintiff’s testimony, the therapist’scompetence, and the degree to which they favored the plaintiff or defendant. Theywere then debriefed and given course credit. Fourteen participants were excluded formisidentifying the recovery method, the therapists’ degree status, or for providingincomplete data, leaving 46 usable sets of data (14 men, 32 women). The 10 partici-pants who misidentified recovery method, the therapist’s degree status, or both werenot differentially distributed across these conditions or across gender.

Measures

Participants’ pre-existing beliefs about recovered-memory phenomena weremeasured with three, 7-point items ranging from 1 (not at all) to 7 (entirely) adaptedfrom Golding et al. (1996). The items required participants to rate the degree towhich they believed that memories of painful events can be forgotten (i.e., repressed),memories of painful events can be recovered after being forgotten for 20 years, andrecovered memories are accurate. Pre-existing beliefs about recovered memorieswere assessed to ensure the comparability of our sample with the college studentpopulation (Golding et al., 1996) and to determine if there was sufficient belief in thephenomena to justify proceeding with the research. The psychometric properties ofthe measure of pre-existing beliefs about recovered-memory phenomena have notbeen evaluated. Data regarding pre-existing beliefs were pooled with similar datacollected in Study 2 and then analyzed; the results are presented after we discuss thefindings of Study 2.

The main dependent variables consisted of the accuracy of recovered memories,the credibility of the plaintiff’s testimony, the therapist’s competence, and the favor-ability of verdicts for the plaintiff or defendant and were measured with four, 7-pointitems ranging from 1 (not at all accurate, not at all credible, not at all competent,or completely in favor of the plaintiff, respectively) to 7 (entirely accurate, entirelycredible, entirely competent, or completely in favor of the defendant, respectively).

Two multiple-choice items served to establish whether participants correctlydetected the manipulation of recovery method and the therapist’s degree status.

Results

3 (Recovery Method) × 2 (Therapist’s Degree) × 2 (Participant’s Gender)ANOVAs did not yield significant differences on demographic and background data.Descriptive data for the dependent measures appear in Table 1. Four 3 (Recov-ery Method) × 2 (Therapist’s Degree) × 2 (Participant’s Gender) × 3 (Order ofRecovery Method) mixed-model ANOVAs yielded main effects for method on theaccuracy of recovered memories, F(2, 68) = 8.92, p = .005; credibility of the plain-tiff’s testimony, F(2, 68) = 8.22, p < .01; and favorability of verdicts, F(2, 68) = 4.22,p < .05. Consistent with our hypotheses, planned contrasts of hypnosis to the otherrecovery methods indicated that participants rated memories that were recoveredthrough hypnosis as more accurate. Likewise, participants rated the plaintiff’s testi-mony as more credible when memories were recovered with hypnosis. In a descriptivesense, participants provided the most favorable verdict ratings when hypnosis was

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Table 1. Descriptive Data for Dependent Measures for the Study Alleging Sexual Abuse (N = 46)

Recovery method

Therapist SymptomHypnosis suggestion management Significant

Dependent measure (H) (TS) (SM) differences

Accuracy ratingsa

M 5.02 3.87 4.30 H > TS, H > SMSD 1.24 1.48 1.55

Credibility ratingsa

M 4.67 3.70 4.17 H > TS, H > SMSD 1.33 1.40 1.50

Competence ratingsa

M 5.15 4.41 5.00 nsSD 1.23 1.51 1.41

Verdict ratingsb

M 3.80 4.61 4.04 H > TSSD 1.54 1.57 1.44

Verdicts forVictim (plaintiff)

Frequency 21 9 12 H > TS, H > SM% 45.65 19.57 26.09

Perpetrator (defendant)Frequency 25 37 34 ns% 54.35 80.43 73.91

aHigher numbers represent greater accuracy, credibility, and competence.bLower numbers indicate ratings favoring the plaintiff whereas higher numbers indicate ratings favoring

the defendant.

administered. However, planned contrasts revealed that although verdict ratingsin the hypnosis condition were significantly different from those in the therapist-suggestion condition, they were not significantly different from verdict ratings in thesymptom-management condition. Ratings of therapist competence followed a sim-ilar pattern as verdict ratings, but no significant differences were obtained on thismeasure.

To ensure that these findings were not confounded by any carryover effects of thewithin-subjects design that remained following the random sequencing of recoverymethods, we compared the means for the four dependent measures for the firstscenario that each participant received to the pooled means for the four dependentmeasures for each recovery method. The patterns of means were identical (availablefrom the second author). This outcome also reduces the possibility that the within-subjects design influenced participants to make fine distinctions that would have beenunlikely to emerge had a between-subjects design been used.

To compare the number of actual verdicts rendered in each recovery method,verdict ratings of 1 through 3 were collapsed to represent judgements for the plaintiffwhereas ratings of 4 through 7 formed judgements for the defendant (participantswere told that an undecided rating of 4 would find for the defendant). Verdictsfor the plaintiff were coded as 0 and verdicts for the defendant were coded as 1;these data were subjected to a Cochran’s Q test comparing the three recovery meth-ods, Q(2, N = 46) = 10.64, p = .005. McNemar follow-up tests indicated a significant

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difference between hypnosis and the other conditions (see Table 1). In keeping withour hypothesis, participants rendered more verdicts for the plaintiff when hypnosiswas used.

Because the correlation matrices revealed associations between verdict ratingsand other dependent measures (rs = −.37−−.78), we performed separate multiplelinear regressions for each recovery method to determine which dependent variablespredicted the favorability of verdicts. Ratings of the accuracy of recovered memories,credibility of the plaintiff’s testimony, and therapist’s competence served as predic-tors, with verdict ratings as the criterion in each regression. The credibility of theplaintiff’s testimony predicted favorability of verdicts for all three recovery meth-ods: for hypnosis, R2 = .22, F(3, 42) = 3.16, p < .05, β = −.47; for therapist sugges-tion, R2 = .62, F(3, 42) = 22.50, p < .001, β = −.64; and for symptom management,R2 = .52, F(3, 45) = 15.70, p < .005, β = −.77. Thus, when participants viewed theplaintiff’s testimony as more credible, they tended to give the plaintiff more favorableverdict ratings.

Discussion

The results of Study 1 support the notion that positive expectancies about theremarkable power and effectiveness of hypnosis may become dominant in suits alleg-ing childhood sexual abuse (Council, 1999). These expectancies may offer a persua-sive causal explanation for the unusual occurrence of unearthing the long-lost truth(Hilton & Slugoski, 1986; Pennington & Hastie, 1992; Roese, 1997). Participants per-ceived hypnotically recovered memories and derivative testimony to be particularlyaccurate and credible, respectively. Moreover, participants reached more favorableverdicts for the plaintiff and found most often for the plaintiff when hypnosis wasemployed. Because verdict ratings in the hypnosis and symptom-management con-ditions did not differ significantly, a conservative conclusion might be that jurorsappear similarly inclined toward the alleged victim when hypnosis or symptom man-agement is provided. Finally, verdicts were tied directly to the credibility of theplaintiff’s recovered-memory testimony. Our findings stand in sharp contrast to ev-idence that hypnosis can generate unfounded memories of childhood sexual abuse(Brown et al., 1999; Courtois, 1999; Karlin & Orne, 1997; Kihlstrom, 1994; Loftus &Ketcham, 1996; Pope & Brown, 1996; Woodall, 1999).

STUDY 2: SUIT ALLEGING THERAPIST MALPRACTICE

Unlike cases involving sexual abuse, suits alleging therapist malpractice requirejurors to evaluate a therapist’s conduct rather than the recovered-memory testi-mony of a plaintiff. In a suit alleging malpractice, jurors are charged with deter-mining whether the therapist failed to provide a reasonable standard of care thatresulted in harm. Because of their need to identify an extraordinary cause for the un-usual occurrence of professional negligence (Hilton & Slugoski, 1986; Roese, 1997),jurors may rely on their expectancies of hypnosis as an unconventional and possiblyinjurious technique (Council, 1999). Hence, we expected that jurors would have

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relatively negative perceptions of hypnotically recovered testimony in cases involv-ing therapist malpractice (Behnke, 1999).

We also wondered whether a therapist’s expertise would be more relevant toand, therefore, more influential in jurors’ reactions to recovered-memory testimonypresented in cases involving malpractice (Lambert & Bergin, 1994) and if jurorswould be more sympathetic to someone wrongly accused on the basis of recovered-memory testimony than to a client who later recanted recovered memories. Wehypothesized that a woman who made false accusations and later recanted themwould be viewed with greater skepticism than an innocent third party trying to restorehis reputation.

We compared how jurors would respond to recovered-memory testimony whenhypnosis, therapist suggestion, and symptom management were used, when thesetechniques were administered by a master’s-level or doctoral therapist, and whenthe plaintiff was a former client who recanted recovered memories of childhoodsexual abuse versus an alleged perpetrator accused on the basis of recovered-memorytestimony.

We hypothesized that

1. Jurors would perceive hypnosis as more likely to have created false memo-ries and more responsible for having caused harm, view the therapist whoemployed hypnosis as less competent, and render less favorable verdicts forthe therapist (i.e., defendant).

2. Jurors would perceive therapists with doctorates as less likely to have createdfalse memories and less responsible for having caused harm, view them asmore competent, and render more favorable verdicts for such therapists.

3. Jurors would be more certain that false memories had been created, attributegreater responsibility for having caused harm, view the therapist as less com-petent, and render more favorable verdicts when the plaintiff was an allegedperpetrator than a former client.

Method

Participants

One hundred and forty undergraduates (40 men, 100 women) between 18 and40 years old volunteered. One hundred and eleven were White, 23 African American,3 Asian American, and 3 Hispanic American; all were U.S. citizens. Approximatelyone-half reported household income of $25,000–$75,000. One (0.07%) had served asa juror, 25 (17.86%) had undergone psychotherapy, and 38 (27.14%) were aware oflitigation involving recovered memories through the media.

Design

Participants responded to three trial scenarios involving recovered-memory tes-timony. Each scenario represented a cell in a 3 (Recovery Method) × 2 (Therapist’sDegree)× 2 (Plaintiff’s Status) design containing one within-subjects factor (method:hypnosis, therapist suggestion, or symptom management) and two between-subjects

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factors (degree: master’s or doctoral; plaintiff: client or alleged perpetrator). De-pendent variables included the likelihood that the recovery method created falsememories, the responsibility of the therapist for harming the plaintiff, the therapist’scompetence, and the favorability of verdicts for the plaintiff or defendant.

Materials and Procedure

After giving consent, participants provided background data and rated theirpre-existing beliefs about recovered memories. Participants then read a paragraphthat contained a summary of the generic elements of civil law, a distillation of theburden of proof required in civil cases (Golding et al., 1995), and a description of thejudgements ordinarily made by jurors in civil suits alleging malpractice (Stromberget al., 1988); jury instructions keyed to the details of the fictional court cases describedlater were not provided. Next, participants received three fictional court cases inwhich a therapist was charged with malpractice based on accusations stemming fromthe recovered-memory testimony of a 27-year-old female. All scenarios began withthe same general information about the case, followed by details of the plaintiff’scharge. The therapist’s client had recently recovered memories of childhood sexualabuse that occurred 20 years earlier. The plaintiff, who was either the client or a maleneighbor accused of abuse based on the client’s recovered memories, claimed thatthe memories were false and, therefore, the abuse had never occurred. The plaintiffsubsequently accused the therapist of harm and sued for $1 million in damages. Thedefendant’s case followed in which the therapist provided clinical justification forthe particular recovery method that was applied and professed innocence to thecharge of malpractice. Scenarios did not include cross-examination, redirect, experttestimony, or rebuttal testimony and witnesses.

As in the suit alleging sexual abuse, scenarios were identical except for varia-tions in the method used to recover memories (i.e., hypnosis, therapist suggestion, orsymptom management), the gender-disguised therapist’s degree status (i.e., master’sor doctoral), and the status of the plaintiff (i.e., former client or alleged perpetra-tor). As in Study 1, the basic features common to each scenario were adopted fromGolding et al. (1995). Scenarios were embellished to include malpractice allegationsand material pertaining to the recovery method, therapist’s degree status, and plain-tiff’s status. Several master’s level and doctoral clinicians were invited to inspect thedetails and contextual information contained in the scenarios (see Key et al., 1996).We used this feedback to render the scenarios as qualitatively similar as possible.Scenarios are available from the second author.

Participants responded to three recovery methods and were randomly assignedto one level of therapist’s degree status and one level of plaintiff’s status. As in the suitalleging sexual abuse, the presentation order of recovery methods was randomizedto reduce the possibility of carryover effects. After reading each scenario, partici-pants rated in unvarying order the likelihood that recovery method had created falsememories, the therapist’s responsibility for having harmed the plaintiff, the thera-pist’s competence, and the degree to which they favored the plaintiff or defendant.Participants were then debriefed and given course credit. Twenty participants wereexcluded for misidentifying the recovery method, the therapist’s degree status, the

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plaintiff’s status, or for providing incomplete data, leaving 120 usable sets of data(34 men, 86 women). The 16 participants who misidentified recovery method, thera-pist’s degree status, plaintiff’s status, or all of these were not differentially distributedacross these conditions or across gender.

Measures

As in the suit alleging sexual abuse, participants’ pre-existing beliefs aboutrecovered-memory phenomena were measured with 7-point items adapted fromGolding et al. (1996). Responses were pooled with similar data collected in Study1 and then analyzed; the results are presented after we discuss the findings of thisstudy.

The likelihood that the recovery method had created false memories, the respon-sibility of the therapist for having harmed the plaintiff, the therapist’s competence,and the favorability of verdicts for the plaintiff or defendant were measured withfour, 7-point items ranging from 1 (definitely no, not at all responsible, not at all com-petent, or completely in favor of the plaintiff, respectively) to 7 (definitely yes, entirelyresponsible, entirely competent, or completely in favor of the defendant, respectively).

Three multiple-choice items served to establish whether participants correctlydetected the manipulation of recovery method, therapist’s degree status, and identityof the plaintiff.

Results

3 (Recovery Method)× 2 (Therapist’s Degree)× 2 (Plaintiff’s Status)× 2 (Par-ticipant’s Gender) ANOVAs did not find significant differences on demographic andbackground data. Descriptive data for the dependent measures appear in Table 2.Four 3 (Recovery Method) × 2 (Therapist’s Degree) × 2 (Plaintiff’s Status) × 2(Participant’s Gender) × 3 (Order of Recovery Method) mixed-model ANOVAsyielded main effects for recovery method on the likelihood of having created falsememories, F(2, 192) = 30.35, p < .001; responsibility for having harmed the plaintiff,F(2, 192) = 52.99, p <.001; therapist’s competence, F(2, 192) = 6.58, p <.05; andfavorability of verdicts, F(2, 192) = 28.98, p < .001. A main effect for plaintiff’s sta-tus emerged on the likelihood of having created false memories, F(1, 96) = 4.54,p < .05; and favorability of verdicts, F(1, 96) = 8.50, p < .01. Planned contrasts in-dicated that participants rated therapists who used hypnosis or suggestion as morelikely to have created false memories and as more responsible for having causedharm, lending qualified support to our hypotheses. Similarly, participants viewedtherapists who offered suggestion as less competent. Participants gave less favor-able verdict ratings to therapists who employed hypnosis and suggestion. Finally,participants were more certain that the therapist had created false memories andmore favorable toward the plaintiff in their verdict ratings when the plaintiff was analleged perpetrator as opposed to a former client.

To ensure that these findings were not due to carryover effects of the within-subjects design, we compared the means for the four dependent measures for the firstscenario that each participant received to the pooled means for the four measures

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Tabl

e2.

Des

crip

tive

Dat

afo

rD

epen

dent

Mea

sure

sfo

rth

eSt

udy

Alle

ging

The

rapi

stM

alpr

acti

ce(N=

120)

Rec

over

ym

etho

d

Hyp

nosi

s(H

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hera

pist

sugg

esti

on(T

S)Sy

mpt

omm

anag

emen

t(SM

)

Dep

ende

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(C)

Per

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(P)

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nt(C

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trat

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(C)

Per

petr

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(P)

Sign

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sa

M2.

923.

504.

324.

302.

573.

02H>

SM,T

S>

SM,P>

CSD

1.52

1.44

1.75

1.59

1.27

1.52

Res

pons

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tyra

ting

sa

M2.

803.

024.

053.

821.

882.

27H>

SM,T

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SMSD

1.49

1.40

1.77

1.61

1.09

1.25

Com

pete

nce

rati

ngsa

M5.

625.

605.

355.

376.

025.

63T

S<

SMSD

1.46

1.20

1.57

1.63

1.16

1.30

Ver

dict

Rat

ings

b

M5.

384.

904.

384.

136.

205.

53H<

SM,T

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M,P<

CSD

1.40

1.59

1.95

1.93

0.92

1.53

Ver

dict

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(clie

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perp

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Freq

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427

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83D

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(the

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st)

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113

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85.8

365

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94.1

7

aH

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rnu

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tegr

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ies,

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num

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for each recovery method. The patterns of means were nearly identical, with minorinconsistencies in the size of adjacent means for the likelihood of having created falsememories and for therapist’s competence (available from the second author).

To compare the number of actual verdicts rendered in each recovery method,verdict ratings were collapsed as in Study 1 to represent judgements for the plain-tiff (both former client and alleged perpetrator) or defendant. Binary data weresubjected to a Cochran’s Q test, which revealed a significant difference due to recov-ery method, Q(2, N = 120) = 36.79, p < .001. McNemar follow-up tests indicated asignificant difference between symptom-management and therapist-suggestion con-ditions (see Table 2). Participants rendered the fewest verdicts for the plaintiff (acrosslevels of the plaintiff’s status) when symptom management was applied.

Because of the correlations between verdict ratings and other dependent vari-ables (rs = .21−−.69), we conducted separate linear regressions for each recov-ery method to determine which dependent variables predicted the favorabilityof verdicts. Ratings of the likelihood of having created false memories, the re-sponsibility for having harmed the plaintiff, and the therapist’s competence servedas predictors, with verdict ratings as the criterion in each regression. The likeli-hood of having created false memories and responsibility for having harmed theplaintiff predicted favorability of verdicts when the recovery method was hypno-sis, R2 = .56, F(3, 116) = 49.67, p < .001, βs = −.44 and −.40 respectively; thera-pist suggestion, R2 = .55, F(3, 116) = 48.12, p < .001, βs = −.43 and −.38 respec-tively; and symptom management, R2 = .39, F(3, 116) = 24.47, p < .001, βs = −.45and −.30 respectively. Thus, when participants perceived that the therapist had cre-ated false memories through the recovery method chosen and was responsible forhaving harmed the plaintiff, they tended to give the plaintiff more favorable verdictratings.

Discussion

The results of Study 2 support the notion that negative expectancies aboutthe remarkable power and dangerousness of hypnosis may surface in suits alleg-ing therapist malpractice (Council, 1999). These expectancies may offer a persuasivecausal explanation for the unusual occurrence of professional negligence (Hilton &Slugoski, 1986; Pennington & Hastie, 1992; Roese, 1997). Participants perceived hyp-nosis as more likely than symptom management to have created false memories ofchildhood sexual abuse and to have resulted in injury. Moreover, participants gaveless favorable verdicts to the therapist who provided hypnosis rather than symptommanagement and found less often for the plaintiff when the therapist administeredsymptom management. Finally, verdicts unfavorable to the therapist were linked tothe certainty that false memories had been created and harm had been caused. In-terestingly, participants’ critical reactions to hypnotically recovered memories andjudgements of malpractice were echoed in their particularly negative opinions ofrecovered-memory testimony based on therapist suggestion. Like hypnosis, thera-pist suggestion may have given jurors a reasonable way to account for the damagingeffects of recovering repressed memories (Hilton & Slugoski, 1986; Pennington &Hastie, 1992; Roese, 1997); after all, it was the therapist who initially convinced the

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client that the abuse had occurred. Jurors appear willing to hold therapists negligentbased on the suggestiveness of the recovery methods that they adopted. Our findingsdovetail with calls to minimize malpractice liability by not using methods to recovermemories of childhood sexual abuse that incorporate any degree of suggestion be-cause they can validate or stimulate compelling, yet spurious memories (Courtois,1999; Karlin & Orne, 1997; Loftus & Ketcham, 1996; Pope & Brown, 1996) that mayresult in wrongful accusations.

The seemingly contradictory reactions of participants to hypnosis in suits alleg-ing sexual abuse and therapist malpractice are not surprising. In each suit, jurors en-counter distinctive and extraordinary circumstances for which they very likely seekunusual causal explanations (Hilton & Slugoski, 1986; Roese, 1997). They appearto identify the different features of hypnosis as supplying convincing explanationsfor the exceptional circumstances surrounding each case. It is worth noting that, inboth studies, the therapist’s expertise had no significant impact on participants. Eventhough degree status was successfully manipulated, it is a substantially less salientvariable than recovery method.

Finally, we confirmed that juror’s responses in cases involving therapist mal-practice would differ depending upon whether the plaintiff was a former client whorecanted recovered memories of childhood sexual abuse versus an alleged perpe-trator accused on the basis of recovered-memory testimony. Participants were morecertain that false memories had been created and reached verdicts that were morefavorable to the plaintiff who was an alleged perpetrator. This is the first study tosuggest that jurors may be especially sensitive to any injustice they perceive to havebeen inflicted upon a third party, particularly one who appears to have played no rolein producing the disputed memory and who seems motivated solely by the desire toredress any reputational damage that may have occurred.

ANALYSES OF PRE-EXISTING BELIEFSABOUT RECOVERED-MEMORY PHENOMENA

For the pooled sample of 166 participants, women believed more strongly thanmen that memories of painful events can be forgotten (i.e., repressed; M = 5.42,SD = 1.52 vs. M = 4.79, SD = 1.69), F(1, 164) = 5.41, p < .01; and that recoveredmemories are accurate (M = 4.35, SD = 1.19 vs. M = 3.73, SD = 1.27), F(1, 164)= 8.91, p <.005. Men and women did not differ in the strength of their beliefs thatmemories can be recovered after being forgotten for 20 years (M = 4.89, SD = 1.40vs. M = 4.73, SD = 1.47).

GENERAL DISCUSSION

Many people have been charged with and convicted of childhood sexual abusebased solely on recovered-memory testimony (Courtois, 1999; Loftus & Ketcham,1996; Pope & Brown, 1996). Furthermore, therapists have become targets for mal-practice claims brought by clients and those accused of abuse based on memories

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recovered by alleged victims (Behnke, 1999). Because recovered-memory testimonyhas increasingly been admitted in court cases involving childhood sexual abuse (Taub,1996), it is important to identify factors that contribute to jurors’ beliefs about re-covered memories because they must evaluate recovered-memory testimony beforerendering verdicts. We examined (a) the beliefs held by potential jurors about repres-sion, the recovery of repressed memories, and the accuracy of recovered memories;(b) the influence of the methods used to recover memories, the therapist’s expertise,and the juror’s gender on beliefs about recovered-memory testimony, the therapist’scompetence, and verdicts in cases involving sexual abuse versus therapist malprac-tice; and (c) differences in beliefs about recovered-memory testimony, the therapist’scompetence, and verdicts when a therapist is sued for malpractice by a former clientversus an alleged perpetrator.

In terms of their pre-existing beliefs, jurors reported that the repression (i.e.,forgetting) of painful events, recovery of memories after many years, and accuracyof recovered memories were more than moderately believable (Ms = 5.22, 4.70, and4.04, respectively, on a 7-point scale). Consistent with prior studies (Golding et al.,1996; Golding et al., 1995; Key et al., 1996), women believed in the phenomenon ofrepression and the accuracy of recovered memories more than did, perhaps becausethey take greater offense to sexual assault, have more sympathy for the many femalevictims of childhood sexual abuse, and are less skeptical of the veracity of children’sself-reported experience (Golding et al., 1996).

Although judges now have expanded authority to determine the admissibilityof evidence (Kumho Tire Co., Ltd. v. Carmichael, 1999), they will surely apply con-ventional tests for evaluating the relevance and reliability of the applied sciencethat underlies recovered-memory testimony in cases of childhood sexual abuse (e.g.,Daubert). However, like trained therapists, judges may be subtly swayed by powerfulpopular beliefs about repression and repressed memories (Loftus & Ketcham, 1996;Pope & Brown, 1996). This phenomenon may occur because Daubert’s pragmaticconsiderations are difficult to apply to the evaluation of clinical evidence. Moreover,Kumho does not indicate how to assess the quality of clinical evidence when there islittle science to support it (Shuman & Sales, 1999).

Given the education of lawyers and the selection criteria for judges, there is no reasonto expect courts to have expertise to assess complex problems with scientific validity, andsimilar problems are expected to occur post-Kumho Tire when courts attempt to reachdecisions about the admissibility of clinical testimony. (Shuman & Sales, 1999, p. 12)

Study 1, which investigated alleged childhood sexual abuse, indicated thatrecovered-memory testimony was perceived to be more accurate and credible whena therapist applied hypnosis as opposed to symptom management. When a thera-pist administered hypnosis, jurors also gave more favorable verdict ratings to thevictim and found more often for the victim. Furthermore, the more credible the vic-tim’s recovered-memory testimony, the more favorable jurors were to the victim intheir verdict ratings. Overall, the results suggest that when instructed to establishwhether a plaintiff was sexually abused in childhood, jurors tend to perceive hypno-sis as an effective intervention with which to recover repressed memories (Council,1999). These perceptions are at odds with research showing that hypnosis can elicit

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contaminated or false memories (Brewin & Andrews, 1998; Green et al., 1998; Karlin& Orne, 1997; Kihlstrom, 1994; Lief & Fetkewicz, 1995; Loftus & Ketcham, 1996;Spanos et al., 1999). In their search for the truth, jurors may unwittingly victimizeand unjustly condemn those falsely accused of sexually abusing a child.

Study 2, which involved a therapist who was sued for malpractice, paints a dif-ferent picture of jurors’ reactions to the use of hypnosis in recovering repressedmemories. We correctly predicted that jurors in a malpractice suit would perceivehypnosis as more likely to have created false memories of childhood sexual abuse(Brewin & Andrews, 1998; Green et al., 1998; Karlin & Orne, 1997; Kihlstrom, 1994;Lief & Fetkewicz, 1995; Loftus & Ketcham, 1996; Spanos et al., 1999) and to havecaused more harm than symptom management did. Our jurors also took a dim viewof therapist suggestion in the context of a suit alleging malpractice. They perceivedtherapist suggestion as likely to produce false memories and harm. The descriptivedata further suggest that they viewed therapists who employed suggestion as rel-atively incompetent (see Table 2). Jurors also gave less favorable verdicts to thetherapist who employed hypnosis or suggestion on the grounds that such recoverymethods were more likely to have produced false memories and subsequent harm. Ina complementary fashion, fewer jurors found for the plaintiff when symptom man-agement had been used. Together, these findings imply that therapists who activelyseek repressed memories of childhood sexual abuse with methods that incorporatehypnosis or suggestion are at greater risk to be found liable in cases involving mal-practice than therapists who adopt more cautious and less intrusive interventions(Courtois, 1999; Pope & Brown, 1996).

The apparently conflicting findings of our two studies may reflect, in part, theinteraction of culturally based expectancies about the effectiveness and dangers ofhypnosis (Council, 1999) with the particular goals and tasks in trials involving sexualabuse as opposed to therapist malpractice (Behnke, 1999). In cases involving allegedchildhood sexual abuse, jurors must decide whether the perpetrator is guilty. Theirtask is to evaluate the accuracy and credibility of recovered-memory testimony be-fore rendering a verdict. A powerful and unconventional technique such as hypnosismay offer jurors a persuasive explanation for the unusual occurrence in which “lost”memories of actual events were “found” (Hilton & Slugoski, 1986; Roese, 1997).Under these circumstances, jurors may construe this suggestive procedure as an ef-fective and legitimate way to seek truth and justice for a victim. In suits allegingtherapist malpractice, however, jurors must decide whether a therapist is negligentfor failing to provide a reasonable standard of care. They are charged with evaluat-ing the therapist’s conduct rather than recovered-memory testimony. Unorthodoxtechniques that have the propensity to sway clients, such as hypnosis and suggestion,may provide jurors with a compelling explanation for the extraordinary occurrencein which efforts to recover repressed memories had adverse consequences (Hilton& Slugoski, 1986; Roese, 1997). As a result, in cases involving therapist malpractice,jurors may construe suggestive methods in general to be inappropriate and as havingdamaged a client, a third party, or both.

Our explanation for the conflicting results of Study 1 and Study 2 assumes thathypnosis is viewed as a powerful technique with potentially positive or negative ef-fects, depending on the focus of the trial and responsibilities of the jurors. Although

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the data are consistent with this explanation, direct evidence is lacking. Strongerevidence would require a manipulation of juror focus within a single study and thepresence of additional measures documenting the mediational effects of that focus.Moreover, other variables besides juror focus may provide alternative explanations.For example, perhaps jurors in these studies felt sympathy for the plaintiff wheneverhypnosis was used. In Study 1, which dealt with alleged childhood sexual abuse, jurorsviewed the plaintiff’s recovered-memory testimony as more accurate and crediblewhen induced by hypnosis. Study 2, in contrast, dealt with alleged therapist malprac-tice. The plaintiff in this case was either a former client or the accused perpetrator ofabuse, both of whom were allegedly harmed by the therapist’s application of hypno-sis. In both studies, jurors favored the plaintiffs more when hypnosis was involved.A drawback to this alternative explanation, however, is that it fails to offer a ratio-nale for why jurors would side with a plaintiff when hypnosis was used. It remainsunclear why hypnosis (vs. symptom management) would prompt greater sympathyfor a plaintiff. Additional studies are needed to delineate the contribution of thesecompeting explanations (i.e., the independent or interactive effects of the type oftrial and a penchant for the underdog).

Our research also examined perceptions of therapist competence. In the suitalleging sexual abuse, jurors’ perceptions of the therapist’s competence were notrelated to how memories were recovered. In the suit alleging malpractice, however,jurors perceived the therapist who suggested that the client’s symptoms reflectedchildhood sexual abuse as relatively incompetent. Because the therapist was thedefendant in the suit alleging malpractice, competence was probably a more salientconsideration for jurors than in cases in which the therapist was not a litigant. Wenote that our prediction for the malpractice suit that hypnosis would be associatedwith perceptions of less therapeutic competence was not confirmed; in spite of beingtied to the creation of false memories and responsibility for harming others, hypnosis,like symptom management, may have been seen as requiring skill and experience toadminister.

The therapist’s education and training did not influence jurors’ perceptions andverdicts in suits alleging sexual abuse and therapist malpractice, contrary to our pre-dictions (cf. Lambert & Bergin, 1994). Perhaps, a therapist’s expertise is irrelevant,or at least less salient than recovery method in the formation of jurors’ beliefs aboutrecovered-memory testimony. Alternatively, the distinction between master’s anddoctoral degrees may not have been meaningful to our jurors. We also found noeffect for juror gender. Although female jurors expressed stronger general beliefsin repression and the accuracy of recovered memories than did men, these genderdifferences were not mirrored in their reactions to the specific trial scenarios westudied (cf. Golding et al., 1996; Golding et al., 1995; Griffith et al., 1999; Key et al.,1996). Perhaps, women tempered their sympathies toward alleged victims of child-hood sexual abuse and views about recovered-memory testimony when faced withthe responsibility of evaluating such testimony for the purpose of rendering verdicts.

No published studies have investigated whether a therapist can be found liablefor injuring an alleged perpetrator who is accused of childhood sexual abuse basedon recovered-memory testimony (Behnke, 1999). In the case involving therapist mal-practice, jurors were more certain that the therapist had created false memories and

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gave more favorable verdict ratings to the plaintiff who was an alleged perpetra-tor than to a former client who recanted recovered memories of abuse. There maybe several reasons for jurors’ heightened sensitivity to the injustice suffered by analleged perpetrator. First, jurors may have been skeptical of a client who made ac-cusations and then retracted them. Second, jurors may have found it plausible thatthe alleged perpetrator was innocent because he played no role in producing the dis-puted memory and was motivated merely to clear his name by bringing suit againstthe therapist.

CONCLUSION

The analog methodology of this research makes it difficult to generalize ourfindings to the reactions of actual jurors. First, the undergraduates who participatedas mock jurors do not represent the population of potential jurors, although they areeligible to serve as jurors. However, other studies have not found differences betweenundergraduates and more representative samples of potential jurors (Golding et al.,1995). Second, a small proportion of jurors did not seem to understand the manipu-lation of recovery method, therapist’s degree status, and plaintiff’s status (16.7% inthe suit alleging sexual abuse and 11.4% in the suit alleging therapist malpractice).Although the internal validity of our research was not threatened by the kind ofserious manipulation failures that have occurred elsewhere (see Key et al., 1996),the mortality rates of both studies suggest that the manipulations should be mademore salient. Third, our written trial scenarios were undoubtedly less realistic thanan actual trial; they did not include cross-examination, redirect, expert testimony, orrebuttal witnesses. Nevertheless, these materials permitted the manipulation of re-covery method, therapist’s degree status, and plaintiff’s status. Furthermore, researchhas demonstrated that the format of stimulus materials (e.g., written trial summariesvs. videotaped trials) does not alter participants’ responses (Golding et al., 1995).Fourth, jurors did not deliberate as a group after reading the trial scenarios. We didnot incorporate juror deliberation into our procedures because of our interest inthe reactions of individual jurors independent of social influence. In addition, theliterature has not shown consistent differences in the outcomes of studies with andwithout juror deliberation (Golding et al., 1995). Finally, because jurors’ verdicts hadno impact on actual litigants, the external validity of our research is uncertain.

Notwithstanding its limitations, our research suggests that therapists can protectthemselves somewhat from malpractice liability by using conservative techniquessuch as symptom management when working with suspected childhood sexual abuse.We repeat the warning for clinicians to follow treatment guidelines that minimizelitigation and preserve evidence. We also recommend that forensic consultants beengaged to inform jurors about the effectiveness of various methods of recoveringmemories and to debunk myths about the accuracy of recovered memories andcredibility of recovered-memory testimony produced by suggestive techniques likehypnosis.

In the future, researchers should articulate the grounds for verdicts in cases in-volving childhood sexual abuse of a victim and therapist malpractice by investigating

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the casual reasoning that jurors apply to the distinctive features of each trial, identifyfactors that might mediate and moderate jurors’ opinions about recovered-memorytestimony (e.g., cross examination, redirect, expert testimony, rebuttal witnesses),and examine sources for and the malleability of jurors’ beliefs about hypnosis (e.g.sympathy for a plaintiff).

REFERENCES

Behnke, S. H. (1999). Old duties and new: Recovered memories and the question of third-party liability.Journal of the American Academy of Psychiatry and the Law, 27, 279–300.

Brewin, C. R., & Andrews, B. (1998). Recovered memories of trauma: Phenomenology and cognitivemechanisms. Clinical Psychology Review, 18, 949–970.

Brown, D., Scheflin, A. W., & Whitfield, C. L. (1999). Recovered memories: The current weight of theevidence in science and in the courts. Journal of Psychiatry and Law, 27, 5–156.

Burgess, C. A., & Kirsch, I. (1999). Expectancy information as a moderator of the effects of hypnosis onmemory. Contemporary Hypnosis, 16, 22–31.

Council, J. R. (1999). Hypnosis and response expectancies. In I. Kirsch (Ed.), How expectancies shapeexperience (pp. 383–401). Washington, DC: American Psychological Association.

Council on Scientific Affairs of the American Medical Association. (1986). Scientific status of refreshingrecollection by the use of hypnosis. International Journal of Clinical and Experimental Hypnosis, 34,1–11.

Courtois, C. A. (1999). Recollections of sexual abuse: Treatment principles and guidelines. New York:Norton.

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).Golding, J. M., Sanchez, R. P., & Sego, S. A. (1996). Do you believe in repressed memories? Professional

Psychology: Research and Practice, 27, 429–437.Golding, J. M., Sego, S. A., Sanchez, R. P., & Hasemann, D. (1995). The believability of repressed memories.

Law and Human Behavior, 19, 569–591.Green, J. P., Lynn, S. J., & Malinoski, P. (1998). Hypnotic pseudomemories, prehypnotic warnings, and

malleability of suggested memories. Applied Cognitive Psychology, 12, 431–444.Griffith, J. D., Libkuman, T. M., Kazen, J., & Shafir, Z. (1999). Repressed memories in the courtroom: Trial

characteristics affecting mock jurors’ decision making. American Journal of Forensic Psychology, 17,5–24.

Hilton, D. J., & Slugoski, B. R. (1986). Knowledge-based causal attribution: The abnormal conditionsfocus model. Psychological Review, 93, 75–88.

Karlin, R. A., & Orne, M. T. (1997). Hypnosis and the iatrogenic creation of memory: On the need fora per se exclusion of testimony based on hypnotically influenced recall. Cultic Studies Journal, 14,172–206.

Key, H. G., Warren, A. R., & Ross, D. F. (1996). Perceptions of repressed memories: A reappraisal. Lawand Human Behavior, 20, 555–563.

Kihlstrom, J. F. (1994). Hypnosis, delayed recall, and the principles of memory. International Journal ofClinical and Experimental Hypnosis, 42, 337–345.

Kumho Tire Co., Ltd. v. Carmichael, 119 S. Ct. 1167 (1999).Lambert, M. J., & Bergin, A. E. (1994). The effectiveness of psychotherapy. In A. E. Bergin & S. L.

Garfield (Eds.), Handbook of psychotherapy and behavior change (4th ed., pp. 143–189). New York:Wiley.

Lief, H. I., & Fetkewicz, J. (1995). Retractors of false memories: The evolution of pseudo-memories.Journal of Psychiatry and Law, 23, 411–435.

Loftus, E. F., & Ketcham, K. (1996). The myth of repressed memory: False memories and allegations ofsexual abuse. New York: St. Martin’s Griffin.

Pennington, N., & Hastie, R. (1992). Explaining the evidence: Tests of the story model for juror decisionmaking. Journal of Personality and Social Psychology, 62, 189–206.

Pope, K. S., & Brown, L. S. (1996). Recovered memories of abuse: Assessment, therapy, forensics.Washington, DC: American Psychological Association.

Ramona v. Ramona, Case No. 61898, Cal. Supr. Ct. (1994).Roese, N. J. (1997). Counterfactual thinking. Psychological Bulletin, 121, 133–148.

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Shuman, D. W., & Sales, B. D. (1999). The impact of Daubert and its progeny on the admissibility ofbehavioral and social science evidence. Psychology, Public Policy, and Law, 5, 3–15.

Spanos, N. P., Burgess, C. A., Burgess, M. F., Samuels, C., & Blois, W. O. (1999). Creating false memoriesof infancy with hypnotic and non-hypnotic procedures. Applied Cognitive Psychology, 13, 201–218.

Stromberg, C. D., Haggarty, D. J., Leibenluft, R. F., McMillan, M. H., Mishkin, B., Rubin, B. L., & Trilling,H. R. (1988). The psychologist’s legal handbook. Washington, DC: Council for the National Registerof Health Service Providers in Psychology.

Taub, S. (1996). The legal treatment of recovered memories of child sexual abuse. Journal of LegalMedicine, 17, 183–214.

Woodall, J. (1999). The nature of memory: Controversies about retrieved memories and the law of evi-dence. Journal of Psychiatry and Law, 26, 151–218.

What Makes Recovered-Memory Testimony Compelling to Jurors?

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