5/23/07 (NJ):
Dream-Refreshed Recall Of Abuse Needs No Expert
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Expert testimony is not required when a plaintiff bases a child sexual abuse claim on recalled memories, the New Jersey Supreme Court ruled Thursday.
Rather, a jury should be allowed to assess the credibility of the plaintiff's testimony in the same way it would any other lay witness, the court decided unanimously in Phillips v. Gelpke, A-1-06.
Production of an expert is not needed to explain to the jury how the plaintiff recalled her past sexual abuse, Justice Jaynee LaVecchia wrote. "[T]here was no prodding of plaintiff's memory that necessitated an expert's explanation."
The court reversed an Appellate Division decision that said the plaintiff, Melissa Phillips, should have been required to produce an expert to attest to the credibility of her sudden memory recall. She claimed that the memories were reawakened by a dream, without the aid of professional therapy.
The court's ruling does not reinstate the $750,000 a Somerset County, N.J., jury awarded Phillips after finding that her grandmother's son-in-law, John Gelpke, sexually abused her when she was between the ages of 3 and 8. Instead, the matter goes back to the Appellate Division for consideration of other issues raised in the earlier appeal but not yet addressed.
Phillips sued Gelpke in 2001, when she was 19. She claimed she forgot the incidents until, at age 11, she had a dream that she was having sexual intercourse with Gelpke. None of her recollection was educed through therapy or counseling. After she had the dream, Phillips' recollections of earlier abuse by the defendant returned to her episodically in flashbacks.
Despite objections from Gelpke's defense attorney, Superior Court Judge Victor Ashrafi allowed the recall testimony, which led to the jury verdict. The Appellate Division reversed, declaring that there is scientific uncertainty about the reliability of ordinary-recall evidence. The panel said Phillips should have called an expert to testify to the soundness of her claim that the dream aroused her memories of alleged abuse.
The Appellate Division said Phillips could have a new trial if she wanted, but she appealed to the Supreme Court in an attempt to recapture her award.
Had Phillips alleged that the memories had flooded back after undergoing therapy, hypnosis or medication, she would have been required to produce an expert, LaVecchia wrote. The Appellate Division erred, she said, when it relied on a New Hampshire case, State v. Hungerford, 697 A.2d 916 (N.H. 1997). That court ruled that experts were required to explain how hypnosis, medication or therapy can trigger repressed memories.
In this case, said LaVecchia, there is a key difference: Phillips made no claim of repressed memory. Rather, Phillips said, "I forgot, and then I remembered."
Experts are required when a fact-finder needs someone to explain "esoteric" material that would be beyond the knowledge of the common jury, LaVecchia said. Here, Phillips merely said she remembered being sexually abused after having a dream.
Phillips' testimony, LaVecchia said, should be treated like any other lay witness'. "In respect of lay testimony, the foundation for its admission is simply the witness' personal knowledge," she said. "She was willing to take her chances before the jury with that explanation and the question is only whether she should have been permitted to do so."
"The jury would either believe that she recollected events when and how she did, or it would not," LaVecchia said. "We perceive no error in the trial court's proceedings that allowed the jury to make the determination it reached.
"The plaintiff retrieved her memories of defendant's sexual assault independently, without external aid or enhancement ... "
The court noted that the defense presented expert testimony to impeach Phillips' ability to recollect the alleged abuse, but that evidence proved to be insufficient.
The defense psychologist found that Phillips was not in acute distress and did not exhibit emotional problems. The expert also said that Phillips' explanation that she recalled the abuse in a dream and then in intermittent recollections did not conform to notions of "how memory works."
Moreover, the court noted that Phillips filed her complaint within the applicable statute of limitations -- she had until her 20th birthday to do so -- so she did not have to meet any tolling discovery-rule requirement.
Phillips' lawyer, Richard Schachter, says the court drew an important distinction between ordinary recall memory and repressed memory that is brought back through the use of external aids.
"This case was not about repressed memory, it was about ordinary recall. There is no indication that she remembered these incidents through any other method than recall," says Schachter, of Somerville, N.J.'s Norris McLaughlin & Marcus.
Schachter says the ruling could have a greater impact in criminal cases, where victims of alleged sexual abuse suddenly remember the incidents years after they occur, even if they are not undergoing some type of therapy.
Gelpke's lawyer, Somerville solo Kevin Kovacs, says the ruling could lead to situations where a jury decides a case based on emotion rather than sound fact-finding based on evidence. "It sets bad precedent to say you don't need an expert for a repressed memory case," he says.
Phillips, says Kovacs, should be required to produce at least some type of corroborative evidence to back up her story.
© X-Pro 2007
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