The NMCCA affirms suppression of recovered memories, concluding that they are “the product of a scientific process” and adopting “the totality of the circumstances approach” to test their reliability
There’s a lot to say about the recently published decision in United States v. D.W.B., __ M.J. __, No. 201400359 (N-M. Ct. Crim. App. Feb. 26, 2015) (link to slip op.), in which a three-judge panel of the court concludes “that memory recovered by means of a formal psychological process is the product of a scientific process and therefore subject to a baseline reliability determination as a precondition to admissibility,” and it adopts the totality of the circumstances test to determine such reliability. Slip op. at 20-21.
For starters, the case is a Government interlocutory appeal of a military judge’s ruling that suppressed the testimony of an alleged child sexual assault victim. The suppression occurred after the military judge determined that the testimony “was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.” Slip op. at 2. The psychological process at issue is “a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR),” slip op. at 2. Before issuing this ruling, the military judge conducted a hearing to assess the reliability of the child’s testimony based on the totality of the circumstances, and the CCA affirms that process and its result in this case.
But an added twist to the case is that the CCA identifies the accused by only his initials, explaining:
The name of the appellee has been withheld from this opinion to protect the privacy interests of the alleged victim, whose identity would otherwise be apparent.
Slip op. at 1 n.1.
The appellee is accused of sodomy with a child under the age of 12 and indecent acts with a child, in violation of Articles 125 and 134. The child is appellee’s biological daughter, identified by the initials KB. The child’s mother is appellee’s ex-wife, identified by the initials LB. The CCA’s opinion reveals that the child was 12 years-old in 2012.
The child’s mother sought treatment for the child because the child was “hearing voices and seeing ‘shadows.'” Slip op. at 2 n.3. The child was treated by a psychologist named Dr. Bhattacharya who:
incorporated spiritual aspects into her practice, including psychic abilities, ghosts, crystal therapy, and resources and treatment for “Indigo/Crystal/Star people/Rainbow population.” She herself, she advertised, was “an Indigo who evolved to Crystal phase” and was “clairvoyant, clairsentient, clairaudient, and claircognizant.” Dr. Bhattacharya asserted the ability to distinguish between patients who were seeing visions as a result of psychosis versus “true angels/clairvoyan[ts]/clairaudients.” She asserted KB was an indigo child and encouraged her to trust in what she saw, felt, and heard, and to explore her psychic gift.
Slip op. at 3. The child’s mother also “suspected the appellee was sexually abusing their daughter.” Slip op. at 3. She “shared her suspicions with Dr. Bhattacharya.” Slip op. at 4.
“EMDR is a psychotherapeutic approach developed after its founder, Dr. Francine Shapiro, discovered in 1987 that eye movement appeared to reduce negative emotion associated with distressing memories.” Slip op. at 4. Dr. Bhattacharya used EDMR during several sessions with the child. Then:
In a session conducted in approximately July or August 2013, Dr. Bhattacharya had KB focus on why she felt uncomfortable around her father and where in her body she felt pain while KB followed Dr. Bhattacharya’s fingers. As she did this, KB experienced a “flash” of memory in which she recalled being sexually abused by her father when she was approximately seven years old. KB described being called into a room by the appellee, being on a bed with him, him sitting on her chest and placing something into her mouth, and experiencing pain. According to KB, Dr. Bhattacharya told KB she saw this vision as well. At the hearing, Dr. Bhattacharya denied this.
Slip op. at 5. Dr. Bhattacharya disclosed this to the child’s mother and, after the child repeatedly refused to discuss it with her mother, the child finally told her mother “that the appellee had sexually assaulted her and provided further details,” during “a heated confrontation.” Slip op. at 5.
The defense moved to suppress the child’s testimony, “asserting her memories of abuse surfaced only after undergoing EMDR in a manner that tainted KB’s memories and rendered them unreliable.” Slip op. at 2. After hearing evidence and argument, the military judge granted the defense motion – a decision the CCA affirms.
The CCA’s opinion (authored by Judge Brubaker) begins by noting that the parties disagree on the legal framework that the military judge should have applied to the defense motion. The military judge applied a Daubert-type analysis that considered the baseline reliability of the testimony. But the Government asserts that:
the military judge misapplied a legal framework germane to expert witnesses, grounded in MIL. R. EVID. 702, Daubert, and Houser, to analyze admissibility of “factual testimony of a lay witness,” which, it asserts, is governed only by rules of relevance, unfair prejudice, and competence under MIL. R. EVID. 401, 403, and 601. It argues, in short, that whether and by what method a witness’s memory may have been recovered or refreshed goes strictly to the weight of the testimony, not admissibility.
Slip op. at 9. To address the question of the appropriate legal framework, Judge Brubaker’s opinion frames the issue this way:
A key question, then, is whether a lay witness’s testimony to memories recovered through EMDR constitutes “scientific evidence” and is therefore subject to a pre-admissibility reliability determination. In addressing this, we wade into what the military judge aptly called “a fierce debate.”
Slip op. at 11. The opinion then conducts a survey of state and federal precedent addressing reliability determinations of testimony involving memories recovered through psychological means. Judge Brubaker considers per se inadmissiblity (applied by numerous jurisdictions to memories recovered through hypnosis), case-by-case reliability determinations (where a trial judge conducts a hearing to determine the reliability of the recovered memories), a totality of the circumstances test (as was employed by the military judge in this case), and per se admissibility (essentially the Government’s position in this case).
The CCA then adopts the totality of the circumstances test:
Having carefully considered the matter, we hold that memory recovered by means of a formal psychological process is the product of a scientific process and therefore subject to a baseline reliability determination as a precondition to admissibility. We are mindful that Daubert, Houser, and MIL. R. EVID. 702 apply expressly to expert witness testimony and that no specific rule of evidence dictates this. Nevertheless, law and logic persuade us that the Government may not avoid a military judge’s scrutiny of a psychological process by which a memory is recovered by having a lay witness testify to the result of that process. Undergirding constitutional principles reaching back to Frye and extant today apply with equal force to lay testimony obtained through, and potentially polluted by, a scientific process. These principles include an accused’s right to a fundamentally fair trial under the Due Process Clause of the 5th Amendment and, under certain circumstances, his 6th Amendment right of confrontation.
In determining whether there is adequate reliability to warrant admissibility, we adopt the totality of the circumstances approach, largely tracking the 2nd Circuit’s approach in Borawick [v. Shay, 68 F.3d 597 (2d Cir. 1995)]. Therefore, testimony dependent upon memory that has been enhanced or recovered through EMDR is admissible when, based on a totality of the circumstances, it is reasonably likely that the memories are at least as reliable as ordinary human memory. Once properly raised, the proponent of the evidence bears the burden of persuasion by a preponderance of the evidence.
Slip op. at 20-21.
The opinion identifies six non-exclusive factors to consider when conducting this analysis, emphasizing that “it is the military judge’s bottom-line duty, as gatekeeper, to ensure that such evidence is sufficiently reliable to pass constitutional muster.” Slip op. at 21. Then, considering the military judge’s analysis in this case, the CCA concludes that he did not abuse his discretion in suppressing the testimony of the child.