In a dim light: Admissibility of child sexual abuse memories

Abstract

The scientific basis for recovering repressed memories of' child sexual abuse raises important but different concerns for both clinical practice and expert testimony in the courts. This article identifies these concerns, particularly focusing upon the admissibility of expert witnesses in litigation. After considering the different standards for 1.he admissibility of scientific evidence and the policies underlying these standards, the issue of the courts employing a lower threshold for admitting mental health professional testimony about the same or similar information (i.e. recovered repressed memories) that could not be pxesented by a scientist is confronted. Two solutions are proposed.

Legal standards, expertise, and experts in the resolution of contested child custody cases.

“…States using a Frye standard would probably allow the admission of standardized assessment instruments, because their use is common among child custody practitioners. However, future Frye examinations may legitimately ask whether the particular field to which the instrument belongs is that of clinical practitioners or of the clinical scientists who develop and validate these assessment instruments.Expert clinical opinion testimony that is not based on standardized assessment instruments has not generally been treated as scientific evidence by the courts and has not been subject to scientific evidentiary admissibility standards (Sales et al, 1994). This testimony has been admitted under a broad relevancy approach to evidence (e.g., whether the information is relevant), and the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice or confusion.…”

“…In addition to lamenting the ambiguity of the BICS, many psychologists have criticized the role mental health professionals (MHPs) currently play in custody determinations. They have argued that their profession has no expertise to offer the court in the resolution of custody disputes (Faust & Ziskin, 1988) and that presenting “expert” clinical opinion testimony in these proceedings may be an unethical subversion of the role of experts in the courtroom (Lavin & Sales, 1998; Melton et al, 1987; Sales, Shuman, & O'Connor, 1994).…”

“…Unfortunately, courts have focused almost exclusively on the credentials and training of the expert rather than on the quality of information the expert will be presenting when making admissibility decisions. As a result, the courts have not barred inaccurate and unscientific expert clinical opinion testimony from being offered by well-trained practitioners (Sales, Shuman, & O'Connor, 1994).…”

“…Expert clinical opinion testimony that is not based on standardized assessment instruments has not generally been treated as scientific evidence by the courts and has not been subject to scientific evidentiary admissibility standards (Sales et al, 1994). This testimony has been admitted under a broad relevancy approach to evidence (e.g., whether the information is relevant), and the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice or confusion.…”

The problem of "helpfulness" in applying Daubert to expert testimony: Child custody determinations in family law as an exemplar.

“…Relevant evidence is any evidence that makes a fact in issue more or less probable, whereas nonprejudicial evidence is evidence that is not more prejudicial than it is probative 2 Daubert, 1993, p. 2797; Sales, Shuman, & O'Connor, 1994; Strong, 1995). 3 The Supreme Court further specified that FRE 702 determines the admissibility of expert testimony based on scientific or novel scientific evidence in the federal courts.…”