B-886

Brief Bank # B-886 (Re: F 2.80 n17 [Challenging Admission Of Recovered Memory (Repressed Memory Syndrome)].)

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EXCERPT FROM APPELLANT’S OPENING BRIEF

A. Counsel’s Failure To Investigate, Move To Exclude, Or Otherwise Challenge **’s Testimony Based Upon The Inherent Unreliability Of Her “Recovered Memories” Fell Below An Objective Standard Of Reasonably Competent Assistance.

1. The Relevant Facts.

Appellant was represented by retained counsel, Mr. H, at the preliminary hearing. At the hearing, ** unequivocally testified that she had no memory at all of the molestation until the summer of 1996. (CT 90-92, 133.) She did not know how or why she recovered her memories at that time. (CT 91-92.) However, she did recall seeing “lots of things” about molestation on television and in books and hearing people talk about it. (CT 102.)

**’s first “memories” were that she had been molested in Idaho when she was six years old. (CT 21, 118.) When she recovered her memories, she wrote about the Idaho molestation in her diary before leaving for Santa Cruz to spend the summer with her father. (CT 10, 153-158, 160, 343-344, 351; see also RT 76-77.) In Santa Cruz, she told Ms. Y and her sister, Ms. O, that she had been molested. Once again, these allegations were limited to Idaho. (CT 118, 153-155, 157-158, 160, 171, 337.) Ms. Y’s statement to police confirmed that **’s allegation was limited to an incident that had occurred “when she was six” (at which time ** was living in Idaho). (CT 337; see also CT 21, 27; RT 24, 26.)

** also told her mother about the molestation in Idaho, and where to find her diary, on August 18, 1996. (CT 110, 153-154, 160.) Mrs. O took the diary to police sometime between then and August 21, 1996. (CT 157-158, 351.)

Consistent with **’s preliminary hearing testimony, the police report states that Mrs. O reported that ** “began to remember things at the beginning of this summer.” (CT 351.) Her memory was limited to an incident or incidents occurring only in Idaho, between August 1, 1991 and August 1, 1993. (CT 160, 351.) [Footnote 1] ** had not indicated that anything had happened since then. (CT 351.)

Police advised Mrs. O that California did not have jurisdiction to prosecute appellant for crimes allegedly occurring in Idaho. (CT 151, 157-158, 171.) Mrs. O “wasn’t real happy” that appellant could not be prosecuted here. (CT 157-158.)

** admitted that her mother told her that California could not prosecute appellant unless she had also been molested here. (CT 119.) At some point during this period, ** entered therapy. (CT 98.) ** acknowledged that it was only after her mother told her that something must have happened in California for authorities here to prosecute that she first claimed that appellant molested her here. (CT 119.) The first reporting to police regarding the California conduct was made on September 2 or 24, 1996. (CT 150.) [Footnote 2]

Of course, the charges in this case were based on conduct that allegedly occurred in California. No independent evidence corroborated **’s “memories” of the molestation.

Ms. R was appointed to represent appellant at trial. (CT 296-298.) At trial, ** made one, brief reference to remembering the molestation just before the summer of 1996. (RT 76.) Other than that single reference, counsel did not pursue in any manner the evidence that ** had completely forgotten, then “recovered,” her “memories” of the molestation until the summer of 1996.

Mr. H was again retained following the verdicts and filed a motion for new trial on several grounds, including ineffective assistance of trial counsel. (CT 312- 446.) At the hearing on the new trial motion, Ms. R testified that the only “investigation” she made into the evidence regarding **’s recovered memories was to speak with a licensed social worker/family counselor who specializes in treating victims of child sexual abuse, Fran Erickson. (9/11/98 RT 19-20, 25.) Ms. R never questioned the reliability of the theory and was not familiar with the concept of “false memories. (9/11/98 RT 20.) Ms. R explained that she did not pursue the matter of **’s “recovered” memories because she had “no doubt” that ** had been molested. (9/11/98 RT 27.)

Thus, Ms. R did not investigate the reliability of “recovered” memories that have been repressed or completely forgotten. Ms. R did not move to exclude **’s testimony as unreliable based upon the overwhelming data that would have been uncovered by even the most minimal investigation. Ms. R did not present an expert to testify before the jury about the inherent unreliability of such recovered memories. Ms. R did not present or develop the unequivocal evidence from the preliminary hearing that ** had completely forgotten about the molestation until the summer of 1996. Ms. R did not argue to the jury that **’s claims that she had been molested, but completely forgot about it for two years, were incredible.

2. Counsel’s failure to move to exclude **’s testimony under People v. Kelly as being derived from the novel scientific theory that “recovered” memories of completely forgotten memories of sexual abuse are as accurate as ordinary memories fell below an objective standard of reasonably competent assistance.

Upon motion by the opponent, the proponent of evidence “based upon” or “derived from” a novel scientific theory or technique must establish that it meets a three-prong test before it may be admitted. (People v. Kelly (1976) 17 Cal.3d 24, 31; accord People v. Leahy (1994) 8 Cal.4th 587, 604; People v. Shirley (1982) 31 Cal.3d 18, 53-54.) First, the proponent must establish that the novel theory or technique is sufficiently established to have gained general acceptance in the scientific field. Second, if the witness is to testify to the scientific theory or technique, he or she must properly be qualified as an expert to give an opinion on the subject. Third, the proponent must establish that correct scientific procedures were used in the particular case. (People v. Kelly, supra, 17 Cal.3d at p. 30.) The proponent cannot make an end-run around this test by not offering the evidence through the testimony of an expert. Rather, the test applies to any evidence “based upon” or “derived from” a novel scientific theory or technique, including the actual testimony of a complaining witness. (People v. Shirley, supra, 31 Cal.3d at p. 53 [rejecting state’s argument that Kelly test only applies to expert testimony and concluding complaining witness’s testimony regarding details of charged crimes that was “derived from” unreliable, hypnotically induced “memories” required exclusion under Kelly]; Ramona v. Superior Court (1997) 57 Cal.App.4th 107, 121-122 [holding complaining witness’s testimony regarding charged crimes that was derived from unreliable memories induced with sodium amytal, as well as any memories recalled post-sodium amytal, required exclusion under Kelly].)

The terms “recovered” and “repressed” memories refer to those memories reported as new recollections, with no previous memories of the event. (See, e.g., American Medical Assn. Council on Scientific Affairs, Report on Memories of Child Abuse, [hereinafter “AMA Report”]; Royal College of Psychiatrists’ Working Group, Reported Recovered Memories of Child Sexual Abuse: Recommendations for Good Practice and Implications for Training, Continuing Professional Development and Research,” 21 Psychiatric Bull. 663 (1997) [hereinafter “RCP Report”]; Loftus, Memory, 41-44 (1980) [hereinafter “Memory”].) According to repressed/recovered memory theory, some memories like sexual abuse by a parent or caretaker, are so painful that the victim completely blocks them as a defense mechanism. (See, e.g., Terr, Unchained Memories: True Stories of Traumatic Memories Lost and Found, at pp. 6-7 (1994) [hereinafter “Unchained Memories”]; Ernsdorff & Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84 J. Crim. Law 129, 132-133 (1993) [hereinafter “Sleeping Memories”].) As a result, the victim has no conscious memory of the event. Also according to the theory, these memories can be “recovered” years later and are at least as accurate and reliable as ordinary memories. (See, e.g., Olio, Memory Retrieval in the Treatment of Adult Survivors of Sexual Abuse, 10 Transactional Analysis J. 93, 95 (1989); Unchained Memories, supra, at p. 12; see also British Psychological Society, “Recovered Memories,” reprinted in The Recovered Memory/False Memory Debate 373, 380-392 (Kathy Pezdek & Williams Banks, eds., 1996) [hereinafter “BPS Report”] [cautiously concluding reported recovered memories “likely” to be as accurate as ordinary memories if correct guidelines followed].)

Here, of course, ** testified at the preliminary hearing that she had no memories at all of the molestation until the summer of 1996. (CT 91-93, 133.) No evidence corroborated her claims. Thus, the only evidence against appellant was the content of **’s “recovered” memories. As set forth below, a fair overview of the scientific literature reveals that the theory that “recovered” repressed memories are reliable, or as reliable as ordinary memories, is a novel scientific one that is not generally accepted within the scientific community, as required under the first prong of the Kelly test. Consequently, had counsel made an appropriate objection, **’s testimony derived from her “recovered memories” would have been excluded.

a. There is no general acceptance within the scientific community of the theory that recovered memories that have been repressed or completely forgotten are as accurate or reliable as ordinary memories.

Courts may rely on scientists’ writings in scholarly treatises and journals, as well as authority from other jurisdictions, in determining whether the general acceptance prong of Kelly is satisfied. (People v. Shirley, supra, 31 Cal.3d at pp. 55-56.) Statements from “representative groups” within the scientific community are particularly helpful in making this determination. (Id. at p. 66.) “[I]f a fair overview of the literature discloses that scientists significant either in number or expertise publicly oppose” the scientific theory or technique “as unreliable, the court may safely conclude there is no such consensus at the present time.” (Id. at p. 56; see also People v. Garcia (1984) 37 Cal.3d 385, 418 [if “clear majority” of scientific community accepts as reliable, “general acceptance” shown].)

A “fair overview” of the literature and authority from other jurisdictions clearly reveals that while there appears to be general consensus within the scientific community that it is at least possible to repress memories of sexual abuse, the community is deeply divided over whether “recovered memories” that have been repressed or completely forgotten are accurate or reliable. (State v. Hungerford & Morahan (1997 N.H. Sup. Court) 697 A.2d 916, 921[recognizing that while accepted in community that people are capable of repression, literature reveals “vigorous debate on the questions of how the process of repression occurs, how the process of retrieval occurs, and indeed if in fact retrieval is possible at all”]; Rhode Island v. Quattrocchi (R.I. Sup. Ct. 1996) 681 A.2d 879, 883 and n. 1 [describing controversial nature of recovery of repressed memories and noting “judicial skepticism is more than matched by skepticism among psychological and psychiatric academics”]; Reagan, Scientific Consensus on Memory Repression and Recovery (1999) 51 Rutgers L. Rev. 275, 288 [hereinafter “Scientific Consensus”] [concluding based on studies and reports from seven representative groups within the scientific community that there is no general acceptance of theory that “recovered memories” are reliable] [Footnote 3].) Indeed, not only is there a lack of consensus on the reliability of recovered memories, there is violent disagreement over the issue within the psychological community. (See, e.g., State v. Hungerford & Morahan, supra, at p. 927 [“The scientific community is extremely divided, at best, on the issue of recovery of completely repressed memories.”]; S.V. v. R.V. (1996 Tex. Sup. Court) 933 S.W.2d 1, 17 [“The question whether recovered memories are valid has elicited the most passionate debate among scholars and practitioners, and the consensus of professional organizations reviewing the debate is that there is no consensus on the truth or falsity of these memories.”]; Wartick, “A Question of Abuse: Adults Who Suddenly Remember That They Were Victims of Child Abuse,” Am. Health: Fitness of Body & Mind, May 1993, p. 62 [“The so-called recovered-memory phenomenon has divided the psychotherapeutic community.”]; McAlister, The Repressed Memory Phenomenon: Are Recovered Memories Scientifically Valid Evidence Under Daubert?, 22 N.C. Cent. L.J. 56, 74-75 (1996) [characterizing disagreement as “vehement”].) According to a representative of the American Psychological Association, the recovered memory debate is “tearing our membership apart.” (Muriel Dobbin, “Jury’s Still Out on Validity of Hidden Memories,” Sacramento Bee, Mar. 9, 1994, at E1.)

Of particular relevance here, there is no general acceptance within the scientific community that such recovered memories are as accurate or reliable as ordinary memories. (See, e.g., State v. Hungerford & Morahan, supra, at pp. 921, 923-925, 927-928, 930 [concluding from overview of literature that there is a lack of general acceptance within scientific community that recovered memories are as accurate as ordinary memories; hence, there must be compelling indicia of reliability of particular memory at issue before it contents may be admitted]; Scientific Consensus, supra, at pp. 282, 319 [concluding based upon studies and reports issued by seven scientific societies that there is no general acceptance of hypothesis that recovered memory is equivalent in accuracy to ordinary memory].) While the use of some special process to retrieve the memories, like hypnotism, drugs, or a special therapeutic process, might increase their unreliable nature, there is no consensus that repressed memories recovered even spontaneously are reliable.

As a preliminary matter, critics contend that there is little if any scientific data to support the theory. (See, e.g., Pope & Hudson, Can Memories of Childhood Sexual Abuse Be Repressed?, 25 Psychol. Med., 121, 122-125 (1995) [criticizing methodology of clinical studies cited in support of theory]; Scientific Consensus, supra, at pp. 305-319 [same]; Murray, Repression, Memory, and Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory in Sexual Abuse Trials, 66 U.Colo. L. Rev. 477, 479 (1995) [noting that recovered memories have never been scientifically validated]; Schooler, Seeking the Core: The Issues & Evidence Surrounding Recovered Accounts of Sexual Trauma, 1994 Consciousness and Cognition 452, 453 [while some studies suggest initial repression of traumatic memory possible and perhaps even common, no similar studies exist to establish memories accurate once retrieved]; Loftus, et. al., Memories of Childhood Abuse: Remembering and Repressing, 18 Psychol. Women Q. 67, 71-73 (1994) [Footnote 4]; Wakefield & Underwager, Uncovering Memories of Alleged Sexual Abuse: The Therapists Who Do It, 4 Issues in Child Abuse Accusations, 197, 210 (1992) [accepting claims of recovered memories of repressed abuse “means accepting a complex chain of assumptions, speculations, inferred internal states and mental processes with limited scientific support and little if any corroborating data”].) This is in large part due to the fact that it is ethically impossible to complete a laboratory study on repression of traumatic events like sexual abuse by inducing the trauma. (See, e.g., Sleeping Memories, supra, at pp. 133-134.)

Ordinary human memory is malleable and subject to many distorting influences. (See, e.g., Loftus & Rosenwald, Buried Memories, Shattered Lives, 79 A.B.A.J. 70, 73 (Nov. 1993); see also People v. Shirley, supra, 31 Cal.3d at pp. 57-63.) “Recovered memories” of long repressed or forgotten incidents of sexual abuse may be even more susceptible to distorting influences than ordinary memories. Indeed, a “recovered” memory might be entirely false, derived from any number of sources. (See, e.g., American Psychological Assn. Working Group on Investigation of Memories of Childhood Abuse: Final Report, 1 (Feb. 14, 1996) [hereinafter “APA Report”] [While it is possible to repress or forget abuse for a time, “it is also possible to construct convincing pseudomemories for events that never occurred.”].)

For instance, false memory can be derived from internal sources, such as a fantasy. (See, e.g., APA Report, supra, at p. 6 [listing alternative hypotheses for recovered “memory” that is completely or partially false].) A recovered “memory” of sexual abuse might also simply represent an “emotional metaphor” (McNamee, “When Memory Lies: Bernardin Case Heightens Debate Over Repression,” Chicago Sun Times, Mar. 6, 1994) at p. 1 [quoting Portland State University psychologist Janice Haaken]) or “metaphorical truth” (BPS Report, supra, at p. 389) rather than actual truth. For example, “imagery of rape might represent experiences with a father who was intrusive but not literally sexual.” (BPS Report, supra, at p. 389.) A person might manufacture memories of abuse to screen for less tolerable, painful experiences. (Loftus, The Reality of Repressed Memories, 48 American Psychologist 518, 521 (May 1993) [hereinafter “Reality”].) She might unconsciously distort her memories when something bad happens and falsely believe that someone she dislikes is responsible. (Franklin v. Duncan (N.D. Ca. 1995) 884 F. Supp. 1435, 1441, affirmed, (9th Cir. 1995) 70 F.3d 75 [summarizing testimony of defense expert Dr. David Spiegel, a psychiatry professor at Stanford University.].) There may even be neurological bases for false memories. (Kandel & Kandel, “Flights of Memory: Biology of Recovered Memory,” Discover, 38 (May 1994).)

False memories can also be derived from external sources, such as television, books, movies, and the accounts of others. (See Ganaway, George K., Historical Versus Narrative Truth: Clarifying the Role of Exogenous Trauma in the Etiology of MPD and Its Variants, 2 Dissociation 205-220 (1989); Reality, supra, at p. 525.) Further, certain therapeutic techniques or suggestive questioning by adults or other authority figures can be the sources of false “recovered” memories of sexual abuse. (See State v. Hungerford & Morahan, supra, 697 A.2d at p. 923 [and other authorities cited therein]; Reality, supra, at p. 525 [inauthentic memories can be externally derived as a result of implantation or suggestion by “perceived authority figure with whom the client desires a special relationship, interest, or approval”].)

Critics of recovered memory theory contend that a repressed memory is more prone to distorting influences than ordinary memories because years have usually passed by the time it surfaces and it has not been consciously rehearsed in the way that ordinary or non-repressed memories usually are. (Sleeping Memories, supra, at pp. 157-158.) Also unlike ordinary memory, the longer a “repressed” memory has been kept out of awareness, the more likely it is to combine fact and fantasy and the more difficult it is to distinguish a true memory from a false one. (MacLean, Once Upon a Time: A True Story of Memory, Murder, and the Law, 13-16 (1993) [hereinafter “Memory, Murder and the Law”] [quoting Dr. David Spiegel’s expert testimony from Franklin v. Duncan, supra, 884 F. Supp. 1435].)

Finally, the holder often emphatically believes in the truth of her “pseudomemory.” (“Reality,” supra, at pp. 523-525.) Thus, “there is little if any relationship between the confidence of a person in her recollection of a particular even and the accuracy of that recollection.” (Franklin v. Duncan, supra, 884 F. Supp. at p. 1441 [summarizing Dr. Loftus’s trial testimony].) Further, “repeated retellings” of a false memory can cause the person to become increasingly confident that the memory is true. (Ibid..) Such “memory hardening” is a particular concern because it thwarts effective cross-examination. (See Rock v. Arkansas (1987) 483 U.S. 44, 60.)

Based upon all of the foregoing, “[s]cientists are in agreement that the accuracy of recovered memory cannot be determined without corroborating evidence. Without corroborating evidence, the testimony is too unreliable to be admitted.” (Scientific Consensus, supra, at p. 320.) “The AMA considers recovered memories of childhood sexual abuse to be of uncertain authenticity, which should be subject to external verification.” (AMA Report, supra, at p. 8.) The American Psychiatric Association has concluded that without corroborating evidence, “it is not known how to distinguish, with complete accuracy, memories based on true events from those derived from other sources.” (American Psychiatric Assn., “Fact Sheet: Memories of Sexual Abuse” (April 1994) [hereinafter “A. Psych.A. Fact Sheet”].) The Australian Psychological Society has concluded that “’memories’ that are reported either spontaneously or following the use of special procedures in therapy may be accurate, inaccurate, fabricated, or a mixture of these. . . . The available scientific and clinical evidence does not allow accurate, inaccurate, and fabricated memories to be distinguished in the absence of corroborating evidence.” (Australian Psychol. Soc’y, Guidelines Relating to the Reporting of Recovered Memories, 3-5 (1994) [hereinafter “APS Guidelines”].) The Canadian Psychiatric Association has concluded that while “[r]eports or recovered memory of sexual abuse may be true, [] great caution should be exercised before acceptance in the absence of solid corroboration.” (Canadian Psychiatric Assn., Adult Recovered Memories of Childhood Sexual Abuse, 41 Canadian J. Psychiatry 305, 306 (1996) [hereinafter “CPS Report”]; see also APA Report, supra, at pp. 1-2 [group charged with preparing report agreed it is difficult to distinguish real memory from pseudomemory absent external corroborating evidence but subgroups disagreed as to the degree of difficulty]; S.V. v. R.V., supra, 933 S.W.2d at pp. 17-18 [noting that scientific community has not reached consensus on how to gauge truth or falsity of “recovered” memories].)

Given the inherent unreliability of “recovered memories,” courts in other jurisdictions have held that such memories are inadmissible in the absence of corroboration or other compelling indicia of the reliability of the particular memory at issue. (State v. Hungerford & Morahan, supra, 697 A.2d at pp. 925-928, 930 [due to deep divide in scientific community, must be compelling indicia of reliability of particular memory offered in order to admit its contents]; State v. Walters (1997 N.H. Sup.) 698 A.2d 1244, 1246-1247 [same]; see also People v. Murphy (NY App. Div. 1997) 235 A.D.2d 933, 934 [due to its unreliability, testimony based on spontaneously recovered memory is inadmissible absent independent corroboration] [Footnote 5].)

State v. Hungerford & Morahan, supra, is particularly instructive in this regard. In the consolidated cases, the complaining witnesses both claimed to have recovered long-forgotten memories of sexual abuse in therapy. (State v. Hungerford and Morahan, supra, 697 A.2d at pp. 917-919.) One of the witnesses claimed that she had forgotten the abuse for about a year and a half. The other claimed that she had forgotten the abuse for about three years. (Ibid.) The defendants objected to admission of their testimony based upon the inherent unreliability of “recovered” memories. (Id. at p. 919.) Following a hearing, the trial court excluded the testimony because the state had failed to demonstrate that the phenomenon of recovered memory is reliable. (Id. at p. 920.)

The New Hampshire Supreme Court affirmed, holding that because recovered memories are unlike ordinary memories, testimony based thereon must pass a threshold reliability determination as a prerequisite to admission. (State v. Hungerford & Morahan, supra, 697 A.2d at pp. 921-925.) The proponent must prove that the “recovered memory” is reliable to the extent that it is “reasonably likely to be as accurate as ordinary memory.” (Id. at pp. 924-925.) Following an extensive review of the scientific literature on the subject, the Court observed that according to recovered memory theory, “recovery” of a completely forgotten, or “repressed,” memory of sexual abuse, involves a “physiological process unlike ordinary memory.” (Id. at p. 922.) In this regard, there is “vigorous debate on the questions of how the process of repression works, how the process of retrieval occurs, and indeed if in fact retrieval is possible at all. [Citations.]” (Ibid.) “A central and divisive question in this debate is whether the person’s memory of an event can be accurate or authentic or ‘true,’ having been long lost in the person’s subconscious mind and subsequently remembered, either spontaneously or by some method seeking to recover the memory. [Citations.]” (Id. at p. 921.) While noting that it was “especially concerned with the influence of therapy on the recovery of memory,” the Court recognized that the “psychological community remains deeply divided on the reliability or accuracy of recovered memories,” whether recovered spontaneously or through a process like therapy. (Id. at pp. 921, 923, 929-930.) “A degree of scientific divergence of opinion is indeed inevitable, but the degree of divergence surrounding (recovery of repressed memories) is fundamental and goes to the very validity of the process itself. This kind and degree of divergence is notably absent in other areas of scientific evidence generally deemed admissible. [Citation.]” (Id. at pp. 927-928.) The Court concluded that the “divisive state of the scientific debate on the issue” is such that evidence regarding the particular memory at issue must be particularly compelling in order to overcome it. (Id. at pp. 929-930.) In that case, the Court held that the particular memories at issue did not bear sufficient indicia of reliability to overcome the deep divide in the scientific community and affirmed the exclusion of the complaining witnesses’ testimony based thereon. (Ibid.; accord State v. Walters, supra, 698 A.2d at p. 1248.) [Footnote 6]

The foregoing clearly illustrates that “scientists significant in number” oppose the validity of the theory that recovered memories repressed memories that are subsequently recovered either spontaneously or through some special process can be relied upon to be as accurate as ordinary memories in the absence of corroboration. (See People v. Shirley, supra, 31 Cal.3d at p. 56.) Consequently, any evidence derived from such memories fails to meet the first, general acceptance prong of Kelly.

b. People v. Kelly applies to evidence based upon or derived from “recovered” repressed memories.

Despite the deep divide in the scientific community regarding the reliability of recovered repressed memories, appellant recognizes that one California court has held that the Kelly test is inapplicable to recovered memory evidence absent evidence that the memories were induced by hypnotism or drugs. (Wilson v. Phillips (1999) 73 Cal.App.4th 250, 255.) The Court of Appeal for the Fourth Appellate District, Division Three reasoned that absent such evidence – i.e., “where the [complainants] recalled [the] molestation on their own accord” – “the danger of perceived infallibility associated with a scientific process [is] not present.” (Id. at p. 208.) Consequently, the Court concluded that Kelly is inapplicable. (Ibid.)

This Court should decline to follow Wilson. Because the theory that recovered repressed memories are reliable is a novel scientific one that has not been generally accepted within the scientific community even if the memories are not retrieved through hypnotism or drugs, Kelly applies to any evidence, or memories, derived from that theory.

As a preliminary matter, the Supreme Court has recognized that the manner in which other jurisdictions approach certain kinds of evidence is significant in determining whether Kelly applies. (People v. Leahy, supra, 8 Cal.4th at pp. 605-606 [emphasizing that other jurisdictions treated evidence as scientific and was “repeatedly challenged in court, with varying degrees of success, in this and other states” before concluding Kelly applied].) In this regard, evidence derived from the theory that repressed memories of sexual abuse can be accurately recovered is elsewhere recognized as derived from a novel scientific theory that must pass certain threshold determinations of reliability before it can be admitted even where the memories are not retrieved through hypnotism or drugs. (See State v. Hungerford & Morahan, supra, at pp. 122-134 [pretrial reliability determination, including preliminary Daubert inquiry, applied to complaining witness’s testimony based upon recovered memory]; State v. Walters (1997 N.H. Supreme Court) 142 N.H. 239 [same]; Rhode Island v. Quattrocchi, supra, 681 A.2d [pretrial reliability hearing under Daubert or Frye applied to recovered memory evidence]; Isely v. Capuchin Province, supra, 877 F. Supp. at p. 1057 [Daubert standard applied to expert’s testimony on concept of repressed memory]; Shahzade v. Gregory, supra, 923 F. Supp. at p. 288-290 [same]; see also The Repressed Memory Phenomenon, supra, at p. 82 [concluding, following review of scientific community’s treatment of recovered memories and legal authorities, that “the court must treat evidence of recalled repressed memory in the same manner as any other novel scientific theory”]; S.V. v. R.V., supra, 933 S.W.2d at p. 2o [recovered memory evidence could not meet objective verifiability element of Texas discovery rule due to lack of consensus in scientific community concerning reliability of recovered memory].)

Further, Wilson’s premise that Kelly only applies where there is a danger that the jury will “perceive[] infallibility associated with a scientific process” is simply incorrect. The Kelly decision itself noted that the danger of the jury’s perceived infallibility of the science was only one of “several reasons found in logic and common sense to support a posture of judicial caution in this area.” (Kelly, supra, 17 Cal.3d at pp. 31-32.) Kelly is equally concerned with the reliability of evidence, particularly where, as here, a defendant’s life or liberty is at stake. (People v. Kelly, supra, 17 Cal.3d at p. 32; People v. Law (1974) 40 Cal.App.3d 69, 85.) In this regard, and as fully explained in part a, above, the scientific community is bitterly divided over the reliability of recovered repressed memories themselves, even if they are not – as in this case – recovered through some special technique such as hypnotism or drugs.

If the rule were as the Wilson Court suggests, then it would follow that Kelly would only apply where the proponent offers evidence going to the science itself – i.e., where the scientific evidence would dazzle the jury. In other words, a witness whose memory was induced by hypnosis or drugs could testify to her memories so long as no evidence is admitted regarding the means by which she remembered. Under these circumstances, there would be no “danger of perceived infallibility associated with a scientific process.” However, Kelly is wider ranging than the Wilson decision suggests. This point is perhaps best illustrated by People v. Shirley, supra, 31 Cal.3d 18.

In Shirley, the prosecution offered the testimony of the complaining witness, who had “retrieved” through hypnosis forgotten details of the charged crimes. (People v. Shirley, supra, 31 Cal.3d at p. 30.) The defendant objected to this testimony on the ground that it was unreliable. (Ibid.) The trial court overruled the objection and admitted the evidence. (Ibid.) The Supreme Court reversed, holding that not only the evidence of hypnosis, but also the facts remembered, was inadmissible because it failed to meet the general acceptance prong of Kelly. (Id. at pp. 66-67.)

The Attorney General argued that Kelly does not apply to the testimony of a witness who actually perceived the events that are the subject of the litigation. (People v. Shirley, supra, 31 Cal.3d at p. 51.) While hypnosis does not guarantee accurate or truthful recall, no memory carries such a guarantee. Thus, the Attorney General continued, “[t]hat guarantee, as with all witnesses, comes from cross-examination, which permits the trier of fact to determine the truth and accuracy of the hypnotically refreshed testimony.” (Ibid.)

The Supreme Court rejected this argument. First, the Court held that Kelly is not limited to testimony regarding the scientific technique or theory, such as from an expert, but applies to any evidence “based upon” or “derived from” a novel scientific technique or theory, including the testimony of a witness to the events that are the subject of the litigation. (People v. Shirley, supra, 31 Cal.3d at p. 53.) “If the testimony is thus only as reliable as the hypnotic process itself, it must be judged by the same standards of admissibility.” (Ibid.)

Based upon an extensive review of the literature and cases from other jurisdictions, the Court concluded that there was no general acceptance for the proposition that hypnotically induced memories are like ordinary memories. (People v. Shirley, supra, 31 Cal.3d at p. 53.) According to the literature, ordinary memory is to some extent unreliable because it is susceptible to distorting influences. (Id. at pp. 57-63.) Also according to the literature, the phenomena that contributes to the unreliability of ordinary memory “reappears in more extreme form when the witness is hypnotized for the purpose of improving his recollection.” (Id. at p. 63.) According to its many critics, hypnosis contributes to the formation of “pseudomemories, to the witness’ abiding belief in their veracity, and to the inability of the witness (or anyone else) to distinguish between the two.” (Id. at p. 53 and pp. 63-68.) For these reasons, “traditional legal techniques such as cross-examination may be largely ineffective to expose” the memory’s unreliability. (Id. at p. 66.) Thus, because hypnotically induced memories are not like ordinary memories, and because the reliability of such memories is not generally accepted within the scientific community, Kelly both applied and required exclusion of the witness’s testimony derived from those memories. (Id. at pp. 53, 66-68; see also Ramona v. Superior Court, supra, 57 Cal.App.4th at pp. 121-122 [where witness’s memories recovered with sodium amytal, any testimony based upon (or tainted by) those memories must be excluded, regardless of whether the jury ever hears about the method by which the memories were induced].)

This case is analytically identical to Shirley. Contrary to the Wilson court’s reasoning, Shirley makes clear that the Kelly test is concerned not only with the jury’s perception of dazzling scientific evidence, but also with the reliability of any evidence based upon a novel scientific theory, such as the theory that recovered repressed memories are reliable representations of the truth. If a witness’s testimony regarding the subject matter of the litigation is derived from such a theory or technique, the proponent must establish the reliability of that theory under Kelly regardless of whether the underlying science is ever introduced to dazzle the jury. (People v. Shirley, supra, 31 Cal.3d at p. 53.)

Like hypnotically induced memories, there is no general consensus within the scientific community to support the novel theory that recovered repressed memories are as reliable as ordinary memories. (See, e.g., State v. Hungerford & Morahan, supra, at pp. 921, 923-925, 927-928, 930 [concluding from overview of literature that there is a lack of general acceptance within scientific community that recovered memories are as accurate as ordinary memories; hence, there must be compelling indicia of reliability of particular memory at issue before testimony based upon it may be admitted]; Scientific Consensus, supra, at pp. 282, 319.) Like hypnotically induced memories, recovered repressed memories are more prone to distorting influences, both internal and external, than ordinary memories. (Sleeping Memories, supra, at pp. 157-158; Memory, Murder, and the Law, supra, 13-16.) Like hypnotically induced memories, recovered repressed memories of sexual abuse are more likely to be false than ordinary memories. (See APA Report, supra, at p. 1; 6; “When Memory Lies,” supra; Reality, supra, at p. 51; Franklin v. Duncan, supra, 884 F. Supp. at p. 1441; Murder, Memory, and the Law, supra, at pp. 13-16.].) These memories are unreliable absent corroborating evidence regardless of whether they are recovered spontaneously or through some special process, like hypnotism, drugs. (See, e.g., Aust. P.S. Guidelines, supra, at pp. 3-5; State v. Hungerford & Morahan, supra, 697 A.2d at pp. 921, 929, 930 [and authorities cited therein]; State v. Walters, supra, 698 A.2d at p. 1248; People v. Murphy, supra, 235 A.D.2d at p. 934.)

Like hypnotically induced memories, there is no reliable way for the scientist or even the holder of the memory to determine whether a recovered memory is true or not without corroborating evidence. (Scientific Consensus, supra, at p. 320; AMA Report, supra, at p. 8; APS Guidelines, supra, at pp. 3-5; CPA. Report, supra, at pp. 305-306; Murder, Memory, and the Law, supra, at pp. 13-16.) Like hypnotically induced memories, the holder of a false recovered memory is often utterly convinced in its truth. (Reality, supra, at pp. 523-525; Franklin v. Duncan, supra, 884 F. Supp. at p. 1441.) Like hypnotically induced memories, cross-examination is therefore largely ineffective to expose the unreliability of recovered repressed memories. Thus, like a complaining witness’s testimony “based upon” or “derived from” hypnotically induced memories, a complaining witness’s testimony based upon or derived from a recovered repressed memory must pass the first prong of Kelly before it can be admitted.

This is not to say that the use of hypnotism or drugs to recover a memory is irrelevant. Rather, if testimony is derived from a recovered repressed memory, the proponent simply must carry the burden of showing general acceptance of the theory that such memories are generally accepted as being reliable. If the proponent can satisfy this first prong of Kelly, then the manner in which the memory was retrieved, such as the use of hypnosis or sodium amytal, becomes the focus under the third prong of Kelly. (People v. Kelly, supra, 17 Cal.3d at p. 30.) In other words, if it becomes generally accepted within the scientific community that such memories are as reliable as ordinary memories if the correct procedures are followed, the first prong of Kelly is satisfied and the procedure used must then pass the third prong of Kelly. (See B.P.S. Report at pp. 380-382.) However, as demonstrated above, “scientists significant in number” oppose the basic proposition that any recovered repressed memories are as reliable as ordinary memories. (People v. Shirley, supra, 31 Cal.3d at p. 56.)

For all of these reasons, Kelly applies to testimony derived from “recovered” repressed memories regardless of the vehicle by which they were retrieved. Under Kelly, and in the absence of any evidence to corroborate **’s memories in this case, it is quite clear from the literature that the state could not have carried its burden as to the first, general acceptance prong and **’s testimony would have been excluded in its entirety had counsel made the appropriate objection. Thus, counsel’s failure to move to exclude her testimony under Kelly fell far below an objective standard of reasonably competent assistance. (See In re Jones (1996) 13 Cal.4th 552, 581-582 [counsel’s failure to move to exclude questionably admissible evidence incompetent].)

3. Alternatively, counsel’s failure to move to exclude **’s testimony under Evidence Code sections 350 and 352 fell below an objective standard of reasonably competent assistance.

Assuming that Kelly does not apply to evidence derived from a recovered memory, then reasonably competent counsel would nevertheless have moved to exclude it under Evidence Code sections 350 and 352 prior to trial. Evidence Code section 350 provides that “no evidence is admissible except relevant evidence.” The relevance of evidence depends upon its reliability. (People v. Harris (1989) 47 Cal.3d 1047, 1094.) Section 350 is, in turn, incorporated in Evidence Code section 352, which provides:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Under the plain meaning of section 352, if evidence is unreliable or of minimal reliability, it has no or minimal “probative value” and at the same time creates a substantial danger of “misleading the jury” and may be excluded. Thus, as set forth below, if Kelly does not apply to recovered memory evidence, reasonably competent counsel would alternatively have moved to exclude **’s testimony under Evidence Code section 352.

Under section 352, the lack of general acceptance within the scientific community regarding the reliability of recovered memories would be an important consideration in resolving the reliability of **’s particular memories, but not necessarily determinative. A number of factors would be relevant to the court’s exercise of discretion to exclude or admit the evidence.

Once again, State v. Hungerford & Morahan, supra, is instructive in this regard. In Hungerford, the New Hampshire Supreme Court held that before the contents of a recovered memory may be admitted, the trial court must make a pretrial determination as to its reliability. (State v. Hungerford & Morahan, supra, 697 A.2d at pp. 925.) This determination turns on a consideration of eight factors. The first four factors focus on the reliability of recovered memory theory itself: 1) the level of peer review and publication of the phenomenon of repression and recovery of memories; 2) whether the phenomenon has been generally accepted in the psychological community; 3) whether the phenomenon may be and has been empirically tested; and 4) the potential or known rate of recovered memories that are false. (Ibid.) The last four questions focus on the reliability, based upon the scientific literature, of the particular memories themselves: 5) the age of the witness at the time the events occurred (the younger the less reliable the memory); 6) the length of time between the event and recovery (the longer the less reliable); 7) the presence or absence of corroboration of the event; and 8) the circumstances attendant to recovery, such as therapy. (Ibid.) If the memory was recovered through some process, like therapy, then further inquiry into the reliability of that process is appropriate. (Ibid.)

Applying the framework in that case, the Court correctly noted with respect to the first factor that the recovered memory phenomenon “has received extensive attention in psychological publications.” (State v. Hungerford, supra, 687 A.2d at p. 925.) At the same time, while the level of submission to peer review is high, the “debate over the methodology and the meaning of results continues. [Citation.]” (Ibid.) With respect to the second factor, the Court concluded that there is no general acceptance within the scientific community that such memories are reliable. (Id. at pp. 925-927.) As to the third factor, the court concluded that “although empirical testing is difficult . . . it is possible.” (Id. at p. 928.) As to the fourth factor, the Court observed that while false memories occur, it is impossible to track or estimate their number. (Id. at p. 928.)

Turning to the witnesses’ particular memories, the Court observed with respect to the fifth and sixth factors that the witnesses’ ages at the time of the events (22 and 13 years old), and the length of time between the events and the recovery (about one and a half years and three years), bore favorably on the reliability of their memories. (New Hampshire v. Hungerford, supra, 697 A.2d at p. 929; compare State v. Walters, supra, 698 A.2d at p. 1248 [based on scientific literature, fact that witness was eight or nine when events occurred “weighs somewhat against the reliability of the memory”].) As to the seventh factor, the Court accepted the trial court’s determination that there was no corroboration, which weighed against the reliability of their memories. (Ibid.) With respect to the eighth factor, the Court acknowledged that the witnesses’ memories were recovered during therapy, and therefore it would normally examine the circumstances of the therapeutic environment. (Id. at pp. 929-930.) However, the Court held that “our review of the memories without regard to the suggestiveness of the therapeutic processes, [] convinces us that they do not pass our test of reliability. . . . The indicia of reliability present in the particular memories in these cases do not rise to such a level that they overcome the divisive state of the scientific debate on the issue.” (Id. at p. 930; see also State v. Walters, supra, 698 A.2d at pp. 1247-1248 [accepting that witness’s memories were not product of therapy, indicia of reliability still did not overcome divisive state of scientific debate].) Thus, the Court held that exclusion of the witnesses’ testimony was required. (State v. Hungerford & Morahan, supra, at p. 930.)

All of the factors identified by the Hungerford Court would certainly be relevant to resolving the probative value of **’s testimony based upon her recovered memories under Evidence Code section 352. The Hungerford Court’s analysis of the first four factors regarding the reliability of the phenomenon itself applies equally here.

Turning to the factors relating to **’s particular memories, she claimed that the incidents began when she was about six years old and ceased in 1994 or early 1995, when she would have been about nine years old. (CT 337, 343-344, 351; RT 51-52, 59, 99, 137.) **’s youth at the time weighed somewhat against the reliability of her memories. (State v. Walters, supra, 698 A.2d at p. 1247.) Turning to the second factor, ** testified that she had no memory of the incidents for two years, until the summer of 1996 (so the last incident must have occurred in 1994). (CT 90-91.) The relatively short length of time between the last event and the recovery of her memories weighed in favor of the reliability of her memories. (State v. Hungerford & Morahan, supra, 697 A.2d at p. 929.) Turning to the third factor, the absence of any corroborating evidence weighed against the reliability of her memories. (Ibid.) Turning to the final factor – the method by which ** recovered her memories – there are in fact two different periods of “recovery” that are relevant to this issue.

**’s first memories were limited to conduct that allegedly occurred in Idaho. When she shared the first memories of the molestation in her diary, with Ms. Y, with her sister, and with her mother, she alleged only that appellant had molested her in Idaho. (CT 21, 118, 153-155, 157-158, 160, 171, 337, 343-344, 351.) There is no evidence as to how **’s first memories were triggered. In fact, she testified that she did not know how she first remembered the molestation in the summer of 1996. (CT 91-92.) The absence of any clear evidence that ** was subjected to the suggestive influences of adults or other authority figures does tend to weigh in favor of the reliability of those memories. At the same time, however, ** testified that she had seen “lots of things” about molestation on television and in books and that she had heard people talk about it. (CT 102.) She did have a television in her bedroom, which she was permitted to watch unsupervised. (RT 37-39.) These were potential sources for false memories, thus lessening to some extent the reliability of the Idaho memories. In any event, the critical memories here are those of the California conduct – the conduct for which appellant was tried and now stands convicted.

The question, then, is how ** “recovered” her memories of the incidents for which appellant was tried. The answer is more than a little troubling.

As set forth in Argument I-A-2, the literature clearly shows that the reliability of a “recovered” memory is particularly suspect when it follows suggestive questioning by an adult or authority figure. (See Scientific Consensus, supra, at p. 295; Reality, supra, at p. 525.) In addition, because a recovered memory, according to theory, “leaps back into consciousness rather than it being a kind of process of accretion,” the details of a true memory are unlikely to change. (Murder, Memory, and the Law, supra, at p. 390.)

Here, **’s mother, Mrs. O, went to California authorities with **’s first memories of the alleged Idaho abuse. (CT 153-154, 157-158, 160, 351.) She acknowledged that she “wasn’t real happy” when police advised her that they did not have jurisdiction to prosecute appellant here. (CT 151, 157-158; see also CT 171.) ** admitted that her mother told her that appellant must have molested her here in order for California to prosecute. (CT 119.) ** admitted that it was only then that she first alleged that appellant also molested her here. (CT 119.) [Footnote 7] The first evidence that she reported the California conduct to police was on September 24, 1996, over three months after she made her first allegation in her diary. (CT 150-151.) Thus, the California memories did not arise until after **’s mother suggested the need for them, which weighed heavily against their reliability. Further, **’s failure to remember the California incidents when her memories first returned was inconsistent with the California memories being “true” recovered memories.

Another troubling question about the reliability of **’s memories relates to her inconsistent accounts of the details. In her diary – the very first allegation she made about the molestation — ** wrote that appellant “didn’t stick it [his penis] in or anything.” (CT 343.) Following this allegation and beginning in August 1996, ** talked with “lots of people” about her allegations, including her mother and the police. (CT 54-56, 116, 118, 143, 150, 153-155.) Then, according to both Nurse Cathy Boyle and **, ** described an act of penile penetration during the October 2, 1996 medical examination. (RT 174; CT 96-97.) The medical examination results did not corroborate that penetration had occurred. (RT 188.) ** admitted that her mother told her about the examination results. (RT 96.) However, she denied that her mother told her about the results before she inexplicably “realized” that appellant had never actually penetrated her. (CT 37, 96-97.) [Footnote 8]

Further, when Nurse Boyle asked ** if anything had come out of appellant’s penis, ** replied that she did not know. (RT 163-164.) However, at the preliminary hearing held approximately four months later, and following several interviews with the police, the prosecutor, a therapist, and other authority figures, ** testified that a “liquid” came out of appellant’s penis. (CT 36.) While ** claimed that she had told Detective Layfield that she had seen “something” come out of appellant’s penis, Layfield did not corroborate her claim when he testified to the details she provided about the incidents. (CT 97-98, 143.) Finally, ** evidently recanted this claim by the time of trial because it was omitted from her trial testimony. From all of the foregoing, it is clear that **’s “memories” changed substantially following the “recovery” of her first memory and discussions with her mother and other authority figures.

Thus, the deep divide in the scientific community over the reliability of recovered memory theory weighed heavily against the reliability of the memories in this case. **’s youth at the time the alleged events occurred weighed against the reliability of her memories. The absence of any corroborating evidence weighed against the reliability of her memories. The suggestive influence of her mother before she remembered the conduct in California and the inconsistencies in her accounts weighed against the reliability of those memories. While the relatively short length of time (two years) between the last alleged incident and her first memories weighed in favor of their reliability, that single factor simply does not overcome the overwhelming indicia that **’s memories of the California conduct were unreliable. (See State v. Walters, supra, 698 A.2d at pp. 1247-1248; State v. Hungerford & Morahan, supra, 697 A.2d at 930.) Under these circumstances, it would have been an abuse of discretion for the trial court to admit the contents of those memories under Evidence Code section 352 over counsel’s objection. Thus, counsel’s failure to make such an objection fell well below an objective standard of reasonableness. (Strickland v. Washington, supra, 466 U.S. at p. 693.)

4. Counsel’s failure to present expert testimony undermining the veracity of **’s “recovered” memories fell below an objective standard of reasonably competent assistance.

Finally, even if exclusion of **’s testimony were not mandated under Kelly or Evidence Code section 352, reasonably competent counsel would nevertheless have presented evidence to challenge the veracity of **’s testimony based upon her “recovered” memories. Specifically, counsel should have presented **’s unequivocal preliminary hearing testimony, as well as her mother’s statement from the first police report, that she had no memory at all of the molestation until the summer of 1996. (CT 90-92, 133, 351; see Reality, supra, at pp. 518, 522-523 [reporting juror simulation study in which more subjects were skeptical about repressed memory claim that ordinary memory claim].) [Footnote 9] Counsel should further have presented the evidence that **’s memory of the charged incidents in California arose only after: 1) she made several allegations that excluded any conduct in California; and 2) her mother told her that appellant had to have molested her here in order for California authorities to prosecute. [Footnote 10] Finally, and most significantly, counsel should have called an expert to testify to the factors rendering recovered memories particularly suspect, as set forth in Arguments I-A-2 and I-A-3, above.

In this regard, Evidence Code section 801 provides that a duly qualified expert may give testimony in the form of an opinion if the subject matter of the testimony “is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” Recovered memory evidence is most certainly beyond the average ken of lay jurors. (State v. Hungerford & Morahan, supra, 697 A.2d at pp. 120-121; Barrett v. Hyldburg (N.C. App. Ct. 1997) 487 S.E.2d 803, 806-807; Shahzade v. Gregory, supra, 923 F. Supp. at p. 287; see also People v. McDonald (1984) 37 Cal.3d 351, 369, 377, 376 [psychological factors affecting eyewitness identification sufficiently beyond common experience that expert testimony would assist the trier of fact].) Indeed, for this reason, some jurisdictions require the proponent of a witness’s testimony based upon recovered memories to present expert testimony to explain the phenomenon to the jury. (See State v. Hungerford & Morahan, supra, at pp. 120-121; Barrett v. Hyldburg, supra, 487 S.E.2d at pp. 806-807 [even if witness does not use the term “repression,” but simply testifies that she “suddenly remembered” molestation, testimony inadmissible without expert to explain repression/recovery phenomenon to the jury].) While the decision to admit expert testimony is normally within the discretion of the trial court, it must be admitted when offered by a criminal defendant and the subject matter to which it relates constitutes “the key element of the prosecution’s case but is not corroborated by evidence giving it independent reliability.” (People v. McDonald, supra, 37 Cal.3d at p. 377.)

Of course, **’s “recovered” memories of the molestation constituted “the key element of the prosecution’s case” and were “not corroborated by evidence giving [them] independent reliability.” (People v. McDonald, supra, 37 Cal.3d at p. 377.) Consequently, appellant would have been entitled to present the testimony of a qualified expert on recovered memories had his counsel offered it. (Ibid.)

As fully set forth in the preceding arguments, there were deeply troubling questions about the truth or accuracy of **’s “recovered” memories of the alleged abuse. An expert could have testified not only that “recovered” memories are, as a general matter, unreliable (see Argument I-A-2, above), but also that “recovered” memories similar to those in this case are considered to be particularly unreliable (see Argument I-A-3, above). An expert could have testified that even if ** appeared to be convinced in the truth of her memories and therefore credible, “there is little if any relationship between the confidence of a person in her recollection of a particular even and the accuracy of that recollection.” (Franklin v. Duncan, supra, 884 F. Supp. at p. 1441.) Such testimony was particularly critical here, given that the jury’s determination of appellant’s guilt rested entirely on its assessment of **’s credibility.

An expert could also have testified that it is very rare for a person to completely forget a series of incidents of sexual molestation, particularly where they are not traumatic, or not accompanied by threats, force, or pain. (CT 359; see also APA Report, supra, at pp. 113-114.) Such evidence would have been important for a number of reasons. The jury could have concluded from it that **’s “memories” were false even though she believed them to be true. At the same time, the jury could have concluded that ** had deliberately lied about not remembering and therefore questioned why she had not reported the abuse for such a long period of time if it had actually occurred.

Finally, the state’s introduction of expert testimony regarding Child Sexual Abuse Accommodation Syndrome made it all the more important for counsel to present her own expert. The CSAAS evidence was admitted to bolster the credibility of **’s delayed claims of sexual abuse. (RT 218, 220; see People v. Bowker (1988) 203 Cal.App.3d 385, 393-394 [CSAAS evidence admissible to rehabilitate witness’s credibility as proof that certain post-incident conduct is not inconsistent with having been molested].) Specifically, the state’s expert, Dr. Urquiza, testified that a delay in reporting and conflicting accounts may be due to the “accommodation” of sexual abuse and therefore are not inconsistent with the truth of a sexual abuse allegation. (RT 218, 220.) In other words, the delay in reporting and inconsistent accounts were not suspicious because those elements are typical of child sexual abuse. An expert on recovered repressed memory would have seriously undermined this component of the state’s case.

**’s unequivocal testimony from the preliminary hearing would have clarified that her failure to report for two years was not due to any sexual abuse “accommodation,” but rather due to the fact that she had completely forgotten, or “repressed” the incidents. An expert would have explained that such recovered repressed memories should be viewed with great skepticism. An expert would have explained that conflicting accounts regarding the details of abuse are, in fact, inconsistent with a “true” recovered memory of sexual abuse. (Murder, Memory, and the Law, supra, at p. 390.)

In short, **’s preliminary hearing testimony regarding the repression and subsequent recovery of her memories and the testimony of an expert that regarding the unreliability of such claims were critical in this closely balanced credibility contest. Counsel’s failure to present this evidence and testimony fell below an objective standard of reasonably competent assistance. (Strickland v. Washington, supra, 466 U.S. at p. 693.)

EXCERPT FROM APPELLANT’S REPLY BRIEF

A. Counsel’s Failure To Move To Exclude Or Otherwise Challenge The Reliability Of The Only Evidence Against Appellant, **’s “Recovered” Memories, Fell Below An Objective Standard Of Reasonably Competent Assistance.

The evidence adduced at the preliminary hearing unequivocally established that the only evidence against appellant was ** P.’s uncorroborated, inconsistent “memories” of sexual abuse, which were entirely “forgotten” before they were “recovered” in the summer of 1996. (AOB at p. 17; CT 90-92, 113.) Initially, **’s “memories” were limited to conduct that had allegedly occurred in Idaho when she was six years old. (AOB at p. 17; CT 21, 118.) It was only after her “unhappy” mother explained to her that appellant must have molested her here in order for California authorities to prosecute that ** “remembered” appellant had also molested her here. (AOB at p. 18; CT 119, 150, 157-158.)

Despite the deep divide in the scientific community over the reliability of such memories in general – and indeed despite the troubling questions about the reliability of **’s memories in particular – counsel did not mount any challenge whatsoever to **’s “memories.” (AOB at pp. 20-51.) Counsel failed to conduct reasonable investigation into the reliability of “recovered” memory theory. (AOB at pp. 51-53.) Counsel failed to move to exclude **’s testimony derived from her “recovered” memories under People v. Kelly (1976) 17 Cal.3d 24, 31 and/or Evidence Code sections 350 and 352. (AOB at pp. 22-47.) Counsel failed to present or develop the evidence casting doubt on **’s memories. (AOB at pp. 47-51.) Counsel failed to present an expert to testify to the jury about the inherent unreliability of such memories and to rebut the state’s theory that **’s delay in reporting the abuse and her inconsistent accounts of the abuse were typical of Child Sexual Abuse Accommodation Syndrome. (AOB at pp. 47-51.)

Respondent contends that counsel’s omissions were entirely reasonable. (RB at pp. 18-37.) Respondent is incorrect.

1. People v. Kelly applies to evidence derived from the novel scientific theory that “recovered” memories of sexual abuse are as reliable as ordinary memories.

As a preliminary matter, it is helpful to emphasize what is not in dispute. Respondent does not dispute that the only evidence against appellant was **’s uncorroborated “recovered” memories. (See RB at p. 18.) Respondent does not dispute that there is a deep and bitter divide in the scientific community over the reliability of uncorroborated, “recovered” memories of long forgotten sexual abuse, regardless of whether they are recovered “spontaneously” or through a special technique. (See AOB at pp. 23-32, 38; RB at pp. 23-29.) Respondent does not dispute that “recovered” memories may be “false memories,” derived from any number of internal or external influences. (See AOB at pp. 26-28; RB at pp. 23-29.) Respondent does not dispute that the majority of the scientific community shares the opinion that there is no reliable way for the scientist, the holder of the memory, or indeed a jury, to determine whether a recovered memory is true or not without corroborating evidence. (See AOB at pp. 29-33; RB at pp. 23-29.) Respondent does not dispute that because the holder of a false recovered memory is often utterly convinced in its truth, cross-examination is largely ineffective to expose the unreliability of the memory. (See AOB at pp. 28-33; RB at pp. 23-29.) Finally, respondent does not dispute that if People v. Kelly applied, uncorroborated “recovered” memories of long forgotten sexual abuse, like **’s, would be inadmissible. (See AOB at pp. 28-33.)

Despite the very real and obvious danger that the admission of such concededly unreliable evidence will lead to the convictions of innocent men and women, respondent nevertheless argues that it is admissible, that it can condemn someone without corroboration, because Kelly does not apply. (RB at pp. 24-29.) Respondent’s argument is without merit.

Specifically, respondent argues that People v. Kelly, supra, “only applies to expert testimony based upon the application of a new scientific technique.” (RB at p. 29.) Because ** was not an expert, and because her memories were not recovered through a new scientific “technique,” like hypnotism or drugs, Kelly was inapplicable to the evidence derived from her “recovered” memories. (RB at pp. 27-29.) Respondent is wrong.

As to respondent’s position that Kelly “only applies to expert testimony,” that position has been specifically rejected by the California Supreme Court in People v. Shirley (1982) 31 Cal.3d 18, 53. The Court in Shirley unequivocally held that Kelly applies to any evidence or testimony “based upon” or “derived from” a novel scientific technique or theory, including the testimony of a percipient or complaining witness. (Ibid.; accord Ramona v. Superior Court (1997) 57 Cal.App.4th 107, 121-122.) Respondent chooses simply to ignore this authority; ignoring it does not make it go away.

As to respondent’s position that Kelly only applies to evidence gleaned from a “new scientific technique,” and not novel theories, it is equally unsupported. (RB at p. 29.) With respect to respondent’s reliance on Wilson v. Phillips (1999) 73 Cal.App.4th 250, 255 in support of its proposition, appellant thoroughly explained why Wilson v. Phillips was wrongly decided in his Opening Brief. (AOB at pp. 33-40.) As respondent does not specifically address appellant’s position in this regard, but instead merely cites Wilson and contends without analysis that it was correctly decided, no further discussion of Wilson is necessary here. (RB at p. 29.)

The Supreme Court and appellate courts have consistently observed that Kelly applies to evidence “based upon” or “derived from” novel scientific “theories” as well as “techniques.” (See, e.g., People v. Stoll (1989) 49 Cal.3d 1136, 1156; People v. Kelly, supra, 17 Cal.3d at p. 34; People v. Shirley, supra, 31 Cal.3d at p. 57; People v. Bowker (1988) 203 Cal.App.3d 385, [Kelly applies to Child Sexual Abuse Accommodation Syndrome used to prove that a molestation occurred].) As fully set forth in the opening brief, the theory that recovered repressed memories are as reliable as ordinary memories is a novel one that has not gained general consensus within the scientific community. To the contrary, if there is any consensus at all, it is that such memories are unreliable absent corroborating evidence, regardless of whether they are recovered spontaneously or through some special “technique,” like hypnotism or drugs. (See AOB at pp. 23-32, 38.) [Footnote 11]

There simply is no principled way to distinguish evidence derived from a novel scientific “technique” from evidence derived from a novel scientific theory in applying Kelly, nor does respondent suggest one. Indeed, virtually every published case to address the admissibility of recovered memory evidence recognizes that “the court[s] must treat evidence of recalled repressed memory in the same manner as any other novel scientific theory.” (McAlister, The Repressed Memory Phenomenon: Are Recovered Memories Scientifically Valid Evidence Under Daubert?, 22 N.C. Cent. L.J. 56, 74-75 (1996), 82; State v. Hungerford & Morahan (1997 N.H. Sup. Court) 697 A.2d 916, 122-134 [pretrial reliability determination, including preliminary Daubert inquiry, applied to complaining witness’s testimony based upon recovered memory]; State v. Walters (1997 N.H. Supreme Court) 142 N.H. 239 [same]; Rhode Island v. Quattrocchi (R.I. Sup. Ct. 1996) 681 A.2d 879 [pretrial reliability hearing under Daubert or Frye applied to recovered memory evidence]; Isely v. Capuchin Province (E.D. Mich. 1995) 877 F. Supp. 1055 [Daubert standard applied to expert’s testimony on concept of repressed memory]; Shahzade v. Gregory (D. Mass 1996) 923 F. Supp. 286, 288-290 [same]; S.V. v. R.V. (1996 Tex. Sup. Court) 933 S.W.2d 1, 20 [recovered memory evidence could not meet objective verifiability element of Texas discovery rule due to lack of consensus in scientific community concerning reliability of recovered memory].) Most of these courts have held that such memories are insufficiently reliable to warrant admission in the absence of corroboration or other compelling indicia of the reliability. (State v. Hungerford & Morahan, supra, 697 A.2d at pp. 925-928, 930 [due to deep divide in scientific community, must be compelling indicia of reliability of particular memory offered in order to admit its contents]; State v. Walters, supra, 698 A.2d at pp. 1246-1247 [same]; see also People v. Murphy (NY App. Div. 1997) 235 A.D.2d 933, 934 [due to its unreliability, testimony based on spontaneously recovered memory is inadmissible absent independent corroboration].)

Respondent attempts to distinguish only one of those cases – State v. Hungerford & Morahan – on the ground that “the victim in that case,” unlike **, “testified that she recovered her memory of sexual abuse during therapy.” (RB at p. 28.) Respondent’s review of State v. Hungerford & Morahan evidently missed its holding. The New Hampshire Supreme Court clearly held that the “central and divisive question in this debate” of “whether the person’s memory of an event can be accurate or authentic or ‘true,’ having been long lost in the person’s subconscious mind and subsequently remembered, either spontaneously or by some method seeking to recover the memory” prohibited admission of the victim’s testimony “without regard to the suggestiveness of the therapeutic processes” by which the alleged victim recovered her particular memory. (State v. Hungerford & Morahan, supra, 697 A.2d at pp. 921, 930, emphasis supplied.) The same court held in a subsequent case that in light of the hotly debated reliability of recovered memory theory in general, admission of the victim’s recovered memories was prohibited even if they were recovered spontaneously rather than through therapy. (State v. Walters, supra, 698 A.2d at pp. 1247-1248.) [Footnote 12]

These cases recognize that if the scientific community is in such bitter disagreement over the reliability of uncorroborated “recovered” memories of sexual abuse – whether recovered spontaneously or otherwise – then such evidence is not sufficiently reliable to deprive a human being of his liberty. It is this very real danger of convicting innocent men on unreliable evidence, and not any artificial distinctions between scientific “techniques” versus scientific “theories” or “expert” testimony versus other evidence, with which Kelly was primarily concerned. (People v. Kelly, supra, 17 Cal.3d at p. 32; People v. Law (1974) 40 Cal.App.3d 69, 85; see also California v. Green (1970) 399 U.S. 149, 187, conc. opn. of Harlan, J. [due process does not permit conviction on “unreliable and untrustworthy” evidence].) Indeed, it was the unreliable nature of hypnotically-induced memories, not simply the “technique” of hypnosis itself, that prompted the Supreme Court in People v. Shirley, supra, to hold they are inadmissible under Kelly. The Supreme Court was rightly concerned that hypnotically-induced memories “actively contribute to the formation of pseudomemories, to the witness’ abiding belief in their veracity, and to the inability of the witness (or anyone else) to distinguish between these two.” (People v. Shirley, supra, 31 Cal.3d at p. 53.) Respondent does not dispute that these very concerns apply equally to “recovered” memories, regardless of the method by which they are recovered. (See AOB at pp. 26-33, 37-39; RB at pp. 23-29.)

California should follow virtually every other jurisdiction in this country to address the admissibility of such evidence by requiring that it meet the Kelly test of reliability as a prerequisite to admission. Applying Kelly, the evidence was clearly inadmissible. Respondent does not argue otherwise. Counsel’s failure to move to exclude the only evidence against appellant under Kelly fell well below an objective standard of reasonably competent assistance. (Strickland v. Washington, supra, 466 U.S. at p. 693.)

2. Evidence Code sections 350 and 352 apply to evidence derived from the novel scientific “recovered” memory theory.

Appellant argued in the alternative that even if Kelly is inapplicable, counsel was nevertheless ineffective for failing to move to exclude **’s “recovered” memories under Evidence Code sections 350 and 352. (AOB at pp. 40-47.) Once again, respondent does not dispute that if these statutes applied to permit exclusion of the evidence in this case, exclusion would have been required. Rather, respondent argues that section 352, like People v. Kelly, is simply inapplicable. (RB at pp. 30-32.) Specifically, without any real discussion, respondent asserts that “appellant’s argument is about the weight the jury should give to ** P.’s testimony, an issue which does not fall under Evidence Code section 352.” (RB at p. 31.) Respondent is wrong.

**’s “testimony” was based entirely on her “recovered” memories. Thus, the theory that makes such memories relevant or credible at all is the issue. In this regard, Evidence Code section 352 could not be clearer. Even if evidence bears some probative value, it should nevertheless be excluded if its probative value is substantially outweighed by the danger that it will confuse or mislead the jury. This balancing necessarily considers the “weight” of the evidence. If the weight of the danger of confusion or misleading the jury is substantially greater than the weight of the evidence’s probative value, it is inadmissible. (See, e.g., People v. Milner (1988) 45 Cal.3d 227, 238 [court properly excluded hypnotically-induced interview under section 352]; People v. Roscoe (1985) 168 Cal.Ap.3d 1093, 1100 [because Child Sexual Abuse Accommodation Syndrome is not generally accepted as a reliable means of determining whether particular child has been molested, trial court abused discretion under section 352 in admitting expert testimony utilizing syndrome to diagnose complaining witness as abuse victim]; People v. Cella (1983) 139 Cal.App.3d 391, 405 [because of their unreliable nature, “pseudoscientific speculations in the area of mathematical probabilities offer a prime subject for exclusion under Evidence Code section 352”]; see also People v. Alcala (1992) 4 Cal.4th 742, 787-788 [trial court properly exercised discretion under section 352 in excluding expert testimony regarding effect of suggestive interviewing techniques on defendant’s confession]; People v. Stoll, supra, 49 Cal.3d 136, 1164, dis. opn. of Lucas, J [recognizing that section 352 provides independent basis for excluding psychological evidence not generally accepted within the relevant community as being reliable]; People v. Shirley, supra, 31 Cal.3d at pp. 39-40 [observing that limited probative value versus danger of confusion and undue consumption of time provides independent ground for exclusion of evidence derived from novel scientific theories that have not gained general acceptance].)

Indeed, if section 352 does not provide an independent basis for exclusion of unreliable evidence, then the floodgates will be opened to permit admission of any crackpot theories or junk science. Defendants could conceivably be convicted based upon the testimony of psychics or mediums or any other unreliable source of evidence that the state chooses to present to the jury. The courts must act as gatekeepers to control the flow of demonstrably unreliable evidence into criminal trials. (Cf. California v. Green, supra, 399 U.S. at p. 187, conc. opn. of Harlan, J. [due process does not permit conviction on “unreliable and untrustworthy” evidence].) If Kelly does not apply to evidence derived from novel scientific theories, then surely section 352 does.

Here, as fully set forth in the opening brief, given the unreliability of recovered memory theory in general, and the unreliability of **’s memories in particular, the weight or probative value of her “recovered” memories was slight. (AOB at pp. 40-47.) Respondent does not dispute this basic proposition. (See RB at pp. 30-32.) At the same time, the evidence carried a grave danger of misleading the jury. (AOB at pp. 40-47.) Once again, respondent does not dispute this fact. (See RB at pp. 30-32.) Had counsel objected to introduction of the evidence under section 352, it would have been an abuse of discretion to admit it. Counsel’s failure to do so fell below an objective standard of reasonably competent assistance. (Strickland v. Washington, supra, 466 U.S. at p. 693.

FOOTNOTES:

Footnote 1: **, her mother, and Mr. M moved to California in August or December 1993. (RT 25, 105-106.) Appellant joined the family here two to three months later. (RT 107-108.)

Footnote 2: Even after that report, when ** confronted appellant over the telephone on September 26, 1996, she only accused him of molesting her “right before we moved to California.” (CT 482.)

Footnote 3: Dr. Reagan holds a Ph.D. in psychology from Harvard University, as well as a J.D. from Hastings College of the Law. (“Scientific Consensus,” supra, at p. 1.) He is currently a research psychologist with The Federal Judicial Center. (Ibid. and p. 300, n. 164.)

Footnote 4: The California Supreme Court has cited with approval Dr. Loftus’s work in the field of memory. (People v. Shirley, supra, 31 Cal.3d at pp. 60-61.)

Footnote 5: In Isely v. Capuchin Province (E.D. Mich. 1995) 877 F. Supp. 1055, the federal district court held that, under the less stringent standard for admissibility in federal court, the concept of repressed memory has a “fair degree” of acceptance in the scientific community and therefore is admissible. (Id. at pp. 1064-1067; see Daubert v. Merrell Dow Pharmaceuticals (1993) 509 U.S. 579.) However, the expert on whose opinion the court based its decision herself acknowledged that “the greatest controversy” in the field lay in the recovery of such memories, not with the concept of repression itself. (Id. at pp. 1065-1066; see also Shahzade v. Gregory (D. Mass 1996) 923 F. Supp. 286, 288-290 [same].)

Footnote 6: Other jurisdictions have addressed whether recovered memory claims toll their statutes of limitations as delayed discovery, with conflicting results. (See Scientific Consensus, supra, at pp. 285-287) Five jurisdictions have concluded that repression will toll the period if proved. (Ibid.) Some have concluded that corroboration is required. (Ibid.) Some have concluded that a claim of repression will not toll the period. (Ibid.) The question of whether a claim of repression might toll the limitations period, however, is quite separate from the question of whether a recovered repressed memory is admissible at trial. (Farris v. Compton (D.C. App. 1994) 652 A.2d 49; McCollum v. D’Arcy (N.H. Sup. Ct.) 638 A.2d 797, 800.)

Footnote 7: There was also evidence that ** commenced therapy during this period. Specifically, ** testified on February 21, 1997 that she had been in therapy for about the last six to eight months, or since June to August 1996. (CT 98.) While it is concededly less than clear whether ** was actually in therapy before she amended her complaints to include the California conduct, the lack of clarity in this regard is again due to counsel’s half-hearted approach to the defense in this case. At the new trial hearing, Russo testified that she tried to obtain **’s therapy records, but did not pursue the matter when the therapist did not respond to her request. (9/11/98 RT 25; see Davis v. Alaska (1974) 415 U.S. 308, 319-310 [defendant’s right to cross-examine critical prosecution witness may outweigh competing confidentiality interest]; People v. Hammon (1997) 15 Cal.4th 1117 [although no right to pre-trial discovery of witness’s psychotherapy records, under Davis, supra, defendant’s right to cross-examine at trial may outweigh privilege and require disclosure at trial]; People v. Reber (1986) 177 Cal.App.3d 523, 531 [trial court must examine records to determine whether defendant’s right to evidence outweighs privilege at trial; overruled in Hammon, supra, only to the extent Reber held defendant may have right to pre-trial discovery].)

Footnote 8: **’s explanation at trial that she simply did not understand what the term “penetration” meant when she made that allegation did not resolve the inconsistency because she had actually described an act of penile penetration rather than merely used the term “penetration”. (RT 91, 174; CT 96-97.)

Footnote 9: Russo’s own questions rendered **’s trial testimony in this regard more equivocal than her preliminary hearing testimony. Russo asked ** whether she was merely “putting this stuff out of your mind for a long period of time,” to which ** responded, “yes.” (RT 76.) ** then testified that she first remembered the abuse just before the summer of 1996. (RT 76.)

Footnote 10: Appellant addresses counsel’s failure to use this evidence to impeach ** and the other prosecution witnesses is addressed in Argument I-D, below.

Footnote 11: In a footnote, respondent seems to suggest that Kelly is inapplicable to “psychological testimony” or psychological theory. This is simply untrue. (See People v. Shirley (1982) 31 Cal.3d 18, 53 [“(we) do not doubt that if testimony based on a new scientific process operating on purely psychological evidence were to be offered in our courts, it would likewise be subjected to the (Kelly) Frye standard of admissibility”]; People v. Bowker, supra, 203 Cal.App.3d at pp. 391-394; [Kelly applies to Child Sexual Abuse Accommodation used to prove molestation occurred].) Footnote 12: Respondent also ignores that ** did not, in fact, recover her memories spontaneously. The literature clearly shows that the reliability of a “recovered” memory is particularly suspect when it follows suggestive questioning by an adult or authority figure. (See Scientific Consensus, supra, at p. 295; Reality of Repressed Memories, supra, at p. 525.) **’s “memories” of the California conduct for which appellant was tried and convicted did not arise “spontaneously,” but only after her mother suggested the need for them. (CT 119, 151, 157-158; AOB at pp. 44-45.)