THE ADMISSIBILITY OF EXPERT TESTIMONY BASED UPON CLINICAL JUDGMENT AND SCIENTIFIC RESEARCH

In reading the American Psychological Association Final Report on the Investigation of Memories of Childhood Abuse (in this issue), we recognized that one of its most important implications for the law is whether and to what extent clinical testimony on recovered repressed memories of childhood abuse should be admitted into evidence in a court of law. We know that some scientists and some clinicians have strong disagreements about whether such testimony is appropriate for use by judges and jurors deciding questions of responsibility and liability for childhood abuse, but what position does the law take on this matter? After reviewing the legal literature, it became clear to us that the law did not have a satisfactory answer to the question we pose, and that any answer that we could provide would have to apply to all clinical and scientific expert testimony if it is to accepted and used by the courts. Thus, it is important that the legal analysis we would provide be one that can be applied to all proffers of clinical and scientific expert testimony. For this reason, this article uses examples that are far beyond the scope of the Working Group's report, and provides a suggested legal framework for courts to use when addressing both types of proffered testimony across the legal spectrum. The solution proposed, however, is nowhere more poignantly illustrated than in the case of claims of recovered repressed memories of childhood sexual abuse. This is so because of the inherent conflict that can arise as a result of the evolving and sometimes conflicting (1) scientific and professional knowledge bases concerning memories of childhood abuse, and (2) concerns of clinicians to aid individuals they believe have recovered memories of repressed abuse, and concerns of scientists to ensure that psychologists only provide information in their work that has been scientifically validated.