The first time she spoke to police, the victim, Garcia, said she had been sexually assaulted in a car by a man who spoke Spanish very well and wore a white, long-sleeved shirt. The second time she spoke of the event, Garcia said the man wore a long-sleeved shirt and that his Spanish was good. At trial, she told the court that the assailant did not speak Spanish well at all and that he wore a long-sleeved shirt. She testified that she had not told police that her assailant's shirt was white or long-sleeved and gave other inconsistent testimony. The defendant sought to introduce the testimony on dissociative amnesia. Dr. Hugh Gardner, a psychiatrist was called to testify that dissociative amnesia is a psychological condition in which victims "involuntarily block from their conscious minds the details of traumatic events, with the resulting memory gaps being filled with details from later events ..." The trial court found such testimony inadmissible because it constituted an impermissible comment on Garcia's credibility and that it was within the common understanding of the average juror. The defendant was convicted and appealed his convictions of kidnapping, rape, sexual abuse, assault and menacing, citing the exclusion of the expert testimony as error.
Holding: Reversed and remanded. The court based its holding on three things. First, Dr Gardner's testimony was not an opinion on whether he believed Garcia was telling the truth, but on her ability to perceive, remember and recount critical events. Second, dissociative amnesia is a medical/psychiatric phenomenon that is not a matter of common knowledge and Gardner's testimony was essential in explaining the diagnosis. Finally, the court stated that without witnesses to the assault and without forensic evidence, Garcia's testimony was crucial to the prosecution's case. As such, Gardner's testimony was crucial to the defense, so much so that the court ordered a new trial.
 | David Fink, Ph.D. Assistant Clinical Professor of Psychiatry Thomas Jefferson University |
Dr. Fink comments: Dissociative Amnesia is the inability to recall important personal information, usually of a traumatic or stressful nature, that is too extensive to be explained by ordinary forgetfulness. The condition is an aspect of the response to overwhelming psychological or physical trauma. Clinical data supporting the mechanism of dissociative amnesia are robust and there are now over 30 studies of trauma survivors that document the frequency with which amnesia occurs.
Dissociation can be thought of as a type of psychological circuit breaker for the mind. When confronted with an event that is overwhelmingly traumatic, there is an inborn capacity to disconnect i.e., to dissociate various aspects of the event from one another. Most commonly, behaviors or emotions are dissociated from our conscious knowledge of their source. When ordinary awareness is completely dissociated, amnesia results.
A growing body of research supports the observation that traumatic memory is often encoded in a dissociated way and that traumas are often remembered first in terms of body experiences and emotions, with the narrative aspects of the memory coming in a delayed and often fragmentary fashion. The take home message of this model is that the body and the heart can know the trauma before the mind catches up.
If we relate this model to Gherasim, it is plausible that the victim correctly first knew about her assault in terms of her awareness of her physical state, and her emotional distress. Due to the extent of her dissociation of the trauma, however, she did not know what happened. In coming out of her dissociated state, in an effort to "make sense" of the facts of her condition, it is plausible that she misattributed blame for her injuries to the man who was standing in front of her. This is not a matter of malice on the victim's part. Rather, such a potential explanation recognizes the impact of dissociative amnesia on the encoding and retrieval of memory.
When a traumatic dissociation of consciousness occurs, there is a resultant disturbance of memory retrieval. In Gherasim, it seems possible, based on the inconsistency and implausibility of some of the versions of Garcia's testimony, that certain false infirmity became a part of her explanation. The complex challenge put to both the court and the forensic psychiatrist is how to accommodate amnesic disturbances in memory retrieval without dismissing, pre-judging or contaminating the information that ultimately emerges.
It is critical to keep in mind that disturbance in retrieval of memory bears no relation ultimately to the accuracy of memory. Dissociative amnesia can resolve with memories that are delayed and largely accurate resolve with fragmentary impressions of an event, or be filled in by the individual with complementary but factually inaccurate information. The presence of dissociation per se does not make a witness more or less reliable.
FACTORS IN DETERMINING A DISSOCIATIVE AMNESIC WITNESS' RELIABILITY
- What is the consistency of the report over time? Major inconsistencies undermine reliability.
- Is the report given in a detailed or impressionistic way?
- Does witness acknowledge confusion or struggle to "fill in the gaps" that is often seen after periods of amnesia?
- Does witness have intrusive return of traumatic material in the form of flashbacks, which are consistent with the process of posttraumatic dissociation.
- What is the witness' history of dissociative symptoms prior to and following the episode?
- What is the witness' prior psychiatric history and overall level of psychological health? What is their level of reality testing? Are there any signs of psychosis that would increase the likelihood of reality distortions?
- Are there external influences that may have disturbed the retrieval of memory?
- Are there motivational factors that might lead to conscious falsification?
At the present time there are no consistently reliable measures to distinguish the truth or falsity of a given memory. The standard approach to make determinations of truth in dissociative amnesia cases involves a comprehensive evaluation of the report/reporter. Corroborating the report of the victim who dissociates with as many observers or collateral sources as possible is critical in attempting to determine the witness' reliability. Where no outside sources are available as in this case, a comprehensive evaluation looking at several factors can prove useful (see Factors in Determining Reliability of the Amnesic Witness, above).
The Gherasim court properly recognized the complexity of the process of memory-that it does indeed go beyond "the understanding of the average juror about forgetting" and that the triers of fact deserve to be educated about these factors if they are to make a well reasoned, fair determination.
