Key Concepts

  • A witness may testify about any relevant events that he or she currently remembers, and may further testify that for some period of time the witness did not remember those events, but only a properly qualified expert witness may give opinion testimony about the theory and practice of recovering “repressed memories.”
  • The trial court has discretion to admit or deny expert testimony on the subject of repressed memories, in accordance with Daubert and Rule 702.
  • Hypnotically refreshed testimony generally is not admissible, but a witness who has been hypnotized may still testify about any matters which the witness related prior to being hypnotized.

Expert Testimony About Repressed Memories

In a case where the victim has suffered through an extremely traumatic event (e.g., sexual assault by a family member), he or she may report that the memory of the event was “repressed” for some period of time, and then the memory was “recovered” due to either a triggering event or with the assistance of therapy. There is an ongoing debate within the scientific community about the validity and accuracy of such recovered memories. For general reference on the prevailing views supporting and opposing the reliability of such memories, see the following: 

  1. Scientists and Practitioners Don’t See Eye to Eye on Repressed Memory,” Association for Psychological Science,, December 13, 2013;
  2. Memories of Childhood Abuse,” American Psychological Association,, as viewed August 3, 2018;
  3. “Researchers and Practitioners Disagree on Repressed Memory,” Dr. Faith Brynie, Psychology Today, December 13, 2013.

Federal courts applying the Daubert standard have likewise reached different conclusions regarding the reliability and admissibility of expert testimony about repressed memories. Compare Clark v. Edison, 881 F.Supp.2d 192 (D. Mass. 2012) (analyzing each of the Daubert factors in detail, and finding that upon laying a proper foundation, expert witnesses would be permitted “to testify concerning memory repression theory, its defining characteristics, and its limitations and degree of acceptance in the scientific community”) with Johnson v. Bett, 349 F.3d 1030 (7th Cir. 2003) (finding no abuse of discretion in trial court excluding testimony “about the circumstances in which repressed memory was found to occur in clinical studies and about how Wiener's claim of repressed memory stacked up with other cases” on the grounds that “probative value is outweighed, for instance, by the danger of confusing or misleading the jury, or by considerations of undue delay or waste of time” and “the jury would not need expert testimony to discredit Wiener's account of how he happened to remember”).

In North Carolina, the principal case on this issue is State v. King, 366 N.C. 68 (2012), which set forth several important rules regarding the admissibility of this type of testimony:

  1. If the proponent of the testimony wishes to offer evidence about the underlying theory of "repressed memories," the proponent must offer such evidence through the testimony of a properly qualified expert witness. Id. The court based its decision on the rationale that “psychiatric theories of memory, and specifically of repressed and recovered memories, are arcane even to specialists and may not be presented without accompanying expert testimony to prevent juror confusion and to assist juror comprehension.” Id
  2. Even if the proposed expert testimony satisfies the requirements of Rule 702, the trial judge may still exercise his or her discretion and exclude the opinion testimony if it is deemed irrelevant or unduly prejudicial under Rule 403. Id.; see also State v. Walston, 369 N.C. 547 (2017) (trial court did not abuse its discretion by excluding defendant’s proposed expert testimony on repressed memories and the suggestibility of children on the grounds that testimony was not relevant to the facts of the particular case, the expert had not personally examined the victim, and the testimony would be misleading for the jury).
  3. However, the absence (or exclusion) of expert testimony on the issue of repressed memories does not bar the lay witness from testifying about his or her current recollection of the events. But as to the purported loss and subsequent recovery of those memories, “the witness may testify only to the effect that for some time period, he or she did not recall, had no memory of, or had forgotten the incident, and may not testify that the memories were repressed or recovered.” See King, 366 N.C. at 76-78 (disavowing the portion of the opinion below that relied on Barrett v. Hyldburg, 127 N.C. App. 95 (1997) to conclude that all testimony based on “recovered memories” must be excluded if it is not accompanied by expert testimony).

Limits on Hypnotically-Refreshed Testimony

As a general rule, “hypnotically-refreshed testimony” is inadmissible in North Carolina. See State v. Peoples, 311 N.C. 515 (1984) (“Given the problems inherent in the hypnotic process, such as the enhanced suggestibility of the subject, his tendency to confabulate when there are gaps in his recollection, his increased confidence in the truthfulness and accuracy of his post-hypnotic recall which may preclude effective cross-examination, and the inability of either experts or the subject to distinguish between memory and confabulation, hypnotically refreshed testimony is simply too unreliable to be used as evidence in a judicial setting.”); State v. Flack, 312 N.C. 448 (1984) (“[T]he hypnotically induced testimony […] was admitted in derogation of the rule of inadmissibility enunciated in Peoples. There can be no doubt that the erroneous admission of [the witness’s] testimony constitutes prejudicial error, since a reasonable possibility certainly exists that a different result would have been reached had the testimony not been admitted during defendants’ trial.”)

However, a witness who has been hypnotized may still testify about any facts he or she related before the hypnotic session, as long as the witness does not testify to any facts that were not related before that session. See State v. Hall, 134 N.C. App. 417 (1999) (“We believe the trial court properly analyzed the evidence before it. Significantly, the only portion of Harold’s testimony which might accurately be characterized as ‘hypnotically refreshed’ was that containing the minimal descriptive details and not her in-court identification of defendant.”).

There is a limited exception to this rule that prohibits declaring a defendant’s hypnotically-refreshed testimony is per se inadmissible, because such a strict rule would impermissibly infringe on the defendant’s right to testify in his own behalf. See Rock v. Arkansas, 483 U.S. 44 (1987). However, the Supreme Court acknowledged in Rock that “[t]he more traditional means of assessing accuracy of testimony also remain applicable in the case of a previously hypnotized defendant” and the state “may be able to show that testimony in a particular case is so unreliable that exclusion is justified.” Id.

Portions of this entry were excerpted from the North Carolina Superior Court Judges’ Benchbook, “Criminal Evidence: Expert Testimony,” Aug. 2017, Jessica Smith.