1. J.D. 1990, Northeastern University School of Law. The author is currently an LL.M. candidate in criminal law at the University of Missouri-Kansas City School of Law, and will teach post-conviction remedies at UMKC in the Fall of 1999. She is also a criminal defense practitioner in Lawrence, Kansas, and holds the office of Secretary in the Kansas Association of Criminal Defense Lawyers.

2. United States v. Frye, 293 F. 1013 (D.C. Cir. 1921); Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

3. Frye, supra note 2.

4. Id. (concluding that systolic blood pressure deception test had not yet gained general acceptance among physiological and psychological authorities to justify its admission in a criminal trial).

5. Daubert, supra note 2.

6. Id., 509 U.S. at 589.

7. Id. at 594.

8. Id. at 593-94.

9. E.g., State v. Porter, 698 A.2d 739 (Conn. 1997); Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994); State v. Foret, 628 So.2d 1116 (La. 1993).

10. 119 S.Ct. 1167, syl. (March 23, 1999).

11. In State v. Quattrocchi III, 1999 WL 284882, *8 (R.I. Super. April 26, 1999), the prosecutor in a recovered memory case argued that the Daubert factors should not be applied to the "soft science" of psychology. The Kumho Tire opinion was issued between the evidentiary hearing and the court's ruling on admissibility in that case. Noting Kumho, the court rejected the prosecutor's argument and applied the Daubert factors, with an emphasis on the general acceptance factor, to hold that recovered memory evidence was not sufficiently reliable to be admitted at trial.

12. Daubert, supra note 2, 509 U.S. at 593.

13. See Christopher Slobogin, Psychiatric Evidence in Criminal Trials: to Junk or Not to Junk?, 40 Wm. & Mary L. Rev. 1 (October 1998). This author effectively argues that, at least in criminal trials,"psychiatric testimony that focuses on whether an act occurred -- an objective and scientifically verifiable fact -- should have to meet a more stringent test" than psychiatric testimony regarding mental states, id. at 4.

14. See State v. Michaels, 642 A.2d 1372 (N.J. 1994) (requiring pretrial hearing to determine reliability and admissibility of statements of alleged child sex abuse victims; factors for determining admissibility to include whether interviews with child unduly suggestive and the existence of corroborating evidence); Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 154 (1977) (requiring pretrial hearing to determine reliability and admissibility of eyewitness statements and testimony resulting from unduly suggestive identification procedures).

15. See State v. Hungerford, 697 A.2d 916 (N.H. 1997) (taking similar modified Daubert approach to determine that evidence of recovered memories was inadmissible in that case); Quattrocchi, supra note 11 (same).

16. E.g., Doe v. Roe, 955 P.2d 951, 956 (Ariz. 1998) (holding that statute of limitations for civil suit began running from time abuse was "discovered" through recovered memory therapy, but cautioning: "we have not addressed or decided the Frye issue--conformance to accepted scientific theory"); Peterson v. Huso, 552 N.W.2d 83, 84 (N.D. 1996) (holding that statute of limitations for civil suit began running from time repressed memories were recalled, but warning: "because of the potential unreliability of some recovered memories, courts should seek to employ reasonable safeguards to ensure the proper use of such memories").

17. Hungerford, supra note 15. See also State v. Walters, 698 A.2d 1244 (N.H. 1997) (relying on Hungerford to hold that the interval between the alleged occurrence of abuse and the complainant's recollection of the abuse by dream analysis -- coupled with divisions within the scientific community as to the reliability of recovered memory -- precluded the use of recovered memory testimony at trial); State v. Quattrocchi, supra at n. __ (recovered memory theory not reliable or generally accepted in field of psychology, and thus inadmissible under Daubert and Frye standards); Ramona v. Superior Court, 57 Cal. App. 4th 107 (Calif. Ct. App. 1997) (memories recovered through administration of sodium amytal are unreliable and inadmissible).

18. Isley v. Capuchin Province, 877 F.Supp. 1055 (E.D. Mich. 1995).

19. Walters, supra note 17 at 1246 ("upon the objection of the opposing party, the proponent of testimony comprised of recovered memories must demonstrate that the testimony is reliable"); Isley, supra note 18 at 1064 ("proponent of expert scientific testimony must . . . provide further foundational testimony as to the validity and reliability of post-traumatic stress disorder and repressed memory").

20. S. Brandon, et al., Report of the Royal College of Psychiatry, 172 British J. of Psychiatry 296, 299, 304 (April 1998).

21. Elizabeth Loftus, The Reality of Repressed Memories, 48 Am. Psychologist 518, 524 (May 1993).

22. Id. at 521.

23. Id.

24. Id.

25. Id.

26. Id. at 521-22.

27. Elizabeth Loftus, et al., Forgetting Sexual Trauma: What Does It Mean When 38% Forget?, 62 J. Consulting & Clinical Psychol. 1177 (1994).

28. Id.

29. Gary M. Ernsdorff and Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84 . Crim. L. & Criminology 129, 154 (Spring, 1993).

30. Id.

31. Id.

32. Loftus, supra note 21 at 530; see also Elizabeth Loftus and Katherine Ketchum, The Myth of Memory Repression (1994).

33. Loftus, supra note 21 at 530.

34. Id. at 532; Loftus and Pickrell, The Formation of False Memories, 25 Psychiatric Annals. 720 (1995).

35. See Daniel Schacter, et al., "The Recovered Memories Debate: A Cognitive Neuroscience Perspective," Recovered Memories & False Memories at 78 (Oxford U. Press 1997) (citing 1995 study by I.E. Hyman, Jr. and F.J. Billings).

36. Richard Ofshe and Ethan Watters, Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria at 38-40 (1994).

37. Id.

38. Id.

39. Loftus, supra note 21 at 532.

40. Id.

41. Jonathan W. Schooler, et al., "Taking the Middle Line: Can We Accommodate Both Fabricated and Recovered Memories of Sexual Abuse?", Recovered Memories and False Memories at 251 (Oxford U. Press 1997).

42. Harold Merskey, Ethical Issues in the Search for Repressed Memories, 50 Am. J. Psychotherapy 323, 330 (Summer 1996).

43. Brandon, supra note 20.

44. Id.

45. Id. at 298, 303.

46. American Medical Association, Report of the Council on Scientific Affairs: Memories of Childhood Abuse, CSA Report 5-A-94, cited in Merskey, supra note 42 at 330, and Julie M. Kosmond Murray, Repression, Memory, and Suggestibility: a Call for Limitations on the Admissibility of Repressed Memory Testimony in Sexual Abuse Trials, 66 U. Colo. L. Rev. 477, 503 (1995).

47. American Psychological Association, Interim Report of the APA Working Group on Investigation of Memories of Childhood Abuse, cited in Merskey, supra note 42 at 330; Murray, supra note 46 at 503.

48. Merskey, id.

49. Schooler, supra note 41 at 251-52.

50. American Psychiatric Association, Statement Approved by the Board of Trustees (Dec. 12, 1993), cited in Merskey, supra note 42 at 330; Murray, supra note 46 at 503.

51. Board of Directors, Australian Psychological Association, Guidelines Relating to the Reporting of Recovered Memories (1994), cited in Merskey, id.

52. Canadian Psychiatric Association, Position Statement on Adult Recovered Memories of Childhood Sexual Abuse, 41 Canadian J. Psychiatry 305 (March 1996), cited in Merskey, id.

53. Brandon, supra note 20; see also Louis S. Berger, Cultural Psychopathology and the "False Memory Syndrome" Debates: A View from Psychoanalysis, 50 Am. J. Psychotherapy 167, 171 (Spring 1996) (describing analytic positions viewing the truth of recovered memories as "virtually irrelevant to the therapeutic process").

54. 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998).

55. Id.

56. Id., 118 S.Ct. at 1262.

57. Id. at 1266 n.8.

58. State v. Quattrocchi, 681 A.2d 879, 882 (R.I.1996) (vacating sexual assault conviction and remanding case for new trial, with order that district court hold admissibility hearing before admitting recovered memory evidence).

59. Ofshe and Watters, supra note 36 at 30; see also Loftus, supra note 21 at 530 (May 1993) (noting that false memories can arise from borrowed ideas, suggestion, characters, myths, and unintentional implantation).

60. Brandon, supra note 20 at 301.

61. Id. at 305.

63. Id.

64. Id.

64. DSM IV at xxiii.

65. Christine A. Courtois, Guidelines for the Treatment of Adults Abused or Possibly Abused as Children (with Attention to Issues of Delayed/Recovered Memory), 51 Am. J. Psychotherapy 497, 504-05 (Fall 1997).

66. Daniel Schacter, et al., "The Recovered Memories Debate: A Cognitive Neuroscience Perspective," Recovered Memories & False Memories at 88 (Oxford U. Press 1997).

67. Brandon, supra note 20 at 298.

68. Hungerford, supra, note 15 at 921.

69. Loftus, supra note 21 at 524.

70. Isley, supra note