Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1110

1 Wednesday, 11th November, 1998

2 (Open session)

3 (The accused entered court)

4 --- Upon commencing at 10.30 a.m.

5 JUDGE MUMBA: Good morning. Will the

6 registrar please call the case?

7 THE REGISTRAR: Good morning, Your Honours.

8 Case number IT-95-17/1-T, the Prosecutor versus Anto

9 Furundzija.

10 JUDGE MUMBA: Thank you. Can the accused

11 hear me in a language he understands?

12 THE ACCUSED: Yes, Your Honour.

13 JUDGE MUMBA: Thank you. Can we have the

14 appearances, please?

15 MR. BLAXILL: The appearances for the

16 Prosecution is as before, Ma'am.

17 JUDGE MUMBA: Thank you. The Defence?

18 MR. MISETIC: The appearances for the Defence

19 are as before.

20 JUDGE MUMBA: Before we proceed, Mr. Misetic,

21 you did mention about submitting a document which you

22 said -- once you get the translation.

23 MR. MISETIC: Yes. May we move into private

24 session for a moment? I have the documents.

25 JUDGE MUMBA: So you want to move into a

Page 1111

1 private session?

2 MR. MISETIC: I just want to explain what

3 they are, and I'm not sure whether I'm allowed to do it

4 or not, so out of safety, I was going to.

5 JUDGE CASSESE: Well, actually, I think,

6 Mr. Misetic, you were right. I found the document in

7 English, and it was actually annexed to your motion,

8 the motion of the 1st of October, '98, so I accept your

9 point. You are right.

10 MR. MISETIC: Yes, but in addition to the

11 certificate, we wish to move in another witness

12 statement which was also disclosed at that time and we

13 also feel it's relevant because there were issues that

14 were raised yesterday.

15 JUDGE MUMBA: So you wish to move into

16 private session?

17 MR. MISETIC: Yes, just for a moment.

18 JUDGE MUMBA: All right. Mr. Registrar, can

19 we move into private session, please?

20 (Private session)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

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11 Page 1112 redacted. Private session.















Page 1113











11 Page 1113 redacted. Private session.















Page 1114

1 (redacted)

2 (redacted)

3 (Open session)

4 JUDGE CASSESE: Do you mind if I raise a

5 point with the registrar? D23 was not admitted into

6 evidence, so it is now -- do we have now a D23?


8 JUDGE CASSESE: We have no D23 now. Did you

9 give this number to another document?

10 THE REGISTRAR: No, I didn't.

11 JUDGE CASSESE: So therefore --

12 THE REGISTRAR: There is no D23.

13 JUDGE MUMBA: So we will proceed with the

14 Prosecution witnesses in rebuttal.

15 MR. BLAXILL: Thank you. Good morning, Madam

16 President. Good morning, Your Honours, Defence

17 counsel.

18 There are just a couple of matters I would

19 mention prior to calling my witness, Ma'am, very

20 swiftly.

21 Firstly, in the course of cross-examination

22 yesterday, certain articles were put to Dr. Morgan.

23 They have been marked as Prosecution Exhibits, I think

24 6 onwards, and I would formally request that they be

25 moved into evidence.

Page 1115

1 THE REGISTRAR: That will be Exhibits 7

2 through 11.

3 JUDGE MUMBA: Thank you.

4 MR. BLAXILL: Certain extracts -- Madam, I'm

5 obliged.

6 Certain extracts from former statements or

7 testimony of the witness were also tendered to

8 witnesses in the course of that cross-examination;

9 however, I have ascertained that they were, in fact,

10 formally moved into evidence on the 12th of June, so I

11 need not do so in respect of those documents, Ma'am.

12 JUDGE MUMBA: Thank you.

13 MR. BLAXILL: I will therefore call the

14 Prosecution witness, Dr. Daniel Brown.

15 JUDGE MUMBA: The Trial Chamber is willing to

16 accept the CV as presented, unless the Defence are

17 objecting, so that we need not go into the details of

18 the curriculum vitae.

19 MR. MISETIC: No objection, Your Honour.

20 JUDGE MUMBA: Thank you.

21 MR. BLAXILL: I was going to invite you to do

22 so, Ma'am. I am obliged for your observation.

23 JUDGE MUMBA: May the witness make the solemn

24 declaration?

25 THE WITNESS: I solemnly declare that I will

Page 1116

1 speak the truth, the whole truth, and nothing but the

2 truth.

3 JUDGE MUMBA: Thank you. You may be seated.


5 Examined by Mr. Blaxill:

6 Q. Dr. Brown, good morning.

7 A. Good morning.

8 Q. Would you state for the record, sir, your

9 full name?

10 A. Daniel Brown.

11 Q. You've heard, Dr. Brown, that your curriculum

12 vitae has been accepted as an expert in your field, and

13 I believe that you are a clinical and teaching

14 psychologist; is that correct?

15 A. That is correct.

16 Q. Have you published any textbooks in the area

17 of trauma and memory and the law?

18 A. Yes.

19 Q. What is the exact title of that book?

20 A. The title of the book is "Memory, Trauma

21 Treatment and the Law" by myself, Daniel Brown, Alan

22 Scheflin and Corydon Hammond.

23 Q. Briefly, sir, can you say how this book has

24 been received professionally?

25 A. Recently the book was awarded the Manfred S.

Page 1117

1 Guttmacher Award by the American Psychiatric

2 Association for the best book in psychiatry and law in

3 1988.

4 Q. In researching your book, sir, how many

5 studies or research works did you, in fact, have to

6 review, roughly?

7 A. The book is a textbook that contains a review

8 of over 2.000 sources in memory, trauma, and the law

9 pertaining to these issues.

10 Q. Have you authored any other textbooks in your

11 time?

12 A. Yes.

13 Q. In what area?

14 A. I've written ten books. The one that might

15 be relevant here is I've written three books in the

16 field of hypnosis, including one of the standard

17 textbooks in the field, so one of my areas of expertise

18 is on suggestion effects.

19 Q. Have you conducted clinical and other field

20 work in the area of trauma victims?

21 A. Yes.

22 Q. Has the trauma victim work included any

23 people affected by war?

24 A. Yes. In the 1980s, I was the director of

25 training and chief psychologist at the Cambridge

Page 1118

1 Hospital, one of the Harvard Medical School teaching

2 hospitals, and amongst my other duties there, I served

3 as the trauma consultant to the Latino services during

4 the time that we saw a large number of Central American

5 refugees from the war-torn countries in Central

6 America, and I did both treatment and consultation,

7 supervision of treatment with many victims of rape and

8 torture.

9 Q. Thank you, sir. Can you indicate how many

10 times, if any, you have been involved as an expert in

11 civil or criminal proceedings in courts?

12 A. I've been an expert in slightly over 50

13 cases, mostly civil.

14 Q. How many criminal cases?

15 A. I've been involved in, let's see, about four

16 or five criminal cases, and I've given trial testimony

17 in one of those.

18 Q. Has any of your testimony ever dealt with

19 issues of torture or rape?

20 A. Yes. One case was before the United States

21 Immigration and Naturalisation Services Court

22 specifically for amnesty for a young male victim of

23 rape and torture from his country.

24 Q. Dr. Brown, you have heard, have you,

25 Dr. Morgan testify in relation to his Desert Storm

Page 1119

1 veterans studies?

2 A. Yes.

3 Q. Now, Dr. Morgan defined for the Court

4 yesterday that it was a controlled study and what he

5 meant by that. Do you have an opinion on that

6 definition he gave?

7 A. Yes, I do.

8 Q. What is that?

9 A. I think his definition is fundamentally

10 wrong. Dr. Morgan testified to the Court that a

11 control study is a study where the same measurement is

12 used at various points in time. That's a good

13 definition of a replication of a control study. It's

14 not a definition of a control study.

15 Usually a control study will have one or more

16 control comparison groups, and the reason that

17 comparison control groups are used is essentially to

18 minimise the error rate in any kind of scientific

19 investigation.

20 By using control groups, you, for example,

21 can rule out whether, in this case, the inconsistencies

22 over time are genuinely an observed phenomena or maybe

23 they're the product of, say, natural change over time.

24 Without a control group, you can't rule that

25 possibility out. You can't, without control groups --

Page 1120

1 THE INTERPRETER: Would the witness speak

2 slowly, please?

3 JUDGE MUMBA: The interpreters would like you

4 to speak slowly because they have to interpret for the

5 accused?

6 A. I'm sorry, Your Honour. Without a control

7 group, you can't rule out alternate explanations nor

8 can you make causal statements in science.

9 Now, Dr. Morgan said that his 1997 published

10 Desert Storm study included a control group, but at

11 least in the way the material is described in the

12 abstract of that article, in Tables 1 and Tables 2 and

13 also in the analysis of the data in the results, it's

14 clear that Dr. Morgan collapsed the data from the 30

15 medical sample subjects who were allegedly traumatised

16 or potentially traumatised and the 29 non-traumatised

17 police subjects into one analysis; in other words, the

18 results are not analysed in a way that would include a

19 control analysis. Therefore, there is no control in

20 the way the results were presented.


22 Q. What is your view, sir? What is your view,

23 sir, in relation to the test instruments employed in

24 that research?

25 A. Well, in the 1997 published study, Dr. Morgan

Page 1121

1 included what he called the Desert Storm Trauma

2 Questionnaire which had 19 items. In all fairness to

3 Dr. Morgan, he said that that was --

4 Q. A little slower, Dr. Brown.

5 A. -- a relatively new instrument for which

6 there was no test/retest reliability data or validity

7 data to establish that as a valid and reliable

8 instrument in the field.

9 The importance of a test/retest reliability

10 assessment is so that you can rule out in science that

11 the observed effect is not a function of an error rate

12 built into the test instrument. Particularly that's

13 important when referring to changes over time, like an

14 inconsistency measure. How do we know, for example,

15 that the apparent inconsistency isn't a function of

16 sloppy wording of the questions? There's an entire

17 science of how we word questions and develop and

18 construct questionnaires.

19 The standard procedure typically is to pilot

20 a questionnaire on several populations and reconstruct

21 the wording and then go over the question many times

22 and collapse and only select, through independent

23 analyses, those questions which give the best and most

24 valid yield over time. None of that was done. So we

25 can't rule out that some measure of the inconsistencies

Page 1122

1 that were reported over time isn't simply an artefact

2 of using an unreliable instrument.

3 In all fairness to Dr. Morgan, he did also

4 report in the new yet-to-be-published study, he used a

5 different instrument, the Combat Experience (sic) Scale

6 which has independently established test/retest

7 reliability and validity data.

8 However, Dr. Morgan failed to report the

9 findings for the more valid Combat Exposure Scale in

10 the published 1997 report and only included in that

11 published study the yet-to-be-established scale, that

12 is, the newer, less-valid scale, and I found it curious

13 that the valid scale data wasn't included in his

14 discussion of the results in the original published

15 study.

16 Q. So what is your opinion, briefly, on the

17 reliability of the conclusions that may be drawn from

18 that particular study?

19 A. Well, the most obvious problem, therefore,

20 would be that some of the inconsistencies reported are

21 probably an artefact of the lack of control and the use

22 of an invalid instrument, so we have a kind of

23 inflation effect, that the inconsistencies would be

24 exaggerated. That is not to say, however, in fairness

25 to Dr. Morgan, that there may still be some degree of

Page 1123

1 inconsistency not accounted by the limitations in the

2 experimental design. There may still be some effect

3 but it was probably less.

4 Secondly, Dr. Morgan was asked in the

5 cross-examination whether he had considered in that

6 study the relative difference in inconsistency that

7 would be contributed by either direct experience of

8 trauma, as relevant to this case, or indirect trauma,

9 and in Table 2 in the 1997 published study where he

10 lists the 19 items, as I perused those items, I could

11 find only a very few of them that involved direct

12 experience of injury; for example, sustained injury to

13 violence. Another example would be participate in

14 anything you would consider excessively violent or

15 brutal, even for wartime. But other than those two

16 items, the other 17 items are about potential trauma

17 but not necessarily direct injury or assault to the

18 body.

19 What I found curious is that in those two

20 items, if you examine the table, there's hardly any

21 inconsistency, and it's in the assessment of potential

22 trauma, such as extreme threat to personal life, which

23 is essentially an assessment of the degree of danger

24 but not actual direct bodily injury, in items like that

25 where there's a lot of degrees of freedom about the

Page 1124

1 meaning, of course there's much more inconsistency.

2 But when we get to actual direct experience of trauma,

3 the few items that tap that, and there are only very

4 few, don't show much variation at all. So had the data

5 been re-analysed in terms of direct versus indirect

6 traumatisation, I think we would have seen again a very

7 different kind of result and much less inconsistency

8 than the results now show.

9 Lastly, in terms of the conclusions, the

10 relationship between post-traumatic stress and the

11 inconsistencies is by using a type of statistic known

12 as a correlational statistic, and one of the

13 fundamental mistakes in psychology is not to make

14 causal statements using correlational using data. All

15 that we can say is there is an association between

16 post-traumatic stress and inconsistencies. We can't

17 therefore leap to the conclusion that trauma causes the

18 inconsistency in the memory.

19 Q. Sir, Dr. Morgan's studies, he conceded to

20 offer evidence of inconsistency of memory, but is there

21 scientific data specific to the issue of accuracy of

22 memory?

23 A. Yes, there is. Actually, Dr. Morgan, his

24 data specifically is around inconsistency, and he

25 testified to the Court that that indirectly is a way of

Page 1125

1 looking at accuracy. In my opinion, the relationship

2 between inconsistency and accuracy is not as simple as

3 that, and it would be better if we looked at actual

4 research studies that addressed the issue of accuracy

5 per se as something independent from the issue of

6 consistency and inconsistency. Second, to look at the

7 actual scientific research that addresses the

8 relationship between inconsistency and accuracy, and

9 there are such studies.

10 For example, in terms of studies on accuracy,

11 it might be useful to look at the body of research that

12 was conducted on normal auto biographical memory, that

13 is memory for personal meaningful experiences, because

14 there is a body of evidence that directly looks at the

15 accuracy of normal personally meaningful events over

16 time, and if I could get some help with doing this --

17 whoops. How do I move this?

18 Q. Dr. Brown proposes, Your Honours, to make

19 reference to certain slides which have already been

20 disclosed to the Defence, prepared simply as an aide to

21 the Court and hopefully to brevity of his evidence?

22 JUDGE MUMBA: Yes. He can go ahead.

23 THE WITNESS: Thank you.

24 A. The way this research was conducted was to

25 have a normal individual take a computer and write down

Page 1126

1 a memorable experience that day and then to write down

2 the time, the place, and other things that would cue

3 that, and every day over, say, six months write down a

4 memorable experience. Then after six months, a year,

5 two years, the computer would randomly call up a cue to

6 see if that person could remember the rest of that

7 memorable experience upon cue. This is a brief summary

8 of the studies that exist on this. The studies show

9 very clearly that the more meaningful the experience,

10 the better it's retained and the more accurately it's

11 retained over time.

12 In the Linton '95/'98 study where the

13 subjects were asked to record "the most memorable

14 experience" they had each day, there was a 99 per cent

15 accuracy rate for those experiences after one and a

16 half years and then 89 per cent after two years. Now,

17 considering that they are recording one experience a

18 day over six months, that is a remarkable accuracy

19 rate.

20 In the Wagenaar 1986 study, where they were

21 asked to record the most remarkable thing each day,

22 after one year, the accuracy rate was 96 per cent. In

23 the Brewer 1998 study, where they were asked for the

24 remarkable actions each day, the accuracy rate was 80

25 per cent after three months. In the Whyte 1982 study,

Page 1127

1 where they were asked for memorable experiences but not

2 most memorable experiences, you can see that the

3 accuracy rate goes down to a little over 50 per cent.

4 In the Brewer '98 study, when subjects were randomly

5 beeped during the day and asked to record whatever they

6 were thinking at the time, the accuracy rates were

7 typically quite low, usually under 50 per cent.

8 JUDGE MUMBA: Can I ask just the witness, the

9 first Brewer on this chart shows 1988 and the last

10 Brewer is 1988. Is there a typing error?

11 THE WITNESS: I'm not sure.

12 JUDGE MUMBA: What is the correct

13 information, as far as you know?

14 THE WITNESS: Oh, I see. The correct

15 information is that study asked for two kinds of

16 information so --

17 JUDGE MUMBA: No, no. What year was it? The

18 first Brewer, is it correct that it's 1988?

19 THE WITNESS: 1988 is both the same study. I

20 listed it twice because half of the study asked for

21 most remarkable actions, and the other half of the

22 study randomly beeped them for random thoughts during

23 the day. I thought it was more easy to see the

24 difference as you go down from the most meaningful to

25 less meaningful material, the retention and accuracy

Page 1128

1 rates certainly drop. We can conclude from these

2 studies that the most meaningful experiences that

3 people have are accurately retained over at least

4 several years retention interval.


6 Q. Dr. Brown, you mentioned a relationship

7 between --

8 THE INTERPRETER: Microphone for Mr. Blaxill,

9 Madam President, please.


11 Q. You mentioned the relationship between

12 inconsistency and accuracy or consistency and

13 accuracy. Can you explain to us, please, what the

14 distinction is between these two?

15 A. Yes. Inconsistency has to do with

16 differences across several time points, like at one

17 month, two years, six years in the Desert Storm study,

18 but inconsistency doesn't imply inaccuracy, either

19 directly or indirectly, and there are three types of

20 studies that directly bear on this issue.

21 Q. Would you very briefly describe those three?

22 A. Yes. The first type of approach is a

23 laboratory research design to particularly look at the

24 relationship between consistency and accuracy. They

25 are called the hypermnesia studies. In these studies,

Page 1129

1 subjects view a brief film, usually a two-minute film,

2 like, say, about a burglary. Let's imagine that there

3 were 50 possible details in that film that you could

4 actually observe, and after viewing the film, you were

5 asked how many details you could remember. The

6 ordinary subject would usually get about 20 of the 50

7 details, and they might insert one or two inaccurate

8 details, but they would get about 20 accurate details.

9 Then over the next number of weeks or months, let's

10 say, at four different points in time, if you asked

11 them again to remember that, particularly for films

12 that were emotionally arousing or meaningful, what we

13 see is a progressive increase in the number of details

14 over time. Let's say at time two and three, instead of

15 20 details, you would get 25 details. At time four,

16 the subject would report 30 details, so that over those

17 four successive time points, you would see an increase

18 in the total number of details by, say, ten new

19 details. But compared to the original details in the

20 film, those ten new details are usually accurate.

21 Now, if we looked at that from the

22 perspective of inconsistency, we would conclude with

23 Dr. Morgan that there was an inconsistency over time,

24 what Dr. Morgan called going from no to yes, because we

25 get a significant increase in new information. But if

Page 1130

1 we looked at it from the perspective of accuracy, most

2 of the new details, the ten new details, would be

3 accurate. There's a whole body of experimental studies

4 on this hypermnesic effect that were reviewed by Payne

5 in the Psychological Bulletin in 1987 and also reviewed

6 and updated in my book in 1998. This is a

7 well-established fact, and it demonstrates, through a

8 series of laboratory studies, that inconsistency

9 doesn't imply inaccuracy at all.

10 The second way of addressing this

11 relationship between inconsistency and inaccuracy is

12 with essentially real life studies, not laboratory

13 studies. These are studies on what are called events

14 of impact. These are studies largely out of the

15 laboratory of John Yuille in Canada. He defined an

16 event of impact as a unique, salient life experience

17 that was directly experienced by the individual, was

18 highly stressful, often involved injury or threat to

19 life and had immediate consequences for the person's

20 life. It's called an event of impact because it

21 changes the course of a person's life, such as walking

22 into a shoot-out.

23 Dr. Yuille reasoned that these kinds of

24 studies are much more relevant about memory, because

25 they are about real life memory than the laboratory

Page 1131

1 studies.

2 In the first of these studies in --

3 Q. Dr. Brown, are you going to make reference to

4 extracts from the study itself?

5 A. Yes.

6 MR. BLAXILL: I do have copies of that

7 study. I wish to put it forward for recognition in due

8 course to be entered in evidence, subject to

9 agreement.

10 Q. Which is the first study you wish to refer to

11 of Yuille?

12 A. The first study is by Yuille and Cutshall

13 1986.

14 Q. Would you state the other ones to which you

15 will make reference, and I can then submit all the

16 copies to the Court?

17 A. Cutshall and Yuille 1989.

18 THE REGISTRAR: The 1986 study will be marked

19 Prosecution Exhibit 12; the 1989 study, Exhibit 13.

20 JUDGE CASSESE: I would like to ask you,

21 before I forget, a question about what you said on the

22 research conducted on the basis of a short film, a

23 two-minute film about burglary, I think you said. It

24 was a burglary with 50 details, and then some people

25 remembered a few details, say, 20, and then a few years

Page 1132

1 later, up to 30 details.

2 THE WITNESS: It's usually not years. It's

3 usually months.

4 JUDGE CASSESE: Months, all right. My

5 question is whether those who conducted this research

6 made sure that there was no contact between the various

7 people who had viewed the film, because you may

8 remember a few details if you, say, talk to somebody

9 else who was with you watching the movie and then by

10 discussing this. This is my question, whether they

11 made sure that each of those viewers had no contact

12 whatsoever with the other people watching the same

13 movie.

14 THE WITNESS: That's a very good question,

15 Your Honour. Usually in research, as part of the

16 informed consent procedure, the subjects, which are

17 typically college volunteers in laboratory research,

18 are told specifically not to discuss the research with

19 anybody else until the research is finished and they

20 are formally debriefed. Now, whether that happens,

21 we'll never know, but generally that's built into the

22 informed consent.

23 JUDGE CASSESE: Thank you.


25 Q. Dr. Brown, will you proceed with your

Page 1133

1 comments, as briefly as you can, in respect of those

2 studies?

3 A. Yes. In the first 1986 study, it was a real

4 event, a shoot-out that occurred in a gun store where a

5 robber robbed the gun store owner at gunpoint and then

6 ran out of the store. The gun store owner then

7 followed him out with a loaded gun, and they had a

8 shoot-out on the street, much to the horror of 21

9 witnesses, some at close range, some much further away,

10 and both were killed in the process.

11 The police constructed, by interviewing all

12 the 21 witnesses, a composite account of what was

13 likely to have occurred as a baseline within an hour

14 after the instant. Five to six months later, 13 of the

15 eyewitnesses were reinterviewed about their memory for

16 this over time. Now, what was striking is that there

17 was a significant increase in the total of information

18 recalled. Actually, there was a 60 per cent increase

19 in the total of information over the next half a year,

20 what we call a hypermnestic effect. Again, viewed from

21 the perspective of inconsistency, we would say that

22 this data is inconsistent in the sense that the

23 subjects are going, in Dr. Morgan's terms, from no to

24 yes. They are recalling significant more details about

25 that event over time.

Page 1134

1 However, if we look at the relationship

2 between that and accuracy, the accuracy rates did not

3 change over time. In fact, they remained high. On the

4 slide, it shows that object details, the accuracy

5 rate -- object details means things like the weapon,

6 the stolen property, the assailant's automobile, the

7 accuracy rate was 89 per cent shortly after the actual

8 event, according to the police interview, and 85 per

9 cent roughly half a year later. Action details were 82

10 per cent at both time points, and people descriptions

11 were 76 per cent and went to 73 per cent half a year

12 later.

13 The errors were relatively rare, and in that

14 study and many studies like this, the typical errors

15 that were made had to do with hair colour, clothing

16 colour, and misestimates of time. That is a commonly

17 observed finding in all this generation of studies.

18 The study also included at the six-month

19 interview point two misinformation suggestions to see

20 if these eyewitnesses of real crimes would accept the

21 post-event misinformation, and they did not. The real

22 life witnesses did not accept the misinformation in any

23 significant way, and there was no relationship between

24 the degree of stress and the effects on memory, so that

25 the degree of stress, even though this incident

Page 1135

1 involved threat to life, did not involve any

2 relationship to memory.

3 This study clearly establishes that, even

4 though there can be inconsistency over time, typically

5 in the direction of increased memory over time, it

6 doesn't necessarily imply inaccuracy at all for real

7 life observed events that involve significant threat or

8 potential injury or threat to life.

9 The second study, Cutshall and Yuille 1989,

10 essentially described two more actual eyewitnessing

11 events for real life crimes, and the overall accuracy

12 rate was 92 per cent over a two-year time period. I'm

13 including this because Dr. Morgan testified that the

14 Yuille studies essentially were irrelevant because they

15 included different time points than his Desert Storm

16 study, but that's not true. This study was over a

17 two-year interval, exactly the same interval in his

18 Desert Storm study.

19 Again, you can see that even there was a

20 sevenfold increase in total information over time, a

21 huge increase in new information, again, we could

22 consider that inconsistent, going from no to yes.

23 Nevertheless, the accuracy rate was, again, extremely

24 high, 92 per cent in all the information.

25 From this and a number of studies that I've

Page 1136

1 reviewed in my book like this, the consistent finding

2 is that inconsistency, particularly in the direction of

3 more information over time, doesn't necessarily imply

4 inaccuracy at all, but just the opposite, high

5 accuracy.

6 Q. Dr. Brown, in all of this research affecting

7 issues of the memory, what are, in fact, the basic

8 dimensions of memory and the effects of trauma upon

9 those dimensions?

10 A. Well, the basic dimensions of memory are, and

11 we need to be clear that these are independent

12 dimensions of memory, the degree of accuracy or

13 inaccuracy, the degree of completeness or

14 incompleteness of the memory, the degree to which the

15 memory is organised or disorganised, how consistent or

16 inconsistent the memory is over time, and, number 5,

17 how confident or lack of confidence the person has in

18 the memory. These are five separate dimensions of

19 memory, and they all have a rather complex dimension.

20 But as I've been saying, inconsistency doesn't imply

21 inaccuracy at all.

22 Now, with respect to trauma, there are very

23 few studies on accuracy of traumatic memory. There

24 are, as I could find it, three in the literature. The

25 first one is a goal-standard study by Cathy Weidham,

Page 1137

1 and this is a 20-year prospective study of a large

2 sample size. It had 1.196 children, which included 110

3 children who were physically abused, 96 who were

4 sexually abused, and a little over 500 who were

5 severely neglected. These were court-substantiated

6 cases at a high level of evidence. So the physical

7 abuse cases all had broken bones, significant

8 lacerations that required treatment in the hospital.

9 The sexual abuse cases were corroborated by several

10 types of independent evidence. So these are cases for

11 whom we have a good baseline of evidence that these are

12 court-substantiated real abuse cases. They were

13 matched with roughly the same number, a little over 500

14 normal children and all studied over 20 years, so we

15 could look at the accuracy of their memory 20 years

16 later. It's also a large sample, which, from a

17 scientific point of view, is very convincing.

18 Twenty years later, the subjects were

19 interviewed, and roughly between 37, 40 per cent failed

20 to remember the abuse. They underreported. They went,

21 in Dr. Morgan's criteria, from yes to no over 20 years,

22 but for the ones who did remember the abuse, they were

23 given four different types of self-report measures and

24 nearly a half dozen ways of looking at the validity and

25 accuracy of the reports, and the conclusion of this

Page 1138

1 study was that for those who had remembered the

2 physical or sexual abuse, their recollections 20 years

3 later were highly accurate.

4 The other study was another prospective study

5 over 17 years by Linda Meyer Williams. In that

6 particular study, it was 129 women over 17 years, and,

7 again, these were cases of children of sexual abuse

8 documented by medical records and often by physical

9 evidence and interviewed 17 years later. Sixteen per

10 cent of the women had forgotten the abuse and

11 remembered it by the time they were interviewed 17

12 years later, so they had lost and recovered the

13 memory. They had gone, essentially, from no to yes, in

14 Dr. Morgan's criteria. They looked at the accuracy

15 rates by comparing the 17-year interview dated to the

16 original medical records in both the ones who had

17 recovered the memory and the rest of the population and

18 found no differences in the error rates. So loss and

19 later recovery of the memory, a kind of inconsistency,

20 did not imply inaccuracy at all.

21 The last study was a study by Connie

22 Dahlenberg. In the Dahlenberg study, this was 17 women

23 who were treated in therapy for incest, and the entire

24 transcripts for the entire therapies over several years

25 were tape-recorded. These women had recovered a number

Page 1139

1 of new memories of abuse, physical and sexual abuse,

2 and there were two types of ways of looking at

3 accuracy. They enlisted the women, other family

4 members, including the alleged perpetrators, to be

5 fact-finders and to weigh the evidence, and then there

6 was an independent team of investigators, six

7 investigators, who would also weigh the evidence to

8 determine the accuracy of these recovered memory

9 reports and compare them to continuous memories for

10 abuse. The study essentially showed that there were no

11 differences in the memory errors between the recovered

12 memory group and the continuous memory group, so that

13 loss of a memory and its later recovery did not imply

14 anything about accuracy or inaccuracy whatsoever.

15 From the laboratory studies, from the studies

16 of eyewitnesses, and from the studies of accuracy of

17 trauma memories, all three independent data sources

18 have helped draw the conclusion that inconsistency

19 doesn't imply inaccuracy at all.

20 There are, however, other effects that trauma

21 has on memory, other than in the area of accuracy. The

22 two well-documented effects are that, number 1, the

23 memory is typically disorganised, and I don't think

24 Dr. Morgan and I would disagree about that. He cited

25 studies by Edna Foa and by Bessell van der Kolk, and

Page 1140

1 these studies, amongst others, show that the sequencing

2 of the different episodes in a memory are often

3 disorganised.

4 The second well-documented fact has to do

5 with the completeness of the memory, completeness being

6 different from accuracy. It's commonly observed across

7 many types of trauma that some individuals who are

8 traumatised will either, essentially, go from less

9 complete details shortly after the trauma to much more

10 detail over time or, in the extreme case, will have no

11 details, that is, they will be complete amnestic for

12 the trauma and then later recover the memory of the

13 trauma. The people who become fully amnestic, that is,

14 that they are on the extreme of no details, about five

15 or ten per cent of disaster and combat victims lose all

16 memory. About 10 to 20 per cent across seven studies

17 of physical abuse victims over time will lose the

18 memory for the trauma. They go from yes to no. We

19 only have one study about rape, and the rate of

20 complete forgetting is 10 per cent and of partial

21 forgetting is 11 per cent in that study.

22 Dr. Morgan said there's no data whatsoever on

23 delayed recovery of rape memories, and that's not

24 true. There are two well-detailed case reports in the

25 literature of women who -- one of a woman and one of a

Page 1141

1 man who completely lost memory and then later recovered

2 the memory for the rape.

3 In the area of childhood sexual abuse, we now

4 have 47 studies specifically on full or complete

5 amnesia for childhood sexual abuse, and Dr. Morgan

6 testified that these studies on so-called recovered

7 memories are invalid.

8 JUDGE MUMBA: Yes, Mr. Misetic?

9 MR. MISETIC: I would like to ask the witness

10 to cite these two well-detailed case reports so that we

11 can prepare for cross-examination.

12 A. The first one is Christianson and Nilsson,

13 1989. Do you want the full reference?

14 It's in a book by Archer and Nielsen. The

15 book is called "Aversion, Avoidance and Anxiety"

16 published by Lawrence Erlbaum, 1989. The second is

17 Kosniak et al, 1988. That's in the Journal of Abnormal

18 Psychology, volume 97, pages 100 to 104.


20 Q. Please continue, Dr. Brown.

21 A. Thank you. Dr. Morgan had testified that

22 these recovered memory cases were usually cases that

23 the memories were recovered in therapy, and that's not

24 true at all. In those 47 studies, only 15 of them were

25 studies where the memories were recorded in therapy,

Page 1142

1 not necessarily recovered in therapy, but since then,

2 we now have 21 community-based samples of childhood

3 sexual abuse survivors who report recovering memories

4 in a way that had nothing to do with psychotherapy

5 whatsoever, because they were never in psychotherapy

6 whatsoever, and that across all these studies the

7 association between recovering memories and being in

8 psychotherapy is less than 10 per cent. So losing

9 memories of childhood sexual abuse and recovering them

10 either fully or in more detail is a commonly observed

11 phenomena over 47 studies and it typically doesn't

12 happen in psychotherapy or through psychotherapy

13 suggestion.

14 THE INTERPRETER: Could the witness slow

15 down, please?

16 JUDGE MUMBA: Please slow down for the

17 benefit of the interpreters.

18 A. Thank you, Your Honour. So it's a commonly

19 observed phenomena that following a traumatic event, at

20 least some sub-portion of victims who are traumatised

21 will have a less complete memory or sometimes will lose

22 all their memory and then progressively, over time,

23 will recover more details, sometimes completely new

24 incidents, so this progressive recovery over time is a

25 commonly observed phenomena over all kinds of

Page 1143

1 traumatisation that has been studied.

2 There is another very specific type of

3 amnesia that has been reported called injury-specific

4 and threat-specific amnesia, and in this case, the

5 victim will remember the traumatisation as an event but

6 progressively over time they will selectively lose the

7 memory for personal injury or at least minimise that or

8 sometimes completely lose it or they'll lose the memory

9 for threat to life.

10 There is one study by MacFarlane of a major

11 brush fire in Australia, and at four months later, the

12 fire-fighters were interviewed and then eleven months

13 later. Roughly 4 per cent of the fire-fighters at

14 eleven months had forgotten significant injuries which

15 they were often hospitalised for and yet they had

16 reported them at the four-month period. They

17 remembered being in a brush fire, they remembered a lot

18 of details, but they had forgotten personal injury.

19 There is a 40-year study of Holocaust camp

20 survivors by Wagenaar and Groeneweg here in the

21 Netherlands, and 40 years later, the camp survivors of

22 camp Erika here in the Netherlands had remembered the

23 daily harsh conditions of the camp, they had remembered

24 the work routines, they had remembered the exposure to

25 cold, they had remembered the starvation. They had

Page 1144

1 difficulty with details such as dates of arrival, the

2 dates they left the camp, they had difficulties with

3 the names of the guards, and they had some difficulty

4 with photo recognition of the main perpetrator of

5 atrocities in that camp.

6 What some of them but not all of them did is

7 they had forgotten, while they had remembered all the

8 main conditions of the camp, they had forgotten, after

9 40 years, specific injuries to themselves or specific

10 torture experiences.

11 There is a child study by Pynoos of a sniper

12 attack on school children in Los Angeles where a number

13 of children were pinned down in the playground during

14 recess and a sniper fired rounds on the children for

15 two hours. One child was killed and 13 wounded, and

16 many of the children were pinned down for two hours

17 where the guns were completely going off. The memory

18 of those children were studied, and basically after one

19 year, although the children who were directly in the

20 line of fire had remembered being in the line of fire,

21 what they had -- some of them had selectively forgotten

22 or minimised was their own or others' injury. So this

23 is another example with children of what we call

24 injury-specific amnesia.

25 Now, all of what I'm talking about has to do

Page 1145

1 with the dimension of completeness, that the lack of

2 completeness of the detail of the memory is a common

3 observation following --

4 THE INTERPRETER: Slow down, please.

5 A. -- trauma. The memory can be either what I

6 call over or under general. "Over general" means they

7 have a vague sense of what happened without adequate

8 detail, and "under general" means that you get these

9 fragmented bits and pieces of memory but it's not

10 well-organised.

11 Usually, over time, you see a progression

12 from less completeness to more completeness or this

13 hypermnesic effect in trauma survivors.

14 JUDGE MUMBA: Mr. Blaxill, can we take a

15 break for the benefit of our interpreters? We shall

16 take a 15-minute break and reassemble at 11.45.

17 --- Recess taken at 11.30 a.m.

18 --- On resuming at 11.45 a.m.

19 JUDGE MUMBA: We thought we would wait for

20 the French court reporter, but you can go ahead because

21 she can catch up with the taping.

22 I wish to say at this stage, Mr. Blaxill, and

23 to both parties, actually, the Trial Chamber is not

24 interested in academic exchanges, as it were, because

25 this is a case in point which we are dealing with, and

Page 1146

1 we would like the parties to limit the expertise to the

2 relevant issues in the case.

3 MR. BLAXILL: Well, in the position we find

4 ourselves of rebuttal, Your Honours, certainly academic

5 weight has been brought forward by the Defence in the

6 sense of certain studies. We felt it is appropriate,

7 obviously, to lay the foundation that there is the

8 dispute between bodies of study and that the academic

9 conclusions, obviously, are things upon which our

10 experts base an amount of their expertise.

11 Unless we can rebut the academic issues that

12 have been put forward, it would strike me, Your

13 Honours, that, you know, you would not necessarily get

14 the full picture of what the scientific position is,

15 and it is -- a lot of this argument to date has been in

16 relation to an academic -- or through academia, the

17 interpretation of the effects on human beings in real

18 life.

19 I can assure you that the issues we see at

20 this time are about two or three major scientific

21 issues which would require some reference to science

22 and probably would not take more than 20 or 30 minutes

23 of the court time for full exposition.

24 Having said that, the bulk of what would then

25 remain, and that is not large by any means, Your

Page 1147

1 Honour, would, in fact, relate to a direct address of

2 these principles that have been espoused by Dr. Brown,

3 an application directly of those principles to, in

4 fact, the evidential charts and the suggestions in that

5 respect from Dr. Morgan by way of direct rebuttal of

6 the factual elements.

7 I therefore would ask your leave to address

8 certain things that do remain in essence and in

9 particular, and that is that certain areas of memory

10 for detail and effects of trauma on PTSD, which I

11 suggest are very relevant to the issues, and then a

12 brief address at the end of the day in relation to the

13 allegations, the biological effects on the human brain,

14 the hippocampal damage, as previously referred to. In

15 that respect, I would ask your leave to adduce the

16 evidence I had planned to, but we are endeavouring to

17 keep it to the absolute minimum for this purpose, and

18 that I can assure you.

19 JUDGE MUMBA: Yes. We appreciate that. You

20 may proceed.

21 MR. BLAXILL: I am obliged to you, Madam

22 President, Your Honours.

23 Q. Dr. Brown, if you'd bear in mind Their

24 Honours concerns about extensive academic exchange?

25 Could you just please continue with the points you were

Page 1148

1 making when we adjourned?

2 A. Yes.

3 Q. Sir, you were dealing, I think, with the

4 effects of trauma, generally speaking, on memory and

5 you've dealt with inconsistency.

6 What is the position regarding detail for

7 memory? What are the types of detail that people

8 remember and what are the findings generally speaking,

9 the predominant findings scientifically in respect of

10 those details?

11 A. The gist is usually well-remembered and

12 accurately remembered and minor details are not.

13 That's well-established as a scientific term in most of

14 the memory research.

15 Gist has been defined as what constitutes

16 plot relevance, personal meaningfulness, central

17 actions; those are usually the criterion that are used

18 to evaluate what the gist of a memory is. Those things

19 are usually highly accurately retained over time.

20 Q. When there is the presence of trauma in

21 respect of the memory, what effect does trauma

22 generally have upon the memory for gist?

23 A. Usually gist is -- like non-traumatic memory,

24 gist is well-preserved and accurately preserved and

25 details are not.

Page 1149

1 Q. What sort of details would you consider to be

2 not-so-well remembered? Would they be called periphery

3 details?

4 A. That's correct.

5 Q. What do you mean by "periphery details"?

6 A. Well, if we take the eyewitness research

7 outside of the trauma field, usually things such as

8 the -- the common errors in memory are misstating

9 errors, estimates of time duration, certain physical

10 descriptions, particularly around colour of clothing,

11 eye colour, height, hair colour, things like that, but

12 not other physical descriptions. Those are some of the

13 common mistakes.

14 Q. Where there is the presence, Doctor, of Post

15 Traumatic Stress Disorder, does that have any further

16 effect in respect of these recollections of gist and/or

17 periphery detail?

18 A. We don't really know. It's not established

19 one way or the other in terms of accuracy.

20 Q. You've made reference to certain studies in

21 the course of your evidence so far, Dr. Brown. Are you

22 aware of any significant or particular criticisms of

23 either the methodology or conclusions of any of those

24 particular studies? Have any drawn --

25 A. No, all studies have methodological

Page 1150

1 weaknesses but usually if you have multiple studies

2 looking at the same thing in different ways with

3 different types of samples, you can draw more confident

4 conclusions because when you have multiple studies, the

5 error rate in science typically goes down.

6 With respect specifically to the trauma

7 studies that are mentioned around accuracy, it is true

8 that the Dahlenberg and the Williams study are studies

9 of recovered memories, and those don't exactly apply to

10 this case in the sense that Witness A does not have a

11 situation of recovered memories, but they do apply to

12 the case in terms of Dr. Morgan's criteria of going

13 from "No" to "Yes" for new events and they certainly do

14 apply to this case because they address the issue of

15 accuracy for traumatic memory.

16 MR. BLAXILL: If I may just have a moment,

17 Your Honour?

18 Your Honours, at this stage, I would like to

19 move to a review indeed of the evidence of the witness

20 and issues relating to the boards that have been

21 brought to court by the Defence.

22 Now, I think the safest course, because those

23 boards will be the highlight of this and virtually the

24 main focus of any questions, I think it would be

25 appropriate at this stage to go into fully closed

Page 1151

1 session. Once we have dealt with that exercise, we

2 would then be able to return, after one issue, part

3 academic, we would then return to open session for

4 literally the final issue of my examination.

5 JUDGE MUMBA: Yes. We will go into closed

6 session.

7 MR. BLAXILL: Thank you, Your Honour.

8 (Closed session)

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Page 1152











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Page 1162

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23 (Open session)

24 MR. BLAXILL: Your Honours, this is the last

25 point we're going to be covering. We shall not be

Page 1163

1 long.

2 Q. Dr. Brown, one final area I would ask you to

3 give us the benefit of your expert opinion on, and that

4 is in respect of Dr. Morgan's testimony in connection

5 with, if I understand it correctly, the effects of fear

6 arousal on the hippocampus part of the brain causing

7 some kind of physical damage which effects memory.

8 Could you elucidate further on that subject?

9 A. Yes. Dr. Morgan testified that from brain

10 imaging studies on humans and a variety of animal

11 studies, that there is evidence for hippocampal damage

12 in trauma patients and that this may explain the memory

13 deficits in certain traumatised individuals.

14 First, since no brain imaging techniques were

15 ever conducted on Witness A, these results are somewhat

16 speculative. We don't know that she has hippocampal

17 damage, and it's not clearly established whether she

18 meets all of the criteria for PTSD or at what point in

19 time she met those criteria.

20 Second, I have some concerns about the data

21 analysis of the Bremner et al 1995 study which

22 Dr. Morgan relied on for this. The first concern has

23 to do with the method of measurement, which is

24 essentially to take a brain image and then to trace

25 this image with a mouse cursor and have several people

Page 1164

1 trace it with a mouse cursor. Now, certainly, when you

2 trace this with a mouse cursor, there's a certain error

3 rate, and there was no report in the paper about what

4 that error rate is. But since the magnitude of the

5 effect, 8 per cent, in the right hippocampus is already

6 small, that magnitude of effect may be in part or fully

7 as a result of error rate, simply because of the

8 imperfect measurement that tracing with a mouse cursor

9 implies.

10 Secondly, the Court needs to be aware that

11 that particular paper in the American Journal of

12 Psychiatry 1995 by Bremner had a miscalculation of the

13 results, and Bremner, in a letter to the American

14 Journal of Psychiatry in June of 1997, based on a

15 recalculation of the results, the significance level

16 was .06. The generally accepted level of significance

17 in the field of science is .05. In other words, when

18 the data was recalculated, the results were found to be

19 insignificant, as reported in the American Journal of

20 Psychiatry. It's an invalid study.

21 I don't disagree with Dr. Morgan, however,

22 that there are studies, including this one, that

23 present evidence for hippocampal damage. Most of these

24 are studies with chronic veteran inpatients looking at

25 hippocampal changes over many years, and in the Bremner

Page 1165

1 study that Dr. Morgan referred to, and also in a recent

2 one by Gurewitz et al, both of these were with chronic

3 vet populations, most of whom had significant alcohol

4 dependence. I'm not sure that his attempt to look at

5 years of alcoholism was an adequate way of ruling out

6 the more obvious finding that some of the hippocampal

7 damage could be caused by long-term alcohol use and the

8 nutritional deficits associated with that, what we call

9 Korsakoff syndrome, which is well established in

10 relation to hippocampal damage.

11 Lastly and much more relevant, there is one

12 study by Sandy MacFarlane that looked at hippocampal

13 volume over a one-year time period, exactly the time

14 period relevant to the facts in this case. It was done

15 with motor vehicle accident victims who did and did not

16 have post-traumatic stress, and then one year later,

17 they looked at hippocampal volume and they found no

18 significant differences. That's a population that

19 doesn't have long-term chronic characteristics and so

20 forth or alcohol dependence. So with the

21 methodological difficulties of these studies aside, the

22 only study that seems to be relevant to the time frame

23 did not show hippocampal damage in motor vehicle

24 accident victims with PTSD in a one-year time period.

25 Lastly, Dr. Morgan testified that the memory

Page 1166

1 deficits were related to fear arousal. It's more

2 complicated than that. There's a study by Bruce Perry

3 on the complex interaction between dissociation and

4 fear arousal. Dissociation is a personality trait

5 again. People who are high dissociates in the face of

6 trauma usually have a low fear arousal. They can

7 essentially compartmentalise in such a way that they

8 minimise the effects, direct effects, of the fear

9 arousal. In Dr. Perry's research and many others'

10 research, dissociation, not fear arousal per se, turns

11 out to be a better predictor of long-term memory

12 changes related to trauma.

13 MR. BLAXILL: Thank you very much,

14 Dr. Brown. That, in fact, concludes my

15 examination-in-chief, Your Honours.

16 JUDGE MUMBA: Thank you. We are just a

17 minute before our lunch break. We shall continue with

18 cross-examination this afternoon, 14.30 hours.

19 Court will adjourn.

20 --- Luncheon recess taken at 12.27 p.m.






Page 1167

1 --- On resuming at 2.30 p.m.

2 JUDGE MUMBA: We are proceeding with

3 cross-examination, is it?

4 Now, before you start, Mr. Misetic, I wish to

5 draw to the attention of the parties, both parties to

6 these proceedings, that the Chamber has received

7 applications for submissions of amicus curiae briefs,

8 and the Chamber has granted leave in one and is in the

9 process of granting leave in the other application, and

10 the Chamber would like to invite the parties, if they

11 wish to, to make submissions or comments regarding

12 these briefs by Friday next week, and the submissions

13 should be in writing, so they are free to do so. If

14 you feel there are submissions here on which you wish

15 to comment, you can do so. If you don't feel like

16 doing so, it's up to you. But if any submissions are

17 to be made or comments are to be made, they should be

18 in writing and be submitted by Friday next week.

19 You may proceed, Mr. Misetic.

20 MR. MISETIC: Thank you, Your Honours.

21 Cross-examined by Mr. Misetic:

22 Q. Good afternoon, sir.

23 A. Good afternoon.

24 Q. Let's start off right where you left off at

25 the end of the examination. We were talking about the

Page 1168

1 hippocampus, I believe. Perhaps there may have been

2 some ambiguity in your comments and I'm asking you to

3 clarify them. You were questioning the studies

4 regarding the hippocampus but you weren't actually

5 questioning the fact that there is hippocampal

6 differences in people who suffer trauma as opposed to

7 people who don't suffer trauma.

8 A. I'm questioning the findings of differences,

9 actually. As I testified, the findings of hippocampal

10 differences are usually with chronic vet populations

11 for which other alternate explanations, like chronic

12 alcoholism and hippocampal damage associated with that,

13 have not been sufficiently ruled out, and even that

14 aside, those studies where hippocampal damage has been

15 reported, they are long-term studies. The only study,

16 the MacFarlane study of short-term effects, doesn't

17 show hippocampal damage, and that's more relevant to

18 the time frame of this case.

19 Q. Doctor, do you recall testifying in a case

20 called State of Rhode Island versus John Quattrocchi,

21 Q-U-A-T-T-R-O-C-C-H-I, in March of this year?

22 A. Yes.

23 Q. I'm going to read you a passage from one of

24 the transcripts that I have of your testimony and ask

25 you to comment as to whether or not you gave this

Page 1169

1 testimony specifically regarding the hippocampus. You

2 were talking about -- perhaps I can get copies for

3 everyone, if the Court wishes?

4 THE REGISTRAR: The document is marked D39.

5 JUDGE MUMBA: Can we have the page you are

6 referring to?

7 MR. MISETIC: Page 87, Your Honour. Your

8 Honours, I'll move on and then we'll correct the

9 differences in the transcripts. I believe each of us

10 now has a separate section of the document, so I will

11 put them together later on and move on to a different

12 portion.

13 Q. Dr. Brown, you testified towards the end of

14 your testimony about a concept known as memory

15 suggestibility; correct?

16 A. Well, there's two things. Memory

17 suggestibility has to do with the trait and memory

18 suggestion has to do with supplying a list of that

19 misinformation in an interview or otherwise.

20 Q. Right. But I asked you whether you talked

21 about memory suggestibility.

22 A. The trait, yes. I'm just clarifying.

23 Q. When you say "trait," what do you mean by

24 that? Do you mean that that's something that's within

25 the person themselves?

Page 1170

1 A. It's a relatively enduring and stable

2 characteristic over time. That's all it means. It

3 doesn't necessarily mean the person is born with it.

4 JUDGE MUMBA: Witness, please do slow down

5 for the interpreters.

6 THE WITNESS: Thank you, Your Honour.


8 Q. Now, people on the higher end of that

9 scale -- first let me ask you this, I'm sorry.

10 Memory suggestibility and hypnotisability,

11 are those pretty much synonymous terms?

12 A. No, they're not.

13 Q. What's the difference?

14 A. Hypnotisability involves a number of

15 dimensions of suggestibility of which specifically

16 memory suggestibility would be one aspect, so there is

17 somewhat of a relationship between the two but they are

18 not to be equated.

19 Q. Okay. Let's talk about hypnotisability

20 then. That is also a trait, is it not, sir?

21 A. Yes, and that turns out to be a relatively

22 stable trait. We have test/retest studies of that

23 going over 20 years.

24 Q. Now, people who are highly hypnotisable, they

25 also have memory distortion, isn't that correct, or

Page 1171

1 confabulation?

2 A. Well, it's more specific than that. About 25

3 per cent of highly hypnotisable individuals, and that

4 translates to about roughly 4 or 5 per cent of the

5 general population, will, under certain conditions,

6 accept misinformation suggestions in a laboratory

7 setting, largely for peripheral information, sometimes

8 for complex events.

9 Q. Is it also true that under other types of

10 situations, that percentage rises as high as 80

11 per cent; isn't that correct, Doctor?

12 A. Yes, I testified that we have an interaction

13 between the trait suggestibility and the systematic

14 pattern of suggestive influences, so if you have a

15 person who is moderate to highly hypnotisable, if you

16 essentially blitz them with misinformation in

17 interviews, particularly across interviews, then, of

18 course, that will -- that rate of distorted memory will

19 significantly rise, yes.

20 Q. Isn't it also true, Doctor, that by

21 definition, someone who is diagnosed PTSD is highly

22 hypnotisable?

23 A. No, not by definition.

24 Q. I'll ask you this then, Doctor. Is it true

25 that someone who is diagnosed with PTSD is much more

Page 1172

1 highly hypnotisable than the average person?

2 A. Moderately more hypnotisable. On the

3 standardised measure of hypnotisability called the

4 Stanford Hypnotic Suggestibility Scale, Form C, the

5 average person will score 5.5 out of 12 points. The

6 average person with a diagnosis of post-traumatic

7 stress will score 8.5, which puts them in a modest but

8 slight increase, yes.

9 Q. Doctor, that's not my question. I'm asking

10 you whether you agree with the way I'm asking you the

11 question.

12 Is it true that someone who is diagnosed with

13 PTSD is much more highly hypnotisable than the average

14 person; do you agree or disagree?

15 A. I disagree, no. That statement is too

16 simple. It means there's an association.

17 Q. Doctor, I'm going to lay the foundation for

18 these transcripts and these, I'm sure ...

19 Dr. Brown, do you recall testifying in a case

20 called Patricia Lauder versus Ruediger Grimm,

21 R-U-E-D-I-G-E-R, last name spelled G-R-I-M-M; "Yes" or

22 "No"?

23 A. Yes.

24 Q. Isn't it true, Doctor, that that was a case

25 in which a woman accused her therapist of sexually

Page 1173

1 abusing her?

2 A. Amongst other things, yes.

3 Q. Isn't it true, Dr. Brown, that you testified

4 on behalf of the therapist in that case and not only

5 came to the conclusion that her memory for peripheral

6 details was inaccurate but that she had made the whole

7 thing up and that it was a product of her fantasies?

8 A. That's not what I testified.

9 Q. What did you testify?

10 A. I testified that based on the fact that there

11 was a third party who was a massage therapist who kept

12 notes and for whom in those notes there was a

13 systematic pattern of implanting information about

14 abuse because the massage therapist's former husband

15 had been convicted of several counts of misconduct, he

16 was a physician, based on the evidence of that pattern

17 that a plausible explanation that the licensing board

18 in its determination should have considered was that

19 the allegations were a result of a systematic pattern

20 of misinformation suggestion.

21 Q. Doctor, my question is pretty

22 straightforward: Was your conclusion that it was

23 likely that this woman's account of being sexually

24 abused by her therapist was a product of her fantasies?

25 A. I wouldn't use the words "product of

Page 1174

1 fantasies," no, I wouldn't conclude that.

2 Q. Use your own terminology, but is that

3 basically the "gist" in your words?

4 A. I didn't draw that conclusion. I presented

5 the misinformation research to the Court for the Court

6 to draw that conclusion.

7 MR. MISETIC: Your Honours, I would present

8 the witness with copies of his testimony in that case

9 so that we can examine exactly the basis of what his

10 conclusions were.

11 Q. Doctor, first, because you disputed my

12 characterisation with respect to PTSD patients, I will

13 cite you to page 49 of this transcript.

14 THE REGISTRAR: The transcripts are marked

15 D40.

16 MR. MISETIC: I'm sorry. Let me find the

17 specific page. I'm sorry, 59.

18 Q. Is this statement correct, Doctor, that if an

19 individual is in a moderate to high range of

20 hypnotisability, then that person is vulnerable to the

21 condition of increased distortion to the accuracy of

22 the recall; is that correct?

23 A. I don't have that on page 59. I'm sorry.

24 Q. That may be why I was confused. Let's start

25 at line 12. "Now, that also applies, I think, to this

Page 1175

1 particular case --"

2 A. What page, please?

3 Q. Forty-nine.

4 A. Forty-nine.

5 Q. Are you there?

6 A. Yes, I understand.

7 Q. Line 12: "Now, that also applies, I think,

8 to this particular case. If you look at the research

9 on hypnotisability --" I'm sorry, "particularly in

10 terms of areas of psychopathology, the people who are

11 given a diagnosis of post-traumatic stress usually are

12 significantly more highly hypnotisable than the normal

13 population." That was your testimony; correct?

14 A. Yes.

15 Q. Thank you. These people, when they have this

16 trait, it makes them suggestive to outside influences;

17 correct?

18 A. Yes, mostly correct. Under certain

19 conditions for certain kinds of suggestions, yes, but,

20 generally, it's higher.

21 Q. Isn't it true, Doctor, that a person who is,

22 by trait, highly hypnotisable, to use that term, as a

23 PTSD patient is, according to this statement, that they

24 can have a false or -- I'm sorry, I'll use your

25 terminology, a pseudo memory or a confabulated memory,

Page 1176

1 just through the process of self-suggestion?

2 A. The difficulty I'm having with the question

3 is you're wording it in terms of the person. This

4 statement says "people usually do" which means it's an

5 association. When you word it in terms of "the

6 person," it means that it's an absolute connection,

7 that every different person is going to be suggestible

8 if they are either hypnotisable or have PTSD. That's

9 not the way it works. But in the spirit of there's an

10 association there, then I certainly would agree that

11 people who have a higher capacity for hypnotisability

12 and specifically for memory suggestibility can distort

13 their own memory through a self-suggestive process.

14 That's true.

15 Q. People with Post Traumatic Stress Disorder

16 are people who are in the high hypnotisability range?

17 A. It's not a one-to-one correlation.

18 Generally, that's true, but that doesn't apply to a

19 specific case. It's just a general correlation.

20 Q. I'm not asking you to apply anything to a

21 specific case. We're talking generalities here.

22 A. Okay. With that caveat, yes.

23 Q. Did you examine the victim in this case,

24 Doctor?

25 A. No, I did not.

Page 1177

1 Q. Yet you were able to come to certain

2 conclusions about her in that case; isn't that right?

3 A. I don't know if I came to certain conclusions

4 about her in the case.

5 Q. Well, did you not come to the conclusion that

6 people who are in the high hypnotisability range and

7 who, having never been subjected to these prolonged

8 outside forces of suggestibility, still are not

9 credible witnesses in a courtroom, generally speaking,

10 of course?

11 A. As an expert witness, I don't feel

12 comfortable making a comment on her credibility to the

13 Court. That's for the triers of fact.

14 Q. I asked you generally.

15 A. Can we agree on a different word than

16 "credibility" like "memory distortion"?

17 Q. You can confirm it or deny it.

18 A. Then I would have to decline.

19 Q. I turn to page 101 of this transcript. At

20 the bottom, "THE WITNESS: I am suggesting that people

21 in the high hypnotisable range are more vulnerable to

22 cognitive distortion of their memory and that those

23 people are going to be less credible on the stand than

24 other people. That is true." Is that your testimony

25 in that case, Doctor?

Page 1178

1 A. That was my testimony, and I wouldn't agree

2 with that now.

3 Q. You're disavowing the testimony now?

4 A. No. This was, I think, probably the first

5 case I ever testified in, and I have more appreciation

6 for my role as an expert. I don't make statements

7 about credibility.

8 Q. Doctor, are you disavowing your testimony in

9 that case now or not?

10 A. I think a better word would have been

11 "reliable."

12 Q. Is it disavowed or isn't it?

13 A. The gist of it is not, no.

14 Q. Doctor, you realise, do you not, that this

15 case went to the Supreme Court of New Hampshire and was

16 ruled upon in 1997; isn't that correct?

17 A. I think so, yes.

18 Q. When did you alert the Supreme Court of New

19 Hampshire that you had changed your opinion in the

20 underlying case?

21 A. I don't think I've changed my opinion.

22 Q. So you stand behind what you said --

23 A. I'm just saying --

24 Q. -- on page 101 that there are less credible

25 witnesses?

Page 1179

1 A. I'm just saying that "reliability" would have

2 been a better choice of a word. It's no more

3 complicated than that.

4 Q. I'm now asking you if you are disavowing the

5 statement or not?

6 A. The gist of it, no.

7 JUDGE MUMBA: Let's move on because we're not

8 retrying this case being referred to.


10 Q. Sir, if a PTSD patient is in the high

11 hypnotisable range, it's true, is it not, that their

12 testimony in a courtroom would be less reliable than an

13 average person who was not suffering from that illness?

14 A. It's true that we would raise questions about

15 the reliability. It still is for the triers of fact to

16 determine that. That's all.

17 Q. I understand that, Doctor, but I'm asking you

18 again in generalities. We understand very well that

19 this Court is going to make a determination in this

20 specific case. Generally speaking, isn't it true that

21 a person suffering from Post Traumatic Stress Disorder

22 is likely to be less credible in a courtroom than the

23 average person?

24 A. You're asking the question differently.

25 Originally, I said post-traumatic stress and high

Page 1180

1 hypnotisable. Do you want a combination or just

2 post-traumatic stress because there's a different

3 answer to each.

4 Q. People with PTSD, generally, are highly

5 hypnotisable; correct, Doctor?

6 A. They are moderately more hypnotisable. I

7 think that was my testimony. It goes from 5.5 to 8.5.

8 Q. Sir, are they significantly more highly

9 hypnotisable than the normal population?

10 A. Moderately significantly, not significantly

11 more highly.

12 Q. Okay. Does it make a difference whether it's

13 moderately or highly?

14 A. Yes, because --

15 Q. What's the difference?

16 A. -- because the research on pseudo memories in

17 hypnosis shows very clearly that it is largely

18 restricted to the high hypnotisable range, which

19 usually is defined as a score between 10 and 12. That

20 makes a big difference.

21 Q. Even moderately hypnotisable people,

22 according to your testimony in that case, have a

23 capacity for confabulation and pseudo memory; correct?

24 A. Some capacity, but it's not a great capacity.

25 Q. Doctor, what did you conclude in that case?

Page 1181

1 Let's get to the point.

2 A. My fundamental conclusion in that case was

3 that it was the patent of systematically supplied

4 misinformation as a plausible explanation for the

5 sexual misconduct allegations. It wasn't primarily

6 about traits of hypnotisability or memory

7 suggestibility. It was more about the evidence,

8 whether it was a pattern of misinformation

9 suggestibility.

10 JUDGE MUMBA: The reporter is asking us to

11 slow down, if the witness can speak slowly.



14 Q. Isn't it true, Doctor, that when you talk

15 about this pattern of hypnotisability, you're actually

16 referring to the fact that in that case, the woman's

17 massage therapist, on one occasion, asked her whether

18 she had had a sexual relationship with her therapist?

19 A. It's not a pattern of hypnotisability. It's

20 a pattern of misinformation suggestibility.

21 Q. Right.

22 A. I don't recall the number of occasions where

23 it came up.

24 Q. Can I refresh your recollection?

25 A. Please.

Page 1182

1 Q. Page 115, please, and let's start at 14: "In

2 hypnosis or even not in hypnosis, there is some

3 research on so-called providing leading suggestion and

4 what that does to memory. If you say to the

5 person, 'Did you see the stop sign --"

6 A. I'm sorry. I don't know where you are. I

7 can't find it.

8 Q. I have it as page 115?

9 A. Line?

10 Q. Line 12 is where I started.

11 A. Thank you very much.

12 Q. I'm now at line 15.

13 THE INTERPRETER: Would counsel read slowly,

14 please?

15 JUDGE MUMBA: Mr. Misetic, please do read

16 slowly.

17 MR. MISETIC: I will try.

18 Q. " ... there is some research on so-called

19 providing leading suggestion and what that does to

20 memory. If you say to the person, 'Did you see the

21 stop sign,' after that, you get the incorporation of

22 the stop sign into the memory. They believe it even

23 though there wasn't a stop sign in the videotape. This

24 is an example of that. Only in this case, it is not,

25 'Did you see the stop sign'; it is, 'Did you have sex

Page 1183

1 with the therapist.'"

2 A. Yes.

3 Q. Yes. Based on that comment, you are able to

4 conclude that that was the pattern of suggestibility?

5 A. I think there was more than just that comment

6 in the original transcript, but I don't remember the

7 pattern at the moment.

8 Q. Yes. There was more, and let me call your

9 attention to what the second part of your testimony

10 was. That is on page 123, and let's start at 16:

11 "Now, again, I think that is relevant in this case

12 because since the allegations were put forth on the

13 original complaint level, and we have a lot of

14 post-event information, that can further contribute to

15 this type or this kind of contextual biasing, and that

16 would include, for example, involvement with victims of

17 sexual abuse or sexual misconduct by therapists in

18 various ways, like participation in a group for

19 survivors."

20 You continue on line 5: "And the network

21 and reading information about this and educating one's

22 self about this. So all of these have become

23 significant post-event sources of information that then

24 get incorporated into the memory, which is also then

25 believed, and one constructs a rather elaborate meaning

Page 1184

1 system. Which is one of the reasons why, and going

2 back to when we originally started with this, it makes

3 it very problematic in terms of doing a diagnostic

4 interview with this patient at this point."

5 You made a conclusion there at the end of

6 that sentence, that it was because of those factors

7 that it was difficult doing an interview with that

8 patient; correct?

9 A. I made the conclusion that because of those

10 factors, at this point in time, there was a likelihood

11 that her memory was quite distorted about what really

12 happened, yes.

13 Q. Okay, Doctor, I've read these transcripts ten

14 times. Those are the factors upon which you relied to

15 conclude that Patricia Lauder was likely suffering from

16 a confabulated memory and was going to be a less

17 credible witness in the courtroom than the average

18 person. I'm going to ask again, your conclusion in

19 that case was, on suggestion by a massage therapist

20 asking her whether she had had sexual intercourse with

21 her therapist, her involvement with a group of abuse

22 victims, based on those two factors, that, to use your

23 language, pattern of suggestibility, her memory was

24 likely confabulated; is that correct?

25 A. I think that somewhat mischaracterises my

Page 1185

1 testimony, in that there wasn't just one occasion of

2 misinformation suggestibility. In the record, there

3 was a pattern for that. In the transcript that you

4 read into testimony here, it was just giving one

5 example to the Court about how misinformation

6 suggestion works.

7 There were other things in the record from

8 the massage therapists. The group was not a general

9 group. The group was a group specifically for women

10 who had experienced sexual misconduct by their

11 therapists. They specifically shared their stories in

12 the group for over a year. This woman went into that

13 group without having any memories of having sexual

14 misconduct by the therapist. She had a suspicion of

15 it. But after sharing the stories for a long time in

16 that group, eventually, her belief about this clearly

17 was shaped. She also read a lot of material put out by

18 that group called Basta. So it was the combination of

19 all of those factors that resulted in the shaping of

20 her beliefs over time.

21 Q. That's significantly different from what your

22 testimony was this morning, is it not, in terms of you

23 were suggesting that victims of trauma don't associate

24 with people, that they have very high recall, that they

25 acquire more details as time goes by; isn't that

Page 1186

1 correct? Did you qualify that at all this morning?

2 A. That testimony was specifically about what we

3 know about memory for trauma and memory for events of

4 impact, independent of the issue of memory suggestion.

5 The testimony about memory suggestibility was

6 specifically about the interaction of the trait and a

7 pattern of systematic suggestion. In that case, there

8 is no inconsistency here.

9 Q. You don't know who Witness A had contact

10 with, do you?

11 A. No more than the materials that have been

12 provided to me.

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 Q. You also know that she had contact with

20 certain individuals who were in charge of collecting

21 war crimes information; correct?

22 A. I think so, yes.

23 Q. You think so. Who is that person?

24 A. I don't know the answer to that.

25 Q. Who was that person in terms of this case?

Page 1187

1 A. I can't answer that. I don't remember.

2 Q. I thought you said you think so?

3 A. Yes, but I don't know the detail right at

4 this moment. I don't.

5 Q. Are you aware that that person took her first

6 statement?

7 A. Can you give me a name? That might refresh

8 my memory. Other than that, I can't answer the

9 question.

10 (redacted)

11 A. I don't remember it.

12 Q. So you weren't aware of that fact?

13 A. I may have been but I don't remember.

14 Q. When you testified this morning, you were

15 unaware of that fact; correct, Doctor?

16 A. Yes, fair enough.

17 Q. Isn't it true, Dr. Brown, that in this

18 testimony, you said that even if a person is not being

19 suggestible, you're asking non-leading questions, the

20 person is still likely to confabulate memory?

21 A. No. I don't think that is true.

22 Q. Page 279, please.

23 A. I don't have that. This goes up to page --

24 Q. There should be a second volume.

25 A. Okay.

Page 1188

1 Q. Line 14: "If a person is just generally

2 asked neutral, non-leading questions, isn't the

3 research, that is not generally a problem?" Your

4 answer: "No, that is not what the research says. If

5 you ask any questions at all, it is a problem. If you

6 ask neutral questions, it minimises the confabulation

7 but it doesn't eradicate it. If you ask a leading

8 question, it compounds it. But the issue of

9 confabulation is built into the use of hypnosis or,

10 better, to the hypnotisability and a certain

11 characteristic of the particular patient."

12 Is that your testimony in that case,

13 Dr. Brown?

14 A. Yes.

15 Q. So even questions like "Witness A, what

16 happened to you?" assuming that she is highly

17 hypnotisable, would confabulate her memory?

18 A. Your original question to me said "likely to

19 confabulate" and that would mischaracterise things. We

20 have a hierarchy here. Free recall minimises but

21 doesn't eradicate distortion of memory. Asking

22 specific questions causing a slight increase in the

23 distortion rate, asking leading questions causes

24 another rise, and asking systematic misleading

25 questions causes a significant rise. So we're talking

Page 1189

1 about on a continuum here. That continuum of supplying

2 misinformation has to be weighed against the degree of

3 memory suggestibility of that given individual. So

4 let's say, for example, you have an extremely high

5 memory suggestible individual. A small amount of

6 misinformation can distort the memory. If you have

7 somebody in the moderate or lower range, you'd have to

8 systematically supply this information to get a

9 significant distortion.

10 Q. Doctor, let's look at page 276, please, line

11 13: "But when somebody brings up something upsetting,

12 you are saying that Ms. Lauder is likely to be in some

13 altered state?" Answer: "That's correct." Question:

14 "And that's the basis for this --" Your answer: "Or

15 if she brings up something upsetting, like the

16 references to the fact that there was something about

17 the previous therapy that bothered her, that's a

18 situation in which she is more likely to go into

19 trance." Question: "And that causes her to

20 manufacture additional details about events --"

21 Answer: "'Manufacture' is too intentional. I wouldn't

22 say that." Question: "'Confabulate.' Excuse me. Is

23 that the word?" Answer: "'Confabulate,' yes."

24 Was that your testimony?

25 A. That's my testimony, but it's important to

Page 1190

1 clarify here that the diagnosis of this patient, in

2 addition to post-traumatic stress, was essentially

3 multiple personality disorder now called dissociative

4 identity disorder. People with multiple personality

5 disorder score on the average 10.5; that puts them in

6 the extreme high range of memory suggestibility. So

7 the testimony here is very specific about a

8 particular --

9 COURT REPORTER: I'm sorry, I'm getting the

10 French interpretation on Channel 4.


12 Q. You have no idea what range of

13 hypnotisability Witness A is in; correct?

14 A. No, I do not.

15 Q. And that really, absent independent

16 corroboration, there is no way to determine whether she

17 has been confabulating memories or whether she is

18 accurate; isn't that right?

19 A. That's really for the triers of fact. It's

20 not an expert question.

21 Q. It is your opinion, Doctor, that in

22 determining or evaluating a person, there is no way to

23 determine whether they can -- whether they are telling

24 you a true version of events or are confabulating

25 memories if they are in the high hypnotisability range?

Page 1191

1 A. It would lower our confidence in the

2 evidence, that's certainly true.

3 Q. Right. But you would also say you need

4 independent corroboration?

5 A. Exactly.

6 Q. Right. So in this particular case, can you

7 determine whether Witness A was confabulating or not

8 confabulating?

9 A. If you're asking me --

10 JUDGE MAY: Well, that is the question that

11 we are going to have to answer, isn't it? I don't

12 think we are assisted by these generalised questions.

13 That's my opinion.

14 MR. MISETIC: My point, Your Honour, is that

15 he's taken a direct contrary position in a different

16 case which was not revealed this morning with respect

17 to the accuracy of sexual abuse victims in particular

18 and trauma patients generally, and these factors about

19 hypnotisability, et cetera, there is this significant

20 element that a PTSD patient is in that very high

21 hypnotisability range, and this is his testimony in

22 this case.

23 MR. BLAXILL: I must object to that, Your

24 Honours. I am certain that at no time has Dr. Brown

25 said in the high range of hypno-suggestibility. I

Page 1192

1 think he has conceded to the words "moderately

2 significantly higher" than a person without, but that

3 is a very different thing to the classification of the

4 high range which my friend keeps alluding to. That's

5 not what Dr. Brown has said.

6 MR. MISETIC: The testimony specifically is

7 that they are much more highly hypnotisable than the

8 normal person. And it is upon that I must rely.

9 MR. BLAXILL: I'm sorry, again I must object

10 because he didn't use the word "much." Dr. Brown would

11 not respond positively to my friend on the word

12 "much." He said "I will accept 'moderately

13 significantly'" more so than people without PTSD or

14 trauma, if I understand Dr. Brown correctly. My friend

15 is trying to exaggerate it.

16 JUDGE MUMBA: Yes, Mr. Blaxill, you are

17 correct in analysing the evidence of the witness.

18 Mr. Misetic, can we go on?


20 Q. You don't need to determine, do you, Doctor,

21 you don't need to formally evaluate anyone in order to

22 determine they are highly hypnotisable; isn't that

23 right?

24 A. I wouldn't agree with that, no. There are

25 standardised assessment instruments for

Page 1193

1 hypnotisability, and those are generally accepted in

2 the field. You can try to estimate it indirectly, but

3 it is certainly not as reliable.

4 Q. In this particular case -- let's just go look

5 at what you said on page 51 of that case.

6 A. "Case" meaning the Lauder-Grimm case?

7 Q. Yes. You're asked a question, and the

8 question is: "Doctor, if I can understand what you are

9 saying there, you believe, from studies and your own

10 experience, that a patient with a diagnosis such as the

11 plaintiff's is likely to be highly susceptible to

12 hypnosis, and that is including self-hypnosis." "I

13 would say highly likely." Question: "Highly likely.

14 But there was no study done that you have seen in this

15 record which demonstrates that that was, in fact, the

16 case with Ms. Lauder? You are relying on probabilities

17 and statistical --" Your answer: "No. I am not just

18 relying on that. Allow me to add something further to

19 that because I think it is important to understand.

20 There was no use of the formal laboratory or standard,

21 formal laboratory standardised hypnotisability scales,

22 so far as I could see in the data that I had available

23 to me; however, we can say that we can develop some

24 assessment of her hypnotisability based upon her

25 response to the hypnosis, and both to Dr. Drukteinis

Page 1194

1 and Dr. Grimm, she seemed to be very responsive to the

2 hypnosis as we can gather from the notes in both of

3 those treatments --"

4 THE INTERPRETER: Counsel is reading too

5 fast. The interpreters do not have any copies of these

6 texts.

7 JUDGE MUMBA: The interpreters don't have

8 copies of these texts so they are relying on how fast

9 you are reading and they say you are reading too fast.

10 Can you be slower?


12 Q. "... and in that sense, we can say that

13 without, in the absence of a formal measure of that, it

14 is likely that she is in the high hypnotisability

15 range. I don't see any evidence at all in the record

16 that she was given a suggestion of hypnosis that she

17 didn't follow." Is that correct?

18 A. That's correct because this is a case about

19 dissociative identity disorder, is the main diagnosis,

20 or multiple personality, it's not just about PTSD.

21 Q. Doctor, that's not the way you qualified it

22 in your answer and so --

23 A. I did qualify it in the answer. It also says

24 here that she was treated with hypnosis by two

25 different treaters and she was responsive to hypnosis

Page 1195

1 all the way along through that treatment, and because

2 hypnosis was administered, that gives us some data to

3 assess her hypnotisability. It's not a shot in the

4 dark. But she wasn't given a formal measure.

5 Q. And right beneath that, you said -- you

6 answered a question by saying: "That's correct, but

7 suggestions can not only mean susceptible to

8 suggestions by others but also to self-suggestions."

9 A. For the person with multiple personality.

10 Q. Let me finish. "Both are quite possible and

11 highly likely."

12 Now, Dr. Brown, again you were talking in

13 that case about the hypnotisability scale; correct?

14 A. Scales. There's a number of them, but there

15 are standard assessment instruments, yes.

16 Q. Yes. And you agree that a PTSD patient is

17 more highly hypnotisable than the average person?

18 A. Modestly so. It's the DID or the

19 dissociative identity disorder patient who is highly

20 hypnotisable as relevant to this particular Lauder

21 versus Grimm case.

22 Q. Okay. But you didn't have to formally

23 examine her. You made conclusions about reliability --

24 I should say "likely reliability" based on certain

25 indicators that you obtained from the record; correct?

Page 1196

1 A. Indicators are history responsiveness to

2 hypnosis but not formally assessed over a long period

3 of treatment.

4 Q. Right. But you're basically saying -- you

5 basically made an evaluation of her without examining

6 her; correct?

7 A. In terms of a probability range, yes.

8 Q. So what is the probability range here,

9 Doctor?

10 A. I don't know the answer to that. I don't

11 think there is any evidence whatsoever that she has a

12 multiple personality, or now called dissociative

13 identity disorder. She has some dissociative symptoms

14 like time loss, which are common in trauma survivors,

15 as Dr. Morgan testified about, and that I would agree

16 with. I certainly don't think she has a major

17 dissociative disorder as a diagnosis. And whether she

18 has post-traumatic stress, she certainly has some

19 post-traumatic stress symptoms. Whether she meets the

20 full criteria, it's not fully established, but she

21 certainly has some symptoms, and I would agree with

22 Dr. Morgan on that. It's not established at what point

23 in time she did have those, so that is as far as I can

24 say from the evidence at hand.

25 Q. Doctor, even in this self-induced state of

Page 1197

1 hypnosis that you talked about in this case, isn't it

2 true that it is likely, because of the suspension of

3 critical thinking, one is much less able to distinguish

4 between one's own internal fantasy production and

5 actual memory of the event? Isn't it true the ability

6 to discriminate is lost in that state?

7 A. Well, this is a compound, two questions, so I

8 have to split it. The first part is about a

9 self-induced state, and in the Lauder versus Grimm

10 testimony, that's specifically referring to multiple

11 personality disorder because there is literature

12 documenting that self-hypnotic suggestions in causing

13 distortion is commonly observed in patients with that

14 diagnosis, not PTSD.

15 The second part of the question has to do

16 with suspension of critical thinking in hypnosis, and I

17 would agree with that. That does happen.

18 Q. Okay, Doctor. We're coming up on a break, so

19 I'm going to ask you, during the break, if you can look

20 through the testimony and find for us where you

21 qualified all of these opinions on the fact that she

22 was multiple personality and then we can talk about

23 them after the break because, quite frankly, I can't

24 find any qualification on your testimony in the

25 transcripts.

Page 1198

1 Isn't it true also, sir, that people who are

2 in this higher end of the hypnotisability scale -- and

3 we won't quibble about who is where on that scale --

4 actually have an increase in their confidence about the

5 memory but a decrease in the actual accuracy of the

6 memory?

7 A. No, that's not true. There were some studies

8 that suggested a relationship between increased

9 confidence and low accuracy, and now, as I've written

10 in my book, it turns out from more recent studies that

11 relationship is very complex and it's not as simple as

12 that.

13 Q. What is that relationship?

14 A. That high confidence and low accuracy comes

15 in a very specific situation where there is a clear set

16 of expectations to come up with a certain kind of

17 response in hypnosis according to the interviewer's

18 expectations, but in general, the relationship between

19 confidence and accuracy is not established in the way

20 that you suggest.

21 Q. Is there a predisposition among trauma

22 survivors for dissociation?

23 A. If I understand the question the way it's

24 worded, dissociation is usually a personality trait,

25 and when people are traumatised, they may draw upon

Page 1199

1 their dissociative capacity as a way of dealing with

2 the trauma.

3 Q. Let me ask you a different question. If a

4 person is asked to recount the events of what had

5 happened to them and they're unable to recall all of

6 the details of the event, are they likely to fill in

7 those gaps with inaccurate recollections in addition to

8 the real details and then believe them?

9 A. They can fill in the gaps. I don't know if

10 likely -- I wouldn't agree with the characterisation of

11 this as "likely" but they certainly can.

12 Q. Is a person who is in this higher

13 hypnotisability end more likely to do so?

14 A. Only in certain situations. It's not as

15 simple as that. If they are in a context where the

16 interviewer expects them to fill in the gaps, then, of

17 course, they will. For example, in Dr. Morgan's more

18 recent study of the Gulf War, when it was clear that he

19 expected his respondents to give an answer for their

20 inconsistencies; in that context of being expected to

21 come up with an answer, they're going to come up with

22 an answer, not necessarily the right answer. But in

23 general, that doesn't occur.

24 Q. For example, if you are being questioned by a

25 war crimes investigator to recall specific details of

Page 1200

1 things, that would be one such type situation where you

2 are being asked to recall the details; correct?

3 A. That could be a situation, yes.

4 Q. So a person who is in this state is more

5 likely to have manufactured facts --

6 A. His state, please.

7 Q. State of hypnotisability or hypnosis,

8 better. A person in the state of hypnosis and

9 questioned about specific details and specific events

10 by a war crimes investigator is more likely to

11 manufacture the details to the extent that she can't

12 recall them?

13 A. Again, the problem is with "more likely." It

14 would depend upon the context of expectations that the

15 war crimes investigator had. That's certainly the

16 case. But if they were expected to come up with

17 answers for which they were -- about events for which

18 they were quite uncertain, that that could be a

19 situation where you're going to get memory distortion.

20 I would agree with that.

21 Q. Could one such line of questioning include

22 the specific names of individuals, the places where

23 criminal acts occurred, the timing of those criminal

24 acts; isn't that possible?

25 A. It's possible, but when you get to details

Page 1201

1 like names and places, it's more likely to happen when

2 the interviewer is supplying that as misinformation.

3 Q. Right. So, for example, let's speak

4 hypothetically in this case.

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 A. It's possible, but the question really here

12 is: How possible? In terms of misinformation

13 suggestion effects in the general population, the range

14 runs around 3 to 5 per cent of individuals. If we talk

15 about it in terms of a diagnosis of post-traumatic

16 stress, the Levitt study that I testified about this

17 morning suggests that abused individuals may be

18 significantly less suggestible. Of course, it's

19 possible, but it's a low range of possibility here.

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 1202

1 (redacted)

2 (redacted)

3 A. I think it's low possibility --

4 MR. BLAXILL: I must object to that question,

5 Your Honours. This appears to be crossing the line to

6 the point that he is actually suggesting what had

7 happened in those circumstances. I mean, he can put a

8 question as to "What do you think the effect of a war

9 crimes investigator" or something like that, but I

10 think it's going too far to suggest that he's helping

11 her along with the details in that way.

12 MR. MISETIC: It's hypothetical.

13 JUDGE MAY: Mr. Misetic, we have considered

14 this line of cross-examination. There is, of course,

15 no evidence to support the suggestions which you are

16 making, which, in any event, are common-sense matters.

17 If you are suggesting a witness might have been

18 influenced by the questions put by an investigator,

19 well, of course, that could be the case. As I have

20 said, there is no evidence to support any such

21 suggestion, but if you wish to put those submissions to

22 us by way of comment, of course, we will consider

23 them. But they are matters for submission. They are

24 not, in my judgement, matters for expert evidence, and I

25 have to say that I do not find this cross-examination

Page 1203

1 helpful, of assistance to us in trying the case.

2 Now, as I say, if you want to make the

3 comments, you can, but I think it's time that we moved

4 on to some other area. We have spent a very long time

5 on this other case, this New Hampshire case, and if you

6 have some other areas to explore, it would be helpful

7 to do so.


9 Q. Dr. Brown, there was reference made this

10 morning to your book, "Memory, Trauma, Treatment and

11 the Law"; correct?

12 A. Yes.

13 Q. And one of the questions was how

14 well-received this book had been in the United States,

15 correct, or generally?

16 A. Yes.

17 Q. Doctor, one of your co-authors on this book

18 is Dr. Corydon Hammond; correct?

19 A. Yes.

20 Q. And Dr. Corydon Hammond is a firm believer in

21 the recovered memory phenomenon; correct?

22 A. You have to clarify what you mean by the

23 stereotype "recovered memory phenomena."

24 Q. That it is possible to have a traumatic

25 event, completely forget about that traumatic event,

Page 1204

1 and then remember that traumatic event at some point in

2 the future.

3 A. I can't really talk about Dr. Hammond's

4 beliefs in any detail, but what you're describing,

5 forgetting trauma and then completely forgetting it and

6 then later recovering the memory for it, it's

7 well-documented in the field, and I assume that

8 Dr. Hammond believes that and I certainly agree with

9 that because that's what the evidence shows.

10 Q. And as part of this debate, it's true, is it

11 not, that it's necessary to establish that memories are

12 indelible in some way, that they can't be forgotten;

13 isn't that the essential gist of the argument?

14 A. No.

15 Q. What is the gist of the argument?

16 A. Indelibility usually refers to what's called

17 the emotional -- or implicit emotional or behavioural

18 memory, not to the narrative memory for the trauma.

19 There's two different types of traumatic memory here.

20 Q. So which one are you saying is one that is

21 always constant or present?

22 A. The emotional or behavioural implicit memory

23 is the one that's usually referred to as indelible.

24 Q. Now, it's true, is it not, that your

25 co-author, Dr. Hammond, has been named a co-conspirator

Page 1205

1 of a $65 million fraud case by the United States

2 government; is that correct?

3 A. I don't know that to be true.

4 JUDGE MUMBA: Mr. Misetic, what has that got

5 to do with this case?

6 MR. MISETIC: I'm trying to get at how

7 credible the book is and what the underlying motives

8 for establishing --

9 JUDGE MUMBA: That's a criminal case you're

10 talking about. It has nothing to do with the

11 scientific research this expert has discussed.

12 MR. MISETIC: Can we have a break just so I

13 can get to the hippocampus material, Your Honour?

14 JUDGE MUMBA: Yes. We shall have a break for

15 20 minutes, in which case we shall come back at 16.05.

16 --- Recess taken at 3.42 p.m.

17 --- On resuming at 4.05 p.m.

18 MR. MISETIC: Your Honours, we're going to

19 need to collect, unfortunately, the copies of D39 which

20 were passed out so that we can put them back together

21 again.

22 MS. HOLLIS: Before cross-examination

23 continues, we had indicated that we might possibly

24 recall Witness A. We want to inform the Court that we

25 are releasing Witness A, and we do not intend to recall

Page 1206

1 her. We would ask the Court's permission that she be

2 allowed to return home.

3 JUDGE MUMBA: Yes. She can return back

4 home.

5 Yes, Mr. Misetic, please continue.

6 MR. MISETIC: Yes. These are the copies of

7 the relevant portions of the transcript.

8 THE INTERPRETER: Microphone for Mr. Misetic,

9 please.

10 JUDGE MUMBA: Your microphone, Mr. Misetic?

11 MR. MISETIC: I'm sorry. This is just with

12 that area I'll follow-up on, the hippocampus, and then

13 I'll move on.

14 THE REGISTRAR: This will be marked D39.


16 Q. Sir, I'm referring to page 87, and rather

17 than read that preceding question, I'll try to say

18 where you were in terms of your thoughts at that time.

19 If you disagree, you can stop, and I'll read the whole

20 thing in. You were talking, I believe, at the top of

21 the page about PET scanning, which, I believe, is a

22 type of brain scan.

23 JUDGE MUMBA: Mr. Misetic, D39 is referred to

24 as draft testimony.

25 MR. MISETIC: Yes, but it's certified, Your

Page 1207

1 Honour. If he disagrees that it was his testimony,

2 I'll take that into account.

3 Q. The question is: "It's like -- is a PET scan

4 like kind of an extra type photo --

5 Answer: Yes, except it's a live action

6 shot. When the person is performing some sort of task,

7 you can actually look at what areas of the brain light

8 up and you can see what areas of the brain are being

9 enlisted for that given task, specifically -- under the

10 presumption that blood flow -- the more blood flow to

11 the area which you're showing radioactively means that

12 the area of the brain is being more active.

13 Under that presumption then, we can look at

14 what areas of the brain become active for a given task,

15 and there are two areas of the brain that are

16 associated with memory. One is associated with memory

17 for factual information, narrative memory,

18 hippocampus," misspelled, "and then there is the part

19 of the brain that essentially processes emotional

20 memory. That's called the amygdala. Essentially, what

21 this study showed was that during flashbacks,

22 irrespective of the type of trauma, as compared to when

23 the person was not flashing back, using the subject as

24 their own control, that during the flashbacks, these

25 eight individuals were showing virtually no left brain

Page 1208

1 verbal activity and were showing activity primarily in

2 the two areas of the brain. One was the amygdala or

3 emotional memory processing system, and the other were

4 the sensory cortex areas of the brain, and they were

5 showing virtually no left brain activity and no

6 hippocampal activity.

7 Question: So what are we saying?

8 Answer: The implication it seems to be a

9 neuro-biological -- piece of neuro-biological evidence

10 that justifies the fact that traumatic memories are

11 processed by the brain differently than normal

12 memories, simply by virtue of their emotional process,

13 so they are processed more in the emotional and sensory

14 centres of the brain and they are processed less in the

15 verbal portion of the brain."

16 Then it goes on, "That seems to be consistent

17 with our patients and our view of survivors' reports of

18 having flashbacks and sensory experiences when they

19 first recover memories and having an incomplete or no

20 narrative memory. Because what the PET scan study

21 shows is something quite consistent with those clinical

22 reports."

23 Now, Dr. Brown, I realise that that text does

24 not state that you think there is a shrinkage in the

25 hippocampus; however, is it not true then that there is

Page 1209

1 a problem with the hippocampus in terms of a person who

2 has been traumatised?

3 A. I wouldn't characterise it that way. There

4 are two types of studies. There are the structural

5 studies which show, actually, damage to the hippocampus

6 in terms of the hippocampal volume. Those were the

7 kind of studies that Dr. Morgan was testifying about

8 and which I really question the evidence.

9 The second type of studies are what are

10 called functional or process studies where you can

11 actually look at areas of the brain that are active

12 during a given task. This testimony in the Quattrocchi

13 case refers very specifically to a functional, not a

14 structural, study, and all it simply suggests is that

15 during a flashback episode, the processing is largely

16 in the sensory and emotional areas of the brain,

17 consistent with a patient's report that they get a more

18 emotional and more sensory experience of the flashback

19 with less of a narrative report. That doesn't tell us

20 anything about the rest of the time when they are not

21 flashing back, what their brain activity is like

22 relative to the hippocampus and their narrative

23 memory. This is specific to when people have

24 flashbacks, and it certainly doesn't imply anything

25 about brain damage to the hippocampus.

Page 1210

1 Q. You use the term "brain damage." Is it not

2 correct, though, that, from your perspective, brain

3 activity in a traumatised patient is different than

4 brain activity in a normal patient, in a healthy

5 patient?

6 A. Brain activity during flashbacks, I would

7 certainly agree with that. That was my testimony.

8 Q. Thank you. Dr. Brown, how many papers have

9 you published on Post Traumatic Stress Disorder?

10 A. Mostly books, not papers, or chapters of

11 books.

12 Q. In writing a chapter of a book, you're

13 basically recounting the work of others in the field;

14 correct?

15 A. Most of my writing has been textbooks, yes.

16 Q. How much research have you done in the area

17 of Post Traumatic Stress Disorder?

18 A. Most of my work has been as a clinician and

19 as a teacher. That's my appointment at Harvard Medical

20 School. I'm not engaged actively in very much

21 research, mostly teaching and clinical

22 responsibilities.

23 Q. You said "not very much research." How much

24 research have you actually done in your entire career?

25 A. At the start of my career, I had a

Page 1211

1 post-graduate grant from the National Institute of

2 Mental Health, where I did -- a two-year grant. I did

3 some clinical research. Shortly after finishing that,

4 I took the post as director of training and eventually

5 as chief psychologist at the Cambridge Hospital, one of

6 the Harvard teaching hospitals. That particular track

7 was clinical responsibilities, running a major

8 internship centre for psychologists, and mostly

9 teaching. So I haven't done that much active research

10 since.

11 Q. Have you written any papers of any kind in

12 terms of primary research within the last eight years?

13 A. In terms of experimentally designed studies,

14 I don't think so, no.

15 Q. What is your experience in the area of Post

16 Traumatic Stress Disorder?

17 A. I've treated patients with Post Traumatic

18 Stress Disorder for well over 20 years, starting

19 extensively going back to about 1978, with a woman by

20 the name of Sarah Hailey who was a consultant I first

21 learned trauma from. She was one of the originators of

22 the diagnosis of PTSD for DSM. Since the late 70s,

23 I've had an active practice involving treating trauma

24 patients. My practice is about -- since then, it's

25 been about 25 patients a week, and about 60 to 70

Page 1212

1 per cent of those have been trauma patients of one sort

2 or another, a cross --

3 Q. But not specifically PTSD?

4 A. Oh, no, over half of my patients have been

5 either with major diagnoses of PTSD or a major

6 dissociative disorder.

7 THE INTERPRETER: Could we ask the witness to

8 slow down, please?

9 A. That is, the trauma-related diagnoses.

10 JUDGE MUMBA: Mr. Witness, you are reminded

11 to slow down by the interpreter.

12 THE WITNESS: Thank you.


14 Q. What is meant by the term "peer review"?

15 A. "Peer review" generally means that you author

16 papers and you submit those papers to journals which

17 have an independently set of refereed individuals who

18 will evaluate the paper.

19 Q. If a paper has been peer reviewed, that would

20 mean then that independent individuals have reviewed

21 the paper for its legitimacy?

22 A. It means that they reviewed it, gave comments

23 on it, and accepted it for publication, either with or

24 without modifications.

25 Q. Thank you. Now, I'm going to ask you about

Page 1213

1 some studies with respect to the hippocampal shrinkage,

2 and I'd ask for your opinion on each of them. The

3 Bremner study in 1995, are you familiar with that

4 study?

5 A. Yes.

6 Q. And your position on that is?

7 A. I think I gave testimony about that this

8 morning.

9 Q. Which is?

10 A. Briefly, I think there is some problem with

11 the measurement using a mouse cursor technique and not

12 reporting what the error rate is when the magnitude of

13 the effect is so small. Subsequently, it turns out

14 that there was some miscalculation in the statistics,

15 and the results didn't reach statistical significance,

16 and there was a retraction letter by Bremner in, I

17 think, June of 1997 in the American Journal of

18 Psychiatry about this.

19 Q. Isn't it true, though, that subsequent to

20 that he republished the study to take into account the

21 error?

22 A. My recollection is that the significance

23 level with the recalculation was .06, which does not

24 meet the criteria for statistical significance.

25 Q. Is that your recollection or is that what the

Page 1214

1 study says?

2 A. That's my recollection.

3 Q. That was a study of women with PTSD; is that

4 correct?

5 A. This particular study, the '95?

6 Q. The '97, the republished version?

7 A. I don't think I've seen the republished

8 version.

9 Q. You just said that --

10 A. I've seen the study and I've seen the

11 retraction letter. That's all I've seen.

12 Q. Right. But then I asked you about the

13 subsequent study, which is the Bremner '97, that took

14 into account the error that was in Bremner '95, and you

15 said that it still had a .06 error rate?

16 A. Yes, but I haven't seen the study.

17 Q. How do you know that it has a. 06 error rate?

18 A. In discussion with one of my colleagues.

19 Q. Are you familiar with the Gurewitz study of

20 1997 which measured hippocampal shrinkage in PTSD

21 patients?

22 A. Yes, but I don't remember it very well. It

23 was originally presented at the International Society

24 of Traumatic Stress, and that's the version I heard

25 of. I haven't seen a written version of this.

Page 1215

1 Q. That was published and peer reviewed?

2 A. I don't know.

3 Q. Cambie (phoen) 1997, I'd ask for your comment

4 on that, the reported shrinkage in the hippocampus of

5 individuals with PTSD?

6 A. Again, my familiarity with these studies was

7 at a symposium at the International Society of

8 Traumatic Stress. I haven't seen the publication of

9 some of these studies since.

10 Q. Do you know whether they were published or

11 peer reviewed?

12 A. No.

13 Q. There was a study of women with PTSD and

14 shrinkage of the hippocampus by Stein in 1997. Have

15 you reviewed that document?

16 A. I haven't reviewed the document, no.

17 Q. Are you familiar with the study?

18 A. I think that was a study of long-term effects

19 of childhood sexual abuse, and there was evidence of

20 hippocampal damage, yes.

21 Q. Was that published and peer reviewed?

22 A. I don't remember the source of it. Again,

23 most of these I've gotten through the International

24 Society of Traumatic Stress symposium when they were

25 presented publicly.

Page 1216

1 Q. Has anyone told you then, if you haven't seen

2 the studies, that both the Stein 1997 and Bremner 1997

3 studies were with women with no history of alcohol

4 abuse?

5 A. I think they are still long-term studies. I

6 didn't testify that all of these were alcohol related,

7 but there were studies of effects over long periods of

8 time, as opposed to the MacFarlane study, which is in

9 the time frame in question.

10 Q. Are you familiar with Science Magazine?

11 A. Yes.

12 Q. What is your opinion of its reputation in the

13 field?

14 A. It's one of the tops.

15 JUDGE CASSESE: Mr. Misetic, we are wondering

16 to what extent all of your questions are relevant to

17 our case, because there's been no allegations so far

18 that Witness A has got any shrinkage in her

19 hippocampus. There was no medical examination. We

20 really wonder whether it is relevant to ask so many

21 questions to this witness or to dwell on this matter

22 generally.

23 MR. MISETIC: You heard the expert testimony

24 of Dr. Morgan. It was put in a dispute as to this

25 issue. The fact that there is no examination of

Page 1217

1 Witness A, I would agree that that is a handicap, but

2 in light of that fact, I'm left to discuss what PTSD

3 is, what the effects of PTSD are, its symptoms, and its

4 physical results. To the extent that the witness has

5 put it in issue, I would like to just put it to him to

6 see whether he has referred to these studies, and then

7 the Court can take it into consideration as it wishes.

8 I will move on.

9 JUDGE CASSESE: But this is speculative,

10 hypothetical, and academic. Could you move on,

11 please?


13 Q. Dr. Brown, one of your criticisms, I believe,

14 of Dr. Morgan was that there was no baseline. If you

15 didn't testify to that, I believe it's in your

16 statement; is that correct?

17 A. I think what you're referring to, and let's

18 clarify it together here, that in the Desert Storm

19 study, there was no military record by which to compare

20 the one-month, two-month, or the two-year reports

21 against, to check for accuracy. So this is not a study

22 of accuracy. It's specifically about inconsistency.

23 Is that what you're referring to by "baseline"?

24 Q. Yes. What I'm wondering is why we need to

25 find the medical files of an individual to determine

Page 1218

1 what really happened if we can rely on the memories of

2 the individuals who answered the study?

3 A. Well, I think I testified that in all cases

4 of memory, we can't say that they correspond to

5 historically accurate events without corroboration. In

6 this case, in order to do research specifically on the

7 issue of accuracy, there has to be some documented

8 objective event. However well documented or not, we

9 can have different standards of evidence, but there has

10 to be some baseline of documentation by which to

11 compare this against, and without that, the research

12 can't legitimately make any statements about accuracy.

13 Q. Thank you, Doctor. I'd ask you not to refer

14 to any of the charts that you reviewed or anything

15 that's within the charts themselves, but you talked

16 about sequencing errors?

17 A. By "charts," do you mean Dr. Morgan's charts,

18 Exhibits 32A through D or E?

19 Q. Right.

20 A. Okay.

21 Q. Aren't sequencing errors an important aspect

22 of the accuracy of memory?

23 A. No.

24 Q. Explain that.

25 A. Well, let's say we have four items. In order

Page 1219

1 to check accuracy, we would have to compare those items

2 to some historical event. Let's say, in a laboratory,

3 we had subjects view a film of a burglary, and there

4 were four things that they could have observed.

5 Accuracy would mean that when they gave the report, the

6 four things that they reported were corresponding to

7 the original stimulus event in the film, but they might

8 get the order of those four events mixed up. So the

9 misordering doesn't imply inaccuracy.

10 THE INTERPRETER: Please slow down. Please

11 slow down.

12 JUDGE MUMBA: Slow down again.


14 Q. You're aware, are you not, of the

15 identification that Witness A made of Mr. Furundzija in

16 1995?

17 A. What document are you referring to

18 specifically?

19 Q. The witness statement of Witness A from July

20 of 1995? That's not it.

21 A. I know. I just have my own notes to tag what

22 they refer to. This is the July 1995 witness statement

23 we're referring to; is that correct?

24 Q. Correct.

25 A. Yesyes,.

Page 1220

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 Q. Okay. I'll side-track here, since you've

25 cited that study again. I'm reading here from John

Page 1221

1 Yuille 1986. The copyright is 1986. I'm not sure what

2 the year is on it. Correct? Do you have a copy of

3 that?

4 A. Yes.

5 Q. My copy does not have any page number -- yes,

6 it does. 296. It's in the upper left-hand corner.

7 A. I'm sorry, what page again?

8 Q. Two nine six.

9 A. Yes.

10 Q. First, would you agree with me that this

11 study is not about PTSD?

12 A. No, I wouldn't agree. It's about a stressful

13 event that had a major impact on the eyewitness's life,

14 and it may or may not have involved PTSD. It just

15 wasn't measured.

16 Q. So therefore it's not a study of PTSD

17 patients per se.

18 A. No, that wasn't part of the study. That

19 doesn't imply that with events of that magnitude that

20 some of the eyewitnesses wouldn't have PTSD.

21 Q. Now, I call your attention to the second

22 column on that page, the first full paragraph: "Just

23 under 40 per cent of the details provided the

24 researchers were also given to the police. Of this

25 total, 81.56 per cent were consistent in the two

Page 1222

1 interviews."

2 So isn't it more accurate to say that people

3 forgot 60 per cent, remembered 40 per cent, and then

4 you were measuring the consistency -- not you, I'm

5 sorry, Yuille -- was measuring the consistency of the

6 40 per cent of the information that was reported

7 initially?

8 A. No, that's not accurate at all. The baseline

9 data which was the composite constructed by the police

10 was the baseline of which the later memory was compared

11 and there was a 60 per cent increase in new information

12 reported at the five- to six-months mark, so that

13 they're saying 40 per cent here because that's

14 comparing it the other way, but basically there was an

15 increase in the information the other time, a 60

16 per cent increase over time that was accurate for the

17 most part.

18 Q. Let me get back to what our original question

19 was, which was with respect to the identification.

20 Now, you agree that that is a difference; correct?

21 A. Please clarify "that."

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 1223

1 (redacted)

2 A. Fair enough.

3 Q. Now, how do we know which person Witness A

4 saw?

5 JUDGE MUMBA: That's not for this witness to

6 answer.

7 MR. MISETIC: I'm asking for his expertise in

8 how to distinguish between the two. Which one is the

9 one that is more correct.

10 JUDGE MUMBA: No, no, no. This witness can't

11 answer that.

12 MR. MISETIC: From a purely scientific

13 perspective, not -- I'm trying to arrive at the

14 methodology of how he would make the evaluation, not

15 whether it's right or wrong.

16 JUDGE MUMBA: That is not for this type of

17 witness, no.


19 Q. What types of things can take into -- might

20 change a person's identification over a three-year

21 period?

22 A. My testimony has been and still is that

23 identification of things like hair colour, height,

24 weight, colour of clothing, and the massive body of

25 scientific literature we have about that isn't very

Page 1224

1 good in the first place, and the Court needs to be

2 aware that these are commonly observed memory mistakes

3 in the research. It's for the triers of fact, of

4 course, to determine from there the more onerous task

5 of whether these identifications of Witness A are

6 accurate or not, but they are, in the literature, shown

7 to be imperfect around such details as height and hair

8 colour.

9 Q. I understand that, Doctor. But what I'm

10 asking you is, what can change a person's

11 recollection? Is there a basis upon which a person

12 would change an identification from one set of

13 characteristics to another?

14 A. I'm sorry. Now I understand your question.

15 My answer would be that the memory for such details is

16 sometimes uncertain in the first place, so it would

17 change as a function of the uncertainty of the memory.

18 Q. Are there any prompts or things like that,

19 suggestible influences or something that could change a

20 person's ID, perhaps even coming into the courtroom

21 or -- forget the courtroom setting, perhaps seeing the

22 person?

23 A. It's again possible, but these things change

24 anyway because the memories for such details isn't very

25 certain in the first place for some individuals.

Page 1225

1 Q. I'd like to call your attention again to one

2 study that you mentioned in your direct examination and

3 that's, I believe, Groeneweg study, which is the study

4 of the Nazi concentration camp survivors?

5 A. It's Wagenaar and Groeneweg, yes.

6 Q. Now, when you talk about consistency of

7 memory for gist, you're talking about the fact that a

8 person generally remembers they were in a camp, they

9 were tortured, that they had a certain routine every

10 day that they had to do of some sort; isn't that

11 correct?

12 A. Well, the torture might fall under the

13 category of injury specific amnesia which was reported

14 in that study, but consistency in that particular study

15 had to do with the kind of things you're talking about,

16 which was the severity of the exposure to cold, the

17 starvation, the difficult work routines, yes, and the

18 general sense of mistreatment.

19 Q. But with respect to specific details about

20 names of people, about physical characteristics, and

21 even photo recognition of the actual war criminal who

22 was committing the torture, those memories had changed;

23 correct?

24 A. For such details, that's correct, after 40

25 years.

Page 1226

1 Q. Things like physical characteristics, names,

2 photo recognition of a person are all outside of gist

3 and are part of the peripheral detail; correct?

4 A. Not necessarily. My testimony was that gist

5 in the research literature is defined in terms of

6 central actions, plot relevance, and personal

7 meaningfulness, so if a particular action happened that

8 involved a given individual that had a great deal of

9 impact on the person's life or was relevant to the plot

10 of what happened in some other way, it might be clearly

11 defined as gist. It depends on the situation.

12 Q. But wouldn't you characterise things like

13 photo identification, names of the camp guards, and

14 details of the individual's physical make-up to be

15 unique idiosyncratic details?

16 A. In general, that's correct, but, for example,

17 in the case here, it may be the case that, as Witness A

18 testified to being sadistically raped and tortured,

19 that the interview that was the cause of that rape

20 occurring would be plot relevant and therefore the

21 details made be encoded differently with a stronger

22 memory. So, you see, it depends on things like plot

23 relevance and meaningfulness.

24 Q. But that wouldn't be the case for the Nazi

25 war criminal in the Groeneweg study?

Page 1227

1 A. After 40 years, it's hard to say.

2 Q. Were you present in the courtroom on Monday,

3 sir?

4 A. No, I was not.

5 Q. Have you had any update as to Witness A's

6 testimony in this case on Monday?

7 A. I haven't had a chance to look at that

8 transcript, so I'd have to say no.

9 Q. With respect to -- I know you haven't seen

10 the transcript, but has anyone told you generally what

11 had happened?

12 A. I couldn't comment on that.

13 MR. BLAXILL: May I interpose for just one

14 second? I hesitate to interrupt my friend in full

15 flow, but are we going to be close to issues that may

16 require private or closed session? I just pose that as

17 an interrogatory at this stage.

18 MR. MISETIC: Closed session is fine with

19 me -- I mean private session. We can just turn the

20 sound off. I'm not using any boards or any physical

21 evidence.

22 JUDGE MUMBA: I'm asking you, are you going

23 to go into the details of the evidence that was in

24 closed session?

25 MR. MISETIC: Generally, yes.

Page 1228

1 JUDGE MUMBA: We'll go into a private

2 session.

3 (Private session)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 1229











11 Page 1229 redacted. Private session.















Page 1230











11 Page 1230 redacted. Private session.















Page 1231











11 Page 1231 redacted. Private session.















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11 Page 1232 redacted. Private session.















Page 1233

1 (redacted)

2 (redacted)

3 (redacted)

4 (Open session)

5 A. Yes.

6 Q. You were asked, indeed you were pressed by

7 Defence counsel in the level of hypnotisability you

8 would attribute or you attributed to the person in that

9 evidence?

10 A. Yes.

11 Q. Sir, could you read a portion that starts, I

12 think, at line 13.

13 A. On page 49?

14 Q. Yes, sir. This would be page 49 at this

15 point.

16 A. Okay.

17 Q. Do you, in fact, make reference below there,

18 at line 18 and 19, to the 12-point scale of

19 hypnotisability?

20 A. Yes. That refers to the Stanford Hypnotic

21 Susceptibility Scale, Form C.

22 Q. What in that testimony did you say in

23 relation to the figure that is applicable to Post

24 Traumatic Stress Disorder persons?

25 A. I said that the usual responses were a score

Page 1234

1 about -- in the testimony it says "would be 8 or 9";

2 exactly it's 8.5 is the mean.

3 Q. In fact, if I look up to line 19 and 20 on

4 page 49, you make reference to another number, do you

5 not, in respect of normal people?

6 A. That's 5.5 for normal individuals, usually.

7 Q. And you said that was consistent with what

8 you said in your evidence in chief earlier on?

9 A. Yes.

10 Q. Sir, moving on, on page 50 of that document,

11 you refer to people of multiple personality disorder,

12 do you not?

13 A. Yes.

14 Q. And people of that disorder, you classify, do

15 you not, at lines 4 and 5 in the regions of being 10

16 out of the 12-point scale?

17 A. It's actually 10.5, but, yes, between 10 and

18 12. They're in the very high range of hypnotisability

19 generally.

20 Q. Fine. You then -- considering, therefore,

21 the level of hypnotisability of such people, can you

22 tell us just a little bit more about that? What is the

23 diagnosis of MPD?

24 A. The diagnosis of MPD, as was given in the

25 Diagnostic Statistics Manual, version III, and the

Page 1235

1 revised version of III, its name got changed to

2 Dissociative Identity Disorder in the fourth version

3 which came out in 1994, so there are slight differences

4 in the diagnostic criteria, but it usually means the

5 presence of two or more altered personality states

6 which take executive control of the person, has a

7 significant shift in their state of consciousness, and

8 altered personalities come out and take executive

9 control for some degree of time.

10 Q. We all know that you had no opportunity of a

11 clinical assessment of Witness A in this case, but from

12 the materials you have reviewed and all you have

13 listened to in connection with this case, can you make

14 any comment in respect of the question of MPD, multiple

15 personality disorder? Has it any relevance?

16 A. I could find no evidence whatsoever that

17 Witness A showed any signs of a major dissociative

18 disorder like multiple personality disorder.

19 Q. Fine. Thank you. Could we move on to page

20 52, 53, and did you, in fact, make reference in that

21 testimony to the specific hypnotisability of the female

22 party to that litigation?

23 A. Yes. It says at the bottom of 52, line 21

24 and 22: "It is likely that she is in the high

25 hypnotisability range." And that's based on the -- the

Page 1236

1 likely diagnosis of multiple personality in this

2 particular individual.

3 Q. When we get to -- if you would turn to page

4 115, sir?

5 A. Yes.

6 Q. You made a reference regarding hypnosis and

7 responses in hypnosis, and on page 116, did you make

8 any reference to the pattern of suggestibility you say

9 was relevant in this particular case? If so, would you

10 read the relevant few lines?

11 A. Well, actually, it starts on 114. It starts

12 at line 21 on 114.

13 Q. So the whole passage, you say, is relevant to

14 that issue?

15 A. Yes. "... we have a number of entries in

16 Michaela Williams' notes," that's the massage

17 therapist," ... a number of entries ... that the

18 dissatisfaction was sexual, but that information is

19 supplied in every example in the journal by Michaela

20 Williams and not by Ms. Lauder. That's an example of

21 leading suggestions." That is, more than one. There's

22 a pattern.

23 Q. You then talked about some relevant research,

24 sir. Could you read out your -- appears a conclusion

25 in your evidence, or at least a summary, a summation,

Page 1237

1 around line -- from the end of line 5 down to line 8?

2 A. On page ...

3 Q. On page 116 now, sir.

4 A. Okay. The conclusion really starts on line

5 2: "And where we get a combination of vulnerability

6 for pseudo-memory or the confabulation," that is, the

7 high hypnotisability in this multiple personality

8 patient, "that is the decreased ability to discriminate

9 fantasy and memory accuracy." In such a patient --

10 THE INTERPRETER: Slowly, please. Slow down,

11 please?

12 A. "... that, you get a clear evidence of --"

13 JUDGE MUMBA: Slow down for the interpreters.

14 A. "... you get a clear evidence of a history

15 of leading suggestions which goes over a number of

16 months of those notes," referring back to the massage

17 therapist.


19 Q. Thank you. Dr. Brown, if we could turn to

20 the second volume of that document, and on page 276, I

21 think it is.

22 A. Two hundred and seventy-six?

23 Q. Yes, sir. Two seven six, yes. Sir, you make

24 certain references regarding self-hypnosis.

25 A. Yes.

Page 1238

1 Q. And dissociation and going into a trance-like

2 state.

3 A. Yes.

4 Q. Could you just confirm whether you were

5 giving that evidence in relation to the actual

6 activities of the person in question?

7 A. Well, yes, and this refers specifically again

8 to the diagnosis of multiple personality disorder, and

9 I probably should enter into the record, because

10 Defence counsel asked me to find the pages for the

11 multiple personality disorder, that's on page 26,

12 starting on line 3:

13 "He then referred Ms. Lauder to Dr. Grimm

14 and Dr. Grimm appropriately carried forth the same

15 diagnosis of chronic Post Traumatic Stress Disorder.

16 Now, in the course of treatment, what seemed to emerge

17 were different alters and he recently considered a

18 diagnosis of multiple personality disorder, in addition

19 to the diagnosis of Post Traumatic Stress Disorder."

20 There are numerous other references of the

21 treatment of that patient involving treatment around

22 multiple personality but that suffices, I think.

23 Q. But then just to encapsulate the evidence you

24 gave in that particular case, on pages 276 and 277, you

25 do cover the topics, it seems, of going into

Page 1239

1 trance-like states when --

2 A. Yes.

3 Q. And that if something upsetting comes up, she

4 could go into altered states?

5 A. Shifting states is a common diagnostic

6 feature of multiple personality disorder.

7 Q. And then moving on on 277 to the issue of

8 confabulation with a personality of that type. Is that

9 so, sir?

10 A. Confabulation and self-suggested distortions

11 in their memory is well-documented in that population.

12 Q. Thank you. On page 279, Doctor, if I have it

13 correctly, I sincerely hope my reference is correct,

14 did you make reference in that evidence to the actual

15 use of self-hypnosis by this lady? I may have the

16 wrong page but ...

17 A. I don't seem to find it.

18 Q. I thought it was 279, but nor can I now. Is

19 that, in fact, relevant to a certain issue? Did this

20 lady, rather, practice actual self-hypnosis?

21 A. Yes, I think she did, and as a result of

22 doing that over a long period of time, along with the

23 pattern of misinformation supplied to her, it caused

24 significant distortion in her memory.

25 Q. So indeed, in fact, that is another reference

Page 1240

1 on page 276, I see it's at line 4.

2 I thank you for that, Doctor. There's just

3 one final thing which is a comment in relation to the

4 testimony you gave in the other case by name of

5 Quattrocchi, I think it is.

6 A. Correct.

7 Q. And the reference to page 88 in that

8 transcript, just to confirm it is correct, Doctor, you

9 say that the PET scan research appears to have involved

10 -- only a maximum of eight people carried out that

11 test; is that right?

12 A. No, the research included eight subjects of

13 different types of trauma from combat trauma to

14 childhood sexual abuse to rape.

15 Q. There were eight subjects?

16 A. Yeah, PET scanning research is extremely

17 expensive so usually it has small numbers of subjects.

18 MR. BLAXILL: Thank you. I have nothing

19 further.

20 I'm obliged, Your Honours. Thank you.

21 MR. MISETIC: Your Honour, in light of the

22 fact that now both parties have relied on these two

23 transcripts, we would offer them in.

24 MR. BLAXILL: No objection.

25 THE REGISTRAR: That will be D39 and D40. I

Page 1241

1 don't know if the Prosecutor wants to have his exhibits

2 admitted as well, Exhibit 12 and 13?

3 JUDGE MUMBA: We remain with one more witness

4 in rebuttal for the Prosecution.

5 MR. BLAXILL: Ma'am, the position at this

6 time is that I do know, if we can confirm we are fully

7 cleared with Dr. Brown, I know he has urgent business

8 in Washington, D.C., and a release from this Court

9 would be much desired at this time as he has to fly out

10 tomorrow morning.

11 JUDGE MUMBA: Anything from the Defence? Any

12 objection to releasing Dr. Brown?

13 MR. MISETIC: No objection.

14 JUDGE MUMBA: Thank you very much,

15 Dr. Brown. You are free to go.

16 (The witness withdrew)

17 MR. BLAXILL: That concludes my part at this

18 time. My learned colleague Ms. Patricia Sellers is

19 going to be leading the next witness for the

20 Prosecution, Ma'am.

21 JUDGE MUMBA: Yes, the Trial Chamber actually

22 intends to adjourn because we started very early today

23 at 9.00 with other cases, so we will resume this

24 proceedings tomorrow at 0930 hours.

25 But I wish to inform the parties that

Page 1242

1 immediately after completing the testimony in this

2 case, we expect the parties to make their closing

3 remarks.

4 MR. BLAXILL: Noted, Ma'am.

5 JUDGE MUMBA: So the Court will adjourn until

6 tomorrow, 0930 hours.

7 THE USHER: All rise.

8 MR. MISETIC: We apologise.

9 JUDGE MUMBA: Yes, you can go ahead.

10 MR. MISETIC: We intended to call at least

11 one witness back in rejoinder --

12 JUDGE MUMBA: Yes, after the Prosecution.

13 MR. MISETIC: Just to be clear. Thank you.

14 --- Whereupon proceedings adjourned at

15 5.10 p.m., to be reconvened on Thursday,

16 the 12th day of November, 1998, at

17 9.30 a.m.