1 elizabeth loftus, ph.d. 1 united states … · 1 elizabeth loftus, ph.d. 1 united states district...
TRANSCRIPT
1
ELIZABETH LOFTUS, Ph.D. 1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF RHODE ISLAND 3
______________________________________________________________
4 KENNETH SMITH, ) 5 Plaintiff, ) 6 vs. ) No. C.A.
93-0615-T 7 WILLIAM C. O'CONNEL, et als, ) 8 Defendant. ) 9
______________________________________________________________
10 11 DEPOSITION UPON ORAL EXAMINATION 12 OF 13 ELIZABETH LOFTUS, Ph.D. 14
______________________________________________________________
15 9:45 a.m. 16 March 3, 1997 17 University of Washington Department of Psychology 18 Box 351525
19 Seattle, Washington 20 21 22 23 24 25 KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
2
ELIZABETH LOFTUS, Ph.D. 1 A P P E A R A N C E S 2 3 FOR THE PLAINTIFF: 4 TIMOTHY J. CONLON (per telephone) 5 Attorney at Law One Citizens Plaza 6 Suite 620 Providence, Rhode Island 92903 7 and 8 CARL P. DeLUCA (per telephone) 9 DeLuca & DeLuca The Calart Tower 10 400 Reservoir Avenue, Suite 2K Providence, Rhode Island 02907 11 12 FOR THE DEFENDANT: 13 JAMES T. MURPHY
DANIEL McKIERNAN (per telephone) 14 Hanson, Curran, Parks & Whitman 146 Westminster Street 15 Providence, Rhode Island 02903-2218 16 and 17 WILLIAM T. MURPHY (per telephone) Attorney at Law 18 The Calart Tower 400 Reservoir Avenue, Suite 3L 19 Providence, Rhode Island 02907 20 ALSO PRESENT: Dr. Stuart Grassian, Tracy Sanatonio 21 22 23 24 25 KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
3
ELIZABETH LOFTUS, Ph.D. 1 I N D E X 2 3 EXAMINATION BY:
PAGE 4 MR. CONLON
4 5 6
7 8 9 10 11 12 13 EXHIBITS FOR IDENTIFICATION
PAGE 14 1 Notice of Deposition
203 15 2 Amended Certification
203 16 17 18 19 20 21 22 23 24 25 KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
4
ELIZABETH LOFTUS, Ph.D.
1 SEATTLE, WASHINGTON; MARCH 3, 1997 2 9:45 a.m. 3 --oOo-- 4 5 ELIZABETH LOFTUS, Ph.D., 6 sworn as a witness by the Notary Public, 7 testified as follows: 8 9 E X A M I N A T I O N 10 BY MR. CONLON: 11 Q. Dr. Loftus, I'm here in Boston. I'm also
with 12 Dr. Stuart Grassian, who I understand -- 13 (Reporter interruption.) 14 Q. (BY MR. CONLON) Dr. Loftus, I'm here in
Boston, 15 and I'm here with Dr. Stuart Grassian, who I
understand you 16 know? 17 A. Yes. 18 Q. And I'm sure you have been deposed a whole
bunch 19 of times, so I won't run through the ground rules,
but if 20 you have a problem hearing me, let me know. Okay? 21 A. I can hear you just fine. I'm not sure
about the
22 stenographer, but I can. 23 MR. MURPHY: Tim, before we started, the 24 stenographer said she will interrupt if she cannot
hear you. 25 MR. CONLON: That's good. All set, then? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
5
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: Yes. At the outset, as you
know, 2 Dr. Loftus' professional fee is $400 per hour. 3 MR. CONLON: I see. 4 MR. MURPHY: I understand you will send a
check 5 for her time tomorrow; is that correct? 6 MR. CONLON: Yes. 7 MR. MURPHY: Pursuant to Rule 30 of the
rules of 8 civil procedure, just so I don't forget this at the
end, we 9 will have the transcript read and reviewed and signed
by the 10 witness. 11 MR. CONLON: Fine. Anything else, Jim? 12 MR. MURPHY: I've given a copy of the
notice of
13 deposition that you had sent to me to the
stenographer. I 14 would ask that it be marked as an exhibit. 15 MR. CONLON: That's fine. I would hope
that back 16 at the office there there's a copy -- I know because
it was 17 there when I left. There was a copy of the
deposition 18 notice with the other counsel as well. 19 MR. MURPHY: What other counsel? 20 MR. CONLON: The gentlemen who are
attending in 21 Providence. 22 MR. MURPHY: Can they hear us? 23 MR. McKIERNAN: I can hear. Bill has just 24 stepped out of the room and he's not back yet. 25 MR. MURPHY: Why don't you identify
yourself, KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
6
ELIZABETH LOFTUS, Ph.D. 1 Dan. 2 MR. McKIERNAN: Excuse me? 3 MR. MURPHY: Identify yourself.
4 MR. McKIERNAN: I'm Dan McKiernan. I'm from
5 Hanson, Curran. 6 MR. MURPHY: Parks and Whitman. 7 MR. McKIERNAN: Parks and Whitman, Jim
Murphy's 8 office. Bill Murphy is also here, but he's not in
the room, 9 and there are no other lawyers in attendance. 10 MR. CONLON: Dr. Loftus, I'm going to
proceed. 11 (Reporter interruption.) 12 MR. MURPHY: Tim, the stenographer just
asked if 13 there is someone else with you. She needs to know
who it 14 is. 15 MR. CONLON: I already said Dr. Grassian. 16 Actually, he just stepped out for a second. 17 MR. MURPHY: Dr. Stuart Grassian? 18 MR. CONLON: Yes. 19 MR. MURPHY: Of Chestnut Hill,
Massachusetts? 20 MR. CONLON: What? 21 MR. MURPHY: Of Chestnut Hill,
Massachusetts? 22 MR. CONLON: Yes. 23 MR. McKIERNAN: If I might interject, Bill
is
24 back. 25 (Discussion off the record.) KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
7
ELIZABETH LOFTUS, Ph.D. 1 MR. CONLON: All set, then? 2 MR. MURPHY: Ready. 3 Q. (BY MR. CONLON) Dr. Grassian, I read your
book, 4 The Myth of Repressed Memory, and the book is very 5 accessible to the layperson and I found it very 6 interesting. That would not be considered a
scientific 7 publication, would it? 8 MR. MURPHY: Objection. Tim, you asked 9 Dr. Grassian that question. 10 MR. CONLON: I apologize. 11 Q. (BY MR. CONLON) Dr. Loftus, did I ask you
that 12 question or Dr. Grassian? 13 A. You prefaced the question with Dr.
Grassian's 14 name. 15 Q. I apologize. It's your book, isn't it? 16 A. Yes.
17 (Discussion off the record.) 18 Q. (BY MR. CONLON) I couldn't hear a
response. I 19 apologize. 20 A. Oh, okay. Do you think -- your voice is a
little 21 soft, but I said it is my book. 22 Q. Okay. I was saying I found it very
accessible to 23 the layperson. Would you consider it a scientific
book? 24 MR. MURPHY: Can you get that? 25 (Reporter interruption.) KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
8
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: Tim, I can't understand what
you're 2 saying. We can hear the people in your law office,
at the 3 offices of Timothy J. Conlon in the Citizens Bank
Building, 4 very well. Dan McKiernan comes across very clearly. 5 Wherever you're at up in Boston with Dr. Grassian, we
are 6 having a very difficult time hearing what you're
saying. As
7 the stenographer said, it breaks up in the middle of
the 8 sentence. 9 MR. CONLON: Do you have the ability, Dr.
Loftus, 10 for more than one incoming line where you are? 11 THE WITNESS: No. 12 MR. CONLON: Do you have one line -- 13 THE WITNESS: Oh, well, wait. I have --
you mean 14 you want to call on another line? 15 MR. CONLON: I'm wondering if I did not
call you 16 directly. 17 THE WITNESS: No, no, you called me
directly. Do 18 you have another line there? 19 MR. CONLON: There is another line here. 20 THE WITNESS: Well, one thing we could do,
maybe, 21 I have an idea, if you could call on -- I could give
you my 22 private, one time only, inside line. You could call
on that 23 and you could speak into both phones, and we could
give the 24 other line directly to the court reporter. 25 MR. MURPHY: The court reporter is shaking
her
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
9
ELIZABETH LOFTUS, Ph.D. 1 head. 2 THE WITNESS: No, never mind. She needs
two 3 hands to type. 4 MR. CONLON: You're on a speaker phone,
correct? 5 THE WITNESS: Right. 6 MR. CONLON: My question is, if my office
calls 7 you on one line -- 8 THE WITNESS: Oh, yes. Okay, I can give
you 9 another line. 10 MR. CONLON: Since you're the central
party, 11 we're going to have better reception. See what I'm
saying? 12 So what number should I have my office -- give me one
number 13 that my office can call you on. 14 THE WITNESS: Well, it's the one we're on
now, 15 because this is the only phone that's on the speaker
phone.
16 MR. CONLON: Doctor, what is that number? 17 THE WITNESS: It's 206-543-7184. 18 MR. CONLON: Now, that number comes into a 19 speaker phone, correct? 20 THE WITNESS: Right. 21 MR. CONLON: Can we ring up another line
on that 22 phone? 23 THE WITNESS: Well, not on the speaker
phone. I 24 have a separate phone that has a separate line, and
-- but 25 it has no speaker phone. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
10
ELIZABETH LOFTUS, Ph.D. 1 MR. CONLON: Well, then they're not going
to hear 2 us. You can hear me now fine; is that correct? 3 THE WITNESS: Yes, I can. It's fine.
Shall we 4 try to keep going? 5 MR. CONLON: Can the steno hear me? 6 THE REPORTER: Well, as you know, I need
to hear 7 it better than everybody else, and it's difficult,
but we'll 8 just try. 9 THE WITNESS: Speak slowly, because with
your 10 accent and everything, it's an unusual accent for
this part 11 of the country. 12 MR. MURPHY: Tim, can I make a suggestion? 13 MR. CONLON: What's that, James? 14 MR. MURPHY: Keep your sentences short. 15 MR. CONLON: I'll do the best I can. Why
don't 16 we put the steno in charge of letting me know when
she is 17 having problems hearing me. 18 THE REPORTER: No problem. 19 Q. (BY MR. CONLON) I believe I was trying to 20 compliment you on your book, Doctor, because I found
it 21 interesting. 22 A. Thank you. 23 Q. You're welcome. I was wanting to know if
it's a 24 scientific publication. 25 A. The book was written to communicate ideas
to a KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
11
ELIZABETH LOFTUS, Ph.D. 1 broader audience. It certainly does contain some
scientific 2 information in it, but it was not written with a
purely 3 scientific audience in mind. 4 Q. Was the book put in layman's terms for
general 5 scientific (inaudible)? 6 MR. MURPHY: Objection. 7 A. Well, the book is an attempt to
communicate ideas 8 to a broad population. 9 (Reporter interruption.) 10 (Discussion off the record.) 11 (Recess taken.) 12 Q. (BY MR. CONLON) When you say it may,
Doctor, 13 when you say that the book is for broader audience
ideas, 14 are the ideas (inaudible) scientific literature? 15 MR. MURPHY: Just put unintelligible. 16 Objection. I can't hear half the words
you're 17 saying, Tim. 18 (Discussion off the record.)
19 Q. (BY MR. CONLON) Dr. Loftus? 20 A. Yes. 21 Q. What I was attempting to become clear on
is 22 whether your book constitutes an attempt to put your 23 scientific theories into a form that's acceptable to 24 laypeople. 25 A. No, I wouldn't describe the book that way.
It KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
12
ELIZABETH LOFTUS, Ph.D. 1 has some scientific ideas, but it's an attempt to
describe a 2 problem and to convey some ideas to a broad audience. 3 Q. Of laypersons? 4 A. Yes. 5 Q. So when you say broad audience you're
referring 6 to laypeople? 7 A. Well, it's read by professionals as well
as 8 laypeople, so it's quite a broad audience, but to be 9 accessible to people who are not trained in
psychology. 10 Q. When you say a problem, if I followed
this, and I 11 think I can follow it fairly easily, one of the
things that 12 you posit is that being sued for sexual abuse is
something 13 that can ruin somebody's life. Is that basically
correct? 14 Do I have that right? 15 MR. MURPHY: Objection. Are you reading 16 something from the book, Tim? 17 MR. CONLON: No, Jim, I'm asking the
doctor 18 questions. 19 Q. (BY MR. CONLON) Did you understand my
question, 20 Doctor? 21 A. Yes. 22 Q. Can you answer that question? 23 A. Well, I don't remember saying that
specifically 24 in the book, but it can be traumatic to be sued for 25 anything. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
13
ELIZABETH LOFTUS, Ph.D. 1 Q. Well, is it correct that you perceive part
of 2 your theory in connection with or concern about false
memory 3 is in part your perception that being sued for sexual
abuse 4 is something that can ruin someone's life? 5 A. Well, I think it's possible. I don't
remember 6 saying that in the book, but I do believe it's
possible it 7 can ruin somebody's life to be sued for anything,
including 8 sexual abuse. 9 Q. Do you perceive that being sued is a big
problem 10 for an institution like the Church? 11 MR. MURPHY: Objection. Are you asking
her an 12 expert opinion about the Catholic Church? I object. 13 MR. CONLON: Thank you. 14 MR. MURPHY: You may answer, it, Doctor,
if you 15 can. 16 Q. (BY MR. CONLON) He gets to object, but
that 17 doesn't mean you don't have to answer, Doctor. 18 A. Okay. I would think it would be a problem
for 19 anybody to be sued, including the Catholic Church,
that
20 nobody really likes that. 21 Q. Well, would 40 sexual abuse claims in
Rhode 22 Island be a big problem for the Church? 23 MR. MURPHY: Objection, facts not in
evidence. 24 Go ahead, you may answer it, Doctor. 25 A. Well, I feel this is something beyond my KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
14
ELIZABETH LOFTUS, Ph.D. 1 expertise. I just don't know how big a problem. It
seems 2 like it would certainly be a problem for anybody or
any 3 organization to have 40 claims against them. 4 Q. (BY MR. CONLON) Your book makes reference
to a 5 story. I don't know that you use the word story, but
you 6 tell about a Jennifer. I believe there was a Megan
and a 7 Mike Patterson. Are those people, and I'm not so
much 8 asking their identification by any means, but are
those 9 people real?
10 MR. MURPHY: Objection. You may answer. 11 A. Yes, the people in the stories are real
people, 12 although we may have changed their identity to
protect their 13 privacy. 14 Q. (BY MR. CONLON) And are those stories, in
your 15 view at least, typical of the phenomena that you're
trying 16 to address? 17 MR. MURPHY: Objection to form. 18 A. Well, they're real stories that I gathered 19 information about, either I or my coauthor, and we
were, 20 yes, trying to -- I'm not sure there's one typical
case, 21 because there are a variety of cases as illustrated
by the 22 stories. 23 Q. (BY MR. CONLON) Well, in particular, as
to the 24 gentleman that you used the name Mike Patterson, you 25 reference him spending $15,000 in a weekend in an
attempt to KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
15
ELIZABETH LOFTUS, Ph.D.
1 arrange for deprograming of his daughter. Do you
recall 2 that generally? 3 MR. MURPHY: Objection. 4 A. Yes, I vaguely recall that. It's been a
while 5 since I was paying attention to that particular case.
I've 6 had so many cases to pay attention to since then.
But 7 what's your question? 8 Q. (BY MR. CONLON) Well, the question was
whether 9 you recall the case, for starters. Is the $15,000
true? 10 A. Well, I don't know. It would be what he
reported 11 to us. 12 Q. Oh, okay. 13 A. I have no -- I'm not sure. I don't know
that my 14 coauthor, who also spent time with that family, saw
the 15 document or didn't see the document. 16 Q. So you're not sure if it's corroborated,
but 17 that's what you guys were led to believe? 18 MR. MURPHY: Objection. 19 Q. (BY MR. CONLON) You guys being you and
your 20 coauthor. 21 MR. MURPHY: Objection. 22 A. Yes. I don't have the book -- I don't
have the 23 story in front of me, so I'm assuming you're being
accurate 24 about the details. 25 Q. (BY MR. CONLON) Certainly. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
16
ELIZABETH LOFTUS, Ph.D. 1 A. But if that is what we said in the book,
that is 2 the information that we received. 3 Q. I understand. Again, and I'm just trying
to 4 summarize what I got out of the book, and if I
misunderstand 5 it, you know, I certainly want you to correct me, but
it 6 seemed that you were suggesting that expectations on
the 7 part of a psychologist or a mental health
professional to 8 find a particular thing may tend to skew their
observations
9 in favor of what they're looking for. Do I have that 10 basically correct? 11 MR. MURPHY: Objection. 12 A. Yes. 13 Q. (BY MR. CONLON) And is it also correct
that you 14 feel that some of the professionals are overly
invested in 15 finding a particular problem for their client? 16 MR. MURPHY: Objection. 17 A. I think I would agree with that, yes. 18 Q. (BY MR. CONLON) Well, again, I'm only --
I read 19 your book. I found it very readable and very -- it
seemed 20 pretty understandable to me, so I'm just sort of
summarizing 21 some of the key points of what I thought I was
getting out 22 of it. You know, if I've got it wrong, you certainly
can 23 feel free to correct me. 24 I've heard a term, or I believe I've heard
a 25 term, expectation bias. Is that a term you're
familiar KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
17 ELIZABETH LOFTUS, Ph.D. 1 with? 2 A. Well, I'm not sure I would use exactly
that term, 3 but I think I could figure out what it might mean. 4 Q. So it's a term you're familiar with, but
not one 5 that you would generally tend to use? 6 A. Well, I'm not sure. Maybe if you could
give it 7 to me in a sentence so I could figure out exactly
what you 8 mean by the term. 9 Q. Well, actually, what I mean by it, I don't
really 10 mean anything. I'm just a lawyer. But I've heard
the term, 11 and I was just wondering if, given the last question
I asked 12 you, it would be called expectation bias where a
mental 13 health professional is led (inaudible) that they're 14 particularly invested in. But if you're not -- if
it's not 15 a term that you would use, that's fine. 16 MR. MURPHY: Objection, Tim. Would you
care to 17 put that term in context, in any particular context? 18 MR. CONLON: I think the doctor has
indicated it 19 wouldn't be a term that she would use, and I don't
want to 20 try to make her use a term she wouldn't use. I had
heard it 21 used by other persons, and so I was wondering if that
would 22 be a term she would use to describe this phenomenon.
If it 23 wouldn't be -- 24 Q. (BY MR. CONLON) Is it safe to say,
Doctor, that 25 you would not use the term expectation bias to
describe the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
18
ELIZABETH LOFTUS, Ph.D. 1 phenomenon? 2 A. I might use the term expectation and I
might use 3 the term bias, and it's possible I might put those
two words 4 together at some time in a sentence. 5 Q. For example, the expectations of the
psychologist 6 could bias their result; is that a fair statement? 7 A. I would agree with that, yes.
8 Q. Do you feel that at least in some instances
9 mental health professionals' personal issues can skew
their 10 reading of data? 11 MR. MURPHY: Someone spoke after you, Tim,
but we 12 couldn't hear it. 13 MR. CONLON: Does anyone have an
objection, 14 because if not, I'd just as soon not (inaudible) to
be 15 talking amongst themselves. 16 MR. MURPHY: I do object, because I could
hear 17 someone speaking, but I don't think the stenographer
could 18 get what was said. 19 MR. CONLON: What I said, Jim, if anyone
has an 20 objection, say so. 21 MR. MURPHY: I do object. 22 MR. CONLON: If not, I will ask them to
kindly 23 not speak. 24 MR. MURPHY: I object. 25 MR. CONLON: Does anyone have an objection
to KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875
SEATTLE, WASHINGTON 98161-1001
19
ELIZABETH LOFTUS, Ph.D. 1 that question, yes or no? 2 MR. MURPHY: I've said three times I
object. 3 MR. CONLON: Okay, fine. 4 Q. (BY MR. CONLON) Doctor, did you hear the 5 question? 6 A. Let's see, what was the question? 7 MR. CONLON: Kathy, could you read the
question 8 back to the doctor. 9 (The reporter read back as requested.) 10 A. That's possible, yes. 11 Q. (BY MR. CONLON) Doctor, could you explain
to me 12 which or what factors, if any, you would cite as
increasing 13 the concern about the accuracy of memory. 14 A. There are many factors, but one of the
important 15 factors is whether a person is exposed to suggestive 16 information before they try to recall or remember
their 17 past. So if they are exposed to leading questions,
if they 18 are exposed to suggestive publicity, if they're
exposed to 19 somebody else's story or questioning about their past
-- 20 about the past, then these sources of suggestion can 21 influence, can distort, can contaminate somebody's
memory. 22 Q. And is it fair to say that in connection
with 23 those issues, hypnotic techniques would be such a
suggestive 24 issue? 25 MR. MURPHY: Objection. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
20
ELIZABETH LOFTUS, Ph.D. 1 A. That is one technique that has been
heavily 2 criticized when it is used for the purpose of trying
to dig 3 out past memories because of its lack of reliability. 4 Q. (BY MR. CONLON) In terms of factors that
might 5 increase concern about the accuracy of memories, I
notice 6 that in some instances in your book you make
reference to, 7 and one of the phrases you use is bizarre, but these
satanic
8 cults and babies being born at age eight and all
sorts of 9 other things. Is it your feeling that the
bizarreness of 10 the claim is a factor that should increase concern
about the 11 accuracy of the memory? 12 MR. MURPHY: Objection to the form. Tim,
you're 13 making reference to a book that's not an exhibit
here. 14 Remember, I gave you over 300 pages of Bates stamped 15 documents preparatory to the depositions and you gave
me 16 some materials. The book was not given to me. 17 MR. CONLON: Thank you, Jim. 18 A. Well, certainly, in many cases where a
claim is 19 very bizarre, and in fact so bizarre that it contains 20 recollections that are biologically or
psychologically 21 impossible, then I think one certainly has an
increased 22 concern about the veracity of the claim. 23 Q. (BY MR. CONLON) Another thing that I
noted in 24 your book is -- it might be your scientific articles
make 25 reference to this as well, but in any event, a lack
of
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
21
ELIZABETH LOFTUS, Ph.D. 1 corroboration by external sources. Is that another
factor 2 that would increase your concern about the accuracy
of 3 memory? 4 MR. MURPHY: Objection to form. 5 A. Well, that is certainly a factor to take
into 6 account, whether there is a lack of corroboration or
whether 7 there is good corroboration. 8 Q. (BY MR. CONLON) Are there other factors
that 9 would increase your concern about the accuracy of
memory 10 besides the ones we've just discussed? 11 A. Well, one other factor, of course, is the
passage 12 of time, because the more time that has passed since
some 13 event or point in life that you are trying to recall,
the 14 weaker the memory and the more vulnerable the memory
is to 15 post event suggestion or post event contamination.
16 Q. Any other factors? 17 A. Well, there might be factors about how
often 18 something happened. The more times that something
happens 19 the better your memory is, for example, so
conversely, the 20 fewer times something happens usually the less good
your 21 memory. 22 Q. Anything else, Doctor? 23 A. The -- well, there are so many factors.
If a 24 person is experiencing substance intoxication,
alcohol, 25 marijuana or other substances, this can affect the
formation KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
22
ELIZABETH LOFTUS, Ph.D. 1 of new memories and make the recollections later on
less 2 reliable. 3 Q. Now, just let me follow up on that,
Doctor. Are 4 you referring to the use of the substances at the
time of
5 the events or are you referring to them, the use of the
6 substances, after the events, or both? 7 A. I was actually referring to the use of
substances 8 at the time of the event. 9 Q. Any other factors? 10 A. Well, I'm not sure how general you want me
to be, 11 but, you know, there are factors having to do with
how good 12 the lighting is. If you're seeing something that
you're 13 going to later have to remember, the lighting
conditions can 14 be crucial. 15 Q. Why don't we lump all of that together
with the 16 ability to initially perceive whatever it is they're
trying 17 to remember, because, I mean, apart from the
lighting, I 18 suppose it could be how close they are to where it is
and 19 whether or not they've got muzzles over their ears or 20 something. But that would sort of subsume a broad
category 21 of things; i.e., how well they're able to perceive
the thing 22 in first place, correct? 23 A. Correct.
24 Q. Are there any other factors that you can
think 25 of? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
23
ELIZABETH LOFTUS, Ph.D. 1 A. Well, certainly the way people are asked 2 questions about their experiences and how leading or 3 suggestive those questions are is a crucial factor. 4 Q. Now, that would sort of relate to what you 5 referenced earlier about suggestive psychotherapy,
correct? 6 A. There are two effects of the questioning 7 process. One effect is that it can influence the
immediate 8 answer that a person gives, but another effect is
that it 9 can contaminate the recollection, and so that down
the road, 10 when you come back and ask questions later on, those
early 11 questions can sometimes contaminate the answers to
later 12 questions. 13 Q. And those questions could happen either in 14 therapy or perhaps in a police office or somebody
else 15 questioning somebody about an event? 16 A. Correct. 17 Q. It's the suggestivity of the questioning,
I'm 18 taking it, that you feel to be the heightening
factor. 19 A. Right. 20 Q. Any other factors, Doctor? 21 A. Well, there may be others that, you know,
will 22 occur to me. I've written so many books on this
subject, 23 and articles, that -- when you're speaking about
memory in 24 general, there are many things that influence memory. 25 Q. Sure. Now, I took a look at your CV, and
frankly KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
24
ELIZABETH LOFTUS, Ph.D. 1 it would be difficult, I would think, for anyone to
remember 2 everything that one wrote if one wrote as much as you
did. 3 But in any event, I just want your best answer about
those
4 factors, so if anything else occurs to you, you let me know,
5 and we'll leave it at that. 6 A. Okay. 7 Q. Speaking of memory, as to the quotes in
the book 8 from trial testimony, how did you get those quotes so 9 accurate? 10 MR. MURPHY: Objection. Which quotes? I
object 11 to the form. 12 Q. (BY MR. CONLON) The quotes in the book,
The Myth 13 of Repressed Memory. Doctor, how did you get them so 14 accurate? 15 MR. MURPHY: Objection. 16 A. I just -- I don't recall now if there were
-- 17 certainly some of the quotes are reconstructed to the
best 18 of people's memories, and we say this in the
beginning of 19 the book. When it comes to court testimony, it's
possible 20 that we had the court testimony. I just don't
remember at 21 this time because I'm working with a coauthor who is
doing a 22 significant amount of the actual writing, Kathy
Ketcham, my
23 coauthor. 24 Q. (BY MR. CONLON) I noticed Kathy's name.
Do 25 either of you have transcripts of your trial
testimony in KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
25
ELIZABETH LOFTUS, Ph.D. 1 connection with any of those incidents in the book? 2 A. Well, I don't usually get or keep
transcripts of 3 my trial testimony unless they happen to be in my
office 4 before they're being sent back after being reviewed
and 5 signed. So for the most part I don't have -- to my 6 knowledge, I don't have trial testimony. 7 Q. Does your coauthor have that for you? 8 A. I'm not sure what she might have kept,
because we 9 would have been working back on this manuscript in,
say, '92 10 and '93. But you could call her and ask her if she
kept 11 anything and what she might have. 12 Q. For starters, I want to get clear as we
speak
13 whether you have looked to determine whether or not you have
14 any testimony, any transcripts of your own testimony. 15 A. Well, actually, I just got one today, but
I 16 didn't have it before and -- I loaned it to somebody
and 17 they mailed it to me. 18 Q. Other than the one that you just got today
that 19 you didn't have before, have you looked to determine
if you 20 have any? 21 A. I haven't been able to find any court
testimony, 22 except in one of my books I reprinted testimony from
an 23 eyewitness testimony case. In my book Eyewitness
Testimony 24 from 1979 there is a transcript in there. 25 Q. Doctor, I apologize. Maybe I'm not being
clear. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
26
ELIZABETH LOFTUS, Ph.D. 1 All I'm wanting to know is if you've looked to
determine 2 whether you have them, that's all.
3 A. Well, you know, I haven't made a thorough 4 search. I have a huge amount of boxes and
everything, but I 5 don't -- to my knowledge, I don't have any
transcripts. And 6 I have looked -- while gathering these various
articles that 7 you requested and making a pile of them, I've looked
for 8 things that might be responsive to your question, and
I have 9 not found any transcripts. 10 Q. And I believe you said that Kathy may have
some? 11 A. I just don't know what she has. 12 Q. I appreciate that. I'm not trying to
suggest you 13 do, but she might have some. You have no objection
to her 14 releasing those to me if she does? 15 A. If she has any transcript of my court
testimony, 16 you're more than welcome to them. 17 Q. Okay, fine. Do you have a number at which
I 18 could reach Kathy, or would you prefer that, you
know, you 19 ask her? It's completely up to you. I would be more
than 20 happy to call her, but, you know, you might feel, I
don't
21 know, uncomfortable with it. Whichever you prefer. 22 A. No, you're more than welcome to call her. 23 Q. Could I have her number, please? 24 MR. MURPHY: She's looking. 25 A. Wait. I'm going through my Rolodex right
here. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
27
ELIZABETH LOFTUS, Ph.D. 1 Okay, here's her number: 509-522- -- 2 Q. (BY MR. CONLON) 522 -- 3 A. -- 1939. 4 Q. Great. Thanks, Doctor. 5 A. Sure. But, you know, you could probably
-- I 6 could tell you, if you really wanted transcripts,
where you 7 might be able to find them. 8 Q. Okay. Well, you did mention you had one.
Do you 9 mind sending me a copy of that? 10 A. I will give it to Mr. Murphy and he can
take care 11 of getting it to you. 12 Q. Great. Thanks very much, Doctor. And you
were 13 saying -- 14 A. In fact, I just handed it to him, so he
has it. 15 Q. Thanks very much. And you were saying
that you 16 know how I could go about getting others. 17 A. Well, for example, one of those cases in
the 18 book, the lawyer was Mr. Moen, M-O-E-N. 19 Q. Which case is that? 20 A. We changed the names of the people, but it
was a 21 criminal case. 22 Q. Let me tell you, the one I'm -- one of the
ones 23 I'm particularly interested in is the one you
referred to as 24 the George Franklin one. 25 A. George Franklin, oh. Well, okay -- KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
28
ELIZABETH LOFTUS, Ph.D. 1 Q. I don't want to know what Mr. Franklin's
real 2 name was, but who was the attorney that handled that
case?
3 A. Oh. Well, in his -- Mr. -- that is his
real 4 name. 5 Q. Which? 6 A. Franklin. 7 Q. Oh, okay. So that's out there in the
public 8 forum, anyway. 9 A. Right. And Mr. Franklin was represent by
Douglas 10 Horngrad, H-O-R-N-G-R-A-D, in San Francisco. 11 Q. I see. 12 A. And then there was an appellate attorney
who 13 would have the transcripts, but I do not have my
testimony 14 in the Franklin case. 15 Q. Okay. Well, I'm sure that I could track
down 16 Mr. Horngrad through the San Francisco phone
directory. 17 Most lawyers have their numbers in the phone book. 18 A. Okay. 19 MR. MURPHY: Tim, I don't want to
interrupt you, 20 but just to make sure the record is clear, the
transcript 21 that Dr. Loftus gave to me, which I will provide a
copy to
22 you, is a deposition transcript, not a trial transcript.
23 MR. CONLON: I appreciate that, Jim. 24 MR. MURPHY: It's in the case of -- 25 MR. CONLON: And if you like, you can just
give KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
29
ELIZABETH LOFTUS, Ph.D. 1 me whichever one you've got and I'll copy it myself
and 2 return it to you. But in any event, thank you, Jim. 3 MR. MURPHY: It's in the case of -- 4 Q. (BY MR. CONLON) Dr. Loftus, again, I saw
terms, 5 the term happening truth and story truth in your
book, and 6 if I'm following this correctly, you used the term
happening 7 truth to refer to events that actually happened. Do
I have 8 that part right? 9 A. I believe we borrowed those terms from Tim 10 O'Brien from a book that was published called
something like 11 The Day They Carried or something like that. And to
make a
12 distinction, yes, happening truth is what happened, what
13 actually happened. 14 Q. And then story truth, if I followed it
correctly, 15 would be what the person relating it believes to be
true, 16 but that did not necessarily happen. 17 A. Correct. 18 Q. Kind of the story that the mind or the
person, 19 the narrator, had built up around the event through
some 20 contamination of memory over time. Is that basically 21 correct that that's what you mean by story truth? 22 A. Yes. 23 MR. MURPHY: Objection. 24 A. Yes. 25 Q. (BY MR. CONLON) Now, another question I
had, and KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
30
ELIZABETH LOFTUS, Ph.D. 1 again, it just sort of arose out of curiosity in
reading 2 your book, you indicate in the author notes that
there were
3 hundreds of interviews done. Is that accurate? 4 A. Well, between my coauthor and me, I would
have to 5 say yes. 6 Q. And as I recall, you referenced having 7 interviewed various types of peoples, accusers and
accused, 8 therapists, lawyers, psychologists, psychiatrists, 9 sociologists, criminologists, and law enforcement 10 personnel. That's accurate? 11 MR. MURPHY: Objection. What page, Tim? 12 MR. CONLON: Let's see. It doesn't have a
page 13 number on it there. It's just there as authors'
notes after 14 it, and it's before another page with no page number 15 either. It's in the beginning of your book. 16 MR. MURPHY: Well, I've got a problem.
We're 17 talking about a book and quotes from a book that's
not even 18 marked as an exhibit. How do I know you're reading
from the 19 same book I might have, if I had it? 20 Q. (BY MR. CONLON) What I'm asking you about
is if 21 the kinds of persons that you interviewed is not
accurate. 22 I mean, I'm not trying to mislead you, and I just
gave you a 23 list. Are those the kinds of persons that you
interviewed 24 for your book? 25 MR. MURPHY: Objection. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
31
ELIZABETH LOFTUS, Ph.D. 1 A. Yes. 2 Q. (BY MR. CONLON) Now, you mention a
coauthor, and 3 I just want to ask a couple of questions. It's not
going to 4 be -- I mean, your book relates some personal issues,
and 5 I'm not going to be probing those personal issues in
any 6 great depth, but I just want to get clear in my own
mind. I 7 think it's pretty clear to me what's going on, but in
any 8 event, sometimes the book says I and sometimes it
says we. 9 Early in the book there is an I relating the death of
a 10 parent in a pool. That's you, isn't it? 11 MR. MURPHY: Objection.
12 A. Could you tell me what page you're referring to.
13 Q. (BY MR. CONLON) Oh, certainly. Page 39.
I'm 14 being somewhat elliptic about this just because I'm
trying 15 to be polite, but, I mean, I don't want to get into
like 16 upsetting stuff. But the book relates, you know, I
came 17 down and I saw and like this, and it relates to the
death of 18 someone's mother, and I'm pretty sure from other
reading 19 that I've done that that I is you. 20 A. It is. That's a story about my mother's
death. 21 Q. Okay. That's really all I wanted to get
clear 22 on. I don't want to discuss that any more. 23 There's a lobby incident, where you come
down -- 24 again, the book refers to I, but the I in the book
comes 25 down from the filming of a video and the I sees an
Eileen, I KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
32
ELIZABETH LOFTUS, Ph.D.
1 believe it was, or the person in the book references
Eileen 2 in the lobby. That's you as well? 3 A. Yes. 4 Q. And then there's a Danish breakfast with
Herb and 5 Ed which I thought was very interesting. That is you
as 6 well, is it not? 7 A. What page, please? 8 Q. Oh, sure. Page 36. I remember, was it
just a 9 few years ago, sitting in the hotel coffee shop -- 10 A. Yes. 11 Q. I'm not going to be pressing for a lot of
details 12 on this. I want to get clear that the I -- because
there's 13 two authors, you know. 14 A. Yes. That was -- 15 Q. That that was perhaps Kathy, or I want to
confirm 16 it's you. 17 A. No, that is my experience. 18 Q. And then later on in the book -- I guess
you have 19 a copy. You're asking me for page cites, and I
certainly 20 don't mind giving them to you to make it easier, but
you 21 indicate on -- just give me a second here -- where it 22 references I'm considered an authority. Just give me
a 23 second. I'm sorry. It's right at the beginning
there on 24 Page 3. It doesn't have a page number on it, but
it's the 25 beginning of Chapter 2. I am a research psychologist
who is KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
33
ELIZABETH LOFTUS, Ph.D. 1 devoted -- I am considered an authority -- I take it
that's 2 you as well, correct? 3 (Discussion off the record.) 4 Q. (BY MR. CONLON) I just wanted to be clear
that 5 at the outset in the book, on Page 3, where it says,
I am a 6 research psychologist and I am considered an
authority, 7 that's you, not Kathy. 8 MR. MURPHY: Objection. I think you've
misquoted 9 or taken the context out. You've left out a lot of
words
10 there, Tim. 11 Q. (BY MR. CONLON) Are you clear on my
question 12 there, Doctor? 13 MR. MURPHY: I object. 14 MR. CONLON: I appreciate that. Great. 15 Q. (BY MR. CONLON) Now, Doctor, are you
clear on my 16 question or no? 17 A. Yes. 18 Q. Is that you? 19 A. Well, this is a reference to me. My
coauthor is 20 not a research psychologist. 21 Q. Where it says on the second paragraph on
that 22 page, I am considered an authority, that is a
reference to 23 you as well, correct? 24 A. Well, an authority on the malleability of
memory. 25 Q. Yes. I didn't want to clutter up the
record. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
34
ELIZABETH LOFTUS, Ph.D.
1 Yes. 2 MR. MURPHY: You don't want to clutter up
the 3 record with the facts, Tim. Just read the sentence
as it's 4 written and not reinterpret it in your own mind.
That's my 5 objection. Since you weren't kind enough to provide
us with 6 a copy of this document and mark it as an exhibit, I
think 7 you ought to at least read the words as they're
printed on 8 the page, period. 9 Q. (BY MR. CONLON) Now, and again, Doctor, I
was 10 very brief in connection with that other personal
issue up 11 front, and I'll be very brief in connection with
this. But 12 later on in the book, and if it helps to get a page
citation 13 I would be more than happy to give it to you, but one
of the 14 authors is referencing as I being a little girl who
was 15 abused by, I believe it was a relative as a child.
That is 16 you as well, is it not, Doctor? 17 A. No, I don't remember any abuse by a
relative.
18 Q. Okay. Well, why don't I look. I certainly don't
19 want to get this wrong. I'm just trying to be very
quick 20 about all of this, that's all. I don't want to dwell
on it, 21 but I saw a reference on Page 226, and I often
wondered if 22 Howard realized what he had done. Is that you? 23 MR. MURPHY: Objection. Can you be
specific, 24 Tim, please? 25 Q. (BY MR. CONLON) Is the I you, Doctor? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
35
ELIZABETH LOFTUS, Ph.D. 1 A. Well, that was my experience, but it was
not a 2 relative, it was a baby-sitter. 3 Q. Oh, I'm sorry, okay. But the experience
related 4 in those pages where it says I is you? 5 A. Yes. 6 MR. MURPHY: Which pages, Tim, please? 7 MR. CONLON: I believe that incident
starts at 8 the bottom of Page 225 and goes on through the middle
of 9 Page 226. 10 MR. MURPHY: Thank you. 11 Q. (BY MR. CONLON) And I think this is the
last of 12 the I's here, but you refer to watching bullets fly,
or the 13 author, one of the authors in the book, refers to
watching 14 bullets fly. If it helps for me to find you the page
I 15 would be more than happy to do that, but is that you
as 16 well? 17 A. I don't -- you'll have to give me the page 18 number. 19 Q. Certainly. I apologize, Doctor. I kind
of 20 thought -- see, and I'm not clear -- that all the
time it 21 says I, it's probably you, but I wasn't sure, and I
didn't 22 know that I couldn't just ask it that broadly and get
it 23 over with. 24 But in any event, Page 32, down at the
bottom of 25 the last full paragraph, says, I watched the bullets
fly and KATHY HAUCK, CSR, RPR
1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
36
ELIZABETH LOFTUS, Ph.D. 1 I ducked for cover, and my research, and it goes on
to 2 describe the research, et cetera, and I just wanted
to get 3 clear whether that was you or Kathy. 4 A. That would be, you know, a sort of an
attempt at 5 being literary as a reference to me. 6 MR. MURPHY: A metaphor? 7 A. A metaphor. 8 Q. (BY MR. CONLON) Do you feel that that
paragraph 9 accurately describes you? 10 A. The whole paragraph? 11 Q. Yes. 12 A. Yes. 13 Q. Oh, okay, good. Thank you. 14 As I read that section of the book, it
seemed to 15 suggest to me that you perceived yourself to be sort
of in 16 the middle of these flying bullets, as opposed to
being on 17 one side or the other. Do I have that correct?
18 MR. MURPHY: Objection. 19 A. Well, at the time that I was writing this
book, I 20 did try to -- I did believe that that was where I
belonged. 21 Q. Has that changed in terms of your
perception? 22 MR. MURPHY: Objection. Go ahead. 23 A. Well, my perception has changed a little
bit, 24 because people have described me as being an extreme
skeptic 25 and have sort of made my position seem more extreme
than it KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
37
ELIZABETH LOFTUS, Ph.D. 1 actually is. 2 Q. People can do a lot of things that isn't 3 necessarily consistent with -- I mean, just Jim
Murphy, who 4 will characterize my conduct all the time -- will
often 5 characterize my conduct in a way I don't think is
accurate. 6 Do you still consider yourself to be in
the 7 middle, regardless of the fact that now people seem
to be 8 lumping you in with a more extreme position? 9 MR. MURPHY: Objection. 10 A. I would not want to call myself in some
position 11 like that. I don't think it is productive or
necessarily 12 accurate. I'm interested in scientific truth. 13 Q. Well, I noticed that you seem to show
quite a bit 14 of respect for other authorities in the clinical
field and 15 in other fields. 16 MR. MURPHY: Objection. 17 Q. (BY MR. CONLON) Is that fair? 18 A. I have a lot of respect for people in the 19 clinical field and in other fields. 20 Q. You mentioned in your book Ken Lanning.
Do you 21 consider him to be an expert in connection with
sexual abuse 22 investigations? 23 A. Well, it's my understanding that he's one
of the 24 employees of the FBI who is most involved in issues
of 25 investigation of satanic ritual abuse claims. That's
my KATHY HAUCK, CSR, RPR
1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
38
ELIZABETH LOFTUS, Ph.D. 1 understanding about his experience. 2 Q. Well, would you accept that he is an
expert in 3 connection with sexual abuse investigation? 4 A. Well, I would accept that he has expertise
in 5 investigation of satanic ritual abuse claims that
involve 6 sexual abuse. 7 Q. Would you consider him competent to
determine 8 what is corroborative in connection with a sexual
abuse 9 allegation? 10 MR. MURPHY: Objection. 11 A. I would take his opinions very seriously. 12 Q. (BY MR. CONLON) Do you feel that you're 13 competent to determine what is corroborative in
connection 14 with a sexual abuse investigation? 15 A. Well, I don't -- my field is memory and
memory 16 distortion, so it's really somebody else's job to
decide if 17 they have sufficient corroboration for a claim.
18 Q. Does the term corroborative have an
accepted 19 scientific meaning amongst memory researchers? 20 A. I'm not sure you see it as a scientific
term, no, 21 although it does appear in scientific articles. 22 Q. I noticed that, and that's why I'm curious
as to 23 whether or not it has some accepted scientific
meaning among 24 memory researchers. 25 MR. MURPHY: Objection. Is that a
question? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
39
ELIZABETH LOFTUS, Ph.D. 1 A. The way the term is used is usually, in my 2 experience, in conjunction with the idea that a false
memory 3 and a true memory can be so similar to each other
that 4 without independent corroboration, truly independent 5 corroboration, you have no way of knowing whether
what 6 you're dealing with is a real memory or one that is a 7 product of imagination or suggestion or some other
process.
8 Q. (BY MR. CONLON) I just want to know
whether or 9 not you folks that are memory researchers have some
accepted 10 scientific meaning for that term corroboration. 11 MR. MURPHY: Objection. 12 A. Well, in only that it is a reference to
whether 13 there is independent -- you know, there is some form
of 14 independent evidence that might support a memory
claim. 15 Q. (BY MR. CONLON) Have you ever done any
research 16 which in any significant way tends to demonstrate
that real 17 memories cannot be lost? 18 A. I'm currently working on a project where
we are 19 attempting to see whether real memories can be lost
or 20 erased, subtracted away from the mind, by post event 21 suggestion. I'm currently working on such a project. 22 Q. I see. When you say working, I guess that
sort 23 of implies to me it's not finished. Is that correct? 24 A. That's correct. It's a collaboration with 25 another memory investigator, and it's -- we're just
in the
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
40
ELIZABETH LOFTUS, Ph.D. 1 process of doing the study now. 2 Q. Well, for now let me just focus on the
word done 3 in that last question, okay? Have you done any
research 4 which in any significant way tends to demonstrate
that real 5 memories cannot be lost? 6 MR. MURPHY: Objection. 7 A. The research that I've done on that
subject is to 8 review the literature on that issue, on the issue of
the 9 permanence of our memories, and so I have written
about that 10 quite a bit, particularly in 1980. 11 Q. (BY MR. CONLON) When you say you've
written 12 about it, though, I asked about research that you've
done. 13 You're referring to writing about other people's
research? 14 A. Well, writing about the research that
people have 15 done, both others and myself, that bears on the issue
of
16 whether our memories are permanent or whether they
are 17 subject to modification and distortion. That was a
very hot 18 topic back about 1980 or so. 19 Q. I'm not asking about whether or not you
can 20 create a distorted memory or something that someone
would 21 represent to be a memory that is in fact a, for want
of a 22 good term, hallucination, okay? I'm asking about
research 23 that you've done that would demonstrate that a real
memory 24 cannot be lost, if any. Maybe you haven't done any.
I 25 don't know. There's so much research in your CV, but
are KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
41
ELIZABETH LOFTUS, Ph.D. 1 you familiar with any research that you've done of
that 2 type? 3 MR. MURPHY: Objection. 4 A. I guess I would have to say no, I don't
think
5 it's true that real memories cannot be lost, so I
have not 6 done a study that would demonstrate that real
memories 7 cannot be lost. 8 Q. (BY MR. CONLON) So you're not aware of
any other 9 research that tends to demonstrate that real memories
can't 10 be lost? 11 A. Well, in my 1980 article in the American 12 Psychologist I did review some research that
purported to 13 support the idea of the permanence of our memories,
and I 14 critically analyzed that research, the work of Wilder 15 Penfield in particular. 16 Q. When you say critically analyzed, you mean
-- and 17 I'm just inferring this from your answer to the
question 18 before -- that you reject the notion supporting his
finding 19 that real memories could not be lost? 20 MR. MURPHY: Object. 21 A. I don't think that Wilder Penfield put
things 22 quite that way. I'm not sure he ever said real
memories 23 cannot be lost, but his work was used, and he himself
did 24 draw inferences to suggest that once a memory is
stored, 25 it's stored permanently. There was that suggestion
in his KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
42
ELIZABETH LOFTUS, Ph.D. 1 early research. 2 Q. (BY MR. CONLON) And in your critique you 3 suggested that this suggestion, as you've just
described it, 4 was incorrect. 5 A. That's right. 6 Q. How would you describe the process by
which what 7 you term to be false memory is acquired? 8 A. Well, one of the common ways that a false
memory 9 is acquired is through suggestion, or even repeated 10 suggestion. So when you ask people leading
questions, when 11 you get them to imagine that they experienced things
that 12 they perhaps didn't experience, when you give them
external 13 sources of suggestion: we talked to your mother and
your 14 mother told us that this happened to you, I believe
that 15 what then happens is people start to adopt a belief
that 16 they had this experience. They might even develop
some 17 images of the experience, and they then confuse those
images 18 and mistakenly believe that they're real memories
rather 19 than just imaginations or mental products due to the 20 suggestion. 21 Q. Does your discussion or do your
discussions with 22 what you term to be retractors support that
description of 23 the process? 24 A. Yes, many of the retractors that I've 25 interviewed, or even had discussions with more
informally, KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
43
ELIZABETH LOFTUS, Ph.D. 1 do describe a series of experiences that they went
through 2 that they claim led them to develop false memories.
3 Q. So if I follow your description of this process,
4 the false memory is not something that comes about
all of a 5 sudden; is that correct? 6 A. Well, in my experiments on false memories,
we can 7 get people to report that they had these experiences 8 sometimes fairly quickly, sometimes after a single
session. 9 Q. Well, would it come out of the blue,
without 10 prompting? 11 A. Actually, sometimes, of course, people
make 12 spontaneous reports from memory. They appear to be 13 spontaneous. They do not seem to be prompted by any 14 external suggestion. But, of course, people make
mistakes 15 in their memory, you know, without any therapist or
without 16 any intervention of some obvious external suggestion. 17 Q. Okay. But if I understood your -- and
again, I'm 18 just a stupid lawyer here, but if I understand your
writing, 19 you distinguish between false memory and just an
ordinary 20 forgetting or a mistake. Do I misunderstand? 21 A. No, if somebody makes a mistake and they
really
22 believe in that experience, but it's not accurate,
then they 23 have a false memory. 24 Q. And are you saying that that can just
happen out 25 of the blue? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
44
ELIZABETH LOFTUS, Ph.D. 1 A. People do spontaneously make mistakes.
They 2 sometimes do it because they draw inferences from
what 3 they've experienced, and then they remember those
inferences 4 as if they were things that actually happened to
them. 5 Q. Okay. But as you just described it, you
had two 6 steps. You had a first step and then you had the
then they 7 remember. I'm just trying to get clear as to whether
or not 8 you perceive that false memories can come out fully
formed 9 or whether they require some type of prompting or
suggestion 10 or misguided reflection, a process, to create them?
11 MR. MURPHY: Objection to the form. 12 A. I believe that it's possible to develop
false 13 memories even in the absence of external suggestion. 14 Q. (BY MR. CONLON) Would you develop them as
a 15 fully formed memory image? 16 A. I don't know. It seems to me there are
many 17 different ways to get to a false or mistaken memory. 18 Q. Well, would the false memories start --
based 19 upon your research, Doctor, do you have an opinion as
to 20 whether they would tend to start first as beliefs as
opposed 21 to memories? 22 A. In some cases, yes. 23 Q. Well, when you say in some cases, would it
be the 24 exception or the rule that they would start as
beliefs? 25 A. I don't know the answer to that. The
beginning KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
45
ELIZABETH LOFTUS, Ph.D.
1 with beliefs and then developing into memories is, in
my 2 opinion, one of the major processes, and it's one
that's 3 discussed in the work of Dr. Ira Hyman, another
investigator 4 in this area. 5 Q. Do you concur with his views on that? 6 A. Yes. 7 Q. Are you aware of any research tending to
show 8 that traumatic memories cannot be lost? Earlier I
asked you 9 about memories in general. I just want to focus on 10 traumatic memories for a moment. 11 A. Well, I'm aware of some research in the
area of 12 conditioned responses after a traumatic experience,
and 13 those conditioned responses are sometimes hard to 14 extinguish. 15 Q. You're saying that some people will have a 16 conditioned response post a traumatic incident? 17 A. Yeah, or some animals. I'm thinking of
the work 18 of Joseph Ledoux, for example. L-E-D-O-U-X. 19 Q. Did he study animals or persons? 20 A. He's primarily studied animals, I believe.
21 Q. Any other research that you believable tends to
22 show that traumatic memories cannot be lost? 23 MR. MURPHY: Objection. 24 A. I don't know, that's an awful strong
statement 25 when you use the word cannot, and it makes it
difficult for KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
46
ELIZABETH LOFTUS, Ph.D. 1 me to kind of agree with. 2 Q. (BY MR. CONLON) That's fine. I mean,
Doctor, 3 you, I believe, told me that you were not aware of
any 4 research that you agreed with that showed that
memories 5 could not be lost, so that may be that doesn't change
at all 6 when I saw traumatic memories. I'm just wanting to
get 7 clear with you. 8 MR. MURPHY: Objection. 9 Q. (BY MR. CONLON) So if you're aware of
some 10 research, other than the research that you've just
cited me
11 to, that you believe tends to show that traumatic
memories 12 cannot be lost, I would just like to know what it is.
And 13 if not, that's fine. 14 A. I don't know of research that shows
traumatic 15 memories cannot be lost. 16 Q. How about research that shows that
traumatic 17 memories cannot be lost and recovered? 18 A. I don't know of research that shows that 19 traumatic memories cannot be lost and recovered. 20 Q. Are you aware of Don -- darned if I know
if I'll 21 pronounce this right -- but Schacter's work
suggesting that 22 PET scanning may distinguish brain activity
associated with 23 false memories from that associated with veritical
ones? 24 A. I'm aware of that study, yes. I wouldn't 25 describe it that way, however. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
47
ELIZABETH LOFTUS, Ph.D.
1 Q. How would you describe it, Doctor? 2 A. That is a study that showed that when
someone is 3 induced to produce a false memory, compared to having
a real 4 memory, that there are some portions of the brain
that are 5 activated in common, and there are -- such as the 6 hippocampal regions, and there are other portions of
the 7 brain that might show some differences, at least with
this 8 paradigm, such as the auditory cortex, since the
items in 9 question in this study is presented in a verbal
format. It 10 did seem there was some difference in the auditory
cortex 11 between the true words that were heard and the ones
that the 12 subject thought he heard, but didn't actually hear. 13 Q. Doctor, one of the studies that I've seen
so much 14 referenced to both in your own writing and in others' 15 writing would be, for want of a better word, the
shopping 16 mall study. That, I take it, rings a bell with you,
huh? 17 A. Yes. 18 Q. Well, as to that shopping mall study, if I 19 understand it correctly, the subjects were generated
from 20 students; is that correct? 21 A. Well, I would have to pull out the
publication to 22 just refresh my memory, but they were not all
students, by 23 any means. 24 Q. Maybe I misphrased it. My understanding
is that 25 the shopping mall study was conducted in connection
with the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
48
ELIZABETH LOFTUS, Ph.D. 1 actual subjects were children. Do I have that much
right? 2 A. No, that's -- well, no, that's not right. 3 Q. Okay. The subjects were adults? 4 A. Yes, ages 18 to 53. 5 Q. And the subjects, if I understand it
correctly, 6 and please, I do want to just get this clear, the
subjects 7 were led to believe that some event had happened to
them as 8 a child. 9 A. Yes.
10 Q. And that was done by what I believe you
refer to 11 as some form of trusted family member. Do I have
that 12 correct? 13 A. Yes, we -- that's the way we did things,
yes. 14 Q. Okay. Well, what I'm trying to get clear
on is, 15 were the trusted family members who did the leading
or the 16 creation of this memory, were they students? 17 A. In many instances, yes, they were -- they
were 18 students. 19 Q. Okay. That's where I think I garbled it
up when 20 I said something about the subject. 21 A. But on -- they were often students;
however, they 22 gave us the information about their relative and we
then did 23 the interviews with the relatives, or I should say my 24 research associate did. 25 Q. Your research associate did the interviews
with KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
49 ELIZABETH LOFTUS, Ph.D. 1 the actual what we'll call subjects, the persons who
were 2 being asked questions about their childhood? 3 A. Correct. 4 Q. And they did all of the interviews? 5 A. I did not do any of the interviews, if
that's 6 what you mean. 7 Q. Well, I guess what I'm trying to get clear
on in 8 my own mind, you've got some students and perhaps
some other 9 people who lead you to, I guess, or identify some
family 10 members, who are then going to get interviewed. Do I
have 11 that much correct? 12 A. Yes. 13 Q. And then these students -- and there may
have 14 been some other people besides just students --
engage in a 15 process whereby they gave information to your
subjects. 16 A. No, no, they give it to us. 17 Q. They gave it to you? 18 A. Yes.
19 Q. I see. But who related the information to the
20 subject? 21 A. We did. 22 Q. Who did? 23 A. We did, not the relative. 24 Q. Oh, I see, okay. So you or your research 25 assistant, people working at your direction other
than the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
50
ELIZABETH LOFTUS, Ph.D. 1 relatives, both interviewed and conveyed the data,
the 2 contaminating data, if you will, to the subject? 3 A. Correct. 4 Q. Do I have this right? 5 A. Yes. 6 Q. What, if anything, did you do to control
the 7 contact between the students or persons who generated
the 8 subjects, if you will, and the subjects? 9 A. I believe that we asked the relatives and
the 10 subjects not to talk with each other until the
experiment 11 was over. Whether they followed those instructions,
we, of 12 course, can't be positive, but we try to do our best
to make 13 sure they don't communicate. 14 Q. I see. Has Mr. Murphy asked you for
materials 15 upon which you would rely in connection with your
testimony? 16 A. Yes. 17 Q. When did he do that? 18 A. I don't recall. At some point he asked
me, I 19 think, to identify some of the studies that I thought
I 20 might be most likely to mention in my testimony, and
I tried 21 to give him those studies, you know, the citations
for those 22 studies and the actual studies, but I can't remember
exactly 23 when it was. And -- period. 24 Q. I'm sorry, were you finished, Doctor? 25 A. Yes. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
51
ELIZABETH LOFTUS, Ph.D.
1 Q. Well, I reviewed your curriculum vitae.
You're 2 certainly not intending to rely on each and every one
of the 3 articles in your curriculum vitae in connection with
your 4 testimony, are you, Doctor? 5 MR. MURPHY: Objection. 6 A. Well, no, I would say absolutely not.
When I 7 usually give testimony in these types of cases, which
I've 8 done many times, I usually talk in general about the
nature 9 of memory and the malleability of memory and the 10 construction of false memories, and I might give a
few 11 examples of what I'm talking about from either my own 12 research or from the research of other people who
have done 13 very similar kinds of studies. 14 Q. (BY MR. CONLON) Well, all I was trying to
get 15 clear on, since I was given your curriculum vitae, is
that 16 you don't intend to be relying on each and every one
of 17 those articles. 18 A. Correct.
19 MR. MURPHY: We will be supplying you, Tim, with
20 the five years' worth of articles going back. 21 MR. CONLON: I only want the articles that
she 22 intends to rely on in her testimony. 23 MR. MURPHY: I know, but you asked for
them so 24 I'll comply. 25 MR. CONLON: Jim, I'm having a great deal
of KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
52
ELIZABETH LOFTUS, Ph.D. 1 success in asking what I hope are relatively
straightforward 2 questions of this witness and getting relatively 3 straightforward answers, so if I can just -- and so
far I 4 haven't heard anyone complain that they can't hear,
so I 5 feel I'm on a great roll here, and if you don't mind,
I 6 would just as soon to continue. 7 MR. MURPHY: Go right ahead. 8 MR. CONLON: Thank you, Jim. 9 Q. (BY MR. CONLON) Doctor, have you ever
studied 10 with the retractors the exact process by which they
acquired 11 the false memory and compared that with the process
by which 12 people recall actual memory? 13 A. No, I can't say I've exactly done that,
no. 14 Q. Have you ever studied with retractors the
exact 15 process by which they acquired the false memory and
compared 16 that with the process by which people recall actual
sexual 17 abuse? 18 A. Well, I think I have made the comparison
that 19 many of the people that I know of in my studies of
genuinely 20 sexually abused women are people who say that they
had 21 continuous memories. They never -- they remembered
all or 22 part of their experiences their whole lives. 23 Q. Doctor, I'm not so much asking you to make
a 24 comparison. I'm asking you now, today, okay, I'm
asking you 25 whether you have ever studied with retractors the
exact KATHY HAUCK, CSR, RPR
1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
53
ELIZABETH LOFTUS, Ph.D. 1 process by which they acquired the false memory and
compared 2 that with the process by which people recall actual
sexual 3 abuse. 4 A. Well, I thought I was answering your
question, 5 that there -- I mean, I haven't written about that.
Do you 6 mean have I written about that, because I have -- 7 Q. Have you studied it? And if you have,
then you 8 can just tell me about that study. 9 A. Well, I haven't done a specific study that
I've 10 done and written up as a study. 11 Q. Okay. Now, have you ever studied with
retractors 12 the exact process by which they acquired the false
memory 13 and compared that with the process by which people
recall 14 actual sexual abuse after a period of no memory? 15 A. I have not done that study. 16 Q. Now, you identified such a population,
that being
17 a population of people who recalled actual sexual
abuse 18 after a period of no memory, in your study with
Polonsky and 19 Fullilove, correct? 20 A. These are people who reported that there
was a 21 period of time -- they forgot for a period of time
and then 22 the memory returned. They reported that to us in
that 23 study. 24 Q. So like the people who reported that they
didn't 25 have contact with the relatives during your study,
you rely KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
54
ELIZABETH LOFTUS, Ph.D. 1 on the people in the study to report things to you 2 accurately? 3 A. Well, this is -- I'm not sure how to
answer that 4 question. 5 Q. Well, when I asked you before about how
you 6 controlled for contact between the students and
others who 7 generated the subjects and the subjects, I believe
you said 8 to me something to the effect that you instructed
them not 9 to have contact, but you didn't do anything to
strictly 10 police that. Do I have that basically correct? 11 A. Yes. 12 Q. Okay. So you were relying on them to
comply with 13 your instructions. 14 A. Yes. 15 Q. And when you say that they reported a
period of 16 no memory, certain persons reported a period of no
memory, 17 you were relying upon that in connection with the
study you 18 did with Drs. Polonsky and Fullilove, correct? 19 A. Well, I believe that they felt that that
option, 20 option three that they picked, they reported that
that was 21 the closest option to their experience. 22 Q. The data for that study, you do not -- do
you 23 have that data? 24 A. No. I've indicated to Mr. Murphy they are
in the
25 possession of Dr. Fullilove. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
55
ELIZABETH LOFTUS, Ph.D. 1 Q. Now, Mr. Murphy has sent me a fax, and I
really 2 don't need to, I hope, go through which fax is what,
but a 3 fax that, if I recall correctly, basically offered
that you 4 would write to or authorize Dr. -- is it Dr.
Fullilove? 5 A. Yes. She is a psychiatrist. 6 Q. Okay. You never know. 7 -- Dr. Fullilove to release that data to
me. Is 8 that correct? 9 MR. MURPHY: Objection. Tim, we've been
through 10 the protocol for this deposition. I've sent you
many, many 11 faxes. 12 MR. CONLON: I'm just asking the witness. 13 MR. MURPHY: No, you're asking her about a 14 document -- 15 MR. CONLON: (Inaudible) If you object,
that's
16 fine. Just let the witness answer the question. 17 MR. MURPHY: Let me finish my objection,
please. 18 MR. CONLON: I'm sure the steno got your 19 objection. 20 Q. (BY MR. CONLON) Doctor -- 21 MR. MURPHY: Timothy, before I have to
call the 22 judge, if you want to identify the document, the fax,
by 23 date or otherwise, so that we can look at what you're 24 referring to, as opposed to listening to your 25 characterizations, I'll be happy to do it. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
56
ELIZABETH LOFTUS, Ph.D. 1 MR. CONLON: I'm not trying to test the
witness 2 on the matchup. 3 Q. (BY MR. CONLON) Doctor, let me try it
this way: 4 Forget the fax. Would you mind writing to Dr.
Fullilove or 5 signing something such that it's clear to Dr.
Fullilove that 6 you would authorize her release of the data to me?
How's 7 that? Forget the fax. 8 MR. MURPHY: Objection. Timothy, if
you're 9 asking me as the lawyer in this case -- 10 MR. CONLON: No, I'm asking the witness, 11 Mr. Murphy. I didn't hear an objection to that
question. 12 MR. MURPHY: Well, I'm going to object and
I'm 13 going to instruct her not to answer. You can
communicate 14 with me, and I will be happy to ask the doctor to
sign any 15 authorization form that you prepare that is
reasonably 16 necessary and reasonably suitable for the purpose of 17 obtaining the release of information by Dr. Fullilove
to 18 you. 19 Q. (BY MR. CONLON) So, Dr. Fullilove, you're
not 20 going to answer that question? 21 MR. MURPHY: I'm instructing her not to
answer. 22 You have two or three questions in each question,
Tim, and 23 you're asking her yes or no. 24 MR. CONLON: You keep objecting and you
don't let
25 the witness respond. I just asked the witness if she's not
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
57
ELIZABETH LOFTUS, Ph.D. 1 going to answer my last question. If you would like,
I will 2 have the stenographer read that back to the witness. 3 MR. MURPHY: That's fine. 4 MR. CONLON: I just want to know whether
she 5 is -- I heard you instruct her not to answer it.
I've 6 heard you make various representations about certain
things 7 you would agree to, but all I want to know from the
witness 8 is a simple yes or no, whether she is going to answer
that 9 question. 10 MR. MURPHY: Why don't we have the
question read 11 back. 12 (The reporter read back as requested.) 13 MR. MURPHY: That's why I objected to the 14 question, Tim. That is why I objected to that
question.
15 MR. CONLON: Jim, you don't have to tell me that
16 is why you objected to the question. The
stenographer took 17 your objection. I just want to know whether the
witness is 18 going to answer that question. 19 Q. (BY MR. CONLON) Dr. Loftus, are you going
to 20 answer that question? 21 MR. MURPHY: I'll allow her to answer it
as best 22 she can. 23 A. Okay. I would be happy to have Dr.
Fullilove 24 supply the data from the study. I would, you know,
hope 25 that she could be compensated for her, you know, her KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
58
ELIZABETH LOFTUS, Ph.D. 1 expenses, mailing, Xeroxing, or time involved in
doing that, 2 but I'm sure she would be -- I would be happy for her
to do 3 that and certainly sign anything that would make it
easy for 4 you to get that information.
5 Q. (BY MR. CONLON) Thank you, Doctor. I'd
prefer 6 not to be sending somebody over there with a
subpoena, and I 7 think if it's clear to her, I would assume -- I've
never met 8 the woman, but I would think that if it's clear to
her that 9 you have no objection to her releasing the data, or
copies 10 of the data, obviously, to me, that would probably
expedite 11 the process. 12 Mr. Murphy has given me her address and
I'm going 13 to write to her, and I'm going to copy you on the
letter, 14 also, and I'll copy Mr. Murphy, indicating that it is
my 15 understanding that you do not have any objection to
her 16 releasing this stuff to me and just ask her to
confirm that 17 with you. Does that seem like that would be a good
way to 18 approach your colleague? 19 A. That would be fine. 20 Q. Okay, well, then that's what I'll do. I
think 21 that's probably a lot less stressful than a sheriff.
And I
22 will certainly put in my letter that I would be pleased to
23 compensate her for mailing and copying. 24 In any event, what kind of volume are we
talking 25 about, roughly, so I can get a sense as to what's
reasonable KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
59
ELIZABETH LOFTUS, Ph.D. 1 to expect in terms of time, Doctor? 2 A. I don't know. You'll have to ask that of
her, 3 but I'm sure it will -- you know, it won't be too 4 unreasonable. 5 Q. Do you know what kind of data they
collected 6 specifically as it relates to the person's reporting
of a 7 period during which they lost memory of their abuse? 8 A. I'm not sure I -- you'll have -- I know
whatever 9 is in the article here, and she may have other
information. 10 Q. Okay, fine. 11 (Discussion off the record.) 12 Q. (BY MR. CONLON) Now, I wanted to ask you
some 13 questions specifically about Ken Smith. 14 A. Okay. 15 Q. Did you read his answers to
interrogatories? 16 A. I just don't recall right now. I read the 17 complaint regarding him and -- 18 Q. By the complaint regarding him you're
referencing 19 the complaint that we filed on his behalf, I take it?
I 20 just want to get clear. 21 A. Yes. And I did certainly receive the 22 interrogatories and at least skimmed them. 23 Q. Well, I've got a copy of some note pages
by 24 facsimile today which I guess you had mailed to one
of the 25 other attorneys. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
60
ELIZABETH LOFTUS, Ph.D. 1 A. Yes. 2 Q. Do you recall mailing your notes to one of
us 3 nice attorneys here?
4 A. I did mail them to Mr. Murphy, I believe. 5 Q. Okay. Well, what I want to know is
whether or 6 not you wrote notes on any of the documents that were 7 supplied to you by defense counsel. 8 A. No, I did not write any notes on any of
the 9 documents. These are all my notes, the notes on the
pages. 10 Q. Now, Attorney Murphy's client filed some
answers 11 to interrogatories with a paragraph stating what it
is that 12 they anticipated what you would testify about. Have
you 13 read or have you read at any time that answer? 14 A. Well, I did read something about my
anticipated 15 testimony. 16 Q. Do you know whether that was an answer
that 17 Attorney Murphy's client filed in connection with our 18 interrogatory regarding your anticipated testimony? 19 A. I just don't know. I don't know the
answer to 20 that. 21 Q. I saw a little in the answer that they
supplied 22 me about Ken, and I certainly don't want to get into
a
23 debate about how much is or isn't in that answer, but
I just 24 want to get clear in my own mind when you reference
these 25 types of cases. Let's start with that phrase.
Earlier on KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
61
ELIZABETH LOFTUS, Ph.D. 1 in this deposition you said these types of cases.
What 2 types of cases do you consider this to be? 3 MR. MURPHY: Objection to the entire
question as 4 to its form. 5 A. Well, this might be a repressed memory
case, 6 where someone is claiming that they now have
recovered 7 memories of extensive abuse over a long period of
time that 8 they previously repressed, that it might be that type
of 9 claim. 10 Q. (BY MR. CONLON) And have you formulated
any 11 opinion as to whether or not Ken repressed his memory
of
12 sexual abuse? 13 A. I don't usually -- I rarely offer an
opinion 14 about whether a person did or did not repress their 15 memories. It's my understanding that I will be
testifying 16 about the workings of memory, the creation of false 17 memories, the effects of suggestion on memory, and
how it is 18 that someone might have memories for things if they
didn't 19 happen. 20 Q. Well, I guess the part I'm trying to get
clear 21 about is, when you say someone, are we talking about
Ken 22 specifically or are you going to be testifying just 23 generally on the science in this area? 24 A. Well, I do expect certainly to be
testifying 25 generally on the science in the area. However, I
might also KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
62
ELIZABETH LOFTUS, Ph.D. 1 identify some of the suggestive aspects of the
environment
2 in which the particular plaintiff existed, you know,
such as 3 the environment of the publicity and so on. So there
is 4 both general testimony that I anticipate, but also
specific 5 examples of suggestive elements that occurred in this
case. 6 Q. Well, why don't we then go through the
specific 7 suggestive elements that you are going to be
testifying 8 occurred in this case relative to Ken. You mentioned 9 publicity. Is there anything else? 10 MR. MURPHY: Timothy, first I want to
interpose 11 an objection on the record. I'll allow the doctor to
answer 12 the question, of course -- 13 MR. CONLON: Thank you, Jim. 14 MR. MURPHY: -- but just so the record is
clear, 15 that at this point we still do not have the final
deposition 16 transcript of your expert witness -- 17 MR. CONLON: Mr. Murphy -- 18 MR. MURPHY: Do not interrupt me. 19 MR. CONLON: What is or is not done is a
record 20 that is not going to get related, doesn't need to be
related 21 on this record. 22 MR. MURPHY: It does too. 23 MR. CONLON: The case is -- it's a matter
of 24 record that we're going to see the judge tomorrow in 25 connection with scheduling issues. There's a
thousand KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
63
ELIZABETH LOFTUS, Ph.D. 1 matters of record. You've objected. I'm going ask
you, and 2 in fact I'm going to specifically instruct you, not
to coach 3 this witness and just let this witness answer this
question 4 as best she can. And what the record is about,
what's been 5 done is abundantly clear from a variety of sources
besides 6 your testimony at this point. 7 Q. (BY MR. CONLON) Dr. Loftus, if you would
just 8 tell me -- 9 MR. MURPHY: Mr. Conlon, please let me
make my
10 statement for the record. That's all I want to do. 11 MR. CONLON: No, Mr. Murphy -- 12 MR. MURPHY: Are you preventing -- 13 MR. CONLON: -- you've objected. Are you 14 instructing her not to answer? 15 MR. MURPHY: No, I've already told you I'm
going 16 to allow her to answer the question, but you're
creating a 17 false record, Mr. Conlon, because you -- 18 MR. CONLON: No, I'm not. 19 MR. MURPHY: You are. 20 MR. CONLON: I just asked her a question. 21 MR. MURPHY: Then let me finish what I
want to 22 say. We do not have the final transcript of Dr.
Barry 23 Plummer's deposition, your expert. We do not have
the final 24 transcript of Francis Pescosolido's deposition, your 25 expert. Just Friday I received the final transcript
of KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
64
ELIZABETH LOFTUS, Ph.D. 1 Kenneth Smith, your client's deposition that Dr.
Loftus has 2 not had an opportunity to review. And we, I assume,
are 3 going to have something from Dr. Grassian if you
prevail on 4 bringing in additional experts. There is a lot of
data that 5 we do not have, and I want it clear on the record
that at 6 this time we do not have it. 7 I'll allow the doctor to answer any
questions you 8 have, but don't pose your questions in such ways as
they 9 assume facts that are not yet developed or available,
that's 10 all. Thank you. You may answer. 11 THE WITNESS: What was the question? 12 MR. CONLON: I'm shocked that you could
even come 13 close to remembering the question, so why don't we
have the 14 question read back. 15 (The reporter read back as requested.) 16 A. Well, first of all, there was extensive
publicity 17 that apparently Ken Smith at least was aware of some
of the 18 accusations and publicity around O'Connell. There
were 19 activities that went on with a therapist named Bean;
20 however, the therapy notes are so difficult, if not 21 impossible, to decipher that it's difficult at this
point to 22 know for sure exactly what went on during that
therapy in 23 1992 that surrounded the revealing or production of
these 24 accusations. There were -- 25 Q. (BY MR. CONLON) Her handwriting stinks;
is that KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
65
ELIZABETH LOFTUS, Ph.D. 1 basically what you're saying, Doctor? 2 A. Yes. Thank you. I didn't want to use
that word, 3 but -- 4 Q. Oh, I'm sorry, I didn't mean to insult -- 5 Dr. Bean is not here, and I'm not trying to insult
anybody. 6 My handwriting frankly stinks as well. But in any
event, I 7 just want to get clear that that's what we're talking
about 8 in terms of difficulty in reading. I think I saw
them and 9 it impressed me that he doesn't write terribly
legibly. 10 Go ahead. You mentioned Dr. Bean.
Anything 11 else? 12 A. Well, there were apparently conversations
between 13 Ken Smith and Matthew Kelly in which Kelly was
relating his 14 own experiences, and those conversations certainly
could 15 have been a source of post event information or post
event 16 suggestion. So those are just some of the examples
that 17 exist in this case where there has been suggestion or
may 18 have been suggestion. 19 Q. Doctor, I would prefer if we didn't stop
with 20 some of the examples. I would like, as it relates to
Ken, 21 to get all of the things that you feel either were or
may 22 have been suggestive elements that play in connection
with 23 Ken's memory of his sexual abuse. You can certainly
take 24 your time and look at your notes or whatever else you
need 25 to, Doctor. I don't want to rush you about it, but I
do
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
66
ELIZABETH LOFTUS, Ph.D. 1 want to get something other than just some examples. 2 A. Well, I don't know whether there are
further 3 examples or not until I review the rest of the
material, but 4 the one other thing that I have identified in my
notes is, 5 there is a letter dated 2-3-93 from a lawyer to the 6 therapist, Pescosolido, and it certainly states the
belief 7 on the part of this lawyer that the young men were
sexually 8 abused by priests. So I have no way of knowing any
further 9 what went on in the conversations between Mr. Smith
and the 10 lawyer who sent that letter, but it was clear that
the 11 lawyer seemed to be communicating that belief. 12 Q. Well, let me just get clear on what data
you are 13 working with, Doctor, because I understand that
certain 14 transcripts you don't have yet, but I want to get
clear on 15 what data you do have. Did you discuss Ken's
deposition 16 with Mr. Murphy? 17 A. Well, what do you mean? We certainly
discussed 18 the fact that part of the deposition was just done
and would 19 be being mailed out soon. Is that what you mean? 20 Q. You say just done, Doctor. The deposition
was 21 done in the beginning of February, actually February
1st of 22 1997. Did you discuss the substance of or what it is
that 23 Mr. Smith testified to with Mr. Murphy, since it was,
what, 24 over a month ago? 25 A. Well, we did have some discussions about
it, yes. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
67
ELIZABETH LOFTUS, Ph.D. 1 Q. Oh, okay. What did he tell you about
Ken's 2 testimony? 3 A. Well, just from my memory from our meeting 4 yesterday, we talked about there were drugs involved
in his
5 history. We talked about a Cub Scout memory. We talked
6 about a car memory. I mean, there are memories
involving a 7 trip to Ireland. 8 Q. Anything else? 9 A. I do believe we briefly discussed his --
the age 10 regression that he had done by Dr. Haymes, or the
therapist 11 Haymes, trying to regress him back to the time of his 12 parents' divorce. 13 Q. Anything else, Doctor? 14 A. His experiences, some of his experiences,
in the 15 Marine Corps. 16 (Attorney and witness confer.) 17 Q. Any particular experiences in the Marine
Corps? 18 A. I just don't remember right now. And I
just 19 don't remember when or if or how we may have
discussed his 20 flashbacks that he was supposedly having during his 21 treatment with Darlene Burke. 22 Q. Is it your understanding that he did not
have 23 flashbacks prior to his treatment with Darlene? 24 A. No, he may have, but at least in -- at
some point
25 there was some reference to flashbacks involving
Darlene KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
68
ELIZABETH LOFTUS, Ph.D. 1 Burke. 2 Q. You have therapy records other than just 3 Dr. Bean's, correct? 4 A. Well, I have not extensively reviewed
these. For 5 example, I have tried to read Dr. Bean's, but there
are some 6 records here from Haynes or Haymes. Are you
referring to 7 that? 8 Q. Well, I honestly don't know what you have.
I 9 know what I gave Mr. Murphy, and I know that there
are 10 records besides records from Bean, and so far you
have 11 listed Bean, Haymes, and Burke, so I'm just trying to
get 12 clear what records Mr. Murphy gave you. He gave you
records 13 other than Bean, Haymes, and Burke, didn't he? 14 A. I don't recall.
15 Q. Well, how about White Deer? Did you get
records 16 from White Deer? 17 A. Bear? 18 Q. Deer? 19 A. Oh, White Deer? 20 Q. Yeah, as in do, re, mi. 21 A. Well, I do -- I certainly did know
something 22 about White Deer because I have it on my -- I have it
in my 23 notes, so I'm just not sure whether I got some
document or 24 something from 1996. 25 Q. How about a Dr. Alder or Adler; do you
have KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
69
ELIZABETH LOFTUS, Ph.D. 1 records of Dr. Adler? 2 A. I don't recall reviewing those. 3 Q. Is it the case that you have medical
records that 4 might bear upon your testimony as it relates to my
client 5 that you haven't even reviewed yet?
6 A. I don't think I've received them. 7 Q. You're not certain that you have all of
his 8 medical records; is that what you're saying? 9 A. I doubt I have all his medical records. 10 MR. MURPHY: I don't have all of his
medical 11 records. 12 MR. CONLON: Well, why don't I try it this
way, 13 Jim, since you like to testify sometimes with your 14 witnesses. All the records that you have, she has? 15 MR. MURPHY: That I don't know because
things 16 have been coming in in bits and pieces, and I can't 17 represent one way or the other, Tim, actually. 18 Q. (BY MR. CONLON) Well, Doctor, I really
don't 19 want to tie you up longer than I need to, but I do
need to 20 know what you have and don't have, and that's fairly 21 important to me. Probably, I'm just guessing, it
would be 22 the simplest if you inventoried what records you have
and 23 then fax that to me at some point, or to Jim and then
Jim 24 can fax it to me. I really don't care. I'm
certainly
25 entitled to know what medical records you have. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
70
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: Well, you know what, Tim, if
you 2 were here with us right now I could show them to you. 3 MR. CONLON: You can tell me -- you can
just -- 4 Jim, I don't have to be there for her to tell me. If
you 5 can show them to me, you can show them in steno and
the 6 witness can read them off and I'll write them down.
That's 7 good enough for me. 8 Q. (BY MR. CONLON) You've got them right
there, 9 Doctor? 10 A. Well, I have the materials here that Mr.
Murphy 11 sent me. 12 Q. Okay. Well, why don't we just tell the 13 stenographer what medical records you have and she'll
take 14 it down for us and that will save us a fax. 15 A. Well, there's just one great, big, huge
pile. 16 But first of all, let me -- just to put on this list,
I've 17 tried to review Dr. Bean's records, but they were not
in my 18 possession. Mr. Murphy had those. I have tried to
extract 19 some information from those notes. I tried to and
did read, 20 to the best of my ability, Dr. Haymes's notes. I got 21 information about Darlene Burke. I'm not sure I have
any 22 actual medical records from her. 23 Q. Ma'am, Mr. Murphy just represented on this
record 24 that if I were there you could show them to me or he
could 25 show them to me, so kindly show the stenographer, if
you KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
71
ELIZABETH LOFTUS, Ph.D. 1 have them, Darlene Burke's records. If you do not,
that's 2 fine. It's not your fault if Mr. Murphy didn't mail
them to 3 you. 4 A. Well, I don't have her records.
5 Q. Okay. So there are no Darlene Burke
records with 6 you. 7 MR. MURPHY: But I have them. 8 MR. CONLON: I'm not interested in what --
I know 9 what you have, Jim. I sent it to you. I want to
know what 10 she got to review. Okay? 11 MR. MURPHY: Be clear, then. Be clear. 12 MR. CONLON: Thank you. Great. 13 Q. (BY MR. CONLON) Go ahead, Doctor. No
further 14 questions. Go ahead, please. 15 A. No, but I did review some things having to
do 16 with Darlene Burke. Maybe they were an exhibit to
somebody 17 else's deposition. So for example, I know that
there's some 18 sort of a letter that she wrote on September 2nd,
1996, in 19 which she says essentially that Smith's insomnia is
due to 20 his sex abuse experiences. 21 Q. Okay. Well, I appreciate you telling me
that, 22 and if you've got something that's got the Burke
records 23 that you're referencing, because Mr. Murphy made the
24 representation that if I was there he could show this
to me, 25 so if you would show me the Burke documents that you
have, KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
72
ELIZABETH LOFTUS, Ph.D. 1 or show them to the steno and we can identify them. 2 I recall this letter, but obviously the
letter is 3 only one letter out of the lady's file. Maybe it
isn't 4 obvious to you, but I'll tell you that there's
certainly 5 more than a letter for Burke. So just get ahold of
whatever 6 it is that you have there as to Darlene Burke so we
can make 7 the record clear on that point. 8 MR. MURPHY: I object to the entire
process, 9 Timothy. 10 MR. CONLON: Thank you, Jim. I object --
there's 11 a lot of things I object to what you're doing, okay,
but I'm 12 not going to tie up Dr. Loftus with that. If she
could make
13 clear what she has referenced now in her testimony,
I'd 14 appreciate it. 15 MR. MURPHY: Maybe we ought to take a
break. 16 She's got a large pile of documents on her lap. 17 Q. (BY MR. CONLON) Doctor, you know, we can
hold 18 the Burke thing for a moment. Why don't you just
pick 19 through that large pile of documents in your lap and 20 identify each one for the record, please. 21 MR. MURPHY: I object, Timothy. We had
provided 22 you with Bates stamped documents. I asked you if you
had 23 anything else. We are now experiencing the problems
that I 24 raised to Judge Torres when you wanted to do these
telephone 25 depositions. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
73
ELIZABETH LOFTUS, Ph.D. 1 MR. CONLON: The only problem we're having
is 2 your interfering with my questions of this witness.
3 Q. (BY MR. CONLON) Would you kindly identify
the 4 documents that you have that Mr. Murphy sent to this 5 witness, please. 6 (Discussion off the record.) 7 A. I'm still looking for the letter that
Burke wrote 8 in which she said that the insomnia was due to, and I
don't 9 have any idea where that letter is. 10 Q. (BY MR. CONLON) Okay. Well, why don't we
go at 11 it the other way around. You've got, evidently, a
pile of 12 documents in your lap that Mr. Murphy sent you. 13 A. Right, okay, we could do that. 14 Q. Okay. Is it safe to say that they come in
little 15 stapled bunches? I don't want to do this one page at
a 16 time. 17 A. Okay. 18 Q. So what's the first set of documents in
the pile? 19 A. Well, first there's the plaintiff Smith's
fifth 20 supplemental response to Interrogatory 13. 21 Q. Thank you. 22 MR. MURPHY: That's my copy, by the way.
23 MR. CONLON: Okay. Mr. Murphy, if you
would just 24 let the witness testify. I swear, Mr. Murphy, some
day it's 25 going to wind up where I'm deposing you. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
74
ELIZABETH LOFTUS, Ph.D. 1 Q. (BY MR. CONLON) But in any event, what's
the 2 next document in your file there -- in your pile,
excuse me, 3 Ms. Loftus -- Dr. Loftus. 4 MR. MURPHY: Let the record reflect the
doctor 5 has handed me back my copy of your fifth supplemental 6 response that you gave me Friday. 7 A. Okay. Next I'm looking at plaintiff
Smith's 8 answers to interrogatories of hierarchy defendants. 9 Q. (BY MR. CONLON) Thank you. 10 A. With attachments. 11 Q. Okay. Now, that has some records, some
medical 12 records attached to it, does it not? 13 A. Yes.
14 Q. And those are Exhibits A, D, and C, if I
recall 15 correctly. 16 A. Well, I don't know. I don't have any idea
about 17 the numbers, but it's from -- there are many
attachments 18 here. 19 Q. Those are the attachments to those
answers. Now, 20 what else is there? 21 A. But this is where the Burke letter is, for 22 example. 23 MR. MURPHY: Why don't you identify every 24 document. 25 MR. CONLON: Thank you. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
75
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: The doctor is not done yet. 2 MR. CONLON: Oh, I'm sure she isn't. I'm
sure 3 she's got other things in her pile. 4 MR. MURPHY: I want her to identify every 5 document attached to the interrogatory answers so
it's clear 6 as to what she has, that you represented were the 7 documents. 8 A. Okay. So, from the Wheeler Clinic, it
looks like 9 an intake -- how shall I identify it? It says,
Consent to 10 disclose or obtain psychiatric, alcohol, drug abuse 11 communications. 12 Q. (BY MR. CONLON) Are these attachments to
the 13 Smith answers to interrogatories? 14 A. Yes. 15 Q. Okay, fine. What is the next document,
discrete 16 document, that you have? 17 MR. MURPHY: Timothy, I want her to
identify 18 every medical record. 19 MR. CONLON: You can cross-examine her
later, 20 Jim. 21 MR. MURPHY: No, I want -- you've raised
the 22 question as to what she has or doesn't have. 23 MR. CONLON: (Inaudible). 24 MR. MURPHY: Answer the question by
identifying 25 what you have page by page.
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
76
ELIZABETH LOFTUS, Ph.D. 1 A. After Wheeler Clinic is the discharge
summary. 2 Q. (BY MR. CONLON) Doctor, is that part of
the 3 attachments to the answers to interrogatories? 4 A. Yes. 5 Q. Okay. Thank you, Doctor. I want the next 6 discrete document, not the next piece amongst the
answers. 7 I don't want to go through the answers to
interrogatories 8 page by page, and I don't want to go through the
attachments 9 page by page. 10 MR. MURPHY: Objection. 11 Q. (BY MR. CONLON) Go to the next discrete
document 12 you have and identify it, please. 13 A. Okay. The next one is Kelly versus
Marcatonio 14 deposition. 15 Q. Does it have a title on it? 16 A. Well, it's deposition of Stephen Kelly.
17 Q. Okay, so you've got Stephen Kelly's
deposition. 18 Thank you. We certainly don't need to go any -- it
has 19 certain exhibits to it, I assume; is that correct? 20 A. Right, yes. 21 Q. So you've got Stephen Kelly and certain 22 exhibits. What have you got next? 23 A. Next, Bessel -- well, a cover letter just
saying 24 that I'm getting a deposition transcript of Bessel 25 van der Kolk. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
77
ELIZABETH LOFTUS, Ph.D. 1 Q. Okay. And underneath there's something
that says 2 it's the deposition of Bessel van der Kolk; is that
correct? 3 A. Yes, so that's next. 4 Q. I certainly don't want to count out the
pages. 5 Does it have on -- the date on the cover there that
says 6 which deposition transcript it is? 7 A. Well, the date of the letter -- oh, the
date of 8 the deposition is December 27 and December 28, 1996,
and the 9 date of the -- 10 Q. Okay, 27th and 28th of van der Kolk. 11 A. Right. 12 Q. What's the next discrete document there,
Doctor? 13 A. Well, I'm looking now at Pescosolido's 14 deposition, Volume II, December 18th, '96. 15 Q. Okay. And what's next, Doctor? 16 A. A letter from the Hanson Curran firm dated 17 February 21st, '97, authorized -- it's about the
deposition 18 information, and it has Schedule A and Schedule B. 19 Q. Thank you, Doctor. 20 A. Next in the pile is a letter from Mr.
Murphy 21 dated December 11th, 1996, to me. 22 Q. Okay. 23 MR. CONLON: Now, at the risk of just
going right 24 downhill, because here we were on a roll again, let
me try 25 asking Mr. Murphy a question, and maybe this will
help him KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
78
ELIZABETH LOFTUS, Ph.D. 1 and me, if he's willing to answer it. 2 Mr. Murphy, the last two documents, would
those 3 be documents that you Bates stamped to me? 4 MR. MURPHY: I would expect that they are.
Let 5 me take a look and see. 6 MR. CONLON: Okay. Thank you, Jim. 7 MR. MURPHY: You're talking about the
letter of 8 December 11th? 9 MR. CONLON: I believe she said December
11 and I 10 believe she also said February 21. The February 21 11 references Exhibits A and B. I believe I got a
letter 12 referencing the exhibits. It didn't have the
exhibits 13 attached, but that's fine. I'm certainly not
concerned 14 about it. I just want to make sure the two letters
she 15 referenced are letters that you Bates stamped. 16 MR. MURPHY: I've got a February 10 letter
which 17 was Bates stamped, and --
18 MR. CONLON: Thank you, Jim. 19 MR. MURPHY: Hang on. I've got a lot of
stuff 20 here. February 21 letter that was Bates stamped
concerning 21 the deposition. 22 MR. CONLON: Thank you, Jim. That's both
the 23 letters? 24 MR. MURPHY: Well, I don't know. Is there
any 25 other letters you're referring to by date? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
79
ELIZABETH LOFTUS, Ph.D. 1 MR. CONLON: She said 2-21 and 12-11. Did
you 2 get them both? 3 MR. MURPHY: Let me look for 12-11. 4 Q. (BY MR. CONLON) You know what, Doctor,
rather 5 than tying Attorney Murphy up -- I thought it would
be 6 easy -- why don't just you read me the first words. 7 MR. MURPHY: No, I have them, Tim. 8 MR. CONLON: Oh, thank you, Jim.
9 MR. MURPHY: The 12-11 is Bates stamped No. 0076.
10 MR. CONLON: Thank you, Jim. 11 Q. (BY MR. CONLON) Go ahead, Doctor. 12 A. Okay. Next in my pile is a letter from 13 Mr. Murphy to me dated January 6, 1997. 14 Q. What are the first three words of the text
of 15 that letter? 16 A. The part of the letter part, it says, As
you 17 know. 18 Q. Thank you. What's next, Doctor. 19 A. A letter, November 27, 1996, from Mr.
Murphy to 20 me. 21 Q. And what's the first three words of that
letter, 22 Doctor? 23 A. Enclosed please find. 24 Q. Why don't you give me two more words, how
is 25 that? That would try to make it unique I guess. Go
ahead. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
80
ELIZABETH LOFTUS, Ph.D.
1 A. Please find a copy of plaintiff Kenneth
Smith's 2 answers. 3 Q. Thank you, Doctor. Go ahead. What else
have we 4 got there? 5 A. It's a fax that came that is a repeat of
what we 6 already discussed as a letter that came in the mail,
the 7 February 21st, 1997, letter from Mr. Murphy to me. 8 Q. Thank you, Doctor. 9 A. With the schedules. 10 Q. Got you. 11 A. Then there's the next thing in my pile is
Smith's 12 third supplemental response to Interrogatory 13. 13 Q. Thank you, Doctor. 14 A. Next in the pile is plaintiff's
interrogatories 15 to defendant Robert Marcatonio. The next,
plaintiff's 16 interrogatories to defendant Robert Marcatonio. 17 Q. Okay. 18 A. Next, plaintiff's interrogatories to
hierarchy 19 defendants. 20 Q. Okay. Thank you, Doctor.
21 A. Next, plaintiff's interrogatories to
hierarchy 22 defendants. 23 Q. We have the same plaintiffs or different 24 plaintiffs on those two? 25 MR. MURPHY: One is Michael, one is
Stephen. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
81
ELIZABETH LOFTUS, Ph.D. 1 MR. CONLON: Thank you, Jim. 2 Q. (BY MR. CONLON) Go ahead, Doctor. 3 A. Next is U.S. District Court for the
District of 4 Rhode Island, request for production propounded by
plaintiff 5 Smith to all defendants. 6 Q. Thank you, Doctor. 7 A. Next a document, interrogatories
propounded by 8 plaintiff Smith to all defendants. 9 Q. Thank you, Doctor. 10 A. Next, a cover letter from Mr. Murphy to me
dated 11 December 16th that begins, Please find enclosed copy
of
12 first session of Francis Pescosolido's deposition. 13 Q. Thank you, Doctor. 14 A. And it has lots of attachments to it. 15 Q. I'm sorry, does it have anything besides
the 16 deposition transcript and the accompanying exhibits
to that 17 deposition transcript? 18 A. The exhibits and, you know, letters,
articles, 19 chapters and so on. 20 Q. Thank you, Doctor. Next? 21 A. Plaintiff Kenneth Smith, supplemental
response to 22 Interrogatory 13. 23 Q. If you could just flip to probably the
next to 24 the last page, there will be a page that says 25 certification. It will have a date, if you could
make that KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
82
ELIZABETH LOFTUS, Ph.D. 1 out for me. 2 A. No, no date on my copy.
3 Q. Okay. Thank you, Doctor. What else? 4 MR. MURPHY: Timothy, to assist you in
this, at 5 the top of the document there's your fax telephone
number, 6 and it's TJC, Esquire, your phone number, and it says 7 December 6, '96. 8 MR. CONLON: Thank you, Jim. 9 Q. (BY MR. CONLON) Go ahead, Doctor. 10 A. Next we have plaintiff's second
supplemental 11 answers to first set of interrogatories propounded by 12 hierarchy defendants. 13 Q. That would be plaintiff Kenneth Smith? 14 A. Stephen Kelly. 15 Q. Oh, that's Stephen Kelly. 16 A. Yes. 17 Q. Thank you. 18 A. Then we have Michael Kelly, plaintiff's
second 19 supplemental answers. 20 Q. How are we doing on this file? Is it
getting 21 lower? 22 A. Yeah. 23 Q. Good. What's next? 24 A. Michael Kelly, plaintiff's second
supplemental
25 answers to first set of interrogatories. Next we
have a KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
83
ELIZABETH LOFTUS, Ph.D. 1 letter from Mr. Murphy to me dated November 5, 1996. 2 Q. Could you just read the first few words of
that. 3 A. Please find enclosed a copy of U.S.
District 4 Judge Ernest Torres' pretrial order. 5 Q. Thank you. Next? 6 A. Well, then there's the pretrial order. 7 Q. Good. Next. 8 A. Then it appears as if we have some, what
do you 9 call it, limitation -- 9119, disability postponing
running 10 of statute. It looks like it's a one-page thing,
looks 11 like -- 12 Q. Copy of a statute, maybe? 13 A. Statute, okay. 14 Q. Is that what it looks like? 15 A. Yes.
16 MR. MURPHY: That's just what it is. 17 Q. (BY MR. CONLON) Thank you. Next? 18 A. Next a copy of Kelly versus Marcantonio,
678 A.2d 19 873. 20 Q. Okay. And? 21 A. Next a copy of State versus Quatrochhi.
It looks 22 like the judge's opinion in that case. 23 Q. Yes. 24 A. Next, Smith, then interrogatories
propounded by 25 hierarchy defendants to plaintiff. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
84
ELIZABETH LOFTUS, Ph.D. 1 Q. Okay. 2 A. Next, Smith, third amended complaint. 3 Q. Did you read that, Doctor? 4 A. I definitely skimmed it, and I either
skimmed or 5 read many of the attachments to it. 6 Q. Good. Thank you. What's next, Doctor? 7 A. These may all be attachments to this third 8 amended complaint that --
9 Q. It's a pretty bulky thing. 10 A. Yeah, it's very thick, but the pages are
all 11 loose, so I don't know if you want me to read you
every 12 page. 13 Q. Oh, gosh, no. No, if they say exhibit on
the top 14 and they came behind that, let's just -- you don't
see any 15 medical records relating to Ken Smith in there, do
you? 16 A. No, there are, it looks like, taped
conversations 17 and affidavits from various people and-- 18 Q. We're all pretty familiar with that. Why
don't 19 you go to the next document, if you would, Doctor. 20 A. I think that's basically all I have
received, 21 although I've reviewed from Mr. Murphy's materials
some of 22 the things that I mentioned earlier, such as the, you
know, 23 Dr. Bean -- attempt to read the Dr. Bean notes and 24 Dr. Haymes or Mr. Haymes. 25 MR. CONLON: I'm sorry, let me just get
that KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875
SEATTLE, WASHINGTON 98161-1001
85
ELIZABETH LOFTUS, Ph.D. 1 answer read back to me. I apologize. I'm not sure
if I 2 heard you correctly. Kathy, could you read that back, 3 please. 4 (The reporter read back as requested.) 5 Q. (BY MR. CONLON) Perhaps I'm a little
confused. 6 I think you just said, and I think I heard it right
from the 7 stenographer -- it's actually kind of a lengthy
answer -- 8 that you reviewed from Mr. Murphy. All of the
documents you 9 just described to me for the stenographer there,
those are 10 documents you obtained from Mr. Murphy, correct? 11 A. Yeah, but I obtained them and I had them
in my 12 possession. 13 Q. Has Mr. Murphy, just within the last day
or so, 14 shown you some additional documents? 15 A. Yes. 16 Q. What did he just show you? 17 A. Notes from Dr. Bean and Haymes, for
example.
18 Q. Oh, okay. That happened since he got out
there 19 to Seattle? 20 A. Yes. 21 Q. Okay. So which -- when you say notes, is
this 22 like the complete notes or is it just a couple of
pages of 23 notes? 24 MR. MURPHY: I object, but you may answer
as best 25 you know. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
86
ELIZABETH LOFTUS, Ph.D. 1 A. Well, it's somewhere in between. I don't
know if 2 it's complete, but there are quite a few pages of
notes that 3 we were trying to decipher together. 4 Q. (BY MR. CONLON) I would like you to
supply the 5 notes that Mr. Murphy just supplied to you within the
last 6 couple of days to the stenographer for her to copy
for 7 everybody, and that way we'll know, since it may or
may not 8 be all of the Haymes or Bean records, which ones they
are, 9 without talking you through one page at a time. 10 A. Okay. Well, they're in Mr. Murphy's
possession, 11 so he can -- 12 (Counsel confers with witness.) 13 MR. MURPHY: Are you referring to the
handwritten 14 notes that were delivered to your office this morning
and 15 that the doctor was referring to, or are you
referring to my 16 own personal binder of records on Kenneth Smith? 17 MR. CONLON: Just now I was referring to
the 18 records that she was referring to as having reviewed
within 19 the last couple of days, those being, as I heard her 20 testimony, Bean's and Haymes's, or some portions of
Beam's 21 and Haymes's notes. 22 MR. MURPHY: The thing is, Tim, these are
in my 23 own binder. I would be happy to show them to you,
but I'm 24 not going to take notes out of my binder and give
them to 25 anybody or have them marked as an exhibit. These are
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
87
ELIZABETH LOFTUS, Ph.D. 1 records you gave to me that are illegible, and as far
as I 2 can tell, may not be complete. You have them there,
also, I 3 assume. If you want to ask about them, why don't we
do 4 that. 5 MR. CONLON: You're saying you won't allow
the 6 stenographer to copy the pages such that we will know
which 7 pages you showed the witness? Is that basically it,
Jim? 8 MR. MURPHY: How do you propose we do
this? 9 MR. CONLON: Jim, I'm not going to ask her 10 questions other than what you -- I think I made it
clear how 11 I proposed to do it. I would like you to give the 12 stenographer whatever pages it was that were supplied
to the 13 doctor within the last 48 hours so that the
stenographer 14 can, at the conclusion of the deposition, make copies
of
15 those pages. She can return the originals to you, okay?
16 And then the transcript will be clear as to which
records 17 she reviewed without going through what would
otherwise be 18 relatively time-consuming of pull them all out and
having 19 her list them. 20 MR. MURPHY: I didn't supply Dr. Loftus
with any 21 documents. I let her look at my binder of Kenneth
Smith's 22 records that you had sent to me. They're still in my
binder 23 on my lap as we speak. Now, what is it that you want
me to 24 do, logistically speaking? I don't have an objection
to 25 your having a copy of what the doctor looked at, but KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
88
ELIZABETH LOFTUS, Ph.D. 1 logistically -- 2 MR. CONLON: That's all I want. Thank
you. I 3 don't want it now. You don't have to send it across
the
4 continent. You can simply hand it to the stenographer at
5 the close of the deposition. 6 MR. MURPHY: Well, no, I want to have
them. I 7 need them. They're my records. 8 MR. CONLON: Fine. Fine. 9 MR. MURPHY: How am I going to copy them?
I 10 don't have a copier in here. I'm in the doctor's
office. 11 MR. CONLON: I see, and there's no copier
there, 12 and you don't want to hand them over to the
stenographer and 13 let them copy them and send them back to you? 14 MR. MURPHY: No. I'm going to be in court
with 15 you before we know it. I can identify for you, Tim,
what 16 they are. Will that help you? 17 MR. CONLON: Well, sure, if it's -- is it 18 relatively short? 19 MR. MURPHY: Sure. 20 MR. CONLON: Great. Why don't you do
that. 21 MR. MURPHY: They are -- and, Doctor,
please 22 correct me if I'm pointing to the wrong documents.
There
23 are some photocopies of handwritten records, and at the top
24 it's typewritten, Ken Smith, parentheses, Page 1.
Then 25 handwritten below it it says Smith, Kenneth, 32,
which is KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
89
ELIZABETH LOFTUS, Ph.D. 1 circled, and then it says, it looks like 10 Aug, A-U-
G, 2 '92. Someone in my office has handwritten in the
upper 3 right-hand corner "Dr. Bean." 4 And there are one, two, three, four, five,
six, 5 seven, eight, nine, ten, eleven, twelve pages, of
which the 6 entry for October 29, 1992, seems to go off the
bottom of 7 the page. The entry for August 10, 1992, is cut off
at the 8 bottom of the page, and an entry for the 29th of
October '92 9 through the 5th of November '92 is at an angle, and
probably 10 maybe 50 percent of that note is off the page. They
appear 11 to have been faxed to somebody at some point and they
were 12 very poor quality. 13 The other documents that I believe I
showed to 14 Dr. Loftus this morning were Dr. Haymes's records, as
you 15 have supplied them to me through Ken, particularly
beginning 16 August 23rd, 1988, and the entries of October 17,
'91, 17 November 27, 1991, and December 3 and 11th, '91. And
then 18 their appears in my records to be a one-year gap
until the 19 next date of 10-11-92, and the following page through 20 11-17-93 and the remainder of the records of Dr.
Haymes that 21 I think end in 1993, as far as I can tell. 22 I don't believe I showed Dr. Loftus any
others, 23 but she may have a better recollection of that than I
do. 24 Q. (BY MR. CONLON) Doctor, I think that's
your 25 cue. Did you see anything other than what you've
testified KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
90
ELIZABETH LOFTUS, Ph.D.
1 to as the pile from your lap, if you will, and these
records 2 that Mr. Murphy has just referenced? 3 A. No, those were the two sets of medical
records 4 that I examined that are not in my possession. 5 Q. Okay. Now, as to the totality of that
body of 6 data, is there anything else that you've identified
that you 7 would consider to be suggestive or otherwise bears on
an 8 opinion you might have about Ken's memory
specifically, 9 besides the things you listed earlier, obviously? 10 A. No. But of course I can't read Dr. Bean's 11 records very well, so we have -- that is a bit of a 12 problem. 13 Q. I understand. You did the best you could,
I'm 14 sure, correct? 15 A. Correct. 16 Q. Was there anything in particular in the
Bean 17 records that you do recall as being significant in 18 connection with your opinions regarding Ken's memory? 19 A. Well, there is -- it's clear there is some 20 discussion during that therapy of his report of
sexual 21 assault by a priest that can be found even in these 22 difficult-to-decipher records. 23 Q. Is there anything that indicates to you
that this 24 discussion was suggestive? 25 A. Well, I don't remember exactly where I saw
that KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
91
ELIZABETH LOFTUS, Ph.D. 1 he had been exposed to the publicity about O'Connell,
but 2 some -- 3 Q. I'm sorry, Doctor, I wasn't clear. I'm
referring 4 to the discussion with Bean. Is there anything that 5 indicates to you that the discussions with Bean were 6 suggestive? 7 MR. MURPHY: Objection. 8 A. I don't know if Bean was or was not being 9 suggestive to Mr. Smith, but somewhere I have come
across 10 information -- maybe it was in the Bean notes -- that 11 indicated that there had indeed been exposure to the
12 publicity about O'Connell. 13 Q. (BY MR. CONLON) I appreciate that. I
wrote that 14 down. I wrote down the publicity and I wrote down
the Bean 15 records, and I wrote down that you referenced an
attorney 16 letter, which I'm sure is pretty clear from its face.
And I 17 also wrote down that you mentioned some flashbacks
during 18 therapy of which you believe occurred with Darlene
Burke. 19 You also referenced a Cub Scout incident.
What 20 is it, if anything, about the Cub Scout incident that
bears 21 upon your opinions in connection with Ken? 22 (Attorney and witness confer.) 23 A. Well, I've only been told about the Cub
Scout, 24 you know, that there's some incident involving a Cub
Scout 25 incident, but I haven't gotten the rest of the
transcript so KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
92
ELIZABETH LOFTUS, Ph.D.
1 I really don't know all that Mr. Smith is saying about that
2 right now. 3 Q. Well, what were you told about it? 4 A. That there is an incident involving a Cub
Scout. 5 Q. Does that, in and of itself, mean that
there has 6 to be some element of suggestion? 7 (Attorney and witness confer.) 8 A. No, but apparently there's some obvious
clear 9 mistakes in his recollection, the things he's --
recalling 10 things about that Cub Scout incident that are
impossible to 11 have occurred. 12 Q. Oh. What is that? 13 A. Well, again, this is just based on my
memory of 14 my conversation with Mr. Murphy, so it's not based on
the 15 document that I still need to see, but apparently he
is 16 recalling being molested in a particular uniform that
he 17 could not have been wearing at the time. 18 Q. According to Mr. Murphy? 19 A. Yeah, according to Mr. Murphy. 20 Q. Anything else that you were told of
significance 21 about the Cub Scout incident? I appreciate that your
memory 22 is the best that we have to rely on now. 23 A. That's all I really recall until I read
the 24 specific testimony. 25 Q. Did you look for in any of these materials KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
93
ELIZABETH LOFTUS, Ph.D. 1 corroborative information or a lack thereof? Were
you 2 looking either to find that there was corroborative 3 information or looking to find a lack of
corroborative 4 information? 5 A. Well, if I had come across some mention of 6 something that might corroborate the existence of a
memory 7 or, you know, the veriticality of a memory, or even 8 corroboration that could lead to an exoneration, I
might 9 make a note of it somewhere. 10 Q. And did you? 11 A. Well, I don't -- I mean, I don't recall.
I 12 certainly did make a note of the fact that there was
a 13 mention even in the Haymes notes about Mr. Smith
making 14 reference to sex abuse by a priest before he ever saw 15 Dr. Bean. 16 Q. Oh, okay. Maybe I'm not being clear with
you. 17 I'm trying to ask about what you did or didn't know
in 18 connection with corroboration of the sexual abuse,
and I'm 19 trying to find out whether you noted there was 20 corroboration, you noted there wasn't corroboration,
or made 21 no notes at all about this. And I'm not talking
about 22 physical notes, I'm just saying noted as you reviewed
all 23 this material. Did you note one way or another as to 24 whether or not there is corroboration? 25 A. I did not notice any corroboration for
these KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
94
ELIZABETH LOFTUS, Ph.D.
1 recollections. 2 Q. So from your point of view there is a lack
of 3 corroboration or is it just that the jury is out? 4 MR. MURPHY: Objection. 5 A. Well, I personally didn't notice any
specific 6 corroboration. 7 Q. (BY MR. CONLON) Well, so from your point
of view 8 or for your purposes in formulating opinions about
Ken, are 9 you taking it that this is -- that the sexual abuse
is not 10 corroborated? 11 A. Well, I would not declare it corroborated
or not 12 corroborated. I didn't see any evidence of
corroboration. 13 Maybe there is somewhere. 14 Q. Is it correct that evidence of
corroboration 15 would be important? 16 A. Well, it would certainly be -- it would be 17 important for somebody who was trying to figure out
whether 18 the memories were veritical or not. 19 Q. Are you trying to do that? 20 A. I'm only trying to provide scientific
information
21 so the trier of fact can make a decision about
whether these 22 are sufficiently reliable or not, so that's up to the
trier 23 of fact. 24 Q. Well, did Mr. Murphy or anyone else on
behalf of 25 the defendants suggest to you that my client was not
abused KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
95
ELIZABETH LOFTUS, Ph.D. 1 by Father O'Connell? 2 A. I think Mr. Murphy is -- well, I'm not
sure what 3 you mean, but I don't think he knows -- it's possible
it 4 didn't happen. 5 Q. He suggested to you it's possible it
didn't 6 happen? 7 MR. MURPHY: Objection. 8 A. Well, you know, it certainly is possible
it 9 didn't happen. There's certainly no corroboration
for it 10 that I could find. Maybe it exists out there.
11 Q. (BY MR. CONLON) Have you discussed this
case 12 with persons other than Mr. Murphy? 13 A. Yes. 14 Q. Who? 15 A. Dr. Pope. 16 Q. That would be Seth Pope? 17 A. Skip Harrison Pope, Dr. Pope. 18 Q. Skip Pope, I'm sorry. And on how many
occasions 19 have you discussed this with Dr. Pope? 20 A. Oh, I think I've talked to him a couple of
times. 21 Q. When was the first time that you discussed
this 22 with him? 23 A. Gee, I really don't remember, but --
because I've 24 had several discussions with Dr. Pope about many
issues, 25 including his new book, and so I don't -- we've had
many KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
96
ELIZABETH LOFTUS, Ph.D. 1 discussions, and I just don't know which -- when the
first 2 time was that we would have been talking about this
case. 3 Maybe -- 4 Q. Well, I certainly don't want to be prying
into 5 every discussion that you ever had with a colleague,
but I 6 do want to know about the substance of discussions.
So 7 apart from the date that this first discussion may
have 8 occurred, what is it that you discussed in your first 9 conversation with Mr. Pope, with Dr. Pope, regarding
this 10 case? 11 A. I do believe that we had a discussion
about 12 Dr. Van der Kolk and his testimony, and I've also
discussed 13 with Dr. Pope the articles, some of the articles,
that I 14 was -- you know, basically why I was having to gather 15 together five years of publications, and asking
whether that 16 was really a very efficient thing to be doing with --
you 17 know, or whether it was a waste of time and money,
but -- so 18 we had a long discussion about that. 19 Q. What did you discuss with regard to
20 Dr. van der Kolk with Mr. Pope? Or Dr. Pope, excuse
me. 21 A. What happened in his deposition. 22 Q. I was there, but why don't you fill me in
on what 23 you guys talked about in connection with that. 24 A. Oh, gee. Well, I really can't remember
because I 25 read the deposition after we talked about it, but he
told me KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
97
ELIZABETH LOFTUS, Ph.D. 1 a little bit about the deposition. 2 Q. He, Dr. Pope? 3 A. Right, because he had learned about the 4 deposition and he told me a little bit about it, what
he 5 could remember. But I just don't really remember
what I 6 learned from him on the phone and then what I read
myself 7 when I ultimately read the deposition. 8 Q. Did Dr. Pope indicate where he had learned
what 9 he had learned?
10 A. No, I don't know where he learned what he had
11 learned. 12 Q. Anything else that he was discussed with
Dr. Pope 13 in connection with this first discussion regarding
Smith or 14 this case? 15 A. Well, we discussed -- we discussed Dr.
Pope's new 16 book on several occasions. 17 Q. What book would that be, ma'am? 18 A. He has a new book that's coming out
called, I 19 think the current title is Psychology Astray. 20 Q. When you say coming out, this is not
something 21 that's actually on the bookshelves yet. 22 A. Right. 23 Q. Is that the case? 24 A. No, but it will be soon. 25 Q. Anything else discussed regarding this
case in KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
98
ELIZABETH LOFTUS, Ph.D.
1 connection with your first discussion with Dr. Pope? 2 A. Well, gee, I can't really -- you know,
just to be 3 completely accurate here, I don't know exactly what
occurred 4 in what conversation, whether that was happening in
the 5 first conversation or in one of the subsequent ones. 6 Q. Well, how many other conversations did you
have 7 with Dr. Pope regarding this case? 8 A. Well, the point is that we would be
talking about 9 some other subject and sometimes the case would come
up, or 10 we might be talking about, you know, the two topics
that I 11 mentioned. 12 Q. That being his book? When you say the two
topics 13 you mentioned, one of them is the book? 14 A. Right, and Dr. van der Kolk's testimony. 15 Q. Have you had more than one discussion with 16 Dr. Pope regarding Dr. van der Kolk's testimony? 17 A. Yes. 18 Q. And what is it that you discussed with Dr.
Pope 19 besides what you've already described to me regarding 20 specifically Dr. van der Kolk's testimony?
21 A. Well, we did discuss his testimony, his 22 deposition testimony, and then, oh, we also discussed 23 whether he was going to continue to be a witness or
not. I 24 mean, we just didn't know. 25 Q. Anything else regarding Dr. van der Kolk? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
99
ELIZABETH LOFTUS, Ph.D. 1 A. That's all I can really remember. 2 Q. When you referenced this book, I believe
you said 3 that the current title is likely to be Psychologist
Astray 4 or Psychiatry Astray? 5 A. Psychology Astray I think is his current
title. 6 He had a different title, and so we discussed that,
too. 7 Q. Well, do you consider this to be a case in
which 8 psychology is astray? 9 MR. MURPHY: Objection. 10 A. Well, that is the title of his book. It's
not my 11 title or my expression.
12 Q. (BY MR. CONLON) I understand, but you're the one
13 that brought the book up in response to my question
about 14 discussions in relation to this case. 15 A. Yes, but you asked me what we discussed,
so I had 16 to bring the book up. 17 Q. Doctor, fortunately we've got a steno
here, and I 18 suspect that you're going to find that my memory on
this 19 point is better than yours, but that's irrelevant. 20 Do you consider this to be a case in which 21 psychology is astray? 22 MR. MURPHY: Objection. What case are you 23 referring to? 24 Q. (BY MR. CONLON) Gee, Doctor, are you
aware of 25 what case you're being deposed in? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
100
ELIZABETH LOFTUS, Ph.D. 1 A. Yes. 2 Q. Oh, good. This one. 3 A. I don't know whether it is or not.
4 Q. Do you have any basis to assert to any
reasonable 5 degree of certainty that Ken was not abused by Father 6 O'Connell? 7 A. I don't know if he was or wasn't. 8 Q. Do you have any basis to assert to any
reasonable 9 degree of certainty that his memory is false? 10 A. Well, first of all, there is the
information that 11 I've already testified about involving the Cub Scout
memory 12 that seems to be inaccurate, but I can't say whether
he was 13 abused or not abused. It does appear as if he was
exposed 14 to at least some suggestion, but I can't say whether
he was 15 abused or not abused. 16 Q. What, if anything, did Mr. Murphy say to
you 17 about why he was showing you those Bean and Haymes
records? 18 And I shouldn't use the word handing you. I suppose
it's 19 different things about different ones, but you pick
either 20 one. Did he say anything to you about why he was
showing 21 you those records?
22 A. I asked him for them. I was trying to get more
23 information about what went on between the time that 24 Mr. Smith had absolutely no reporting or seeming
report of 25 sexual abuse until he's now asserting sexual abuse,
so there KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
101
ELIZABETH LOFTUS, Ph.D. 1 were gaps in my knowledge about what went on during
that 2 period, and I asked for more information. 3 Q. Is there anything else that you discussed
with 4 Dr. Pope that relates to this case? 5 MR. MURPHY: Objection. 6 A. Not that I recall. 7 Q. (BY MR. CONLON) Doctor, do you anticipate 8 testifying as an expert as to whether in this case it
is 9 more likely than not that Ken's memory was false? 10 A. I don't expect to make that claim, no. 11 Q. The data that you've been given thus far
would 12 not support that conclusion, would it, Doctor?
13 MR. MURPHY: Objection. 14 A. Well, as I said, I don't know whether he
was 15 abused or not abused. 16 Q. (BY MR. CONLON) I appreciate that,
Doctor. 17 MR. CONLON: But can I have that question
read 18 back, please? Maybe the question before would be
helpful to 19 the doctor. Why don't you read two questions back
and then 20 the question just now. 21 (The reporter read back as requested.) 22 Q. (BY MR. CONLON) Doctor, did you hear that
last 23 question? 24 A. About the data? 25 Q. Yes. Data would not support that
conclusion, KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
102
ELIZABETH LOFTUS, Ph.D. 1 would it? 2 A. Well, I was not asked to evaluate the data
to 3 support or not support that conclusion.
4 Q. I really am not terribly concerned about
whether 5 Mr. Murphy asked you that question before, because,
see, I 6 just asked it to you a minute ago. So what I want to
know 7 as we sit here now is whether you would agree that
the data 8 does not support that conclusion. 9 MR. MURPHY: Objection. 10 A. I don't know if it would or not. 11 Q. (BY MR. CONLON) Now, Doctor, you might
have 12 heard Mr. Murphy reference certain facsimiles, and
I'm going 13 to -- they've been Bates stamped, which should make
this 14 easier. I've got a couple of follow-up questions in 15 connection with those facsimiles. 16 MR. CONLON: So, Mr. Murphy, hopefully,
since 17 this is what we agreed we would be doing, this will
go 18 smoothly. Do you have a facsimile with a little
Bates stamp 19 down on the bottom that says one on it? 20 MR. MURPHY: Let me find it. 21 MR. CONLON: Thanks, Jim. 22 (Discussion off the record.)
23 MR. MURPHY: I've got a fax that has a TS III,
24 TCS at the upper right-hand corner. Is that it? 25 MR. CONLON: Yes. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
103
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: I thought it was a Page 1.
Okay, I 2 see it. 3 MR. CONLON: So it's got a one down at the 4 bottom, though, huh? 5 MR. MURPHY: That's what it looks like.
What's 6 the date? 7 MR. CONLON: Great. 8 Q. (BY MR. CONLON) Doctor, if you could take
a look 9 at the document that has the header and says fax and
down at 10 the bottom has a Bates stamped one on it. 11 A. All right. 12 Q. Okay, great. If you look at the last full 13 paragraph of that document, it says, Nevertheless, I
am 14 reviewing these cases with my experts, and if
supplements 15 are needed I will forward them. I am also busy
gathering 16 articles, et cetera, in response to your request. 17 A. Yes. It says they are also busy gathering 18 articles. 19 Q. Excuse me, you're quite right, they are
also. Do 20 you see that? 21 A. Yes. 22 Q. Prior to February 25th, had you been
requested to 23 supply a list of authorities or identify authorities
upon 24 which you intend to rely in connection with your
testimony? 25 A. I don't recall if I had. I just don't
remember. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
104
ELIZABETH LOFTUS, Ph.D. 1 Q. Did you supply such a list to Mr. Murphy? 2 A. At some point I sent him some information
about 3 some of the articles of mine that I thought would be
most 4 likely for me to mention during the course of the
testimony, 5 but I think that he and I had a discussion that
basically 6 the -- you know, my ideas and the scientific basis
for my 7 opinions is in, you know, a whole century's worth of 8 articles. 9 Q. Did you keep a copy -- I believe you said 10 something about sending something to Mr. Murphy. Did
you 11 keep a copy of what you sent him? 12 A. I don't have any copies of any
correspondence 13 that I sent to him. Well, he has them, but I don't. 14 Q. Well, would these be e-mails or letters? 15 A. I don't think I ever sent him a letter. 16 Q. So they would be e-mails? 17 A. E-mails, yes. 18 Q. We'll get to those later. Everything you
sent to 19 Mr. Murphy you sent by electronic mail? 20 A. Well, I might have -- oh, yes, I did send
my 21 bills, would be -- 22 Q. Oh, yes, a bill. Other than the bill,
Doctor. 23 Hopefully you'll send a check -- I know I'll send a
check by 24 other than electronic mail.
25 A. Well, you know, I think at some point I
must have KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
105
ELIZABETH LOFTUS, Ph.D. 1 sent a copy of my vita to him. 2 Q. I'm asking other than the vita. 3 A. I just -- oh, let's see, we did fax you
some 4 articles, apparently. He received some articles by
fax, 5 which are duplicates of the ones that I -- a few of
the ones 6 that I've been gathering. 7 Q. Right, but that would be at or around the
time of 8 the 25th, though, right? 9 A. Right. 10 Q. And all of the discussions and e-mails 11 referencing specific articles would be around that
time; is 12 that correct? 13 A. Yes. 14 Q. Okay. Why don't I go for a minute to what
was 15 given to me as an answer regarding your anticipated
16 testimony. I asked you earlier if you had reviewed
that. 17 A. Yes. 18 Q. And I believe you said that you did. We
don't 19 have to go -- it's a long paragraph. We don't have
to go 20 through it word by word here, but there is a
sentence: At 21 this time Dr. Elizabeth Loftus is prepared to testify
that 22 there is no credible scientific evidence to support
the 23 theory that memories for extensive assault, such as
repeated 24 child sexual abuse occurring over a long period, can
be 25 massively repressed and reliably remembered later. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
106
ELIZABETH LOFTUS, Ph.D. 1 Now, I just want to ask you what you would 2 understand was in that context, what the term
massively 3 repressed means. 4 A. Totally banished out of conscious
awareness,
5 walled off from the rest of mental life, and then somehow
6 reliably recovered. 7 Q. We're going to get to reliably in a
second. I 8 just want to get clear on what massively repressed
means. 9 A. That's what I mean. 10 Q. Is that a clinical term? 11 A. I'm not sure what you mean by clinical. 12 Clinicians sometimes use it. 13 Q. Is it a term that has some scientific
definition, 14 massively repressed? 15 A. It's used in different ways by different
people. 16 Q. So there is not an accepted scientific
meaning 17 for that term. 18 MR. MURPHY: Objection. 19 Q. (BY MR. CONLON) A single accepted
scientific 20 meaning for that term. 21 A. There is no single accepted scientific
meaning, 22 right. 23 Q. Now, we're going right forward to the next
word 24 that I have a question about, and reliably remembered
later,
25 I want to focus on that word reliably. Is that a
term that KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
107
ELIZABETH LOFTUS, Ph.D. 1 has accepted meaning among scientists and memory
scientists? 2 MR. MURPHY: Objection. 3 A. Well, I think it speaks for itself, you
know. 4 Can you -- 5 Q. (BY MR. CONLON) You know, I agree with
you about 6 that, Doctor. I agree with you completely, but what
I'm 7 trying to get clear about is whether it has some
meaning 8 scientifically, other than what, you know, the common
man 9 would deem reliable. 10 A. Well, I don't think it has any special
meaning, 11 but -- 12 Q. Okay, thank you. Now, the next sentence,
and 13 I'll read it: This is not to say that people do not 14 sometimes forget and later remember their
experiences, but 15 the claims of massive repression being alleged in the 16 complaint in the cases before the federal court are
not 17 supported by the scientific literature. 18 Now, the first thing I want to get at is
in the 19 cases before the federal court. What is it that you 20 understand to be the claims of massive repression
being 21 alleged in the complaints in the cases before the
federal 22 court? 23 A. Well, I think that -- well, let's see, the
thing 24 is the description changes from one point in time to 25 another, but I believe that at some point Mr. Smith
was KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
108
ELIZABETH LOFTUS, Ph.D. 1 saying that he repressed -- or maybe he would have
used some 2 other term -- his memories for an extensive abuse
such as 3 abuse between the ages of 13 and 17. 4 Q. Okay. Well, I guess that covers Mr.
Smith. What 5 about the other cases? You reference in the cases.
I want 6 to know what you meant. Or actually, Louis Gelineau
that 7 signed this one, what it was that Louis Gelineau was 8 referencing in connection with your anticipated
testimony 9 about massive repression being alleged in the
complaint in 10 the cases before the federal court. 11 A. Well, I don't -- because I haven't
reviewed the 12 materials on the Kelly cases in a long time, so I
just don't 13 remember the details now, I mean, of what they're
claiming. 14 They may not be claiming massive repression. 15 Q. So maybe that it's not the cases, it may
be that 16 it's just the case, this case, Smith? 17 A. Well, that's possible. 18 (Attorney and witness confer.) 19 Q. I believe it's in that sentence: Dr.
Loftus -- 20 MR. MURPHY: Tim, the doctor is not done. 21 Q. (BY MR. CONLON) -- will also testify
about the 22 workings of human memory -- 23 MR. MURPHY: Tim, she's not done with her
answer. 24 Q. (BY MR. CONLON) Oh, I apologize, Dr.
Loftus. 25 Please. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
109
ELIZABETH LOFTUS, Ph.D. 1 A. Okay. Well, I don't know if you want more
-- you 2 know, more details on, you know, Mr. Smith's claims,
but the 3 claim of, you know, blocking through denial,
dissociation, 4 amnesia, repression, suppression, it was part of his
claim. 5 Q. And you believe none of that is supported?
I'm 6 just referencing your sentence that none of that is 7 supported by the scientific literature. 8 A. No, I said that massive repression and
reliable 9 recovery later, you know, of extensive brutalization
I do 10 not think has solid scientific support for it. 11 Q. Let me just go back to the sentence here.
This 12 is not to say that people do not sometimes forget and
later
13 remember their experiences, but the kind of claims of 14 massive repression being alleged in the complaint in
the 15 cases before the federal court are not supported by
the 16 scientific literature. 17 I'm just trying to get clear on what --
there is 18 a reference to the kind of claims of massive
repression 19 being alleged in the complaints in the cases. We'll
forget 20 the Smith brothers for a minute, so this case, okay?
What 21 is it that we're referencing as not being supported
by the 22 scientific literature? What kinds of claims of
massive 23 repression is it that you're going to testify are not 24 supported by the scientific literature? 25 A. Well, what I was referring to in that
sentence KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
110
ELIZABETH LOFTUS, Ph.D. 1 and by that opinion is that a claim of extensive 2 brutalization completely banished from conscious
awareness, 3 and then somehow reliably recovered later on, it is
that 4 combination of events that I feel has not received
good, 5 solid, credible scientific support. 6 Q. And that's it? 7 A. That's my opinion. 8 Q. So it's not other kinds of massive
repression 9 that you do not believe to have scientific support,
beyond 10 what you've just described? 11 MR. MURPHY: Objection. 12 A. Well, people can certainly forget about an 13 experience and then be reminded of it later. 14 Q. (BY MR. CONLON) It says that right there
in your 15 sentence -- 16 A. Right. 17 Q. -- before the comma, but then it says, but
the 18 kind of claims of massive repression, and you've just 19 described it for me. I just want to make sure that
that 20 covers what you meant by the kind of claims of
massive 21 repression. 22 A. I think it does, yes.
23 Q. Thank you. 24 A. Okay. 25 Q. Now it says, Dr. Loftus also is expected
to KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
111
ELIZABETH LOFTUS, Ph.D. 1 testify about the workings of human memory, the
effects of 2 suggestion on memory, the mechanism of the creation
of false 3 memory, and the characteristics of false memory. 4 A. Correct. 5 Q. Okay. Now, is there anything about the
effect of 6 suggestion on memory that bears on Ken, as opposed to
just a 7 sort of a general academic discussion, that you
intend to 8 testify about? 9 A. Well, I've already mentioned some of the 10 suggestive influences in the present case that -- 11 Q. I appreciate that, Doctor, and I don't
want to 12 waste your time going back over. 13 A. No, no --
14 Q. I just want to make sure, since this
sentence 15 references the effect of suggestion on memory, that
that 16 list you gave us before covers the playing field, if
you 17 will, as to the specific effects of suggestion that
you feel 18 may be present in this case based on the data that
was 19 supplied to you today. 20 (Discussion off the record.) 21 Q. (BY MR. CONLON) Doctor, you have given us
the 22 list before, and I don't want to waste your time
going back 23 through the list. I'm just trying to make clear that
there 24 isn't anything else that you perceived to be relevant
to Ken 25 Smith as it relates to the effects of suggestion on
memory, KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
112
ELIZABETH LOFTUS, Ph.D. 1 as referenced in the answered interrogatories. 2 A. At this point that is all I have to
comment on.
3 I don't know what else will be revealed in the
remaining 4 deposition of Mr. Smith or other materials that I
might be 5 supplied with or court testimony that I might be
given. 6 Q. I understand. It's very difficult to make
a 7 judgment about stuff you don't have. 8 A. Right. 9 Q. Okay. I just took that phrase, the phrase
after 10 that, the mechanism of the creation of false memory.
What 11 can you tell me about the mechanism of -- wait a
moment. 12 Let me back up. 13 Is there something that you learned about
what 14 you expect to testify regarding the mechanism of
creation of 15 false memories only within the last couple of weeks? 16 MR. MURPHY: Objection. 17 A. No. 18 Q. (BY MR. CONLON) It is the case that all
that 19 could be said about your anticipated testimony was
that it 20 would be about the mechanism of the creation of false 21 memory?
22 MR. MURPHY: Objection. 23 A. Well, no, it's also about the effects of 24 suggestion on memory, the creation of false memories. 25 Q. (BY MR. CONLON) But as to the mechanism
of KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
113
ELIZABETH LOFTUS, Ph.D. 1 creation of false memories, is it not the case that
you 2 anticipate testifying in great detail about that
mechanism? 3 A. I don't think I will testify in much more
detail 4 than I already did earlier in this deposition. 5 Q. Could you just explain to me what you're 6 referencing when you say earlier in this deposition? 7 A. I was referring to when we discussed the
idea 8 that through suggestive -- suggestion a person can
come to 9 have a belief that he or she might have had an
experience 10 and from that come to develop some actual specific 11 memories. That's one way in which people can come to
have
12 memories for things that didn't happen to them. 13 Q. Is that something you've just learned in
the last 14 couple of weeks, or that's something you've been
researching 15 and working on for years, isn't it, Doctor? 16 A. Yes. 17 Q. Anything else that you would anticipate 18 testifying about in connection with the mechanism of
the 19 creation of false memories? 20 MR. MURPHY: Objection. 21 A. Well, not that I anticipate. 22 Q. (BY MR. CONLON) Well, is there anything
else 23 that you considered testifying about that you feel is 24 relevant to this matter? 25 MR. MURPHY: Objection. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
114
ELIZABETH LOFTUS, Ph.D. 1 Q. (BY MR. CONLON) On the mechanism of the
creation 2 of false memory. 3 MR. MURPHY: Objection.
4 A. Well, I just don't know exactly what questions
5 will be asked, but, you know, there are a number of
ways in 6 which people -- a number of routes to getting a false 7 memory. Sometimes people deliberate about whether
something 8 happened or not, and then they finally seize upon one 9 particular version, and that's another avenue for the 10 development of a false memory. So they're trying to
decide 11 did something happen, didn't it, or did it happen in
this 12 way or this way, and they finally decide upon a
particular 13 version and then accept that as their experience.
And 14 that's another way in which you can get somebody to
have a 15 false memory. 16 Q. (BY MR. CONLON) Anything else, Doctor? 17 A. Well, not that I anticipate testifying
about 18 right as we sit here now. 19 Q. Now, the last phrase in that sentence in
the list 20 of things that you're expected to testify about is
the 21 characteristics of false memory. 22 A. Right.
23 Q. What is it that you now know about the 24 characteristics of false memories that you didn't
know two 25 weeks ago? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
115
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: Objection. 2 Q. (BY MR. CONLON) If anything. It may be
that 3 this is stuff that you've known for quite some time.
I 4 don't know. I'm just trying to get clear with you. 5 A. Well, most of what I know about false
memories I 6 have not learned in the last two weeks. 7 Q. Okay. Well, then why don't you tell me
what it 8 is that you know about the characteristics of false
memory. 9 A. I know, for example, that sometimes they
can seem 10 as real to a person as their real memories. A person
can 11 seem and be as confident about them as they are about
their 12 real memories, that it's extremely difficult to
distinguish
13 between a real memory and one that's a product of
suggestion 14 without independent corroboration. So these are some
of the 15 things that we know about the characteristics of
false 16 memories. 17 At other times in some of my other studies
the 18 false memories do seem a little less clear or less
vivid to 19 someone, but in many instances they're as confident
about 20 their false memories as they are about some of their
true 21 memories. 22 Q. Anything else that you know about the 23 characteristics of false memories? 24 A. Well, actually there is something I've
learned in 25 the last two weeks. I recently visited the
University of KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
116
ELIZABETH LOFTUS, Ph.D. 1 Arizona, where some work on evoked potentials is
being done
2 that suggests that it might be possible with brain waves to
3 actually spot false memories versus true memories. I
think 4 the work is still fairly preliminary, just like the
PET scan 5 work that you referred to earlier, but it did look
somewhat 6 promising. 7 Q. Would you consider the testing that you're 8 referencing to be reliable? 9 A. Well, I would probably want to see it
replicated 10 and maybe with more complex materials. 11 Q. But at this point in time it would not be
testing 12 that would be appropriate to rely upon? 13 A. I wasn't planning to. 14 Q. Okay. Anything else that you could tell
me about 15 the characteristics of false memories? 16 A. Not at this time, no. 17 Q. How about the distinguishing
characteristics of 18 false versus real memory? 19 A. Well, in terms of -- 20 Q. How about the distinguishing
characteristics 21 between false and real memories?
22 A. It's very difficult to distinguish false and real
23 memories when you -- a given memory, and to classify
it 24 correctly as to be a true versus a false memory. If
you 25 have collections of true and collections of false
memories, KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
117
ELIZABETH LOFTUS, Ph.D. 1 you can sometimes find some statistical differences
between 2 those two collections, but in terms of evaluating any
one 3 memory and deciding whether it's real or not without
some 4 independent corroboration, it's not something you can 5 reliably do. 6 Q. I understand that it's difficult, but how
would 7 you go about trying to distinguish between false and
real 8 memories? 9 A. Well, you can only use the information you
have 10 from the statistical descriptions. The real memories
tend
11 to have more sensory information associated with them. They
12 tend to. But the problem is false memories can often
have a 13 lot of sensory information, too. 14 Q. And real memories may not have a lot of
sensory 15 information in certain instances; is that not
correct? 16 A. That's correct. 17 Q. Are you aware of any biological evidence
of 18 differences between trauma as opposed to other
memories? 19 MR. MURPHY: Objection. 20 A. I am aware of evidence that when something 21 traumatic happens there can be physiological
responses 22 associated with those experiences, that, you know,
the 23 release of cortisol, other neurotransmitters and so
on, that 24 you don't get when you are experiencing something
that is, 25 you know, not so traumatic or ordinary. So you can
have KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
118
ELIZABETH LOFTUS, Ph.D.
1 certain physiological responses. 2 Q. (BY MR. CONLON) Do you have an opinion as
to 3 whether or not the different physiological responses
could 4 affect the processing or storage of memory? 5 A. It's possible that the physiological
responses 6 could be associated with some processing differences.
Yes, 7 it's possible. 8 Q. Are you -- would you say that emotional
factors 9 have no effect on memory processing? 10 A. No, I wouldn't say that. 11 Q. What kinds of effects would you say that 12 emotional factors can have on memory processing? 13 A. Well, for example, there is a number of
studies 14 that suggest that if you see something that's highly 15 emotional, compared to a less emotional version of
the same 16 event, that you might remember the core of the event
and 17 maybe even some central details, but your memory
might 18 suffer significantly for more of the peripheral
details 19 associated with the experience. There's certainly
evidence 20 to support that kind of difference between highly
arousing 21 memories and ones that are more ordinary. 22 There's also other evidence that suggests
that 23 both kinds of memories are -- you know, fade over
time, 24 they're both susceptible to suggestion and
contamination, 25 and that they're both influenced similarly by some of
the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
119
ELIZABETH LOFTUS, Ph.D. 1 variables that influence memory. 2 Q. Any other differences as to how it is that 3 emotional factors would affect memory processing,
other than 4 what you've just described, of which you're aware? 5 A. Well, other than the physiological effects
and 6 the behavioral effects, I'm not sure what else to
mention 7 here. 8 Q. Getting back to your answer in the answer
to
9 interrogatory that was filed, Doctor, it says, Dr. Loftus is
10 expected to testify concerning some of the suggestive 11 elements that occurred in these cases that are
consolidated 12 in the federal court could be responsible for the
creation 13 of false memories if the memories are false rather
than 14 intentionally or otherwise fabricated. 15 Why don't we go to the last part of that
sentence 16 first, that being if the memories are false rather
than 17 intentionally or otherwise fabricated. Would it be
fair to 18 say, Doctor, you're not going to be offering any
testimony 19 to the effect that the memories were intentionally or 20 otherwise fabricated, are you? 21 A. Correct. 22 Q. Okay. And would it be fair to say that
there's 23 nothing that you can tell me now about some of these 24 suggestive elements that you haven't already
discussed? 25 A. Correct. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
120
ELIZABETH LOFTUS, Ph.D. 1 Q. Now, is there any specific treatises or
articles 2 upon which you rely in identifying suggestive
elements in 3 this case? 4 A. Well, I'm not sure. No, I don't use any 5 particular treatise to identify elements of
suggestion. I 6 mean, I've already identified the elements of
suggestion. 7 Do you want support for the idea that post event
information 8 can contaminate somebody's recollection? 9 Q. No, I just want to know whether or not
there are 10 any studies or articles or treatises upon which you
would 11 rely in connection with your identification of what
you 12 would allege are suggestive influences. 13 A. Well, for example -- 14 Q. As to this plaintiff. 15 A. -- I have a long history of studies on
post event 16 information that shows that if you give people
suggestive or 17 leading questions, if you give them publicity, if you
give
18 them -- if you allow them to overhear versions from
someone 19 else to learn of somebody else's -- somebody else's 20 information, that this has the potential to
contaminate 21 their recollection. So that whole line of work is
relevant 22 to the impact of suggestion on somebody's
recollection. 23 Q. Well, when you say that whole line of
work, and 24 we go back to the issue about your CV and its rather
lengthy 25 list of articles you've authored, which articles do
you KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
121
ELIZABETH LOFTUS, Ph.D. 1 consider to be the authoritative source upon which
you would 2 rely for the opinions that you anticipate offering as
to the 3 specific identified suggestive characteristics in
this case? 4 A. Well, the -- should I get out the vita and
point 5 to you some articles on post event information? 6 Q. If that's the easiest way for you to tell
me 7 which articles you rely upon in connection with
identifying 8 suggestive elements, that's fine. If you want, you
can just 9 circle them on a copy of your vita, that's certainly
amongst 10 the documents that have been Bates stamped, and we
can let 11 you get it and you can circle it on the copy that Mr.
Murphy 12 has brought out, and then I can get it later or copy
that 13 later. 14 MR. MURPHY: I'm in the process of getting
it, 15 Tim. 16 Q. (BY MR. CONLON) Okay. Well, why don't we
let 17 Mr. Murphy go for that document. 18 A. We have it. So my work on post event
suggestion 19 and its ability to distort someone's recollection can
be 20 found, for example, in the 1978 article, the first
one 21 listed, Loftus, Miller, and Burns. 22 Q. Doctor, is there a little Bates stamp down
at the 23 bottom of the page that you're looking at, I hope,
because
24 that's what we -- Mr. Murphy and I said we were going to
25 do. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
122
ELIZABETH LOFTUS, Ph.D. 1 A. Yes. It's 0187. 2 Q. Now, before 0187 -- 3 A. Oh, and then we go to 0194. 4 Q. Okay, but hold on a second, because I
don't want 5 to waste your time. If you look -- I'm at 0187. If
you 6 look at what I'll call the tail end of the document
that's 7 been Bates stamped, starting the 0213, do you see
that? 8 A. I don't have 0213. 9 Q. You don't? 10 MR. MURPHY: We've got 0212. Maybe a page
fell 11 off here. Hang on. 12 MR. CONLON: Well, gosh, you did such a
great job 13 of Bates stamping all of this stuff. How could you
forget 14 0213 and 0223?
15 MR. MURPHY: What are you referring to,
Tim? 16 MR. CONLON: The one I've got that says
0213 on 17 it is Memories of Childhood Sexual Abuse. 18 MR. MURPHY: Oh, you're talking about an
article. 19 MR. CONLON: Yes, that's 0213. 20 MR. MURPHY: I thought you were talking
about the 21 curriculum vitae. 22 MR. CONLON: No, Page 0213. 23 MR. MURPHY: Okay, hang on a second. 24 (Discussion off the record.) 25 Q. (BY MR. CONLON) Do you see 0213, Doctor? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
123
ELIZABETH LOFTUS, Ph.D. 1 A. Yes, I'm looking at that. 2 Q. Then I think the next article is 0223. Do
you 3 see that one? 4 A. Yes. 5 Q. Okay. Mr. Murphy sent these to me within
the
6 last, oh, I think it was the close of business Friday. I've
7 got these. I'm only interested in other articles, if
there 8 are any, that he has not yet identified to me that
you would 9 tend to rely upon in connection with your testimony. 10 A. Oh, okay. I thought you were asking me
for some 11 documentation of the support that post event
suggestion 12 influences memory or that may be looking at publicity
in 13 particular. 14 Q. Right. No, and you're correct in how I
phrased 15 the question, but before you go through a long vitae 16 checking off documents, if they happen to be amongst
the 17 ones that have already been supplied, you can just
tell me 18 that. I don't know how these were selected. 19 A. Well, some of them I selected because I
thought I 20 would be, you know, referring to them or to some of
the 21 information in them. 22 Q. Well, are there other articles besides
these that 23 are listed on your CV that you would expect to refer
to or
24 rely upon? 25 MR. MURPHY: You mean other than the ones
that I KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
124
ELIZABETH LOFTUS, Ph.D. 1 gave you that were Bates stamped? 2 MR. CONLON: Yes. 3 MR. MURPHY: There are several articles
that I 4 gave you beyond those. 5 MR. CONLON: Yes, beyond those. 6 A. Let me call your attention to Page 0245,
the 7 Bates stamp. 8 Q. (BY MR. CONLON) Just give me a second
there. 9 Oh, 0245, that would be in one of these articles. 10 A. Right. 11 Q. Okay, good. I'm flipping as fast as I
can. 12 0245, yeah. 13 A. Right. Now, do you see the section 14 Misinformation Studies? 15 Q. I sure do.
16 A. Okay. And that tells you that there have been
17 hundreds of studies that show that post event
information 18 can alter a person's recollection. Now, I might make
that 19 statement. If you want to see any of those hundreds
of 20 studies, I was not planning to go into them. I can
call 21 your attention to some of them, but I -- and that's
what I 22 thought we were doing, because they provide the 23 underlying -- some of the underlying information for
how we 24 know that suggestive information can distort
somebody's 25 recollection. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
125
ELIZABETH LOFTUS, Ph.D. 1 Q. You're saying that you can point me at
this 2 reference to some testimony about hundreds of
studies, but 3 as we speak, nothing identifies to me what those
studies 4 are.
5 A. Right, but I was not planning to go into a lot of
6 detail about those studies, except to make the point
about 7 what they show, which is what's made in that
paragraph. 8 Q. But, Doctor, I had asked about what it is
that 9 you intend to rely upon, and referencing -- I'm not 10 suggesting there's anything wrong with what you're
doing, 11 but you're referencing a statement that hundreds of
studies 12 show such and such. That's just telling me what
you're 13 going to say. What I want to know is what you're
relying 14 upon for what you're going to say. 15 A. Well, I will be relying on the information
that's 16 in the studies that Mr. Murphy supplied you. 17 Q. That would be the pages starting at 0213. 18 A. Right. 19 Q. And running through, gosh, well, the bill
is 20 there. That's certainly not something you're relying
on. I 21 guess 0305 -- or 0303 I guess is the end of -- 22 A. And I'll be relying on a whole -- you
know, the 23 information in these. These were the studies that I
thought 24 I might mention, you know, in any more than a few 25 sentences. The rest of the basis of my opinion is in
the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
126
ELIZABETH LOFTUS, Ph.D. 1 body of literature, you know, in the books that are
on my 2 vita on memory. 3 Q. Oh, but I thought you said earlier that
not every 4 one of those -- the problem is the vita is quite
long, and 5 as you said earlier, not every one of those, by any
stretch 6 of the imagination, is something you intend to rely
upon in 7 your testimony. But, you know, I've got a feeling
we're not 8 going to be very productive with this. I mean,
federal -- 9 take a look at 0193. Do you have that page there? 10 MR. MURPHY: Hang on a second. 11 A. Yes. 12 Q. (BY MR. CONLON) In '76, you wrote a
letter on
13 federal regulations making the punishment fit the crime.
14 A. Right. 15 Q. Then underneath it there's an article in
French. 16 I hope that's French. Is that French? 17 A. Yes. 18 Q. Oh, good. 19 A. But I wrote it in English. 20 Q. Oh, that's good to know. Were you
intending on 21 relying on that article, the second, the
organizational or 22 whatever? 23 A. No. 24 Q. No? I mean, you're not going to be
relying on 25 that federal regulations article, are you? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
127
ELIZABETH LOFTUS, Ph.D. 1 A. No. 2 Q. Thank you, Doctor. 3 How long would it take you to go through
the 4 vitae and identify the studies and articles that you
do 5 intend to rely on? 6 A. Well, the problem is they all make up part
of my 7 knowledge about memory distortion. I don't plan to
mention 8 the specific studies, necessarily, but they're all
part of 9 how it is that I and other investigators know about
the 10 malleability of memory, these studies and many done
by many 11 other investigators. 12 Q. Doctor, I'm not trying to make this more 13 complicated that it is, okay? You just said all, and
I 14 think we got clear on the record that at least two
are not, 15 okay? I just asked you a simple question, how long
it will 16 take for you to go through the vitae that was given
to me. 17 It starts on 187, it ends on, well, 0210.01 -- I'm
sorry, 18 no, no, 02 -- 19 A. 12. 20 Q. 0212. How long would it take for you to
go 21 through this and identify for me the materials that
you 22 intend to rely upon, as opposed to the ones that have
23 nothing to do with what you expect to testify about? 24 A. Maybe several hours. 25 Q. I see. We're not going to do that in the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
128
ELIZABETH LOFTUS, Ph.D. 1 deposition. That would be sort of silly to keep us
all tied 2 up. 3 MR. MURPHY: It's your deposition, Tim. 4 MR. CONLON: Thank you. 5 A. But, you know, they're not the main
studies I 6 would expect to be asked about or talk about, so that
-- you 7 have the main studies already sent to you. 8 Q. (BY MR. CONLON) The ones that have been
Xeroxed 9 are the main studies you intend to rely upon? 10 (Attorney and witness confer.) 11 A. Well, that I -- studies that I might be
asked to 12 describe, but I am not going to -- I rely on a whole
field. 13 I've been working in the field of memory for over 25
years.
14 There's a whole body of information and knowledge
that I and 15 other investigators have accumulated. Some of it you
can 16 find in my textbooks on memory. 17 Maybe I should just point you to a couple
of the 18 textbooks and you could just read those, like the
1979 book 19 that was published by Harvard University Press. That 20 contains a lot of information on memory distortion
that I 21 conducted by myself and by others. 22 Q. Doctor, I don't want to -- that's on your
CV, I 23 take it. 24 A. Right. 25 Q. Okay. I don't want to launch off on a
two-hour KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
129
ELIZABETH LOFTUS, Ph.D. 1 escapade. I would like to finish this in a half an
hour, 2 so -- 3 A. Okay, good.
4 Q. -- we'll leave it at that. It will take you a
5 couple of hours and you haven't done it yet. 6 A. Right. Okay. 7 Q. Why don't you take a look, if you would,
at the 8 Bates stamp Page 6. 9 A. Six? He's looking for it now. Yes. 10 Q. Do you see in Paragraph 3, numbered
Paragraph 3, 11 it says, As you can see from their CVs, their lists
of 12 publications are quite lengthy? 13 A. Oh, no, that's not six. Six is a letter
from 14 Paul McHugh to Mr. Murphy. 15 Q. Oh, gee, the one with the Bates stamp six
doesn't 16 say -- 17 A. Right. 18 Q. It does not -- oh, I'm sorry. 19 MR. CONLON: Jim, six, not 0006. The
documents I 20 gave you. 21 MR. MURPHY: That's the confusion. We've
got two 22 sixes. 23 MR. CONLON: I figured that out, too, just
a
24 second ago. 25 MR. MURPHY: Hang on a second. I've got
to put KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
130
ELIZABETH LOFTUS, Ph.D. 1 these back in order before I can get to yours. 2 (Discussion off the record.) 3 A. Okay, I'm looking at six now. 4 Q. (BY MR. CONLON) So there on Paragraph 3,
the 5 second sentence, I guess, it says, As you can see
from their 6 CVs, their lists of publications are quite lengthy.
Would 7 you agree your list of publications is quite lengthy? 8 A. Yes. 9 Q. And could you flip forward to the numbered 10 paragraph -- the numbered Bates nine. 11 A. Nine, okay. 12 Q. A couple pages forward there, six, seven,
eight, 13 nine. 14 A. He's looking for nine now. 15 Q. Great.
16 MR. CONLON: Thank you, Jim. 17 A. Okay, I have eight, nine and ten. 18 Q. (BY MR. CONLON) Okay. Well, right now I
would 19 like to go to nine, if you don't mind. 20 A. Okay, nine. 21 Q. Okay. Do you see about halfway down the
page it 22 says, For the most part, her testimony -- 23 A. Yes. 24 Q. -- will be on the scientific issues
generally. 25 Is there anything about your testimony
other than KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
131
ELIZABETH LOFTUS, Ph.D. 1 the testimony on the scientific issues generally that
you 2 have not told me as we speak? 3 MR. MURPHY: Objection. 4 A. I think I've told you everything. 5 Q. (BY MR. CONLON) Okay, good. Just trying
to be 6 sure. 7 A. No, I don't blame you.
8 Q. Okay. Now, dropping down about four
lines, it 9 says, We contend that he did not repress his
memories. Do 10 you see that? 11 A. Yes. 12 Q. Are you amongst the we in that sentence? 13 A. No. 14 Q. So you don't contend that he did not
repress his 15 memories? 16 A. Right. 17 Q. And then it says, We also contend that his 18 memories or flashbacks, and that's in quotes, are the
result 19 of suggestion. Now, do you contend that his memories
are 20 the result of suggestion? 21 A. I can't say whether his memories are a
result of 22 suggestion or not. I can only say that there was
some 23 suggestion in this case, and it could be responsible
for the 24 creation of false memories, if the memories are
false. 25 Q. And then if they're not, it isn't? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875
SEATTLE, WASHINGTON 98161-1001
132
ELIZABETH LOFTUS, Ph.D. 1 A. Right. 2 Q. Okay. And then it goes on to say, if not 3 outright falsehood on the part of Smith, given his
history. 4 Do you see all that? 5 A. Yes. 6 Q. Are you contending any of that stuff? I
don't 7 need to go through it line by line if the answer is
no as to 8 all of it, but if it is, then we can go through it
however 9 we need to. 10 A. No, I do not know if he's deliberately
lying or 11 not. 12 Q. Let me, if I may, Doctor, get specifically
into 13 the studies that Attorney Murphy did supply to me,
just a 14 couple of questions. 15 MR. CONLON: Jim, you want to flip back to
the 16 area of the book, or whatever you've got that's in
those 17 later Bates stamp numbers.
18 MR. MURPHY: Just give me the number. 19 MR. CONLON: Page 0216. 20 MR. MURPHY: Is that in the document it's
0213? 21 MR. CONLON: No, Bates No. 0216. I'll
always use 22 Bates numbers; otherwise, boy, we'd be really in
trouble. 23 MR. MURPHY: No, what I mean is that's
within a 24 document that begins at 0213. 25 MR. CONLON: It says Loftus (inaudible). KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
133
ELIZABETH LOFTUS, Ph.D. 1 A. Okay, we're on 0216. 2 Q. (BY MR. CONLON) Good. If you would look
on that 3 page on the right, we'll now use the number, 73,
halfway 4 down. It says, Approximately 14 percent did not
remember 5 the accident a year later. Do you see that? 6 A. Yes. 7 Q. Would you consider an automobile accident
to be a
8 traumatic memory? 9 A. It would depend on the accident. I mean, 10 certainly it might have been, and it might have been 11 surprising that 14 percent were apparently not
remembering 12 or not reporting it. 13 Q. Well, you say not reporting. It says did
not 14 remember, doesn't it? 15 A. Right, but the study did not absolutely
prove 16 they didn't remember. They might have not reported.
They 17 did not remember it out loud to the interviewer. 18 Q. I suppose that they could have not
recalled that 19 they remembered, too, huh? 20 A. I guess that's possible. 21 Q. When you say that it would depend, did you
do 22 anything in connection with this study to either
screen or 23 link these accidents in connection with trauma? 24 A. This was a government study, and I -- you
would 25 have to go back to the original government document
to find KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
134
ELIZABETH LOFTUS, Ph.D. 1 out whether that was done by the government. 2 Q. Well, I guess I'm a little confused. I
thought I 3 would get a yes or no or I don't know. You mean that
you're 4 not sure whether or not anything was done to
determine 5 severity or trauma associated with the accident? 6 A. Correct, I just don't know. 7 Q. That's fine. Doctor, you know a lot of
stuff, 8 but every once in a while I ask you a question and
you don't 9 know the answer, right? 10 A. Okay. 11 Q. Now, on Page 0220, if you could flip
forward. 12 A. Yes. 13 Q. I guess it's the first full paragraph. It
says, 14 To reiterate, 12 percent of our sample claimed to
remember 15 part but not all of the abuse and 19 percent claimed
that 16 they forgot for a period of time. Are you referring
to 17 forgot the abuse entirely?
18 A. I'm only referring to the fact that they
checked 19 the third option when asked the question that's posed
on 20 Page 0217, Bates stamp number. 21 Q. You're referring to the fact that they
advised 22 that they forgot it entirely? 23 A. No, they didn't say entirely. They just
checked 24 the third option, that some people forget the abuse
for a 25 period of time and only later have the memory return. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
135
ELIZABETH LOFTUS, Ph.D. 1 Q. Well, I guess I'm confused about the
distinction 2 between 12 -- I just read the paragraph -- sorry,
that 3 sentence that says 12 percent of our samples claimed
to 4 remember part but not all of their abuse and 19
percent 5 claimed that they forgot for a period of time. What
were 6 you trying to distinguish about between the 12 and
the 19?
7 A. The 12 -- if you'll look back to Page 0217
Bates 8 stamp number, you will see that our respondents had
one of 9 three options that they could check. 10 Q. I'm sorry, that was Page 0217? 11 A. Right. 12 Q. Always remembered their abuse throughout
their 13 lives, even though they never talked about it; is
that what 14 you're referring to? 15 A. Yes. And so the 12 percent refers to the 16 percentage of subjects who checked option two, and
the 19 17 percent refers to the percentage who checked option
three. 18 Q. Okay, I understand. 19 What were you trying to screen for when
you -- 20 excuse me, because I'm not sure that that's -- who
wrote 21 one, two and three? 22 A. I did. 23 Q. What were you trying to screen for? 24 A. I was trying to design a question that was
a 25 little less ambiguous than the question that had been
asked
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
136
ELIZABETH LOFTUS, Ph.D. 1 by Briere and Conte to try to ascertain people's
reports 2 about their past forgetting and remembering. 3 Q. Are you suggesting that although you might
have 4 been a little more -- a little less ambiguous than
Briere 5 and Conte, you were not sufficiently clear? 6 MR. MURPHY: Objection. 7 A. Yes, I do believe that now. In fact, I
believe 8 that even my question still has some ambiguity. 9 Q. (BY MR. CONLON) That's a shame. I mean,
if that 10 question were clear, then you would have really
established 11 that 19 percent of these people had something similar
to the 12 massive repression that's evidenced in this case,
isn't it? 13 MR. MURPHY: Objection. 14 A. No, because I might have been able to
design a 15 question that was less ambiguous.
16 Q. (BY MR. CONLON) I appreciate that. 17 A. But this is not a method that is going to
be able 18 to establish massive repression, because if you take 19 somebody who has false memories of abuse that they
have 20 acquired in therapy, then they would answer -- they
would 21 pick option three. Whether their memories are true
or 22 false, they would be picking option three, so you
really 23 can't establish massive repression with this kind of 24 technique, this retrospective memory technique. You
can 25 learn something about how people think they
experience KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
137
ELIZABETH LOFTUS, Ph.D. 1 forgetting and remembering, but you cannot -- I don't
think 2 you can establish massive repression this way. 3 Q. You're saying that you had a corroboration
issue 4 with these people? 5 MR. MURPHY: Objection.
6 Q. (BY MR. CONLON) Or problem, if you will? 7 MR. MURPHY: Objection. 8 A. Well, no, we didn't -- I don't believe we
got any 9 corroboration, or even asked for it. But my problem
with 10 this particular study that I participated in is that
the 11 question is still ambiguous, that people can check
option 12 three for a variety of reasons that have nothing to
do with 13 massive repression. 14 Q. (BY MR. CONLON) Beyond the reasons of
just the 15 lack of clarity in the question? 16 A. Right. For example, if somebody was
trying to 17 tell us that there was a period in their life when
they were 18 very distracted, they went away for a vacation or
they were 19 somehow otherwise distracted and they didn't think
about 20 their abuse, but when they came back home they
started 21 ruminating about it again, that person might check
option 22 three, but that person isn't trying to report massive 23 repression. 24 Q. So if I'm following you correctly -- and
again, 25 I'm just doing the best I can with this stuff, okay?
-- KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
138
ELIZABETH LOFTUS, Ph.D. 1 there's three issues that you've touched upon in
connection 2 with your study here. One would be a lack of clarity
in 3 item three and the possible ambiguity in connection
with how 4 it would be read. 5 A. Right. 6 Q. Okay. The second issue in terms of why it
is 7 that this doesn't establish, quote, massive
repression would 8 be that there really isn't corroboration. The people
may 9 have been sexually abused, they may not, though they
could 10 all just be 19 percent of the people suffering from
some 11 sort of false memory. That's the second problem, is
it? 12 A. Well, no, I wasn't trying to suggest that
those
13 19 percent were having a false memory. I was only trying to
14 say that if someone had a false memory implanted in
them 15 through suggestive techniques, they might check
option 16 three, also. 17 Q. I understand that, but I'm just -- I
understand 18 that you're not saying that all of them did have
false 19 memories, but as to the whole of those 19 percent,
there are 20 three, if I'm following it -- if I'm not, you correct
me -- 21 three things that could explain how it is that that
person, 22 one of those persons, is not a, quote -- I'm just
using your 23 term -- quote, massively repressed person. Those
three 24 would be they misinterpreted the question -- 25 A. Or they applied their own interpretation
to the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
139
ELIZABETH LOFTUS, Ph.D. 1 question.
2 Q. Fine. They didn't read the question to mean what
3 I initially suggested I thought it meant, which was
they 4 forgot completely the abuse, no recollection of
anything. 5 Because I sort of looked at it as distinguished from
two, 6 you know, but they may not have. So that's one
thing, 7 interpretation of question three. 8 A. Right. Yeah, they have their own
interpretation 9 of what we're asking them, and they respond to their 10 interpretation. 11 Q. Sure. Then the second reason that they
may not 12 be, quote, massively repressed is that they may not
have 13 been sexually abused. That's a second reason. 14 A. That's possible, but they think they were. 15 Q. And they weren't. 16 A. And they think they forgot it. 17 Q. Okay. And then the third reason would be
that 18 there's some other form of explanation. You just
ticked off 19 a bunch: they went on vacation, and you had a bunch
of other 20 explanations, but some other explanation as to how it
is
21 that their memory of sexual abuse, which did happen,
because 22 they're not a person who is dinged out on my second
problem 23 and they're not a person who is dinged out on the
first, 24 that their memory of sexual abuse went away, besides
massive 25 repression. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
140
ELIZABETH LOFTUS, Ph.D. 1 A. Right. 2 Q. And would you say that there are a number
of 3 phenomena that could explain that besides what you
called 4 massive repression? 5 A. Yes. 6 Q. Could you list them all for me, please? 7 A. Well, for example, some of these people
might 8 have thought that this meant there were periods of
time I 9 didn't think about it. 10 Q. That's kind of an interpretation of No. 3,
11 right? But let's focus on the people who just genuinely,
12 honest to God, forgot the abuse completely. 13 A. All right. Another explanation -- 14 Q. This massive repression which you used to
explain 15 that. 16 A. I mean, some people might have had
something 17 happen to them and not understood what it was, and
maybe 18 they were too young to understand what was happening
to 19 them, and so -- 20 Q. Like under the age of three or four? What
would 21 you consider to be too young to understand? 22 A. No, it might not be a childhood amnesia
problem, 23 although that might come into play, too. 24 Q. What did you mean when you just said they
might 25 be too young to understand what was happening to
them? What KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
141
ELIZABETH LOFTUS, Ph.D.
1 age would you consider too young to understand? 2 A. I don't know it completely, but maybe
they're six 3 years old and they don't really understand something
that's 4 happening to them, and later on it gets reinterpreted
for 5 them and they now start to remember it differently.
You 6 know, that kind of -- 7 Q. Any other mechanisms that you can think of
that 8 would explain? 9 A. Well, you might have ordinary forgetting
and 10 remembering. You know, maybe there was something
happened 11 to them and they just plain old forgot about it, and
then 12 somebody reminded them of it, just like you get
reminded of 13 things when you go to a high school reunion. 14 Q. Any others? 15 A. Well, those are a few. 16 Q. What observable characteristics would you 17 associate with differentiating what you're describing
as 18 repression from ordinary forgetting? 19 A. Well, I'm not really sure of that.
Repression is
20 supposed to be something that's beyond ordinary forgetting,
21 that can't be explained by ordinary principles of
forgetting 22 and then remembering. Repression is supposed to be 23 something that is way beyond that. 24 Q. What studies have you done specifically
that 25 addressed traumatic memory? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
142
ELIZABETH LOFTUS, Ph.D. 1 A. Well, how about this particular study of
people's 2 experiences with sexual abuse? Some of those
experiences 3 might have been traumatic to these women. 4 Q. Okay. Anything else? 5 A. I have done studies of people's
experiences as 6 crime victims, studies of people's experiences with 7 residential fires. 8 Q. Let's do the crime victim study. Is that
listed 9 in your CV? 10 A. Yeah. I'll go back to the CV.
11 Q. Gosh, I pretty much figured that everything you
12 ever wrote was in that CV. 13 MR. MURPHY: Hang on, Tim, I've got to get
the CV 14 back. 15 A. Okay, just -- well, I'm going to search
for it on 16 the computer version of my CV, because -- 17 Q. (BY MR. CONLON) Do you have that on a
floppy or 18 do you have it on your computer? 19 A. It's on my computer. 20 Q. Could you e-mail it to me? 21 A. My vita? Yeah, sure. I'll e-mail it to
both of 22 you. 23 Q. Thanks. 24 A. What's your e-mail address? 25 Q. Tjcesq. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
143
ELIZABETH LOFTUS, Ph.D. 1 A. At? 2 Q. Aol.com.
3 A. Okay. Now, it won't be formatted. 4 Q. What word processor did you use? 5 A. Well -- 6 (Discussion off the record.) 7 (Lunch recess from 1:30 p.m. to 2:45 p.m.) 8 Q. (BY MR. CONLON) Getting back to that CV
for a 9 moment, Doctor, I did not notice a book published in
1980. 10 If you turn to the page where your 1980 publications
are 11 listed -- 12 A. Yeah, the books are in a separate
category. 13 Q. Maybe I missed it. Hold on a second.
What page 14 do the books start on, Doctor? 15 A. They start on Page 0189 and they go all
through 16 the next page. 17 Q. Oh, I see, okay. Now, they're not in 18 chronological -- oh, there we go. I found what I was 19 looking for. Thank you, Doctor. 20 Now, have you been retained by Attorney
Murphy or 21 any other attorney on behalf of the Roman Catholic
Bishop of 22 Providence, a corporation solo, or Louis Gelineau, to
give
23 your testimony in connection with any matters besides the
24 Smith and the Kelly matters? 25 A. I don't have any other cases pending
involving KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
144
ELIZABETH LOFTUS, Ph.D. 1 Mr. Murphy. I have worked on other cases involving
the 2 Catholic Church, and I just don't really know whether
these 3 cases are or are not connected to Rhode Island. I
sometimes 4 have trouble telling whether something is -- 5 Q. Would you tell me about the other cases.
Give me 6 the names of the other cases that you've worked on
where the 7 Catholic Church was involved. 8 A. Well, I worked on the case involving
Cardinal 9 Bernardin from Chicago. 10 Q. Any others? 11 A. Gee, it's -- well, there have been other
cases 12 involving the Catholic Church. I just am having
trouble
13 remembering specifically. 14 Q. Okay. Well, is there a list that you
would have 15 available to you -- I don't mean at your fingertips
right 16 now -- that would refresh your recollection about
that? 17 A. Well, there might be. If I actually
testified in 18 one of them, I might be able to resurrect it, but if
I 19 didn't actually testify, I would have trouble
resurrecting 20 the information. 21 Q. Well, how many cases, roughly, just give
me in a 22 ballpark, have you testified for the Catholic Church? 23 A. It seems to me I've worked on maybe four
cases, 24 possibly, but I don't know that I actually testified. 25 Q. Okay. And leaving aside -- KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
145
ELIZABETH LOFTUS, Ph.D. 1 A. I just remembered one. 2 Q. Oh, good.
3 A. Yeah. It was a case in Chicago, and the Sidley &
4 Austin law firm was representing the accused priest
and 5 nun. 6 Q. What was the plaintiff's name? And I
don't mean 7 his personal name, but how was it captioned,
plaintiff 8 versus defendant? What was the named plaintiff? 9 A. I don't remember. I could only tell you
the name 10 of the attorneys. 11 Q. Okay. Which of the other attorneys' names
can 12 you tell me besides the ones you just gave me? 13 A. Susan Stone was one of the attorneys
representing 14 Father Lutz. Oh, I just remembered, Father Lutz was
the 15 defendant. 16 Q. He was a named defendant? 17 A. Right. 18 Q. And Susan Stone, is she in Chicago? 19 A. Yeah. She was with Sidley & Austin. 20 Q. I see. Is that the only firm that you
recall 21 being associated with that case? 22 A. Yes. I did my work for her and her
partner,
23 Arlene Earlbacher, I believe is how you say her last
name. 24 Q. Now that you recall Father Lutz's name, do
you 25 recall the plaintiff's name? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
146
ELIZABETH LOFTUS, Ph.D. 1 A. No. 2 Q. So that's one besides the Bernardin case.
Are 3 there any other cases besides that? You said there
were 4 four, so what can you tell me about the other two,
anyway? 5 A. I believe I had one in Louisiana, but I
did not 6 testify. 7 Q. Was that in suit? 8 A. Yeah, that was a suit. 9 Q. And do you recall the name of the
defendant? 10 A. I don't really remember anything about it. 11 Q. Do you have some form of record, either as
much 12 as even a billing record, that would reflect the name
of the
13 case? 14 A. That was years ago and I just don't really 15 remember, but did I work on something involving
Louisiana in 16 which I did not testify. 17 Q. But my question had to do with -- I
understand 18 that you don't remember. 19 A. I have no idea how I would recover that. 20 Q. Well, do you keep your billing records? 21 A. Well, for a few years, yeah. But I need
to know 22 the name of the attorney, because I bill attorneys,
and I 23 don't know the name of the attorney in that case, and
it was 24 too long ago. 25 Q. What is the other case that you recall, or
what KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
147
ELIZABETH LOFTUS, Ph.D. 1 is it that you recall of the other case besides that
it was 2 involving the Church? 3 A. I'm not even sure it was the Church. It
was some 4 religious group. See, I get involved in many cases 5 involving religious groups, so now I'm not even
positive 6 that was the Church. It may have been. 7 Q. What other religious groups do you get
involved 8 in cases regarding? 9 A. Seventh Day Adventists. 10 Q. How many Seventh Day Adventist cases have
you 11 done? 12 A. Oh, I've been involved in a few of those. 13 Q. How many cases have you been involved in
that 14 Attorney Barden has been involved in? 15 A. Barden? 16 Q. Christopher Barden. You know Christopher,
don't 17 you? 18 A. Yes. 19 Q. Okay. 20 A. Gee, it's hard to know. I testified in
two 21 cases, where he was one of the three attorneys, in 22 Minnesota. 23 Q. And what were those cases? 24 A. They involved a psychiatrist named
Humenansky. 25 Q. Both of them did? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
148
ELIZABETH LOFTUS, Ph.D. 1 A. Yes. 2 Q. And whereabouts in Minnesota? Were these
state 3 cases, federal cases? 4 A. Saint Paul. 5 Q. Was it state or federal court? 6 A. State court. 7 Q. And were those the only two cases you've
ever 8 been involved in with Attorney Christopher Barden? 9 A. No, there were other cases against
Humenansky 10 that were being prepared for trial, but they settled
after 11 the first two went to a jury verdict. 12 Q. And other than the -- I believe you said
the name 13 was Humenansky, have you ever worked in cases where
Attorney 14 Barden was the attorney? 15 A. Yes.
16 Q. Okay. About how many other cases, Doctor? 17 A. Maybe -- oh, I don't remember all of them,
but 18 maybe three. 19 Q. What is it that you can tell me about
those 20 three? 21 A. One involves a woman named Downing. 22 Q. And where was that? 23 A. Well, I don't know. It's still pending.
Maybe 24 I'd better not discuss it. 25 Q. I'm not going to ask you at this point a
lot of KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
149
ELIZABETH LOFTUS, Ph.D. 1 questions about your discussions with Attorney
Barden. I'm 2 just trying to get clear where the case is. 3 A. Well, that was in the East Coast
somewhere, like 4 Baltimore or Boston or something like that. 5 Q. You don't know whether it was Baltimore or 6 Boston?
7 A. Well, I have one in Baltimore and I have 8 something else in Boston, so it's hard for me -- 9 Q. Both of them involve Attorney Barden? 10 A. No. Well, actually, I don't know if
Barden is 11 involved in the -- 12 Q. Okay. Well, why don't you tell me about
the one 13 Attorney Barden is involved in, please. 14 A. Well, see, I don't really know what all he
is 15 involved in because I deal with the local attorneys,
and if 16 Barden is involved with these local attorneys, I'm
not 17 always aware of it. 18 Q. Doctor, I appreciate that, but you
indicated to 19 me a few questions ago that you believed there were
at least 20 three other cases that you were involved in that
Attorney 21 Barden was involved in, and I just want to get like
the 22 names of the cases and what states they are in. 23 A. Right. Well, I think there was one on the
East 24 Coast involving a plaintiff named Jan Downing. I
think he's 25 involved in that, but I'm not sure.
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
150
ELIZABETH LOFTUS, Ph.D. 1 Q. Is that case in Boston? 2 A. It's either Boston -- I think it's Boston. 3 Q. And that's the case you're currently
involved 4 with, so you certainly have records available to you
from 5 which you could refresh your recollection about the
name of 6 the case, correct? 7 A. I could. 8 Q. Now, what other cases besides the ones
we've 9 already discussed are you or have you been involved
in where 10 Christopher Barden represents one of the parties? 11 A. I don't know. I have many other cases. I
don't 12 know if he's playing a role in any of them or not. 13 Q. Well, I thought you had said that there
were 14 about three more, anyway, and I think, as to that
point, 15 we've only gotten one additional case. So what were
the
16 other two that you had in mind? 17 A. Well, I was contacted about a case in
Atlanta by 18 Christopher Barden's former partner, Ed Glennon, and
I think 19 Barden may be involved in that one. 20 Q. Is that a sexual abuse case? 21 A. I don't know. I haven't done any work on
it yet. 22 Q. What was the other of the three, then,
that you 23 had in mind when you said that there were at least
three? 24 A. Well, it was just a guess, but I don't
have a 25 third one to tell about. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
151
ELIZABETH LOFTUS, Ph.D. 1 Q. Are you confident that there are
additional cases 2 that you've worked with Attorney Barden on? 3 A. Well, he seems to consult on a lot of
cases, and 4 I just don't know if he's consulting on the cases
that I 5 happen to be involved in, so, you know, I would say
maybe,
6 maybe not. I mean, I just testified a couple of
weeks ago, 7 and I don't -- he might have been involved in that
case and 8 he might not have been. 9 Q. Doctor, can you take a look at the notes
that 10 Mr. Murphy -- I guess you mailed to Mr. Murphy and
then 11 Mr. Murphy in turn had someone fax to me today. 12 A. Yes. 13 Q. Do you see, well, the fax headed with me,
but the 14 first page I have starts Smith DOB? 15 A. Oh, yes, Smith DOB, yes. 16 Q. Under 1992 there's a little note that
looks like 17 32 (8) slash, or something. 18 A. Right. 19 Q. Can you read that note to me? 20 A. 32 (8) slash. 21 Q. Oh, okay. What's that mean? 22 A. 1992, the plaintiff was 32 years old at
the time, 23 and the entry that I'm making is something that
occurred 24 approximately August of that year. 25 Q. I see. And then down at the bottom in the
lower
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
152
ELIZABETH LOFTUS, Ph.D. 1 right-hand corner there's 11, and I just see 11 slash 2 nothing. What does 11 slash refer to? 3 A. Well, does it say legal proceedings
underneath 4 it? 5 Q. Underneath that, but 11 slash is above it,
and I 6 want to know what 11 slash refers to. 7 A. Well, that is meant to say that in
November of 8 '93 legal proceedings started. 9 Q. Okay. 10 A. And then below that it says, Intake form
of 11 12-22. That's where I got the information from. 12 Q. Now, the next page, this is also about
Kenneth 13 Smith? 14 A. Maybe you have the back side of the same
page. 15 Q. The next page that I physically have, it
starts 16 2-16 (33).
17 A. Yes. 18 Q. That's Ken Smith as well, correct? 19 A. Right. 20 Q. Okay. Now, the next page I have, and
again, this 21 may or may not be the next page you have, but it
starts: 22 E-mail [email protected]. Do you see that page? 23 A. Yes. 24 Q. And when were these notes created? 25 A. I think this was created when I started to
review KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
153
ELIZABETH LOFTUS, Ph.D. 1 materials in this case. 2 Q. Underneath -- the first entry, that seems 3 relatively clear, but the second one is kind of hard
for me 4 to quite figure. It looks like leader or something.
I 5 don't know what that word is. Do you see that word
that 6 starts the second section of text there? 7 A. Yeah. It says letter.
8 Q. And where it says State versus Quatrochhi about
9 halfway down that page -- 10 A. Right. 11 Q. -- are these your notes regarding your
reading of 12 State versus Quatrochhi or are these things that
Attorney 13 Murphy advised you regarding that case? 14 A. No, these would be I read that case and I
just 15 jotted down a few notes, I believe, from my reading
of the 16 case, while I was reading the case. 17 Q. Then underneath that says Complaint:
Smith. 18 Those P section numbers, those are page sections in
the 19 complaint? 20 A. Yeah. Yes. 21 Q. I can't read the last line. It says 1960s 22 something. I don't know what it says. 23 A. It says, Alleged sex forays with boys. 24 Q. Then going to the following page, it shows
like 25 Roman numeral IV (A)-1, that again references the
complaint; KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
154
ELIZABETH LOFTUS, Ph.D. 1 is that correct? 2 A. I believe so, yes. 3 Q. Then the page that I have following that,
it says 4 Pescosolido, is that dep? 5 A. Yes. 6 Q. Those are your notes regarding
Pescosolido's 7 deposition? 8 A. Right. 9 Q. Did you discuss this with Attorney Murphy
in 10 making these notes, or, for that matter, with anybody
else, 11 or are these just notes that you took as you were
reading 12 the deposition? 13 A. Just notes. 14 Q. Could you read the last line of that for
me, 15 please. 16 A. Well, read the last line of the part that
you 17 have? 18 Q. Yeah, the Pescosolido.
19 A. You mean where it says 23? 20 Q. Uh-huh. 21 A. 2-3-93, attorney for Kelly's wrote him and
said 22 both had CSA by priest. 23 Q. Now, the next page I have is the page that
says 24 Bessel dep. Is that the next page you have? 25 A. Well, I have that page, yeah. They're not
in the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
155
ELIZABETH LOFTUS, Ph.D. 1 same order as you have, but okay, I'm looking at that
one 2 now. 3 Q. What I'd appreciate your doing, just
because I 4 want to get clear that I have all of the pages --
okay? 5 A. Right. 6 Q. As I go through them, set them aside, such
that 7 if you have any other pages, that's what I'm going to
ask 8 you at the end, do you have any other pages. Okay? 9 A. Okay.
10 Q. So turning to the Bessel page, University
of 11 Chicago, University of The Hague, is that what that
says, 12 the fourth and third line there? 13 A. University of Hawaii, University -- 14 Q. Oh, I see. Now, about three-quarters of
the way 15 down the page, and this is just very illegible on my
copy, 16 it looks like 4-5 and then two squiggles in something 17 study. Do you see that? 18 A. Yes. 19 Q. What does that say? 20 A. I believe that says -- well, of course the
50 21 refers to Page 50. Four to five subjects in, I think
it's 22 anesthesia study. I think that says anesthesia
study, but I 23 don't know why I wrote that. 24 Q. When you say 50, I'm afraid I don't have
any -- I 25 have 4-5 and then like a double S in -- anesthesia
looks as KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
156
ELIZABETH LOFTUS, Ph.D. 1 good as anything here. But where is the 50; to the
left of 2 the 4-5? 3 A. Yeah, there are some page numbers to the
left 4 there. 5 Q. Oh, I'm afraid that the copy that was
supplied me 6 doesn't have that. 7 A. We can give you the copy again if you
want. 8 Q. Thank you, I would very much appreciate
that. 9 Is it your understanding that the
corroboration 10 that Dr. van der Kolk has obtained in connection with
his 11 studies is insufficient from a scientific point of
view? 12 MR. MURPHY: Objection. 13 A. I don't know what corroboration he has. 14 Q. (BY MR. CONLON) Now, just so we're clear
about 15 pages, I then have a second page that would appear to
me to 16 be the conclusion of Dr. van der Kolk's deposition,
or is it 17 your reading of that transcript, the last line, Threw
out
18 Vardi's lab views, or something like that? 19 A. No. 20 Q. Is that the last line of the next page? 21 A. Threw out Vardi's interviews. 22 Q. Interviews, there we go, okay. Then the
next 23 page I have is Rita Condon affidavit. 24 A. Yes. 25 Q. Do you see that? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
157
ELIZABETH LOFTUS, Ph.D. 1 A. Yes. 2 Q. Was there something particularly
significant to 3 you about the Condon affidavit? 4 A. No. I was just going through this mess of 5 material trying to figure out what was happening, and
I 6 hadn't figured out the significance of this yet. 7 Q. Now, would that be the same, then, further
down 8 the page? I see, Taped call Dooley to, it looks like 9 Reverend Roland Lepire? Would it be the same as to
this
10 next notation, Taped call Dooley to Reverend Roland Lepire?
11 You're just noting what you're looking at, as opposed
to 12 attributing any particular significance to this? 13 A. Correct. 14 Q. What about the next line or the next set
of 15 lines, in my copy appears to say, End, Journal-
Bulletin 16 (Providence). What is the word before Journal-
Bulletin 17 (Providence)? 18 A. News. N-E-W-S, news. 19 Q. And again, no particular significance to
that? 20 A. No, actually there was, because this was
specific 21 publicity apparently about O'Connell, and I think I
entered 22 a note then about that. Well, maybe. I would plan
to enter 23 a note about that in my -- oh, yeah, maybe it was so
I could 24 remember the publicity that specifically was about 25 O'Connell. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
158
ELIZABETH LOFTUS, Ph.D. 1 Q. When you say enter a note or plan to enter
a 2 note, what is it that you would be entering notes
into? 3 A. Well, that chronology thing that I was
trying to 4 make for myself. 5 Q. That would be the first couple of pages -- 6 A. Right. 7 Q. -- with the years on it. 8 A. Right. 9 Q. So the items that you picked up as you
make the 10 laundry list, if you will, we're going through now,
if 11 they're significant, you bring them back to your
chronology; 12 is that your practice? 13 A. Sometimes. 14 Q. Is that what you did in this case? 15 A. Sometimes, yeah. 16 Q. As we go through these items, I don't want
to tie 17 you up for longer than we need to be dealing with
this, but 18 you've told me so far you were just writing these
things 19 down as sort of inventory things. If there's a
particular 20 thing that's significant to you here, I would like
you to 21 alert me to that. Okay? 22 A. Okay. 23 Q. So the next item is a news article that
mentions 24 O'Connell in 1988. Well, I guess the article is in 25 December, but it mentions O'Connell's conduct in '88;
is KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
159
ELIZABETH LOFTUS, Ph.D. 1 that correct? 2 A. Right. 3 Q. And that was significant to you? 4 A. Well, I had a question about it
underneath, News 5 broke then, question mark. 6 Q. And then the Albuquerque Tribune, that
you're 7 just noting. Is there any particular significance to
that? 8 A. No. I was trying to figure out why all
these 9 things were here. I couldn't really figure it out,
so I was
10 just writing them down hoping it would make sense
some day. 11 Q. How about the news report on 6-13-85, this
next 12 reference? 13 A. That didn't seem too significant. 14 Q. Now, your next entry is Rubino and Ross,
U.S. 15 District Court, five patients against Catholic and
McGarry 16 and O'Connell? 17 A. McGarvey, I think. 18 Q. McGarvey? Thank you. And what is the 19 significance of that entry? 20 A. Just that it was just O'Connell's name was 21 mentioned so I jotted it down, I think. 22 Q. The same as to the next entry? 23 A. Yes. 24 Q. Why is it that you made a reference to a
guest 25 book? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
160
ELIZABETH LOFTUS, Ph.D. 1 A. I don't really remember what I was
thinking at 2 the time. 3 Q. Well, is there any significance to the
guest book 4 in your mind? 5 A. Well, there might be, but I haven't done
anything 6 with it. 7 Q. Oh. Is there some things that you intend
to be 8 doing later? 9 A. Oh, read the new material that gets sent
to me. 10 Q. Sure. But the guest book was in the
complaint 11 and that was filed some time ago. You got the
complaint 12 some time ago as well, correct? 13 A. Yes. 14 Q. Attorney Murphy hired you or retained you
at some 15 point in October of last year, correct? 16 A. Right. 17 Q. But you haven't yet assessed what
significance 18 the guest book is, if any? 19 A. Well, I hadn't thought about the guest
book until 20 you brought it up again.
21 Q. Take a look at that next entry. Detective -- I'm
22 afraid I can't quite make your handwriting out there. 23 Detective something complaint? 24 A. Oh, got, got complaint from mother of
juvenile 25 under age 16 regarding O'Connell. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
161
ELIZABETH LOFTUS, Ph.D. 1 Q. Did you consider that significant? 2 A. Well, it did seem as if O'Connell was
being 3 complained about, if all this was accurate, back in
1985. 4 Q. And do you consider that significant? 5 A. Well, it seems significant, yes,
especially since 6 there were, you know, other complaints and there was
also 7 publicity that followed from this. 8 Q. Let's leave the publicity part alone. Do
you 9 consider the fact that other persons reported sexual
abuse 10 by O'Connell significant? 11 A. Well, it could be corroboration for the
fact that 12 he may have molested somebody else. 13 Q. On the last line it says Affidavit, and I
can't 14 make out that next word. What is that word? 15 A. It's supposed to be, Questioning of Dana 16 regarding abuse by McConnell, which probably should
have 17 been O'Connell. 18 Q. I was just going to say that that would be 19 O'Connell, correct? 20 A. Right. 21 Q. Now, that's the end of that page -- 22 A. Right. 23 Q. -- I have. That's the end of your page as
well, 24 correct? 25 A. Right. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
162
ELIZABETH LOFTUS, Ph.D. 1 Q. So the next page I have says Darlene
Burke, CSW. 2 Writes letter or note. Do you have that page as
well?
3 A. Right. 4 Q. And this is the letter that we discussed
earlier 5 that you saw in the exhibit to the answers to 6 interrogatories; is that correct? 7 A. Right. 8 Q. Now, about halfway down the page it says,
From 9 something 8-30-94, and then I'm afraid there's also a 10 Dr. Bean's record here. Can you read that? What is
that, 11 form dated? 12 A. Yes. 13 Q. Oh, there we go. And what's the word
after '94? 14 A. Mentions. 15 Q. Mentions sex abuse by priest. And then
you've 16 got an entry by Dr. Plummer. Have you reviewed 17 Dr. Plummer's -- the transcript of Dr. Plummer's
initial 18 testimony? His first deposition, excuse me. 19 A. I don't think so, no. 20 Q. But that has been made available to you,
correct? 21 A. I don't think we mentioned that when we
went 22 through the documents earlier. 23 Q. I'm not sure that it rings a bell. You
mentioned 24 other deposition transcripts, and, I mean, I tried to
take 25 notes down. But to the best of your knowledge, you
don't KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
163
ELIZABETH LOFTUS, Ph.D. 1 actually have his first deposition? 2 A. I don't think I do. 3 Q. So is it fair to say that you're not going
to be 4 offering any testimony regarding Dr. Plummer's work
with the 5 plaintiff? 6 MR. MURPHY: Objection. 7 A. Well, I wasn't planning to, but maybe --
you 8 know, I wasn't planning to. 9 Q. (BY MR. CONLON) If somebody gives it to
you at 10 the last minute, huh? 11 MR. MURPHY: Objection. Timothy, we do
not have 12 the last transcript of Dr. Plummer's deposition. 13 MR. CONLON: She doesn't have the first
one
14 either, Jim, so it doesn't really make too much
difference, 15 does it? 16 MR. MURPHY: You're exactly right. 17 Q. (BY MR. CONLON) The last entry I have
here seems 18 fairly legible to me. Pescosolido, MSW, and then
you've got 19 MPH, is that -- 20 A. Yes. 21 Q. Working on sex abuse of boys by males for 22 Sgroi -- Ed, Chapter 4, Volume II. Did I get that
right? 23 A. Yeah, except the word is wrote on sex
abuse of 24 boys. 25 Q. Oh, wrote. Thank you. The next page I
have says KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
164
ELIZABETH LOFTUS, Ph.D. 1 Stephen Kelly dep? 2 A. Yes. 3 Q. And you're referring to the deposition of
Stephen 4 Kelly, not the deposition of Frank Pescosolido about
Stephen 5 Kelly; is that correct? 6 A. Right. 7 Q. Now, does that cover that whole page? In
other 8 words -- I apologize -- is the heading, Stephen Kelly
dep, 9 is that accurate to the entire page, down to
something about 10 discussion with Sue or to Sue? 11 A. I'm sorry, I don't -- oh, yeah, decision
to sue. 12 Q. Decision to sue. All of that is Stephen
Kelly; 13 is that correct? 14 A. Yes. 15 Q. And then the next page, First treatment at 16 St. Michael's College; is that correct? 17 A. Yes. 18 Q. Are we still in Stephen Kelly? 19 A. Yes. 20 Q. Now, Doctor, those are all the notes that
were 21 supplied to me. Do you have any notes that relate to
your 22 work in connection with this case or communication
regarding 23 this case besides those notes? 24 A. Well, I do have some notes that I took
since, you 25 know, in the last few days, for example, since I --
getting KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
165
ELIZABETH LOFTUS, Ph.D. 1 ready for this deposition, involving -- I have some
more 2 notes, but these are all the notes -- you have all
the notes 3 that I sent that I had as of the time I was asked for
them. 4 Q. When was that? 5 A. Whenever I mailed them to Jim Murphy. 6 Q. Was that late last week? 7 A. I actually think I may have mailed them on 8 Monday. 9 Q. Of last week? 10 A. Yes. 11 Q. Okay. So those were all of your notes as
of 12 Monday last week? 13 A. Right, but they didn't arrive at his
office -- 14 they hadn't arrived by Thursday. I think they didn't
arrive
15 till Friday or Thursday, so, or today. 16 Q. Did Mr. Murphy tell you they arrived
either 17 Thursday or Friday? 18 A. No, he didn't. They hadn't arrived by
then. 19 Q. They had not? 20 A. They had not. 21 Q. So, and then I guess it would be a week
ago 22 Monday you've made more notes? 23 A. Yeah, I've taken a few more notes. I've
taken 24 more notes on Stephen Kelly's deposition. I took
more notes 25 on reading Pescosolido's materials, and then I took
-- I KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
166
ELIZABETH LOFTUS, Ph.D. 1 started to create a chronology on Stephen Kelly. So
I 2 actually have, you know, on those subjects I have a
bit 3 more. 4 Q. Well, would you fax those? I mean, Mr.
Murphy is
5 right there. Can you give those to Mr. Murphy or can you
6 fax them to both of us, or what would be the easiest
thing 7 for you that's acceptable to Mr. Murphy? 8 A. Well, I don't know how to fax and I don't
have a 9 fax in this office, so I have to find someone who's,
you 10 know, free who would be willing to fax from the main
office. 11 Q. Dr. Loftus, I didn't mean this second. I
didn't 12 mean can you do it right now. I just meant, you
know, when 13 we're finished here, how is it that you would get
those to 14 me? Do you want to give them to Mr. Murphy? I know
there 15 was some issue about a copying machine not being
available. 16 A. Right. 17 Q. How is it I can get these? 18 A. Well, I'll tell you what, I'll either give
my 19 actual notes or a Xerox of them after -- I'll either
Xerox 20 them right after the deposition or give the originals
to 21 Mr. Murphy and he can get them to you. 22 Q. Great. Thank you very much, Doctor.
23 A. Okay. In fact, I'll get the relevant pages right
24 now. 25 Q. When you say the relevant pages, I would
like all KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
167
ELIZABETH LOFTUS, Ph.D. 1 the pages other than the ones I've already got. 2 A. Right. Right, okay. 3 Q. Now, if I understand it correctly, you
teach; is 4 that correct? 5 A. I do. 6 Q. And you do research. 7 A. Yes. 8 Q. And you lecture. 9 A. Yes. 10 Q. And you write. 11 A. Yes. 12 Q. And you testify. 13 A. Yes. 14 Q. Is there anything else that you do in
connection 15 with the field of memory?
16 A. I give speeches at other places to all
kinds of 17 other groups, organizations, members of law
enforcement, the 18 mental health profession, et cetera. 19 Q. Okay. So you speak. I think I mentioned 20 lecture, but in any event, anything else? 21 A. I do consulting for corporations and for
the 22 government. 23 Q. Anything else? 24 A. Well, I do -- I communicate to the media
about 25 scientific issues having to do with memory. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
168
ELIZABETH LOFTUS, Ph.D. 1 Q. Anything else? 2 A. That's all, I think. 3 Q. Do you treat people? 4 A. No. 5 Q. In connection with your testimony, your
work as 6 someone testifying, if we were to leave aside cases
that you
7 may have worked on where people are suing therapists, have
8 you ever testified on behalf of victims or alleged
victims 9 of sexual abuse? 10 A. I've consulted on five or six cases on
behalf of 11 plaintiffs who were suing other people. 12 Q. What are those cases, please? 13 MR. MURPHY: Objection. If you feel you
can't 14 answer it, that's all right, but if you can, answer. 15 A. Well, I only know the cases by the names
of the 16 lawyers involved. 17 Q. (BY MR. CONLON) Okay. Well, if you want
to give 18 me the names of the lawyers involved, please. 19 A. Okay. One lawyer is Horowitz. 20 Q. And where is Attorney Horowitz located? 21 A. He's in like the Oakland area, Oakland or 22 Berkeley, that area. 23 Q. Oakland, California? 24 A. Right. 25 Q. What's his first name? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
169
ELIZABETH LOFTUS, Ph.D. 1 A. I think it's Dan. 2 Q. Do you have a phone number for Dan? 3 A. I'm looking in my Rolodex. Yes -- oh, no,
I 4 don't. No phone number here, but there is his
address. 5 Q. Okay. Would you just give it to us? 6 A. 120 11th Street, Oakland, California,
94607. 7 Q. Now, how about the other attorneys that
you've 8 worked with on behalf of victims? Again, I'm leaving
aside 9 cases where the plaintiff is suing a therapist. 10 A. I consulted in the cases involving Ross
Cheit, 11 but I forget the name of the attorney, his attorney. 12 Q. What state is that in? 13 A. Well, he is in Rhode Island. He's at
Brown. But 14 I cannot speak about anything about that case because
I 15 signed a confidentiality agreement. 16 Q. Well, the case is a case that was in
litigation? 17 A. Yes. 18 Q. Okay. And was it in state or federal
court? 19 A. There were cases in California. 20 Q. The cases were cases in California, not in
Rhode 21 Island? 22 A. Right, but the man is a professor in Rhode 23 Island. 24 Q. I see. And where in California were these
cases 25 brought? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
170
ELIZABETH LOFTUS, Ph.D. 1 A. Northern California. 2 Q. Can you give me a town? 3 A. Well, I think San Francisco. 4 Q. And was it federal court or state court? 5 A. I don't remember. 6 Q. Now, I think we've got two down. What is
another 7 case in which you've testified on behalf of a victim? 8 A. No, I didn't testify in any of these
cases. 9 Q. Okay. How about consulted on behalf of a
victim?
10 A. Yeah, these are consultations or -- 11 Q. Fine. Go ahead, Doctor. 12 A. Let's see, what was that -- I don't
remember the 13 others. I might be able to dig something up, but I
just 14 don't -- 15 Q. You would have records that would make
that 16 information available to you? 17 A. It probably would not be easy because I
didn't 18 testify and they were quite long ago, but I might be
able 19 to -- I might be able to dig up the names of some
more 20 attorneys who contacted me to consult with them on
behalf of 21 their plaintiffs. 22 Q. Would you do that for me, please? 23 A. Yeah. 24 THE WITNESS: Will you remind me, Mr.
Murphy, to 25 look for that? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
171
ELIZABETH LOFTUS, Ph.D.
1 Q. (BY MR. CONLON) Now, are you familiar
with the 2 term rule out in connection with diagnosis? 3 A. I think I could figure out what it means,
but I 4 don't do diagnoses. 5 Q. Okay. So you wouldn't do a diagnosis of
any 6 psychiatric or psychological condition? 7 A. Correct. 8 Q. You wouldn't be doing any rule-outs of 9 psychiatric or psychological conditions? 10 A. Correct. 11 Q. Are you familiar with what process is
used, if 12 any, to rule out false memory? 13 A. I'm not sure what is done that's reliable
to rule 14 out false memories. 15 Q. Have you ever had a case where you came to
the 16 conclusion that an individual had been abused and
recalled 17 the abuse after a long period where they reported no
recall? 18 A. Oh, when I testify in court, I don't
testify as 19 to whether the abuse is being accurately recalled or
falsely
20 recalled unless there's independent corroboration that can
21 support that. 22 Q. Well, I certainly wouldn't want to leave
that 23 case out, if there is such a case. I just want to
know if 24 you've ever had a case where in fact you've come to
the 25 conclusion that an individual had been abused and
recalled KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
172
ELIZABETH LOFTUS, Ph.D. 1 the abuse after a long period where they reported not 2 recalling it. 3 MR. MURPHY: Objection. 4 A. I mean, you know, there are cases where I
think 5 possibly people have remembered something they
haven't 6 remembered in a long time. 7 Q. (BY MR. CONLON) Yeah, that's fine. I
said 8 recalled, remembered, that's fine with me, and you
were 9 satisfied that they had in fact been abused.
10 MR. MURPHY: Objection. 11 A. Well, my problem is that one of the cases
I 12 mentioned, I have signed a confidentiality agreement
and I'm 13 not free to discuss the case. 14 Q. (BY MR. CONLON) Well, Doctor, I'm just
wanting 15 to get -- you didn't have to tell me that part, I
suppose, 16 but all I wanted to know was whether in fact in the
cases, I 17 think you said there were two cases that you
recalled, 18 whether in fact that you were satisfied the person
had been 19 sexually abused. 20 MR. MURPHY: Objection. 21 A. I think it was probably highly likely that
in 22 some of the cases that I have been given material
about that 23 the person was abused. 24 Q. (BY MR. CONLON) Which cases is it that
you have 25 come to the conclusion that an individual had been
abused -- KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
173 ELIZABETH LOFTUS, Ph.D. 1 A. Well, I signed -- 2 Q. -- and recalled the abuse after a long
period, 3 after reporting no recall? 4 MR. MURPHY: Objection. 5 A. I do not feel free to discuss that given
that I 6 have signed a confidentiality agreement, and I don't
want to 7 violate, you know, the ethical or moral or whatever 8 requirements of that agreement. 9 Q. (BY MR. CONLON) Well, apart from that one
case 10 where you've signed this confidentiality agreement,
tell me 11 about the other ones. We'll deal with that
confidentiality 12 agreement case separately. 13 A. In the other cases in which I consulted
for the 14 plaintiff, I think in fact the memories either were
more 15 likely to be false, but I did not state that, or it's
just 16 completely unproven and there's just no way to know. 17 Q. Well, I guess I'm confused. I thought you
had 18 said that there were two cases that you had come to
the 19 conclusion that an individual had been abused and
recalled 20 the abuse after a long period of no recall. Did I
have that 21 correct? 22 A. No, I don't think I said that. I might
have said 23 I think there are cases where people recall things
they 24 haven't recalled for a while. 25 Q. The only one that you can recall right now
is the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
174
ELIZABETH LOFTUS, Ph.D. 1 one where there's a confidentiality agreement? 2 A. That's one where if I -- you know, if I
were 3 going to be leaning, I would certainly lean towards
the 4 abuse happened. 5 Q. When you say that's one, is there another
one 6 besides that? 7 MR. MURPHY: Objection. 8 Q. (BY MR. CONLON) Doctor?
9 A. Yeah, I'm here. I'm just trying to think
of 10 another one to give you. I just don't have one right
at the 11 moment. 12 Q. Who was the attorney with whom you worked
in 13 connection with the one with the confidentiality
agreement? 14 A. Well, I was trying to remember his name,
and 15 unfortunately I can't, because I didn't spend very
much time 16 on it. 17 Q. But you do have a record of that? 18 A. I may have a record of it. 19 Q. How long ago was this case, Dr. Loftus? 20 A. Oh, maybe three, four years ago. 21 Q. Do you keep your billing records for three
or 22 four years? 23 A. I didn't bill for this case, I
volunteered. 24 Q. If you remember that you volunteered for
the 25 case, Doctor, don't you remember some way of reaching
the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
175
ELIZABETH LOFTUS, Ph.D. 1 attorney that handled this case? 2 MR. MURPHY: Objection. 3 A. I do not recall his name. I might be able
to 4 find it, but I don't recall it now. 5 Q. (BY MR. CONLON) You earlier identified a 6 particular case involving somebody from Rhode Island
as 7 being a case with a confidentiality agreement. Are
we 8 talking about the same case? 9 A. Yes. 10 Q. So to the extent that you've already
identified, 11 did you say Ron Cheit? 12 A. His name is Ross Cheit, C-H-E-I-T. 13 Q. And where does he teach or did he teach? 14 A. He teaches at Brown. 15 Q. Thank you. 16 Do you have any reason to believe that Ken
is a 17 grade five hypnotizable person? 18 MR. MURPHY: Objection. 19 A. Do I have any reason to believe he is?
20 Q. (BY MR. CONLON) Yes. 21 A. I don't know if he is or not. 22 (Attorney and witness confer.) 23 Q. Well, are there any things that you saw in
the 24 records that were made available to you that suggest
that he 25 is to you? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
176
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: Objection. 2 A. I have no idea if he's highly hypnotizable
or 3 not. 4 Q. (BY MR. CONLON) Now, earlier I had asked
you 5 about diagnosis, and I understand that you do not --
if I've 6 got your testimony correctly, you do not make
diagnoses. 7 Do you consider the DSM-IV to be derived
from 8 scientifically reliable processes? 9 MR. MURPHY: Objection. 10 A. Not necessarily.
11 Q. (BY MR. CONLON) Well, more specifically as it
12 relates to posttraumatic stress disorder, do you have
some 13 scientific qualms as to the diagnostic criteria
established 14 in the DSM-IV? 15 MR. MURPHY: Objection. 16 A. I was not intending to testify about the
PTSD and 17 its discussion in the DSM-IV. I don't consider
myself an 18 expert about that. 19 Q. (BY MR. CONLON) Well, okay, that's all
I'm 20 trying to get clear on. You would not feel that
you're in a 21 position to criticize or attack the diagnostic
criteria 22 established in the DSM-IV for PTSD; is that in
essence 23 correct? 24 MR. MURPHY: Objection. 25 A. Unless somebody asked me some questions
about KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
177
ELIZABETH LOFTUS, Ph.D.
1 memory specifically, I don't expect to do that. 2 Q. (BY MR. CONLON) I'm afraid you're going
to have 3 to explain that qualification to me, Doctor. 4 A. Well, I wasn't intending to testify about
the 5 DSM-IV. 6 Q. I'm not really asking at this point
whether 7 you're intending to testify about the DSM-IV. I'm
asking 8 whether you consider yourself to be competent to
challenge 9 the diagnostic criteria established in the DSM-IV for 10 posttraumatic stress disorder. If you do, fine; if
you 11 don't, that's fine, too. I don't know. 12 A. I don't know specifically what you're
talking 13 about, so I don't know whether I'm qualified to
comment on 14 it or not. 15 Q. Are you familiar with the term
dissociation? 16 A. Yes. 17 Q. And are you familiar with its use in the
DSM-IV? 18 A. Well, the word gets used a lot of
different 19 times, but -- so you'll have to be more specific.
20 Q. I'm referring to DSM-IV. Are you saying
it's 21 used a lot of different times in the DSM-IV? 22 A. No, the word gets used -- the word
dissociation 23 gets used quite a lot in lots of different ways,
period. 24 Q. But I'm not asking about like lots of
different 25 ways, I'm asking about its use in the DSM-IV. I
don't know, KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
178
ELIZABETH LOFTUS, Ph.D. 1 maybe you're not familiar with its use in the DSM-IV,
but 2 that's what I'm trying to focus about, not how, you
know, it 3 may have been used in some deposition or how it may
have 4 been used in some article. I'm referring to how it
is used 5 in the DSM-IV. 6 A. I'm not an expert on the DSM-IV. 7 Q. Do you accept that dissociation can occur
during 8 the experience of a traumatic event?
9 MR. MURPHY: Objection. 10 A. Well, I do accept that people report
having 11 experiences that get called dissociative experiences.
They 12 report leaving their body and watching themselves
from a 13 distant perspective, for example. 14 Q. (BY MR. CONLON) Do you have any reason to 15 believe that those reports are not accurate? 16 A. Well, it's the subjective experience of
the 17 individual. 18 Q. Do you have any reason to believe that
those 19 reports are not accurate? 20 A. They may be accurate sometimes and not
accurate 21 other times. 22 Q. I'm sure that's the case, but do you have
any 23 reason to believe that a person reporting
dissociation in 24 the context of a traumatic event, the experiencing of
a 25 traumatic event, could not be reporting that
accurately? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
179
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: Objection. 2 A. Yes, I have reason to believe that
sometimes that 3 happens. 4 Q. (BY MR. CONLON) Any particular reason? 5 A. Well, part of the reason comes from the
data from 6 the retractors. They -- at one point when they were 7 recovering or getting their memories induced in them
during 8 their therapy, they would also come to believe they
had 9 dissociated during the trauma and that's the reason
they 10 didn't remember it. And when they subsequently
realized 11 that their memories are false, then you have an
example of 12 someone reporting a dissociative experience that in
fact 13 never happened. 14 Q. Do you have any evidence that no
dissociation 15 takes place in connection with trauma? 16 A. No. 17 Q. So you would agree that at least some
trauma is
18 experienced -- some trauma, when experienced, is experienced
19 in association with dissociation? 20 MR. MURPHY: Objection. 21 A. Well, what I have seen data on are people
who 22 have been through a traumatic experience and then,
for 23 example, fill out the dissociative experiences scale,
and 24 they do score higher perhaps than they would have
otherwise, 25 maybe because of the trauma. So I think it can
affect your KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
180
ELIZABETH LOFTUS, Ph.D. 1 scores on a test that has dissociation or
dissociative in 2 the title of that test. 3 Q. (BY MR. CONLON) Now, I believe I've seen 4 reference, and I don't recall the exact phrase that
you 5 used, but reference to a process by which one
deliberately 6 or consciously avoids traumatic memories. Do you
accept 7 that there is such a process?
8 A. Yes, I believe people, some people, may
try hard 9 not to think about unpleasant things that have
happened to 10 them, and sometimes they can succeed in not thinking
about 11 those experiences. 12 Q. That would be a form of deliberate
forgetting? 13 A. Or, oh, causing yourself to be preoccupied
so 14 that thoughts of the unpleasant experience don't
enter your 15 immediate awareness and cause you distress. 16 Q. Do you know a John F. Kihlstrom? 17 A. Yes. 18 MR. CONLON: K-I-H-L-S-T-R-O-M, Kathy. 19 Q. (BY MR. CONLON) And from whence do you
know him? 20 A. I first met him, I believe, when he was an 21 assistant professor at Harvard and I was spending a
year as 22 a fellow working at Harvard. 23 Q. Have you reviewed his definition of false
memory 24 syndrome? 25 A. I've read it, yes. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875
SEATTLE, WASHINGTON 98161-1001
181
ELIZABETH LOFTUS, Ph.D. 1 Q. Do you accept that definition? 2 A. Gee, I can't even remember it that well,
but I 3 don't usually use the term false memory syndrome. 4 Q. What term do you use? 5 A. False memories. 6 Q. So if Kihlstrom has a definition for false
memory 7 syndrome, would that simply define, as far as you're 8 concerned, false memory as opposed to a syndrome? 9 A. No. I use the term false memories to
describe my 10 work. The term False Memory Syndrome is what's the
name of 11 a foundation, and that's usually when I would use the
term. 12 Q. Well, I was earlier asking you about your 13 familiarity with his definition of false memory
syndrome. 14 I'm just trying to get clear as to I think you said
you were 15 familiar with it. Is that -- but then you said that
you 16 would refer to things as false memories, and I'm
trying to 17 get clear what the difference between what you call
false 18 memories and what he calls false memory syndrome.
Could you 19 explain the distinction. 20 A. Well, I don't remember exactly what went
into his 21 definition of false memory syndrome. 22 Q. Why don't you tell me what you define as
false 23 memories. 24 A. When you come to have memories for things
that 25 didn't happen or memories for things that are
different from KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
182
ELIZABETH LOFTUS, Ph.D. 1 the way things really were, then you have false
memories. 2 Q. Anything else? 3 A. No. 4 Q. What do you know about how trauma victims 5 recover, if anything? 6 MR. MURPHY: Objection. 7 A. Well, it depends -- that's so broad a
question.
8 I'm not sure exactly what you mean by that. 9 Q. (BY MR. CONLON) Well, you're aware of
there 10 being trauma victims, are you not? 11 A. Yes. 12 Q. Do you have any familiarity with any of
the 13 processes by which those persons recover? 14 MR. MURPHY: Objection. Tim, it's to the
form of 15 the question. When you say trauma victims, what
types of 16 traumas are you referring to; broken legs in an auto 17 accident, sexual trauma? 18 Q. (BY MR. CONLON) Were you confused about
possibly 19 broken legs in an auto accident, Doctor? 20 A. Well, trauma victims can mean, you know,
torture. 21 Q. Sure. Torture would be fine, yeah. 22 A. Being in a, you know, hurricane. 23 Q. Yes. Sexual abuse, right? 24 A. Yes. Rape. 25 Q. What do you know, if anything, about the
recovery KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
183 ELIZABETH LOFTUS, Ph.D. 1 process for trauma victims? 2 MR. MURPHY: Objection. You can answer. 3 A. I'm not an expert in the recovery
processes of 4 trauma victims, but it does appear that many of them
get 5 better over time. 6 Q. (BY MR. CONLON) Would you agree that some
events 7 yield continuing memory, while others have a
temporary 8 absence? 9 MR. MURPHY: Objection. 10 A. Well, under -- in some ways I could agree
with 11 that. 12 Q. (BY MR. CONLON) Okay. Has there ever
been a 13 study or are you aware of any study which predicts
the 14 variable governing the temporary absence or lack
thereof? 15 MR. MURPHY: Objection. 16 A. I'm not sure what you're referring to, but
if -- 17 there is a suggestion in the literature that if
something 18 happened to you when you were very young, you're more
likely 19 to have memory difficulties. 20 Q. (BY MR. CONLON) Any other variables that
you 21 could list that would explain the differential
between 22 events yielding continuing as opposed to temporary
absence 23 of memory? 24 A. Well, nothing -- the writing on that has
been 25 very inconsistent. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
184
ELIZABETH LOFTUS, Ph.D. 1 Q. So other than the age of the person who
was 2 involved in the event, you cannot think of any other 3 variable that would predict whether that would yield 4 continuing as opposed to temporary absence of memory? 5 A. Well, if you're asking me for a
prediction, I 6 would say the more times something happened the
better the 7 memory. 8 Q. Are you aware of any studies that trauma
victims
9 during treatment have changes in the nature of their 10 thoughts about the trauma? 11 A. I can't name any specific study about
that. 12 Q. Well, are you aware of studies generally
in that 13 field? 14 A. Not that I can name right now. 15 Q. Doctor, I think we can -- I've got a few
flags on 16 some items that I want to move through, and they
should go, 17 I would think, relatively quickly, but you never know
about 18 these depositions. But why don't I see what we can
do to 19 get us out of here. Just give me a second. 20 Do you recall being interviewed by
Psychology 21 Today? 22 A. Yes. 23 Q. And did you review that article about
yourself 24 after it ran? 25 A. I read it. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
185 ELIZABETH LOFTUS, Ph.D. 1 Q. Was there anything inaccurate in that
article 2 regarding your quotes? 3 A. I don't -- I mean, I don't recall in
particular. 4 I mean, some things were certainly briefer and maybe 5 somewhat incomplete, but I don't remember anything
being 6 inaccurate. 7 Q. Well, there's a quote in the article,
Doctor, 8 attributed to you regarding the baby-sitter incident
that I 9 asked you about earlier that says, It's not a big
deal. 10 MR. MURPHY: Objection. 11 Q. (BY MR. CONLON) Do you recall saying
that? 12 MR. MURPHY: Objection. I do not have a
copy of 13 what you're referring to, Mr. Conlon. 14 A. You'll have to read that to me so I can
verify 15 the accuracy of it or really reassure me of the exact 16 wording of that quote, because it doesn't sound like
the way 17 you just read it. 18 Q. (BY MR. CONLON) Well, the quote says,
quote, 19 It's not that big a deal, she says candidly. The end
quote 20 is before the "she says candidly." 21 MR. MURPHY: Objection. I object to the
form. 22 There's no context in which you've read that part of
the 23 quote, Tim, and I have no document to refer to. 24 Q. (BY MR. CONLON) Does that refresh your 25 recollection, Doctor? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
186
ELIZABETH LOFTUS, Ph.D. 1 A. Well, could you read the paragraph that it
is 2 contained in? 3 Q. Oh, certainly. Scratch the surface and
you 4 discover how skeptical she is about the view of
sexual abuse 5 as the root of lifelong trauma: she herself was
molested by 6 a baby-sitter when she was six and shrugs it off,
period. 7 Quote, It's not that big a deal, end quote, she says 8 candidly. When I mention award-winning poet Michael
9 O'Ryan's recent memoir, in which he describes his
childhood 10 molestation as the cause of a tragic life centered
around 11 sexual addiction, which psychotherapy only belatedly
began 12 to heal, she gently scoffs and suggests that O'Ryan's 13 therapy itself may have helped him create a
revisionist view 14 of his life in which all of his troubles were
traceable to 15 that early experience. And that's the end of the 16 paragraph. 17 MR. MURPHY: Is there a page number, Tim? 18 MR. CONLON: On the print I have it says
Page 7 19 of 9, but that's not the specific page in which it --
you 20 know what I'm saying? 21 MR. MURPHY: You must have a fax or
something. 22 Q. (BY MR. CONLON) Doctor? 23 A. Yes. 24 Q. Does that refresh your recollection? 25 A. It does refresh my recollection. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
187 ELIZABETH LOFTUS, Ph.D. 1 Q. Would you agree with -- apart from the
memory 2 using those specific words, would you agree with the 3 statement that is attributed to you? 4 A. Well, I would agree that I may have made
that 5 statement, but it's missing the context of the
statement and 6 why I would have said something like that. So if you
would 7 like the complete and proper context, then you have
to know 8 that this was in the context of an interview in which
I'm 9 discussing many childhood traumas that I experienced, 10 including the drowning of my mother, and perhaps when
one 11 has had that kind of thing happen, some fondling by a 12 baby-sitter is not quite as important as it might be
to 13 other people who have not had these other traumas in
their 14 childhood. 15 Q. Doctor, getting back to the type of work
that you 16 do, what percentage of your income is from the
academic 17 position, either teaching, publishing, lecturing, et
cetera,
18 versus testimony, roughly? 19 A. Well, I can't really divide things up that
way 20 because my -- I have a little consulting company, and
it 21 receives income from legal consulting, corporate
consulting, 22 testifying, speeches, book royalties, and it all
comes 23 together, as separate from both my university salary
and my 24 other sources of income. 25 Q. Are you saying you don't have any idea
what KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
188
ELIZABETH LOFTUS, Ph.D. 1 percentage of your income comes from testifying? 2 A. From testifying? I mean, I would have to
say, 3 what percentage of my income? Less than a quarter. 4 Q. Over 15 percent, though? 5 A. Gee, I don't -- probably. I mean, I'm not
going 6 to be able to pin it down to an exact number. 7 Q. Now, some of the teaching and lecturing
you do
8 outside of the University of Washington is done in 9 connection with seminars or appearances sponsored by
the 10 False Memory Syndrome Foundation, is it not? 11 A. I think I've only given three talks that
the 12 False Memory Syndrome Foundation was connected to.
Two of 13 them I was asked to do this by Johns Hopkins
University and 14 one I was asked to do just by the False Memory
Syndrome 15 Foundation, if my memory serves me correctly. 16 Q. And these were when, Doctor, these three? 17 A. One was in, I believe -- well, I could
look at 18 the vita and tell you exactly. I mean, why guess? 19 In 1993 I did give a talk at the False
Memory 20 Syndrome Foundation conference in Valley Forge, 21 Pennsylvania. In 1994 Johns Hopkins medical school 22 co-sponsored with the False Memory Syndrome
Foundation a 23 conference in Baltimore, Maryland, and I gave a
speech 24 there. And I thought I also gave another talk in
1995. Oh, 25 no, it was 1996, Johns Hopkins medical school and the
False
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
189
ELIZABETH LOFTUS, Ph.D. 1 Memory Syndrome Foundation. That was a talk in San
Diego. 2 Q. Now, Johns Hopkins is where, is it
Professor 3 McKuen? 4 A. Yes. He is, I believe, still the chair of
the 5 psychiatry department of Johns Hopkins University
Medical 6 School. 7 Q. Now, are you indicating that none of your
other 8 lectures or speeches have been in connection with
either 9 symposia or appearances sponsored by False Memory
Syndrome 10 Foundation? 11 A. I believe those are the only three, but --
I 12 think those are the only three. 13 Q. What about publishing for the FMSL? 14 A. I don't publish for them. 15 Q. Do you publish anything -- do they publish
any of 16 your material?
17 A. No. 18 Q. Now, earlier you gave me this figure
somewhere, 19 over 15 and under 25 percent in connection with
testimony. 20 A. No, I said maybe a quarter. 21 Q. Right. 22 A. Of my income. 23 Q. Right. That's 25 percent is a quarter,
Doctor. 24 Between 15 and 25 percent -- 25 A. I didn't say 15 percent, you did. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
190
ELIZABETH LOFTUS, Ph.D. 1 Q. Okay, well, if it's 25 percent, that's
fine. I 2 thought that you said it was less than 25, and then I
said 3 would it be greater than 15, and I thought you said
yes, so 4 it's somewhere 15 and 25. If you want to say it's
25, 5 that's fine. All I want to know is that that did not 6 include your consulting in connection with legal
matters,
7 did it? 8 A. It was just an estimate when I said around
a 9 quarter of my income may come from testifying work,
or maybe 10 a quarter. It's just an estimate. 11 Q. Sure, okay. Now, what additional amount
would 12 come from consulting? You've mentioned that you
consult 13 with attorneys apart from cases in which you've
testified. 14 A. That's all wrapped up in there. 15 Q. Is there any question as to whether
emotion can 16 have a significant effect on the processing of
memory? 17 A. I don't think there is too much doubt
about that. 18 Q. And would you accept that there is a
difference 19 in the processing between happy memories and not
happy 20 memories? 21 A. There may be some differences. There are
also 22 many similarities. 23 Q. What are the differences that you're aware
of, 24 Doctor? 25 A. Well, I'm more aware of the similarities,
but I KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
191
ELIZABETH LOFTUS, Ph.D. 1 would say that most normal, healthy people have
somewhat of 2 a bias towards remembering the happy experiences
rather than 3 the unhappy ones. 4 Q. Would that be the same as to the traumatic 5 memories? Would they fall under the category of the
same 6 category as the unhappy ones? 7 A. Well, I don't know. You're making
distinctions 8 that I'm just not that comfortable making. I believe
that 9 all memories follow certain laws; that certain
traumatic 10 experiences, however, can be associated with the
release of 11 some chemicals or a physiological response that -- 12 Q. Doctor, I'm really not trying to make a 13 distinction. I had asked you about differences
between 14 happy and not happy and you gave me some testimony
about
15 that, and I'm just trying to be clear if there is a 16 distinction. And if there isn't, that's fine. Is
the 17 happy/not happy similar to or the same as happy
versus 18 traumatic? 19 A. No, because when you mention something
about 20 traumatic it makes me sort of -- it brings to mind
some of 21 these other studies that have shown the release of
certain 22 neurotransmitters and other chemicals that sometimes
occur 23 during some extremely upsetting experiences. 24 Q. So those are ways in which the happy/
traumatic is 25 different than happy/nonhappy; i.e., the releases of
these KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
192
ELIZABETH LOFTUS, Ph.D. 1 chemicals? 2 MR. MURPHY: I object. 3 A. I don't know, your questions are confusing
me, so 4 it's making it very hard for me to answer them.
5 Q. (BY MR. CONLON) Have you studied this issue in
6 great detail? 7 MR. MURPHY: Objection. 8 A. Which issue? 9 Q. (BY MR. CONLON) The issue of happy versus
not 10 happy memories. 11 A. Well, there are -- I am familiar with some
of the 12 most widely cited work on that subject, such as Dr.
Wagner's 13 study of autobiography, in which he reached certain 14 conclusions about happy or unhappy memories. 15 Q. And how about happy versus traumatic
memory? 16 A. Well, that particular distinction isn't
usually 17 made in the literature or in a specific study. 18 Q. So the only thing you could tell me about
the 19 difference would be the chemical issue that you just
raised 20 a minute or two ago? 21 MR. MURPHY: Objection. 22 Q. (BY MR. CONLON) Is that correct? 23 A. No, there are also studies of flashbulb
memories 24 that are not studies that measure any -- and don't
25 necessarily take physiological measures, but show that
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
193
ELIZABETH LOFTUS, Ph.D. 1 people, you know, often can remember the
circumstances of 2 where they were when they learned about something
very 3 traumatic, even if they get a number of the details
wrong. 4 Q. Now, Doctor, I notice that you're a member
of the 5 American Association for the Advancement of Science.
When 6 did you first join that organization? 7 A. I don't think I've ever been a member of
that 8 organization. 9 Q. I'm sorry, I don't know where I saw that.
You're 10 not a member? Never mind. 11 When did you leave the APA? 12 A. I think officially in '96, January '96. 13 Q. Why? 14 A. I wanted to devote my attention and time
to other
15 organizations that I was already involved in that I felt
16 valued scientific matters more highly and more
consistently. 17 Q. It took up too much of your time; is that
your 18 testimony, Doctor? 19 MR. MURPHY: Objection. 20 A. No, I wanted to devote myself to
organizations 21 that valued science more highly and more
consistently. I 22 was beginning to have some doubts about APA. 23 MR. CONLON: I have nothing further. 24 MR. MURPHY: I have no questions of the
witness. 25 Anybody else in attendance have a question? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
194
ELIZABETH LOFTUS, Ph.D. 1 MR. McKIERNAN: No, Jim, just some
housekeeping 2 matters before you hang up, I suppose, or you can
call me 3 here. 4 MR. MURPHY: What do you have from that
end,
5 Daniel? 6 MR. McKIERNAN: Bill wants to know if
you're 7 going to be catching the flight tonight or not. He
just 8 left. 9 MR. MURPHY: Well, I hope so. I've got
several 10 hours until the one I had booked leaves. 11 MR. McKIERNAN: Okay. 12 MR. MURPHY: You mean as opposed to not
leaving 13 tonight? 14 MR. McKIERNAN: As opposed to not leaving 15 tonight. We didn't know if you had missed your
flight or 16 not. 17 MR. MURPHY: No, I purposely booked it. 18 But I have a housekeeping matter from this
end. 19 At the beginning, and I don't know if it was Mark, I
gave 20 the stenographer the notice of deposition. We'll
mark that 21 as Exhibit 1. And I also received a fax from my
office, 22 Tim, of the revised notice or amended certification
of the 23 deposition. I thought we might as well mark that as 24 Exhibit 2.
25 MR. CONLON: Are you talking about the
thing that KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
195
ELIZABETH LOFTUS, Ph.D. 1 says that I gave notice of certain deps to these
other 2 people? 3 MR. MURPHY: Yes. 4 MR. CONLON: Is that what you're referring
to? 5 MR. MURPHY: Yes. 6 MR. CONLON: Fine. If you don't have any 7 questions, then I'll let you call the -- Carl, you're
at my 8 office, correct? 9 MR. DeLUCA: I have one question. 10 MR. MURPHY: Carl, you're here. Hi, Carl. 11 We have another housekeeping matter to
deal with; 12 that's money. 13 MR. CONLON: We can keep house, if you
don't 14 mind, and I'll release the doctor because I'm
finished 15 questioning her.
16 MR. MURPHY: We started here -- 17 MR. CONLON: Okay, great. 18 MR. DeLUCA: I do have one question. 19 MR. MURPHY: Tim, let me finish. You
noticed the 20 deposition for 11:30, and I told you that because of
a 21 meeting, the doctor might not be available until
noontime 22 here, Pacific time. It's now slightly past 4 o'clock 23 Pacific time, which is seven hours on my clock, times
$400. 24 Is that right? $2,800. 25 MR. CONLON: You said what time there? KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
196
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: Maybe the stenographer can
tell us, 2 but I've got four after 4:00. 3 MR. CONLON: And we started at? 4 MR. MURPHY: We started late because of a 5 difficulty in coordinating between your office and
getting a 6 stenographer here, because the times were not set for
the
7 Pacific or Eastern Standard Time. 8 MR. CONLON: All I asked was what time did
we 9 start. That's all I wanted to know. I'm not
disagreeing 10 with your characterization, but let's just try to get
this 11 dealt with. What time did we start? 12 MR. MURPHY: In my mind, 9 o'clock here,
noontime 13 your time. 14 MR. CONLON: So we started at 9:00 there
and went 15 to 4:00, and you're suggesting that the real start
time 16 should have been how much earlier than that? 17 MR. MURPHY: No, that's what I'm
suggesting. 18 MR. CONLON: Well, I asked you what time
we 19 started. 20 MR. MURPHY: I have no idea what time we
finally 21 got started with you, but I had the doctor sitting
here in 22 the room waiting for a deposition. 23 MR. CONLON: Yeah, I know that. I
appreciate 24 that. We went through a similar situation with Dr.
Plummer,
25 and I recall you becoming absolutely livid when I suggested
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
197
ELIZABETH LOFTUS, Ph.D. 1 that you should be on the hook for that. But all I'm
trying 2 to get clear is what the numbers are. It's 9:00 to
4:00? 3 MR. MURPHY: Yes. 4 MR. CONLON: Your start time and the end
time, 5 and it's, what, end of 4:00 on my start time and the
end 6 time or the actual start time and the end time?
That's all 7 I'm trying to figure out, Jim, what the issue is. 8 MR. MURPHY: Nothing. I'm just telling
you I 9 figure 9:00 to 4:00. 10 MR. CONLON: Okay. And you don't know
what time 11 we actually started. Kathy, what time did we start? 12 THE REPORTER: Ten to 10:00. 13 MR. CONLON: I'm sorry, ten to 10:00? 14 THE REPORTER: Yes. 15 (Discussion off the record.)
16 MR. DeLUCA: I have one question of the
witness, 17 and perhaps you can ask it. She mentioned a
confidentiality 18 agreement. You may want to ask if she has that. 19 MR. CONLON: Do you have that, Doctor? 20 THE WITNESS: Well, let's see. It would
be a 21 letter that says that -- you mean about that case? 22 MR. CONLON: Yes. 23 THE WITNESS: Well, I might have the
letter, but 24 it would be in the form of a letter where I agreed to
those 25 terms. I probably have that somewhere, but I don't
know if KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
198
ELIZABETH LOFTUS, Ph.D. 1 it would be violating the confidentiality agreement
to give 2 you the letter. 3 MR. CONLON: I understand. And, Jim, just
so 4 we're clear, okay, it is very apparent, and I don't
want to 5 waste -- this I do want to put on the record so that
it is 6 clear regarding the closure of this. It is very
apparent to 7 me, and I don't expect that we'll agree about this,
but I 8 think that the record is clear that there is quite a
bit of 9 material that has not been supplied to me that should
have 10 been, and quite a bit of information that the witness
is 11 frankly not prepared to testify to because of the way
that 12 you handled giving information to her, and I'm
certainly not 13 waiving the right to examine her further on the basis
of 14 that information. 15 MR. MURPHY: Fine, Tim. Specifically what
is it 16 that you believe was not given to you that you should
have 17 had? 18 MR. CONLON: Jim, I think the witness has 19 testified that no one has asked her, until I did, for
a list 20 of the materials upon which she relies in support of
her 21 testimony, and it would take her about two hours to
get that 22 list together. I'm certainly entitled to that list,
and I
23 certainly don't have it as we speak, and I certainly
think 24 it's absurd to suggest that we're all supposed to sit
here 25 for two hours while the poor witness tries to put it KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
199
ELIZABETH LOFTUS, Ph.D. 1 together, and then what? 2 That's just one thing off the top of my
head, the 3 fact that, as I understand the witness's testimony,
she has 4 reviewed no medical records. I guess if you intend
never to 5 show them to her, that's fine, but I would certainly
take 6 the position that you're not entitled to deliberately 7 withhold those medical records. Some of those
medical 8 records were made available to you in early January. 9 And again, it's really not worth going
back and 10 forth. You and I can do this for hours, okay? But
just try 11 to be clear, and we can discuss what I'm missing, but
my
12 perception is, and I think the record supports, that there's
13 stuff missing, and I want to be clear that I'm
reserving my 14 right to examine the witness in connection with those
other 15 things, if necessary, when they're produced. 16 MR. MURPHY: Timothy, I am here in Seattle
with 17 the witness and the stenographer. 18 MR. CONLON: I'm aware of that, Jim. 19 MR. MURPHY: No, no. I want you to tell
me, 20 instead of simply saying, as you very often do, that
we're 21 hiding things, to tell me what it is that this
witness 22 discussed in her testimony that you don't have. 23 MR. CONLON: Jim, I'm not going to debate
this 24 with you. I just told you, the best of my ability,
okay, 25 and I'm not going to debate it with you, you know, on
the KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
200
ELIZABETH LOFTUS, Ph.D. 1 record. It's 7:09 here, okay? It is the end of the
2 business day out there, and there's no point in
elongating 3 this record with a disagreement. If we don't agree,
we 4 don't agree. We don't have to agree. I'm just
trying to be 5 reasonable on explaining to the best of my ability --
I 6 have -- what it is that she intends to rely on. She
said 7 it would take two hours to make a list. Obviously I
don't 8 have that list. 9 MR. MURPHY: First, Tim, I think you 10 mischaracterized Dr. Loftus' testimony. 11 MR. CONLON: That's why we have a record,
Jim. 12 MR. MURPHY: Doctor, I'm going to ask you
a 13 question. I'm asking the question. 14 Dr. Loftus, did Mr. Conlon mischaracterize
your 15 testimony a moment ago? 16 MR. CONLON: Objection. There's a record. 17 THE WITNESS: Yes, because what I said I
would 18 do, I thought he was asking for me to go through my
vita and 19 indicate exactly which articles provided the
scientific
20 basis for my opinions on memory, when I already had gone
21 through and tried to identify some articles that I
thought I 22 would be discussing in any kind of detail and
supplied those 23 already, and supplied the last five years of all 24 publications I could find. So those are two totally 25 different things. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
201
ELIZABETH LOFTUS, Ph.D. 1 MR. MURPHY: Mr. Conlon, if there's any
way to 2 avoid the necessity of a further trip out here to
Seattle 3 for the deposition of my expert, I would like to
resolve the 4 problem now, so please tell me if there's anything
else that 5 you feel you need. 6 MR. CONLON: I've told you what I need,
and that 7 is a list of the materials upon which she -- Jim,
first of 8 all, I sent you no less than four faxes in advance of
your 9 asking for supplements. You refused to give them, so
you've 10 created this problem. I sent you multiple things
telling 11 you what it is I perceive to be the shortcomings.
You 12 responded be saying we'll treat these faxes as
answers to 13 interrogatories. When I cross-examined the witness
and 14 asked the witness whether (inaudible) is you or her,
half of 15 it's you, it's not even her. Okay? 16 I believe I was entitled to supplemental
answers, 17 Jim, and I'm sure that it is unlikely that we are
going to 18 be able to reach agreement on this, and I'm not going
to 19 debate it transcontinental with you. I just want to
alert 20 you that it is a potential area of disagreement.
Thank you. 21 MR. MURPHY: Timothy, when I receive the
final 22 transcripts of Dr. Pescosolido's deposition and 23 Dr. Plummer's deposition, and I'm able to get a copy
of 24 Kenneth Smith's deposition and the other materials to 25 Dr. Loftus, I will give them to her. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875
SEATTLE, WASHINGTON 98161-1001
202
ELIZABETH LOFTUS, Ph.D. 1 I must add, when you answered the 2 interrogatories, you attached to the interrogatories
a pile 3 of medical documents concerning Kenneth Smith that
you 4 refused to let us list, but that's what you purported
were 5 the complete medicals. Apparently they were not. So
this 6 is something we can bring up with the judge, I
suppose, but 7 you've created the problem by the delays in giving us 8 discovery. 9 MR. CONLON: Okay. Well, Jim, you know
that 10 you've received many, many, many medical records
since the 11 point where I sent you every medical record I had on
the day 12 that those answers were signed, so this is a total
waste of 13 time and completely spurious, okay? I understand
that you 14 don't agree that there's been a problem. Presumably
you 15 have enough openmindedness to understand that we
believe
16 that there is. And that's the long and short of it. 17 MR. MURPHY: Very well. Do you have any
other 18 questions? 19 MR. CONLON: No. 20 MR. MURPHY: You'll send the check
tomorrow? 21 MR. CONLON: Yes. 22 MR. MURPHY: Bye. 23 (Marked for identification were Exhibit
Nos. 1 24 and 2.) 25 (Deposition concluded at 4:20 p.m. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
203
ELIZABETH LOFTUS, Ph.D. 1 Signature was reserved.) 2 3 4 5 6 7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
204
ELIZABETH LOFTUS, Ph.D. 1 S I G N A T U R E 2 3
4 5 I declare under penalty of perjury under the
laws of 6 the State of Washington that I have read my within 7 deposition, and the same is true and accurate, save
and 8 except for any changes and/or corrections, if any, as 9 indicated by me on the CORRECTIONS page hereof. 10 11 12 Signed in ________________, Washington on the
____ 13 day of ________________, 1997. 14 15 16 17 18 19 ___________________________________ 20 ELIZABETH LOFTUS, Ph.D. 21 22 23 24 25
KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001
205
ELIZABETH LOFTUS, Ph.D. 1 C E R T I F I C A T E 2 STATE OF WASHINGTON ) 3 ) ss. 4 COUNTY OF KING ) 5 I, Kathy L. Hauck, the undersigned Notary Public
do 6 hereby certify: 7 That the deposition, a transcript of which is
attached, 8 was given before me at the time and place stated
therein; 9 said deponent before examination was by me duly sworn
to 10 testify the truth, and the testimony thereupon given
was by 11 me stenographically recorded and typewritten under my 12 supervision; that the foregoing transcript contains a
full, 13 true and accurate record of all the testimony and 14 proceedings given and occurring at the time and place
of 15 said testimony; that I am in no way related to any
party to 16 the matter, nor to any of counsel, nor do I have any
17 financial interest in the event of the cause. 18 19 WITNESS MY HAND AND SEAL this 13th day of June
1997. 20 21 CSR#
HAUCKKL4210H 22 Kathy L. Hauck, 23 Notary Public in and for the State 24 of Washington, residing in King 25 County, commission expiring 3/6/98. KATHY HAUCK, CSR, RPR 1215 FOURTH AVENUE, SUITE 1630 622-6875 SEATTLE, WASHINGTON 98161-1001