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COMMONWEALTH vs. Paul SHANLEY.
September 10, 2009. - January 15, 2010.
Child Abuse. Evidence,
Expert opinion, Qualification of expert witness, Scientific test. Witness,
Expert. Constitutional Law,
Assistance of counsel. Practice, Criminal,
Assistance of counsel, New trial, Judicial discretion, Argument by prosecutor. Practice, Civil,
Instructions to jury. Limitations, Statute of. Indecent Assault and Battery.
INDICTMENTS found and returned in the Superior Court Department on June 9, 2002.
The cases were tried before Stephen E. Neel,
J., and a motion for a new trial, filed on November 14, 2007, was heard by him.
The Supreme Judicial Court granted an application for direct appellate review.
Robert F. Shaw, Jr.,
for the defendant.
Loretta M. Lillios & Bethany Stevens,
Assistant District Attorneys, for the Commonwealth.
The following submitted briefs for amici curiae:
R. Christopher Barden
& Eric Tennen
for International Committee of Social, Psychiatric, Psychological,
Cognitive Science, Neuroscience, and Neurological Scientists.
Paul R. Rudof,
Committee for Public Counsel Services, for Committee for Public
Wendy J. Murphy
for Leadership Council for Child Abuse and Interpersonal Violence. Thomas A. Pavlinic
for False Memory Syndrome Foundation.
Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.
On February 7, 2005, Paul Shanley was convicted of sexual abuse of a
child: two indictments charging rape, in violation of G.L. c. 265, §
23; and two indictments charging indecent assault and battery on a
person under the age of fourteen years, in violation of G.L. c. 265, §
13B. The abuse occurred between 1983 and 1989 when the victim was
attending Confraternity of Christian Doctrine (CCD) classes at the
church where the defendant served as a Catholic priest. The victim
testified that he did not remember being abused by the defendant until
nearly twenty years later, when he learned that other individuals had
publicly made allegations that the defendant had sexually abused them
when they were children. The victim's testimony about what he
remembered of that abuse constituted the core of the evidence against
defendant at trial.
The defendant appealed from his convictions, and subsequently filed a
motion for a new trial. The appeal proceedings were stayed pending
resolution of the new trial motion, which was denied by the trial judge
on November 26, 2008. The defendant appealed from the denial of this
motion and that appeal was consolidated with the appeal from his
convictions. We granted the defendant's application for direct
On appeal, the defendant contends that he is entitled to a new trial
because (1) the judge erred in admitting expert testimony related to
"repressed memory" [FN1]; (2) his trial counsel was ineffective for
failing to prevent the admission of such expert testimony and for
failing to challenge it adequately at trial; (3) the prosecutor made
improper arguments during her closing; and (4) the judge erred in his
instruction to the jury regarding the statute of limitations on the
indecent assault and battery indictments. We affirm.
a. The Commonwealth's case.
The Commonwealth's case included the testimony of the victim as to his
memory of the abuse he suffered at the hands of the defendant; the
testimony of witnesses who observed the victim during
the period of time when he claims he recovered
that memory; the testimony of an expert witness on dissociative amnesia
and recovered memory; and the testimony of individuals who could
corroborate that the victim both attended CCD classes during the time
period he alleges he was abused, and occasionally left those classes
for behavioral reasons. The Commonwealth also presented evidence
regarding the defendant's role and presence at the church where the
abuse occurred, as well as his whereabouts outside of Massachusetts
after he left that church in 1990. [FN2]
Setting aside the victim's testimony regarding the alleged sexual
abuse, and the testimony of the Commonwealth's expert, the jury could
have found the following facts. The defendant was a priest at St.
Jean's Church in Newton during the years when the victim was enrolled
in CCD classes there. He would often check on the children while they
were in their CCD classes on Sundays. Children ranging from the ages of
six to fourteen, including the victim, attended these classes.
The victim was born on September 9, 1977, and grew up in Newton with
two siblings. His parents separated when he was four years of age and,
after a short stay with his mother, he lived primarily with his father
in his paternal grandmother's house. The victim attended CCD classes
with the same group of
children at St. Jean's Church from first grade
(in 1983) until he reached eighth grade. During the years the victim
attended CCD classes, some of the children became quite boisterous and
periodically were required to leave the classroom. The victim and two
of his friends in particular were disciplined often, both in the lower
grades and when they were in fourth or fifth grade. On occasion, the
defendant admonished those who were required to leave the classroom for
misbehavior, and the victim was observed leaving the classroom with the
defendant on several occasions.
Several years after graduating from high school, the victim joined the
Air Force. After being trained as an Air Force police officer, he was
stationed at Peterson Air Force Base in Colorado Springs, Colorado. He
returned home to Massachusetts for a visit in spring of 2001 and began
a romantic relationship with Tammy. [FN3] Their relationship continued
when the victim returned to Colorado, with Tammy visiting the victim
and the two often speaking on the telephone.
Tammy telephoned the victim on January 31, 2002, and mentioned an
article published in a Boston newspaper concerning the defendant and
allegations of child sexual abuse. The victim expressed surprise at the
contents of the article, commenting to Tammy, "That's weird, everybody
liked him." After this
conversation, the victim began remembering being
taken out of CCD class by the defendant, but he did not remember
anything else. He also began reading newspaper articles on the Internet
about the allegations and looking at photographs of the defendant.
On February 11, 2002, Tammy again telephoned the victim and told him
that one of his childhood friends and former CCD classmates had made an
allegation of abuse against the defendant. The victim had a strong
emotional and physical reaction to this news. Shortly after this
conversation, the victim contacted his flight chief and said that he
was not coming to work.
Later on that same day, the victim spoke with the childhood friend who
had made the allegation of abuse. Early the next morning, the victim
contacted a personal injury attorney, with whom he later entered into a
fee agreement. The victim also went to see Captain John F. Drozd, a
psychologist on the Air Force base to talk with him about his mental
state. [FN4] He stayed at Drozd's office for ten to twelve hours and
felt awful, confused and sick. Drozd recommended that the victim keep a
journal, which he did, backdating his entries to the first conversation
with Tammy on January 31. [FN5]
The victim returned to Massachusetts on February 15, 2002. [FN6] He briefly
returned to Colorado, [FN7] where he ultimately
received an honorable discharge from the military in April, 2002. He
then returned to live with Tammy in Massachusetts. After joining a
civil suit brought against the Archdiocese of Boston (based on the
abuse he alleged against the defendant) he received a settlement in the
amount of $500,000.
With respect to the sexual abuse, the victim testified at the
defendant's trial to the following based on the memories that came back
to him after learning of the allegations made by others. The defendant
began sexually abusing him when he was approximately six years of age
and first began attending CCD classes. The defendant would take the
victim out of his CCD class, bring him to the bathroom in the basement,
unzip the victim's pants watch him urinate, and then touch the victim's
penis with his hand and mouth.
The defendant also sexually assaulted the victim in the pews of the
church after the victim put pamphlets in the pews for the upcoming
Mass. He would do so by sitting next to the victim, putting his right
arm around the victim, touching the victim's penis through his clothes,
and grabbing the victim's hand and putting it on his own penis over his
clothing. The defendant would also bring the victim into the
confessional room which was located "off the side of the pews," where
the defendant would undress them both and place his finger in
the victim's anus.
Finally, the victim testified that the defendant would bring him to the
rectory, get him soda and a snack from the kitchen, and then play the
card game, "War." When the victim would lose a hand, the defendant
would instruct him to remove a piece of his clothing. When the victim
would go on a "winning streak," the defendant would remove his clothing.
The abuse of the victim continued until the defendant left the Newton
church in 1990 when the victim was approximately thirteen years of age.
The defendant told the victim that no one would ever believe him if he
disclosed the abuse.
The Commonwealth called Dr. James A. Chu as an expert in the field of
dissociative amnesia. He was not called to give a diagnosis of the
victim, but rather to assist the jury in determining the credibility of
the victim's testimony that he had recovered memories nearly twenty
years after the abuse, and their consequent reliability. His
qualifications as an expert were not contested by the defendant at
Dr. Chu testified that dissociative amnesia is a diagnosis included and
defined in the Diagnostic and Statistical Manual (DSM). That manual is
the American Psychiatric Association, and is a
classification manual widely used by mental health professionals in
making diagnoses of mental health problems. The DSM lists criteria for
a clinician to consider when making a particular diagnosis. Dr. Chu was
a member of the task force in the 1990's charged with reviewing
dissociative disorder diagnoses for the purpose of preparing the most
recent version of the DSM, DSM-IV, which was published in 1994. [FN9]
He explained that in the DSM-IV, dissociative amnesia is a "descriptive
term [for] somebody who cannot remember certain important information
about themselves, either about what happened to them, sometimes
personal information ... not ... due to ... head trauma or
intoxication." It means, "basically, that there is a dissociative
barrier that prevents somebody from remembering something in their
ordinary state of consciousness."
In describing how dissociative amnesia works, Dr. Chu testified that it
is possible for a person to forget something and remember it later. Dr.
Chu observed the phenomenon in his own clinical practice with adults
who had been traumatized as children and explained that while it was
not common in that population, it was "not at all rare." He analogized
dissociative amnesia to a type of forgetting, which "leads to people
having really pervasive amnesia for not only [traumatic] events
themselves, but [also] sometimes for neutral events or even good
events." He explained that persons who have experienced repeated
traumatization suffer from dissociative amnesia more often than those who experience a single traumatic event.
He went on to testify that when a person remembers "so-called forgotten
memories," it is usually the result of a "trigger of some kind" which
reminds that person of the traumatic experience. [FN10] While there was
no typical pattern for the subsequent reaction of a traumatized person
once there has been a trigger, the person may experience memory flashes
or "body sensations." More specifically, a person might experience
physical sensations that mirror the sensations he or she incurred from
the trauma itself (for example, genital pain where a person had
suffered sexual abuse); or have a subsequent reaction to a trigger,
become overwhelmed by the sudden onset of traumatic memories and
experience "people panic," that is, agitation, crying, and increased
adrenaline. He further explained that, although it is "highly variable"
among individuals, the return of such memories may lead to disruption
or dysfunction in a person's life.
Dr. Chu also testified about the quality of the memory that might be
recovered with the caveat that "all ... memories are subject to various
kinds of distortion." In general, however, "the central themes of
memories are really relatively well-preserved," with distortions as to
peripheral details and
perhaps the sequence of the memory. He also
explained that a person may not remember everything about a particular
event all at once, that instead, the memory might progressively return.
Dr. Chu identified the ways in which a clinician would go about testing
the validity of a memory recovered many years later, including
determining whether a person's life changed abruptly at a certain time,
whether the person has had the ability to begin and maintain
interpersonal relationships, and whether the narrative of the person's
life is believable and reasonable.
Dr. Chu acknowledged that it was possible for a new memory to be
created in some people that has no basis in reality. He gave common
examples of this phenomenon on a minor scale, but explained that there
was "probably only a very small minority of people who are vulnerable
to that kind of suggestion."
Dr. Chu concluded by estimating that dissociative amnesia occurs in
approximately twenty per cent of the seriously traumatized population.
b. The defense case.
defense at trial was threefold: first, that the abuse did not happen;
second, that the victim had significant financial and personal reasons
to fabricate the abuse (including getting discharged from the Air Force
and participating in the civil suit against the Boston Archdiocese);
and third, that the theory of repressed memory
is inherently unreliable given the problem with corroboration and the
possibility of false memories. The first two prongs of the defense were
presented through the cross-examination of the Commonwealth's
witnesses. The third was developed initially through the
cross-examination of Dr. Chu, during which he acknowledged that there
are professionals in the psychiatric community who do not believe there
is sufficient evidence to verify the existence of dissociative amnesia,
and that clinical research on the subject relies to a significant
extent on the self-reporting of the patient--a methological limitation.
This prong of the defense was enhanced by the testimony of Dr.
Elizabeth Loftus, an expert witness, and the only witness called by the
Dr. Loftus is a professor at the University of California at Irvine in
the Department of Psychology and Social Behavior and the Department of
Criminology, Law, and Society. She is also a member and former
president of the American Psychological Society, which has several
thousand members focusing on the science and teaching sides of
psychology. Her qualifications as an expert were not contested by the
Commonwealth at trial.
Dr. Loftus testified that she has conducted research on memory and
memory distortion, including experiments in the 1970's and 1980's where
group evaluated the reliability of eyewitness
testimony to a simulated accident or crime scene by subjecting the
eyewitnesses to misinformation, such as leading questions or media
accounts of the incident, to determine the impact, if any, on their
recall of the event. She further elaborated that her research in the
1990's expanded the theories of misinformation to see whether people
could be implanted with entirely false memories, for example, by making
a person think that he or she had been lost in a shopping mall as a
child. She explained that one quarter of the persons involved in this
experiment believed in the false memory of being lost.
Dr. Loftus described memory as involving the construction or
reconstruction of experiences where a person may blend later occurring
details into the memory of an event. She explained that many things
could affect the accuracy of a memory, including factors related to the
perception of an event as it occurs, such as lighting and distance and
the exposure to postevent information such as leading questions or
media coverage, which can distort or supplement a memory. Dr. Loftus
also explained that the passage of time made memories weaker and thus
more vulnerable to postevent contamination. She explained that a false
memory is a false belief accompanied by sensory detail.
In addition, Dr. Loftus testified that it was "virtually impossible without
independent corroboration" to determine the
difference between an accurate memory and a false one. She stated that
the impact of trauma on a memory is that while the core of the memory
might be recalled, the peripheral details may be distorted. [FN11] In
contrast to Dr. Chu, Dr. Loftus testified that repetitive traumatic
experience would make it more likely that someone would remember a
She elaborated on the controversy surrounding "repressed memory" and
explained that in her view of the literature there is no "credible
scientific evidence for the idea that years of brutalization can be
massively repressed." She noted that it was possible to retrieve
unpleasant memories through ordinary remembering and forgetting, but
there was a lack of current scientific support for the theory that some
"special mechanism" would "banish [traumatic experience] into the
unconscious." She also explained that there was "inherent limitation"
in the method of studies used to test for repressed memory, namely,
that the retrospective memory technique relies on self-reporting by
a. Admission of expert testimony.
The role of expert testimony is to assist jurors in interpreting
evidence that lies outside their common experience. The proponent of
such testimony bears the burden of establishing that it "will assist
the trier of fact to understand the evidence or to
determine a fact in issue," Mass. G. Evid. § 702
(2008-2009), and that the methodology or theory underlying the expert
testimony is sufficiently reliable to be presented for the jury's
consideration. [FN12] Id.
Trial judges serve an important gatekeeping function with respect to expert testimony. Commonwealth v. Lanigan,
419 Mass. 15, 26 (1994) (Lanigan
). As a gatekeeper, the judge must make a preliminary assessment
whether the theory or methodology underlying the proposed testimony is
sufficiently reliable to reach the trier of fact. [FN13] For these
purposes, expert testimony is sufficiently reliable if the underlying
theory or methodology is either (1) generally accepted in the relevant
scientific community, see Frye v. United States,
293 F. 1013 (D.C.Cir.1923); or (2) satisfies the alternative requirements adopted in Lanigan, supra
at 25-26. The judge may hold a pretrial hearing (Lanigan
hearing), as he did here, to assist in making this preliminary
assessment. A judge's decision to admit expert testimony is subject to
review only for abuse of discretion. Canavan's Case,
432 Mass. 304, 312 (2000). Once admitted, the validity and credibility
of the expert testimony is subject to challenge like any other
testimony, including through the admission of opposing expert
testimony, and it is for the jury to determine what aid it might
provide to their deliberations.
In this case, the victim was expected to testify
that he had been abused many years ago, but had only recently
remembered that abuse. To assist the jury in understanding how memories
of abuse might be forgotten and later remembered, the Commonwealth
proposed to offer expert witness testimony to explain the theory,
condition, and symptoms of dissociative amnesia and recovered memory.
In response, the defendant moved to preclude such testimony because the
theory underlying it could not meet the test of reliability required
In considering the defendant's motion, the judge was initially of the view that a Lanigan
hearing might not be required because this court, in Commowneath v. Frangipane,
433 Mass. 527 (2001), had both permitted expert testimony "concerning
dissociation and recovered memory; what these conditions or symptoms
are; and the fact that victims of trauma may experience them," id.
at 535, and suggested that no Lanigan
hearing was necessary as to expert testimony which concerned "memory
problems associated with dissociative memory loss, and related mental
disorders ... such as those referred to in the most recent edition of
the [DSM], or those disorders where qualified expert testimony has been
accepted as reliable in the past in Massachusetts appellate cases." Id.
Despite his misgivings about whether it was required, the judge proceeded to conduct a Lanigan
hearing that extended over five days. [FN15] During that hearing, two
experts retained by the Commonwealth, Dr. Daniel Brown and Dr. Chu,
were called to testify. In addition to this testimony, the judge
considered, without objection from the Commonwealth, an affidavit
prepared by Dr. Loftus and submitted by the defendant.
Dr. Brown was called by the Commonwealth to explain the theory,
conditions, and symptoms of dissociative amnesia and recovered memory
and their general acceptance in the scientific community. Dr. Chu, who
had been retained by the Commonwealth, was called to testify about the
"fit" of the proposed opinion testimony regarding dissociative amnesia
and recovered memory, to the facts of this case. The defendant does not
challenge Dr. Chu's testimony on this subject, or on the ruling of the
judge that the "fit" was sufficient in this case. We focus then on Dr.
Dr. Brown is a licensed psychologist, an assistant professor of
clinical psychology at Harvard Medical School, [FN16] and an adjunct
professor at the Simmons School of Social Work. He specializes in
treating patients who have been the victims of trauma, e.g., physical
abuse, sexual abuse, child neglect, accident, torture, and natural
disasters. He has previously given expert
testimony in judicial proceedings regarding
dissociative amnesia in five States and has also testified about memory
and trauma at the international war crimes tribunal. He is the author
of twelve books, including a text entitled, "Memory, Trauma Treatment
and the Law," which presents a comprehensive review of 2,500 clinical
and laboratory studies on human memory.
Dr. Brown testified that based on his clinical experience, his review
of thousands of studies regarding various aspects of memory, and his
analysis of eighty-five studies focused on amnesia in childhood sexual
abuse cases, many of which were subject to peer review, it was his
opinion that dissociative amnesia exists for a clinically significant
minority of traumatized individuals, including children subjected to
sexual abuse. He also testified about the evolution of the use of
dissociative amnesia as a diagnosis in the DSM, which has been revised
several times. He opined that this diagnosis is generally accepted in
the field and cited six surveys of psychology professionals, including
psychiatrists, psychologists, social workers and clinicians working
with war veterans to that effect. According to those surveys (taken
collectively), eighty-nine per cent of those surveyed accepted the
validity or possible validity of dissociative amnesia.
Dr. Brown acknowledged that there is controversy surrounding the existence of
dissociative amnesia and the difficulty in
determining its existence in a particular individual. [FN17] He also
highlighted some of the problems with determining the existence of
dissociative amnesia, and agreed that a person with a suggestible
personality might be susceptible to false memories suggested by a
trusted source, and that an extremely suggestive process of
interviewing a subject could also create false memories.
Defense counsel cross-examined Dr. Brown for two days about the
problems affiliated with determining the existence of repressed memory;
the difficulties of corroborating the details of recovered memories;
the difficulty in making a precise diagnosis in accordance with the
DSM-IV; the uncertainty as to the cause or neurological or biological
mechanisms that lead to dissociative amnesia; and the likelihood that a
particularly suggestable person would develop false memories or
malinger. In that examination, defense counsel brought to the judge's
attention the contentions of the critics of repressed memory theory
based on the lack of a scientific method to test for it in individuals;
the absence of a controlled methodology; and the methodological
limitations of clinical observation and experience that depend so
greatly on patient self-reporting.
(ii) The judge's decision.
The judge denied the defendant's motion to exclude
expert testimony on dissociative amnesia and
recovered memory, concluding that the diagnosis and theories behind it
were generally accepted in the relevant scientific community. In doing
so, the judge recognized the significance of its listing as a diagnosis
in DSM-IV, and credited the testimony of Dr. Brown that "clinically
significant minorities of [victims of child sexual abuse] experience
amnesia," testimony that was buttressed by the studies cited to and
relied on by Dr. Brown which "reflect[ed] a broad-based acceptance of
dissociative amnesia and recovery." Contrary to the defendant's
arguments that controversy regarding the validity of a theory
necessarily precluded a determination that the theory is generally
accepted, the judge recognized the controversy, was fully aware of its
contours, and rejected it as being determinative in light of the other
evidence of acceptance. Lanigan, supra
at 27 ("Unanimity of opinion among the relevant scientists is not
essential even under the general acceptance test"). That other
evidence, the judge pointed out, included statements of both the
American Medical Association and the American Psychiatry Association,
that "memories of traumatic events can be forgotten but that
pseudomemory formation is also possible," in addition to the 1996 final
report of the American Psychological Association working group on the
investigation of memories of childhood abuse, which included points of
agreement among the group members (including Dr. Loftus) that (1) it is
possible for memories of abuse that have been forgotten for a long time
remembered, and (2) it is also possible to construct convincing pseudo memories for events that never occurred. [FN18]
The defendant argued below, and argues on appeal, that because there is
a lack of peer-reviewed literature regarding repressed memory, the
judge improperly concluded that the theory is generally accepted. We
defer to the findings of the judge with regard to the testimony of Dr.
Brown that was based, in part, on his review of eighty-five studies
focused on amnesia in childhood sexual abuse cases, which were
conducted in a variety of contexts, including surveys and clinical
evaluations, as constituting sufficient and reliable peer review for
the purposes of general acceptance. See Canavan's Case,
432 Mass. 304, 314 n. 6 (2000) ("A relevant scientific community must
be defined broadly enough to include a sufficiently broad sample of
scientists so that the possibility of disagreement exists").
The defendant's other arguments are equally unpersuasive. They
essentially echo the contention made by Dr. Loftus and other critics of
repressed memory theory that the theory is invalid because there does
not yet exist a scientific method using experimental design to test for
its existence in certain individuals nor are there known error rates or
standardization. [FN19] The judge, while well apprised of the
contention that studies of dissociative
amnesia are unreliable because of methodological
flaws, explicitly found that "the methodological criticisms ... by Dr.
Loftus [in her affidavit were] rebutted [by Dr. Brown in his
In sum, the judge's finding that the lack of scientific testing did not
make unreliable the theory that an individual may experience
dissociative amnesia was supported in the record, not only by expert
testimony but by a wide collection of clinical observations and a
survey of academic literature. See Canavan's Case, supra
at 313 ("Observation informed by experience is but one scientific technique that is no less susceptible to Lanigan
analysis than other types of scientific methodology"). There was no
abuse of discretion in the admission of expert testimony on the subject
of dissociative amnesia.
b. Ineffective assistance of counsel.
The defendant moved for a new trial pursuant to Mass. R.Crim. P. 30(b),
as appearing in 435 Mass. 1501 (2001), on the grounds that he was
denied the effective assistance of counsel both at the Lanigan
hearing and at trial. His claims relate to defense counsel's alleged
failure to challenge adequately the admissibility of the expert
testimony at the Lanigan
hearing, and his failure to defend effectively against it at trial.
Essentially, the defendant alleges that had counsel done better work in
either proceeding, the outcome would have been different. In
support of his motion for a new trial, the
defendant submitted three affidavits from experts, [FN20] and more than
fifty scholarly articles, surveys, and studies, some of which were peer
reviewed, [FN21] questioning the existence of repressed memory.
A trial judge "may grant a new trial at any time if it appears that
justice may not have been done." Mass. R.Crim. P. 30(b). The decision
to grant a motion for a new trial is within the sound discretion of the
motion judge who is entitled to "special deference" if he was also the
trial judge. Commonwealth v. Figueroa,
422 Mass. 72, 77 (1996).
In evaluating claims of ineffective assistance, the court engages in "a
discerning examination and appraisal of the specific circumstances of
the given case to see whether there has been serious incompetency,
inefficiency, or inattention of counsel--behavior of counsel falling
measurably below that which might be expected from an ordinary fallible
lawyer--and, if that is found, then, typically, whether it has likely
deprived the defendant of an other available, substantial ground of
defence." Commonwealth v. Saferian,
366 Mass. 89, 96 (1974). See Commonwealth v. Satterfield,
373 Mass. 109, 115 (1977) ("there ought to be some showing that better
work might have accomplished something material for the defense"). See
also Commonwealth v.
38 Mass.App.Ct. 714, 719-720 n. 6 (1995).
If a defendant challenges the "tactical or strategic decisions," of
trial counsel, he must establish them as "manifestly unreasonable." Commownealth v. Montanez,
410 Mass. 290, 295 (1991), quoting Commonwealth v. Adams,
374 Mass. 722, 728 (1978). We are cautious on review "to avoid
characterizing as unreasonable a defense that was merely unsuccessful."
Commonwealth v. White,
409 Mass. 266, 272 (1991).
With respect to the Lanigan
hearing, the defendant's claim that counsel was ineffective in his
challenge to the admissibility of expert testimony is largely belied by
the transcript of the hearing. Defense counsel cross-examined Dr. Brown
for nearly two full days and in doing so, thoroughly and precisely
illuminated for the judge the issues and the controversies surrounding
the scientific validity and acceptance of the theory of dissociative
amnesia and the reliability of recovered memory. His attack on the
proposed evidence was both sophisticated and knowledgeable, and
provided the judge with the information necessary to a full
understanding of the nuances of the debate about the subject. Defense
counsel also methodically challenged Dr. Brown by highlighting for the
judge any possible bias related to Brown's testimony in prior
litigation and his association with less credible authors
In addition, and in connection with the motion for a new trial, the
judge carefully reviewed all of the affidavits and the recent
scientific articles, surveys, and studies submitted by the defendant.
Those materials suggest that an increasing number of mental health
professionals have concluded not only that no empirical evidence
supports the theory of dissociative amnesia, but also that false
memories can occur as a result of a number of factors. After this
review, the judge reached several conclusions. First, that there was no
dispute at the Lanigan
hearing (or at trial) that in some individuals false memories can be
implanted, but the existence of such false memories "does not negate
the case for the existence of repressed memories." Second, that the
lack of unanimity in the scientific community regarding the theory of
dissociative amnesia does not rule out its admissibility (citing Lanigan, supra
at 26-27). Third, that there is ample evidence of the acceptance of the
diagnosis in its inclusion in the DSM-III-R and the DSM-IV, and in its
acceptance by the American Psychiatric Association and the American
Medical Association, as well as by a number of appellate and trial
Finally, the judge concluded that even had defense counsel produced (at the Lanigan
hearing) all of the evidence submitted with the motion for a new
trial, his decision to admit the evidence on the
basis of its general acceptance by the relevant scientific community
would not have changed. Consequently, the "better work" that the
defendant now claims his counsel should have done would not have
accomplished anything material, and the defendant was not deprived of a
substantial defense. After our own review of the record before the
judge, we agree that the defendant has not satisfied his burden of
demonstrating that his counsel provided ineffective assistance at the Lanigan
We reach the same conclusion with respect to defense counsel's
performance at trial. The defendant complains about his counsel's
decision to call Dr. Loftus as the sole defense witness to testify
about the unreliability of expert testimony on the subject of
disassociative amnesia. This, however, was only one prong of the
defense case which, importantly, focused both on the victim's possible
fabrication of the abuse for the purpose of personal benefit, and the
possibility that false memories of abuse had resulted from the process
of memory recovery.
Defense counsel elicited from Dr. Loftus not only testimony that
dissociative amnesia was not a theory accepted by a large segment of
the scientific community, and had never been scientifically proved, but
also (based on her
extensive experience and studies in the field of
memory) that there were a number of suggestive influences that
substantially increased the likelihood that a particular memory is
false--some of which were present in the facts of this case. [FN22]
That counsel might have offered even more evidence on these subjects
does not amount to ineffectiveness. Although the defendant argues that
Dr. Loftus's lack of clinical experience disadvantaged her during
cross-examination, her background as a research scientist buttressed
the defense theory that clinical observations provided insufficient
foundation for the reliability of repressed memory, and that the
implantation of false memories was a scientifically documented
More generally, defense counsel conducted a vigorous defense on all
fronts, which included a thorough cross-examination of the victim and
Dr. Chu, further exposing for the jury the potential problems with the
reliability of evidence based on memories recovered after dissociative
amnesia. [FN23] He highlighted for the jury the academic debate
involving the existence and manifestation of dissociative amnesia,
underscoring the fact that there is no demonstrable evidence to
corroborate that the phenomenon exists. He examined Dr. Chu about the
possibility that a person susceptible to suggestion could be implanted
with a false or pseudo memory, and Dr. Chu acknowledged there were
those in the field who believe that the more an individual has the
dissociate memories, the more he is likely to
develop pseudo memories. Defense counsel further undercut the relevance
of studies related to dissociative amnesia to this case by getting Dr.
Chu to admit that such studies provided no illumination as to the
question whether any particular individual might be affected by
dissociative amnesia. Dr. Chu also acknowledged that the self-reporting
aspects of the clinical setting provide limitations in answering the
question of whether there is demonstrable evidence that dissociative
Finally, defense counsel utilized the DSM-IV in questioning Dr. Chu,
focusing the testimony on the DSM-IV's cautionary language regarding
the use of DSM-IV in forensic settings where the patient has been
referred by an attorney, and in making a diagnosis of dissociative
amnesia where there is "currently no method for establishing with
certainty the accuracy of such retrieved memories in the absence of
In sum, this is not a case where "the record reveal[ed] that,
notwithstanding an over-all high quality of work at trial, defense
counsel's conduct or failure to act in a particular instance was so
serious a lapse as to enhance significantly the chance of a defendant's
conviction." Commonwealth v. DiGeronimo,
38 Mass.App.Ct. 714, 719-720 n. 6 (1995). Counsel pursued a
dynamic, multi-faceted trial strategy that did not
rely solely on challenging the admission of the expert testimony, but
also on exploring the factual deficiencies in the victim's version
[FN24] of events and by impeaching his credibility and his motivations.
[FN25] The trial judge's denial of the defendant's motion for a new
trial on the ground of ineffectiveness was not an abuse of discretion.
We cannot say that counsel's performance at trial with regard to the testimony about repressed memory was lacking, see Commonwealth v. Saferian,
366 Mass. 89, 96-97 (1974); or that counsel's strategic decision to
rely largely on cross-examination of witnesses was manifestly
unreasonable. See Commonwealth v. Montanez,
410 Mass. 290, 295 (1991). Finally, we are not persuaded that counsel
failed to pursue an otherwise available, substantial ground of defense
that might have accomplished something material for the defense. See,
e.g., Commonwealth v. Satterfield,
373 Mass. 109, 115 & n. 10 (1977). The defendant's principal
argument is not that his trial counsel failed to pursue a particular
defense, but that he failed to do so as effectively as he could have.
However, we evaluate counsel's performance not to determine whether in
hindsight he might have done things differently and perhaps more
effectively, but to determine whether he provided representation
commensurate with that of an "ordinary fallible lawyer." Commonwealth v.
at 96. He did so in this case. [FN26]
c. Closing argument and comments by the prosecutor; memory analogy.
The defendant argues that he suffered severe prejudice when, in
attempting to counteract a possible rejection by the jury of the theory
of repressed memory, the prosecutor equated that theory with ordinary
forgetting and remembering in her closing argument; and, in doing so,
misrepresented and mischaracterized the testimony of both Dr. Chu and
Dr. Loftus. The defendant further argues that if defense counsel knew
that the prosecutor would analogize the victim's repressed memory to
ordinary forgetting and remembering during her closing, he would have
called an expert to rebut this comparison. [FN27]
The Commonwealth responds that the theory of the case was not
exclusively limited to the validity of the theory of dissociative
amnesia because the victim was never actually diagnosed with that
disorder. Instead, the jury were entitled to reject the testimony
regarding dissociative amnesia, the purpose of which related to the
victim's credibility regarding the delay in reporting the sexual abuse,
and still find that the victim had remembered the sexual abuse in
reliable detail. The Commonwealth further argues that, at a minimum,
the state of the evidence changed with Dr. Loftus's testimony that,
notwithstanding her view that the underlying theory of dissociative
amnesia had not been
scientifically validated, it was nonetheless
plausible that a person could forget a traumatic event and then
remember it through the processes involved with ordinary memory. [FN28]
The defendant did not object to the prosecutor's closing on this ground
at trial. Therefore we review his claim to determine whether there was
error and, if so, whether it gave rise to a substantial risk of a
miscarriage of justice. Commonwealth v. Randolph,
438 Mass. 290, 297-298 (2002).
Prosecutors are required to limit their arguments to facts in evidence
and reasonable inferences that may be drawn from those facts. Commonwealth v. Beaudry,
445 Mass. 577, 580 (2005), quoting Commonwealth v. Coren,
437 Mass. 723, 730 (2002). A defendant's challenge to a specific part
of a closing argument is analyzed in "the context of the whole
argument, the evidence admitted at trial, and the judge's instructions
to the jury." Commonwealth v. Whitman,
453 Mass. 331, 343 (2009).
Here, the prosecutor's comments about the testimony of Drs. Chu [FN29]
and Loftus [FN30] with regard to "remembering" and "forgetting," were
not in error. There was testimony about forgetting and remembering
traumatic events aside from a diagnosis of dissociative amnesia, a fact
articulated by the judge prior to closing
argument. [FN31] The prosecutor's argument highlighted that testimony
and there was no error.
d. The "voluntary" appearance and testimony of the victim at trial.
The defendant argues that given the importance of the victim's
credibility to the prosecution of this case, the prosecutor improperly
buttressed his credibility throughout the trial by suggesting to the
jury that he appeared "voluntarily" and not by subpoena or as a result
of a contractual agreement related to the settlement of the civil suit.
This issue arose early in the trial when defense counsel objected to
the prosecutor's opening statement that, "[y]ou will learn ... that
[the victim] filed a civil lawsuit against the [Boston] Archdiocese,
[which] paid him $500,000 last May with no requirement that he testify
in this criminal trial." The prosecutor countered that the Commonwealth
should be entitled to respond because the defense was going to argue
that the victim was biased and motivated by the civil settlement. The
judge agreed to take the objection into consideration, but declined to
give an instruction addressing the civil case immediately after the
opening statements, stating that he would be willing to give an
instruction at the time the parties introduced evidence of the civil
The issue arose again before the direct examination of the victim.
Defense counsel objected that it would be improper for the prosecution
to suggest that victim's appearance in the case was somehow voluntary,
and argued that it would be unethical "for the Commonwealth to try to
suggest to the jury that this witness has anything to do with the
processing of this case notwithstanding whatever policies they may have
about forcing people to do or not do anything." The prosecutor again
countered that the Commonwealth had a right to rebut the defense's
suggestion that the victim was testifying because of the civil
settlement and that it was proper to elicit testimony that he was not
under subpoena and was under no obligation to appear to testify. The
judge agreed to give an instruction that the Commonwealth had exclusive
discretion in deciding which witnesses to call in attempting to prove
its case against the defendant beyond a reasonable doubt. Defense
counsel agreed to wait and see how the victim's testimony developed
before requesting such an instruction. The victim testified on direct
examination that payment of the civil settlement did not have any
conditions attached to it and that he did not appear at trial because
of a subpoena. The defense did not object to this testimony, did not
move to strike it from the record, and did not request the instruction
that the judge had proposed.
In his cross-examination of the victim, defense
counsel proceeded to question him extensively about the fact that he
had spoken with a lawyer about potentially joining a class action suit
against the Boston Archdiocese on February 11, the same day on which
that the victim alleged he recovered his memories of abuse.
Later, at the charge conference, defense counsel again sought to
preclude the Commonwealth from arguing that the victim's appearance was
voluntary and not compelled by subpoena or any agreement related to the
civil trial. The prosecutor countered that defense counsel's
cross-examination of the victim suggested that he was lying about
having been abused and that the civil lawsuit was the motivation for
his lies. The judge ruled that the Commonwealth could comment in its
argument about the victim's voluntarily appearing (as was established
by the evidence), but would not be permitted to appeal to sympathy or
"any improper use of that evidence." [FN32] The defendant's objection
In her closing, the prosecutor stated:
"[The victim] is a twenty-seven year old man. He's recently
married. He has a job that he loves.... He has half a million dollars
in his pocket. So
why, ladies and gentlemen, did he come in here and tell you what happened to him? Why? What does your common sense tell you?
"You saw him on that stand for almost 14 hours day after day, hour
after hour, he willed himself through that testimony. You saw it. What
does your common sense tell you?
"He came in here and he told you what happened because that man,
that defendant, that priest, raped him and molested him when he was a
little boy over and over again. The defendant would have you believe it
is all a lie. It's for the money; that people don't forget about things
that happen to them and then later remember them....
"Was it all a lie? Was it made up? Did [the victim] come in here
and just lie about it? Was it for the money? He has the money. He got
the money over nine months ago. No strings attached. What did he get
from coming in here? The opportunity to be on the stand? He sustained
long, painful questioning, and what did he get from it?
It's not about the money. Put that aside. Is it all a lie? ...
"And [an attorney] filed a civil lawsuit on
behalf of [the victim], and [the victim] got a half a million dollars.
True. But so what? It's all done, signed, sealed, delivered to the
bank. And it's done. No more words need to be said. That's over. And it
has been over for over eight months. That's what you know. That's what
you know about what happened."
Prior to addressing the jury, the judge suggested a limiting
instruction to the parties to address the victim's participation in the
civil suit. [FN33] Defense counsel asked that the judge refrain from
instructing the jury on that issue. Therefore, no limiting instruction
on the civil suit was given.
The defendant relies on Commonwealth v. Beaudry,
445 Mass. 577 (2005), for the proposition that the Commonwealth's
argument was improper. In that case, the prosecutor argued that the
child complainant was credible simply because she testified at trial
and that she did not have any motive to lie. Id.
at 586. Defense counsel objected to the argument and the judge gave a
limiting instruction to the jury, stating, "[T]he fact that a
complaining witness has come into court and testified before you does
not entitle that witness to any greater credibility.... [T]he mere fact
that somebody has come into court to testify does not mean that their
testimony is entitled to be believed by you because of the mere fact
that they showed up in court and testified." Id.
Here, the substance of the prosecutor's closing argument properly
touched on the victim's motivation in appearing to testify because it
was a primary issue in the case. Unlike in the Beaudry
case, the defense strategy was to assail the credibility of the victim
by suggesting that he had a motive to fabricate the allegations of
abuse, both because of the civil suit and because of a latent desire to
get out of the Air Force. Therefore, the prosecutor was warranted in
"mak[ing] a fair response to an attack on the credibility of a
government witness." Commonwealth v. Senior,
454 Mass. 12, 17 (2009), citing Commonwealth v. Chavis,
415 Mass. 703, 713 (1993). Commonwealth v. Smith,
450 Mass. 395, 408, cert. denied, 129 S.Ct. 202 (2008) (noting that
prosecutor's comment regarding government witnesses motives to lie "was
a legitimate attempt to defend the credibility of these two
witnesses"). There was no error.
e. Statute of limitations.
The two indictments charging indecent assault and battery, in violation
of G.L. c. 265, § 13B, were returned on June 20, 2002. The offenses
they allege last occurred on October 5, 1986. The relevant statute of
limitations provides that an indictment for such an offense must be
"found and filed within six years after such crime has been committed;
provided, however, that any period during which
the defendant is not usually and publicly a resident within the
commonwealth shall be excluded in determining the time limited." G.L.
c. 277, § 63, as amended through St.1996, c. 26. It further provides
that for the crimes charged here, "the period of limitation for
prosecution shall not commence until the victim has reached the age of
sixteen or the violation is reported to a law enforcement agency,
whichever occurs earlier." Id.,
as appearing in St.1987, c. 489.
It was stipulated at trial that the victim reached the age of sixteen
years of age on September 9, 1993. Consequently, the prosecution was
required to commence no later than September 9, 1999, unless the
defendant was not "usually and publicly a resident within the
commonwealth" for some period of time before September 9, 1999. The
parties also stipulated that the indictment was returned 1,015 days
beyond the six-year limitation date.
The statute of limitations defense was initially raised by the
defendant in a motion to dismiss. At a scheduled hearing on pretrial
motions, the prosecutor, defense counsel, and the judge agreed that,
while properly advanced in the motion to dismiss, the resolution
whether the indictments were timely brought raised a question for "a
finder of fact in the context of trial."
At trial, the prosecutor presented evidence from
which the jury could have found that the defendant resided outside of
Massachusetts for almost the entire period from 1990 (when he left St.
Jean's Church) until May, 2002, just before he was indicted. The
witnesses from whom the Commonwealth elicited this evidence were
cross-examined by defense counsel regarding the basis for their
testimony, establishing that they were relying largely on records and
not their own personal knowledge. In her closing, the prosecutor argued
that the Commonwealth had proved that the defendant was not usually and
publicly a resident in the Commonwealth for a sufficient period of time
to satisfy its burden of demonstrating that the indictments were timely
brought under the statute. The prosecutor also requested a specific
jury instruction on the statute of limitations, which the judge gave in
its entirety, and to which the defendant did not object.
The judge's instruction essentially told the jury that the statute of
limitations for the indecent assault and battery offense "would have
expired" on September 9, 1999, "unless the Commonwealth has proved
beyond a reasonable doubt that the defendant was not usually and
publicly a resident of the Commonwealth for at least 1,015 days between
October 5, 1986, the last date of the offenses, and June 20, 2002, the
date the indictments were returned in this case."
In his motion for a new trial, the defendant contended that this
instruction was error as it allowed the jury to consider the period
before the six-year statute began to run (October 5, 1986, through
September 9, 1993) in determining whether the Commonwealth met its
burden of proving that he was not usually and publicly a resident of
Massachusetts for those 1,015 days. In denying the motion for a new
trial, the judge declined to decide whether the instruction was an
incorrect statement of the law, and instead concluded that because the
defendant had not presented any evidence that he was in the
Commonwealth between September 9, 1993, and June 20, 2002, he was not,
in any event, entitled to an instruction on the statute of limitations.
[FN34] The judge reasoned that insofar as the defense of the statute of
limitations is an affirmative defense, see Commonwealth v. Steinberg,
404 Mass. 602, 606 (1989), the defendant had the burden of producing
evidence to support the defense at trial before the Commonwealth had
any burden of disproving it. Therefore, in the absence of his
production of any such evidence, the defendant was not entitled to an
instruction. Alternatively, the judge concluded that any "presumed"
error in his instruction did not create a substantial risk of a
miscarriage of justice because the result of the trial would not have
been different had the error not been made.
We first conclude that the instruction was error.
Whether the defendant resided in or outside of Massachusetts before the
statute of limitations began to run on September 9, 1993, is not
relevant to whether, once statutorily commenced, the six-year period
was thereafter tolled for any period of time by the defendant's
absence. [FN35] The instruction should have focused the jury's
attention only on the defendant's usual and public residence during the
period after September 9, 1993.
We next conclude that the statute of limitations defense was properly
raised, preserved, and sufficiently presented by the defendant in this
case. We have repeatedly referred to the statute of limitations defense
as an affirmative defense, Commonwealth v. Steinberg, supra
at 606, citing Couture
338 Mass. 31, 33 (1958), and have explained with respect generally to
affirmative defenses that where asserted, "the defendant takes on a
burden of production because the Commonwealth has no burden of
disproving an affirmative defense 'unless and until there is evidence
supporting such defense,' " Commonwealth v. Cabral,
443 Mass. 171, 179 (2005), quoting Model Penal Code § 1.12(1), (2)
(1985). "If the defense is 'affirmative,' once a defendant raises the
defense to a charge and the defense is supported by sufficient
evidence, the defendant is entitled to have a jury instruction on the
defense, and the Commonwealth has the burden of disproving the
We have never had occasion specifically to address what evidence the
defendant must adduce in order to be entitled to an instruction on a
statute of limitations defense. [FN37]
We need not decide what might be necessary in every case where a
challenge to the timeliness of an indictment is brought, but in this
case, where the Commonwealth was on full notice that the defense was
being raised, evidence that the victim's sixteenth birthday was more
than six years before the indictments were returned was sufficient
evidence of untimeliness to require the Commonwealth to prove that the
limitations period was properly tolled under the provisions of G.L. c.
277, § 63. The defendant was not otherwise required to offer evidence
that he was "usually and publicly a resident within the commonwealth,"
in order to raise and preserve the defense. Consequently, the defendant
was entitled to a proper instruction on the subject.
Finally, we agree with the judge that based on the evidence at trial,
the erroneous instruction (which was neither objected to nor pertained
to an element of the offense) did not give rise to a substantial risk
of a miscarriage of justice. The Commonwealth's evidence that the
defendant left the Commonwealth in 1990 and, but for a forty-three day
period in 1993, was not usually or publicly a resident of Massachusetts
until he returned in May, 2002,
was very strong. [FN38] It was so strong that
even though defense counsel had cross-examined the Commonwealth's
witnesses, he made no reference to the issue in closing argument. A
review of the evidence suggests that this failure was not a shortcoming
of counsel, but based on a realistic assessment of the state of the
evidence before the jury. Had the jury been properly instructed, we
have little doubt that the result would have been the same. Commonwealth v. LeFave,
430 Mass. 169, 174 (1999).
Order denying motion for a new trial affirmed.
FN1. The terms "repressed memory," "recovered memory," and
"dissociative amnesia" were used interchangeably throughout the
pretrial and trial proceedings and generally refer to the phenomenon of
completely forgetting and later recovering a memory.
FN2. Evidence regarding where the defendant resided after
1990 and up until his indictment in 2002 is relevant to the statute of
limitations defense and jury instructions, and is discussed in more
FN3. A pseudonym.
FN4. Captain Drozd talked to the victim and administered a
test to him. He also changed the victim's military status so that he
was temporarily disqualified from performing security duties and from
carrying a firearm.
FN5. Drozd described the journal to the victim as being "an
emotional barf bag" and directed the victim to record everything that
came into his mind.
FN6. Drozd had filled out a request for the victim to take
temporary leave. Tammy testified that the victim was very agitated
while he was home and would soak the sheets with sweat and curl up into
FN7. Because of the change in his status and his
disqualification from security work when the victim returned to
Colorado, he was employed in the visitors' center for civilian guests
to the military base. He tried to return to work, but had to leave
after a few hours because, he "couldn't be around people." The victim
continued to see Drozd and was taking the medications Celexa, Zoloft,
and Trazodone. He also developed "a stress rash" on his body for one or
two weeks. The victim never returned to work as an Air Force police
FN8. Dr. Chu is a licensed psychiatrist and the chief of
clinical services at McLean Hospital. His speciality is the diagnosis
and treatment of adults who have been seriously traumatized as
children, and he has treated patients suffering from such trauma for
nearly thirty years. He is certified by the American Board of
Psychiatry and Neurology and Adult Psychiatry, and is a distinguished
fellow within the American Psychiatric Association.
FN9. Dr. Chu testified that a particular diagnosis is
included in the DSM only after a "fairly rigorous process by which
interested groups of people" may convene a task force or engage in
field trials to test a new diagnosis of a specific syndrome. The
diagnoses in the manual are subject to revision and evolve over time.
The dissociative amnesia diagnosis first appeared as such in the third
edition of the DSM, DSM-III.
FN10. Dr. Chu gave examples of various triggers that he has
observed, including that childbirth may be a trigger for a woman who
was sexually abused as a child because the genital pain, fear, and
helplessness of childbirth are similar to sensations that the woman may
have experienced as a sexually abused child. Another example that he
gave was a mother who experiences a trigger when her own child reaches
the age at which she experienced abuse.
FN11. On cross-examination, Dr. Loftus acknowledged that it is more difficult to distort the central details of a memory.
FN12. The proponent of the evidence also has the burden of
establishing that the witness he intends to call is qualified as an
expert in the relevant area, a matter not at issue in this case. Mass.
G. Evidence § 702 and note at 207- 208 (2008-2009), and cases cited.
FN13. The judge must also determine whether the reasoning
or methodology can be applied to the facts in issue--that is, whether
there is a proper "fit" between the two.
FN14. The defendant also moved to suppress the trial
testimony of the victim based on the ground that recovered memory is
FN15. The judge correctly surmised that hearings held pursuant to Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994) (Lanigan
), may not always be required where qualified expert testimony of the
same type and offered for the same purpose has been accepted as
reliable in the past in Massachusetts appellate cases, see Commonwealth v. Frangipane, 433 Mass.
527, 538 (2001). However, we have not
"grandfathered" any particular theories or methods for all time,
especially in areas where knowledge is evolving, and new understandings
may be expected as more studies and tests are conducted. See Lanigan, supra at 26-27. In spite of what we said in Commonwealth v. Frangipane, supra,
the evolving nature of scientific and clinical studies of the brain and
memory and the controversy surrounding those studies made it prudent
for the judge to proceed with a Lanigan hearing in this case.
FN16. For fourteen years, Dr. Brown was responsible for the
annual course on the assessment and treatment of psychological trauma
at Harvard Medical School.
FN17. Dr. Brown also testified that much of the current
research and debate is centered on determining what neurological or
psychological processes or mechanisms cause dissociative amnesia. The
Commonwealth did not propose to offer expert testimony on the
neurological or psychological processes or mechanisms that might cause
FN18. Critics of repressed memory theory argue that it is
flawed because of the risk that so-called false memories can be created
where therapeutic or forensic intervention is suggestive. The judge was
well aware of this risk and its impact on the validity of the theory
and addressed this point in his
memorandum of decision, stating,
"[T]he Court rejects any suggestion that the relevant scientific
community generally accepts the notion that the fact that false
memories may be created in some individuals invalidates the conclusion
that dissociation and recovered memory occur in others. In any event,
whether one or the other is at work [in this case] is for the jury to
decide, with such aid as admissible expert opinion from both sides may
FN19. Dr. Loftus acknowledged that there are severe ethical
concerns in designing an experimental study to test the possibility of
false memory by implanting memories of abuse in human subjects.
FN20. The experts included Harrison G. Pope, Jr., a
practicing board certified psychiatrist and professor of psychiatry at
Harvard Medical School. Dr. Pope stated that one of his primary
teaching areas involved helping faculty and students to design
scientifically valid research studies and to evaluate the methodology
of other studies. He attached thirty examples of scientific
publications questioning the validity of the repressed memory
hypothesis to his affidavit. See note 28, infra.
The defendant also submitted an affidavit from Dr. Loftus in which she
stated that she provided very minimal assistance in the pretrial stage
and that her testimony at trial was limited by her experience to the
scientific study of memory, rather than its clinical counterpart. The
third expert was R. Christopher
Barden, who has both a doctorate in clinical child psychology and a law
degree. He identifies himself in his affidavit as a "national expert in
psychology and law." The substance of his affidavit criticized the
performance of the defendant's trial counsel and attempted to discredit
FN21. Taken collectively, the articles further illustrated
the controversy over repressed memory, that the theory was questionable
because it could not be tested with scientific methods; that there was
the possibility of false memories; that clinical techniques could lead
to the formation of false memories; and that there was uncertainty
about the neurological mechanism which caused repression.
FN22. Dr. Loftus explained she had designed experimental
situations to test for the presence of false memory by using sources of
suggestion such as leading questions, allowing a subject to overhear
someone else's recollection of an event, and media coverage of an
event. Here, there was evidence that the victim learned of the
allegations of abuse from media reports and from speaking to a
childhood friend who also claimed to have been abused.
FN23. For example, during cross-examination, Dr. Chu admitted that
determining whether abuse occurred to
particular individuals was at best, "reasonable speculations." He also
admitted, consistent with the defense theory that the abuse did not
happen, that determining the validity or accuracy of a memory is
perhaps a secondary concern in the clinical setting, where the
well-being of the patient takes priority over investigating the truth
of a memory; and that the victim here had significant incentive to
fabricate. Defense counsel also questioned Dr. Chu extensively about
the possibility that the victim was malingering or otherwise
exaggerating or fabricating the occurrence of abuse.
FN24. Defense counsel cross-examined nearly all of the
Commonwealth's "fact" witnesses about the layout of the church, the
bustling Sunday atmosphere at St. Jean's and the number of persons who
resided in the rectory during the relevant time period.
FN25. Both the financial settlement from the lawsuit and
the testimony from the expert witnesses that a person might malinger or
fabricate the appearance of dissociative amnesia to avoid military
service bore directly on the victim's credibility.
FN26. We also decline the defendant's invitation to grant a new trial on the
ground of "fundamental unfairness" in
light of what appellate counsel declares was the admission of
"demonstrably false" information about the acceptance of "repressed
memory" in the scientific community. This claim is based on the
affidavits and relevant published material submitted in support of the
motion for a new trial. Having reviewed that material, we are not
persuaded that the judge erred when he concluded that he would have
permitted the Commonwealth's expert to testify in any event on the
basis of the full record before him-- including the testimony at the Lanigan
hearing. Nor are we persuaded that the record in this case requires
that we second guess the judge or reach a different conclusion.
The defendant does not challenge on appeal the sufficiency
of the evidence. We do not consider whether there could be
circumstances where testimony based on the repressed or recovered
memory of a victim, standing alone, would not be sufficient as a matter
of law to support a conviction.
FN27. The defendant also argues that Dr. Chu improperly
used the term "forgetting" instead of "repression" in his testimony and
otherwise "with obfuscation" used the terms "forgetting" and
"remembering" at trial.
Specifically, Dr. Chu testified as to the following:
"There is ordinary forgetting. Sometimes people forget
pretty awful things just through normal forgetting. There seems to be
another kind of forgetting
that happens when somebody tries so
hard not to think about something for so long that eventually they
can't even remember it if they try to remember it. And then there seems
to be this other kind of, I would call more of a dissociative mechanism
where, especially with chronic traumatization ... that really leads to
people having really pervasive amnesia...."
FN28. On cross-examination, Dr. Loftus testified that she
wrote in a 1996 article that it was "possible for people to forget
about traumatic experiences and later remember them." She elaborated
that she would refer to that as "ordinary forgetting and remembering,
possibly triggered by a retrieval cue."
FN29. With regard to Dr. Chu, the prosecutor stated: "He
came here and told you, he told you about things that make sense: that
sometimes people forget about things that happen to them and then they
remember them later on."
FN30. With regard to Dr. Loftus, the prosecutor stated:
"Even Dr. Loftus, although she started out on her direct
saying that 'it is a very vitriolic debate; this cannot happen; there
cannot be such a thing as massive repression.' Within two minutes, when
I was asking her, she agreed with me, 'oh yeah, people can forget
traumatic experiences that happened to them, and they can later
remember them.' And what did she say? 'And if
something happens to you over and over again, you remember it even better.' "
The prosecutor later stated:
"But, ladies and gentlemen, think about it for a minute.
Hasn't it all happened to one of us: the walking down the street and
you bump into someone, or you are at a high school reunion, just like
Dr. Loftus said, and you see someone who you haven't seen in a long
time and you start talking. And all of a sudden you remember the time
that the two of you were out together and you ran out of gas and you
got stranded by the side of the road, and then you got into trouble
because you missed your curfew. Now, you hadn't thought about that 10,
12 years, but now you remember. Does it make it any less real that you
hadn't thought about it? Does it mean that it never happened? No. Use
your common sense."
FN31. Defense counsel requested a jury instruction that the
Commonwealth had to prove the existence of repressed memory in order
for the jury to find the defendant guilty because if the phenomenon
exists, the victim's testimony was truthful, but if not, then the
victim must have been fabricating the abuse. In declining to include
the requested instruction, the judge noted that in addition to the
mutually inconsistent theories related to repressed memory suggested by
the defendant, there existed a third basis for the jury's decision,
namely, "[M]emories of childhood sexual abuse may be forgotten and
remembered without being repressed. So
that seems to me an alternate theory that the Commonwealth can argue
from the evidence." The defendant did not object to the judge's ruling.
FN32. The prosecutor never used the term "voluntary" or
"voluntarily" in her opening statement, in her cross-examination of the
victim, or in her closing. Nor did she mention in her closing that the
defendant had not been subpoenaed.
FN33. The instruction was: "I instruct you that neither the
civil case nor the settlement of that case has any bearing on the
prosecution of this criminal matter."
FN34. The judge apparently did not remember a stipulation
admitted in evidence, that the defendant was in Massachusetts for
forty-three days between October 16 and December 30, 1993.
FN35. Although it is not explicitly referred to in G.L. c.
277, § 63, as a "tolling" provision, we have consistently referred to
it as such. See, e.g., Couture v. Commonwealth, 338 Mass. 31, 32 n. 1 (1958) (noting that it was not necessary for Commonwealth to plead "the exception tolling the statute").
FN36. While we have referred to a
statute of limitations defense as an "affirmative defense," it differs
from what we ordinarily understand to be a defining characteristic of
such defenses, that is, that they involve, "a matter of ... justification
peculiarly within the knowledge of the defendant on which he can fairly
be required to adduce supporting evidence" (emphasis added). Commonwealth v. Cabral,
443 Mass. 171, 181 (2005), quoting Model Penal Code § 1.12(3)(c). The
defendant here is not seeking to excuse or justify his actions by
claiming some type of lawful authority. Cf., e.g., id.
at 172 (defendant claimed he was agent of a surety and therefore had
lawful authority to detain person who defaulted on bail); Commonwealth v. Vives,
447 Mass. 537 (2006) (defendant's claim of right to property in armed
robbery case). Rather, it is the Commonwealth that contends that it is
justified in bringing the indictments beyond the six-year statute of
limitations because the defendant was absent from the Commonwealth.
FN37. The parties to not contest, that once properly
raised, the Commonwealth has the burden of proving beyond a reasonable
doubt that the indictments have been timely brought.
FN38. The Commonwealth introduced testimony from the keeper
of records for the Boston Archdiocese, who testified that there was a
change of address form
dated February 14, 1990, for the
defendant, listing a new address in Palm Springs, California. He also
testified that there was another change of address form in the file
dated March 6, 1995, with a new address in New York City. Another
clergy member who worked in the Archdiocese's administrative offices
testified that he had written a memorandum in January, 1990,
referencing the defendant's move to California, and that the office
also had several different addresses, all in California, for the
defendant during the time from 1990 to late 1994. A third member of the
clergy testified that he corresponded with the defendant during late
1995 and early 1996 at a New York City address. A fourth member of the
clergy testified to corresponding with the defendant at a New York City
address throughout 1997 and then writing a memorandum referencing the
defendant's arrival in San Diego, California. He also testified that he
wrote letters to the defendant in San Diego on July 13, 1998, and March
In addition, the Commonwealth introduced copies of the
defendant's New York resident tax returns from 1995 and 1998, and his
resident income tax returns from San Diego, California, for 1997. The
Commonwealth also introduced a stipulation based on California
Department of Motor Vehicle records that the defendant listed San Diego
as his address as of January 24, 2002. The parties further stipulated
that the defendant returned to Massachusetts from California on May 6,
2002, and, on arrival, commented about the changes in the city since
he had last been there.
END OF DOCUMENT