I, having been duly sworn upon oath and under penalty of perjury, depose and state the following as true and accurate.
I. I have prepared this affidavit at the request of Mr. _______, Esq., attorney for ________, in_______ County, Wisconsin, Case _________. I have been given a brief description of the issues by Mr. ________. He has supplied me with transcripts and his entire discovery file. It is his intent to file a motion for an adverse psychological evaluation of the woman involved in the allegation of rape.
II. Updated bibliographic information added as basis for expertrise and opinions.)
III. I have regularly conducted psychological evaluations of persons accused of sexual offenses. Many of these have been of men accused and/or convicted of sexual offenses. I have also regularly provided treatment for persons convicted of sexual offenses and for victims of sexual abuse. I have provided an IPT treatment program for sex offenders since 1974. We have recently published a review article on the research relating to treatment programs for perpetrators of sexual abuse (Wakefield & Underwager, 1991).
I have also evaluated many children where there is an accusation of child sexual abuse. This has been ordered by courts in Minnesota, Montana, Louisiana, New York, California, North Dakota, South Dakota, Connecticut, Indiana, Illinois, Wisconsin, Ohio, Delaware, Florida, Hawaii, Arkansas, Washington, West Virginia, Iowa, Oklahoma, Mississippi and the military justice system. We have provided consultation, information, and expert testimony services in over 500 cases of sexual abuse allegations.
The Minnesota Appellate Court has upheld the discretion and appropriateness of the trial judge's order that Dr. Underwager conduct a psychological evaluation of two alleged victims where there is an accusation of sexual abuse. The Montana Supreme Court has ruled that it proper for the trial judge to order a psychological evaluation by Dr. Underwager in a case involving an accusation of sexual abuse. When the prosecution refused to permit the evaluation, the sanction of dismissal of charges was imposed. The Ohio Supreme Court has ruled in a case citing our book as an authoritative source of information. The most recent court ordered evaluation of an alleged victim in a criminal case alleging sexual abuse was in Eau Claire, WI.
IV. I have discussed the recent accusations against the client, Mr. ______, with the attorney who described the situation and requested our assistance as experts. Based upon knowledge, training, and experience, I conclude it is essential to the the ability of the defendant to pursue an adequate defense and for the alleged victim to be effectively cross examined that there be an adverse medical psychological examination ordered by the court.
V. A central factor in providing testimony in a court of law relating to legally relevant behavior is the nature and role of human memory, and, specifically, in this instant case, the memory capacity and functioning of the alleged victim. It is also likely that the process of investigation, interrogation, and discussing the allegations may affect the capacity for personal knowledge and recall of prior events. Repeated questioning and repeated telling of an account can readily result in the reconstruction of a memory that may be subjectively real but is not accurate. For a summary of the research on human memory and the scientific data on memory and the impact of suggestion and misinformation, see our book, Accusations of Child Sexual Abuse (1988). A further treatment of the malleability of memory is found in Lindsay (1990), Loftus, (1989a, b). Most recently Loftus has explained the processes of memory (1991). The most recent review article, Ceci & Bruck (1993), demonstrates that it is generally accepted in the scientific community that the role of memory, suggestibility, and the interaction with social influence is crucial in weighing evidence. Further references may be provided if requested.
A psychological evaluation of the complaining witness can provide scientific data and evaluative information to the court to aid in the determination of the nature and source of a memory and the potential for cross examination to produce truthful information. There is significant scientific research giving information on evaluation of eye witness statements to discriminate between a reconstructed or suggested memory and a memory for a real event (Schooler, Gerhard, & Loftus, 1986; Loftus, Korf, & Schooler, 1989).
A psychological evaluation can also provide information to the finder of fact to assist in weighing the evidence. Research data shows this scientific information is not known to the general public, not understood by the general public, and is available to the finder of fact only through expert witness. The research evidence has become both more clear and more persuasive to support the summary statement that eye witness testimony is much more unreliable than the general and professional public understands. Further references will be supplied upon request
VI. An adverse medical psychological examination of the alleged victim done by a psychologist knowledgeable about the research evidence referred to above and skilled and experienced in dealing with interrogations and possible malingering can provide information in both the area of the defendant's capacity to have an adequate defense and the issue of the state of mind of the participants in the alleged event. To the extent that the issue of consent versus coercion is involved in the legal distinctions and definitions, an adverse psychological evaluation is necessary for the defendant to be able to have the best and most reliable information on the pertinent states of mind in order to defend himself. Expert assistance at this level meets the description of an expert available to assist in the defense required by the U. S. Supreme Court in Ake v Oklahoma (1984).
VII. In order to do the fullest and most complete evaluation and thus be able to offer information not known to the general public to the finder of fact, it is necessary that all records for the complaining witness relating to any prior psychological testing (including all raw data upon which any test interpretation is based), psychiatric or psychological treatments, and all medical records be made available for review and incorporation into the body of data available to the evaluators. All progress or process notes, reports, and letters relating to any assessment and/or therapy sessions with the complaining witness by any mental health professional, diagnostic statements (including but not limited to those provided to insurance companies to obtain payment), intake evaluations, discharge summaries, and any data from test or assessment procedures used with the child are also necessary for review. Records and any documentation, including dates, place, number of people,and duration, from all contacts during the course of the investigation and the interim period, between any adult acting in an official capacity and the alleged victim, including but not limited to law enforcement, social work, court services, are necessary for review and incorporation into the body of data available.
VIII. A competent psychological evaluation of a complaining witness is necessary in order to determine the individual developmental level and stable, enduring personality characteristics of the alleged victim and the impact of that level of capacity on the allegations and competency of the complaining witness. Personality characteristics affect behavior and perception. Personality is a cluster of behaviors or traits that appear across situations and manifest themselves in a variety of circumstances. A given individual will react across situations with the same pattern of behavior. The knowledge about personality in the science of psychology is clear and convincing and has acceptable predictive power. An assessment of the personality characteristics of the complaining witness may aid materially in the presentation of an adequate and full defense.
IX. According to FBI statistics, rape is the most frequent falsely reported crime (Dershowitz, 1992). Mental health professionals, who are experts in dealing with rape, report in a Washington Post survey that the reasons for this are primarily psychological in nature and reflect personality variables and levels of personal pathology (Dershowitz, 1992). A recent research study found in two samples between 41% to 50% of allegations of rape are false (Kanin, 1994). Other research studies also indicate personality variables are associated with causes of false reports of rape (Maclean, undated; McDowell, & Hibler, 1987). A psychological evaluation can materially assist the defense in providing information to the finder of fact that assists in weighing the evidence presented (Sanders, 1980).
I declare the foregoing is true and correct.
Further your affiant saith not.
Executed this 30th day of December, in Northfield, Minnesota.
Ralph Underwager, Ph.D.
Subscribed and sworn to before me by Ralph C. Underwager on this ____ day of __________, 19___, to certify which witness my hand and seal of office.
Ake v. Oklahoma. (1984). No. 83-5424. Certiorari to the court of criminal appeals of Oklahoma. Indigent charged with murder.
Ceci, S. J., & Bruck, M. (1993). The suggestibility of the child witness: A historical review and synthesis. Psychological Bulletin, 113(3), 403-439.
Dershowitz, A. M. (1992, November). Justice. Penthouse, p. 24.
Kanin, E. J. (1994). False rape allegations. Archives of Sexual Behavior, 23(1), 81­p;92.
Lindsay, D.S. (1990). Misleading suggestions can impair eyewitnesses' ability to remember event details. Journal of Experimental Psychology: Learning, Memory, and Cognition, 16(6), 1077-1083.
Loftus, E. F., Korf, N. L., & Schooler, J. W. (1989a). Misguided memories: Sincere distortions of reality. In J. C. Yuille (Ed.), Credibility Assessment (pp. 155-173). Dordrecht: Kluwer Academic Publishers.
Loftus, E. F., & Christianson, S. (1989b). Malleability of memory for emotional events. In T. Archer & L. G. Nilsson (Eds.), Aversion, avoidance, and anxiety: Perspectives on aversively motivated behavior (pp. 311­p;322). Hillsdale, NJ: Erlbaum Associates.
Loftus, E., & Ketcham, K. (1991). Witness for the defense: The accused, the eyewitness, and the expert who puts memory on trial. New York: St. Martin's Press.
Maclean, N. M. (undated). Rape and False Accusations of Rape. Journal of the Association of Police Surgeons, Great Britain, 15, 29­p;40.
McDowell, C. P., & Hibler, N. (1987). False Allegations. In R. Hazelwood, & A Burgess (Eds.), Practical aspects of rape investigation. New York: Elsevier.
Sanders, W. (Ed.).(1980). Construction truth and lies in rape investigations. In Rape and Women's Identity (pp. 113-124). Beverly Hills: Sage.
Underwager, R. , & Wakefield, H. (1990). The real world of child interrogations. Springfield, IL: C. C. Thomas.
Wakefield, H., & Underwager, R. (1988). Accusations of Child Sexual Abuse. Springfield, IL: CC Thomas.
Wakefield, H., & Underwager, R. (1991). Sex offender treatment. Issues In Child Abuse Accusations, 3(1), 7-13.