CERTIFICATION OF RICHARD OFSHE, PH.D.

Richard Ofshe, being of full age, hereby deposes and states the following:

1. My name is Richard Ofshe. I am a professor in the Department of Sociology at the University of California at Berkeley. I received my Ph.D. in 1968 from Stanford University. I began teaching at U.C. Berkeley in 1967.

2. I have received several honors during my professional career including sharing in the award of a Pulitzer Prize for Public Service in 1979 to the Point Reyes Light Newspaper, and the Roy Dorcus Award, given by the Society for Clinical and Experimental Hypnosis, for the Best Paper on Clinical Hypnosis of 1994. This paper was entitled, "Recovered Memory Therapy and Robust Repression: Influence and Pseudomemories."

3. I have served as consultant to a number of law enforcement agencies including, inter alia, the Office of the Attorney General for the States of California and Arizona; the U.S. Attorney’s Offices in Los Angeles and West Virginia; the U.S. Department of Justice; the Internal Revenue Service; the Office of the Governor of Missouri; and the Commissioner’s Office of the Department of Social and Rehabilitation Services for the State of Vermont.

4. As my attached curriculum vita indicates, I have published numerous articles over the course of my professional career. (Please see Ofshe, Exhibit 1.)

5. A central focus of my research and writing in recent years has been in the area of the misuse of influence procedures and the creation of pseudo-memories by psycho-therapists. In 1994, Ethan Watters and I published a book entitled, Making Monsters: False Memories, Psychotherapy and Sexual Hysteria, Scribners, 1994 (reissued by the University of California Press in 1996).

6. Among other things, Making Monsters addresses issues surrounding the creation of false memories, particularly where those memories are generated during the course of therapy or interrogation where the person "recalling" the information has been placed in a dissociative state. Such a dissociative state may result from the person having been formally hypnotized, from the person inadvertently having been hypnotized, from self-inducing trance, from the use of drugs, or other techniques.

7. Making Monsters, and much of my other writing in recent years, also describes and documents the widespread reliance by psychotherapists, particularly during the 1980’s through the mid-1990’s, on a theory known of traumatic repression. This theory posits the belief that people subjected to sexual abuse during their childhoods or adolescence will frequently: 1) automatically repress memories of the trauma because their conscious minds cannot deal with the trauma; 2) have full amnesia of the traumatic experience(s); but 3) nevertheless, retain the memory of their abuse in their unconscious minds, fully intact; and 4) these memories can be recovered (or will emerge) from the unconscious in full detail with no distortion. I and others have demonstrated that these theories are wholly unsubstantiated. This, too, is addressed in Making Monsters and other publications of mine.

8. I discuss in the book and elsewhere the very dangerous consequences of repressed memory theory, that psychotherapists – if they are possessed with a predisposition to uncover memories of abuse – can unintentionally spark and then build false beliefs in a patient’s mind. The techniques of influence employed in this context are not generally intended simply to force the patient to agree with the therapist’s conclusions, as would be the case with interrogators threatening and berating a suspect in an attempt to force a confession. Rather, the techniques are persuasive ones which result in the patient internalizing the belief that abuse occurred. If used improperly, hypnosis, to choose a prominent example, whether employed purposefully or inadvertently, can effectively induce a patient vividly to imagine the events of abuse that the therapist presumes to have happened.

9. Through the therapy process, patients come to believe essentially, that they have two sets of memories of the time period in question – one maintained in normal memory, and another, recorded in their subconscious minds, during which they were involved in repeated and horrific acts of sexual abuse. Patients arrive at this belief because their therapists demand such belief and accuse them of being in denial if they fail to adopt it. For some patients, the gap between pretherapy memories and posttherapy memories is not a difficult one to leap. The newly uncovered "memories" may augment pretherapy memories of a time period that was indeed dismal and contained other abusive elements. For other patients, the beliefs created in therapy may darkly contrast with pretherapy memories of a warm and cherished period of their lives.

10. Faced with choosing between their memories before and after the influence of therapy, therapists often encourage patients to redefine their histories based on the new pseudomemories. They must first admit that their normal memories were essentially fantasies – a trick their minds employed to shield them from the awful truth. In this way, the therapy not only builds new memories but discredits the pretherapy recollections.

11. Perhaps most disturbingly, recovered memory therapists often train their patients to "re-experience" the emotional pain of rape, sexual abuse and other horrors that they "discover" in therapy. Believing it therapeutic, therapists encourage abreactions – where the patient, often in hypnotic trance, "relives" the imagined abuses. Patients are persuaded to literally feel the pain of rape and torture and humiliation of unspeakable degradation. The power of the therapists’ suggestions is so great that some patients can develop observable physiological reactions such as welts or rashes. Certainly, "reliving" the imagined abuses, complete with attaching to these scenes physical and emotional sensations the patient imagines he or she would be feeling, helps to concretize the experience and make the patient more likely to believe in its historical validity.

12. Because of my expertise in false memories and repressed memory theory, I was contacted by counsel for Francisco Fuster-Escalona (hereafter "Mr. Fuster) and asked to provide my expert opinion as to the validity of Mr. Fuster’s claim that the trial testimony given by his former wife and co-defendant, Ileana Fuster (hereafter "Ileana"), was unreliable because of the way her accounts of events emerged during counseling instituted by her attorney in the weeks just before their joint trial was about to begin.

13. I understand that a concern raised by the state court in an earlier proceeding in this case is that my expert testimony would have involved me offering opinions regarding Ileana’s credibility. This reflects a very basic misunderstanding of the testimony I would give. My testimony would involve the effects of the influence procedures brought to bear on Ileana by the therapists who were sent in to see her. That testimony would, in turn, be based upon our scientific understanding of such procedures. Thus, my testimony would be directed to the likelihood that the reports Ileana provided were hypnotically generated fantasies versus actual memories of events she experienced. I would not be speaking to Ileana’s credibility if for no other reason than I have no reason to doubt she accurately reported at trial the visualizations she experienced. Rather, I would be offering testimony related to explaining whether it was more likely that those visualizations were caused by suggestion under hypnosis or, instead, were more likely based on having actually experienced the events described - the visualizations being based on actual memories. In other words, I would not be commenting on Ileana’s credibility; I would be commenting only on the reliability of her testimony.

Summary of My Conclusions and the Documents Upon which I Base Them

14. Counsel has provided me with a number of documents associated with Mr. Fuster’s case, including: April 26, 1985 letter to Jeffrey Samek and Michael Von Zamft from the Office of the State Attorney; July 10, 1985 memo from John Hogan to Janet Reno re: an examination of Ileana Fuster by Dr. Charles Mutter; Affidavit of Herb Smith, filed July 29, 1985; July 30, 1985 letter from Norman Reichenberg, Ph.D. to Judge Robert H. Newman; July 31, 1985 letter from Sanford Jacobson, M.D. to Judge Robert H. Newman; July 31, 1985 deposition of Norman Reichenberg, Ph.D.; August 1, 1985 deposition of Shirley Jean Blando; August 3, 1985 letter from Psychological Associates of Miami to Judge Robert H. Newman; August 5, 1985 memo from Dan Casey (state prosecutor) to file; August 21, 1985 Letter to John Hogan re: results of polygraph examination administered to Ileana Fuster; August 22, 1985 letter to file from Dan Casey; August 23, 1985 Text of Ileana Fuster’s guilty plea; September 11, 1985, Ileana Fuster’s deposition in Case No. 84-19728A; September 12, 1985, continuation of same; September 18, 1985, continuation of same; September 30, 1985 transcript of Ileana Fuster’s trial testimony in Case No. 84-19728A; April 12, 1988 deposition transcript of Ileana Fuster in Leninger et al. v. Fuster, Case no. 86-35443 (31); July 25, 1988 deposition of Ileana Fuster taken in Uss v. Fuster, Case no. 87-43248 CA 17; July 25, 1988 deposition of Ileana Fuster taken in Popham v. Fuster, Case No. 87-43247 CA 21; January 13, 1989 deposition of Ileana Fuster taken in Popham v. Fuster, Case no. 86-43247 CA 21: October 15, 1994 Sworn Statement of Ileana Flores taken in Florida v. Fuster, 84-19728; March 18, 1995 Letter from Ileana Flores, witnessed by Tommy Watson; May 9, 1995 deposition of Reverend Tommy Watson, taken in Florida v. Fuster, 84-19728A; and the billing records dated August 26 and September 24, 1985 of the Behavior Changers, signed by Drs. Michael E. Rappaport and Merry Sue Haber.

15. Counsel has also explained to me in general terms that Francisco and Ileana Fuster were married, that Ileana operated an in-home day care center, that they were both accused of having committed a number of acts of sexual abuse against the children under Ileana’s care, that both steadfastly maintained their own and each other’s innocence in the year’s time leading from their arrest to their trials, and that, on the eve of trial, Ileana Fuster suddenly pled guilty and subsequently testified against Mr. Fuster, claiming that she had seen him commit multiple acts of sexual abuse and that he had forced her to participate in these events.

16. I have no independent basis for endorsing the accuracy or truthfulness of any of the documents I have reviewed. I, therefore, address the question put to me by counsel as a hypothetical, to provide my opinion based on the assumption that the documents are both authentic, accurate and not purposeful attempts by anyone involved to misrepresent historical truth. (I recognize that the historical accuracy of Ileana Fuster’s Sworn Statement to Arthur Cohen, provided in October, 1994, must present the source of greatest concern to any court addressing these matters. I, therefore, devote time towards the end of this affidavit to a discussion of materials I have seen that corroborate Ileana’s statement and materials I would want to see – namely, recordings of sessions with the Behavior Changers, notes taken by the Behavior Changers contemporaneous with their providing therapy to Ileana, or depositions taken now in which they describe their course of therapy with Ileana – before I would be able to render an opinion that I did not consider to be hypothetical.)

17. With this caveat and based upon all the materials I have reviewed, it is my opinion to a reasonable degree of scientific certainty, that Ileana Fuster was hypnotized repeatedly prior to trial; that Ileana has personality characteristics – as adjudged by mental health professionals who evaluated her in 1985 – that indicate a high level of suggestibility coupled with a great desire to please; that the testimony she eventually gave against her husband is likely to have included a great many elements that were suggested to her by therapists in the weeks leading up to trial; and that, as a result, her trial testimony cannot be considered reliable, factual or as historical truth.

18. In order to explain the bases for my opinion, I first recount the essence of Ileana Fuster’s sworn statement, given in Tegucigalpa, Honduras on October 15, 1994, in which she describes the psychotherapy treatment she received during the eight weeks leading up to her trial testimony. See Ofshe, Exhibit 2. (Let me note at the outset that I am aware she retracted this statement some five months later and address this factor herein, as well.) After recounting Ileana’s 1994 statement, I explain how her description of events relates to our knowledge of memory and the creation of pseudo-memory. I also explain the ways in which her therapists, in referring to Ileana having blacked out certain memories, engaged in the same fallacies as other repressed memory therapists I have studied.

19. According to her statement, Ileana was arrested on August 24, 1984 and from then until the time of trial remained mostly in solitary confinement in a small room by herself with only a bed, a sink, a toilet and a door. (10-15-94, 5-8). She notes that she remembers very little of that time period at least in part because she was being given medication to help her sleep. (Id., 8-9).

20. Ileana notes that her lawyer, Michael Von Zamft, would often ask her what had happened, referring to the crimes with which she was charged, and that she would tell him that she was innocent. His response to her was that she "needed to remember something" or "must have something to say." He then expressed the opinion that she had problems and should be seen by a psychologist. (Id., 10-11).

21. Towards the end of the summer, two psychologists began meeting with Ileana. They, too, told Ileana that she was having problems and diagnosed her as having a "blackout" of events. (Id., 11) Ileana said that the psychologists started coming almost every day and then started seeing her at night. She recalled being awakened at times and taken out of her cell because the psychologists were there. (Id., 11-12)

22. At first, the psychologists talked to Ileana about her memories of her childhood, her school and her friends. Gradually, they led into discussions about Mr. Fuster, which involved bad experiences for Ileana, though none involving any of the children in Ileana’s care. (Id., 12)

23. At some point, the psychologists began asking Ileana about "Country Walk" (as I understand it, the name this case was called in the popular press), and Ileana told them she had nothing to say. Ileana testified, "[T]hey told me that there must be something because the kids were saying this story and that story and that story and, you know. And I kept denying it to them because I had no memory. I couldn’t recall none of those stories. And I couldn’t recall nothing like that happening." (Id., 14). Ileana said that she continued to tell them that she was innocent but that they wouldn’t listen. "And they said that I was suffering from a blackout, and that those things had happened because the kids said it, and the kids don’t lie. And they said it happened, so it must have happened." (Id.)

24. These psychologists, according to Ileana, told her not just that the children had made accusations against her and Mr. Fuster but told her the details of these accusations as well. They would repeat the same things over and over to her. (Id., 15, 31-32) Ileana believed that the psychologists were getting the information about what the children were saying from either the state or her attorney, Mr. Von Zamft. (Id., 33) Eventually, Ileana began having bad dreams which the psychologists made her repeat to them in detail. They would then tell her that she was remembering. She would tell them it could not be that she was remembering because she still had no memory, just bad dreams. The psychologists insisted, however, that this was Ileana’s way of remembering. (Id., 32).

25. When embarking upon these sessions, the psychologists would tell Ileana that she had to "feel clear, I had to clear my mind about anything else that was happening. I had to forget I was in jail, and I had to think that I was back in the house . . . they would tell me just, you know, close your eyes and think you are walking into the room. And I had to give them details of the room first, where the bed was, where the lamps were, whatever I could remember. And then I have to visualize the events, what the kids were saying, and visualize my dreams. And I had to tell them, you know, if it was something in the kitchen, I had to think about the kitchen, how the kitchen was. And I have to picture myself in there." (Id., 33-34) They would repeat the same procedure with each of the rooms in the house. The psychologists would also stress to Ileana that she had to help the children and that the only way to help them was by remembering and "backing their word up." (Id., 34-35)

26. On those occasions when Ileana would come to a session and say that she had no memories, Dr. Rappaport would express anger at her, standing above her, gesturing with his hands, asking if she wanted to spend the rest of her life in jail and if she wanted this to happen to other children. Sometimes Rappaport would laugh at her and tell her what would happen to her if she did not remember. (Id., 56-57) The psychologists would then read to her notes from what the children were telling police investigators and tell her that it was then time for her to go and rest. They’d again instruct her to think very hard and try to remember before going to bed, to clear her head and then rest. Ileana was told to close her eyes and think of standing in front of the house at Country Walk. She was then supposed to walk towards the house, towards the front door, open the front door and see what was happening. Ileana apparently followed these instructions. (Id., 35, 57-58). In response to her ongoing questions as to why she still had no waking memories of these events happening, the psychologists continued to tell her that her mind was defending her from the memories by blacking these memories out. (Id, 36)

27. According to Ileana, these sessions with Drs. Rappaport and Haber did not end when she pled guilty. They continued to meet with her to prepare her before and during her deposition, which occurred on three different days, and after her deposition, to prepare her for her trial testimony. (Id. 51-52) Ileana said that the doctors continued during that time period to talk about her nightmares and the things the children had said because Ileana "needed to match everything the kids said" (Id., 47) and because the trial was getting near and she had not given the state enough information. (Id.). In the final sessions with the Behavior Changers before she testified against Mr. Fuster, the doctors repeated the same things to Ileana, according to her statement, because, as they told her, they did not want her to make any mistakes. (Id. 59)

28. When given the opportunity to provide her thoughts at the end of this October, 1994 statement, Ileana says, ". . . I want to know the truth. But the truth of it is that none of these things happened because there’s no way that I cannot remember. How come I remember what I was six years old and how come I remember my school? I even remember the bad times I had with Frank. [She had earlier recalled that she was very frightened of him because he yelled at her and beat her.] And I don’t remember anything with the kids. . . . And the only things I remember is what I briefly told you, you know, is the time in jail. That’s what’s been traumatic to me. The times in jail were awful. . . .I have no peace at all. I remembered that -- the lights, the coldness, the people banging on the doors, you know. And then the doctors, they were there day and night. They were there on the weekend. And I didn’t rest until I said whatever I had to say, you know, whatever would help the kids in court, because otherwise he was going to get out and he was going to get me." (Id., 60)

29. Ileana describes techniques that were used on her during her sessions with Drs. Rappaport and Haber which amounted to hypnotic induction, even if the formal term, hypnosis, was never used with her. Relaxation techniques and formal hypnotic induction are virtually interchangeable. Thus, therapists can unwittingly induce hypnotic states in their clients with little or no awareness that they have done so.

30. In order to understand this, it is first necessary to address what hypnosis is. While those who study the topic do not fully agree that hypnosis exists as a definable and separate state of consciousness, hypnosis can best be described as a state of focused attention on a specific set of mental images and thoughts with an accompanying restricted awareness of one’s surroundings. Trance can be compared to the sensation of being so fully absorbed in the images from reading a novel that one loses track of time, tunes out surrounding sounds, and concentrates exclusively on the scene being created in one’s imagination. The difference in a trance is that the images and sensations imagined are not taken from a book but from one’s own mind and the suggestions of the hypnotist. Most researchers note that hypnosis allows the patient to set aside critical judgment, become more willing to accept suggestion and engage unselfconsciously in fantasy and role playing.

31. Ileana talks in her 1994 statement of being led through, and taught, techniques designed to create just such a trance state. She describes being told: to close her eyes; to clear her mind of all other thoughts; to focus her attention on the image of her house in Country Walk; to imagine herself walking in through the door and picturing specific events (described to her by her therapists) taking place in the house. Ileana did this not only in the presence and under the direction of the therapists but was also instructed to do this as she was going to sleep, back in her own cell. (In addition to be told to relax while she was doing this, documents indicate that Ileana was also being medicated regularly with Elavil, 25 mg. Elavil is an anti-depressant and mood-enhancer, often prescribed for use at bedtime to help patients relax to sleep.) This would certainly have had the ability to put Ileana into a trance state.

32. As for how hypnosis interacts with memory, much experimental work has been done. The primary problem of judging the accuracy of historical accounts in therapy, for which neither the therapist nor the patient has undisputed knowledge in a clinical setting, is a hurdle that can easily be overcome by experimental researchers. By showing test subjects movies, pictures, or lists of words, and later testing them with and without use of hypnosis, researchers can quite accurately determine the effects of hypnosis on normal recall.

33. Experimenters have indeed found that hypnotized subjects are more likely to give more correct and incorrect responses to memory tests than waking subjects given the same test. It has been further demonstrated, however, that the fact that more correct responses are given is not a sign that hypnosis has some special access to the memory. When nonhypnotized subjects are required to concentrate longer or to guess, their number of right answers rises to the levels of the hypnotized subjects.

34. It is also important to note that studies have shown that a hypnotized subject’s confidence increases for both correct and incorrect answers. That is, while there is usually a positive relationship between confidence in one’s memory and the accuracy of that memory at least in the short term, hypnosis lessens that relationship. Summarizing the relevant studies on the topic, the Council on Scientific Affairs of the American Medical Association published the following warning in the Journal of the American Medical Association in 1985: "Contrary to what is generally believed by the public, recollections obtained during hypnosis not only fail to be more accurate but actually appear to be generally less reliable than recall. . . . [I]n no study to date has there been an increase in accuracy associated with an appropriate increase in confidence in the veracity of recollections. Consequently, hypnosis may increase the appearance of certitude without a concurrent increase of veracity."

35. Of particular concern in the case of Ileana Fuster’s treatment is the fact that research shows that, under hypnosis, subjects often become highly willing to internalize suggestions from the hypnotist or the hypnotic setting. In a classic experiment, modeled after one done by world-renowned hypnosis expert, Dr. Martin Orne of the University of Pennsylvania Medical School, researchers hypnotically "age-regressed" 27 subjects to a night the previous week and instructed them to relive their activities. The subjects were then asked if they had heard a loud noise which had awakened them. Responding to the suggestion implicit in the question, 17 of the subjects imagined hearing such a noise. After hypnosis, 13 of the total group told researchers their belief that the suggested memory had actually taken place. One subject, for instance, said, "I’m pretty sure it happened because I can remember being startled. It’s the physical thing I remembered." This subject had actually reconstructed her memory to include the physical sensation of having been startled.

36. In this experiment and others like it, researchers did not directly suggest a memory by instructing the hypnotized subjects to imagine it. Rather, the experimenters merely asked a question as to whether the subject had experienced the event.

37. Contrast this with the approach described by Ileana Fuster used by her therapists, who provided her directly with descriptions of scenes of sexual abuse, purportedly reported by children in Ileana’s care, and told her to imagine these scenes of abuse as she engaged in relaxation and visualization exercises, both in the presence of her therapists and as she was going to sleep. This would have had a far more powerful influence on the creation of pseudomemories than the casual question put to the subjects in the study described above.

38. Dr. Martin Orne coined the term "demand characteristics" to describe the hypnotic subject’s understanding of what behavior is appropriate or expected in a certain situation. Hypnotic subjects tend to respond to, or meet, the demand characteristics put in place by their hypnotists. Research shows that one such demand characteristic for hypnotic sessions is the underlying expectation that the subjects will glean information from the hypnotist’s questions or comments and include that information into the scene they are imagining. When the experimenter asks a question that suggests the presence of an additional element consistent with the scene already imagined, the subject may not simply add that detail but often supplies additional details that incorporate that suggestion seamlessly into the story.

39. Whether the patient classifies what is envisioned during hypnosis as a memory or imagination also depends greatly on the demand characteristics of a given hypnotic session. If an experimenter tells a subject that what he will experience under hypnosis is memory, the subject is significantly more likely to identify what comes out of hypnosis as memory than subjects told otherwise. What happens to a person’s belief in his memory under hypnosis in the end seems less a result of properties specific to hypnosis than several factors that surround the procedure. Hypnotists and therapists often lead their patients to believe, for instance, that under hypnosis they can activate parts of their minds that they cannot normally engage, such as subconscious realms to which memories of trauma have been relegated in order to protect the conscious mind. Recovered memory therapists, for example, are notorious for telling patients this.

40. The therapists meeting with Ileana Fuster foisted just such beliefs upon her, according to the 1994 statement. Ileana describes the insistence with which her therapists assured her that she and her husband had abused the children in Ileana’s care but that she had "blacked out" these memories because they were too painful for her conscious mind to bear. According to Ileana’s statement, the psychologists claimed to have "diagnosed" her as having such blacked out memories. They further imposed the belief on Ileana that the nightmares she began having during therapy were the result and first sign of these repressed memories emerging from her subconscious, and that the nightmares represented historically accurate events. With this demand characteristic in place, it is not surprising that Ileana eventually came to accept these nightmares, repeated while in trance, as historical truth.

41. The dangers of relying upon such hypnotically produced memories in legal proceedings is well-known and well-researched. Hypnosis results in confabulation, the hardening of memories, an increased confidence by the witness in the veracity of the memories and the production of false memories. Because hypnosis can drastically alter a witness’s memory, yet do so without a diminution of, and, more likely, an increase in, confidence of the accuracy of the memory, many jurisdictions will not permit a witness who has been hypnotized to testify in a criminal proceeding. Doing so would impinge upon a defendant’s rights to confrontation and to be convicted by reliable evidence. Other jurisdictions require strict safeguards to be employed, none of which appear to have been present in Ileana’s case.

42. First, where information is sought through hypnosis for use in a criminal trial, great care must be taken by the hypnotist not to suggest to the witness any information that might become incorporated in that witness’s account of events. In the instant case, however, the doctors who met with Ileana told her that she was supposed to remember particular events, chastised her if she did not have these memories, and rehearsed her "memories" with her to make sure she did not make any mistakes at trial. These were hardly free recall sessions.

43. Second, the hypnotist is supposed to be a neutral, to have no stake in the outcome, no ongoing contact with the witness and no bias borne of pre-existing knowledge about the case. Here, the psychologists who induced Ileana’s hypnosis appear to have been fully versed in the allegations in the case, had notes supplied to them by Ileana’s lawyer and the state, and told Ileana the outcome they sought.

44. Third, the hypnotist is supposed to conduct a pre-induction interview with the subject to make clear what information was known to the witness before the hypnosis and what new information emerged during or after the hypnosis. This may have been done by the Behavior Changers but, if so, I have not been provided with any evidence of it.

45. Fourth, hypnotic sessions must be electronically (preferably, video-) recorded so that the exact structure of the interview can be reviewed to see what suggestive forces may have been introduced into the session. I am not aware that this was done.

46. It may be suggested that these safeguards were not employed because the Behavior Changers did not purposely hypnotize Ileana or purposely train her to self-induce hypnosis. The intent of the therapists, unfortunately, does nothing to lessen the degree to which these safeguards are necessary to insure the reliability of the subsequent testimony given by a witness in a criminal proceeding. The subject is still placed in a greatly heightened state of suggestibility, whether the hypnosis was inadvertent or purposeful. And the fact that the hypnotic induction may have been inadvertent actually increases the likelihood of memory contamination. No ethical hypnotist working within a forensic setting would purposely try to induce recollections of specific memories in a hypnotized subject. Certainly, if Ileana’s description of events is accurate, the Behavior Changers were acting in ways directly contrary to these safeguards, specifically attempting to alter Ileana’s memory.

47. One demand characteristic placed by the Behavior Changers upon Ileana deserves special mention. That is, the Behavior Changers told Ileana repeatedly (according to her 1994 statement) that she had "blacked out" memories of the abuse she and Mr. Fuster had committed because the memories were too horrific for her conscious mind to deal with. Thus, Ileana was instructed to "recover" these "memories," to "relive" these acts of horror, and to accept her nightmares both as historical truth and as evidence of her traumatic memories resurfacing.

48. While the Behavior Changers may have believed Ileana was blacking out images stored in tact in her subconscious mind (as did countless repressed memory therapists in the 1980’s and early 1990’s), there is no scientific support for such a belief.

49. First, there is no instance in the scientific literature, recent or historical, recounting any instance in which a person has had a fully amnesiac episode of traumatic childhood events, sexual or otherwise, which the person has later spontaneously remembered and for which reliable corroborating evidence exists. [put in cite to study] (Taking even the most conservative estimates of the rate at which child sexual abuse occurs, the fact that no such case has ever been documented is surprising, at the very least, if a robust repression mechanism actually exists that causes people to repress memories and recall them only years later.) To the contrary, there is a substantial body of evidence that demonstrates that, wherever such claims have been made that a person has suddenly recovered theretofore fully "repressed" memories of childhood sexual abuse, the "recovery" of these memories has come as the result of therapists implanting such ideas in their patients’ minds and then "drawing out" these false memories by use of psychologically coercive means, including hypnosis.

50. Second, no mental health expert or other scientist has ever proposed a plausible explanation of how such a memory repression mechanism might operate. The most obvious questions about such a mechanism are routinely glossed over by so-called repressed memory experts or answered in ways that are self-contradictory. For example, if a child has been the victim of repeated acts of childhood sexual abuse, does the child repress each separate traumatic event immediately after it happens so that the child then does not remember the events that have occurred previously? Or, does the child repress the cumulative experience when it reaches a certain level of trauma or only after it comes to an end? If the child represses these memories after a series of acts of abuse have been committed against her, what is the trigger that causes this amnesia to finally occur? If this particular trigger had not occurred, would the child have remembered the repeated acts of abuse committed against her? Recovered memory theorists have no answers to these questions.

51. Another issue recovered memory proponents pose no plausible answer for is why this complete repression mechanism only operates when the traumatic event experienced by the child involves sexual abuse. For instance, children confined in concentration camps during World War II have not totally repressed these memories. Studies of adults who as children witnessed their parents being murdered likewise show

no evidence of that the children have repressed such memories in the sense of having total amnesia of the occurrence of these events. (Many people who experience trauma work consciously to avoid thinking of the traumatic event but this is very different from repressed memory theory which posits an automatic and total repression of events.)

52. Repressed memory theory also runs directly counter to the very substantial body of research that exists on memory. Contrary to the implicit assertions of repressed memory therapists and experts, memories are not retained in tact over periods of years like videotape recordings that one can later replay. Rather, memories have a tendency to decay over time. Portions of memories that are not rehearsed with some regularity are lost altogether over time and remaining parts of memories often become intermingled with inaccurate memories through a process known as confabulation. Studies show this to be true not just of everyday events but of traumatic events as well.

53. Thus, the demand characteristic of Ileana’s sessions with the Behavior Changers – i.e., that she believe that the images she was seeing in trance and/or in nightmares were historically true events – was premised on unsupportable pseudo-science.

54. Finally, I would note in this regard that letters written to the Court in late July and early August, 1985, by mental health experts sent in to determine Ileana’s competence to stand trial, state that Ileana seemed to be emotionally retarded, two of them opining that Ileana was functioning with the emotional wherewithal of a six-year-old child. See Ofshe, Exhibits 3-5. The doctors performing these evaluations note that Ileana was especially prone, due to her upbringing and cultural associations, to accede to the authority of any dominant adult, particularly a male. These factors increase the probability that Ileana would succumb to the demands placed upon her by Drs. Rappaport and Haber and incorporate them into her hypnotic responses.

55. Under the circumstances, I can state with a reasonable degree of scientific certainty that any testimony Ileana gave subsequent to meeting with these psychologists has to be considered highly unreliable. Again, this is all subject to the caveat that the records I have reviewed are relatively accurate and contain historically accurate information.

56. The question will invariably arise as to why anyone should believe Ileana’s sworn statement, given the fact that she retracted it some five months after she gave it. To aid in that effort, it is important to look for corroboration and context.

57. There are a number of independent sources that corroborate portions of Ileana’s Honduran statement. Ileana states that she was being medicated to help her sleep. In his July 31, 1985 report to the trial court, Dr. S. Jacobson notes that Ileana was receiving the drug, Elavil, 25 mg., once or twice a day as necessary on a regular basis because of symptoms of anxiety and depression. Ofshe, Exh. 5 As noted above, Elavil is a drug used as an anti-depressant and mood elevator, often prescribed to help a person sleep less fitfully.

58. Ileana states in her Honduran statement that Drs. Rappaport and Haber met with her for long sessions, nearly every day, beginning before she gave her depositions, but continuing during the period of those depositions and up until the time of trial. The Behavior Changers’ billing records, dated August 26, and September 24, 1985, indicate that they visited Ileana at the prison on August 1, 5, 6, 7, 8, 9, 11,13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 30, and September 3, 5, 6, 9, 10, 12, 13, 17, 18, 20, and 22. (Ileana pled guilty on August 23, 1985 and was deposed on September 11, 12 and 18.) Many of these visits lasted two hours; at least one lasted 3.50 hours and another lasted 4 hours. Thus, Ileana’s statement is again accurate. Please see Ofshe, Exhibit 6.

59. Ileana notes in her sworn statement that the doctors came to these visits armed with notes about allegations the children had made. Ileana expresses the opinion that the doctors were being supplied with this information by her lawyer and/or the state attorney’s office. Indeed, the doctors’ billing records indicate 10 separate conferences and consultations during the month of August with Ileana’s attorney; at least one consultation with her attorney, Janet Reno and Mr. Hogan, who I understand were then state attorneys; and a third conference with Janet Reno by herself. The billing records also indicate that the doctors spent 7.5 hours in August reviewing videotapes. Ofshe, Exh. 6. There is no indication of what these videotapes are but I understand that the state had made videotapes of children being interviewed by state investigators. Thus, Ileana’s assumption may be correct. It is certainly not ill-founded in any case.

60. Ileana talks in her Honduran statement about the fact that she was confused as to why she would have clear memories of Mr. Fuster’s cruelty towards her, beating her and dominating her, but no memories of either her or Mr. Fuster doing anything harmful to any of the children in their care. In a deposition taken on August 1, 1985, of Shirley Blando, chaplain at the jail in which Ileana was incarcerated for eleven months prior to trial, Ms.Blando talks about the many sessions she had with Ileana to that date. She describes Ileana’s frame of mind and talks of Ileana’s terrible fear of Mr. Fuster because he had beaten her on occasion and dominated her in such a way that she felt wholly under his control. Ms. Blando emphasizes, however, that despite Ileana’s fear and the openness with which had revealed sordid details of their life together, Ms. Blando had no doubt that Ileana believed herself and Mr. Fuster to be innocent of any wrongdoing against the children in their care.

61. Ileana’s statement to the trial court, when rendering her guilty plea, is likewise consistent with her Honduran statement. On August 23, 1985, when entering her plea, she tells the court that she is pleading guilty not because she feels guilty or because she has done anything wrong, but only for the sake of the children and for the sake of getting this all over with.

62. During Ileana’s depositions, taken during the course of Mr. Fuster’s trial, Dr. Rappaport is present. At times, Ileana is asked a question about the events involving a particular child and Ileana responds that she does not remember. Dr. Rappaport then prompts her, telling her it’s not that she doesn’t remember but rather that she doesn’t want to remember. This corroborates Ileana’s statements that the doctors had told her that she had these memories but was blocking them out of her conscious mind.

63. According to the Behavior Changer’s billing records, the doctors attended Ileana’s polygraph session and her deposition. Ileana’s Honduran statement is also correct on these points. Ofshe, Exh. 6.

64. There is also independent evidence to corroborate Ileana’s statements about the attitude her lawyer, Mr. Von Zamft, had expressed to her that she "needed to remember something." Herb Smith, a Florida attorney and then Assistant Public Defender in Miami, Florida, submitted an affidavit to the trial court on July 29, 1985 in which he noted that, on July 18, 1985, Michael Von Zamft had stated to him and Jeffrey Samek (Mr. Fuster’s attorney) that his defense would allege: that atrocities had been perpetrated not only upon the children but also upon Ileana; that he would prosecute Ileana even more severely than the State of Florida would; and that he would portray Mr. Fuster as a sex fiend. Ofshe, Exh. 7 In a memo written to the file by assistant state attorney John Hogan, Mr. Hogan notes that Mr. Von Zamft seemed prepared to plead his client guilty or defend her on a theory of duress and that Von Zamft would represent to the state attorney’s office, if need be, that Ileana had made such representations to him, even though she had not yet done so. Ofshe, Exh. 8. Shirley Blando testified in her deposition that Ileana had told her that she did not trust her lawyer, that she was afraid of her lawyer and that her lawyer wanted her to say things that were not true. Blando Deposition at 52. In other words, it appears that Mr. Von Zamft did indeed "need" Ileana to remember something and was prepared to get those memories from her one way or another.

65. Thus, there is substantial corroboration for many of the statements made by Ileana in her Honduran deposition. It was not invented of wholecloth.

66. Ileana’s retraction is interesting because of what it says and what it doesn’t say. Ileana claims that she was tricked and pressured into giving her statement to Mr. Fuster’s attorney. She claims in the retraction that she did not know her words were being taken down by a court reporter or that she was being tape recorded, and that she believed she was providing her statement to clear her own name but was unaware that the statement would be used in any way to help her former husband. However, I see no evidence of trickery in place. Arthur Cohen, the attorney who questioned Ileana, explains to her at the beginning of the session that he is an attorney, that he has a court reporter present and that he is tape recording the session. In fact, he stops the session several times to turn the tape over or to change it, and explains on the record each time he does so. He also asks Ileana if she understands what she is doing and that she is under oath. Ileana says that she understands. Mr. Cohen specifically asks Ileana if anyone has threatened her in any way or promised her anything in regard to her meeting with him. She answers no. She also states that she is present of her own free will. Ofshe , Exh. 2 (10-15-94, 2-3) At the end of the statement, which lasts a total of 1.5 hours, Mr. Cohen gives Ileana the opportunity to add to her statement anything else that he has not inquired about. Ileana uses that opportunity to emphasize the points she had made earlier in the statement: that she knew the truth was that she and Mr. Fuster had not committed these acts; that she fully remembered the brutality Mr. Fuster had demonstrated towards her, the trauma of being in prison and things that had happened to her as a child; and that she did not believe she had blacked out memories of their abusing children. (Id., 59-60)

67. Thus, the retraction of this statement on the grounds that she was pressured to provide it or that she did not understand she was testifying under oath is unconvincing.

68. What is more convincing is Ileana’s concern in the retraction that she did not realize that the statement she had given Mr. Cohen could be used to help vindicate Mr. Fuster. It is clear from the letters provided in summer, 1985 to the trial court by the mental health professionals evaluating Ileana’s competence to stand trial, that Ileana had at one time feared Mr. Fuster and had been worried that he would harm her if he got out of prison. It appears that Ileana may have learned that her statement to Mr. Cohen could be used to free Mr. Fuster and that she wanted to ensure that such an event did not occur.

69. There is evidence that Ileana was worried about Mr. Fuster leaving prison because he so dominated her and because she feared him physically. Psychiatrist Sanford Jacobson noted in his report to the court dated July 31, 1985 that Ileana had told him Mr. Fuster beat her and abused her physically, both before and during their marriage. Jacobson also notes that Ileana said that she was afraid of Mr. Fuster and that he would possibly harm her. "She wondered if indeed he could still hurt her today." Ofshe, Exh. 5 (July 31, 1985 report at 4). Again, Ileana’s statement to Arthur Cohen reinforces this impression. Near the conclusion of the statement, when she is asked to add whatever she chooses to the statement, she says, "And then the doctors, they were there day and night. They were there on the weekend. And I didn’t rest until I said whatever I had to say, you know, whatever would help the kids in court, because otherwise he was going to get out and he was going to get me." Ofshe, Exh. 2 (10-15-94, 60) (emphasis added.)

70. On the other hand, it is important to note that Ileana did not claim in her February, 1995 "retraction" that she had misrepresented the conduct of the Behavior Changers towards her. Thus, taken alone, Ileana’s retraction does not convince me that her account of the treatment she received at the hands of Drs. Rappaport and Haber was false or inaccurate.

71. Of course, the best way to confirm the accuracy of Ileana’s 1994 Honduran statement to Arthur Cohen would be to review any recordings the Behavior Changers made of their sessions with Ileana, and any notes they made contemporaneous with providing therapy to her. If one or the other of those items do not exist, or if the notes are scant, the next best thing would be to question the doctors now (under oath) about what they did back in 1985. As a scientist and researcher who believes in the value of historical truth, I can think of no better way to learn the historical truth than by tapping the notes and recollections of the Behavior Changers themselves.

72. The questions to look at, beyond getting a detailed description of what took place during their sessions with Ileana, would ideally include the following:

a) What, if any, instructions were they given by Ileana’s defense attorney as to their purpose in meeting with her?

b) Did they have particular goals in mind when they began meeting with her or at any other point? If so, who established these goals?

c) At whose behest did they attend Ileana’s polygraph examination and deposition? Why?

d) What videotapes did they review, as reflected in their August 26, 1985 billing, and for what purpose?

e) Did they at any point diagnose Ileana as suffering from repressed memory syndrome or a black out of memories?

f) If so, on what basis did they make this diagnosis? How long did it take them to reach this diagnosis? Did they discuss this diagnosis with Ileana?

g) If they believed that Ileana was suffering from repressed memories of sexual abuse committed on children, what plan, if any, did they employ to recover these memories?

h) Had they at that time been trained in the use of hypnosis?

i) Were they aware that Ileana was taking Elavil during the time of their therapy with her and, if so, were they cognizant of any effects the medication was having on her?

j) Were they aware, at any point during their therapy with Ileana, that three mental health experts had rendered opinions that she was emotionally immature and that she obeyed authority figures, particularly when they were men?

k) If they were aware of this, what actions, if any, did they take to ensure that Ileana would not succumb to their will as authority figures?

l) Whom did they regard as their client in this case?

m) Did they consider themselves to have any ethical obligations to anyone in providing therapy to Ileana and, if so, to whom did these obligations run? What were these obligations?

n) Did they ever attempt to induce in Ileana a dissociative state?

o) Did they feel any ethical responsibility to elicit memories of abuse from Ileana for the sake of the child complainants in this case?

p) Did they believe at any point during the therapy they provided to Ileana that the accusations that had been made against her or Mr. Fuster were true? If so, what was their basis for this belief and at what point did they arrive at this belief?

There are, of course, follow-up questions that answers to some of these questions might prompt.

73. If I were called upon to do so, I would be happy to testify at an evidentiary hearing and explain more fully the bases for the expert opinions I have rendered herein. I would also welcome the chance to respond to any questions the court or the Respondent might have concerning these opinions. I would, of course, greatly prefer to do so after I had had the opportunity to learn more from the Behavior Changers themselves or after reviewing the notes or recordings they made of their sessions with Ileana Fuster.

I hereby certify that the statements I have made herein are true and accurate to the best of my knowledge, information and belief. I am aware that if I have made any statement, knowing or believing it to be false, I am subject to the penalties of perjury.

Affiant says nothing further.

_________________________________________

Richard J. Ofshe, Ph.D.

| Back to Mainpage | Back to Top |