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Harvey Weinstein Seeks to Call Expert on ‘Recovered’ Memories at Rape Trial

Former movie producer Harvey Weinstein (L)
STEVEN HIRSCH/POOL/EPA-EFE/REX/S

Harvey Weinstein’s attorneys are seeking to call an expert on “recovered memories” at his trial on rape and sexual assault charges.

The defense has filed a motion asking to call Deborah Davis, a psychologist and professor at the University of Nevada at Reno. Davis is a frequent defense witness. She co-authored an article in 2006 that examined false memories, and questioned the basis for believing “repressed” memories of sexual abuse.

“Just because a ‘memory’ report is detailed, just because a person expresses it with confidence and emotion, does not mean that the event actually happened,” Davis and her co-author concluded.

Weinstein faces a trial in January on five charges related to two incidents, in 2013 and 2006. Actress Annabella Sciorra is also expected to testify that Weinstein raped her sometime in the winter of 1993-94, in order to buttress two of the five charges. Prosecutors also intend to call three “Molineux” witnesses in an effort to establish an overall pattern of sexual abuse.

Justice James Burke has already allowed those three witnesses to testify. But in a defense motion filed Oct. 10, Weinstein attorney Damon Cheronis alleged that new disclosures have been made to the defense team, which suggest that one of the witnesses “has engaged in memory recovery therapy.” Cheronis argued that such therapy makes the witness’ testimony unreliable, and that she should be precluded from testifying. Much of Cheronis’ motion is redacted, leaving the precise nature of the new disclosures unknown.

The Manhattan District Attorney’s office is due to respond by Oct. 24. A spokesperson for the office declined to comment on Cheronis’ motion.

The prosecution is planning to call its own psychiatric expert, Barbara Ziv, who is expected to testify about why victims may delay in reporting sexual assault, and why they would maintain communications with their perpetrator. Ziv testified as a prosecution expert in the trial of Bill Cosby. The victim in that case also delayed reporting the incident to the police.

In the Weinstein case, the defense has alleged that both of the primary victims sent friendly emails and text messages to Weinstein after the alleged assaults. The prosecution wants Ziv to draw on research that would help explain such behavior, which they acknowledge may be contrary to how jurors would expect victims to behave.

Weinstein’s attorneys are asking Burke to preclude Ziv from testifying, arguing that her testimony would not add anything that goes beyond the common understanding of a typical juror.

Deborah Davis, the defense expert, testified in a 2010 case that she is paid $2,500 a day for her services. In that case, she was testifying on behalf of Thomas Pollacci, a Pebble Beach, Calif., man who was accused of rape. The victim suffered a head injury, and initially had no memory of the incident. According to news reports, she later recovered some memories of the incident through hypnosis and “guided therapy.” Davis was called to testify that such techniques can produce false memories. Pollacci was convicted and sentenced to eight years in prison.

Davis also offered pre-trial testimony in the case of Wayne Adam Ford, a serial killer now imprisoned on California’s Death Row. In that case, she argued in support of a defense motion to suppress Ford’s confession, arguing that he was in a “compromised state of mind.” The judge allowed most of the confessions to be admitted, and Ford was ultimately convicted.