                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     October 30, 2018
               Plaintiff-Appellee,

v                                                                    No. 338561
                                                                     Gogebic Circuit Court
JAMES VICTOR HACKLER,                                                LC No. 2016-000251-FC

               Defendant-Appellant.


Before: SAWYER, P.J., AND STEPHENS AND GADOLA, JJ.

PER CURIAM.

STEPHENS, J. (Dissenting).

        I respectfully dissent from the majority and would reverse the conviction in this case and
remand to the trial court for the appointment of an expert on false memory. I agree that the
majority stated the legal standard for the appointment of an expert. They correctly note that
while a prayer for expert assistance need not be so specific as to state both the relevance and the
likely effect of such assistance, it must be specific enough to establish a connection to the issues
presented in the specific case. Crucial to the analysis of the need for an expert in this case are
the following:

       1) The age of the complainant when she was assaulted (four years’ old);

       2) The partial disclosure of wrongful conduct at age four;

       3) Intervening psychological treatment;

       4) Subsequent trauma involving the defendant and the complainant’s mother;

       and,

       5) A fulsome disclosure at trial.

In this instance, the trial court’s reasons for rejecting the request illustrate why the expert was
needed. The trial court equated false memory with repressed memory. The literature reveals
that not all false memory is repressed. Additionally, not all false memory is the product of
intentional planting whether by lay persons or treaters. However, life experience, including

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psychological care, can affect memory. See generally Loftus, Make Believe Memories, 58(11)
American Psychologist 867 (November, 2003).

        Dr. Elizabeth Loftus noted in Semantic Integration of Verbal Information into Visual
Memory, 4(1) Journal of Experimental Psychology: Human Learning and Memory, 19 (1978),
that participants in a study viewed a film and reported its contents immediately afterwards, the
equivalent of disclosure. Weeks later, they again recounted what they saw quite differently but
with equal sincerity. A cursory review of the literature reveals information about how memory is
affected by time and myriad experiences, including therapy and maturing. See Otgaar,
Eliminating Differences in Children’s and Adults’ Suggestibility and Memory Conformity
Effects, 53 Developmental Psychology, 5 (May, 2017). The fact that the complainant revealed
exposure to pornography immediately at four years of age, but testified years later regarding
myriad details of abuse, should have led a legal expert —who knew what he did not know— to
seek the guidance of experts. It was error for a judge learned in law, but a layperson on
psychology and memory to deny the expert consult.



                                                           /s/ Cynthia Diane Stephens




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