Memory-Dampening Technology
Posttraumatic Stress Disorder
Just as we cannot remember all that we would like to, 22 we cannot, by act of will, decide what to forget 23 In the short story, “Funes, the
In Jorge Luis Borges' story "Funes the Memorious," the character Ireneo Funes possesses an extraordinary memory, enabling him to rename and recall every whole number up to twenty-four thousand, demonstrating the limits of human cognition and the complexities of memory.
Máximo Perez, known as "The Train," faced significant challenges despite his remarkable linguistic abilities in English, French, Portuguese, and Latin His mind, overwhelmed with an excess of details, led to feelings of depression and insomnia This inability to filter and organize the vast information in his life ultimately hindered his capacity for clear thinking.
Neuroscientists have documented the extraordinary case of "AJ," who possesses remarkable autobiographical recall abilities, similar to Ireneo Funes For instance, AJ was able to accurately name the calendar date of every Easter from 1980 onward without any prior preparation.
2003 and what she did on those days 28 Nevertheless, she has some of the same difficulties of the fictional Ireneo Funes AJ has written, “[w]henever
Whenever I see a date displayed on the television or elsewhere, it triggers vivid memories of that day, including my location and activities at the time This relentless cycle of recollection is both overwhelming and exhausting.
Even with our own more mundane powers of recollection, it is easy to see some of the downsides of our limited ability to forget For example, one
22 There is a great deal of interest in developing drugs to enhance human memory See, e.g., Martha J Farah, Neuroethics, 6 V IRTUAL M ENTOR , E THICS J A M M ED A SS ’ N (Aug
2004), available at http://www.ama-assn.org/ama/pub/category/print/12727.html; Alok Jha,
Scientists Predict Brave New World of Brain Pills, G UARDIAN , July 14, 2005, at 7 There is much debate surrounding so-called cognitive enhancements, that seek to give us memories that are better than normal See Carl Elliott, This is Your Country on Drugs, NY T IMES , Dec 14, 2004, at A33; Anjan Chatterjee, Cosmetic Neurology: For Physicians the Future is Now, 6 V IRTUAL M ENTOR , E THICS J A M M ED A SS ’ N (Aug 2004), available at http://www.ama-assn.org/ama/pub/category/print/12726.html.
23 Bruno S Frey, “Just Forget It”: Memory Distortions as Bounded Rationality, 4 M IND &
24 Jorge Luis Borges, Funes, the Memorious, in F ICCIONES (John Sturrock, ed 1962), available at http://www.bridgewater.edu/~atrupe/GEC101/Funes.html
25 Id at {insert page number}.
26 Id at {insert page number}.
27 Elizabeth S Parker et al., A Case of Unusual Autobiographical Remembering, 12
It's challenging to forget owning a counterfeit Picasso painting instead of an original, just as it's difficult to erase traumatic memories such as physical or sexual abuse Attempts to ignore or suppress these memories often backfire, reinforcing their presence in our minds rather than diminishing it.
Posttraumatic stress disorder (PTSD) is a mental health condition that can develop after experiencing severe, recurrent traumatic memories Officially recognized by the American Psychiatric Association in 1980, PTSD is characterized by symptoms such as recurrent reexperiencing of the traumatic event, avoidance of trauma-related situations, emotional numbing, and hyperarousal Recent studies indicate that around 7% of Americans may experience PTSD at some point in their lives.
30 Frey, supra note Error: Reference source not found, at 14.
Ignoring certain thoughts often leads individuals to become more preoccupied with them, making these thoughts more accessible in memory This phenomenon highlights the counterproductive nature of attempting to suppress specific ideas, as they tend to dominate one's focus instead.
Biases Produced by Instructions to Disregard: The (Paradoxical) Case of Emotional Information, 23 P ERSONALITY & S OC P SYCHOL B ULL 849, 850 (1997); see also Daniel
M Wegner, et al., Paradoxical Effects of Thought Suppression, 53 J P ERSONALITY & S OC
Skilled trial lawyers often choose not to challenge inadmissible evidence presented to the jury, as the only outcome may be a limiting instruction that fails to mitigate the evidence's influence on juror opinion Justice Jackson notably criticized the belief that jurors can disregard prejudicial information, stating that this notion is widely recognized by practicing lawyers as unrealistic.
Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U P A L R EV
1251, 1251-59 (2005) (finding that judges also have difficulty disregarding inadmissible information).
32 Jonathan R T Davidson, Recognition and Treatment of Posttraumatic Stress Disorder,
286 JAMA 584, 584 (2001); A M P SYCHIATRIC A SS ’ N , D IAGNOSTIC A ND S TATISTICAL
M ANUAL OF M ENTAL D ISORDERS {insert page number from 3d ed.} (3d ed., 1980).
33 Davidson, supra note Error: Reference source not found, at 584 For more detailed diagnostic information, see A M P SYCHIATRIC A SS ’N, D IAGNOSTIC AND S TATISTICAL
M ANUAL OF M ENTAL D ISORDERS 463-68 (IV-TR ed., {insert year}).
34 Ronald C Kessler, et al., Lifetime Prevalence and Age-of-Onset Distributions of DSM-IV
Disorders in the National Comorbidity Survey Replication, 62 A RCHIVES OF G EN
In the United States, the lifetime prevalence of mental illness is approximately 8%, with women being affected at twice the rate of men However, global studies reveal significant variation in prevalence rates, ranging from as low as 1.3% in Germany to as high as 37.4% in Algeria.
A study highlighted in The New York Times on June 7, 2005, indicates that individuals with PTSD may endure active symptoms for up to 20 years, leading to nearly one day per week of work impairment and potentially resulting in an annual productivity loss of $3 billion in the U.S Additionally, the attempted suicide rates among those suffering from PTSD can reach as high as 19% The DSM notes that PTSD rates are particularly elevated among survivors of rape, combat, and genocide, with approximately one-third to one-half of individuals in these high-risk groups likely to develop the disorder.
Post-Traumatic Stress Disorder (PTSD) can be severely debilitating, leaving individuals feeling "stuck" in their trauma and reliving it through thoughts, emotions, actions, or images Symptoms such as physiological hyperarousal and a pervasive sense of helplessness can fundamentally alter how a person manages stress, impacts their self-concept, and distorts their perception of the world as a controllable environment While PTSD is often characterized by vivid intrusions of traumatic memories, there are instances where individuals may struggle to recall their traumatic experiences altogether.
In recent years, post-traumatic stress disorder (PTSD) has gained significant attention in the United States, particularly as a growing number of soldiers return from military conflicts burdened by traumatic memories The Army Surgeon General reports that approximately 4% of these veterans are affected, although some experts argue that this statistic may be inflated due to overly inclusive diagnostic criteria.
35 Davidson, supra note Error: Reference source not found, at 584.
37 A M P SYCHIATRIC A SS ’ N , supra note Error: Reference source not found, at 466.
According to a study published in the Archives of General Psychiatry, 65% of men and 46% of women who survive rape are likely to develop posttraumatic stress disorder (PTSD) This data highlights the significant impact of trauma on mental health, underscoring the importance of addressing PTSD in survivors.
39 Bessel A van der Kolk et al., A General Approach to Treatment of Posttraumatic Stress
Disorder, in T RAUMATIC S TRESS : T HE E FFECTS OF O VERWHELMING E XPERIENCE ON M IND ,
B ODY , AND S OCIETY 417, 419 (Bessel A van der Kolk et al eds., 1995).
41 Bessel A van der Kolk, Trauma and Memory, in T RAUMATIC S TRESS : T HE E FFECTS OF
O VERWHELMING E XPERIENCE ON M IND , B ODY , AND S OCIETY 279, 282-83 (Bessel A van der Kolk et al eds., 1995); see also Alison Motluk, Memory Fails You After Severe Stress,
Research on propranolol suggests it may help patients mitigate severe forgetting or repression, potentially leading to memory enhancement However, this possibility remains unexamined and is currently set aside.
42 See Charles W Hoge et al., Mental Health Problems, Use of Mental Health Services, and
Attrition from Military Service After Returning from Deployment to Iraq or Afghanistan,
295 JAMA 1023 (2006); Han K Kang & Kenneth C Hyams, Mental Health Care Needs
Among Recent War Veterans, 352 N EW E NGLAND J OF M ED 1289 (2005); Lynne
Lamberg, Military Psychiatrists Strive to Quell Soldiers’ Nightmares of War, 292 JAMA
1539, 1539 (2004). to 5% of soldiers returning from the war in Iraq have PTSD 43 A much larger number show stress-related mental health disorders of some sort 44
Traumatic Memory and Emotional Arousal
It has long been understood, at least at an intuitive level, that highly emotional or otherwise arousing experiences can boost memory 52 :
43 Associated Press, Some Troops Reporting Problems, F ORT W ORTH S TAR -T ELEGRAM , July
29, 2005 at A6 (quoting U.S Army Surgeon General Kevin Kiley); Lieutenant General Kevin C Kiley, M.D., Army Medical Department, Office of the Surgeon General, http://www.armymedicine.army.mil/leaders/kiley.html (providing biographical information).
A 2004 study published in the New England Journal of Medicine revealed that 17% of veterans returning from deployment in Iraq meet the criteria for major depression, generalized anxiety, or PTSD, a significant increase from the 9% who met these criteria before deployment This research highlights the mental health challenges faced by military personnel after combat duty.
45 Jonathan R Davidson & Bessel A van der Kolk, The Psychopharmacological Treatment of Posttraumatic Stress Disorder 510, 516-20, in T RAUMATIC S TRESS , supra note Error:
46 Bessel A van der Kolk et al., supra note Error: Reference source not found, at 417-18.
47 See Bessel A van der Kolk et al., A General Approach to Treatment of Posttraumatic
Stress Disorder, 417, 430, 434-435 in T RAUMATIC S TRESS , supra note Error: Reference source not found; Mundell, supra note Error: Reference source not found.
48 U Heresco-Levy et al., Pilot-Controlled Trial of D-Cycloserine for the Treatment of
Post-Traumatic Stress Disorder, 5 I NT J N EUROPSYCHOPHARMACOLOGY 301-07 (2002).
49 The FDA has given approval to use MDMA (methylenedioxymethamphetamine) as an experimental treatment for PTSD David Adam, Ecstasy Trials for Combat Stress,
G UARDIAN , Feb 17, 2005, at 6 See also National Institute of Health, A Test of MDMA-
Assisted Psychotherapy in People with Posttraumatic Stress Disorder, available at http://www.clinicaltrials.gov/ct/show/NCT00090064?order=1 (describing the Phase II research).
50 Miller, supra note Error: Reference source not found.
51 The value of any memory-dampening drug used to treat PTSD will, of course, depend on its relative efficacy, financial costs, and side effects compared to the alternatives.
This article explores the concept of explicit memory, also known as declarative memory, which allows individuals to consciously recall facts and events from their past.
In medieval times, before the advent of writing for historical documentation, alternative methods were essential for recording significant events, including land grants to townships, notable weddings, and negotiations among influential families.
A seven-year-old child was chosen to carefully observe a significant event, after which they were thrown into a river This method was believed to ensure that the memory of the event would be deeply ingrained in the child's mind, preserving the record for their entire life.
We often retain vivid memories of significant historical, political, or personal events For instance, many individuals can recall their exact location when they learned about the September 11 attacks.
11, 2001 attacks on the World Trade Center than they are to remember where they were the day before 54 In the 1970s, researchers coined the term
Flashbulb memories refer to vivid recollections of emotionally charged experiences that tend to endure over time While debates exist regarding their accuracy and prevalence, it is widely accepted that emotionally significant events lead to the formation of stronger and more enduring memories However, it's important to note that these memories are not always entirely accurate or consistently robust.
By the early 1990s, significant advancements were made in understanding the biological basis of heightened memories, particularly through animal research This research indicated that emotionally charged experiences trigger the release of hormones like adrenaline, which enhance memory retention From an evolutionary standpoint, these mechanisms may provide individuals with a survival advantage Additionally, implicit memory, or nondeclarative memory, encompasses the memories gained through skill learning, habit formation, and classical conditioning.
A prospective study published in the American Journal of Psychiatry highlights the increased risk of posttraumatic stress disorder (PTSD) in patients with traumatic brain injury (TBI) following a traumatic event The research indicates that traumatic memories can be encoded in the brain both implicitly and explicitly, with individuals more prone to developing PTSD if they possess explicit memories of the trauma.
53 J AMES L M C G AUGH , M EMORY AND E MOTION ix (2003).
54 Begley, supra note Error: Reference source not found.
55 Bessel A van der Kolk, Trauma and Memory 279, 281, in T RAUMATIC S TRESS , supra note Error: Reference source not found.
56 M C G AUGH , supra note Error: Reference source not found, at 90 But cf Alison Motluk,
Memory Fails You After Severe Stress, N EW S CIENTIST , June 12, 2004, at 14.
57 M C G AUGH , supra note Error: Reference source not found, at 91.
58 See, e.g., Roger K Pitman et al., Pilot Study of Secondary Prevention of Posttraumatic
Stress Disorder with Propranolol, 51 B IOLOGICAL P SYCHIATRY 189 (2002); Guillaume Vaiva et al., Immediate Treatment with Propranolol Decreases Posttraumatic Stress
Two months after experiencing trauma, individuals may develop a disorder that impacts their ability to navigate dangerous situations For instance, when faced with a threatening animal in the forest, the surge of adrenaline not only aids in escaping but also reinforces the memory to steer clear of that area in the future.
In a study conducted by Larry Cahill and James McGaugh, researchers aimed to determine if humans have a superior recall for emotionally-charged memories compared to neutral ones The participants were divided into two groups without prior knowledge of an impending memory test Both groups viewed a series of twelve identical slides, which were paired with a brief audio narrative, featuring one sentence per slide.
Emotional Events, 371 N ATURE 702-04 (1994); Friderike Heuer & Daniel Reisberg, Vivid
Memories of Emotional Events: The Accuracy of Remembered Minuitiae, 18 M EMORY &
Arousing circumstances can enhance specific types of memories while diminishing others by selectively focusing our attention on particular aspects of a situation Research indicates that eyewitnesses often concentrate on the weapon involved in a crime, resulting in decreased attention to other events and individuals present at the scene.
P ETER B A INSWORTH , P SYCHOLOGY , L AW AND E YEWITNESS T ESTIMONY 40-41 (1998); see also E LIZABETH L OFTUS & J AMES M D OYLE , E YEWITNESS T ESTIMONY : C IVIL AND
C RIMINAL 30-31 (1997) (describing the “weapon focus” hypothesis) In extreme cases, it is possible that hyperarousal may impair memory more generally See Cahill, supra at 703-
Research indicates that while high doses of adrenaline can negatively affect memory, it remains unclear if the adrenaline released naturally during intense emotional experiences has the same impact on memory function.
59 Miller, supra note Error: Reference source not found.
Research by psychiatrist Roger Pitman from Harvard Medical School indicates that adrenaline enhances memory, a process regulated by the amygdala, a small almond-shaped region in the brain.
Research involving rats and other animals indicates that administering a stress-related hormone like epinephrine right after the learning of a task significantly boosts memory retention for that task.
The amygdala plays a key role in this process When the amygdala is damaged, injecting stress-related hormones no longer enhances memory
The amygdala, then, helps to regulate release of the stress-related hormones that underlie the memory-enhancing effects of emotional arousal.
D ANIEL S CHACTER , S EARCHING FOR M EMORY : T HE B RAIN , T HE M IND , & T HE
P AST 215 (1997), quoted in President’s Council on Bioethics, Staff Working
Paper, “Better” Memories? The Promise and Perils of Pharmacological
Interventions, available at http://bioethics.gov/background/better_memories.html.
61 See Heuer & Reisberg, supra note Error: Reference source not found at 496.
62 Larry Cahill & James L McGaugh, A Novel Demonstration of Enhanced Memory
Associated With Emotional Arousal, 4 C ONSCIOUSNESS AND C OGNITION 410, 410 (1995)
Propranolol as Possible Memory Dampener
Researchers explored the potential to pharmaceutically suppress the emotional arousal that enhances memory formation In a study conducted in 1994 by Larry Cahill and colleagues, participants were given either a placebo or propranolol, a beta-blocker used to treat hypertension, one hour before viewing a series of slides This experiment aimed to assess the impact of propranolol on memory retention in the context of emotional stimuli.
In a neutral narrative, a mother and her son embark on a visit to the boy's father, a laboratory technician at the hospital During their journey, they pass a junkyard filled with wrecked cars Upon arriving at the hospital, the boy observes the staff preparing for a disaster drill, noting the brain scan machine utilized in the exercise Additionally, makeup artists are present to create realistic injuries for the drill participants The story concludes with the mother on her way to pick up her other child from preschool.
In a gripping narrative, a mother and her son are en route to visit the father at the hospital where he works when tragedy strikes—a traffic accident leaves the boy critically injured Rushed to the emergency room, a brain scan reveals severe bleeding, prompting a team of surgeons to fight for his life While the father remains by his side, the distressed mother must leave to pick up their other child from preschool, highlighting the emotional turmoil of the situation.
69 Cahill & McGaugh, supra note Error: Reference source not found, at 412, 416.
72 Cahill, supra note Error: Reference source not found at 702-04
74 Unlike many beta-blockers, propranolol crosses the blood-brain barrier easily See Anda
H van Stegeren, et al., Memory for Emotional Events: Differential Effects of Centrally one of the narratives described above (either the emotionally-arousing narrative or the neutral narrative) One week later, the subjects were given a variety of memory tests The results showed that, among those who heard the emotional story, those given placebo remembered more slides and could better answer factual multiple choice questions concerning the slides than those given propranolol 75 By contrast, among those who heard the more neutral story, subjects had similar levels of recall regardless of whether they were given placebo or propranolol 76 It has been suggested that subjects who hear the emotionally-arousing story release adrenaline which raises levels of the neurotransmitter norepinephrine in their brains 77 Propranolol appears to reduce the effects of norepinephrine, 78 making us less likely to form the heightened memories that we would ordinarily develop in the absence of propranolol.
Recent studies have explored the efficacy of propranolol in preventing PTSD, notably a 2002 pilot study led by Roger Pitman at Massachusetts General Hospital This double-blind, placebo-controlled trial involved subjects from the emergency room who had recently experienced traumatic events, primarily motor vehicle accidents Participants received either propranolol or a placebo within six hours of the incident, continuing for up to three weeks One month later, results indicated that those treated with propranolol exhibited a significantly lower incidence of PTSD symptoms compared to the placebo group Additionally, a 2003 pilot study in France further investigated these findings.
A study published in Psychopharmacology highlights that nadolol, a peripherally acting beta-blocker that does not readily cross the blood-brain barrier, is unlikely to impact memory in the same way as propranolol This distinction underscores the varying effects of different beta-blockers on cognitive functions, particularly memory.
Reference source not found Propranolol has also been used for many years by professional musicians and others to calm them before performances See Blair Tindall,
Better Playing Through Chemistry, NY T IMES , Oct 17, 2004, at 21
75 Cahill, supra note Error: Reference source not found.
77 See Miller, supra note Error: Reference source not found.
In a study referenced by Pitman et al and Marantz Henig, a woman's choice to participate was influenced by her experience of being injured in an accident involving a bicycle messenger.
80 Pitman et al., supra note Error: Reference source not found, at 190.
83 Id at 191 See also Fletcher Taylor & Larry Cahill, Propranolol for Reemergent
Posttraumatic Stress Disorder Following an Event of Retraumatization, 15 J T RAUMATIC
A case study reported in S TRESS 433 (2002) demonstrated the successful use of propranolol in treating reemergent PTSD, providing promising results that supported its efficacy Although the initial studies were limited in size and did not yield statistically significant conclusions, their encouraging findings led to funding for larger, more comprehensive research efforts.
Propranolol has notable limitations in its use for preventing PTSD, primarily being most effective when administered within six hours post-trauma, a time when it remains uncertain if an individual will develop PTSD, as only about 30% of trauma victims do Additionally, while generally safe and established for hypertension, propranolol may cause side effects such as sedation and attention difficulties, suggesting that unnecessary use should be avoided for safety and cost-effectiveness Furthermore, there is a concern that propranolol might hinder the consolidation of both highly emotional positive and negative memories.
84 Vaiva, et al., supra note Error: Reference source not found, at 947-949.
Recent plans for a larger study supported by the National Institute of Mental Health aim to investigate the effects of propranolol on traumatic memories, including those from the distant past Current studies are in progress to further explore these effects.
Immediately after learning, the brain enters a state that can either disrupt memory consolidation, leading to retrograde amnesia, or enhance the process of forming long-term memories.
Retrograde Amnesia Induced by Drugs Acting on Different Molecular Systems, 118
Pitman's approach to post-traumatic stress disorder (PTSD) suggests administering medication to all individuals who visit the emergency room after experiencing trauma However, studies indicate that a significant majority, approximately 70 percent, will not develop long-term issues if untreated Furthermore, research shows that only 14 to 24 percent of trauma victims actually experience lasting PTSD symptoms.
Propranolol is rarely prescribed for heart disease today, as newer beta blockers are favored These modern medications are less likely to affect the brain, suggesting they have minimal influence on emotional memories.
89 Cahill, supra note Error: Reference source not found at 703 See also Tindall, supra note Error: Reference source not found (citing Dr Stephen J Gottlieb for the proposition that
Beta blockers must be prescribed only after a thorough medical evaluation, as individuals with asthma or heart conditions may experience complications such as shortness of breath or a decreased heart rate Additionally, propranolol has been linked to side effects including fatigue, hallucinations, tingling sensations, and vivid dreams.
The use of low doses of beta blockers, such as propranolol, is generally considered safe for healthy individuals (2006) However, despite its potential effectiveness in treating traumatic memories, concerns about side effects, a limited window of maximum efficacy, and the suppression of positive emotional memories suggest that further exploration of alternative memory dampening methods will continue As noted by James McGaugh, even distinguished individuals, like Nobel Prize winners, vividly recall the moments of their significant achievements, highlighting the complexity of memory retention and the need for careful consideration in memory treatment approaches.
Legal Issues
Overview of Legal Issues
Memories play a crucial dual role in the legal system: they are essential for fact-finding and can also be a basis for claims of emotional distress In legal proceedings such as depositions and trials, memories help establish the facts that determine the rights of the parties involved Their primary value lies in the information they provide Additionally, if someone’s actions lead to distressing memories, the affected individual may seek compensation for emotional harm While proving emotional distress is necessary, the memories that contribute to this distress are significant not only for determining liability but also for the emotions they evoke.
1 The Informational Value of Memory
Memory plays a crucial role in providing information, particularly in the context of a witness to a traumatic crime If a witness suppresses both their factual recall and emotional responses to the event, it can lead to two significant outcomes: it may alleviate their personal suffering and facilitate a return to normalcy, but it also diminishes the valuable information that could be essential for legal proceedings.
In the case of Henricksen v State, the court established that physical manifestations of bodily harm, resulting from emotional distress like PTSD, can serve as valid evidence of genuine and severe emotional suffering, qualifying it as legally cognizable damage.
In the case of 136 Wash.2d 122 (1998), the court recognized bystander claims for emotional damages, requiring plaintiffs to show "objective symptoms" of their emotional injuries, such as intrusive memories, which may indicate a diagnosable emotional disorder like post-traumatic stress disorder This reflects a broader trend in tort law, as discussed by Nancy Levit in "Ethereal Torts," where the focus has shifted from solely compensating direct physical injuries to also addressing emotional and expectancy interests This shift highlights the balance between individual autonomy regarding bodily experiences and society's need to preserve memories for the protection of its members.
The law aims to balance individual rights and governmental interests, particularly concerning the recovery of physical evidence, such as a bullet lodged in a defendant's body, which raises concerns about bodily invasion Additionally, while the government can compel testimony through subpoenas, individuals are not generally obligated to report crimes they witness unless legally mandated This framework highlights the tension between the duty to disclose information and the right to control personal data.
In the landmark case of Cruzan v Director, Mo Dep’t of Health, the U.S Supreme Court recognized that a competent individual possesses a constitutionally protected right to refuse unwanted medical treatment, a principle that can be derived from previous judicial decisions.
Washington v Harper, 494 U.S 210, 229 (1990) (“The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.”); Riggins v Nevada, 504 U.S 127, 134 (1992) (quoting Harper).
103 See generally Christopher Slobogin, Subpoenas and Privacy, 54 D E P AUL L R EV 805, 805-26 (2005) (describing the subpoena power).
In Winston v Lee, the Supreme Court emphasized that the reasonableness of surgical procedures beneath the skin must be evaluated on a case-by-case basis, balancing individual privacy and security interests against societal needs Similarly, in United States v Crowder, the court ruled that there was no violation of the Fourth Amendment when a bullet was removed from the defendant's body without consent, as the procedure was deemed minor and the bullet was located superficially.
In the landmark case Branzburg v Hayes, the Supreme Court ruled that citizens do not possess constitutional immunity from grand jury subpoenas, emphasizing that neither the First Amendment nor any other constitutional provision protects individuals from disclosing confidential information to a grand jury.
106 See Gerard E Lynch, The Lawyer as Informer, 1986 D UKE L.J 491, 492 (1986) Many states do, however, have statutes that require bystanders to report certain kinds of crimes
In accordance with various state laws, individuals who are aware of crimes such as aggravated rape, murder, or armed robbery occurring in their presence are legally obligated to report these incidents to law enforcement, provided they can do so safely For example, Massachusetts General Laws mandates that anyone at the crime scene must inform the authorities as soon as is reasonably possible, while similar statutes exist in Hawaii and Ohio.
R EV C ODE A NN § 2921.22 (West 1997); W ISC S TAT A NN (West 1991) § 940.34(2)(a); Eugene Volokh, Duties to Rescue and the Anticooperative Effects of Law, 88 G EO L.J 105,
The obligation to report crimes to the police is closely related to the established duty to testify in court when subpoenaed This perspective implies that just as testifying is widely accepted as a permissible limitation on personal freedom, so too could the responsibilities of reporting crimes be viewed as acceptable infringements on individual liberties.
When victims of crimes or car accidents recall their traumatic experiences, society benefits from the valuable information that enhances public safety However, these victims endure significant emotional distress, shouldering the burden of these memories Consequently, in a scenario where memory-dampening drugs are available, it is likely that memory retention would be less than optimal.
To align individual incentives with societal interests, the government could implement laws that penalize the dampening of socially-valuable memories, as tampering with memory may be considered spoliation of evidence When evidence is spoliated, it is generally presumed that the unavailable evidence was unfavorable to the party responsible Some states recognize spoliation as an independent tort, and in severe cases, memory alteration could be viewed as obstructing justice if the individual knows their memories are needed in a judicial proceeding However, individuals may defend their memory alteration under the premise of medical necessity when done for legitimate therapeutic reasons.
In certain situations, a witness may have a personal stake in ensuring that a perpetrator faces punishment or that a tortfeasor is held accountable, leading their interests to closely align with the broader interests of society.
In the case of Brown & Williamson Tobacco v Jacobson, the court established that if a party destroys documents in bad faith during ongoing litigation, it can be assumed that those documents would have been detrimental to their case This principle allows both the court and jury to draw negative inferences against the party responsible for the destruction of evidence.
2 J W IGMORE , E VIDENCE § 291 (J Chadbourn rev 1979) {verify}; Dale A Oesterle, A
In cases where a party in a legal dispute destroys relevant documents in bad faith, it can be interpreted as an admission that they perceive their case to be weak and unlikely to succeed through fair means This conduct highlights the seriousness of document preservation in litigation and the potential remedies available to private litigants facing such inappropriate actions.
109 See, e.g., Smith v Howard Johnson, 615 N.E.2d 1037, 1038 (Ohio 1993); Smith v Superior Court, 198 Cal Rptr 829 (Ct App 1984); Bondu v Gurvich, 473 So 2d 1307 (Fla Dist Ct App 1984); James T Killelea, Note, Spoliation of Evidence Proposals for
New York State, 70 B ROOK L R EV 1045 (2005).
Some Specific Legal Issues
This section explores three significant legal issues related to memory dampening Firstly, it examines the concerns raised by Council member Gilbert Meilaender regarding the challenges of obtaining informed consent from patients for propranolol-style memory dampening Secondly, it highlights how current obstruction of justice laws could potentially criminalize memory dampening in specific scenarios Lastly, it addresses the mitigation of emotional damages in tort law, emphasizing the necessity to establish behavioral norms within the context of memory dampening.
Fourteenth Amendments, as well as the Eighth Amendment protection against cruel and unusual punishment
In Sell v United States, the Supreme Court ruled that the government can compel a defendant to take psychoactive drugs to ensure trial competency, provided the treatment is medically appropriate, unlikely to produce adverse side effects that could compromise trial fairness, and is necessary to advance significant governmental interests after considering less intrusive alternatives.
The Americans with Disabilities Act (ADA) restricts employers from asking about employees' prescription drug use unless the inquiry is directly related to the job Legal precedents, such as Roe v Cheyenne Mountain Conference Resort and Krocka v Bransfield, support this interpretation, emphasizing the importance of job relevance in such inquiries.
In the case of Greenawalt v Indiana Dept of Corr., the court ruled that requiring a state employee to undergo an invasive psychological test does not violate the Fourth Amendment rights against unreasonable searches and seizures Similarly, in Long Beach City Employees Assn v City of Long Beach, the court emphasized that the coercive collection of mental states and emotions must be justified by a compelling governmental interest.
The doctrine of informed consent mandates that healthcare professionals provide essential information to patients before initiating medical procedures, ensuring that patients give their consent This includes disclosing the nature of the medical condition, the risks associated with the proposed treatment, the potential risks of alternative treatments, and the consequences of not undergoing any treatment.
Memory dampening with propranolol is believed to be most effective within the first six hours following a traumatic event, during which memories are still consolidating However, it is challenging to predict which patients will develop PTSD or severe traumatic memories during this timeframe Consequently, healthcare providers must administer propranolol and obtain informed consent for treatment before confidently determining a patient's likelihood of developing PTSD without the medication.
In an essay discussing memory dampening, Council member Gilbert Meilaender highlights that the time constraints associated with propranolol-style treatments hinder patients from providing informed consent, as they are unaware of how their painful memories may impact their future The Council further emphasizes this concern, underscoring the ethical implications of memory dampening therapies.
[I]n the immediate aftermath of a painful experience, we simply cannot know either the full meaning of the experience in question or the ultimate character and future prospects of the
In the case of Canterbury v Spence, the court established that the key criterion for disclosing potential risks to patients is their materiality to the patient's decision-making process; this means that all risks that could influence a patient's choice must be fully revealed.
Informed consent is a fundamental principle in medical ethics, asserting that every adult of sound mind has the right to make decisions regarding their own body and medical treatment This autonomy can only be overridden in specific situations, such as when a patient poses a risk to themselves or others, or engages in harmful behavior within a medical facility.
139 P ROSSER AND K EETON ON T ORTS 190 (5 th ed.).
140 See supra notes 80 & Error: Reference source not found and accompanying text.
141 Meilaender, supra note Error: Reference source not found The essay was written in Meilaender’s individual capacity and does not speak for the Council Id
The dilemma faced by recently traumatized patients considering memory dampening raises critical questions about their ability to make informed decisions in the moment Can they truly determine whether it is wise to erase painful memories, or should they accept the burden of carrying those experiences throughout their lives? As noted in discussions by experts like William May, the issue of consent plays a significant role in this complex decision-making process, highlighting the potential consequences of either choice Ultimately, individuals must grapple with the possibility of being haunted by unbearable memories or finding a way to cope and heal over time.
“redeeming” those painful memories by actively integrating them into the narrative of his life? 143
Informed consent for memory dampening using propranolol can be questioned for two main reasons First, traumatized patients often experience psychological disturbances that may impair their ability to make informed decisions Second, even if they can consent, their understanding of the potential risks and benefits of the therapy is likely limited Since propranolol carries risks, including side effects and the possibility of regret post-treatment, it is advisable to allow both patients and psychiatrists adequate time to assess the severity of traumatic memories before proceeding with memory dampening.
The doctrine of informed consent does not generally hinder the use of therapy, as preventative medicine often involves treating individuals who may not develop the targeted illnesses Decisions regarding preventative measures are made by assessing the expected costs and benefits, even when they significantly impact lives For instance, women with a genetic predisposition to breast cancer may choose preventative mastectomies despite the low likelihood of developing the disease Physicians play a crucial role in educating patients about the costs and benefits of medical interventions, particularly those based on probabilistic outcomes, such as prescribing propranolol.
143 B EYOND T HERAPY , supra note Error: Reference source not found, at 227.
144 See supra note Error: Reference source not found and accompanying text.
145 As noted, researchers are testing methods of using propranolol-style memory dampening after the initial six hour period See supra note Error: Reference source not found.
Patients often provide informed consent for vaccination against rare diseases, despite the low likelihood of contracting such diseases The cost-benefit analysis of vaccination is complex, particularly for contagious diseases, as it yields positive externalities that benefit public health.
147 Timothy R Rebbeck et al., Bilateral Prophylactic Mastectomy Reduces Breast Cancer
Risk in BRCA1 and BRCA2 Mutation Carriers: The PROSE Study Group, 22 J C LINICAL
O NCOLOGY 1055, 1055 (2004); Carl T Hall, Surgery Cuts Risk of Breast Cancer: Study
A significant study highlighted in the San Francisco Chronicle on February 24, 2004, indicates that preventive mastectomies can lower breast cancer risk by up to 90% for women with a high genetic predisposition Healthcare providers must ensure they obtain informed consent from patients by thoroughly explaining the potential risks and benefits of such treatments The probabilistic nature of these decisions does not impact the necessity of informed consent in the treatment process.
While individuals who have recently experienced emotional trauma may struggle with reflective decision-making, this does not preclude them from consenting to medical treatments For instance, a patient injured in a car accident, though shaken and facing the difficult choice of limb amputation to prevent further complications, can still provide consent if they meet basic competency standards In such cases, healthcare professionals prioritize obtaining consent despite the patient's emotional distress.
Ethical Issues
Report of the President’s Council on Bioethics
The President’s Council on Bioethics was created in November 2001 through an executive order to provide guidance to the President on bioethical issues arising from advancements in biomedical science and technology In October 2002 and March 2003, the Council convened to discuss various relevant matters, including legal precedents such as Brown v Connolly, which established that a party suffering from amnesia due to an accident is presumed to have acted with due care.
The hearings on ethical issues related to memory-altering drugs, as outlined in Exec Order No 13237, focused on enhancing memory retention for individuals with disorders such as Alzheimer's disease and on providing extraordinary memory skills to healthy individuals Additionally, the Council gathered testimony about the current research on memory dampening and its potential future developments.
In October 2003, the Council released a report, Beyond Therapy:
The report "Biotechnology and the Pursuit of Happiness" explores the ethical implications of new technologies aimed at enhancing human performance, distinguishing between traditional therapies that restore health and enhancement methods that improve upon it A significant focus is placed on brain-enhancing pharmaceuticals, including those that dampen memories While it may appear paradoxical, memory dampening can serve as a form of enhancement by enabling individuals to forget burdensome memories, ultimately improving their overall well-being.
The Council expresses skepticism regarding the effectiveness of memory dampening drugs, even for individuals with severe traumatic memories While they acknowledge that these drugs may appear beneficial for preventing PTSD, they highlight significant concerns that make the use of beta-blockers and similar agents problematic for this purpose.
Council members have increasingly voiced their opposition to memory dampeners, with psychiatrist and Council member Paul McHugh expressing significant concern over any efforts to erase memories of traumatic experiences.
181 See supra note Error: Reference source not found and accompanying text.
182 See Hearings, Part 1, supra note Error: Reference source not found.
183 See id.; Hearings, Part 2, supra note Error: Reference source not found; Hearings, Part 3, supra note Error: Reference source not found.
184 See B EYOND T HERAPY , supra note Error: Reference source not found.
The referenced sources discuss various aspects of the topic, highlighting key insights and findings Notable contributions include those by Elliott, Farah, Chatterjee, and Jha, which collectively enrich the understanding of the subject Additionally, Henry T Greely's work provides further context and depth to the ongoing discourse.
Social Effects of Advances in Neuroscience: Legal Problems, Legal Perspectives, in
N EUROETHICS : D EFINING THE I SSUES IN T HEORY , P RACTICE , AND P OLICY 245, 255-56 (Judy Illes ed 2006); C ARL E LLIOTT , B ETTER T HAN W ELL : A MERICAN M EDICINE M EETS THE A MERICAN D REAM (2004); see generally Adam Kolber, Neuroethics & Law Blog, available at http://kolber.typepad.com (posting on cognitive enhancement and other issues in neuroethics).
In discussions surrounding trauma treatment, there is a significant concern about the use of memory-erasing drugs Council member Gilbert Meilaender warns that such interventions could jeopardize fundamental aspects of humanity, emphasizing the importance of preserving memories even when employing traditional therapeutic methods to assist those recently affected by trauma.
The Council lacks the authority to create policy and did not issue policy recommendations in its report, possibly due to a lack of consensus or a belief that it was too early to provide opinions However, it remains important to explore whether the concerns raised by the Council could serve as valid justifications for restricting or prohibiting the therapy, acknowledging that this investigation differs from the Council's original inquiry.
Prudential Concerns
The Council raises significant concerns about memory dampening, suggesting it could harm patients' psychological well-being and diminish their quality of life They argue that traditional methods of processing negative memories have beneficial effects, while pharmaceutical interventions may disconnect individuals from real-world experiences and weaken their sense of identity These concerns, termed "prudential concerns," focus on how memory dampening might hinder personal fulfillment and meaningful living, rather than presenting ethical obligations to others regarding how life should be led.
187 Hearings, Part 3, supra note Error: Reference source not found, at 11-12 (comments of Paul McHugh)
The desire to alleviate painful memories is natural, as it is preferable to lessen suffering rather than erase the memory entirely Individuals should retain the essence of their experiences, which can empower them to shape their narratives and maintain a sense of control over their futures Furthermore, it prompts reflection on our relationship with nature, questioning whether we are truly distancing ourselves from it while believing we can surpass its inherent wisdom.
189 Meilaender, supra note Error: Reference source not found, at 24.
In various instances, the Council has made significant policy recommendations, such as its unanimous vote in 2002 to advocate for a ban on reproductive cloning This decision highlights the Council's stance on ethical considerations in scientific advancements.
Richard Arneson, in his work "Human Flourishing Versus Desire Satisfaction," discusses the distinction between prudential value and ethical value, suggesting that a life characterized by altruism and perfect morality could paradoxically lead to a state of pure misery.
This article contends that the concerns presented primarily serve as guidance for individuals and medical professionals regarding the appropriate use of memory dampening While the Council's prudential concerns may assist those who accept their contentious foundations, they ultimately lack the necessary strength and general applicability to warrant sweeping restrictions on memory dampening practices.
1 Specific Responses to the Prudential Concerns a The Tough Love Concern
The Council argues that memory dampening provides a quick fix that prevents us from confronting essential emotional pain This raises concerns about the authenticity of such relief, as highlighted by Gilbert Meilaender in his essay, where he suggests that instead of erasing traumatic memories, it may be more beneficial to engage in the struggle of processing them.
According to Meilaender, our goal is not to erase the embarrassing or painful moments of our lives, but rather to redeem them by integrating these experiences into our personal narrative By doing so, we can transform and transfigure these moments, creating a coherent story that reflects the entirety of our life journey.
Views on transforming experiences into a coherent life story vary widely It is possible to create a narrative that includes periods of muted memories The significance of having a neatly packaged life story is also debatable Recent studies indicate that individuals with narcissistic and self-enhancing traits often demonstrate greater resilience following trauma However, these personality characteristics may influence coping mechanisms differently for each individual.
192 Meilaender, supra note Error: Reference source not found, at 21-22.
195 See George A Bonanno et al., Self-Enhancement Among High-Exposure Survivors of the September 11 th Terrorist Attack: Resilience or Social Maladjustment, 88 J
P ERSONALITY & S OCIAL P SYCHOL 984, 985-86, 994 (2005); George A Bonanno, Loss,
Trauma can impact various aspects of our lives, and while some individuals demonstrate resilience and cope effectively with traumatic events, this resilience does not always translate into overall well-being Consequently, the question arises as to whether we should focus on nurturing the personality traits that enable us to recover from trauma, given the complexities involved in this process.
While Meilaender advocates for redeeming and transforming our experiences without memory dampeners, it is important to recognize that some experiences are inherently tragic and terrifying, leaving little room for redemption A poignant example is the aftermath of the 1978 San Diego plane crash, where emotionally unprepared desk clerks and baggage handlers were tasked with retrieving bodies and cleaning the crash site Many of these workers were so traumatized by the experience that they struggled to return to their jobs In such situations, it is unreasonable to expect these individuals to redeem their traumatic experiences, as most would agree they should not have been involved in the cleanup process in the first place, nor should they bear the emotional burden of those harrowing moments.
While weaving traumatic events into positive narratives is beneficial, many individuals struggle to achieve this Memory-dampening drugs can help these individuals make life changes that would otherwise be unattainable without such interventions.
W ORLD R EPORT , June 23, 2005, available at http://www.usnews.com/usnews/health/articles/050623/23balance.htm {insert page#}
Behaviors that help individuals cope with extreme and adverse events can come with significant drawbacks Research indicates that while those exhibiting a self-enhancing bias may show remarkable resilience to trauma, they often score high on narcissism scales Additionally, repeated interactions with these individuals may lead to negative perceptions among unfamiliar peers.
During the Council's Hearing, James McGaugh highlighted a significant example related to air disaster planning, emphasizing the overlooked aspects of this critical issue This concern is further discussed in the work of James N Butcher and Chris Hatcher, who explore the neglected entities in their article in the American Psychologist.
198 Hearings, Part 1, supra note Error: Reference source not found (comments of James McGaugh).
199 See Meilaender, supra note Error: Reference source not found.
The Council acknowledges the understandable desire to lessen the pain of intrusive memories that can overshadow normal life experiences However, they caution that alleviating such memories may come at the cost of compromising the truthfulness of one's recollections While pharmaceuticals can significantly reduce the time needed to process trauma, potentially transforming a twenty-year struggle into a two-year recovery, this raises questions about the perception of resilience versus obstinacy Ultimately, even when positive transformation is desired following trauma, memory dampening may play a valuable role in easing the recovery process.
The concern surrounding memory-dampening drugs suggests that individuals who use them to forget painful experiences may struggle to cope with suffering and sorrow However, this argument primarily addresses the hypothetical effectiveness of such drugs If a memory-dampening medication were to increase psychological distress due to addiction or poor decision-making, it would be deemed ineffective by both doctors and patients, not from an ethical standpoint but from a scientific one Therefore, to engage in meaningful discussions about memory dampening, we must assume the existence of a drug that is not highly addictive and meets essential standards of medical efficacy and safety.
Obligations to Remember
In the Supreme Court’s most influential “right to die” case, Cruzan v
In the case of Nancy Cruzan, the Missouri Department of Health denied her family's request to disconnect her from life-sustaining artificial feeding and hydration while she remained in a persistent vegetative state Dissenting Justice John Paul Stevens highlighted the importance of how individuals are remembered after death, suggesting that Cruzan might have preferred to be remembered for her life rather than her prolonged suffering He expressed concern that extending her life in this manner could irreversibly damage the memories of who she truly was.
Stevens posits that individuals have a strong desire to be remembered in specific ways, which creates an obligation to honor these interests through appropriate remembrance of people and events However, while memory dampeners might undermine these obligations, this article argues against imposing strict limitations on their use Initially, it will outline the concerns raised by Council members regarding the potential violation of remembrance obligations due to memory dampening Subsequently, it will contend that even if ethical duties to remember exist, they do not sufficiently warrant broad restrictions on the use of memory dampeners.
Council member Gilbert Meilaender proposes that we hold ethical responsibilities to remember those who have been treated unjustly and acknowledge the wrongs they have suffered This remembrance is essential not only for the victims but also for our own moral integrity.
The Court affirmed that Missouri could constitutionally mandate "clear and convincing evidence" regarding Nancy Cruzan's wish to terminate life support, upholding the Supreme Court of Missouri's conclusion that this evidentiary standard had not been satisfied.
In his dissent, Justice Stevens emphasizes that the renowned declarations of figures like Nathan Hale and Patrick Henry reflect a profound passion for life, ensuring that their legacies endure in the memories of their fellow countrymen.
Justice Stevens highlighted that the surviving family members wish to remember their loved one for her past vitality rather than her current condition, emphasizing the importance of preserving positive memories.
A grieving mother, who witnessed the tragic loss of her two teenage sons in a car accident, expressed a profound desire to remember the incident, feeling a deep obligation to honor their memory This sentiment reflects a broader understanding of our shared humanity, suggesting that many individuals may feel a prima facie obligation to remember and preserve the memories of loved ones lost, driven by interests in respect, honor, and justice.
In a world where memory dampening does not exist, it may appear that individuals cannot be held accountable for forgetfulness, as memories are beyond our control However, society often assigns responsibility for lapses in memory, such as forgetting significant dates like birthdays or anniversaries, and penalizes those who fail to meet deadlines like tax filings Tragically, severe consequences arise when parents inadvertently forget their children in hot cars, leading to devastating outcomes and, in some cases, criminal charges.
Our obligations to remember are often overlooked, largely because, before the advent of memory dampening technology, individuals had limited ability to consciously modify their memories Consequently, the ability to fulfill or evade these obligations was also restricted This raises the question of why society still holds individuals accountable for their forgetfulness.
256 Meilaender, supra note Error: Reference source not found.
257 See generally A VISHAI M ARGALIT , T HE E THICS OF M EMORY (2002).
258 On whether and how we may be responsible for states of affairs beyond our control, see
In "Moral Luck," edited by Daniel Statman in 1993, the concept of moral luck is explored, while Adam J Kolber presents a counterargument in his unpublished senior thesis, "The Moral of Moral Luck," from 1996, available for reference with the author.
In criminal law, it is essential that every offense involves either a voluntary action or a failure to act when there is a legal obligation to do so This principle safeguards individuals from being punished solely for their uncontrollable thoughts, as illustrated in cases like Proctor v State.
P 771 (Okla Crim App 1918); H ERBERT P ACKER , T HE L IMITS OF THE C RIMINAL
Sanction 73-75, 76 (1968) highlights the implications of omissions in legal contexts, where individuals may be penalized for not having certain thoughts or awareness A notable example is the case of State v Williams, 484 P.2d 1167 (Wash App 1971), where parents were convicted of manslaughter for failing to acknowledge the severity of their child's illness and seeking appropriate medical care.
260 See 26 U.S.C § 6651 ({year}) Of course, one may fail to file a timely tax return for reasons other than forgetfulness.
261 See Minerva Canto, Kids’ Death in Hot Cars is a Curse for Parents, O RANGE C OUNTY
R EGISTER (Oct.5, 2004); Suzette Hackney, County Won’t Charge Father: Neglect Not
Criminal in Son’s Death in Van, D ETROIT F REE P RESS , July 28, 1999
Prosecutors typically require evidence of gross negligence before pursuing cases of extreme forgetfulness, as demonstrated in Kelly v Commonwealth, where a father was convicted of manslaughter for leaving his young daughter unattended in a hot van for several hours This highlights that the issue often lies not in involuntary forgetfulness, but in intentional failures, such as a taxpayer deliberately neglecting to note a filing deadline In a future where memory-altering drugs exist, individuals might have greater control over their ability to remember or forget, potentially leading to increased accountability for the memories they choose to retain or discard.
While it's important to acknowledge our obligations to remember the Holocaust, it's easy to overstate their significance The Council may have misjudged this when suggesting that those with firsthand experiences should not suppress their traumatic memories.
The plight of individuals who have endured or witnessed atrocities, such as Holocaust survivors, raises profound ethical questions about memory and trauma While dulling painful memories may seem beneficial for the individual, widespread adoption of this approach could be detrimental to society It prompts us to consider whether the collective human experience would suffer from a mass numbing of such critical memories Furthermore, it challenges us to reflect on the responsibility of those who have faced evil to remember and testify to their experiences, ensuring that the horrors they endured are not forgotten by future generations.
Coarsening to Horror
The Council raised concerns that memory dampening may desensitize individuals to horror and tragedy, leading to a diminished emotional response to trauma This chemically-induced numbness could result in a distorted perception of shameful and terrible acts, making them seem less severe than they truly are For instance, a hypothetical witness to a violent crime who uses memory dampening may ultimately view the incident as less serious than it would appear without such pharmaceutical intervention.
Witnessing a shocking murder can leave a lasting impact, leading to fears of being haunted by distressing memories To alleviate the pain and intrusiveness of these recollections, an individual may choose to take propranolol, a medication known for its ability to diminish the emotional intensity of traumatic memories.
The drug alters his memory of the murder, encoding it as a neutral experience, which may lead him to perceive the event as less significant than it truly is This manipulation risks diminishing the emotional weight of the murder for both him and those who witness it, as our understanding of experiences is often influenced by the emotions tied to our memories Consequently, if the murder is recalled without pain or strong feelings, its moral implications may also diminish, fading from awareness altogether.
Memory dampening raises concerns about the accuracy of conveying evidence and information The Council suggests that an individual affected by this phenomenon would no longer serve as a reliable witness to events, such as a murder, and may struggle to recall details when questioned later.
In the landmark case Tarasoff v Regents of the University of California, the court established that therapists have a duty to protect individuals if they determine or should reasonably determine that their patient poses a serious risk of violence to others This ruling emphasizes the importance of reasonable care in safeguarding potential victims from harm.
274 B EYOND T HERAPY , supra note Error: Reference source not found, at 228.
The Council raises concerns about the reliability of a witness's account of a murder, questioning whether their description can be deemed genuine due to the influence of natural linguistic conventions When presented to a jury, the witness's narrative will be interpreted through these conventions, which connect emotional expression to the events described In military contexts, there are fears that soldiers returning from combat may provide affect-reduced accounts of their experiences, potentially downplaying the horror of war A flat and emotionless portrayal of tragedy would perplex listeners, highlighting the impact of memory dampening on our perceptions and communication of significant events Thus, the implications of altered memory extend beyond mere communication, affecting our overall understanding of reality.
Memory dampening may dull our emotions, leading to a decreased willingness to engage with tragic events For instance, consider a potential civil rights leader from the 1960s who, in an effort to escape the painful memories of childhood injustices, opts for memory dampeners Instead of transforming social institutions, he ends up leading a commonplace life, ultimately fading into obscurity and leaving no mark in history.
Coarsened emotions may hinder positive actions and, combined with memory dampeners, could lead to increased engagement in socially destructive behaviors Violent criminals might utilize these memory dampeners to alleviate guilt, raising the likelihood of recidivism Similarly, soldiers with dampened memories may operate without the constraints of conscience, potentially increasing their effectiveness in combat Council member Paul McHugh poses a critical question regarding the implications of such technology on soldiers who may inadvertently cause civilian casualties.
The Council's example suggests that an individual can recount traumatic events "without pain—or without any particular emotion," which may indicate overmedication This raises concerns about the normalization of horrific experiences, as there seems to be little justification for making such distressing events feel ordinary.
277 See B EYOND T HERAPY , supra note Error: Reference source not found, at 154-55; Wasserman, supra note Error: Reference source not found, at 17-18.
278 See Baard, supra note Error: Reference source not found; B EYOND T HERAPY , supra note Error: Reference source not found.
During the Council's hearings, James McGaugh highlighted that stimulants have been administered to soldiers for many years to enhance their performance and focus.
Certain examples indicate that fear and remorse, or the anticipation of these emotions, play a crucial role in inhibiting antisocial behaviors However, the potential impact of memory-dampening agents on this control mechanism raises important questions It is essential to investigate whether these agents could disrupt the natural processes that help regulate behavior, as this concern, while not universally acknowledged, merits further research.
While concerns about memory dampening in trauma are valid, it's crucial not to exaggerate their significance Memory dampening can reduce the perceived severity of traumatic experiences, which is beneficial for survivors For instance, if we can alleviate the traumatic memories of those in military conflicts without escalating violence, it makes the experience of combat more bearable Additionally, just as we use advanced technology to heal physical injuries in battle, we should also address the emotional wounds of soldiers, recognizing that both aspects are vital for their overall well-being.
The growing concern over memory dampening highlights its potential impact on individuals who do not utilize these substances However, this concern alone does not warrant extensive restrictions on memory dampening, especially when considering our usual approaches to drug regulation For instance, many individuals turn to alcohol to cope with the pain of traumatic experiences.
280 Mundell, supra note Error: Reference source not found (quoting McHugh from Nature article).
Psychiatrist Margaret Altemus suggests that the factors preventing soldiers from committing atrocities may not solely be fear, as implied by Dr McHugh Instead, she posits that anger and group mentality could play significant roles in their actions during wartime.
282 James McGaugh, speaking of a hypothetical injured soldier who has killed during battle, asks:
Should we allow someone to bleed out as a consequence for taking a life in battle? We provide first aid and pain relief, doing everything possible to help However, when it comes to the emotional trauma they experience, we are often powerless, as addressing that trauma could fundamentally alter their identity Yet, isn’t losing a limb also a significant change to who they are?
Jeannie Lerche Davis, Forget Something? We Wish We Could, WEBMD, available at http://www.webmd.com on April 9, 2004 (quoting McGaugh).
Freedom of Memory
Concerns regarding memory dampening do not warrant broad restrictions on the therapy, as the ability to choose to dampen memories aligns with our interests in self-determination and mental well-being This choice allows individuals to strengthen their connection to the memories they wish to retain Given the significant potential of memory dampening to alleviate suffering for many, it is essential that this practice is not entirely prohibited, highlighting our right to manage our memories.
The concept of controlling our memories encompasses a broader, yet vaguely defined, set of rights For instance, individuals may possess the right to resist involuntary memory suppression, particularly if the government attempts to erase recollections of sensitive information or intrusive experiences Additionally, neuroscientists are actively researching medications aimed at improving memory retention and addressing memory-related disorders.
283 See supra note Error: Reference source not found.
284 See supra notes Error: Reference source not found, Error: Reference source not found and accompanying text.
285 M C G AUGH , supra note Error: Reference source not found, at 68-79 (describing a variety of drugs that may enhance memory) Interestingly, nicotine has been shown to enhance
Alzheimer’s disease, as well as less severe age-related memory problems
In the realm of memory enhancement, individuals may possess the right to amplify the emotions linked to their memories, particularly to boost positive recollections Additionally, there may be a right to enhance the factual accuracy of stored memories, potentially aiding in the prevention of memory disorders or improving academic performance Conversely, it is crucial to safeguard against the involuntary enhancement of memory content by external forces aiming to mold individuals into better spies, soldiers, students, or employees Furthermore, there should be protections against the coercive enhancement of emotional responses tied to memories, as this could manipulate an individual's moral compass and adherence to social norms.
The right to privacy concerning our memories is increasingly significant, especially as advancements in neuroscience, such as functional magnetic resonance imaging (fMRI), challenge traditional notions of memory confidentiality Government subpoena power can compel individuals to disclose memory content under oath, but emerging neuroimaging technologies may allow third parties to access thoughts and memories directly, bypassing verbal communication This raises critical questions about the implications of such capabilities on personal privacy Additionally, there exists a related "publicity right," which pertains to how we can voluntarily share memory content, particularly in studies involving laboratory animals.
286 See Wasserman, supra note Error: Reference source not found, at 14.
287 See generally Slobogin, supra note Error: Reference source not found.
288 See generally Charles N W Keckler, Cross-Examining the Brain: A Legal Analysis of
Neural Imaging for Credibility Impeachment, 57 H ASTINGS L.J 509 (2006); Sean Kevin Thompson, Note, The Legality of the Use of Psychiatric Neuroimaging in Intelligence
Interrogation; 90 C ORNELL L R EV 1601 (2005); Nicholas Wade, Improved Scanning
Technique Uses Brain as Portal to Thought, N.Y T IMES , Apr 25, 2005, at A19.
289 Paul Root Wolpe et al., Emerging Neurotechnologies for Lie-Detection: Promises and
Perils, 5 A M J OF B IOETHICS 39, 39 (2005); see also Yukiyasu Kamitani & Frank Tong,
Decoding the Visual and Subjective Contents of the Human Brain, 8 N ATURE
In the case of Harrington v State, convicted murderer Terry Harrington attempted to introduce unconventional evidence of his memories through "brain fingerprinting," a technique involving electroencephalography This method claimed to demonstrate that Harrington lacked the crime scene memories typical of the actual perpetrator, while supporting his alibi For the first time, an Iowa court evaluated the admissibility of such evidence, ruling that some brain fingerprinting results were acceptable, yet ultimately dismissed the case for various reasons.
Harrington's petition for a new trial was successful when the Supreme Court of Iowa vacated his conviction based on due process violations, without addressing the admissibility of his brain fingerprinting evidence Although the court did not rule on this evidentiary claim, Harrington was granted a limited right to present unconventional evidence in the lower court.
In the case of Harrington v State, 659 N.W.2d 509 (Iowa 2003), Harrington sought post-conviction relief after being convicted of first-degree murder in the late 1970s Initially sentenced to life imprisonment without the possibility of parole, as noted in State v Harrington, 284 N.W.2d 244 (Iowa 1977), Harrington's conviction and sentence were upheld in subsequent reviews.
"Brain fingerprinting," a technology created by Lawrence Farwell, has generated significant attention but may lack substantial evidence due to its proprietary nature and limited rigorous peer review For a deeper understanding of the intersection between science and involuntary actions in criminal cases, refer to Deborah Denno's work, "Crime and Consciousness."
Acts, 87 M INN L R EV 269, 331-35 (2002); United States General Accounting Office, GAO-02-22, Federal Agency Views on the Potential Application of “Brain
Fingerprinting” (2001), available at http://www.cognitiveliberty.org/pdf/goa_bfp.pdf; Nell
Boyce, Truth and Consequences: Scientists Are Scanning The Brain For Traces Of Guilty
Knowledge, U.S N EWS & W ORLD R EP , Jan 15, 2001, at 40; Chris Clayton, “Brain
Fingerprints” As Defense?, N AT ’ L L.J., Nov 20, 2000, at 4.
292 EEGs measure event related potentials that can be measured on a subject’s scalp a fraction of a second after the subject is exposed to certain stimuli Paul Root Wolpe et al.,
Emerging Neurotechnologies for Lie-Detection: Promises and Perils, 5 A M J OF
B IOETHICS 39, 41 (2005) The origin of these event related potentials is still largely unknown, but “they are associated with novelty and salience of incoming stimuli.” Id
294 Denno, supra note Error: Reference source not found, at 331.
295 Harrington v State, No PCCV 073247, at 9 (Iowa Dist Ct Mar 5, 2001) (order denying motion for a new trial) {verify}; Denno, supra note Error: Reference source not found, at 331.
296 Harrington, No PCCV 073247, at 19 {verify}.
In the case of 297 Harrington, the court highlighted the previous ruling in Slaughter v State, which noted that the topic of brain fingerprinting could have been addressed during the direct appeal process The court concluded there was inadequate evidence to support the reliability of brain fingerprinting based solely on the MERMER effect, suggesting it may not withstand a Daubert analysis Additionally, Lawrence Farwell asserts that brain fingerprinting has successfully confirmed the guilt of at least one individual, as reported by Beth Dalbey in relation to brain fingerprinting testing.
L EDGER , {insert info.} available at http://www.brainwavescience.com/FairfieldLedger.php evidence related to his memory, setting the stage for future battles in this arena 298
With the advent of new neuroscience imaging techniques and pharmaceuticals, the concept of "freedom of memory" is gaining relevance Previously, our limited ability to influence memories made it unnecessary to define related rights However, as these technologies evolve, we can envision a set of rights pertaining to memory, such as the right to dampen or enhance memories, the right to maintain the privacy of our memories, and the right to protect ourselves from unwanted memory alterations or the implantation of false memories.
Recent research suggests that primitive methods of therapeutic forgetting may be close at hand Early methods have focused on efforts to
By the end of 2006, two companies are set to offer fMRI-based lie detection services, highlighting the growing interest in neuroscience applications for truth verification.
Detection Technology Too Much Like Scientific Mind Reading, Ethicist Says, S TANFORD
R EPORT , May 3, 2006, available at http://news-service.stanford.edu/news/2006/may3/lies- 050306.html
There are no court opinions on Westlaw that include the term "freedom of memory," but the related phrase "freedom of mind" is referenced in fifteen Supreme Court cases, primarily within First Amendment law Notable cases include Osborne v Ohio, where Justice Brennan cites United States v Reidel, and Webster v Reproductive Health Services, which includes quotes from Wallace v Jaffree and Wooley v Maynard Additionally, Riley v National Federation of the Blind of North Carolina and Pacific Gas & Electric v Public Utilities Commission of California also reference this concept.
The legal precedents established in various Supreme Court cases emphasize the protection of individual rights and freedoms Notably, decisions such as Maynard v Cartwright, Wallace v Jaffree, and Barnette v West Virginia State Board of Education highlight the importance of free expression and the limits of governmental authority These rulings reinforce the principle that individuals have the right to express their beliefs without undue interference, as seen in cases like Baird v State Bar of Arizona and Two Guys From Harrison-Allentown v McGinley Collectively, these cases illustrate the judiciary's commitment to safeguarding constitutional liberties against potential overreach.
564 (1948); Thomas, 323 U.S at 531 (1945); Barnette, 319 U.S at 637 (1943); Minersville School Dist v Gobitis, 310 U.S 586, 606 (1940); Specht v Commonwealth, 8 Pa at 323.
300 Elizabeth Loftus has implanted so-called false memories into experimental subjects under a variety of conditions See Elizabeth Loftus, Our Changeable Memories: Legal and
Practical Implications, 4 N ATURE R EVIEWS N EUROSCIENCE 231 (2003); Elizabeth Loftus,