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