False memory syndrome may occur in a variety of settings, many of which end up in litigation. The litigation may be either civil or criminal. The false memory itself usually occurs during psychotherapy when the therapist suggests to patient that a particular event might have occurred or must have occurred, based upon the patient’s emotional response to a block in memory or a recollection. It is the process of suggestion in a susceptible person that creates the false memory, which then leads the patient to accuse another person of a wrongdoing that he did not commit. False memory syndrome is separate and not the same as a so-called “recovered memory” which may be a memory of events which, with corroborating evidence, may be proven to the trier(s) of fact to be true. The question of which is which, however, is usually at the heart of such lawsuits.
A careful history of the accuser combined with an appreciation of the suggestibility of the person usually enables a diagnosis to be made.
The existence of false memory syndrome is widely accepted at this time, although as recently as 20 years ago it was not. False memory syndrome is not malingering in that the individual is not intentionally claiming something happened that he knows did not happen. Rather, the individual is accusing another person of a wrongdoing he believes did occur and is doing so because a third party has suggested in a convincing way that it must have happened. After the suggestion, the person creates a false memory about an event that in actuality never occurred.