Brief Amicus Curiae of the American Psychological Association

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

DAVID MOLKO,

Plaintiff and Appellant,

TRACY LEAL, )

Plaintiff and Appellant,

v.

HOLY SPIRIT ASSOCIATION FOR THE UNIFICATION OF WORLD CHRISTIANITY, et al.,

Defendants and Respondents.

BRIEF AMICUS CURIAE OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION;

EILEEN BARKER; JOSEPH BETTIS; DAVID BROMLEY; DURWOOD FOSTER;

WILLIAM R. GARRETT; JEFFREY K. HADDEN; PHILLIP E. HAMMOND; RAY L. HART;

BENTON JOHNSON; RICHARD D. KAHOE; JAMES LEWIS; FRANKLIN LITTELL;

NEWTON MALONY; MARTIN E. MARTY; J. GORDON MELTON; DONALD E. MILLER;

TIMOTHY MILLER; MEL PROSEN; JAMES RICHARDSON; THOMAS ROBBINS;

HUSTON SMITH; BERNARD SPILKA; and JOHN YOUNG

Review of Decision of the Court of Appeal, First Appellate District, Division Two

Appeal from the Judgment of the Superior Court of the State of California in and for the City and County of San Francisco

Honorable Stuart R. Pollak, Judge

ROBERT H. PHILIBOSIAN

MORTON B. JACKSON

MacDonald, Halsted & Laybourne

725 South Figueroa Street

Los Angeles, California 90017

Telephone: (213) 629-3000

BRUCE J. ENNIS

DONALD N. BERSOFF

KIT ADELMAN-PIERSON

Ennis Friedman & Bersoff

1200 17th Street, N.W., Suite 400

Washington, D.C. 20036

Telephone: (202) 775-8100

Attorneys for Amici American Psychological Association, et al.

TABLE OF CONTENTS
TABLE OF AUTHORITIES

INTEREST OF AMICI

INTRODUCTION AND SUMMARY OF ARGUMENT

ARGUMENT

I. THE COERCIVE PERSUASION THEORY THAT PLAINTIFFS ADVANCE IS NOT A MEANINGFUL SCIENTIFIC CONCEPT AND PROFFERED EXPERT TESTIMONY IN SUPPORT OF THIS THEORY WAS PROPERLY EXCLUDED
A. The Standards for Admissibility of Scientific Expert Testimony

1. The Legal Standard

2. The Scientific Standard

B. The Theory of Coercive Persuasion Plaintiffs Advance Is Not Accepted in the Scientific Community

1. The Conclusions of Drs. Singer and Benson Are Not Recognized As Scientific Conclusions in the Relevant Professional Communities

2. Plaintiffs' Theory of Coercive Persuasion Is Not Generally Accepted in the Relevant Professional Literature

C. The Methodology of Drs. Singer and Benson Has Been Repudiated by the Scientific Community

1. The Data on Which Drs. Singer and Benson Rely Is Undocumented and Unverifiable

2. The Sources of Information on Which Drs. Singer and Benson Rely Are Not Impartial

3. Drs. Singer and Benson Have Not Shown That the Harms They Claim to Have Found in Former Church Members Were Caused by Affiliation with the Church

D. Given the Inadequacy of the Scientific Support, Plaintiff's Claim of Coercive Persuasion Is, as the Courts Below Concluded, Simply A Negative Value Judgement In Scientific Garb

[ii]

II. RECOGNITION OF THE COERCIVE PERSUASION THEORY PLAINTIFFS ADVANCE WOULD VIOLATE THE FIRST AMENDMENT AND UNDERMINE BASIC ASSUMPTIONS OF THE LEGAL SYSTEM
A. Imposition Of Tort Liability Under These Circumstances Would Violate The Free Exercise Clause Of The First Amendment

B. Plaintiffs' Theory of Coercive Persuasion Cannot Be Reconciled With Basic Assumptions Of The Legal System

CONCLUSIONS

[iii]

TABLE OF AUTHORITIES
CASES:

Ashwander v. TVA, 297 U.S. 288 (1936)

Beck v. Alabama, 447 U.S. 625 (1980)

Bowen v. Roy, ___ U.S. ___, 106 S. Ct. 2147 (1986)

Braunfeld v. Brown, 366 U.S. 599 (1961)

City of Newport Beach v. Sasse, 9 Cal. App. 3d 803, 88 Cal. Rptr. 476 (1970)

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

Goldman v. Weinberger, ___ U.S. ___, 106 S. Ct. 1310 (1986)

Holy Spirit Ass'n v. Tax Commissioner, 55 N.Y.2d 512, 435 N.E.2d 662 (1982)

Huntingdon v. Crowley, 64 Cal. 2d 647, 51 Cal. Rptr. 254, 414 P.2d 382 (1966)

Lewis v. Unification Church, 589 F. Supp. 10 (D. Mass. 1983)

McDaniel v. Paty, 435 U.S. 618 (1978)

Metropolitan Edison Company v. People Against Nuclear Energy, 460 U.S. 766 (1983)

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)

New York Times v. Sullivan, 374 U.S. 276 (1964)

Newby v. Alto Rivera Apartments, 60 Cal. App. 3d 288 (1976)

PASE v. Hannon, 506 F. Supp. 831 (N.D. Ill. 1980)

People v. Bledsoe, 36 Cal. 3d 236, 203 Cal. Rptr. 450, 681 P.2d 291 (1984)

People v. Kelly, 17 Cal. 3d 24, 130 Cal. Rptr. 144, 549 P.2d 1240 (1976)

People v. Martinez, 150 Cal. App. 3d 579, 198 Cal. Rptr. 565 (1984)

[iv]

People v. Marx, 54 Cal. App. 3d 100, 126 Cal. Rptr. 350 (1975)

People v. McDonald, 37 Cal. 3d 351, 208 Cal. Rptr. 236, 690 P.2d 709 (1984)

People v. Roscoe, 168 Cal. App. 3d 1093, 215 Cal. Rptr. 45 (1985)

People v. Shirley, 31 Cal. 3d 18, 181 Cal. Rptr. 243, 641 P.2d 775 (1982)

Reynolds v. United States, 191 U.S. 367 (1878)

Sherbert v. Verner, 374 U.S. 398 (1963)

Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707 (1981)

Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978)

Unification Church v. INS, 547 F. Supp. 623 (D.D.C. 1982)

United States v. Ballard, 322 U.S. 78 (1944)

United States v. Lee, 455 U.S. 252 (1982)

Wisconsin v. Yoder, 406 U.S. 205 (1972)

STATUTES:

California Code of Evidence:

Rule 352 39

Rule 801(b)

California Civil Code:

1572

1709

1710

MISCELLANEOUS:
Anthony & Robbins, New Religions, Families, and "Brainwashing" in In Gods We Trust 263 (T. Robbins & R. Anthony eds. 1981)

[v]

Balch, What's Wrong With the Study of New Religions and What We Can Do About It, in Scientific Research and New Religions 25 (B. Kilbourne ed. 1985)

E. Barker, The Making of a Moonie (1984)

J. Biermans, The Odyssey of New Religious Movements (1986)

Bird & Reimer, Participation Rates in the New Religious Movements, 22 J. for the Scientific Study of Religion 1 (1982)

D. Bromley & A. Shupe, Strange Gods (1981)

Coleman, New Religions and "Deprogramming;" Who's Brainwashing Whom? in Cults, Culture, and the Law 71 (1985)

Comment, The Psychologist as Expert Witness: Science in the Courtroom, 38 Md. L. Rev. 538 (1979)

Deutsch & Miller, A Clinical Study of Four Unification Church Members, 140 Am. J. Psychiatry 767 (1983)

Flinn, Criminalizing Conversion: The Legislative Assault on New Religions in Crimes, Values and Religions 35 (Day & Laufer eds. 1986)

Galanter, Charismatic Religious Sects and Psychiatry: an Overview, 139 Am. J. Psychiatry 1539 (1982)

Galanter, Psychological Induction into the Large Group: Findings from a Modern Religious Sect, 137 Am. J.

Psychiatry 1575 (1980)

Galanter, Unification Church ("Moonie") Dropouts: Psychological Readjustment After Leaving a Charismatic Religious Group, 140 Am. J. Psychiatry 984 (1983)

Galanti, Brainwashing and the Moonies, 1 Cultic StudiesJournal 27 (1984)

Griffith, Young & Smith, An Analysis of the Therapeutic Elements in a Black Church Service, 35 Hosp. and Com. Psychiatry 464 (1984)

I. Horowitz & T. Willging, The Psichology of Law: Integrations and Applications (1984)

[vi]

James, Brainwashing: The Myth and the Actuality, 61 Thought 241 (1986)

Kelley, Deprogramming and Religious Liberty, 4 Civil Liberties Rev. 27 (1977)

Kilbourne & Richardson, Psychotherapy and New Religions in a Pluralistic Society, 39 Am. Psychologist 237 (1984)

S. Levine, Radical Departures (1984)

Lewis & Bromley, The Cult Withdrawal Syndrome: A Case of Misattribution of Cause, 26 J. for the Scientific Study of Religion (1987) (forthcoming)

Lewis, Apostates and the Legitimation of Repression (Institute for the Study of Religion, G. Melton ed. (1986))

Lewis, Reconstructing the "Cult" Experience, 46 Sociological Analysis 151 (1986)

Loveland & Singer, Projective Test Assessment of the Effects of Sleep Deprivation, 23 J. of Projective Techniques 23 (1959)

Lunde & Wilson, "Brainwashing" as a Defense to Criminal Liability: Patty Hearst Revisited, 13 Crim. L. Bull. 341 (1977)

Lunde, Psychiatric Testimony in "Cult" Litigation, 5 Bull. of the Am. Academy of Psychiatry and the Law (1987) (forthcoming)

J. Melton & R. Moore, The Cult Experience (1982)

J. Monahan & L. Walker, Social Science in Law (1985)

Monahan & Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477 (1986)

J. Neale & R. Liebert, Science and Behavior: An Introduction to Methods of Research (1980)

W. Prosser, Law of Torts SS 11 (1971)

Reich, Brainwashing, Psychiatry, and the Law, 39 Psychiatry 400 (1976)

[vii]

Richardson & Kilbourne, Classical and Contemporary Applications of Brainwashing Models: A Comparison and Critique, in The Brainwashing/Deprogramming Controversy 29 (D. Bromley & J. Richardson eds. 1983)

Richardson, The Active v. Passive Convert: Paradigm Conflict in Conversion/Recruitment Research, 24 J. for the Scientific Study of Religion 163 (1985)

Richardson, The "Deformation" of New Religions: Impacts of Societal and Organizational Factors, in Cults, Culture and the Law 163 (1985)

Richardson, Methodological Considerations in the Study of New Religions, in Divergent Perspectives on the New Religions (B. Kilbourne ed. 1985)

Richardson, Psychological and Psychiatric Studies of New Religions, in II Advances in the Psychology of Religion 209 (L. Brown ed. 1985)

Richardson, van der Lans & Derks, Leaving and Labelling: Voluntary and Coerced Disaffiliation From Religious Social Movements, 9 Research in Social Movement, Conflicts and Change 97 (1986)

Robbins & Anthony, Brainwashing and the Persecution of Cults, 19 J. of Religion and Health 66 (1980)

Robbins & Anthony, Deprogramming, Brainwashing and the Medicalization of Deviant Religious Groups, 29 Social Problems 299 (1982)

Robbins, "Uncivil" Religions and Religious Deprogramming, 61 Thought 277 (1986)

Robbins, Goodbye to Little Red Riding Hood, 10 Update: A Quarterly Journal of New Religious Movements 5 (1986)

Robbins, New Religious Movements, Brainwashing, and Deprogramming, 11 Rel. Studies Rev. 361 (1985)

Saliba, Psychiatry and the New Cults: Part I, 7 Academic Psychology Bulletin 39 (1985)

A. Scheflin & E. Opton, The Mind Manipulators (1978)

[viii]

Schein, The Chinese Indoctrination Program for Prisoners of War: A Study of Attempted 'Brainwashing', in Readings in Social Psychology 3321 (Maccoby, Newcomb & Hartley eds. 1958)

Shapiro, Of Robots, Persons, and the Protection of Religious Beliefs, 56 S. Cal. L. Rev. 1277 (1983)

Singer, Coming Out of the Cults, Psychology Today 71 (January 1979)

Singer, Psychological Variables in Allergic Disease 38 J. Allergy 143 (1966)

Solomon, Integrating the "Moonie" Experience: A Survey of Ex-Members of the Unification Church, in In Gods We Trust 275 (1981)

Solomon, Programming and Deprogramming the "Moonies": Social Psychology Applied, in The Brainwashing/Deprogramming Controversy (D. Bromley & J. Richardson eds. 1983)

Strasser & Thaler, A Prisoner of War Syndrome: Apathy as a Reaction to Severe Stress, 122 Am. J. of Psychiatry 998 (1956)

T. Ungerleider, The New Religions (1979)

Ungerleider & Wellisch, Coercive Persuasion (Brainwashing), Religious Cults, and Deprogramming, 136 Am. J. Psychiatry 279 (1979)

4 Witkin, Summary of California Law (1974)

Wright, Post-Involvement Attitudes of Voluntary Defectors from Controversial New Religious Movements,

23 J. for the Scientific Study of Religion 23 (1984)

1 J. Ziskin, Coping With Psychiatric and Psychological Testimony 65 (1981)

[1]

INTEREST OF AMICI
The American Psychological Association (APA) is a voluntary, nonprofit, scientific and professional organization with more than 60,000 members. It has been the major association of psychologists in the United States since 1892, and includes the vast majority of psychologists holding doctoral degrees from accredited universities in this country. APA's purpose, as reflected in its Bylaws, is to "advance psychology as a science and profession, and as a means of promoting human welfare." APA has sought to further these goals in part by a vigorous effort to promote psychological research, improve research methods and disseminate information regarding human behavior through meetings, scientific publications and special reports. APA includes 45 divisions which reflect the varied areas of professional interest and expertise of the members. More than 1200 APA members belong to APA's Division 36, Psychologists Interested in Religious Issues.

A central issue in this case is the applicability and methodological rigor of the psychological evidence plaintiffs sought to introduce in the courts below. APA is dedicated to the proposition that expert testimony of mental health professionals and behavioral and social scientists can provide valuable guidance to courts faced with issues on the frontiers of human knowledge. Accordingly, in appropriate cases, APA advocates the admissibility of such expert testimony and endeavors to inform courts about trustworthy behavioral science information relevant to particular legal issues. E.g., Brief of Amicus Curiae American Psychological Association in Metropolitan Edison Company v. People Against Nuclear Energy, 460 U.S. 766 (1983) (discussing the psychological harms of environmental events). But APA believes that this commitment to advancing the appropriate use of

[2]

psychological testimony in the courts carries with it a concomitant duty to be vigilant against those who would use purportedly expert testimony lacking scientific and methodological rigor.

APA believes that it has special knowledge to share with the Court in this case. Behavioral and social scientists who have generated much of the significant pertinent research in this area of study have also subjected the proffered testimony of plaintiffs' experts to searching scrutiny. APA will offer this Court an objective analysis of the social science evidence germane to thoughtful resolution of the serious common law and constitutional questions confronting it.

The individual amici, a group comprising academics and other professionals, share many of the concerns of APA. Like APA, the individual amici firmly believe that expert testimony by behavioral and social scientists can, in appropriate cases, provide valuable assistance to courts. Like APA, the individual amici are also concerned to ensure that claims to social science expertise in the courtroom are not abused. Such abuse not only threatens misguided judicial decision making but also demeans the social sciences generally. Particularly when issues as sensitive and as important as the right to practice religion are at stake, the individual amici are concerned that claims of scientific expertise not be used to cloak nonscientific negative value judgments about new religious movements.

The individual amici are personally and professionally committed to the dispassionate, objective study of religion and religious issues. Their collective professional accomplishments rank them as this country's most

[3]

distinguished group of scholars of new religious movements.[*] Most have published scholarly articles concerning movements such as the Unification

[4]

Church. Many--including Eileen Barker, David Bromley, James Richardson, and James Lewis--have conducted empirical research into issues of affiliation with new religious movements, including the Unification Church. Accordingly, the individual amici will offer this Court an objective analysis of the scientific questions that are at the heart of the legal issue in this case.

INTRODUCTION AND SUMMARY OF ARGUMENT
This case presents questions of first impression in this Court involving the imposition of tort liability on a religious organization for the religious conversions of certain former members of that organization.[1] The gravamen of plaintiffs' claim is that defendant Unification Church systematically manipulated them in a manner that deprived them of their free will in order to recruit them to join the Church. This pattern of conduct, which plaintiffs label "coercive persuasion," allegedly resulted in plaintiffs' involuntary affiliation with the Church and this affiliation, in turn, allegedly caused psychic and physical harm for which plaintiffs now demand compensation. Plaintiffs advance this claim despite repeated

[5]

admissions that they were never restrained by force, threats or other physical means from leaving the Church environment or disassociating with the Church.

The legal theory plaintiffs advance is not recognized under the law of California or any other jurisdiction. See Lewis v. Unification Church, 589 F. Supp. 10, 12 (D. Mass. 1983). Plaintiffs have therefore sought to fit their claim into three long-established theories of tort liability: false imprisonment, fraud, and intentional infliction of emotional distress. The courts below properly held that none of these causes of action protects the novel interest plaintiffs seek to vindicate. See Molko v. Holy Spirit Association, 179 Cal. App. 3d 450, ___ Cal. Rptr. ___ (1986); Order Granting Summary Judgment in No. 769-529, October 20, 1983 (unpublished) ("Trial Court Order"). Plaintiffs have not claimed that they were forcibly detained against their will, that they were deceived about the nature of the Unification Church when they chose to affiliate with it, or that Church members intended to inflict emotional harm on them during recruitment[2]. Instead, plaintiffs assert that--by a process of coercive persuasion--they were deprived of the capacity to think and choose.

[6]

That California law does not presently recognize plaintiffs' cause of action is not in itself sufficient reason to deny a remedy. The question in the present case is, however, whether the common law of California should be extended to recognize the novel cause of action plaintiffs assert. Amici will present this Court with arguments grounded in science and law showing that it would be inappropriate and unwise for the judicial system, acting without legislative mandate or guidance, to create the new tort plaintiffs propose.

The sole scientific basis for plaintiffs' claim is the proffered expert testimony of a psychologist, Dr. Margaret Singer, and a psychiatrist,

[7]

Dr. Samuel Benson. They define "coercive persuasion" as a process in which Church recruiters "engage in systematic manipulation of the social influences surrounding the potential recruit to the extent that the recruit, in fact, loses the capacity to exercise his own free will and judgment." Declaration of Margaret Thaler Singer, Ph.D., July 6, 1983 ("Singer Declaration") at 3 (R.754); Declaration of Samuel G. Benson, M.D., June 30, 1983 ("Benson Declaration") at 1 (R.765).

Drs. Singer and Benson have offered only hints as to what "systematic manipulation of the social influences" means and how it works to overbear human will. Apparently, one crucial feature of this purportedly coercive process is focusing excessive affection, flattery and good will upon recruits. Other features of this alleged "systematic manipulation" include: significant amounts of prayer, lectures on religious themes and follow-up discussions, constant attention to potential members by Church members, extensively organized physical recreational activity, other group activities such as singing or hiking, and discussions that focus on guilt felt by potential members[3].

[8]

The viability of plaintiffs' "coercive persuasion" theory hinges on the admissibility of this purported expert testimony; without it, plaintiffs lack any factual basis for their claim of coercion. Because amici firmly believe that expert testimony of mental health professionals and social scientists can provide valuable guidance to courts faced with issues on the frontiers of human knowledge, amici would not lightly take the position that psychological testimony should be deemed inadmissible in a case turning on the alleged effects of environment on the mental process. As amici will show in Point I, however, in this case the lower courts were correct to exclude the testimony of Drs. Singer and Benson. Their proffered testimony failed to meet basic scientific standards of reliability and validity incorporated into the test for admissibility set forth in California Code of Evidence SS 801. Specifically, the conclusions Drs. Singer and Benson assert cannot be said to be scientific in any meaningful sense (Point I.B.), and the methodologies generating those conclusions depart so far from methods generally accepted in the relevant professional communities that they are incapable of producing reliable or valid results (Point I.C.). Stripped of the legitimating lustre of a scientific pedigree, plaintiffs' purported scientific claim of coercive persuasion is little more than a negative value judgment rendered by laypersons about the religious beliefs and practices of the Unification Church. (Point I.D.).

In Point II amici will show that even had plaintiffs made a plausible factual showing--and they have not--judicial adoption of the legal theories they advance would nonetheless face insurmountable legal obstacles. Plaintiffs in this case seek nothing less than the imposition of tort liability for the core religious practices of the Unification Church--group

[9]

meditation and prayer, proselytizing, confessing sins, and fasting for spiritual purification. The First Amendment guarantee of "free exercise of religion" forbids official prohibition of religious practices unless the government can show a compelling need for the prohibition. Plaintiffs have not made such a showing in this case; no compelling governmental interest in public health or safety justifies their claim. Imposition of liability on the Unification Church would also amount to discriminatory application of a government restriction on religion. For these reasons, adoption of plaintiffs' novel legal theories would violate the Free Exercise Clause of the First Amendment. (Point II.A.). Plaintiffs' novel legal theory is also irreconcilable with fundamental assumptions of our legal system and should for this additional and independent reason not be recognized. (Point II.B.).

Given these looming First Amendment hurdles and the demonstrable weakness of the factual and legal bases for plaintiffs' claim, amici urge this Court, in accordance with well-established principles of adjudication, to avoid the constitutional issue by declining to recognize the novel cause of action plaintiffs assert. See Ashwander v. TVA, 297 U.S. 288 346-348 (1936) (Brandeis, J., concurring).

I. THE COERCIVE PERSUASION THEORY THAT PLAINTIFFS ADVANCE IS NOT A MEANINGFUL SCIENTIFIC CONCEPT, AND PROFFERED EXPERT TESTIMONY IN SUPPORT OF THAT THEORY WAS PROPERLY EXCLUDED.
A. The Standards for Admissibility of Scientific Expert Testimony.

1. The Legal Standard.
Rule 801(b) of the California Code of Evidence provides for the admission of expert testimony "[b]ased on matter . . . that is of a type that

[10]

reasonably may be relied upon by an expert in forming an opinion on the subject to which his testimony relates." Interpreting Rule 801(b), this Court has generally applied the widely recognized principle of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), for determining the admissibility of scientific methods of proof. People v. Kelly, 17 Cal. 3d 24, 30-34, 130 Cal. Rptr. 144, 549 P.2d 1240 (1976). Frye holds that "while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. at 1014. See also Huntingdon v. Crowley, 64 Cal. 2d 647, 653-654, 51 Cal. Rptr. 254, 414 P.2d 382 (1966); People v. Roscoe, 168 Cal. App. 3d 1093, 215 Cal. Rptr. 45 (1985); People v. Marx, 54 Cal. App. 3d 100, 126 Cal. Rptr. 350 (1975). This Court has repeatedly endorsed Frye as the appropriate standard to govern the admissibility of expert testimony from mental health professionals. People v. Bledsoe, 36 Cal. 3d 236, 247, 203 Cal. Rptr. 450, 681 P.2d 291 (1984); People v. Shirley, 31 Cal. 3d 18, 53, 181 Cal. Rptr. 243, 641 P.2d 775 (1982).[4]

[11]

To meet the Frye admissibility threshold a proponent of expert testimony must show proven reliability. See Comment, The Psychologist as Expert Witness: Science in the Courtroom, 38 Md. L. Rev. 538 (1979). This burden is met by demonstrating that an expert's methods or techniques have "received general acceptance by recognized experts in the field." People v. Marx, 126 Cal. Rptr. at 355. In determining whether an expert's methods have

[12]

received general acceptance, courts look to prevailing expressions of professional opinion such as scientific articles authored by experts in the field. People v. Bledsoe, 36 Cal. 3d at 250; People v. Roscoe, 215 Cal. Rptr. at 49. This test of admissibility applies fully to the expert testimony of mental health professionals. Id.

Often the expert testimony of mental health professionals will meet this test for admissibility. And amici fully endorse the consensus view that "[w]hile psychiatry and psychology may not be exact sciences, they can now provide sufficiently reliable information . . . to provide a jury with an intelligent basis for evaluating a particular claim." Towns v. Anderson, 195 Colo. 517, 519, 579 P.2d 1163, 1164 (1978). But ensuring the integrity of such testimony is crucial. The courts of this State have repeatedly recognized the risk that inexpert lay jurors will tend to defer uncritically to testimony cloaked in a mantle of scientific expertise. People v. Bledsoe, 36 Cal. 3d at 251 (psychological testimony failing to meet Frye "unfairly prejudices . . . by creating an aura of special reliability and trustworthiness"); People v. Roscoe, 215 Cal. Rptr. at 48 (same). Such a risk is particularly great when, as in this case, a prevailing social climate of prejudice or hostility toward one party may well predispose lay juries to accept purportedly scientific claims that confirm prevailing hostile views. Under such circumstances, the trial court's duty to supervise the admissibility of expert testimony must be exercised with special vigilance.

2. The Scientific Standard.
Because the test for admissibility under Rule 801 incorporates professional standards of reliability and validity, an understanding of the scientific method is essential to resolving the legal issue of admissibility

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in this case. Responsible social and behavioral scientists can provide admissible expert assistance to a court when they base conclusions upon the results of proper scientific inquiry. Scientific inquiry is "the pursuit of objective knowledge gleaned from observation." J. Neale and R. Liebert, Science and Behavior: An Introduction to Methods of Research 9-10 (1980) (hereafter Science and Behavior). The "search for cause lies at the heart of the scientific enterprise." Id. Scientists, however, can confidently assert causal explanations for observed phenomena only under certain conditions.

As a threshold matter, scientific investigation "must refer to some aspect of the empirical world, i.e., to something we can observe with our senses". J. Monahan and L. Walker, Social Science in Law 33-34 (1985) (hereafter Social Science in Law). If a claim cannot be investigated by means of direct observation, it is not a proper subject of scientific inquiry. Neale & Liebert, Science and Behavior, supra, at 9.[5]

Scientific inquiry also requires that claims be justified by measuring or quantifying in some way what is observed. Monahan & Walker, Social Science in Law, supra, at 34. Valid methods of observation and measurement are not confined to pristine laboratory conditions; social and behavioral scientists studying complex human social behavior can, for example,

[14]

examine relationships between variables by determining whether their occurrence correlates to observed phenomena in the natural environment. But the validity of any causal explanation depends crucially on its empirical foundation. If a claim is not susceptible to observation and measurement, that claim can be neither verified nor refuted. Untestable claims have no scientific validity. See 1 J. Ziskin, Coping With Psychiatric and Psychological Testimony 65 (1981) ("The distinguishing characteristic of science lies in the fact that a science tests its knowledge" (emphasis in original)). See also I. Horowitz and T. Willging, The Psychology of Law: Integrations and Applications 22 (1984) ("the experimental method . . . which emphasizes creation of knowledge and its verification through observation and experiment, [is] the hallmark[] of experimental psychology").

To be of use to courts, of course, scientific analyses must produce trustworthy conclusions about such observable phenomena. For practitioners of the scientific method, trustworthiness is described in terms of two components: reliability and validity. A particular methodological approach is considered reliable to the extent it generates a consistent series of results. A methodology is considered valid to the extent it generates an accurate measurement of what it is supposed to measure. See Monahan & Walkker, Social Science in Law, supra, at 43-45.

Validity, in turn, has two aspects. Internal validity refers to whether the methods and analyses employed were sound enough to justify the inferences drawn by the researcher--whether methodology was designed to exclude plausible rival hypotheses for observed phenomena. See id. at 45-50. External validity refers to the extent to which the findings of a study can be

[15]

generalized. Id. at 50. In evaluating external validity or "generalization," scientists consider whether findings can be generalized (i) across persons, i.e., whether the subjects of the research differed in important ways from the people to whom the research is being generalized; (ii) across settings, i.e., whether they apply in situations not directly involved in the research; and (iii) over time. Thus the trustworthiness and generalizability of a study increases as independent investigators arrive at a common conclusion. The more often a study confirms prior research or is confirmed by subsequent research and the more often a body of research with differing methodologies supports a common proposition, the less likely it is that chance fluctuations in data or methodological anomalies account for findings. See generally, Monahan & Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law, 134 U. Pa. L. Rev. 477 (1986).

Amici will demonstrate that a strong consensus of relevant professional opinion supports the trial court's decision to exclude the proffered testimony of Drs. Singer and Benson because that testimony did not meet these standards of general acceptance in the scientific community. The theories of Drs. Singer and Benson are not new to the scientific community. After searching scrutiny, the scientific community has repudiated the assumptions, methodologies, and conclusions of Drs. Singer and Benson. The validity of the claim that, absent physical force or threats, "systematic manipulation of the social influences" can coercively deprive individuals of free will lacks any empirical foundation and has never been confirmed by other research. (Point I.B.) The specific methods by which Drs. Singer and Benson have arrived at their conclusions have also been rejected by all serious scholars in the field. (Point I.C.)

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1. The Conclusions of Drs. Singer and Benson Are Not Recognized As Scientitic Conclusions in the Relevant Professional Communities
From a scientific point of view, it is exceedingly difficult--most would say wholly illegitimate--to evaluate allegedly coercive acts by measuring their effect on some ineffable human quality called free will. To do so, a scientist would have to define what free will is, describe how the environment affects free will, and decide the point at which the effects become so great that free will can be said to be overborne. In such inquiries swirl the deepest philosophical mysteries of human existence; no responsible scientist lays claim to the power to define or discuss free will in this sense. See Balch, What's Wrong With the Study of New Religions And What We Can Do About It, in Scientific Research and New Religions 25 (B. Kilbourne, ed. 1985) (as a descriptive label, "brainwashing ... is essentially useless because it depends on untestable assumptions about the slippery issues of freedom and control") (hereafter The Study of New Religions).[6]

What responsible scientists can do is investigate the range of observable responses to environmental stimuli. See Point I.A.2., supra. From a scientific perspective, coercion is thus a feature of external environment, inferred from the constricted range of behavior most people show in that environment. When measuring coercion in this statistical sense, psychologists

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and other behavioral scientists can infer the degree of coercion of a particular complex of stimuli by measuring how much it affects the range of behaviors most people generally show. When an apparently fit beggar asks for money, for example, a few people give a little, a few give more, and most simply walk on. Begging, then, is not ordinarily very coercive. When a mugger asks for money with a knife at the victim's throat, most people give it. Armed mugging is quite coercive.

For a scientist, the difference between the average behavioral response to a healthy beggar and the average response to an armed mugger is not attributable to the effects of each on a non-observable intangible called "will." It is simply a question of empirical evidence about the range of behavioral responses typically shown in the two circumstances. If empirical evidence shows that the great majority of people subjected to a particular complex of stimuli exhibit a very limited range of behaviors, even though other behaviors were physically possible, it can be said that this complex of stimuli is an effective constraint. Conversely, when persons subjected to particular stimuli engage in a broad range of behaviors, it cannot be said that this complex of stimuli is coercive in any scientifically meaningful sense.

When plaintiffs' theory of coercive persuasion is evaluated in this scientific way, its plausibility evaporates. A significant and uncontradicted body of empirical social science evidence demonstrates that the overwhelming majority of persons who undergo the process plaintiffs describe as "coercive persuasion," even for a period of weeks, choose not to affiliate with the Unification Church. Several studies of Unification Church

[18]

recruitment workshops reveal that, on the average, fewer than one in ten of those who got as far as attending a Church workshop agree to join the Church, and fewer than one in twenty remain with the Church for two years. E.g., Barker, The Making of a Moonie 146 (1984) (fewer than ten percent of more than one thousand persons studied in 1979 agreed to join the Church for more than one week and fewer than four percent remained affiliated for more than two years) (hereafter Making of a Moonie); Galanter, Psychological Induction into the Large Group: Findings from a Modern Religious Sect, 137 Am. J. Psychiatry 1575 (1980) (fewer than nine percent agreed to join the Church for more than one week and fewer than six percent remained affiliated for more than one year); Bird & Reimer, Participation Rates in the New Religious Movements, 22 J. for the Scientific Study of Religion 1, 1-21 (1982); S. Levine, Radical Departures (1984). See also Saliba, Psychiatry and the New Cults: Part I, 7 Academic Psychology Bulletin 39, 51-52 (1985) (hereafter Psychiatry and the New Cults); J. Melton & R. Moore, The Cult Experience 44 (1982) (hereafter The Cult Experience); D. Anthony & T. Robbins, New Religions, Families and "Brainwashing", in In Gods We Trust 263, 264 (1981) (hereafter New Religions); Richardson & Kilbourne, Classical and Contemporary Applications of Brainwashing Models: A Comparison and Critique 29, 31, in The Brainwashing/Deprogramming Controversy (D. Bromley & J. Richardson, eds. 1983) (hereafter Classical and Contemporary Applications of Brainwashing Models).

Given these statistics--the general validity of which plaintiffs' expert concedes, Deposition of Margaret Singer in Dole v. Holy Spirit Association, No. 554520-8, February 23, 1984, at 83-84--the only conclusion that can scientifically be drawn is that the conversion practices of the Unification Church are not coercive. These practices not only fail to convert

[19]

at least 90% of those subjected to them, but actually dissuade the overwhelming proportion. Furthermore, although persons who join the Church remain in an environment plaintiffs' experts would characterize as psychologically manipulative, even most of those initially persuaded to join the Church leave it after a period of months or years.[7] These numbers are particularly striking because the group experiencing the conversion process--those agreeing to attend a workshop--is likely to be far more disposed to accept the invitation to spiritual fulfillment than is the population at large. Barker, Making of A Moonie, supra, at 147. As a general matter, then, the claim of Drs. Singer and Benson that the Church's conversion practices are in themselves coercive is demonstrably false.[8]

Nor does the proffered testimony suggest that even the small percentage of persons who decide to join the Church have been psychologically coerced. Because the Church's conversion practices are not in themselves coercive for the vast majority of people, the operation of some other

[20]

variable--either alone or interacting with the Church's conversion practices--must explain individual decisions to join the Church. Id. at 144-45. It might be possible, for example, to define a certain subgroup of persons possessing common traits who are particularly likely to respond favorably. Were experts able to show statistically that members of this subgroup will typically respond to the Church's conversion practices by joining the Church, then it might--under some circumstances--be possible to express a scientific opinion that this complex of stimuli was coercive for this subgroup. Drs. Singer and Benson have not, however, purported to undertake any such definition, much less analysis; they simply advance the demonstrably incorrect claim that the conversion practices of the Church are inherently coercive.

Furthermore, even if behavioral scientists were able to isolate a configuration of human qualities that differentiates those who decide to join the Church from those who decide not to join, such a showing would not be sufficient to justify imposing legal liability on the Church for seeking to convert such persons. Proof that individuals with certain traits are more likely to join the Church is not proof that such individuals were deprived of their free will. The traits common to such a group might well be those--such as a questing nature or a desire for community-- that predispose group members toward religious experience. A scientist might find Church conversion practices to be extremely persuasive with respect to such a group in that most respond by joining, but such a finding would not in itself justify legal disapprobation. Indeed, for persons predisposed toward religious experience the decision to join the Church might be quite rationale. Thus, the ability

[21]

to persuade, even with extraordinary skill, is not alone a reason for imposing legal liability.[9]

Only if something about the common traits of those persuaded calls for special legal protection should a court consider attaching legal consequences to persuasive efforts that are not inherently coercive. Plaintiffs' experts have not even suggested the existence of any such traits in those who decide to join the Church. Extant evidence demonstrates that the qualities that dispose individuals toward joining the Church are not qualities of "vulnerability." Barker, Making of a Moonie, supra, at 235 ("it is precisely those whom one might have expected to be the most vulnerable to persuasion who turn out to be the nonjoiners"). Accord Richardson, The Active vs. Passive Convert: Paradigm Conflict in Conversion/Recruitment Research, 24 J. for the Scientific Study of Religion 163 (1985); Richardson, Psychological and Psychiatric Studies of New Religions, in II Advances in the Psychology of Religion 209, 217, 220 (L. Brown, ed. 1985) (hereafter Psychological and Psychiatric Studies). Other studies refute the suggestion that Church members are in any way impaired in their capacity for rational thought and choice. E.g., Ungerleider & Wellisch, Coercive Persuasion (Brainwashing), Religious Cults, and Deprogramming, 136 Am. J. Psychiatry 279, 281 (1979) ("No data emerged from intellectual, personality, or mental status testing [of more than 50 "cult members"] to suggest that any of these subjects are unable or even limited in their ability to make sound judgments and legal

[22]

decisions as related to their persons and property"). If there be a trait common to those who decide to join the Church it is "strong ideological hunger." Id. at 282.

Precisely because free will is ineffable and not susceptible to direct observation or measurement, drawing any conclusions about deprivation of free will is an exceedingly uncertain enterprise. When scientists purport to conclude that an individual has been deprived of free will they have stepped beyond the sphere of their expertise. Such a claim does not partake of science because it cannot be measured or tested; it has no empirical foundation. See Point II.A.2 supra. Accordingly, when Drs. Singer and Benson proffered testimony that Church conversion practices overcame plaintiffs' free will, they were not speaking as scientists. Their claim must thus be considered unreliable in the most fundamental sense. It is philosophical speculation, not science. Scientists can evaluate the degree to which the conversion practices of the Church result in a decision to join the Church by those subjected to the practices, but all available scientific evidence of this nature refutes the claim of coercion plaintiffs advance.

2. Plaintiffs' Theory of Coercive Persuasion Is Not Generally Accepted in the Relevant Professional Literature.
When Drs. Singer and Benson-describe the "systematic manipulation of social influences" as "coercive persuasion," they self-consciously ground their claim in a body of scientific inquiry into purported mind-control techniques that became notorious during the Korean War. Seeking to explain why some American prisoners of war held in Korea and China appeared to adopt the belief system of their captors, the popular press advanced the theory that the free will and judgment of these individuals had been overborne by

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sophisticated techniques of mind control or "brainwashing." Without accepting the claims about "free will," several reputable scientists also concluded that--under conditions of confinement involving extreme physical hardship, isolation for extended periods, deprivation of necessities, physical torture, and threats of death--some individuals might be induced temporarily to accept belief systems antithetical to those they previously held. Under such conditions, survival itself might hinge, or be thought by the captive to hinge, on adopting the captors' ideology. See James, Brainwashing: The Myth and the Actuality, 61 Thought 241 (1986) (hereafter Brainwashing).

To justify their claim that those subjected to Church conversion practices were deprived of free will, Drs. Singer and Benson have accepted the validity of the claims of brainwashing in the POW context and extended them to the context of the Unification Church. This analytical approach is fundamentally flawed for two reasons.

First, Drs. Singer and Benson have exaggerated the findings of the original POW studies respecting the efficacy of mind control techniques; such techniques "are neither mysterious nor new, nor have they nearly the effectiveness attributed to them by popular writers." D. Bromley & A. Shupe, Strange Gods 100 (1981) (hereafter Strange Gods). See also Richardson & Kilbourne, Classical and Contemporary Applications of Brainwashing Models, supra, at 31-32; Robbins, Goodbye to Little Red Riding Hood, 10 Update: A Quarterly Journal of New Religious Movements 5, 6-7 (1986).[10]

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Second, Drs. Singer and Benson have wholly failed to account for a crucial factor distinguishing Unification Church conversion practices from Korean War POW camps: the complete absence in the Church context of physical confinement, torture, death threats and severe physical deprivations. Physical confinement and abuse were--as Dr. Singer acknowledged in another context--central to the debilitating character of POW camps, see Strasser & Thaler [Singer], A Prisoner of War Syndrome: Apathy as a Reaction to Severe Stress, 122 Am. J. of. Psychiatry 998 (1956). Accord Lunde & Wilson, "Brainwashing" as a Defense to Criminal Liability: Patty Hearst Revisited, 13 Crim. L. Bull. 341, 351 (1977) ("Coercive persuasion occurs when a person is subjected to intense and prolonged coercive tactics and persuasion in a situation from which that person cannot escape" (emphasis added)).[11]

For these reasons, the overwhelming preponderance of scholars has repudiated the effort to extend the POW mind control hypothesis to the context

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of new religious movements. E.g., James, Brainwashing, supra, at 254 ("it is absurd to compare this [recruiting practice of new religions] to the fear of death in prisoners held by the Chinese and North Koreans"); Barker, Making of a Moonie, supra, at 134 (comparison "cannot be taken seriously"); Saliba, Psychiatry and the New Cults, supra, at 51 ("the model of the Chinese prisoner of war camp . . . is highly deficient since members of the new religious movements are not abducted or physically detained"); Anthony & Robbins, New Religions, supra, at 264-265 (comparison is "far-fetched"); Solomon, Programming and Deprogramming the "Moonies": Social Psychology Applied, in The Brainwashing/Deprogramming Controversy 179 (D. Bromley & J. Richardson eds. 1983); Robbins & Anthony, Brainwashing and the Persecution of Cults, 19 J. of Religion and Health 66 (1980); Reich, Brainwashing, Psychiatry, and the Law, 39 Psychiatry 400, 403 (1976).

One commentator has demonstrated the inadequacy of the comparison in particular detail:The lifestyle of some of the new groups is a demanding one, but again it is ludicrous to compare this with the stress and fatigue to which the Chinese and North Korean prisoners were subjected. Furthermore, the lifestyle of the better known new religious groups is not nearly so demanding, for example, as that required of people inducted into the armed services. Nor is there anything analogous to the humiliation the POWs underwent. Even though religious groups throughout history have required a symbolic humbling of the individual to gain admission, the degree of debasement required by the new religious groups does not seem much greater than hazing by college fraternities and less than that experienced by people entering the armed forces. There is also nothing analogous to the interrogation political prisoners underwent. Converts to some new religious groups may undergo public self-analysis, but this is apparently beneficial for the individuals involved since there is some evidence that their mental health improves after they join. ... The kind of confession that is a part of brainwashing quite obviously plays no role in the new religions. Nor is there anything similar

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to the manipulation of rewards and punishments that characterizes brainwashing. There is indoctrination in the sense that there is systematic presentation of a belief system without competing belief systems being discussed, but this is by no means a unique feature of new religious groups; it seems to be a universal characteristic of all religious and ideological groups. Although group influence plays a major role in reinforcing beliefs in the new religious groups, this also seems a universal feature of religious and ideological belief formation. Since new religious groups depend on the conversion of adults to gain members, rather than indoctrination of children which characterizes more established religious groups, the practice of the more established groups is, in this respect, closer to brainwashing than that of the new religious groups.

James, Brainwashing, supra, at 254-255 (internal citation omitted).

This consensus view of relevant professionals fatally undermines a fundamental premise for the conclusions Drs. Singer and Benson assert. Physical confinement and abuse was a necessary condition for coercive persuasion in the POW context. See James, supra, at 255-56. Because the Unification Church context involves no confinement or violence, hypotheses derived in the POW context--whatever their validity there--cannot be generalized to provide valid explanations for Church conversion practices. Thus, the entire conceptual framework for the conclusions of Drs. Singer and Benson has been rejected by the scientific community.

C. The Methodology of Drs. Singer and Benson Has Been Repudiated by the Scientific Community.
The sole factual basis Drs. Singer and Benson offer for their conclusions about the Unification Church is evidence gleaned from interviews with former Church members and their families, including plaintiffs. Singer Declaration at 2-3, R.752-753 (interviews of 260 former members of Unification Church); Benson Declaration at 1, R.765 (unspecified number of interviews). From these case studies, Drs. Singer and Benson have generalized to reach

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conclusions about the nature and effect of Unification Church conversion practices and about the effects on individuals of affiliation with the Church.

Amici are professionals who themselves have undertaken substantial academic research and are fully versed in principles of reliable research. Amici share the judgment of members of the relevant professional communities who, after study of the methodologies of plaintiffs' experts, have concluded, in the words of one commentator, that "Dr. Singer's approach doesn't conform to basic principles of academic research." Saliba, Psychiatry and the New Cults, supra, at 47. See also, e.g., Barker, Making of a Moonie, supra, at 128-29; Kilbourne & Richardson, Psychotherapy and New Religions in a Pluralistic Society, 39 Am. Psychologist 237, 246 n.1 (1984) (hereafter Psychotherapy and New Religions). In particular, the methods of Drs. Singer and Benson fail to meet the standards generally accepted among relevant professionals--and thus fail to meet the threshold of proven reliability--in at least the following three crucial respects.

1. The data on Which Drs. Singer and Benson Rely Is Undocumented and Unverifiable.
For most of the interviews on which Drs. Singer and Benson rely, no written record of the information gleaned from them exists. Singer Deposition in Dole v. Holy Spirit Association, supra, at 85. No statistical breakdown of the information collected in these interviews has ever been compiled and published in a reputable scientific journal. As a result, the conclusions Drs. Singer and Benson draw from their unpublished data are not subject to testing by other professionals: they must be taken on faith. Publication of data and conclusions in recognized professional journals is essential to ensuring reliability and validity; scrutiny and review by peers is the primary

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means of quality control in any scientific discipline. Nor have Drs. Singer and Benson sought to explain their theories in terms of the significant body of relevant empirical evidence developed by others. Nor have Drs. Singer and Benson made an effort to respond to the enormous body of professional literature refuting their claims on the basis of alternative methods of empirical analysis. Unless Drs. Singer and Benson are willing to subject their data to public scrutiny and are able to explain away the enormous body of empirical evidence contradicting the claim of coercion, their conclusions cannot be considered reliable or valid in the relevant scientific community. See Neale & Liebert, Science and Behavior, supra, at 13-14 ("The scientific approach requires that all claims be exposed to systematic probes"); Monahan & Walker, Social Science in Law, supra, at 34; see also Saliba, Psychiatry and the New Cults, supra, at 45 ("The first problem one encounters when examining Dr. Singer's methodology is that her research is not carefully documented and her conclusions seem to have been reached hastily").

2. The Sources of Information on Which Drs. Singer and Benson Rely Are Not Impartial.
Drs. Singer and Benson draw their information from two sources: (i) former Unification Church members, most of whom had been forcibly removed from the Church environment; and (ii) family and friends of former Unification Church members. Bias in the accounts of each category of source is so likely that conclusions based solely on such accounts cannot be considered valid. This bias skews both the claim of coercive persuasion and the claim of harm resulting from affiliation with the Church.

Common sense suggests--and scientific analysis confirms--that some individuals who have left a movement, particularly a movement as demanding of

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adherents as is the Unification Church, are likely to have become disillusioned. Such individuals may regret the experience or resent the movement for the material sacrifices demanded or for the estrangement from family and friends that may have resulted. Under such circumstances individuals might be expected to provide hostile accounts of their experience. They might be expected to seek self-serving rationalizations to explain to families and to themselves their original decision to affiliate. By explaining affiliation as brainwashing, former members can place responsibility for their past actions and resulting harms on the Church rather than on themselves. Richardson, van der Lans & Derks, Leaving and Labelling: Voluntary and Coerced Disaffiliation From Religious Social Movements, 9 Research in Social Movement, Conflicts and Change 97 (1986) (hereafter Leaving and Labelling). Accord, Bromley & Shupe, Strange Gods, supra, at 203-04. Kelley, Deprogramming and Religious Liberty, 4 Civil Liberties Rev. 27, 31 (1977). See generally J. Biermans, The Odyssey of New Religious Movements 81-94 (1986).

Similarly, information received from family or friends of a former Church member is likely to reflect hostility to the Church. Persons close to the former Church member will, like the former member, seek explanations for the former member's decision to depart radically from their previously shared belief system. Such persons will also in many cases need to justify their decision forcibly to impose a regimen of deprogramming. For these reasons, "[r]elatives and friends, no matter how well-intentioned, are known for their anti-cult campaigns and are not impartial observers." Saliba, Psychiatry and the New Cults, supra, at 46. Accord, Melton & Moore, The Cult Experience, supra, at 43.

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A persuasive and uncontradicted body of recent empirical research demonstrates another systemic bias in the data from which Drs. Singer and Benson draw their conclusions. Most of the individuals--including the two plaintiffs in this case--interviewed by plaintiffs' experts did not depart the Church voluntarily; they were kidnapped or abducted into leaving and were subsequently deprogrammed or counseled.[12] Several recent studies show that individuals who have been "deprogrammed" manifest far greater hostility toward their former organization and claim "brainwashing" or coercive persuasion far more often than do members of the much larger group who leave such organizations of their own volition. See Lewis, Reconstructing the "Cult" Experience, 46 Sociological Analysis 151 (1986) (survey of 154 former cult members, including 42 former Unification Church members) (hereafter Reconstructing the Cult Experience); Wright, Post-Involvement Attitudes of Voluntary Defectors from Controversial New Religious Movements, 23 J. for the Scientific Study of Religions 23 (1984) (hereafter Post-Involvement Attitudes); Galanter, Unification Church ("Moonie") Dropouts: Psychological Readjustment After Leaving A Charismatic Religious Group, 140 Am. J. Psychiatry 984, 986 (1983) (study of 66 former Unification Church members); Solomon, Integrating the "Moonie" Experience: A Survey of Ex-Members of the Unification Church, in In Gods We Trust 275 (1981) (study of 100 former Unification Church Members) (hereafter Survey of Ex-Members).

Whereas most "deprogrammed" individuals claim they joined the Church as a result of coercive persuasion, e,g., Lewis, Reconstructing the Cult

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Experience, supra, almost no one among the far larger numbers who depart voluntarily makes such a claim. Wright, Post-Involvement Attitudes, supra. These studies have observed that "presentation of the brainwashing ideology appears to be one of the most essential components of the deprogramming process." Lewis, Reconstructing the Cult Experience, supra, at 157; accord Solomon, Survey of Ex-Members, supra, at 289. See also Barker, Making of a Moonie, supra, at 129. Dr. Singer herself noted in testimony in a case in the United Kingdom that "[t]he deprogrammers . . . tell the current members . . . about how the process of mind-control, brainwashing, the imposed identity change, was brought about." See id. at 129 (quoting testimony of Dr. Singer) (emphasis added). Given the importance of the brainwashing explanation in the deprogramming process and the extreme frequency with which deprogrammed former members--but not former members who departed voluntarily--claim coercive persuasion, it may well be that Drs. Singer and Benson have been observing the effects of deprogramming by persons seeking to sever members' affiliation with the Church,[13] and not the effects of the Church's conversion practices. Lewis, Apostates and the Legitimation of Repression 21 (Institute for the Study of Religion, G. Melton ed. 1986) ("ex-members who have been 'counseled' by anti-cultists should be especially suspect as being less than neutral witnesses") (hereafter Apostates). Coleman, New Religions and

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"Deprogramming;" Who's Brainwashing Whom?, in Cults, Culture, and the Law 71 (1985) (suggesting that deprogramming process more closely resembles the mind-control techniques employed in Korean War POW camps than does the Unification Church conversion method).

Drawing information almost exclusively from deprogrammed former Church members and those close to them, and accepting that information at face value, Drs. Singer and Benson have introduced into their research a systemic bias that fatally undermines the internal and external validity of their conclusions.[14] See Point I.A.2., supra. Scientists call this form of skewing effect a "selection problem." See Monahan & Walker, Social Science in Law, supra, at 53-54 (selection problem is "severe threat to the validity of any inferences drawn from the investigation"). Drs. Singer and Benson have been roundly criticized on precisely this methodological ground. E.g. Barker,Making of a Moonie, supra, at 128 ("psychologists . . . who rely so heavily (often exclusively) on such evidence are neglecting some very basic principles of research"); Saliba, Psychiatry and the New Cults, supra, at 45-46 ("The second major problem with Singer's method is that the data she collects about the cults do not stand the test of impartiality and objectivity"); Balch, The Study of New Religions, supra, at 30-32; Lewis, Apostates, supra, at 22; Richardson, et al., Leaving and Labelling, supra, at 176 & n.8; Richardson, Methodological Considerations in the Study of New Religions, in Divergent Perspectives on the New Religions (B. Kilbourne ed. 1985) at 134; Richardson, Psychological and Psychiatric Studies of New Religions in

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II Advances in the Psychology of Religion 220 (L. Brown ed. 1985); Robbins, Goodbye to Little Red Riding Hood, supra, at 7; Richardson & Kilbourne, Classical and Contemporary Applications of Brainwashing Models, supra, at 38; Kilbourne & Richardson, Psychotherapy and New Religions, supra, at 246 n.1; Lewis & Bromley, The Cult Withdrawal Syndrome: A Case of Misattribution of Cause 26 J. for the Scientific Study of Religion (1987) (forthcoming) (hereafter The Cult Withdrawal Syndrome).

The "selection problem" undermining the conclusions of Drs. Singer and Benson can be traced to their failure to abide by a first principle of scientific inquiry: they have failed to make comparisons with control groups. For example, had Drs. Singer and Benson investigated attitudes of former Church members who left the Church voluntarily, the systemic skew in the factual basis for their conclusions about the nature of Church recruitment practices and the effects of Church membership might have been exposed and corrected. Such an investigation might have shed light as well on whether deprogramming caused the observed psychological harms. And had Drs. Singer and Benson studied those who attended Church seminars but declined to join the Church, they might have been better able to explain why Church practices affect only some individuals. Drs. Singer and Benson failed, however, to incorporate any such relevant control group comparisons into their methodology.

Just as interviews of divorced persons would not be expected to yield neutral evidence about the institution of marriage or about the moral character of an ex-spouse, so too interviews of deprogrammed Church members cannot be expected to yield neutral evidence about Church conversion practices. Without comparative analyses, the hypotheses advanced by

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Drs. Singer and Benson are little more than uninformed speculation, based on skewed data.

3. Drs. Singer and Benson Have Not Shown That the Harms They Claim To Have Found in Former Church Members Were Caused by Affiliation with the Church.
Drs. Singer and Benson have chronicled a host of psychological maladies they claim characterize former members of the Church whom they interviewed. Drs. Singer and Benson attribute these harms to membership in the Church. This conclusion has no validity for two reasons.

First, Drs. Singer and Benson have no plausible basis for claiming a correlation between Church membership and the harms they purport to have observed. To support a claim of correlation, Drs. Singer and Benson must show that the incidence of observed maladies is higher among Church members than among the general population similar in age, sex, and social status to former Church members. Barker, Making of a Moonie, supra, at 132. Because Drs. Singer and Benson have undertaken no comparative analysis with relevant control groups, see Point I.C.2, supra, they cannot do so.

Second, even assuming correlation exists, the claim that Church membership caused the observed maladies has no validity because it wholly fails to account for other explanations for the observed harms; it equates correlation with causation. For example, the methodology of Drs. Singer and Benson fails to account for four obvious alternative explanations: (i) the observed condition might have preceded membership in the Church; (ii) both the observed condition and Church membership might be explained by a third factor; (iii) the observed condition might have been caused by deprogramming, see note 13 supra; (iv) the observed condition might be the product of readjustment to life after membership in the Church.

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This failure to exclude rival explanations for an observed correlation violates another first principle of scientific research. "[W]hen a social scientist observes a correlation between two variables it is often tempting to simply assume that the relationship is causal in nature . . . . This assumption is unsound whenever the observed relationship can reasonably be explained in a different way. Thus, [c]ausal inferences require research designs that can control for plausible rival hypotheses." Neale & Liebert, Science and Behavior, supra, quoted in Monahan & Walker, Social Science in Law, supra, at 54-55.

One equally plausible interpretation of the claimed correlation would be that the observed psychological maladies preceded Church membership and led to the decision to affiliate. Drs. Singer and Benson have failed to exclude this rival hypothesis. Scientists call this uncertainty about cause and effect a "directionality" problem. Id. Nor are Drs. Singer and Benson in a position to exclude the possibility that some other factor (such as poor family relations) independently caused both Church membership and the observed psychological distress. Scientists call this a "third variable" problem. Id. Nor are Drs. Singer and Benson in a position to exclude the possibility that the observed psychological distress was caused independently by another correlative variable such as deprogramming or transition from a religious environment to a secular environment. See Melton & Moore, The Cult Experience, supra, at 57; Saliba, Psychiatry and the New Cults, supra, at 46 ("[R]re-entry problems, like indecision, often follow whenever a person makes a major shift in life and commitment. . . . They are life problems and not cultic ones").

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The conclusion Drs. Singer and Benson draw from the observed correlation thus has no validity because their methodology fails to meet basic standards for scientific research, it is sheer speculation. Several commentators have criticized Drs. Singer and Benson for this reason. See, e.g., Melton & Moore, The Cult Experience, supra, at 57; Saliba, Psychiatry and the New Cults, supra, at 45-56; Kilbourne & Richardson, Psychotherapy and New Religions, supra, at 246 n.1; Balch, The Study of New Religions, supra, at 29. Not surprisingly, methodologically superior studies involving current and former Church members do not support the hypothesis of psychological harm Drs. Singer and Benson advance. A significant body of evidence suggests that membership in new religious organizations such as the Unification Church tends to relieve psychological distress. E.g., Deutsch and Miller, A Clinical Study of Four Unification Church Members, 140 J. Am. Psychiatry 767, 769 (1983); Galanter, Charismatic Religious Sects and Psychiatry: an Overview, 139 Am. J. Psychiatry 1539 (1982). See also Melton & Moore, The Cult Experience, supra, at 42; T. Ungerleider, The New Religions 15-16 (1979). Cf. Griffith, Young & Smith, An Analysis of the Therapeutic Elements in a Black Church Service, 35 Hosp. and Com. Psychiatry 464 (1984) (similar findings).[15] Other studies show that those who have been deprogrammed manifest emotional distress symptoms far more often than do those who depart new religions voluntarily. Lewis & Bromley, The Cult Withdrawal Syndrome, supra.[16]

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D. Given The Inadequacy Of The Scientific Support, Plaintiffs' Claim Of Coercive Persuasion Is, As The Courts Below Concluded, Simply A Negative Value Judgment In Scientific Garb.

The decision to affiliate with a new religion like the Unification Church can involve--or at least appear to involve--drastic personal changes. Total devotion to what Church members believe to be the will of God may

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require most of a Church member's time, energy and money. Career goals and recreational preferences may be altered, as may family relations. The Church member may adopt a set of beliefs and rituals alien and incomprehensible to those in the mainstream. Such encompassing changes are not easily understood by those who have not undergone them. It may be difficult to accept the idea that Church members could have chosen freely to adopt a way of life that demands so much and a belief system that sets them apart.

The proffered testimony of plaintiffs' experts, Drs. Singer and Benson, purports to supply a scientific explanation that makes these dramatic changes comprehensible: those who join the Church, such as plaintiffs, did not choose freely to adopt this alien way of life but were psychologically coerced into affiliating. Amici believe, for the reasons set forth in this brief, that this assertion has no scientific validity whatsoever and that expert testimony purporting to establish that claim was properly excluded by the trial court.[17]

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Denuded of its scientific legitimacy, the coercive persuasion theory, as applied in the Unification Church context, amounts to little more than a refusal to accept that persons could choose to adopt the belief system and way of life of that Church. See Robbins, "Uncivil" Religions and Religious Deprogramming, 61 Thought 277, 280 (1986) (mind-control hypotheses "frequently entail sinister clinical interpretations of behaviors and processes which might otherwise be seen merely as indicative of intense religious commitment"). It is, in other words, simply a layperson's negative value judgment about the beliefs and practices of the Unification Church. See Anthony and Robbins, New Religions, Families, and "Brainwashing", in In Gods We Trust 263, 266-267 (1981); Richardson, The "Deformation" of New Religions: Impacts of Societal and Organizational Factors, in Cults, Culture and the Law 163, 164 (1985); Balch, The Study of New Religions, supra, at 25. As the trial court in this case found, "Both doctors . . . seem to have reasoned backwards from their disapproval of those methods to the conclusion that Plaintiffs were not thinking freely because they were persuaded by them." Quoted in 179 Cal. App. 3d at 466 n.9.

Accepting plaintiffs' theory would risk imposing liability on a religious organization because the content of its beliefs and the nature of its rituals aroused majoritarian antipathy. The trial court's judicious exercise of its supervisory authority over expert testimony pursuant to Rule 801 eliminated the risk of such a result in the present case by declining to put this unreliable and prejudicial evidence before the jury. Cf. Cal. Evidence Code Rule 352 ("The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice").

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A. Imposition Of Tort Liability Under These Circumstances Would Violate The Free Exercise Clause of The First Amendment.
Plaintiffs cloak their allegations against the Unification Church in the neutral abstractions of science. They claim that "systematic manipulation of social influences" coerces individuals to affiliate with the Church and that affiliation, in turn, causes psychological harms. But this scientific veneer should not obscure the threat to religious liberty that plaintiffs' novel theory of liability raises. The process plaintiffs describe as "systematic manipulation of social influences" is the core of the Church's--or any religion's--religious practice: singing hymns, fasting for spiritual purification, studying scripture, attending sermons, confessing sins, group prayer, mendicancy and other forms of religious fund-raising, and proselytizing. And the alleged harms resulted from the way of life that Church doctrine prescribes: fasting, mendicancy, proselytizing, and atonement. Plaintiffs' claims thus implicate First Amendment interests of the highest order.

The First Amendment guarantees of freedom of religion establish liberty of conscience as an abiding national principle. The realm of individual belief is wholly beyond the power of the state; "[h]eresy trials are foreign to our Constitution." United States v. Ballard, 322 U.S. 78, 86 (1944). But constitutional protection is not limited to matters of belief. Guaranteeing "the free exercise" of religion, the words of the Constitution's text also shield conduct undertaken for reasons of faith. "[T]he right to the free exercise of religion unquestionably encompasses the right to preach,

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proselyte, and perform other similar religious functions." McDaniel v. Paty, 435 U.S. 618, 626 (1978) (Burger, C.J.) (plurality opinion). See also Wisconsin v. Yoder, 406 U.S. 205, 220 (1972) (Burger, C.J.) ("there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability"). As these cases recognize, it is the practice of religion--the coming together for prayer, the individual devotions, the pursuit of good works, the quest for purity--that sustains and deepens religious belief. See Wisconsin v. Yoder, supra, at 220 ("belief and action cannot be neatly confined in logic-tight compartments").

Because religious practice may at times conflict with the State's view of what is needed to protect the public health and safety, the State is not wholly without authority to enforce neutral regulations that indirectly affect the practice of religion. E.g., Bowen v Roy, ___ U.S. ___ 106 S. Ct. 2147 (1986) (no religious exemption from use of Social Security numbers); United States v. Lee, 455 U.S. 252 (1982) (no religious exemption from participation in Social Security system); Reynolds v. United States, 191 U.S. 367 (1878) (no religious exemption from prohibition of polygamy). These cases make clear, however, that unless government is merely attaching noncompulsory conditions to the receipt of benefits, Bowen v. Roy, official regulation may interfere with conduct motivated by religious belief only if the regulation is necessary to achieve certain compelling governmental interests. "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, supra, at 215. Accord Thomas v. Review Board of Indiana Employment Security

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Division, 450 U.S. 707, 717-718 (1981); Sherbert v. Verner, 374 U.S. 398, 406 (1963).

Furthermore, even if the government is seeking to protect an interest of the highest order, regulation is permissible only if it is "facially neutral and universally applicable," Bowen v. Roy, supra, 106 S. Ct. at 2154, and thus imposes only an incidental burden on the free exercise of religion; that is, government must regulate the proscribed conduct whenever it occurs, regardless of whether it is or is not motivated by religious belief. When government acts directly to prohibit religious practice or imposes liabilities discriminatorily on the basis of religion such official action will violate the Free Exercise Clause in all but the rarest cases. Government efforts "to make religious practice unlawful" must be subject to the strictest judicial scrutiny. Braunfeld v. Brown, 366 U.S. 599, 606 (1961). Accord, Bowen v. Roy, supra, ___ U.S. at ___ & n.14, 106 S. Ct. at 2154 & n.14.

Judicial imposition of common law liability in tort, no less than official regulatory or enforcement action, can effectively restrict the practice of religion. Any decision authorizing the imposition of tort liability must therefore comport with First Amendment guarantees. See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); New York Times v. Sullivan, 374 U.S. 276 (1964). The United States Supreme Court has made clear that when government attempts to restrict the free exercise of religion, a reviewing court "must searchingly examine the interests the State seeks to promote." Wisconsin v. Yoder, supra, at 220. The State must adduce credible evidence to justify its claim of compelling governmental interest. Id. at 224-225. In this case, of course, the State has not sought to impose the tort liability

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plaintiffs propose, and has therefore adduced no evidence, or even claim, of a compelling governmental interest.

These clear constitutional commands doom plaintiffs' novel cause of action. Plaintiffs seek to impose tort liability for the core religious practices of the Unification Church. Were the law to deem conversions resulting from participation in these religious practices nonvolitional and thus tortious, the Church would by definition violate the law each time a new member decided to affiliate after participating.[18] And were the law to deem the way of life of Church members--mendicancy, proselytizing and intense devotion--a harm warranting compensation, the life each Church member leads would be a source of potential liability for the Church. Courts would be put in a position of ruling that a particular religious way of life is harmful.

Plaintiffs' effort to invoke tort law to prohibit the religious practices of the Unification Church must fail for two independent reasons.

First, plaintiffs have made no showing of a governmental interest sufficient to justify their novel theory of liability. Only a compelling governmental interest, amply supported by record evidence, could justify state regulation of the religious practices plaintiffs challenge. Wisconsin v. Yoder, supra, at 215, 224-225. In the present case, the State of California

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has made no claim that such a governmental interest exists; no statute or regulation purports to restrict the practices at issue here. It is plaintiffs, private individuals, who ask this Court to recognize the existence of a compelling governmental interest by creating a new theory of tort liability. When transcendent constitutional rights are at stake, and a compelling governmental interest must be shown to justify the limitation of such rights, the judiciary should be extremely wary about positing a compelling governmental interest without any mandate, or even guidance, from the legislative or executive branches. The legislature and executive are far better positioned than is an appellate court to undertake the factual investigation and formulate the broad social policies necessary to support the articulation of a compelling governmental interest sufficient to overcome the right to free exercise of religion. For this reason, judicial recognition of a novel cause of action imposing tort liability for religious practice is particularly inappropriate.[19]

Even if this Court were willing to discover and articulate a compelling state interest without guidance from the legislative or executive branches, plaintiffs have not met their burden of providing this Court with any sound basis for doing so in the present case. In Point I, supra, amici

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demonstrated that the factual basis for plaintiffs' theory of coercive persuasion has no support in the relevant professional communities because neither plaintiffs' underlying theories (Point I.B.) nor plaintiffs' methodologies (Point I.C.) comport with generally accepted professional standards. Absent factual support for the purported threat to the personal interest in freedom of choice, plaintiffs fall far short of the exacting standard they must meet to justify the restriction on religious liberty they propose. See Wisconsin v. Yoder, supra, at 215, 224-225. They have failed to demonstrate the existence of any legitimate state interest, much less a compelling one.

Second, judicial recognition of plaintiffs' novel cause of action in this case is pregnant with the risk of discrimination against the Unification Church on the basis of its religious practices. If applied only to new religions such as the Unification Church, plaintiffs' coercive persuasion theory would transgress the First Amendment requirement that government maintains posture of strict neutrality respecting religion. See Goldman v. Weinberger, ___ U.S., ___, 106 S. Ct. 1310, 1314 (1986), (Stevens, J. concurring). Yet it is inconceivable that this principle could be applied universally. The State of California does not regulate the conduct plaintiffs label coercive persuasion in any other non-religious context, or even with respect to any other religion. To impose the restrictions plaintiffs desire on the Unification Church, this State would have to regulate rites and traditions common to mainstream religions, such as indoctrination of the young or manipulation of guilt feelings to induce upright behavior. See James, Brainwashing, supra, at 255. The use of intensive persuasion in nonreligious

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settings--such as politics or "hard sell" advertising--would also have to give rise to tort liability. At the very least, universal application would drag courts into a swamp of intractable factual and legal judgments. At worst, universal application would require courts to impose liability for a wide range of conduct society accepts as wholly legitimate.

At bottom, plaintiffs have asked this Court to sanction the imposition of tort liability for religious conversion practices and for the effects of adhering to a religious way of life. Only under the most extreme conditions--conditions not remotely present in this case--should a court accede to such a request. Had the legal standards plaintiffs advocate been applied to an emergent Christianity, the creeds by which most Americans abide might never have grown to fruition. The Christian tradition abounds with examples of sudden conversion to an intense and previously alien way of life: Saul on the road to Damascus; Francis of Assisi renouncing the commercial pursuits of his father; the disciples dropping their nets and joining Jesus. The annals of Christianity also reveal the disapprobation with which conversion to a life of intense devotion was greeted, even by those closest to the converts. St. Thomas Aquinas, for example, was kidnapped from his order by his father and brothers because the mendicant friars were thought disreputable by mainstream society. Flinn, Criminalizing Conversion: The Legislative Assault on New Religions, in Crimes, Values and Religions 35 (Day & Laufer eds. 1986). The history of religious movements should thus enlighten us to the risk that society may seek to deter the proselytizing of new religions such as the Unification Church because society cannot comprehend and appreciate their alien view of spirituality, not because new religions pose a genuine threat to public health or safety.

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Such a risk cuts to the heart of constitutional guarantees of religious freedom. "A way of life that is odd or erratic but interferes with no rights or interests of others is not to be condemned because it is different." Wisconsin v. Yoder, at 224. The choice to affiliate with a new religion such as the Unification Church and to adopt its demanding ways might strike those in the mainstream as erratic or preposterous, but by its nature faith cannot be subject to tests of rationality. See United States v. Ballard, supra, 322 U.S. at 86. This nation's commitment to religious liberty was forged in the crucible of our own colonial experience. The framers of the Constitution knew from history and experience that matters of religious faith were both too important and too controversial to be left to the political process. In all but the most exceptional circumstances, they placed religion beyond the power of government, and thus beyond the power of hostile majorities.

Were this Court to extend tort law to recognize plaintiffs' novel theory of liability, the common law of this State would transgress the First Amendment guarantee of free exercise of religion. In the present case, however, plaintiffs have given this Court no reason to do so; they have made no showing that the religious practices they challenge pose a genuine threat to any legitimate governmental interest in public health or safety. See Point I, supra. Under these circumstances, amici respectfully urge this Court, in accordance with well-established principles of adjudication, to avoid the constitutional issue by declining to extend the common law to recognize the novel tort plaintiffs assert. See Ashwander v. TVA, 297 U.S. 288 346-348 (1936) (Brandeis, J., concurring).

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B. Plaintiffs' Theory of Coercive Persuasion Cannot Be Reconciled With Basic Assumptions Of The Legal System.
The constitutional flaws amici have detailed in Point II.A., supra, compel this Court to decline to recognize plaintiffs' novel theory of liability. In addition, amici believe that judicial acceptance of plaintiffs' theory of coercive persuasion would introduce into the legal system principles wholly inconsistent with fundamental assumptions of our jurisprudence.

Crucial to the theory of liability plaintiffs advance is the judgment that plaintiffs should not be held responsible for their decision to join the Unification Church and for any resulting consequences. Vindication of this claim would unleash a concept with enormous subversive potential. That persons should, in all but the rarest circumstances, be held responsible for their actions is the bedrock of both our criminal and civil jurisprudence. With rare exceptions, we punish or impose civil liability because we assume that individuals could reasonably have respected a legal prohibition and therefore should be held responsible for their failure to do so. Acceptance of plaintiffs' coercive persuasion theory would require judicial acknowledgment of the possibility that intensive peer pressure and tactics of verbal persuasion, unaccompanied by acts or threats of physical force, can exonerate individuals from responsibility for their actions.

This is a concept foreign to our legal system. See Robbins, New Religious Movements, Brainwashing, and Deprogramming, 11 Rel. Studies Rev. 361 (1985); Shapiro, Of Robots, Persons, and the Protection of Religious Beliefs, 56 S. Cal. L. Rev. 1277 (1983). In the criminal context, for example, a defense of duress excuses criminal actions only when defendants undertake those actions under external threat of imminent and well-grounded fear of death or serious bodily harm. Mere peer pressure, however intense, has never been thought to rise to the level of external duress. It is inconceivable

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that a member of an urban street gang would be exonerated of violent crimes committed during gang activities because his environment necessitated gang membership and gang members "coercively persuaded" the defendant to join them in commission of crime. See Reich, Brainwashing, Psychiatry and the Law, 39 Psychiatry 400, 402 (1976). Yet the circumstances of gang participation may well approximate the "systematic manipulation of social influences" that plaintiffs claim should excuse personal responsibility.[20]

In short, plaintiffs' coercive persuasion theory cuts against the grain of much of our jurisprudence. Given the weakness of the factual basis for the claim and the wide mischief it threatens to work, amici respectfully urge this Court to decline to adopt it for nonconstitutional as well as constitutional reasons.

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CONCLUSION
For the foregoing reasons, amici respectfully urge this Court to affirm the judgment of the courts below in this case.

Respectfully submitted,

ROBERT H. PHILIBOSIAN

MORTON B. JACKSON

MacDonald, Halsted & Laybourne

725 South Figueroa Street

Los Angeles, California 90017

Telephone: (213) 629-3000

BRUCE J. ENNIS

DONALD N. BERSOFF

KIT ADELMAN-PIERSON

Ennis Friedman & Bersoff

1200 17th Street, N.W., Suite 400 Washington, D.C. 20036

Telephone: (202) 775-8100

Attorneys for Amici American Psychological Association, et al.[*]*

Date: February 10, 1987