Memory

ISSN: 0965-8211 (Print) 1464-0686 (Online) Journal homepage: www.tandfonline.com/journals/pmem20

The fallibility of memory in judicial processes:

Lessons from the past and their modern
consequences

Mark L. Howe & Lauren M. Knott

To cite this article: Mark L. Howe & Lauren M. Knott (2015) The fallibility of memory in judicial
processes: Lessons from the past and their modern consequences, Memory, 23:5, 633-656,
DOI: 10.1080/09658211.2015.1010709

To link to this article: https://doi.org/10.1080/09658211.2015.1010709

© 2015 The Author(s). Published by Taylor &

Francis.

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Memory, 2015
Vol. 23, No. 5, 633–656, http://dx.doi.org/10.1080/09658211.2015.1010709

INVITED REVIEW
The fallibility of memory in judicial processes: Lessons
from the past and their modern consequences

Mark L. Howe and Lauren M. Knott

Department of Psychology, Centre for Memory and Law, City University London,
London, UK

(Received 20 January 2015; accepted 20 January 2015)

The capability of adult and child witnesses to accurately recollect events from the past and provide
reliable testimony has been hotly debated for more than 100 years. Prominent legal cases of the 1980s
and 1990s sparked lengthy debates and important research questions surrounding the fallibility and
general reliability of memory. But what lessons have we learned, some 35 years later, about the role of
memory in the judicial system? In this review, we focus on what we now know about the consequences of
the fallibility of memory for legal proceedings. We present a brief historical overview of false memories
that focuses on three critical forensic areas that changed memory research: children as eyewitnesses,
historic sexual abuse and eyewitness (mis)identification. We revisit some of the prominent trials of the
1980s and 1990s to not only consider the role false memories have played in judicial decisions, but also to
see how this has helped us understand memory today. Finally, we consider the way in which the research
on memory (true and false) has been successfully integrated into some courtroom procedures.

Keywords: False memories; Childhood memories; Memory evidence; Eyewitness identification; Forensic
interviewing; Expert witnesses.

The science of memory is as central to the law as already been stored in a person’s long-term,
biology is to medicine. (Brainerd, 2013, p. 547) autobiographical memory. What gets retrieved
later from that memory is determined by that
When memory serves as evidence, as it does in
same multitude of factors that contributed to
many civil and criminal legal proceedings, there
encoding as well as what drives the recollection
are a number of important limitations to the
of the event. Specifically, what gets retold about
veracity of that evidence. This is because memory an experience depends on whom one is talking to
does not provide a veridical representation of and what the purpose is of remembering that
events as experienced. Rather, what gets encoded particular event (e.g., telling a friend, relaying an
into memory is determined by what a person experience to a therapist, telling the police about
attends to, what they already have stored in an event). Moreover, what gets remembered is
memory, their expectations, needs and emotional reconstructed from the remnants of what was
state. This information is subsequently integrated originally stored; that is, what we remember is
(consolidated) with other information that has constructed from whatever remains in memory

Address correspondence to: Mark L. Howe, Department of Psychology, Centre for Memory and Law, City University London,
Northampton Square, London EC1V 0HB, UK. E-mail: [email protected]

© 2015 The Author(s). Published by Taylor & Francis.

This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-
NoDerivatives License (http://creativecommons.org/Licenses/by-nc-nd/4.0/), which permits non-commercial re-use,
distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered,
transformed, or built upon in any way.
634 HOWE AND KNOTT

following any forgetting or interference from new harbinger for scepticism (e.g., Howe, 2013a,
experiences that may have occurred across the 2013b).
interval between storing and retrieving a particu- This disconnect between the science of mem-
lar experience. Because the contents of our ory and the beliefs held by those involved in
memories for experiences involve the active judicial processes can lead to fundamental mis-
manipulation (during encoding), integration with carriages of justice, many of which can be found
pre-existing information (during consolidation), on the Innocence Project websites in the USA
and reconstruction (during retrieval) of that (http://www.innocenceproject.org/) and the UK
information, memory is, by definition, fallible at (http://www.innocencenetwork.org.uk/). In many
best and unreliable at worst. of these cases, convictions were obtained on the
This fallibility of memory includes not only the basis of memory evidence (e.g., faulty eyewitness
omission of details from the original experience, identifications). Of course, in many legal cases,
but extends to errors of commission including the decisions to lay charges in the first place often
creation of memory illusions. Memory illusions hinges on memory evidence educed from police
can be as simple as misremembering whether one interviews and subsequent convictions can also
saw a Stop sign or a Yield sign at an intersection hinge on this interview evidence. When such
to misremembering entire experiences such as evidence is viewed through the veil of naive
being lost in a shopping mall as a child or even beliefs about memory, and memory experts are
being abducted by a UFO. Such illusions can not in place to provide testimony about how
emerge spontaneously in an individual, being memory actually works, then police and triers of
created endogenously, or can arise due to the fact are making decisions about the weight of
suggestion of another person, being created memory evidence without actually understanding
exogenously. Although the source or origin of how memory works.
these memory illusions might differ, because their Of course, the science of memory is an ongoing
memorial consequences are essentially the same, project, but our current understanding of recol-
we will use the term false memory to refer to both lective experiences is that they are fragmentary,
types of memory illusion. contain amnesic gaps, information is often out of
This view of memory has emerged over the order, contain guesses and often contain incorrect
past few decades of intense scientific research details. Sometimes the incorrect nature of these
about memory processes, much of which was details are known to the rememberer although
inspired by memory researchers interacting with oftentimes they are not, having been produced
the judicial system. That is, when memory and inserted into the narrative in an automatic
researchers serve as memory experts in the court- fashion, outside of conscious awareness (Conway,
room, new translational questions emerge about Howe, & Knott, in press; Howe, 2013a). Research
the nature of memory particularly as it pertains to from the past 40 years has taught us what we
memory accuracy for traumatic events. As well, understand about these fundamental attributes of
questions arise as to how well people involved in false memory and suggestibility.
forensic settings understand how memory works. Importantly, research on memory (true and
Numerous studies have shown that police, judges, false) is now being successfully integrated into
jurors and others involved in the legal system some courtroom procedures and today we see
have a number of naïve beliefs about memories, signs that the law is beginning to keep pace with
ones that contradict scientific research (e.g., science. Many of these advances, both in our
Benton, Ross, Bradshaw, Thomas, & Bradshaw, understanding of memory and its successful integ-
2006; Magnussen, Melinder, Raja, & Stridbeck, ration into some forensic settings, are the result of
2010; Rubin & Bernstein, 2007). For example, some landmark decisions that emerged in cases
there is the belief that the more specific details a from the 1980s and 1990s. The focus of this
complainant can remember (e.g., verbatim con- review is to consider the consequences of false
versations, the clothing people were wearing, the memories in legal proceedings, examining the
day of the week the event happened, what they nature of false memory with a look at lessons
ate for breakfast that day) the more accurate the from these cases and their modern day conse-
memory (see Bell & Loftus, 1988). Of course, quences. In this review, we consider memory and
what the scientific study of memory shows is that suggestibility in three forensic contexts including
quite often rather than being seen as a sign of the children as eyewitnesses, historic sexual abuse
veracity of that memory such details are a (HSA) and eyewitness (mis)identification.
 MEMORY IN JUDICIAL PROCESSES 635

CHILDREN AS EYEWITNESSES and 1990s led to fundamental concerns regarding

the reliability of children’s testimony and the
The degree to which heightened levels of sug- interview techniques and strategies used to elicit
gestibility may affect children’s ability to accur- information from children in forensic situations.
ately report what they have witnessed has been As we will see below, fantastical claims of ritual-
the focus of scholarly attention since the turn of istic abuse, pornography, cults and long-term
the twentieth century. However, these issues abuse of multiple victims were reported in
became particularly important, at least in the instances where little medical evidence could be
USA, during the 1980s and 1990s as the number found, and where no adult eyewitnesses could
of children involved in legal proceedings for corroborate. Nevertheless, such claims were
sexual abuse increased dramatically (see Ceci & believed by health professionals, police, prosecu-
Bruck, 1993, 1995). This was the result of a large tors, and the family and friends of those involved.
shift in society’s recognition of, and sensitivity to, At the time, the prosecutors made the argument
problems of abuse suffered by children. This led that the children would not lie about sexual
to important changes in legal proceedings not abuse, whereas the defense argued that the claims
only in the USA, but in several countries across and reports made about the abuse were a result
of repeated suggestive interviewing by not only
the Western world that allowed children to
the police, but the children’s parents, social
provide uncorroborated testimony in cases of
workers and therapists who were in contact with
violence and abuse. In fact, summaries of statist-
the children. Although we now have scientific
ics from the National Center on Child Abuse and
evidence to support this claim, at the time there
Neglect in America (Poole & Lamb, 1998)
was little direct evidence to suggest this could be
showed that the number of investigations of child
the case. As Ceci and Bruck (1995) stated,
sexual abuse quadrupled from the late 1970s to
because of this lack of evidence and common
the 1990s. Indeed, Ceci and Bruck (1993) esti-
belief that the children would not be able to
mated that in the early 1990s over 13,000 children invent stories of sexual abuse, many of these
testified each year in sexual abuse cases. cases ended in convictions.
With such allegations often there is little Today we know, of course, that eliciting such
forensic evidence. Sexual victimisation of children evidence from children can be controversial and
typically occurs in private and usually involves that the reliability of this memory evidence
only two people, the victim and the perpetrator. depends not only on the style of questioning but
Of course, depending on the nature of the sexual also on the types of questions children are asked.
abuse, there may be physical signs that abuse has Because of these concerns, memory development
occurred. However, more often, such signs are researchers took a special interest in the inter-
not present (McGough, 1993). As Brainerd and viewing techniques used to elicit children’s mem-
Reyna (2005, p. 294) pointed out: ory reports and, ultimately, how children’s
Even acts of sexual abuse that involve penetra- reports can be moulded by suggestions implanted
tion of the vagina or rectum may fail to leave any by adult interviewers (for a review, see Ceci &
reliable evidence. Vaginal and rectal tissue may Bruck, 1995). Experimental exploration of these
heal and may not be noticeably damaged by
techniques has led to important insights regarding
penetration. Moreover, when tissue damage is
present, this is not in itself reliable evidence of child suggestibility and forensic interview techni-
sexual penetration because these injuries can ques for children (Ceci & Bruck, 1993, 1995;
occur in other ways. As a rule, damage to vaginal Poole & Lamb, 1998). The culmination of this
or rectal tissue is only a reliable indicator of research resulted in a considerable revision of
sexual penetration when it is accompanied by
what constituted appropriate questioning of child
bodily fluids, tissue, or hair from the perpetrator.
witnesses (Ceci & Friedman, 2000). Today, the
Because of the frequent absence of physical preferred interviewing strategy with children is
evidence, forensic investigators rely on children’s the one developed by the National Institute of
memory reports from (police, social worker) Child Health and Human Development (NICHD;
interviews as evidence in such cases. Although see Lamb, Orbach, Hershkowitz, Esplin, & Hor-
researchers in this field uphold the statement that owitz, 2007). Here, there is not just a specific
most cases that end up in the legal system involve structure to the timing and sequence of how a
true claims of sexual abuse, a number of sensa- child should be interviewed, but also recommen-
tionalised “day care abuse” cases from the 1980s dations for what not to do.
636 HOWE AND KNOTT

To understand how we came to this protocol happen to them. When questioned, the boys
for questioning children, we look back at two of denied this had happened, but one boy did say
the key legal cases that highlight just how Michaels touched his penis. Following these ini-
susceptible children can be to suggestive pressure tial allegations, the Wee Care Nursery School
during interviews. We then discuss the ensuing sent out a letter to parents informing them of an
research that has documented the suggestive and investigation regarding serious allegations. A
coercive procedures that we now know can meeting with a social worker followed this, where
substantially increase the risk of children’s sus- the parents were told of the common occurrence
ceptibility to making false allegations. of child sex abuse in children. She urged the
parents to examine the children for any signs of
abuse, including genital soreness, nightmares,
The McMartin Preschool case bed-wetting and notable changes in behaviour.
Soon many more allegations arose (Ceci &
The McMartin Preschool case was the first case of Bruck, 1993).
its kind to receive national media attention in the Michaels was accused of raping and abusing
USA (for a detailed history see Butler, Fukurai, these children over a seven-month period during
Dimitrius, & Krooth, 2001). In 1983, seven school time. Among the many allegations against
teachers, including the owner of the preschool, Michaels, she was accused of licking peanut
Peggy McMartin Buckey, and her son were butter off children’s genitals, playing the piano
accused of child abuse and satanic ritual abuse in the nude and raping them with knives, forks,
involving several hundred children over a 10-year spoons and Lego blocks (Ceci & Bruck, 1993).
period. Among the more bizarre allegations, the None of these alleged acts were ever noticed by
teachers were accused of kidnapping children and other members of staff at the school and none of
flying them to an isolated farm where the children the parents noticed any physical signs. A jury in
saw animals tortured and were forced to engage the Superior Court of New Jersey convicted
in group sex. The main and only supporting Michaels of 115 counts of aggravated assault,
evidence came from the investigative interviews sexual assault, endangering the welfare of chil-
of the children, conducted by a Los Angeles dren and terroristic threats. In 1993, the Appel-
social service agency under contract to the prose- late Division reversed the convictions based, in
cutor’s office (Wilkerson & Rainey, 1990). The part, on an amicus brief (a written brief by a
investigation began in 1983 and ended in the “friend” of the court, someone who is not a party
early 1990s. It became one of the longest and to the case but who offers information bearing on
most expensive trials in California history. All the case such as a legal opinion or an expert or
charges were eventually dropped against the five learned treatise) by a committee of concerned
teachers without going to trial. Peggy Buckey and scientists that questioned the reliability of the
her son Raymond were tried but later acquitted interviewing techniques used with the 20 child
and all charges were dropped. complainants. The court held that, “courts must
provide a remedy where the record demonstrates
that an accuser’s testimony is founded upon
The Wee Care Nursery case unreliable perceptions, or memory caused by
improper investigative procedures if it results in
In 1988, Kelly Michaels (State v. Michaels) was a defendant’s right to a fair trial being irretriev-
accused of sexually abusing 20 preschool children ably lost” [see State v. Michaels, 264 N.J.Super.
at the Wee Care Nursery in Maplewood, New 579, 631-32, 625 A.2d 489 (App. Div.1993)]. The
Jersey. It began when a former 4-year-old pupil Supreme Court of New Jersey affirmed the
of Michaels had his temperature taken at the reversal of the judgement of Conviction [see State
paediatrician’s office and remarked “That’s what v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994)],
my teacher does to me at school” (Manshel, 1990, and on 1 December 1994, the Essex County
p. 126). The paediatrician advised the mother to Prosecutor’s Office dismissed all charges against
inform the state’s child protective agency who Michaels.
interviewed the child two days later. During the The McMartin and Wee Care Nursery cases
interview, the child inserted his finger into the are the most widely documented in the scientific
rectum of an anatomical doll. Two other boys community surrounding child eyewitness testi-
were reported by the child to have the same thing mony. The repeated interviewing, the suggestive
 MEMORY IN JUDICIAL PROCESSES 637

and coercive nature of the questioning and the about events that did not happen. For example,
length of the interrogations are among the factors when asked, “Did you kiss the researcher?” a
in these cases that ultimately led to many false child might rightly answer “No” but then com-
allegations. Indeed, the transcripts of interviews ment “but the researcher kissed me.”
from these cases highlight how the dynamics of a The effect of interviewer bias and the failure to
conversation or interview can be so powerful as test alternate explanations for children’s behavi-
to lead children to produce graphic and believ- our and answers can be seen in the interviews
able statements of events that never happened to from children in the Michaels case (Bruck & Ceci,
them. In the amicus brief submitted to the 1995). There are many instances where the
Supreme Court of New Jersey, Bruck and Ceci interviewer persisted with a particular line of
(1995) demonstrated that these problems were inquiry (using repeated leading questions, bribes
rife in children’s interviews and were related to
and threats) even after the child denies the event
children’s suggestibility. Further, they cited spe-
occurred, or after the child provides a bizarre or
cific instances in the interviews from the Michaels
inconsistent statement that should be followed
case where interviewing techniques were consid-
up. Because the interviewers held preconceived
ered to be so faulty that they will have substan-
tially influenced the reliability of children’s biases, and believed that the major objective was
testimonies leading to reports that were seen as to get children to admit that they had been
mere reflections of the interviewers’ suggestions. sexually abused, the interviewers did not consider
Although a complete assessment of these tran- that such statements might show that the children
scripts can be found in a reprinted version of the were confused. Moreover, the interviewers made
amicus brief (Bruck & Ceci, 1995), we will briefly no attempt to make sense of what the children
highlight some key examples that demonstrate were saying; that is, whether the children were
those factors that influence children’s susceptibil- just pretending, telling a joke or repeating some-
ity to suggestion from the interview transcripts of thing that had been said to them previously. We
both the Kelly Michaels and McMartin cases see evidence of such a bizarre dialogue below in
(Schreiber et al., 2006). an interview with one of the Michaels children:
To begin, we have seen from previous studies Interviewer: Do you think that Kelly was not
important evidence that interviewers’ beliefs good when she was hurting you all?
about an event can influence their style of Child: Wasn’t hurting me. I like her
questioning and, in turn, the accuracy of a child’s Interviewer: I can’t hear you, you got to look at
testimony. For example, White, Leichtman, and me when you talk to me. Now when Kelly was
bothering kids in the music room
Ceci (1997) provided interviewers with reports of Child: I got socks off
a scripted event that had been acted out with ------------------------------------------------------------------
preschool children. The event involved physical Interviewer: Did she make anybody else take
touching, carrying out unusual actions and acting their clothes off in the music room?
or observing another child’s actions. Unknown to Child: No
Interviewer: Yes
the interviewers, some of the events described in Child: No
the report were incorrect. All children were ------------------------------------------------------------------
interviewed twice, once after a month and again (Michaels Interview, Bruck & Ceci, 1995, p. 276)
after two months had elapsed. The interviewer
A range of suggestive techniques has been iden-
was asked to conduct an interview to elicit the
tified in the transcripts from the McMartin and
most factually accurate report from the children.
Michaels cases. This category can cover a large
Results showed that the interviewer’s questioning
range of suggestive influences. Schreiber et al.
was biased to the details provided in the report of
(2006) highlight five kinds of techniques: (1)
the event. Furthermore, younger children agreed
more often than older children to questions based reinforcement, (2) repetition of questions, (3)
on incorrect information. Children agreed more co-witness information (peer pressure from other
readily to unusual (e.g., children had put marbles children), (4) inviting speculation and (5) intro-
in the researchers ear) incorrect events, and ducing new information. Reinforcement can take a
younger children’s reports became more inaccur- positive or negative form. Positive reinforcement
ate with misleading information over time. Many involves praising the child for something they
would also make inaccurate elaborations even have said or something they could say that will
after they had originally correctly rejected queries please the interviewer:
638 HOWE AND KNOTT

Interviewer: So I bet if you guys put on your Reinforced children (35%) made more false
thinking caps, you can help remember it. Now accusations against Paco than non-reinforced
let’s make a test of your brain and see how good
your memories are. children (12%). Interestingly, for fantastic ques-
(McMartin Interview No. 107, pp. 32–33, 38) tions, the false accusation rate was 52% for
reinforced children versus 5% for non-reinforced
A negative reinforcement or consequence occurs
children. Furthermore, when interviewed a week
when a child’s answer is criticised or disagreed
later without reinforcement or leading questions,
with. This indicates to the child that the statement
the children reinforced at the previous interview
is inadequate and dubious. Repetition of questions
continued to make accusations at about the same
can also be considered as a form of negative
rate as previously.
feedback, as the child sees that the previous
Research has shown that co-witness informa-
answer given was unacceptable. This is usually
tion is a form of “social proof” that leads to
associated with choice questions and research has
conformity pressure to go along with other child
shown a reduction in accuracy of children’s
witnesses (Leichtman & Ceci, 1995) and can be
reports using repetition (Poole & White, 1991,
seen throughout the transcripts from the day care
1995). The McMartin and Michaels interviewers
cases:
frequently used repeated questions when a child
denied abuse or when the child’s answer was Interviewer: You see all the kids in this picture?
inconsistent with what the interviewers believed. Every single kid in this picture has come here
and talked to us. Isn’t that amazing? … These
In many exchanges, the children would at first kids came to visit us and we found out they know
consistently reject the suggestive questions, but a lot of yucky old secrets from that old school.
with repetition, the child would change their And they all came and told us the secrets. And
answers: they’re helping us figure out this whole puzzle of
what used to go on in that place.
Interviewer: When Kelly kissed you, did she ever (McMartin Interview No. 107, pp. 16–17)
put her tongue in your mouth?
Child: No Interviewer: All the other friends I talked to told
Interviewer: Did she ever make you put your me everything that happened. 29C told me. 32C
tongue in her mouth? told me … And now it’s your turn to tell. You
Child: No don’t want to be left out, do you?
Interviewer: Did you ever have to kiss her (Michaels Interview, Bruck & Ceci, 1995, p. 283)
vagina?
Child: No Parents had also told their children that other
Interviewer: Which of the kids had to kiss her children had named them as victims. Bruck and
vagina? Ceci refer to Child 1C who finally disclosed his
Child: What’s this?
Interviewer: No that’s my toy, my radio box. “abuse” to his mother but only after she had told
Which kids had to kiss her vagina? him that others had mentioned him as a
Child: Me participant.
(Michaels Interview, Bruck & Ceci, 1995, p. 280) In a similar vein, the Michaels and McMartin
We know from previous research that reinforce- children were continually asked to speculate
ment (both positive and negative) can have a whether a particular event could have happened
profound effect on children’s behaviour and has or indeed asked to pretend that an event had
considerable influence when used in child inter- happened. Research has shown that such techni-
views. In a controlled laboratory-based study, ques lead to errors in children’s recollections due
Garven, Wood, and Malpass (2000) provided to failures of source monitoring. Inviting specula-
evidence for this effect. Here, children (5- to 7- tion may have profound effects on the accuracy of
year-olds) were visited in their classroom by a later recall because it is a form of self-generated
young man known as Paco Perez. A week later misinformation. Research shows that when chil-
the children were interviewed about the visit dren are asked to “picture in their head” a
using leading questions that were either mundane particular event, false assent not only occurs, but
(“Did Paco break a toy while he was visiting?”) or increases across multiple sessions and continues
fantastic (“Did Paco take you somewhere in a even when the children are informed that the
helicopter?”). Half of the children were further interviewer asked them to imagine events that did
reinforced with praise for answers that included not really happen (e.g., Ceci, Loftus, Leichtman,
false allegations regarding Paco and mild negative & Bruck, 1994). Evidence of inviting speculation
feedback for answers that did not implicate Paco. occurred frequently in the day care interviews,
 MEMORY IN JUDICIAL PROCESSES 639

with children often been asked to imagine how visited a paediatrician’s office where a male
certain instruments could be used to abuse the paediatrician gave each child a physical examina-
children, and asking the children to show on tion, an oral polio vaccine and an inoculation.
anatomical dolls where their teacher may have During this visit, a female research assistant also
touched them and other children in their class: talked to the child about a poster, read them a
Interviewer: Why don’t you show me how you story and gave them some treats. They were re-
think a little girl can be hurt by the fork? interviewed four times over a one-month period.
(Michaels Interview, Bruck & Ceci, 1995, p. 292) Some of the children were asked misleading
questions that suggested the roles were reversed
Although with age, children become less suscept-
and that the research assistant completed the
ible to misinformation, introducing new informa-
examination and gave them the inoculation and
tion can increase false allegations at all ages.
vaccine. Other children acted as controls and
Schreiber et al. (2006) conducted a quantitative
received no misleading questions regarding the
analysis of instances of new information in the
research assistant and paediatrician. In the final
McMartin and Michaels cases as well as a set of
interview, children were asked to freely recall
Child Protective Services (CPS) interviews. These
what happened during the visit to the paediatri-
were 100 sexual abuse interviews from the CPS
cian. Children in the control group provided
and considered as “normal” interviews that cre- highly accurate information, whereas more than
ated a comparison group. An interviewer ques- half of the children in the misled group reported
tion or statement only received a rating for that the female research assistant gave them the
introducing information if it (1) introduced new physical examination. Interestingly, of these chil-
material that was sexual, violent or negative in dren, 45% also included non-suggested but inac-
content, (2) was contradictory or substantially curate details (e.g., reported that the assistant had
inconsistent with the child’s previous statements checked their ears and nose). Although there is
or (3) referred to unusual and highly specific no clear figure of the number of times children in
events or ideas (e.g., being flown away from the day care cases were exposed to repeated
school in a helicopter) not previously mentioned (mis)leading questions, children were questioned
by the child. For example: by their parents, by therapists, members of the
Interviewer: How about Naked Movie Star? You prosecutors’ office leading up to the trial and by
guys remember that game? the prosecution and defense attorneys at the trial.
Child: No. When suggestions are implanted, not only can
Interviewer: Everybody remembered that game.
Let’s see if we can figure it out.
they become incorporated into the report but are
(McMartin Interview 107, p. 32) used in highly productive ways to distort reality,
something that is highly likely to have occurred in
While just under 20% of the statements and the day care cases discussed here.
questions from the McMartin and Michaels inter- We have referred to a substantial number of
views involved new information, only 3% of suggestive interview techniques that have been
statements in the CPS interviews contained new shown to have considerable impact on the accur-
information or information not consistent with acy of children’s reports. However, there are
the child’s statements. several other related factors that ultimately led
Although considerable research in the misin- Bruck and Ceci (1995) to conclude that the
formation field has examined the effect of single conditions under which the children were inter-
instances of implanted misinformation, if children viewed were “unsafe.” For example, young chil-
are repeatedly given misinformation in a series of dren are sensitive to the status and power of their
interviews, it can have serious consequences on interviewers. If a young child is being interviewed
the accuracy of their later reports (Andrews & by someone they perceive to be an authority that
Lamb, 2014; Bruck & Ceci, 1995). Misinformation child will be unlikely to challenge something that
not only becomes incorporated into children’s has been said by that person. Bruck and Ceci
subsequent reports but also tends to increase (1995) state that this power differential is one
fabrication rates that do not always directly of the most important factors in the susceptibility
mirror the content of the misleading information. to suggestion in children. Research has shown
For example, Bruck, Ceci, Francoeur, and Renick this fact to be true (see Ceci & Bruck, 1993)
(1995) interviewed children about an event that and the Michaels interviews show repeated refer-
happened approximately 1 year earlier. Children ence to the status and trustworthiness of the
640 HOWE AND KNOTT

interviewer, referring to their connection with law the children responded by poking the silverware
enforcement: into the genitalia or buttocks of the doll:
I’m a policeman, if you were a bad girl, I would Interviewer: Can you think of a way somebody
punish you wouldn’t I? Police can punish bad might have used this to hurt little girls?
people Child: (indicates the tummy)
------------------------------------------------------------------ Interviewer: Where else do you think a little girl
I’m going to introduce you to one of the men could have gotten hurt with a wooden spoon?
who arrested Kelly and put her in jail. Child: The belly button.
(Michaels Interview, Bruck & Ceci, 1995, p. 286) Interviewer: Where else do you think a little girl
might get hit with a wooden spoon? How do you
Bruck and Ceci (1995) also highlight the (mis)use think Kelly used this fork to hurt little girls?
of anatomically detailed dolls during the Michaels Child: Belly button.
interviews. Dolls are often used by professionals Interviewer: Where else?
working with children to help cue recall, over- (finally after many more persistent questions)
Child: Bottom.
come language problems and to provide a way to (Michaels Interview, Bruck & Ceci, 1995, pp.
communicate if they are shy or embarrassed. 292–293)
Excessive preoccupation with the genitalia or
distress shown when they are undressed is Note here the similarities with the paediatrician
believed to show signs of abuse (Mason, 1991). study when children were asked what the doctor
However, research has shown that dolls are might do with a spoon. Professionals are now
suggestive and can encourage sexualised play cautious of the use of anatomical dolls with young
even if the child has not been abused (e.g., children as their use promotes sexualised behavi-
Gardner, 1989; Terr, 1988). Ceci and Bruck our and false reports in non-abused children.
(1993) found that after a routine examination Further factors such as interview length and
with a paediatrician (some of which included a types of questioning have also been linked to
genital examination), 3-year-old children were reliability issues in forensic interviewing of chil-
inaccurate when reporting how and where they dren and false memory development (see Ceci &
were touched. Children who were not touched Bruck, 1993, 1995; Poole & Lamb, 1998). Inter-
demonstrated with dolls that they were touched, view length concerns not only the measure of
whereas some of the children that were touched temporal length of the interview but also the
falsely showed that penetration had occurred. number of utterances per interview. Interview
Children also demonstrated a number of other length becomes a concern if young children show
bizarre behaviours. When asked what the doctor signs of fatigue or wandering attention (e.g.,
did with a stethoscope, some children suggested it Home Office, 2002). Published guidelines for
was used on their genitals. When asked, “How he child forensic interviews also emphasise the
might use a spoon?” a small number of children importance of allowing children to talk at length
inserted it into the genital or anal opening of and describe in their own words, the experiences
the doll. in question (Home Office, 2002; Poole & Lamb,
The use of anatomical dolls seems significant 1998). Often, however, the interviewer can be
in the Michaels interviews. Bruck and Ceci (1995) seen to do considerably more talking than the
reported that anatomical dolls were shown to child. In fact, the ratio of interviewer words to
children in 24 of the 39 interviews before sexual child words has been used as a rough indicator of
abuse was reported by the child. Many suggestive suggestive and unskilful interviewing (Underwa-
aspects of the interviews involved sexualised ger & Wakefield, 1990). In a quantitative analysis
questioning in the context of demonstrations of interview length and ratio of utterances,
with the dolls. For example, children were asked Schreiber et al. (2006) found that the McMartin
to speculate about how silverware could have interviews lasted approximately 1 hour and 14
been used: minutes, whereas the Michaels interviews lasted
Interviewer: Why don’t you show me how you approximately 23 minutes. In both cases there
think a little girl can be hurt by the fork? were significantly more interviewer compared to
And child words (ratio = 4.60 and 4.67, respectively).
Interviewer: Why don’t you show me what Kelly Guidelines for interviewing children typically rec‐
did with the big wooden spoon.
ommend that the interviewer utilise open-ended
Often, as shown above, the children resisted these (“Tell me what happened”) or free narrative
suggestions, but sometimes after much repetition, questions where possible (American Professional
 MEMORY IN JUDICIAL PROCESSES 641

Society on the Abuse of Children, 2002; Home not understand a question). Interviewers are urged
Office, 2002; Poole & Lamb, 1998). They are to use open-ended questions as the norm, only use
more likely to lead to accurate accounts of an recognition prompts or yes/no and forced choice
event and reduce opportunity for suggestion. questions later in the interview, and only when
However, young children are not always capable needed to elicit undisclosed forensically relevant
of providing detailed narratives so guidelines also information (Lamb et al., 2007). Research has
indicate that open-ended questions can be fol- shown that open-ended questions are much more
lowed up with yes/no questions (“Did it happen likely to elicit accurate information than that
more than once?”), choice questions (“Was it elicited using more focused recognition responses
night time or day time?”) or focused/specific (Lamb & Fauchier, 2001; Orbach & Lamb, 1999,
questions (“Where did it happen?”). However, 2001). This is likely because open-ended questions
such questions should be used sparingly and force the child to recall information from memory,
should be of a non-suggestive nature. Unfortu- whereas more focused prompts, provided by the
nately, in child forensic interviews such questions interviewer, often only require the child to recog-
are often overused and used in a suggestive nise information. Interviewers are advised not to
manner. Schreiber et al. (2006) reported that the use yes/no or forced choice questions because we
majority of questions in the McMartin and have seen how suggestive they can be.
Michaels interviews were of the yes/no form However, despite this research and the expert-
followed by focused/specific, with only around endorsed recommendations, such interviewer
10% of the questions being free recall/open techniques were seldom followed. Lamb et al.
narrative. (2007) reported that descriptive studies of for-
We have presented a number of features that, ensic interviews from the USA, UK, Canada,
when present in interviews or interactions with Sweden, Finland and Israel consistently showed
young children, may greatly compromise the little use of open-ended prompts, and that inter-
accuracy of their reports. Many of these features, viewers, even if they had been trained in proper
as well as others, were highlighted after the procedures, frequently deviated from these rec-
widely publicised day care cases and the need ommendations, usually being unaware they had
for a systematic change was called for when it done so.
came to the investigative interviewing of children. Because forensic interviewers often have diffi-
This systematic change came in the form of culty adhering to recommended interview prac-
interviewing protocols and the procedures that tices in the field, Michael Lamb and colleagues
should be used when interviewing children. We at the NICHD developed a structured interview
now take a closer look at the development of protocol designed to translate professional rec-
these protocols. ommendations into operational guidelines (Lamb
Expert professional groups have offered recom- et al., 2007; Orbach et al., 2000). The structured
mendations regarding the most effective ways of NICHD Protocol provides explicit instructions to
conducting forensic or investigative interviews guide interviewers through all phases of the
with children (e.g., American Professional Society investigative interview, from the initial introduct-
on the Abuse of Children, 1990, 1997; Home ory phase, the rapport-building phase that accus-
Office, 1992, 2002; Jones, 2003; Lamb, 1994; toms children to the open-ended interview style
Orbach, Hershkowitz, Lamb, Sternberg, Esplin, while building a relationship with the interviewer,
& Horowitz, 2000; Poole & Lamb, 1998). Such to the substantive phase which identifies a series
recommendations all state that the interview of open-ended prompts to identify the target, and
should be conducted as soon as possible after the finally to the directive questioning phase to cover
alleged event by interviewers who introduce as crucial details that are still missing (see Table 1 for
little information as possible while encouraging as a breakdown of these phases).
much information as possible from the child using The findings obtained in independent field
open-ended questions to elicit narratives of the studies in four different countries (e.g., Cyr,
event. Before substantive details of the event are Lamb, Pelletier, Leduc, & Perron, 2006; Lamb,
discussed, the interviewer should explain their Orbach, Warren, Esplin, & Hershkowitz, 2006;
role, the purpose of the interview and set “ground Orbach et al., 2000) demonstrate the effectiveness
rules” (describe only events that “really hap- of the NICHD Protocol. When forensic investi-
pened,” use “don’t know,” correct the interviewer gators employ the structured NICHD Protocol,
if they are wrong and ask for clarification if they do they enhance the accuracy and quality of
642 HOWE AND KNOTT

TABLE 1
Phases of the NICHD Protocol adapted from Lamb et al. (2007)

Phase I: Introduction The interviewer introduces him/herself, clarifies the child’s task (the need to describe events in
detail and to tell the truth), and explains the ground rules and expectations (i.e., that the child can
and should say “I don’t remember”, “I don’t know”, “I don’t understand”, or correct the interviewer
when appropriate). Examples are provided to ascertain whether the child understands these rules.
‘And if I say things that are wrong, you should tell me. Okay?’
‘So if I said that you are a 2-year-old girl [when interviewing a 5-year-old boy, etc.], what would
you say?’
Phase II: Rapport building The interviewer aims to create a relaxed, supportive environment for children and to establish
rapport between children and interviewer. The interviewer asks a series of questions to get to know
the child better.
‘Tell me about things you like to do.’
Phase III: Training in Children are prompted to describe a recently experienced neutral event in detail. This “training” is
episodic memory designed to familiarise children with the open-ended investigative strategies and techniques used in
the substantive phase while demonstrating the specific level of detail expected of them
‘A few [days/weeks] ago was [holiday/birthday party/the first day of school/other event]. Tell me
everything that happened on [your birthday, Easter, etc.].’
And then what happened?
‘Earlier you mentioned [activity mentioned by the child]. Tell me everything about that.’
Phase IV: Substantive This stage consists of a number of sub stages that include the transition to the substantive issues:
interview ‘Now that I know you a little better, I want to talk about why [you are here] today.’
Followed by open-ended questions related to the allegations
‘Tell me everything about that.’
‘Then what happened?’ or ‘Tell me more about that.’
Once the child has provided a narration of the allegation using open-ended prompts the interviewer
can move on to elicit information that has not been mentioned by the child. For example:
‘When you told me about the time in the basement, you mentioned that he took off his trousers.
Did something happen to your clothes?’ [Wait for an answer.] [After the child responds, say:]
‘Tell me all about that.’
‘I see [I heard] that you have [marks/bruises] on your [––––––––––]. Tell me everything about
that.’
The interview closes after the child has been asked if they have any questions. The interviewer
finishes by asking a neutral topic question such as where they are going after they leave today.

information elicited from alleged victims of all Lamb, & Katz, 2014; Pipe, Orbach, Lamb, Abbott,
ages. Research has shown that when using the & Stewart, 2013; for recent, comprehensive review,
protocol at least three times more open-ended see Lamb, Malloy, Hershkowitz, & La Rooy, in
questions are used and there is an approximate press). Nevertheless, the structure of the protocol
50% drop in the number of option based and provides trained interviewers with a more univer-
suggestive prompts in comparison to similar inter- sal and useable set of guidelines that can be easily
views not using the protocol. The protocol is also adhered to. The end result is a protocol that can
effective with young children with about half of elicit accounts that are more likely to be accurate
the informative and forensically relevant details and less likely to be challenged in court. If experi-
and more than 80% of the initial disclosures of enced interviewers can follow guidelines like the
sexual abuse being provided by preschoolers in structured protocol and continue to review their
response to free recall prompts. These findings interviews with other experienced interviewers
show that interviewers should only introduce then even children as young as 4 years of age can
information if essential information is still missing provide accurate and forensically usable informa-
after free recall and directive prompts have been tion about their experiences when interviewed
exhausted because these alternatives are more (Lamb et al., 2007).
likely to elicit inaccurate information and their
introduction may contaminate any additional
information provided. HISTORIC SEXUAL ABUSE
The NICHD Protocol is informed by current
research into child forensic interviewing and So far we have focused on factors that can
remains a “work-in-progress” (Hershkowitz, influence both the accuracy and fallibility of
 MEMORY IN JUDICIAL PROCESSES 643

children’s memory for recent events. However, contained rich detail provided by the complainant
what we know about memory and the inchoate about events allegedly occurring before the age of
beliefs about memory can be damaging, espe- 8 years. Conway refers to the earliest memory
cially in cases of “historic” sexual abuse (HSA). provided by the compliant:
We refer here to cases of HSA in which, typically, I remember standing in the garden looking at the
an adult recalls abuse that took place years and back of the house—it was July just before my
even decades earlier, usually when they were a third birthday. The garden was full of rubbish
child or a young teenager. As with many cases of and weeds and the back of the house was shabby
sexual abuse, in HSA cases memory is often the and in disrepair with cracked paint peeling off
the windows, he [her father] never kept anything
only evidence. Other evidence such as social in good shape.
service records, medical records, reports from
teachers and other professionals is often lacking, A 2- to 3-year-old would not be able to have such
incomplete or unreliable. a rich memory for a relatively ordinary event.
The evidence in these cases consists of a The use of words such as “shabby” and “dis-
witness statement given by the complainant to repair” are adult concepts, and it is highly
the police. An initial free recall account is unlikely to have any memory for an event before
followed up by a series of detailed questions her third birthday. The complainant also recalled
about specific details of the event, for example, a time marker “July”, but children typically have
what were they thinking and feeling, what clothes a poor ability to record such details (Thompson,
were they wearing, what clothes others (e.g., the Skowronski, Larsen, & Betz, 1996). The typical
accused, other witnesses) were wearing, what the defense against this argument is that the remem-
weather was like, what day of the week it was, berer has the image in their mind from the time
what time of day it was, what the furniture in the of the event and is now describing it in their own
room was like, position of body parts, conversa- “adult” terms. However, this argument has its
tions, and so on. As the witness is repeatedly limitations. Remembering what one cannot un-
asked to recall these details, the police officer derstand at the time and remembering stories
strategically summarises what is being said at where comprehension is low, is subject to distor-
convenient points in the developing narrative.
tion, condensation and error (Bartlett, 1932).
The outcome of this interview process is an
Other accounts from expert witnesses provide
elaborate, fluent and detailed account of what
equally unusual detail. Howe (2013b) observes a
the complainant believes to be an accurate nar-
vivid memory from a witness statement that
rative of their memory for an event (or set of
reports an event from when the complainant was
events) that transpired years earlier. Often the
resulting witness statement contains considerable 3 years old:
implausible details, such as what clothes the I was upstairs and I was playing in the spare
witness was wearing when they went to bed 35 room, and I was a bit upset. I was wearing my
favorite pink dress and I remember him coming
years earlier, aged 5 years old—details that adults up to me … and he just picks me up and he just
simply cannot remember (Wells, Morrison, & sat me on his lap and gave me a really big
Conway, 2014). squeeze. He was wearing jeans and a t-shirt and
By way of an example, Conway (2013) refers would just sit there with his legs straight down in
to a legal case in which he acted as an expert front of him. When he picked me up he would sit
me facing the same way, he just pulled me really
memory witness. The complainant made a witness close in to him … he had his arms around my
statement at the age of 20 regarding her repeated waist. I remember feeling uncomfortable.
abuse by her father between the ages of 3–13
years. The statement contained a series of mem- It is important to note here that neither Howe
ories of acts of sexual abuse with the detailed and (2013b) nor Conway (2013) claim that adults who
vivid memory of a rape by multiple assailants in have experienced trauma in childhood cannot
her father’s hardware store. The details were remember these events, because they do, particu-
convincing enough to the jury to elicit a guilty larly if these events are still viewed by the person
verdict, leading the father to receive a 14-year as salient or life-changing experiences. Indeed,
prison sentence. Conway acted as an expert adults who recall documented HSA experienced
witness when the case went to the Appeals Court. some 12–21 years earlier were able to accurately
In his report he highlighted a number of concerns, recollect core features of these experiences.
one of which was the fluent narrative that However, these narratives are typically sparse
644 HOWE AND KNOTT

on peripheral information and contain recon- in childhood for childhood events (which can
structive errors (Alexander et al., 2005). often be accurate at that time—see the previous
The expert memory witnesses’ role here is to section in this review), adults’ memory for child-
inform the jury of the scientific facts about how hood events can be quite fragmentary and often
memory works. In particular, that such reports of decontextualised, depending on the age at which
memory do not conform to what we know about the event(s) took place.
memory. Memories with fluent narratives would What adults can remember from childhood is
be considered as exceptional and unusual. Such also reliant on the developments that occur in
detail would be rarely seen in adult recall of the semantic or conceptual components of mem-
either positive or negative experiences from ory (Howe, 2011). Young child’s knowledge base
childhood (Wells et al., 2014). Instead, childhood is not as well developed as that of older children
memories are fragmentary, contain amnesic gaps, and adults. Therefore when we recall an event
information is often out of order, contain guesses, from childhood, we expect that the language and
unconscious inferences and often contain incor- concepts associated with the memory correspond
rect details. Rarely is the incorrect nature of these to that person’s knowledge base at the time the
details known to the rememberer. This is because memory was encoded. This becomes particularly
more often than not, the brain (e.g., via reconsol- relevant when referring to memories of child-
idation processes—see Howe, 2013a) automatic- hood sexual abuse. In our current adult world-
ally adds in plausible details, outside of conscious view, such an event would evoke the concept
awareness (Wells et al., 2014). This process of and feeling of disgust, but such a concept is not
“adding in” of many other types of details is believed to have developed until approximately
simply part of the complex memory construction 5 years of age (Widen & Russell, 2013). Indeed,
process. Nevertheless there is a powerful miscon- the more complex concepts, including those
ception in society generally that the more details related to emotion (both positive and negative),
one can recall and the more specific they are, the did not appear until later in childhood which was
more likely it is for that memory to be accurate. reflected in the age of earliest memories asso-
Indeed, a polished, fluent and detailed account ciated with that concept (Morrison & Conway,
that typically results from a police interview is 2010).
considered thorough evidence for the prosecu- There are several other factors to consider in
tion. Research contradicts this, however, and in the developing stability and longevity of autobio-
fact the greater the detail the greater the likeli- graphical memories. With age, we become more
hood of error (Luminet & Curci, 2009). efficient at encoding, storing and retrieving
Moreover, we know that early memories are information that allows for the binding of
more fragile than memories formed in later information into more coherent memories (New-
childhood and adulthood (e.g., Howe, 2011), and combe, Lloyd, & Balcomb, 2012). The emergence
that peripheral, episodic details deteriorate more of the cognitive-self around the age of 18–24
rapidly than core components. Thus, it is often months allows events to be encoded, stored and
the case that as an adult, we are left with quite retrieved as personal, ones that have happened to
vague and contextually poor recollections of the “me” (Howe & Courage, 1997). Finally, language
past (Strange & Hayne, 2013). Indeed, when we development allows us to share our past experi-
consider the development of our memory system ences with others (e.g., Nelson & Fivush, 2004).
and the reconstruction process itself, we can see Conversations with parents can help restructure
the obvious difficulties we face when remember- and integrate personal experiences and enhance
ing events from our childhood. Memories formed retention of autobiographical events. However,
before 4 or 5 years of age are poorly remem- such conversations with others (e.g., peers, parents,
bered, often fragmentary and not well preserved teachers) can also fundamentally change children’s
for future use (Howe, 2011; Howe, Courage, & memories of events they have experienced.
Rooksby, 2009). The more mature autobiograph-
ical memory system does not develop until after
the age of 5–7 years (Howe, 2011, 2013a), but Is there a special case for repressed
stable adult-like autobiographical memories are memories?
rarely seen before the age of 8–10 years, with
recall from this period only possible if the event is Research has shown us that all memories, regard-
distinctive and memorable. Thus, unlike memory less of whether they are for traumatic or
 MEMORY IN JUDICIAL PROCESSES 645

mundane events that occur in childhood, adoles- relationships, distrust of others, guilt, impaired self-
cence or adulthood are subject to decay, forget- esteem, self-destructive behaviours, and personal-
ting, interference and other memory mechanisms ity disorders. Unfortunately, these attributes, so
that inevitably lead to constructive errors and general as they are, could apply to any number of
memory distortion. This becomes particularly behavioural and psychological problems, or indeed,
important when we consider the common misbe- to some extent be applied to everyone.
lief that memories for stressful and traumatic Kihlstrom (1999) states that although it may be
events can be protected via some “special mem- true that abuse victims may display many of these
ory mechanism”. For example, allegations of signs and symptoms, it does not follow that
repressed and recovered memories of childhood everyone who displays these attributes is an
sexual abuse typically rely on repressive or disso- abuse victim. However, when patients come to
ciative mechanisms that render painful material therapists, they are looking for answers to explain
inaccessible to consciousness (e.g., Briere & any behavioural or psychological problems they
Conte, 1993; Elliot & Briere, 1995). The belief is are experiencing. If the therapist concludes that
that when these recollections do return, such the patient is a victim of abuse, then with the
events are presumed unlikely to be forgotten in recovered-memory techniques that quickly ensue,
“ordinary” ways, being protected from the ravages it is not surprising if reports of abuse arise. If a
of time and immune to the normal laws of memory.
criminal or civil claim is subsequently filed, the
However, others have stated that there is no
problem the court faces is one of knowing
scientific evidence for the existence of these spe-
whether the report reflects a real experience or
cial memory mechanisms and instead caution the
an iatrogenic false memory. Because a memory is
use of suggestive memory recovery techniques to
not triggered it is reconstructed (Bartlett, 1932;
“unlock” repressed memories. Such caution is
Kihlstrom & Barnhardt, 1993), whether the recol-
based on a long history of research and scientific
lection is reconstructed from a historically accur-
data supporting the premise that human memory is
highly suggestible and malleable (see Ceci & ate event is the key question that needs to be
Loftus, 1994). Based on this evidence it is plausible addressed before a decision can be made about
to believe that false memories may be inadvertently an alleged perpetrator’s guilt or innocence.
created by risky therapeutic methods used in many We have seen that the absence of a mature
of the recovered memory claims (e.g., hypnosis, autobiographical memory system and its sub-
guided imagery; Ceci & Loftus, 1994). sequent emergence and development in later
Such advocates of recovered memories claim childhood (after the age of 5–7 years) has been
that adults who were abused as children, but have well documented in both behavioural and neuro-
complete amnesia of the abuse, will demonstrate logical studies (Howe, 2011, 2013a). Before this
a variety of symptoms as a result of the abuse age we typically refer to a period of infantile and
(Bass & Davis, 2008; Dolan, 1991; Fredrickson, childhood amnesia where memories are poorly
1992). Typically authors that list such symptoms formed and typically forgotten. In fact, Howe
as a “self-diagnosis checklist,” provide no infor- (2013a) states more stable, adult-like autobio-
mation regarding the scientific basis of the CSA graphical memories are rarely seen before the
link to such symptoms. Bass and Davis (2008) list age of 9–10 years, and even then, recalling events
74 characteristics associated with sexual abuse. from this period will only be possible if they are
The list includes such attributes as relationship particularly distinctive and memorable. However,
difficulties, feeling dissatisfied with family rela- by some twist of logic, self-help guides (e.g., Bass
tionships, sexual dysfunction, trouble expressing & Davis, 2008) and therapists take the very fact
feeling, and feeling different. Dolan (1991) that someone cannot remember their abuse to be
believes that when a client is exhibiting symptoms evidence that they were abused. Bass and Davis
indicative of abuse, it is the role of the therapist make no reference to childhood amnesia or the
to assist the client in recalling the repressed maturation of brain structures that allow for the
abuse. Similar to Bass and Davis, the symptoms long-term recollection of autobiographical mem-
Dolan describes include a wide range of problems. ories. Instead they make claims such as this:
These include dreams of being pursued, sleep
If you don’t remember your abuse, you are not
disturbances, eating disorders, substance abuse, alone. Many women don’t have memories, and
compulsive sexuality, sexual dysfunction, chronic some never get any memories. This doesn’t mean
anxiety attacks, depression, difficulties with they weren’t abused. (p. 81)
646 HOWE AND KNOTT

If you are unable to remember specific instances Schacter, Chamberlain, Gaesser, & Gerlach,
… but still have a feeling that something abusive 2012). Therefore, when a memory is uncovered
happened to you, it probably did. (p. 21)
in therapy, it is the role of the therapist to verify
It is important to note here that prominent critics empirically, any uncovered event. Because of the
of memory-recovery work such as Loftus, Freyd, lack of consensus in the scientific community for
and Lindsay do not assert that all recovered the theory of repression and the inability to
memory reports are false. Indeed there are determine truthfulness of a specific repressed
many cases where memories of CSA emerge after memory allegation without corroborative evid-
long periods of forgetting. Instead, such critics ence, repressed memory claims present special
claim that there is no scientific evidence for a equitable and evidentiary problems for the courts
special repression mechanism and that memory- (Amicus curiae: Minnesota Supreme Court, Doe
recovery work can lead to iatrogenic false mem- 76C v. Archdiocese of St. Paul and Minneapolis
ories. It is not implied that all accounts of and Diocese of Winona, 2011), something we turn
recovered CSA are false, or that all memory- to next.
recovery techniques will always inevitably lead to There was a surge in cases involving claims of
the formation of false memories (their research recovered memories when courts and legislatures
alone shows this is not the case), but that the in many states created legal mechanisms for both
creation of false memories do occur, and the false criminal and civil actions based on recovered
beliefs of these events can be held confidently memories (Loftus & Rosenwald, 1995). In cases
(Lindsay & Read, 1994; Loftus, 1993). involving claims of recovered memories, one
Today we have a clearer understanding of the party aims to prove the existence of repressed
uncertainty of recovered memory techniques and memories, while the other party provides a
their use to “unlock” recovered memories of counterclaim, denying the abuse occurred and
abuse. Official statements by the American Psy- argues that memories recovered in therapy
chological Association, Board of Trustees (1993) should be inadmissible in court. Here the ques-
have been made regarding uncorroborated recov- tion has been, which party has the sustainable
ered memories of CSA. They clarify the need to claim to scientific knowledge (Underwager &
be aware of the issues of false accusations while Wakefield, 1998). Taub (1999) provides a full
not discrediting the reports of patients who have review of the False Memory Syndrome Founda-
indeed been traumatised by actual previous tion (FMSF) Legal Survey, but here we highlight
abuse. Basic clinical and ethical principles should some of the prominent historical cases based on
guide the psychiatrist’s work in this difficult area. claims of recovered memory.
Such statements emphasise that care must be taken
to avoid prejudging the cause of the patient’s
difficulties, or the veracity of the patient’s reports. Paul Ingram
A strong prior belief by the psychiatrist that sexual
abuse, or other factors, are or are not the cause of In 1989, defendant, Paul Ingram (State of Wash-
the patient’s problems is likely to interfere with ington v. Ingram) received a 20-year prison
appropriate assessment and treatment. Clinicians sentence after he pled guilty to the sexual and
should not exert pressure on patients to believe in ritual abuse of his two daughters. The sisters
events that may not have occurred. Clinicians need asserted that years earlier they had been repeat-
specialised training to treat patients who report the edly raped and that at least 25 human babies,
emergence of memories during specialised inter- some born to them, had been sacrificed in rituals
view techniques (e.g., hypnosis, guided imagery). in the Ingram’s back yard. Police failed to locate
As Rogers (1992, 1994) noted, valid claims the burial grounds for the alleged ritual sacrifices.
may arise in therapy, but typically in these cases Furthermore, medical examination of the daugh-
the therapist did not use intrusive and suggestive ters failed to yield any evidence of sexual activity
techniques and the patient will not have been or of childbearing. Yet Paul Ingram, a deputy
placed into influential group treatment until the sheriff, and a member of a Christian church,
abuse had been fully documented. Thus, medical believed that his children would not lie. Although
records must be carefully examined in any court Ingram insisted he could not remember ever
case. The overwhelming issue is that there is no doing anything he was accused of, he worked
litmus test to distinguish between true and false with the detectives, pastor, and therapist to
memories (see Bernstein & Loftus, 2009; visualise the attacks and eventually reported
 MEMORY IN JUDICIAL PROCESSES 647

having flashbacks and images of abusing his two to persuade the court that the evidence is
daughters. Dr. Ofshe, a social psychologist, inter- admissible. These factors include: to be aware of
viewed Mr. Ingram at length and was able to the aim or subject of the hypnotic session, to be
show how he had been persuaded to produce a aware of any possible suggestions from the hyp-
false confession through the use of long inter- notist, seek a record of the hypnosis session if
rogations using visualisation exercises and sug- available, and show corroborating evidence.
gestion, eventually coming to believe in and
accept the things he could not remember doing.
However, Ofshe’s report was not made available Cherese Franklin
to Ingram to use in the trial and, after pleading
guilty, Ingram was charged with six counts of rape In 1992, Franklin began treatments with a psy-
in the third degree. Ingram tried without success chologist, Dr. Laurie Hoover after experiencing
to withdraw his guilty plea and remained in panic attacks. Using a variety of recovered mem-
prison until released in 2003 after serving his ory techniques including guided imagery, writing
sentence. with the nondominant hand, trance-work, relaxa-
According to the FMSF Legal Survey, civil tion, communicating with metaphorical “inner
lawsuits represent 86% of all repressed memory children,” and journal writing Franklin began to
cases in the US. Of the civil suits that have been “recall” previously repressed memories of abuse.
resolved, approximately 13% have gone to trial.
At first Franklin believed the abuser had been
Between 1995 and 1998 only 8% of civil cases
her father but later became convinced that Ste-
have been resolved at trial (10 in favour of
venson, a cousin 7 years her senior, committed
plaintiffs and 4 in favour of defendants). During
the abuse. She filed this action against him
that same period, 70% of the repressed memory
(Franklin v. Stevenson). Despite Stevenson ori-
lawsuits were either dropped by the complainant
ginally requesting that the trial court exclude any
or dismissed by the courts due to the inadmissib-
ility of repressed memory testimony. Two such evidence and testimony from either the expert
cases highlighted in the legal survey are presented witnesses or Franklin herself, the judge denied
below. this motion, and the jury returned a verdict
against Stevenson. In 1999, a Utah District Court
judge reversed a jury verdict in favour of the
Joan Borawick plaintiff and dismissed the claim, drawing a
parallel between hypnotic suggestion and com-
In 1992, Borawick (Borawick v. Shay), a 38-year- municating with an “inner child.” This, along with
old Connecticut woman sued relatives who, she the other techniques used, was seen to be like
claimed, had sexually abused her when she was a hypnosis, inherently unreliable for recovering
child. Claims included rituals where she was memories. Indeed, on cross-examination in this
drugged at the age of 3, then sexually abused case, Stevenson elicited concessions from Frank-
and forced to take part in ritual acts involving lin’s expert witness, Dr. Bessel van der Kolk,
drinking the blood of a dead pig. The appellant regarding the lack of scientific support for the
initially claimed that the memories returned to memory techniques used with Franklin. Dr. van
her spontaneously, but other court records der Kolk testified as follows:
showed that the alleged abuse was reported Q. Is there any scientific literature, any studies
during a hypnotic session with her unlicensed that you are aware of that have been done that
therapist. In 1996, the case was dismissed by the show that asking a question with one hand and
US Second Circuit Court on the grounds of answering the question with the non-dominant
suggestible hypnosis techniques used to recover hand is a mechanism by which you can recover
an accurate memory of the past? Are there
the memory, the far-fetched uncorroborated alle- studies?
gations, and the lack of qualifications and accur- A. It’s interesting that you ask the question,
ate record keeping of the therapist. Taub (1999) actually, because this great Frenchman who
states that following this case the court proposed knew more about trauma than anybody else,
that certain factors be considered at a pretrial Pierre Jenet … in 1889 in his book … actually
wrote about that very phenomenon.
evidentiary hearing before choosing to admit Q. Did his study deal with the issue of validating
posthypnotic testimony and that it is the respons- the accuracy of the recovered memory, Doctor?
ibility of the party seeking to admit the testimony A. No, he didn’t.
648 HOWE AND KNOTT

Q. Thank you. And are you aware of a single used similar method to elicit false memories of
study as of 1996 that has validated this as a nearly drowning as a child and being rescued by a
reliable technique for recovering memory,
Doctor?
lifeguard (Heaps & Nash, 2001), or having to go
A. Not to my knowledge. to hospital at the age of 4 after being diagnosed
Q. Thank you. with low blood sugar levels (Ost, Foster, Costall,
Q. Do you believe that there is any scientific & Bull, 2005). Often initial interviews elicit little
evidence to suggest that I could ask myself [a detail, but with repeated questioning across suc-
question] and I could answer that question with
my nondominant hand and expect that I’m really
cessive weeks, participants are able to provide a
getting the truth? detailed recollection, including thoughts at the
A. Is there any scientific evidence? I’m not time into the narration:
aware of any studies specifically done on non-
I was living in [place name] at the time. It must
dominant handwriting to support or disprove
have been on a Sunday because my dad was
that. It is a common clinical technique.
there. He was always around on a Sunday … I
(Taken from: http://law.justia.com/cases/utah/
don’t remember much about the hospital except
supreme-court/1999/franklin.html)
I know it was a massive, huge place. I was 5 years
Unfortunately, these case examples show that old at the time and I was like ‘oh my God I don’t
under certain circumstances memories for child- really want to go into this place, you know it’s
awful’ … but I had no choice. They did a blood
hood experiences can be grotesquely distorted. test on me and found out that I had a low blood
The ability to create false memories for childhood sugar. (Ost et al., 2005, p. 710)
experiences has been supported by extensive
Taken together these studies show the power of
laboratory based research. We can distort original
this strong form of suggestion. It has led many
memories by exposing people to misleading
participants to believe or even remember in detail
information (for a review, see Loftus, 2005). For
events that did not happen. Akin to the false
example Wade, Garry, Read, and Lindsay (2002)
iatrogenic memories recovered in therapy, these
used doctored images depicting false events from
findings from laboratory-based studies show that
an adult’s childhood. Through guided imagery
false memories are often a fusion of imagined,
exercises (not unlike those used in recovered
real, and suggested information. However, as we
memory therapy), participants were asked to
have cautioned earlier, there is no reliable test to
think about the photograph depicting them on a
distinguish between a more or less accurate
hot air balloon ride (which they had never taken).
memorial reconstruction versus one which con-
They found that 50% of participants created
tains numerous distortions versus one that is a
complete or partial false memories for this event.
complete fabrication. The major concern for the
Although doctored images are very explicit more suggestive memory-recovery techniques is
forms of misleading information, misinformation the ease with which memories can be distorted.
can also be very subtle, demonstrating that
although misleading information can be pre-
sented unintentionally, it can still have devastat- Repressed memories or implanted false
ing effects on what we remember about a past memories for childhood experiences?
event. Such studies have been criticised for
implanting memories for mundane events that We have seen that memories for entire events
do not replicate the emotionally traumatic events that did not happen can be created. Although we
of child abuse. Although ethically we could not should not create false sexual abuse memories in
implant false memories of child sexual abuse, controlled laboratory conditions, there is an
memory distortions have been demonstrated for abundance of evidence demonstrating the ease
more negative and traumatic experiences from with which false memories can be implanted for
childhood. For example, Porter, Yuille, and Leh- both mundane and negative events. In the court-
man (1999) interviewed participants about highly room, the problem is that there is no way to know
emotional and stressful events from their child- the difference between the retrieval of a real
hood (serious animal attack, a serious indoor or memory and the convincing false belief in a
outdoor accident), some of which were true and created memory (Spiegel & Scheflin, 1994). It is
some false. Using guided imagery and repeated likely that many cases of recovered memories can
retrieval attempts, 26% of participants reported a be both accurate and illusory (Lindsay, 1999). We
complete false memory and another 30% recalled have seen that the many techniques used over the
aspects of the false experience. Other studies years to aid memory recovery risk the creation of
 MEMORY IN JUDICIAL PROCESSES 649

false memories for events that never happened. Wright, Easton, Hope, & French, 2013), Char-
In many cases, without independent corrobora- tered Clinical Psychologists and Hypnotherapists
tion, it can be difficult to trust memory. It is also agreed overwhelmingly with the existence of false
likely that different approaches to recovered memories (over 80%). However, both groups
memory work vary in their likely risk to produce reported a belief in cases of satanic abuse and
iatrogenic false memories. Yet science has not repressed memories, with approximately one
been able to give us a definitive answer to which third reporting that such cases could “usually” or
approaches pose substantial risk and those that “always” be taken as essentially accurate.
do not (Lindsay, 1999). What research does exist Worse, this scientist-practitioner gap may be
encourages the use of a “case-specific focus” more even larger than Ost et al.’s study suggests.
(Alison, Kebbell, & Lewis, 2006, p. 416) regard- For example, when clinical psychologists, psycho-
ing each circumstance that leads to the recovery analysts, neuro-linguistic programmers, internal
of a memory for child abuse. family systems therapists, hypnotherapists, and
Although it is impossible to postdict the accur- other types of therapists were asked whether they
acy of recovered memory claims, Lindsay (1999) believed that traumatic memories are often
does consider some important factors to help repressed, the majority of them agreed (range
assess the plausibility of these claims. These 60% to 90%; Patihis, Ho, Tingen, Lilienfeld, &
include: (1) how the recovered memory experi- Loftus, 2014). When asked if repressed memories
ence came about (with greater confidence in a could be accurately retrieved in therapy, again
memory that was not recovered using suggestive the majority of these practitioners agreed (range
memory work), (2) the likelihood the event could 47% to 78%). What these recent surveys show is
be forgotten (happened early in life, happened a that a number of therapists hold beliefs that
small number of times, common form of abuse), scientists would view as controversial, especially
and (3) at least some evidence in support of the in light of the last 20–30 years of research. One
claim. Recovered memories that appear relatively hope is that this review will not just raise
implausible should be treated with caution. A awareness of this gap but reduce the size of this
more implausible claim would include reports of gap. Perhaps by publicising what the science of
abuse that is bizarre and extreme (e.g., satanic memory has taught us over the last few decades,
ritual abuse), said to have happened numerous we can popularise what is known about the risks
times over the period of many years, said to have and realities not just about recovered memories,
happened during infancy, and to have emerged but about memory more generally.
via extensive memory-recovery work, and with no
supporting evidence. In cases where recovered
memories do appear in court, an expert memory EYEWITNESS (MIS)IDENTIFICATION
witness should be called upon. Although no
memory expert will be able to discern the truth Next, we turn briefly to memory errors associated
or falsity of an allegation, they will be able to with eyewitness (mis)identification using a prom-
inform the courts regarding the effects of any inent case example to begin. On 18 September
suggestive techniques used to recover the mem- 2003, Calvin Willis was released from prison after
ory, how memory may have been influenced, and serving over 21 years for a crime he did not
the need for caution when considering the cred- commit. In 1982, Willis was tried and convicted
ibility of that memory. Although each case should for the rape of a 10-year-old girl in Shreveport,
be evaluated on its own merits, implausible claims Louisiana. In June 1981, an intruder entered a
such as those listed above where the abuse is only home where three girls—aged 10, 9 and 7—had
recalled after extensive intrusive memory techni- fallen asleep. Two of the girls had fallen asleep on
ques, should be treated with scepticism. the couch, the third in bed. The intruder carried
Despite this leap forward in the scientific the 9-year-old to the bed, where her 7-year-old
understanding of the foibles of cases involving sister was sleeping. The 10-year-old victim awoke
repressed/recovered memories, therapists’ experi- and saw a man standing above her, naked except
ences of, and beliefs about, cases of recovered for a cowboy hat. The attacker choked her and
memory, satanic abuse, dissociation, and false banged her head against the wall. The victim was
memory still shows a considerable gap in under- able to escape and ran from the intruder, but was
standing between the scientific and professional caught in the front yard. She was kicked in the
fields. In an online survey published in 2013 (Ost, stomach and lost consciousness. Her two younger
650 HOWE AND KNOTT

sisters heard the noises but remained in the of parole (see “Innocence Project—Calvin
bedroom. Their mother did not return to the Willis”, 2003).
house until the morning. Eyewitness testimony that directly implicates
What led to the conviction of Calvin Willis? an alleged perpetrator is compelling evidence in
When the police began their investigation, the any trial and a single witness’s identification can
interviews of the three girls produced inconsist- often be enough to obtain a conviction. However,
encies in their statements. The 9-year-old girl eyewitness misidentification is the single greatest
could not identify the perpetrator’s face but cause of wrongful convictions. The Innocence
described his shoes, which were shaped like Project is a non-profit legal clinic founded in
cowboy boots. At trial, the girl identified Willis 1992 by Barry C. Scheck and Peter J. Neufeld in
by his boots, although her testimony of what the association with the Benjamin N. Cardozo School
boots looked like differed from the boots Willis of Law at Yeshiva University. The project is a
was arrested in two days after the crime. She national litigation and public policy organisation
testified that she did not see the attacker’s face. dedicated to exonerating wrongfully convicted
The 7-year-old girl had been asleep but awoke people through DNA testing. An eyewitness
when she heard the victim’s cries and the attack- report published by the Innocence Project (Inno-
er’s threats to kill her. She identified the voice as cence Project, 2010) stated that over 230 people,
that of Calvin Willis, whom she had spoken with serving an average of 12 years in prison have
once. One police report said the 10-year-old been exonerated through post-conviction DNA
victim did not see her attacker’s face. Another testing in the USA alone. Of those wrongfully
report—which wasn’t introduced at trial—said convicted over 75% involved eyewitness misiden-
she identified Calvin Willis, who lived in the tification (179 people). The report highlights a
neighbourhood. The girl’s mother testified that number of worrying statistics. For example, of
Willis had been in her house before, he was those 179 individual cases, 38% were based on
known to wear a cowboy hat, she had seen him in multiple eyewitness misidentifications of the same
boots similar to those described by her daughter. innocent suspect. Fifty-three percent involved
The police testimony also differed with regard cross-racial misidentifications. In 50% of the
to the photographic evidence. An investigator misidentification cases there was no further cor-
testified that she showed the victim a lineup that roborating evidence and the eyewitness testimony
included Willis’s photograph because the victim was the central evidence used against the defend-
had said that Calvin was the attacker. Her mother ant. Of most ill fate, in 36% of these cases the real
perpetrator was identified through the post-con-
provided the last name of Willis. The victim’s
viction DNA test, and in just fewer than 50% of
mother testified that Willis’s name did not come
these cases, they had gone on to commit addi-
up before the lineup. Upon further questioning,
tional crimes of rape and murder.
however, she testified that the victim had said
However, eyewitness testimony is still among
Calvin did it before they were taken to the police
the most prevalent and persuasive evidence used
station and that he had been wearing a cowboy
in the courtrooms:
hat and cowboy boots. The victim testified that
she was told to pick the men in the photographic The U.S. legal system currently allows conviction
lineup that did not have a full beard. She also of criminal charges based solely on the testimony
of a single eyewitness. It is therefore of consid-
testified that she did not pick anyone from the erable importance to ask whether the eyewitness
lineup and that Willis’s picture was not part of the accuracy is sufficient to warrant a conclusion of
array. The victim never made an in-court identi- guilt “beyond a reasonable doubt” (Davis &
fication of Willis but stated that Calvin was Loftus, 2012, p. 2).
standing about her when she awoke. Willis was Scholars in this field have long recognised the
convicted by a jury and sentenced to life in weaknesses of eyewitness testimony. Much re-
prison. search has examined the limits of human memory
In 1998 his case was accepted by the Innocence and the conditions under which distortions can be
Project and a post-conviction DNA test of the made. Based on this research we can inform the
rape kit and a pair of boxers left at the scene of legal system regarding some basic limits of per-
the crime excluded Willis as the perpetrator formance and we can aid conditions in which
of the rape that occurred in 1981 and ultimately maximum accuracy does not surpass that of
led to his sentence of life without the possibility guessing. It is important to understand the limits
 MEMORY IN JUDICIAL PROCESSES 651

of memory, not only the factors that affect Documents/Turgeon/Model-Eyewitness-Identifica

suggestion, but also factors that affect our per- tion-Jury-Instructions.pdf).
ceptual capacities. The end goal is to understand These are still, however, isolated cases. The
the conditions that lead to the most accurate legal system in general has yet to find a satisfact-
eyewitness testimony. However, as Davis and ory mechanism for educating jurors. Many of the
Loftus (2012) state, there is much evidence to eyewitness instructions given by judges are still
suggest that even under the best conditions, ineffective: they contain ambiguous and confusing
eyewitness accuracy may still not be sufficient language, they are given at the end of trial as part
enough to allow convictions based solely on the of a long list of other legal instructions, and in
testimony of one or more eyewitnesses. many cases, they reinforce jurors’ flawed assump-
So where does this leave the legal system? tions about eyewitness accuracy (Sheehan, 2011).
Many scholars argue that the best option is to Encouraging recent research has shown the bene-
allow an expert witness to testify to the factors fit of providing eyewitness instructions before the
that can affect an eyewitness’s ability to perceive eyewitness testifies, and providing model instruc-
and remember. However, a recent advancement tions, which attempt to convey scientific and legal
in the recognition of weaknesses in eyewitness principles that are meaningful and comprehens-
testimony comes from a decision in New Jersey. ible to lay jurors (Sheehan, 2011).
This case involved a defendant named Larry As of the writing of this review, a draft of a
Henderson who was accused of participating in a report on eyewitness identification has just been
New Year’s Day shooting. Following a delay of published (National Academy of Science, 2014). In
approximately two weeks, a surviving witness this report, there are 11 recommendations concern-
identified Henderson from photos and Hender- ing best practices for the law enforcement com-
son was convicted. However, as it turned out, the munity when it comes to understanding the science
initial identification of Henderson occurred after of eyewitness identification. These range from
the investigating officers engaged in persuasive implementing double-blind lineup and photo array
behaviour. Worse, earlier in the day the witness procedures (Recommendation 2) to using scientific
had consumed large amounts of wine, cham- framework expert testimony (Recommendation 8)
pagne, and crack cocaine, making the identifica- and clear and concise jury instructions (Recom-
tion even more suspect. mendation 9) when eyewitness identification plays
When Henderson appealed his conviction an important part in a trial. We continue to hope
(New Jersey Supreme Court, 2011) the decision that such best practice techniques infiltrate the
received national attention. In essence, like the judicial system and become policy for future court
case discussed above, the ruling showed a soph- cases involving eyewitness testimonies.
isticated appreciation of problems with (eyewit-
ness) memory. This decision led to changes in
how evidence adduced through suggestive influ- THE ROLE OF MEMORY EVIDENCE IN
ences is treated in the courtroom. Specifically, if a JUDICIAL DECISIONS
judge decides to admit such testimony at trial,
then the jurors must be provided with instructions Finally, there are an increasing number of cases
that will guide them on how to interpret that in which scientific research on memory has been
eyewitness evidence (the specific New Jersey effectively integrated into the courtroom. Expert
instructions were drafted by the Committee on testimony is being sought in more and more HSA
Model Criminal Jury Charges can be found on cases, testimony that has helped the triers of fact
the Internet at: www.judiciary.state.nj.us/criminal/ interpret the memory evidence that has been
ModelCrimJuryChargeCommHENDERSONRE heard (e.g., Brainerd, 2013; Conway, 2013;
PORT.pdf). Inspired by the New Jersey decision, Howe, 2013a, 2013b). In a recent case heard in
in Pennsylvania Elizabeth Loftus and her colleagues the Royal Courts of Justice, Queen’s Bench
took these instructions a step further and drafted Division [(2013) EWHC 3560 (Comm); Case
jury instructions that considered the problems No. 2011 Folio 1267] between Gestmin v. Credit
with memory testimony much further (the full set Suisse, Mr. Justice Leggatt dealt directly with
of Pennsylvania instructions can be found at: www. issues to do with human memory. Specifically, he
dauphincounty.org/government/Court-Departments/ stated in his decision (section on “Evidence based
Officesand-Departments/Court-of-Common-Pleas/ on recollection”) that:
652 HOWE AND KNOTT

15. An obvious difficulty which affects allegations give a good impression in a public forum, can be
and oral evidence based on recollection of events significant motivating forces.
which occurred several years ago is the unreliab- 20. Considerable interference with memory is also
ility of human memory. introduced in civil litigation by the procedure of
16. While everyone knows that memory is preparing for trial. A witness is asked to make a
fallible, I do not believe that the legal system statement, often (as in the present case) when a
has sufficiently absorbed the lessons of a century long time has already elapsed since the relevant
of psychological research into the nature of events. The statement is usually drafted for the
memory and the unreliability of eyewitness testi- witness by a lawyer who is inevitably conscious of
mony. One of the most important lessons of such the significance for the issues in the case of what
research is that in everyday life we are not aware the witness does nor does not say. The statement is
of the extent to which our own and other made after the witness’s memory has been
people’s memories are unreliable and believe “refreshed” by reading documents. The docu-
our memories to be more faithful than they are. ments considered often include statements of
Two common (and related) errors are to sup- case and other argumentative material as well as
pose: (1) that the stronger and more vivid is our documents which the witness did not see at the
feeling or experience of recollection, the more time or which came into existence after the events
likely the recollection is to be accurate; and (2) which he or she is being asked to recall. The
that the more confident another person is in their statement may go through several iterations
recollection, the more likely their recollection is before it is finalised. Then, usually months later,
to be accurate. the witness will be asked to re-read his or her
17. Underlying both these errors is a faulty model statement and review documents again before
of memory as a mental record which is fixed at the giving evidence in court. The effect of this process
time of experience of an event and then fades is to establish in the mind of the witness the matters
(more or less slowly) over time. In fact, psycho- recorded in his or her own statement and other
logical research has demonstrated that memories written material, whether they be true or false, and
are fluid and malleable, being constantly rewrit- to cause the witness’s memory of events to be
ten whenever they are retrieved. This is true even based increasingly on this material and later
of so-called “flashbulb” memories, that is memor- interpretations of it rather than on the original
ies of experiencing or learning of a particularly experience of the events.
shocking or traumatic event. (The very descrip- 21. It is not uncommon (and the present case was
tion “flashbulb” memory is in fact misleading, no exception) for witnesses to be asked in cross-
reflecting as it does the misconception that mem- examination if they understand the difference
ory operates like a camera or other device that between recollection and reconstruction or
makes a fixed record of an experience.) External whether their evidence is a genuine recollection
information can intrude into a witness’s memory, or a reconstruction of events. Such questions are
as can his or her own thoughts and beliefs, and misguided in at least two ways. First, they erro-
both can cause dramatic changes in recollection. neously presuppose that there is a clear distinction
Events can come to be recalled as memories between recollection and reconstruction, when all
which did not happen at all or which happened remembering of distant events involves recon-
to someone else (referred to in the literature as a structive processes. Second, such questions disreg-
failure of source memory). ard the fact that such processes are largely
18. Memory is especially unreliable when it comes unconscious and that the strength, vividness and
to recalling past beliefs. Our memories of past apparent authenticity of memories is not a reliable
beliefs are revised to make them more consistent measure of their truth.
with our present beliefs. Studies have also shown 22. In the light of these considerations, the best
that memory is particularly vulnerable to inter- approach for a judge to adopt in the trial of a
ference and alteration when a person is presented commercial case is, in my view, to place little if any
with new information or suggestions about an reliance at all on witnesses’ recollections of what
event in circumstances where his or her memory was said in meetings and conversations, and to
of it is already weak due to the passage of time. base factual findings on inferences drawn from the
19. The process of civil litigation itself subjects the documentary evidence and known or probable
memories of witnesses to powerful biases. The facts. This does not mean that oral testimony
nature of litigation is such that witnesses often serves no useful purpose—though its utility is
have a stake in a particular version of events. This often disproportionate to its length. But its value
is obvious where the witness is a party or has a tie lies largely, as I see it, in the opportunity which
of loyalty (such as an employment relationship) to cross-examination affords to subject the docu-
a party to the proceedings. Other, more subtle mentary record to critical scrutiny and to gauge
influences include allegiances created by the pro- the personality, motivations and working practices
cess of preparing a witness statement and of of a witness, rather than in testimony of what the
coming to court to give evidence for one side in witness recalls of particular conversations and
the dispute. A desire to assist, or at least not to events. Above all, it is important to avoid the
prejudice, the party who has called the witness or fallacy of supposing that, because a witness has
that party’s lawyers, as well as a natural desire to confidence in his or her recollection and is honest,
 MEMORY IN JUDICIAL PROCESSES 653

evidence based on that recollection provides any the scientific community and other professions
reliable guide to the truth. continues to develop so that what becomes known
This very important decision highlights not only about memory, might become better disseminated
the importance of understanding the (un)reliabil- and influence policy changes, procedures, and
ity of memory generally, but also the role it plays practices in important forensic contexts.
in courtroom testimony. As well, this decision
indicates that research on memory has made
DISCLOSURE STATEMENT
some real inroads into at least some courtroom
proceedings. However, there is still considerable No potential conflict of interest was reported by the
work left to do in order to get memory expert- authors.
ise into the many courtrooms where such
evidence is needed in order that the triers of
fact can determine the proper weight to give FUNDING
memory evidence when determining guilt or
The writing of this article was supported by a project
innocence.
grant [grant number RES-062-23-3327] from the Eco-
nomic and Social Research Council to MLH.

CONCLUSION
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