Estimated reading time: 5 minutes
A recent article in the scientific journal ‘Memory‘ has revealed a worrying lack of knowledge about the reliability of memory among the legal profession. This article hopes to explain why ignorance of memory science is such a concern to those facing allegations of non recent sexual offences.
Allegations of non recent sexual assault are not uncommon
There have been numerous allegations of sexual abuse which have been alleged to have occurred many years ago. At the end of the last century many such cases came to light, and so many innocent people were wrongly accused when the police trawled ex residents of children’s homes in the North West of England that they came together and formed FACT. Since then there have been high profile examples of non recent sexual abuse allegations, the most notoriously flawed was Operation Midland which resulted in many well known and respected people being falsely accused. According to recent figures collected by the English Office for National Statistics (ONS) 5.2% of allegations made to the police related to events said to have happened more than 20 years before.
No statute of limitations in English law
There is no statute of limitations in English law, so prosecutions may even be pursued when 50 years have passed since the alleged incident. This would not necessarily be a problem if corroborating evidence from witnesses and forensic material was required, but in sexual assault cases no such corroboration is needed in England. This means that a court and jury have to use their common sense to judge between the complainant and defendant based on their testimony.
Common sense can be wrong
Common sense about the reliability of memory needs to be informed by scientific research because what feels like common sense can sometimes be wrong. To give an example from history, if we had lived 500 years ago, most of us would have believed the common sense notion that the world is flat. Now, due to the findings of scientists and explorers we know better.
A more recent example is Einstein’s theory of Relativity which predicted that time as experienced by someone moving relative to us would slow more and more as they went faster. Initially his ideas were believed to be “totally impractical and absurd.” Since then numerous experiments have proven this counter-intuitive hypothesis to be true.
Common sense can sometimes be wrong.
Memory is not infallible
Memory scientists have shown that memories are not like video recordings, instead they are constantly evolving and changing. Every time a memory is recalled it can alter before being stored again. Memories can be distorted by time of course, and most of us are familiar with this. However, they can also be changed by suggestions from other people and by a person’s attempts to interpret their past experiences in a way that can explain their current unhappiness. In other words, they may quite innocently edit their memories to fit in with their particular beliefs about how they became the person they are.
Memories can be hacked
Dr Julia Shaw has performed experiments in which she was able to convince subjects that a particular event had occurred even though it had never happened. You can find many of her videos on YouTube about her research. Once she had ‘hacked’ someone’s memory, even though they were told their memory was false, they found it difficult to accept.
Memories are not usually repressed
It is a commonly held belief, among lay people and professionals such as the judiciary, that memories of a traumatic event may become repressed, and only recalled by a trigger many years or decades later. However memory scientists say that it is rare for memories to be repressed in this way. Research has shown that ‘traumatic childhood experiences’ are ‘mainly well remembered’ and victims of child sexual abuse remember their suffering only too well and try to avoid thinking about them.
The experience of war veterans
When scientists investigated war veterans with post traumatic stress disorder, 10 – 15 years after the trauma repression of the event was rare and unfortunately the experiences were well remembered.
CPS guidance on the reliability of memory appears to be flawed
The CPS has a document called “Psychological Evidence Toolkit” which states that “sexual abuse during childhood leads to the highest degree of total amnesia”. The guidance seems to suggest that the risk of false memories developing in non recent cases is “just that, a possibility”.
The elephant in the justice room is that without a litmus test to flag potential false memories, unsafe/wrongful convictions– especially in non-recent cases– will happen
Pamela J. Radcliffe and Lawrence Patihis, Department of Psychology, University of Portsmouth, UK
Professionals and lay people believe in memory repression
The study found that over 78% of lay people and professionals in a sample of 717 people believed that traumatic memories could be repressed. The authors believed that in England the judiciary, and their educators were sceptical of false memory research and “psychological science in general”.
Clearly the fact that the judiciary, who won’t have had any scientific training, feel that they are better placed to judge the reliability of a witness’s memory of a distant event than a memory scientist, is very worrying.
What next?
The authors of the paper suggest that memory experts need to develop an international protocol with an “index of memory reliability and unreliability” that can be used by lawyers, judges and juries to help them assess the reliability of memories.
Meanwhile those who can afford it need to engage a memory expert for their defence. Unfortunately there are not enough of them and they may be expensive.
The article in the scientific journal ‘Memory’ can be found here
1 comment
Wes
I found this article really insightful because it explains how mistaken beliefs about the reliability of human memory can directly contribute to miscarriages of justice, especially in cases that rely heavily on eyewitness testimony. It reminded me that memory is not like a perfect recording—it is reconstructive and can be influenced by stress, suggestion, and later information, which means even confident witnesses can sometimes be inaccurate in ways that have serious legal consequences.
https://www.wyalusing-wes.com/