“GUIDELINES ON MEMORY AND THE LAW”

 

A comment by Phillip Taylor MBE LL.B (Hons) PGCE Barrister-at-Law, Editor, Barrister Desk

 

A set of guidelines was launched recently by the British Psychological Society (BPS), being developed to provide the latest scientific evidence relating to memory and legal matters which will be of help to all involved in law. These are recommendations from the scientific study of human memory by distinguished experts in their fields as research members and advisors to the BPS Research Board.

 

Many legal professionals know that a witness’s memory is vital to law and justice, and is much more fallible than many realise …often until it is too late with contentious litigation.

 

The report has been the culmination of an international working group of the BPS Research Board under Martin Conway and Emily Holmes comprising 14 members and 12 distinguished international advisers.

 

Its key points include the following:

 

·       that the content of memories arises from an individual’s comprehension of an experience, both conscious and non-conscious. Such content can be further modified and changed by subsequent recall;

 

·       any account of a memory will feature forgotten details and gaps; and

 

·       people can remember events that they have not in reality experienced.

 

Leeds University Professor Martin Conway explains:

 

“In many legal cases, memory may feature as the main, or the only source of evidence, and is nearly always critical to the course and outcome of the case or litigation. It is therefore vital that those involved in legal work are well informed of developments in the scientific study of memory – how memories are created, their content, and how they are remembered for example.”

 

Conway comments that “there is a tendency for people involved in the criminal justice system to influence witnesses’ memories of events, intentionally or unintentionally.  This might be by asking leading questions or reinforcing memories while recapping what a witness has said”. He and his team conclude that the guidelines have been developed “to provide an accessible and scientifically accurate basis from which they can consider relevant legal issues relating to memory.”

 

There are seven sections in this report: background and overview; legal consideration including evidence and expert witnesses; psychological consideration and the nature of memory; vulnerable groups; memory, trauma and stress; witness interviews and statements; and ID parades.

 

Clearly of great interest to learners and practitioners are section two on legal considerations and section seven on ID parades. There are 12 pages of references which cover issues of relevance to practitioners on both sides of the Atlantic and useful examples from the USA as well as crucial aspects of PACE. As will be expected, due weight is given to the decisions in Turnbull and other leading criminal cases in evidence.

 

There are ten key points set out at the beginning of the report which I am summarising as follows:

 

1.   memories are records of people’s experiences of events and are not a record of the events themselves;

 

2.   memory is not only of experienced events but it is also of the knowledge of a person’s life, i.e. schools, occupations, holidays, friends, homes, achievements, failures, etc;

 

3.   remembering is a constructive process;

 

4.   memories for experienced events are always incomplete;

 

5.   memories typically contain only a few highly specific details;

 

6.   recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred;

 

7.   the content of memories arises from an individual’s comprehension of an experience, both conscious and non-conscious;

 

8.   people can remember events that they have not in reality experienced (these are often referred to as ‘confabulations’);

 

9.   memories for traumatic experiences, childhood events, interview and identification practices, memory in younger children and older adults and other vulnerable groups all have special features; and

 

10.                     a memory expert is a person who is recognised by the memory research community to be a memory researcher.

 

Possible Conclusions

 

So what use is this study to us? It is clearly highly authoritative and will give trainees some very useful tips for their examinations.  For practitioners, it will provide some guidance when trying to fathom some of the more complex pieces of ‘memory’ evidence which we often come across during the preparation of cases for trial. I just wonder how many judges would judge it irrelevant, though!

 

Just one example can be found in the final section on ID evidence to show what I feel is the worth of this document.

 

 

The report states: “identification parades are one of the main sources of evidence in many criminal investigations. Data from many sources suggest that errant identifications are a leading cause of false convictions”.

 

The summary suggests that this has led some commentators to question whether ID evidence is sufficiently reliable to be admitted in court. It concludes that ‘by international comparisons UK identification parades are well done’, and if the PACE guidelines are followed together with other detailed recommendations in the report, then “this is a ‘good’ identification parade procedure, but this does not mean that identification will be accurate”

 

Such comments reflect the way this report is designed as an aid to provide additional assistance for those who have to make memory judgments in criminal and civil proceedings with straightforward accounts of scientific findings and thinking about the nature of memory and memories.

 

I can see the uses that I can make of this report with my practice and with my academic lectures. It states that the law generally is unaware of the finding from the scientific study of human memory.  Therefore, courts do not take advantage of these findings and use them to inform their decision-making.

 

As a result, the courts cannot then draw upon a scientifically informed understanding of human memory during the process of evaluating an account that claims to be derived from a memory of an experienced event.

 

This is, I suggest, where we have the problem with our jurisdictions because I would favour seeking the advice of an expert, but would it be a ‘memory expert witness’?  That person would be an observer at events but the issue the judge would need to be satisfied with is whether he court would need any expert advice on issues relating to memory.

 

I would submit that every case would need an individual decision but I can see a role for an expert where there is a relevant need for the scientific study of memory to be adduced.  It would allow jurors or the judge to see how our memories work, their limitations, properties and failings with out having to put some witnesses through the ordeal of cross examination.

 

A conclusion I do agree with follows the suggestion I have just made above whereby “it is so palpably clear than there (if) is no such understanding, then relying on uninformed evaluations of memory can only lead to unreliable judgments’. 

 

So I would put it this way- if you have an informed evaluation of memory where the facts are in issue, then it will lead to a reliable judgment which is what should be the end result. I commend this report to all practitioners and trainees and would stress the value of much of it can be seen in section 3 ‘psychological considerations’ with the websites which give important guidelines on achieving best evidence. I think all will find this report of use, particularly in hard cases.

 

 

Reference: http://www.bps.org.uk/the-society/organisation-and-governance/professional-practice-board/ppb-activities/wpresources/expwit.cfm