Memory and Miscarriages of Justice

Mark L. Howe, Lauren M. Knott, Martin A. Conway

• Publisher: Psychology Press
• Year: 2017
• ISBN:
  9781317617389
• Edition: 1
• Topic: Psychology
• Subtopic: History & Theory in Psychology
• Index: Psychology

Memory is often the primary evidence in the courtroom, yet unfortunately this evidence may not be fit for purpose. This is because memory is both fallible and malleable; it is possible to forget and also to falsely remember things which never happened.

The legal system has been slow to adapt to scientific findings about memory even though such findings have implications for the use of memory as evidence, not only in the case of eyewitness testimony, but also for how jurors, barristers, and judges weigh evidence. Memory and Miscarriages of Justice provides an authoritative look at the role of memory in law and highlights the common misunderstandings surrounding it while bringing the modern scientific understanding of memory to the forefront.

Drawing on the latest research, this book examines cases where memory has played a role in miscarriages of justice and makes recommendations from the science of memory to support the future of memory evidence in the legal system. Appealing to undergraduate and postgraduate students of psychology and law, memory experts, and legal professionals, this book provides an insightful and global view of the use of memory within the legal system.

PART 1
Memory and the law

Miscarriages, misuse, and naïve beliefs

1
MEMORY AND MISCARRIAGES OF JUSTICE

Memory is fallible. Fallible not just because we forget information (errors of omission) but fallible because we also “remember” things that did not happen (errors of commission). This can be a simple case of misremembering, for example, that we had eggs for breakfast when in fact we had cereal, or sometimes, more seriously, we mistakenly remember entire events (e.g., going for a hot air balloon ride when you were a child) that never happened. We do this not because memory is fundamentally flawed but because it is reconstructive. That is, memory of events is not a verbatim playback of what happened. Rather, it is a reconstruction based on the retrieval of some stored remnants of the original experience that may have persisted in memory, along with schema-driven information that serves to make the memory coherent and that fills in any blanks. Of course, there are times when we simply reconstruct an entire event, sometimes based on the remnants of previous experiences that are pieced together to make a new experience or may simply be based on imagination.

Memory is also malleable. That is to say, once created, a memory is not necessarily a fixed stable entity. When we reactivate that memory, whether it be to discuss an event with friends and family, or to provide an account of an event when questioned by the police, the mere act of reactivating changes that memory, as we recount a narrative with new details, details suggested by others, and details that fill in the gaps of the narrative we are telling.

This type of reconstructive memory system is, however, very adaptive (e.g., see various chapters in Schwartz, Howe, Toglia, & Otgaar, 2014). It is likely that memory evolved not as a system that retains verbatim information about past experience but rather one that helps us understand experience and interpret the world around us, and, based on this understanding, make predictions about the future (e.g., Howe, 2011). This ability to extract meaning from experience rather than remember copies of those experiences is important to survival. For example, a flexible memory system allows us to plan for and imagine a future, a function of memory that is integral to survival.

Despite the inherent reconstructive nature of memory, memory often serves as the centerpiece in the legal arena. Witnesses attempt to identify perpetrators from memory, remember criminal events they witnessed, and convey what they remember in police interviews and courtroom testimony. But if memory is reconstructive how can we know which parts (if any) are correct and which ones are reconstructed? This is the conundrum that faces legal professionals and jurors alike and this book attempts to shed some scientific light on exactly how reliable memory evidence can (and cannot) be. This is critical when memory is evidence in the courtroom and often, as we shall see, is the only evidence.

To take a recent example of this memory conundrum that made headlines in the English press, consider the case of Sir Cliff Richard. He is a British pop star who was very successful in the late 1950s and 1960s selling over 250 million records worldwide and is the third top-selling artist in UK single chart history, being eclipsed only by the Beatles and Elvis Presley. In August 2014, in response to a complaint to the Metropolitan Police’s Operation Yewtree (set up in the wake of the Jimmy Savile scandal), Richard’s apartment in Berkshire was searched, but there were no arrests. The complainant said that he had been abused by Richard as a teenager at a religious rally in the 1980s. Richard, now 75, strongly denied the allegations of historic sexual abuse. He voluntarily met with and was interviewed by members of the police but again, he was never arrested or criminally charged. Subsequently, David Crompton, chief constable of South Yorkshire Police, was criticized for his interactions with the press and publicly apologized to Richard.

In February 2015, South Yorkshire Police announced that the inquiry into the alleged offences had increased and that it would be continuing. Richard subsequently released a statement maintaining that the allegations were “absurd and untrue” (Gander, 2015). The development came a day after an independent report had concluded that South Yorkshire Police had “interfered with the star’s privacy” (BBC News, 2015) by telling the BBC about the impending August 2014 raid on Richard’s apartment. The BBC’s tip-off regarding the search reportedly came from within Operation Yewtree, although Crompton said he could not be certain that the leak originated from there.

In May 2016, South Yorkshire Police sent a file of evidence to the Crown Prosecution Service (CPS). The following month, the CPS announced that after reviewing evidence relating to claims of historic sexual offences dating between 1958 and 1983 made by four men that there was “insufficient evidence” to charge Richard with an offence, and that no further action against him would be taken. Richard said his naming by the media, despite not being charged, meant he had been “hung out like live bait” (BBC News, 2016). South Yorkshire Police later apologized to Richard after its investigation into the singer was dropped on 16 June 2016.

It was subsequently reported that during the 22-month police investigation a man was arrested over a plot to blackmail Richard. The unnamed man in his forties contacted Richard’s aides and threatened to spread “false stories” unless he received a sum of money. On 21 June 2016 the BBC apologized publicly to Richard for causing distress after the controversial broadcast of the police raid on his property in 2014.

The police undoubtedly have a duty to follow-up and investigate these cases, we only need look to the Jimmy Savile case to understand the potential seriousness of ignoring such allegations. However, the legal system and the media have an obligation to protect those involved in the allegations before proven guilty. Unfortunately for Richard, his life was turned upside down for approximately two years, causing considerable distress. As we shall see in upcoming chapters, there are a number of infamous cases where people have come to believe that they were not only sexually abused when they were younger (e.g., see Maran, 2010), but that they participated in satanic ritual abuse (e.g., see Felstead & Felstead, 2014) and acts of cannibalism (Loftus, 1998). Although in some cases these memories are retracted (e.g., the Burgus case discussed by Loftus, 1998; also see Maran, 2010), others have led to criminal convictions and worse, to the death of the person who came to believe these memories (Felstead & Felstead, 2014).

It is important to make the clear statement here that we are well aware that not all cases of historic sexual abuse are based on faulty or retracted memories. Indeed, many people do accurately remember their abuse. For example, a number of years ago one of us (Howe) became involved as a memory expert for the prosecution in a series of trials when now-grown men recounted their sexually abusive experiences during their stay at a Christian Brothers orphanage (Archdiocesan Commission, 1990). For the majority of these men, their experiences were accurately recounted in their memory narratives and their statements vindicated by additional corroborative evidence. Alexander et al. (2005) discuss numerous cases where documented child abuse can be accurately remembered, for the most part, over a 12- to 21-year interval. But this is the crux of the matter – how can we know when memory evidence is based on mostly correctly reconstructed remembering and when is it based on mostly incorrectly reconstructed remembering?

So, what is at issue here? Unfortunately, it is often the case that many of these allegations typically involve only two witnesses: the victim and the perpetrator. In court, it is up to the triers of fact to determine which memory is most reliable, something that is no easy task. We have learned from science, however, about the types of factors that could easily distort our fragile memories. It is here that the memory expert can offer valuable advice to the courts. Over the years, both Howe and Conway have evaluated hundreds of complainants’ (both male and female) statements concerning historic childhood abuse and have written numerous case reports concerning the reliability of memory for witnessed events that have occurred decades earlier.

Such cases were discussed in a special issue of the journal Memory in 2013 where in one article Howe reflected on his years as an expert memory witness (Howe, 2013c). Many of these cases followed a classic pattern where memories lie “dormant” for 10–40 years and are suddenly “recovered” through some type of memory work. For example, Howe refers to the case of WM (fictitious initials are used to hide the identities of those involved):

WM had no memory for her traumatic experiences until she received religious counseling and “prayer” therapy: “… it’s all coming back now, for a long time I didn’t remember it until last year.” In addition, when specifically queried as to how her memories suddenly came back, WM reveals the following:

PO: So, what was it that triggered it, what … how did it come back into your memory?

WM: We were praying … It was, it was two years ago, prayer week, so it must’ve ben about May/June two years ago.

PO: Right.

WM: …that’s when it all started coming back bit by bit. I mean, it’s coming back now, it’s come back, some of the bits have come back as I’ve been talking to you.

(Howe, 2013c, p. 581)

Howe goes on to explain that these alleged memories emerged as a consequence of intense memory work through prayer therapy and also from nightmares the complainant said she had experienced. We know from the scientific literature that such “memory work” can result in the production of memory errors when events experienced during these times of altered consciousness come to be believed as real (see Chapter 2).

Memories of long ago childhood events are not the only form of memory evidence that is under examination in the courts. For example, in cases of murder, assault, or burglary the statements and identifications made by the eyewitnesses or victims can be the key evidence leading to a guilty verdict. As we will see in Chapter 7, before the inclusion of DNA evidence, eyewitness misidentification was one of the greatest causes of wrongful convictions worldwide. Today the Innocence Project (non-profit legal clinics set up across the USA and the UK) works to support appeal cases of those wrongfully convicted, using post-conviction DNA testing. Appeal cases much like Kirk Bloodsworth’s:

An honorably discharged former Marine, Kirk Bloodsworth was the first person in the United States to be exonerated from death row by DNA testing. In 1984 he was arrested for the rape and murder of nine-year-old Dawn Hamilton. He was sentenced to death in Baltimore County, Maryland, in 1985.

Dawn Hamilton died on July 25, 1984. Two young boys witnessed Dawn walking into the woods with a man they described as skinny, six foot-five, with a bushy moustache and blond hair. Bloodsworth was six feet tall, had red hair, and was well over 200 pounds. The police produced a composite drawing of the man based on the eyewitness testimony of the two young boys. The slim resemblance to the composite drawing and the eyewitness identification of three others who placed him near the scene of the crime, two of whom were not able to identify him during a lineup but had recognized him when the composite picture was shown on the news, ultimately led to the conviction and death sentence.

In 1986 Kirk was retried after an appeal but convicted again, this time sentenced to two lifetime sentences. Finally, in 1992, after eight years in prison, DNA fingerprinting taken from evidence collected at the scene of the crime proved that Kirk was innocent, and in fact, a known suspect at the time, Kimberly Shay Ruffner, already serving a sentence for rape, was the rapist and murderer of Dawn Hamilton, the nine-year-old girl, found dead in the woods, having been sexually assaulted, strangled, and beaten to death with a rock.

(Kirk Bloodsworth, Innocence Project, 2016)

In these opening accounts, we have seen that memory is not quite what the legal system assumes or indeed, wants it to be. In the following chapters of this book, we will examine the various reasons why this is the case. In addition, we will provide theoretically sound and empirically tested suggestions to guide the interpretation of memory evidence. We will first consider the phenomena of repressed memories for long ago childhood events and highlight the cautionary tale with regard to recovered memories from highly suggestive therapeutic techniques (Chapter 2). We will then consider in Chapter 3 what we refer to as naïve beliefs of memory and the problems this causes for the legal system. In Chapters 4 and 5 we will discuss the science behind autobiographical memory and what we know with regard to early childhood memories. Chapter 6 summarizes the latest research examining the sensitivity of memory to stress and highly emotional experiences, something that is commonplace when we are dealing with memories that make up the majority of evidence in legal settings. Chapter 7 reviews the specific research regarding eyewitness identification, an area that in itself warrants an entire book. Here we will consider some of the pertinent research that has examined errors in the procedural aspects of eyewitness identification. Chapter 8 follows on from this with a discussion of the methods used in witness and victim interviewing, focusing on both adult, but mainly, child interviewing. More specifically, what factors can lead to admissions and omissions in detail, and knowing these, what methods can we use to elicit the most accurate recall of an event. We finish this scientific section about the nature of memory with two chapters (Chapters 9 and 10), ones that examine the more collaborative nature of remembering in both jurors and eyewitnesses as well as the pitfalls that ensue when we consider the fallible nature of memory for evidence in jurors.

Caution is always prudent in these matters, but the science of memory has provided us with a set of tools that can guide us when memory serves as (the only) evidence. In anticipation of our review of that evidence, and the more in-depth recommendations and conclusions detailed in the final chapter (Chapter 11), we close this opening chapter with four simple guidelines that we recommend should inform decision-making about memory as evidence:

1. Memories are psychological mental representations and should not be compared to, or considered as being like, videos, photographs, or any other forms of recording.

2. Because they are psychological representations they have properties that other non-psychological mediums do not have. For example, they are selective in what they retain, all memories are time-compressed relative to the events they represent, and the fragments they retain are of internal experience (not reality!).

3. Any memory, but most especially ones recalled from early childhood, reported fluently with considerable highly specific details should be treated with some caution. With particular attention needed as to how these reports were uncovered (e.g., forced through extensive questioning, multiple discussions with friends, family members, practitioners).

4. All memories contain inferences and details that have been added, often non-consciously.

2
THE ORIGINS OF FALSE AND REPRESSED MEMORIES

Approaches to memory-recovery work range across a wide continuum, from practices that likely pose little risk if any of iatrogenic illusory memories or false beliefs regarding CSA to those that likely pose substantial risk … existing science is insufficient to enable precise specification of which approaches do and do not pose substantial risk …

(Lindsay, 1998, p. 483)

Although still present (e.g., see Wypijewski, 2009; Zezima & Carey, 2009), few cases based on repressed memories make it to court today. The story was a little different in the late 1980s with a surge of claims that were specifically related to historic childhood sexual abuse (CSA) based on repressed memories. The alleged abuse was often highly traumatic and intrusive, but the victims reported no memory of the abuse until after entering therapy or after reading self-therapy books (e.g., Bass & Davis, 2008; Dolan, 1991).

More recent approaches to psychotherapy that adopted a variety of memory therapy techniques use the term “repression” when a patient was believed to have a history of CSA but has no memory of it. The extreme interpretation of repression is that highly traumatic events can be involuntarily lost from consciousness but later be accurately retrieved in adulthood when it is psychologically “safe” to do so. A special memory mechanism, qualitatively different from normal forgetting mechanisms, is thought to be responsible for this. The special memory mechanism is instantly able to encapsulate the entire record of the event and maintain it outside of conscious awaren...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Part 1 Memory and the law: miscarriages, misuse, and naïve beliefs
• Part 2 The science of memory and the law
• Part 3 Conclusions and recommendations
• References
• Index