When a person is charged with a criminal offence and they plead not guilty, at times it is not just the legal ingredients of the offence they are denying but the facts of what happened. Defendants will often agree broadly with what happened but challenge discrete aspects of the facts. In my experience the truth often falls somewhere in the middle.
But what about when a defendant denies the factual allegation absolutely? There are cases in which complainants and witnesses of criminal offences experience false memories.
Our memories are not like digital recording devices. Retrieving a memory is not like taking a photo or video on our smart phone and showing that image or replaying the video later. It is a reconstructive process of putting together different information traces. These information traces can include parts of what actually happened (the original experience) but also assumptions about how things are or were during that experience, new information learnt since the time the event took place (perhaps from other people), imagining how an event may have happened or inferred using current knowledge or speculation, or even parts of another event.
Over the last 30 years researchers have successfully led people to falsely believe that they experienced bizarre, traumatic, and even impossible events during their childhood. This research shows that it is easy to implant false memories in typically intelligent and psychologically healthy people using mildly suggestive techniques such as guided imagery. Research also demonstrates that traumatic and stressful experiences are not immune to memory errors or to the negative impact of suggestion.
When a person’s memory is challenged during criminal proceedings it can be quite difficult to unscramble the egg. Research suggests that true memories are nearly impossible to distinguish from false memories, particularly when the amount of detail people recall about a particular event is similar to the amount of detail they can recall about other events from that time period. Whilst some studies have found that true memories are held with greater confidence, some false memories are vivid and contain associated visual images and sound. Just because a memory is confidently held does not mean it is true.
Our memories are not a faithful recording of the past, but rather an account of what we think or believe the past must have been. There are various factors that contribute to false memories. Factors that I have witnessed (and the research supports) include memory decay, encoding and decoding of memories, suggestive influences, confirmation bias, therapy, elaborating on suggested information and, current beliefs, expectations, and knowledge.
Courts have at times had to deal with the choice between a true recovered memory, and an honestly held experience but false memory. When a complainant’s memory to a crime “were true, recovered memories”, but there is a reasonable possibility that a memory is a false memory, then there is generally a reasonable doubt concerning an accused person’s guilt.
When cases concern false memories, it is essential that you obtain legal representation with an experience practitioner that can identify these issues. In the appropriate case it will be essential to brief an appropriately qualified expert to provide an opinion on the science of false memories as it relates to the facts of the case.
Tom Taylor, Partner
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R v E (1997) 96 A Crim R 489