Expert warns against overreliance on memory in court

Courts may be putting too much emphasis on the memories of victims, witnesses and offenders by a fundamental misunderstanding of how memory works, according to guidelines from the British Psychological Society.

The Guidelines on Memory and the Law, suggest that the memories of witnesses are much more fallible than many realise and are records of people’s experiences of events rather than a record of the events themselves.

The guidelines state that memories will always be incomplete, contain only a few highly specific details and may be contain details that the person has not actually experienced.

Speaking at the launch of the report at the Law Society last week, Professor Martin Conway of Leeds University and chair of the memory and the law committee, says, “The report makes the major point that the accuracy of a memory cannot be assessed without independent corroborating information. To some degree accounts purporting to be of memories can be assessed against what we currently know about memories generally, but the decisive evidence must come from other sources.”

“In many legal cases, memory may feature as the main, or only source of evidence, and is nearly always critical to the course and outcome of the case and litigation. It is therefore vital that those involved in legal work are well informed of developments in the scientific study of memory,” he says.

Professor Conway says there is a tendency for people involved in the criminal justice system to influence witnesses’ memories of events, whether intentionally or unintentionally, by asking leading questions or reinforcing memories when recapping what a witness has said.

“The guidelines will be helpful for all those who have to deal in legal settings with accounts purporting to be of memories.

“They will assist judges in advising juries about memories and should also assist the prosecution and defence in making more informed evaluation of memories,” he says.

Conway also recommends that where a witness gives uncorroborated evidence, a memory expert should be present in court to ascertain whether the memory being used is genuine.

This is necessary he says because memories of traumatic experiences will have special features that will most likely not be recognised by non-experts.