Child Abuse Law - Developments in law, medicine, and psychology affecting child abuse cases

Wed October 29 2008

Memory Science Summarized for Courts

Concerned that the courts do not handle memory issues well, the British Psychological Society in June issued "Guidelines on Memory and the Law: Recommendations from the Scientific Study of Human Memory." In these guidelines, the society has attempted to summarize scientific knowledge of memory as it figures in legal disputes.

The guidelines were prepared by memory experts in Britain and the United States, including Professors Martin Conway, Emily Holmes, Charles Brainerd, Elizabeth Loftus, and Valerie Reyna.

Among the "Key Points" at page 2 of the paper:

People can remember events that they have not in reality experienced. This does not necessarily entail deliberate deception. For example, an event that was imagined, was a blend of a number of different events, or that makes personal sense for some other reason, can come to be genuinely experienced as a memory.

Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence.

Concerning children's memories in particular, the guidelines include this: "Experts are unable to detect, without additional evidence, whether children's reporting of events is accurate or inaccurate, and whether they are describing true or false events."

The paper notes that persons of any age can have conditions—for example, head injury, epilepsy, drug or alcohol use, and depression—that can cause memory dysfunction. The guidelines call for neuropsychological assessment whenever a person with a condition hazardous to memory is giving evidence from memory.

Research on memory of persons suffering Post-Traumatic Stress Disorder, the paper says, suggests their memories of their traumas will be fragmented into "hot spots"—typically the worst moments of the trauma. These are the parts of the trauma that "tend to come back, as intrusive memories. While the hotspots are generally remembered as very vivid and clear, they may be recalled in a jumbled order. At the same time, other parts of the trauma can be more difficult to recall." Also, according to the paper:

Some people dissociate during trauma. This means that they may spontaneously "go blank", "switch off" or "leave" their bodies (often known as an out-of-body experience) in an attempt to distance themselves from the distress they are feeling. Generally, dissociating disrupts the trauma victim's ability to remember the entire event. Thus, people with PTSD may have "gaps" in their memory for the traumatic event.

The paper criticizes the notion, often found in the law (perhaps especially in Britain), that jurors understand memory well enough because each of them works with his or her own memory. The paper recommends the use of expert witnesses on memory and includes guidelines on qualifications they should have.