Memory in the Criminal Courts

• Author: Timothy E. Moore, Stephanie Marion, C. Lindsay Fitzsimmons, & Brian Cutler
• Pages: 773-792

773

A. INTRODUCTION

The criminal justice system is heavily reliant on human memory as a source

of evidence: a convenience store is robbed at gunpoint and the cashier is

asked to identify the suspect from a photo array; the sole witness to a kid-

napping tries to remember how the abduction was accomplished; a family

doctor is informed by one of his patients of a sexual assault that occurred

two decades earlier. Unlike the items on the shelves of the evidence room

(e.g., weapons, clothing, documents), memories are intangible. They exist

in the witness’s head. Their accuracy depends, in part, on how thoroughly

the initial perceptions were encoded, how much time has passed, and how

those memories were elicited from the witness by investigators. Unlike a

video, our memories are reconstructive and selective. We add, delete, and

modify information in various ways to make sense of past experiences.

Sometimes we suf‌fer from what is known as source amnesia—an inabil-

ity to distinguish information acquired at the time of an experience from

information that may be added later. Sometimes we confuse actual events

with imagined ones. While some autobiographical memories may be quite

accurate and relatively permanent, research has shown that they are often

distorted or embellished, and may be modif‌ied over time.

Inaccurate accounts of past experiences can come about because we un-

wittingly reconstruct an event based on what we think we know, rather than

on actual memories. The act of remembering takes place against a backdrop

CHAPTER 21

Memory in the Criminal Courts

Timothy E. Moore, Stephanie Marion,

C.LindsayFitzsimmons, & Brian Cutler

774 6 Timothy E. Moore, Stephanie Marion, C.LindsayFitzsimmons, & Brian Cutler

of prior knowledge that inf‌luences and f‌ilters what gets into memory. We

organize and understand new information through associations with what

we already know. Cognitive psychologists sometimes refer to this back-

ground information as a conceptual framework, or schema. Many aspects

of our day-to-day experiences are redundant. For example, restaurants con-

tain tables, chairs, waiters, and menus, and we go to a restaurant with the

expectation that we will get food there. Similarly, dentists’ of‌f‌ices contain a

waiting room, a receptionist, hygienists, and so on. We know what to expect

when we visit these places because of our generic knowledge about such

situations. Schemas provide a summary of the redundancies and help us in-

terpret and organize our knowledge. Schemas are ef‌f‌icient. They let us inter-

pret, store, and retrieve more information than we could possibly deal with

otherwise. This ef‌f‌iciency, however, has costs. Witnesses relying on their

memory can make errors; details fade over time. Witnesses may unknow-

ingly compensate for gaps in memory by making inferences. Because these

inferences are unconscious, when witnesses produce inaccurate accounts,

they may not be lying, they may simply be mistaken.

This should not be taken to imply that memory is routinely capricious

and unreliable. In general, our memories are fairly accurate. Many ele-

ments of past experiences are usually preserved with good f‌idelity; how-

ever, memory mistakes do occur and they can be large, undetectable, and

subjectively compelling. The passage of time provides increasing oppor-

tunities for memories to be altered or lost altogether. Even under ideal

circumstances, the most conscientiously candid and forthright witness is

not going to be completely accurate. In this chapter, we provide an over-

view of specif‌ic aspects of memory that have long-standing forensic sig-

nif‌icance. Errors in memory do not happen haphazardly. Certain factors

are known to compromise memory’s reliability. By understanding how

memory works, the courts will be in a better position to know when (or

when not) to have conf‌idence in a witness’s account.

B. EYEWITNESS TESTIMONY

In 1989, Anthony Hanemaayer of Toronto pled guilty to an attempted rape

that he did not commit. The victim’s mother had identif‌ied him as the as-

sailant. She was adamant that he was the person she had seen. Hanemaay-

er, who was eventually exonerated,1 later stated that if he had been a juror,

1 R. v. Hanemaayer, 2008 ONCA 580.