Guidelines on Memory and the Law

Description:

BOOK REVIEW

MEMORY AND THE LAW

By the British Psychological Society

A TRIP DOWN MEMORY LANE

Phillip Taylor from Richmond Green Chambers reviews a new set of guidelines launched by the British Psychological Society (BPS)

These guidelines have being developed to provide the latest scientific evidence relating to memory and legal matters which will be of help to all involved in law from the quiet countryside of Norfolk to the busy urban communities in London.

The recommendations come from a scientific study of human memory by distinguished experts in their fields as research members and advisors to the BPS Research Board.

Many legal professionals know that a witness’s memory is vital to law and justice, and is much more fallible than many realise …often until it is too late with contentious litigation.

The report has been the culmination of an international working group of the BPS Research Board under Professor Martin Conway and Emily Holmes comprising 14 members and 12 distinguished international advisers.

Its key points include the following:

• that the content of memories arises from an individual’s comprehension of an experience, both conscious and non-conscious. Such content can be further modified and changed by subsequent recall;

• any account of a memory will feature forgotten details and gaps; and

• people can remember events that they have not in reality experienced.

Leeds University Professor Conway explains:

“In many legal cases, memory may feature as the main, or the only source of evidence, and is nearly always critical to the course and outcome of the case or litigation. It is therefore vital that those involved in legal work are well informed of developments in the scientific study of memory – how memories are created, their content, and how they are remembered for example.”

Conway comments that “there is a tendency for people involved in the criminal justice system to influence witnesses’ memories of events, intentionally or unintentionally. This might be by asking leading questions or reinforcing memories while recapping what a witness has said”. He and his team conclude that the guidelines have been developed “to provide an accessible and scientifically accurate basis from which they can consider relevant legal issues relating to memory.”

There are seven sections in this report: background and overview; legal consideration including evidence and expert witnesses; psychological consideration and the nature of memory; vulnerable groups; memory, trauma and stress; witness interviews and statements; and ID parades.

Clearly of great interest to learners and practitioners are section two on legal considerations and section seven on ID parades. There are 12 pages of references which cover issues of relevance to practitioners on both sides of the Atlantic and useful examples from the USA as well as crucial aspects of PACE. As will be expected, due weight is given to the decisions in Turnbull and other leading criminal cases in evidence.

There are ten key points set out at the beginning of the report which are summarised as follows:

1. memories are records of people’s experiences of events and are not a record of the events themselves;

2. memory is not only of experienced events but it is also of the knowledge of a person’s life, i.e. schools, occupations, holidays, friends, homes, achievements, failures, etc;

3. remembering is a constructive process;

4. memories for experienced events are always incomplete;

5. memories typically contain o