Repressed Memories as Legal Evidence

Mistakes in any of the three processes can lead to false memories. For example, false memories can form during the coding process when a memory of an imaginary event is mistakenly recalled as a perceived event. False memories can also occur during storage, as recent studies have shown that factors such as sleep affect memory consolidation. After all, recovery can create false memories, especially if they are triggered by certain clues or tasks. This discrepancy between the science of memory and the beliefs of those involved in trials can lead to fundamental miscarriages of justice, many of which can be found on the Innocence Project`s websites in the United States (www.innocenceproject.org/) and the United Kingdom (www.innocencenetwork.org.uk/). In many of these cases, convictions were obtained on the basis of memory evidence (e.g. incorrect identification of witnesses). Of course, in many court cases, the decision to lay charges often depends on memory evidence obtained through police interviews, and subsequent convictions may also depend on that interview evidence. When such evidence is seen through the veil of naïve beliefs about memory, and memory experts are not there to make statements about how memory actually works, then the police and Trier make decisions about the weight of memory evidence without really understanding how memory works. Although it is not possible to determine retrospectively the accuracy of claims about recovered memories, Lindsay (1999) examines some important factors in assessing the plausibility of these claims.

These include: (1) how the experience of the recovered memory occurred (with greater confidence in a memory that was not recovered by suggestive memory work), (2) the likelihood that the event could be forgotten (occurred early in life, a small number of times, a frequent form of abuse), and (3) at least some evidence to support the claim. Recovered memories that seem relatively implausible should be treated with caution. A more implausible claim would include reports of bizarre and extreme abuse (e.g., satanic ritual abuse) that would have occurred multiple times over many years, that would have occurred in childhood, and that surfaced through extensive memory restoration work and without supporting evidence. In cases where recovered memories appear in court, an expert memory witness should be consulted. Although no memory expert will be able to discern the truth or falsity of a claim, he will be able to inform the courts of the effects of suggestive techniques used to restore memory, how memory may have been affected, and the need to exercise caution in examining the credibility of that memory. Although each case must be evaluated separately, implausible allegations such as those listed above, where abuse is only recalled after extensive intrusive memory techniques, must be treated with skepticism. In late January 2002, while he was an Air Force police officer, the victim`s girlfriend drew his attention to an article in a Boston newspaper alleging that Father Shanley had sexually abused children. The victim expressed surprise and began to recall some of his interactions with Father Shanley, particularly the fact that he had pulled her out of the classroom numerous times between the ages of 6 and 12 for disciplinary reasons.

He viewed online articles about the allegations as well as photos of Father Shanley, but had no disturbing memory at the time. Dr. Loftus testified about her and her colleagues` experiments on the reliability of eyewitness accounts and how the accuracy of reports could be skewed by misinformation. She testified that there is “no credible scientific evidence to support the idea that years of brutalization can be massively suppressed” and explained that exposure to retrospective media coverage of a topic can distort or completely replace an individual`s memory. In addition, it found that any study method based solely on an individual`s self-disclosure is inherently limited due to the lack of confirmation (Shanley, p. 1263). However, his conviction was overturned in 1995. Shortly after, Eileen`s sister, Janice, accused Eileen of perjury on the witness stand. She revealed that her siblings had been hypnotized, which she claimed under oath, which she did not do. The California Supreme Court ruled in 1982 that testimony based on hypnosis-induced memories was unreliable and inadmissible in court. George Franklin was released from prison in 1996.

We know from previous research that reinforcement (both positive and negative) can have a profound impact on children`s behavior and has a significant impact when used in children`s interviews. In a controlled laboratory study, Garven, Wood, and Malpass (2000) provided evidence of this effect. Here, the children (ages 5 to 7) were visited by a young man named Paco Perez in their classroom. A week later, the children were asked about the visit, asking key questions that were either trivial (“Did Paco break a toy during his visit?”) or fantastic (“Did Paco take you somewhere by helicopter?”). Half of the children were further amplified with praise for responses that included false claims about Paco and mild negative comments for responses that were not about Paco. Amplified children (35%) made more false accusations against Paco than unstrengthened children (12%). Interestingly, the rate of false accusations on fantastic issues was 52% for reinforced children compared to 5% for unstrengthened children. In addition, children who were reinforced in the previous interview continued to make accusations at about the same frequency as before when they were interviewed a week later without reinforcement or policy questions. In such allegations, there is often little forensic evidence. Sexual victimization of children usually occurs in private and usually affects only two people, the victim and the perpetrator.