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Testifying Part 6 – Memory

The primary function of most witnesses is to give their recollection of events. Different people honestly perceive the same event differently. They are subject to conscious and subconscious influences. Powers of observation and recollection are affected by past events, prejudices, habits, our imagination, suggestion, state of mind, health, and the effects of alcohol or drugs at the crucial moment of the incident. If the events happen quickly and unexpectedly, or if the witness was frightened or surprised at the crucial moment, then the ability to record the event accurately may be even more negatively affected.

Other factors affecting the trustworthiness of testimony could be: the age or the intelligence of the witness; whether the witness has impaired eyesight or hearing; whether the witness was thinking of something else, such as business or family worries at the time of the event; whether the witness was interested in what was happening; whether there were any distracting sounds such as a loud radio; wakefulness; and how good the opportunity was to observe, taking into consideration such matters as distance, lighting, atmospheric conditions and obstructions.

Sounds can play tricks on the mind. Regular sounds can often assume to be heard rather than actually heard.

The opportunity to observe is not in itself, enough. Interest and attention are preconditions of accurate observations. Every day, newer things are said and done in our presence which we hardly notice. Evidence given by a witness about matters in which there was no interest at the time, is likely to be vague: positive statements by such a witness are likely too unreliable, as they may have been built up after the event by interference, influence, or imagination. For example, often in an ordinary road accident, bystanders are unlikely to have seen much until their attention has been attracted by a loud crash.

Where a person reports a casual conversation which was heard some months before, and which may have become important only because of a dispute, it is improbable that the person would notice and remember the exact words which were used.

There are other limitations to accuracy: if events happen quickly or there is a great deal of talking going on within a short space of time, an impartial witness will see or hear only a fraction of what is happening. Surprise, excitement and rush will make the picture confused and its detail obscured. If a witness has a personal interest or a bias, their attention will tend to be concentrated on facts or remarks that are favourable to him, to the exclusion of others. Such a witness is referring, of course, not to a deliberate choice, but to one which takes place subconsciously. It is important to realize that bias can intervene without any dishonest intention, especially as the observation ages and before memory or imagination have started to work.

A further factor which may interfere with accuracy is the presence of intense pain or shock, or strong emotion: all these things may prevent the senses from operating in a natural way, and they produce sounds or pictures which are distorted or totally imagined. A person who easily hears imaginary voices may be quite convinced that they are real. The reason is that an abnormal physical state exists when there is not enough interest in exterior happenings and the imagination takes the place of exterior senses. Strong emotion may have the same effect as shock or pain, though the effect is not so obvious. Any condition which concentrates the attention on one’s own interior feelings, mental or physical, is open to suspicion, because it draws attention away from the outside world and gives scope to the imagination.

A line of questioning will open up for the cross-examiner if the witness did not give a statement shortly after the event. This statement is used by the witness in order to refresh his or her memory before testifying. If the witness is asked to give a statement or recollect an event for the first time, perhaps weeks or months after the event, the questioner might ask the witness in the name of fairness how they could remember the event and that they may not be reporting accurately or completely what they are trying to remember so long after the event. Counsel may wish to inquire in a subtle way whether there is any reason for the witness to recall the event in question so that the details would be impressed in his memory. Was the witness interested or attentive at the time of the event so that the incident would be more accurately imprinted in their mind? An unusual event would be more readily remembered than a commonplace, trivial or an unimpressive event. If the witness is prepared to admit that the matter was relatively insignificant at the time and that there is no particular reason to remember, it may then cast doubt on the accuracy of the observations.

Often, imagination can take over where there is vagueness in recollection and provide details that did not exist. Witnesses may supply memory details through their imagination to compensate for undetected vagueness. The attempt to see faces in the moon is analogous to this experience. With a time outline, there is always a strong tendency to fill in the outline with what is in one’s mind rather than a true recollection. There are several factors which tend to promote this natural tendency for the imagination to supplement the memory.

The first of these factors is a sudden happening, just after the events in question, which focus the attention of the observer, whose attention was previously roaming at large in a superficial manner. An example of such a happening is the crash in a motor vehicle collision. On these occasions, the mind of the observer flashes back to the preceding time period and commences to reconstruct events from memory together with imagination. Afterwards, the vague impression received at the time of the event would be blended in with the reconstruction, and both will be remembered together as a single vivid picture of what was seen at the time.

The second factor is the effect on memory when witnesses talk among themselves and think about the dramatic incident. Each time the picture may be filled in a little, or something may be omitted, and when it is again restored, the witness’s memory will be modified.

A third factor is the effect of local rumours and discussions which the witness unconsciously absorbs and which form a prejudicial background to the evidence.

The last factor is the effect of suggestive questions and it is for this reason that an impartial investigator is careful to avoid suggestive questions in the early stages of an inquiry.  The technique of insinuation, which is inherently suggestive, is brought to bear only when the evidence has been crystallized in a one-sided form.

The Ontario Court of Appeal in R. v. A.M., 2014 ONCA 769 provided the following guidance:

[9]         First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

[10]      Second, no inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5, eschews any reference to “adult” or “child”, preferring the terms “14 years or older” and “under 14 years of age”. An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children’s evidence:W. (R.), at p. 134.

[11]      Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134. See also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469.

[12]      Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13]      Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[14]      Fifth, A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51 (CanLII), [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] 1 S.C.R. 788, at para. 31.

[15]      Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, 2008 SCC 10 (CanLII), [2008] 1 S.C.R. 272, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, 2008 ONCA 161 (CanLII), 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay (1994), 1994 CanLII 8749 (BC CA), 93 C.C.C. (3d) 456 (B.C.C.A.), at p. 471.

Social Science Research Network Electronic Library has an interesting paper on asking questions of child witnesses.

Recent legislative reforms in Canada have made it easier for courts to receive the testimony of children and for children to endure the experience of testifying. However, both lawyers and judges, unaware of the fundamentals of child development, often fail to question children effectively. Subjecting children to confusing and developmentally inappropriate questioning makes them unable to communicate accurately what happened to them and what they observed. Not only does this make the witnesses’ experience upsetting, it makes it difficult to determine the truth.

From http://journals.sagepub.com/doi/abs/10.1177/0276236616628278

The fallibility of memory has important implications for various disciplinary fields, as well as societal interests. Research on false memory abounds in terms of the ability of researchers to implant memories for plausible and highly implausible negative events. The extant literature does not currently answer the question of whether memories for positive events can be implanted. Moreover, previous research has attempted, with mixed success, to discriminate between true and false memories employing different objective and subjective measures. Currently, there is still no conclusive way to distinguish between true and false memories. The present study expanded upon the current deficits in the research literature by inducing both positive and negative false memory events in participants. Physiological measures (i.e., skin conductance, heart rate, electromyography, and pulse plethysmography) were employed in an effort to discriminate between participants’ true and false memories. Results indicated that positive and negative events can be implanted at an impressively high rate and with a very simple manipulation. False memories were found to exhibit a greater arousal pattern than true memories and, specifically with electromyography, positive false memories elicited greater arousal patterns than positive true memories.

Researcher have learned more about how memory works by studying people with highly superior autobiographical memory, or HSAM also referred to as Hyperthymesia. https://www.theguardian.com/science/2017/feb/08/total-recall-the-people-who-never-forget?utm_source=pocket&utm_medium=email&utm_campaign=pockethits

When people with average memory recall an experience, it is formed not only by what they think happened and how they felt at the time, but by what they know and feel now. “We’re pulling together everything in the present to come up with an approximation of the past,…”    ….

Every memory researcher I have ever spoken to describes our memories as the things that define us; they are us. There is a reason that people are more afraid of dementia than cancer. When someone you love dies, you fear the day you will forget how they laughed or the sound of their voice, because you will. It hurts to think of all the wonderful, thrilling, important, terrible, devastating things we’ve forgotten. But people with HSAM do remember. Besides the scientific questions HSAM raises, then, there is a different kind of question: would you want a memory like that, if you could have it?

“We call it forgetting but on the other hand, simple storage of information is stupid, it’s just data hoarding. What’s the point? You need to extract something useful from it, then we call it knowledge or wisdom,” Stark told me. “Memory is not about looking backwards, that is not why we have it. It’s there so that your past experiences will make you more adaptive in the here and now and in the future.” But when LePort asked her HSAM subjects in the 2012 study whether they considered their hoard of memories a burden, most said they did not.

False memories are another very real issue. Researchers have discovered that planting a false memory is surprisingly easy. http://www.pnas.org/content/110/52/20947.short

In a unique memory-distortion study with people with extraordinary memory ability, individuals with highly superior autobiographical memory (HSAM) were as susceptible as controls to false memory. The findings suggest that HSAM individuals reconstruct their memories using associative grouping, as demonstrated by a word-list task, and by incorporating postevent information, as shown in misinformation tasks. The findings also suggest that the reconstructive memory mechanisms that produce memory distortions are basic and widespread in humans, and it may be unlikely that anyone is immune. The assumption that no one is immune from false memories has important implications in the legal and clinical psychology fields, where contamination of memory has had particularly important consequences in the past.

Research on memory distortion suggests that episodic memory often involves a flawed reconstructive process (1⇓–3). Several false-memory paradigms developed in recent decades have demonstrated this. For example, in the Deese-Roediger and McDermott (DRM) (4, 5) paradigm, people falsely remember words not actually presented in a related list of words. In the misinformation paradigm, the content of a person’s memory can be changed after they are exposed to misleading postevent information (2, 6, 7). In the nonexistent news-footage paradigm (also known as the “crashing memory” paradigm), people sometimes recall witnessing footage of news events for which no footage actually exists (8, 9). People can even remember events following an imagination exercise that inflates their certainty about events that they only imagined but did not actually experience (10). Even memory for our past emotions seems to be reconstructed and prone to error (11). So far, memory distortions have been investigated in subjects who have typical memory ability [children (12), adults (7), older adults (13)], but not with people with unusually strong memory ability. Memory-distortion phenomena have been explained by theoretical models that state that memory is reconstructed from traces at retrieval (1, 3, 14), is not reproduced from a permanent recording (15), and is prone to errors caused by source confusion (16) and association (17, 18). These studies and theoretical models paint a picture of human memory as malleable and prone to errors.

However, a memory that is formed after an emotional event, known as an emotional hangover, is more vivid and likely more accurate. http://www.cbc.ca/radio/quirks/emotional-hangovers-slime-mold-self-repairing-roads-1.3920620/your-emotional-hangover-is-real-1.3920836

Previous studies have shown that emotional memories last longer than non-emotional ones.  But a new study by Dr. Lila Davachi from New York University has taken that fact one step further.  

In her experiment, one group of volunteers were shown images of emotional images followed by images of non-emotional or neutral images. Another group were shown the same images, but in reverse order.  

Those in the first group were able to remember the neutral images better than those in the second group, suggesting that memory for non-emotional experiences is far better if they are encountered after an emotional event.  

This was supported by fMRI imaging; brain activity was the same for both sets of images in the first group, but different for emotional and non-emotional images in the second group.  

The study demonstrates that the so called ’emotional hangover’ really does exist.   

http://www.nature.com/neuro/journal/v20/n2/full/nn.4468.html

Emotional arousal can produce lasting, vivid memories for emotional experiences, but little is known about whether emotion can prospectively enhance memory formation for temporally distant information. One mechanism that may support prospective memory enhancements is the carry-over of emotional brain states that influence subsequent neutral experiences.    

All of these studies reinforce the fact that our memories are fallible and unreliable. Most of us believe that we have a good memory.  That our memory is like a film recording that we can play back to provide an accurate recollection of events. However, research shows that the truth is much different. Recent studies reinforce the fact that our memories are fallible and unreliable, even though an emotional connection with an event enhances memory formation.

The lawyers at Kalina & Tejpal can be reached at (416) 900-6999 or mail@lawyer4u.ca

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