The Role of False Memories in Wrongful Convictions

Joseph A. Neuberger
Neuberger & Partners LLP

False Memory Syndrome is a controversial and complex psychological phenomenon that can have significant implications in criminal cases particularly sexual assault allegations. It refers to the creation of false or distorted memories by individuals, often as a result of suggestive techniques, misinformation, or external influences. These false memories can be vivid and emotionally charged, making them challenging to distinguish from genuine memories. When false memories are introduced into criminal cases, they can lead to wrongful convictions, unreliable witness testimonies, and miscarriages of justice.

The credibility of complainants is assessed based on whether or not a witness seems to be truthful but also consideration of whether the evidence, even when honestly believed by the complainant, is reliable.

In the recent case of  R. v Tan, 2023 ONSC 3750, the complainant admitted that her allegation mirrored the plot of the 2011 film Hysteria and that she had previously watched that movie.

The complainant stated that she had lost all memory of the alleged sexual assault by her physician for three years until she read an article about a doctor committing a sexual assault and the memory then returned to her. Ultimately, in the Tan case, the judge acquitted stating at para 125, “I cannot be confident that J.N.’s present memory of the May 5, 2014 incident, forgotten for three and a half years, and then ‘remembered,’ was reliable in light of her demonstrated fallible and suggestible memory.”

There is a demonstrable lack of understanding in terms of how memory works. Expert evidence on memory was recently deemed by the Supreme Court of Canada in R. v. Waterman, 2021 SCC 5

to not be a requirement when the Crown leads evidence of recovered memory testimony. This indicates that it is an onus on the Accused to rebut recovered memories while the Crown is not required to support the quality of that same evidence, even when it is admitted by the complainant that the memories were acquired after therapy or a large gap of time in which there were no memories of the alleged abuse at all.

The case of R v SKM, 2023 ABKB 144 is very useful in cases of questionable memories. In SKM, the Alberta Court of Appeal ruled that a new trial was warranted because an expert on false memories was not permitted to testify at the original trial. <https://canlii.ca/t/jw6h3>

Once permitted to testify in the retrial, Dr. Deryn Strange provided very useful information that was deemed not to be within the grasp of the average trier of fact.

From paragraphs 123-125 of SKM:

[123]  This is a summary of the evidence given by Dr. Strange at the qualification stage of this trial:

• Memory does not work like a video recorder, rather it is a process of reconstruction; the majority of members of the public do not understand that memory does not operate like a video recorder.
• Every memory a person has exists on a spectrum from entirely true to entirely false; most of our memories are somewhere in the middle; it is very rare to get an entirely accurate memory because memories do not work like a recording device.
• During an experience, certain material becomes encoded in memory; what is encoded depends on what the person having the experience pays attention to or focuses on.
• The encoded material is then stored in the brain, and upon retrieval, which is the reporting or discussion of past events, what is remembered may be influenced by internal or external suggestions or by assumptions.
• Traumatic memory is not a special memory system; while traumatic experiences may involve heightened emotions, the idea that there is a special place where traumatic memories are locked in is not supported by memory science.
• There is no reliable way to distinguish a true memory from a false memory; some people with false memories of traumatic events can develop PTSD as a result of belief in that memory.
• There is a difference between suppression and repression; thoughts are suppressed, not memories, that is, a person can make a conscious decision to suppress or not think about something.
• The idea of repressed and then recovered memories (traumatic memories being locked away and inaccessible until a triggering event occurs) is a remnant of Freudian psychology, and while it finds some support among clinicians and non-empiricists (people who do not do scientific research), it has no empirical basis after more than 80 years of experimentation and thus is not founded in memory science.

[124]  According to Dr. Strange, there are 4 or perhaps 5 stages to creation of a false memory:

• First, there is a suggestion, either external or internal, that something happened; an example of an external suggestion would be a verbal prompt from someone else that something might have happened, while an internal suggestion might be a search for an explanation for a feeling or occurrence, or a dream.
• Second, there is plausibility, where the suggestion is supplemented or built on real memories, that is, based on what the person actually remembers, details or supporting information are supplied to make the suggestion plausible; in other words, some details of false memory may be accurate because in order to flesh out and create a false memory, it must be fed with things that are real.
• Third, there is an autobiographical belief stage where the person comes to believe that the event actually happened.
• Fourth, there is a memory construction phase where the detail of the story, narrative or memory is fleshed out with details from actual experience so that the memory looks and feels like a real memory.
• Finally, there is a source monitoring error whereby misattribution occurs such that the erroneous reconstruction mistakenly becomes a memory.

[125]  The stages do not have to take place in a particular order. A false memory can take shape through an activity known as “memory work” in which the person undertakes a reconstruction exercise. It is the process by which the person works out what happened. Memory work may involve just thinking about the supposed event, looking for confirmatory evidence such as photographs, talking to other people, imagining, journaling or any kind of writing activity, and thinking about the time sequence of events.

The problem of false memories has persisted since the so-called “Satanic Panic” in the 1980s, in which children came to believe they were being abused in satanic rituals in daycares. These false memories were solicited from highly suggestible complainants and most were later proven to be false though many of the accused were convicted and spent time in incarceration as a result.

Recovered memories have since been repackaged with new terminology and constantly being recycled through the courts and criminal justice system despite the unreliability of the memories.

It is not uncommon that a complainant may legitimately believe that abuse occurred even though that memory is false and it becomes a challenge for the courts when a witness honestly believes something to be true even when the memory is false.

Overall, false memory syndrome is a critical issue that demands attention and awareness in the criminal justice system. By acknowledging its existence and implementing measures to address it, we can work toward minimizing the impact of false memories on criminal cases and promoting more reliable and just outcomes.

Neuberger & Partners have successfully defended cases of false memory. Notably, in one case the trial Judge quoted the defence submission that “when memory is like a chalkboard that can be erased and rewritten at will, it must be viewed with suspicion.” Our client was acquitted after drawing attention to the frailties of the evidence against him.