Introduction to Memory and Law PDF

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Introduction to Memory and Law...

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PS3028 Memory and the Law Week 1

MEMORY & LAW Why is Memory so important to the Courtroom? It is often assumed that memories of violent or otherwise stressful events are so well encoded that they are effectively indelible and that confidently retrieved memories are almost certainly accurate. However, findings from basic psychological research and neuroscience studies indicate that memory is a reconstructive process that is susceptible to distortion. In the courtroom, even minor memory distortions can have severe consequences…

Why do we make Memory Errors? 1) Human memory is malleable 

Once created, a memory for an episode is not a stable entity

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Mere reactivation changes the memory as we fill in the gaps to tell our narrative

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It can be influenced and altered by what people tell us/by who we talk to about it/by what we see/by information we integrate from else where.

2) Therefore memory is fallible Why is this a problem?

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It is one of the most common pieces of evidence used in the courtrooms

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Memory evidence can often be enough to obtain a conviction…

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Lay-people (the jury!) generally believe memory is accurate

“After the crime and throughout the criminal investigation, the witness attempts to piece together what happened. His/her memory is evidence and must be handled as carefully as the crime scene itself to avoid forever altering it.” (Innocence project – reevaluating lineups)

So what gets remembered is influenced by active manipulation at encoding, integration with preexisting information and then reconstruction at retrieval.

Why Memory is important to the court room Interest in research on memory processes and their relevance to the courtroom has increased since the advent of DNA evidence, which has exonerated hundreds of individuals who were falsely convicted on the basis of eyewitness testimony.

Innocence Project (founded by Barry Scheck & Peter Neufeld, 1992) – Non-profit legal advice service FACTS •

Over 230 people, serving an average of 12 years in prison, have been exonerated through post-DNA testing.

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75% of those wrongful convictions involved eyewitness misidentification.

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https://www.innocenceproject.org/

Key Historical Cases.. Case Example: Ronald Cotton Sentence: life plus 54 years Served: 10.5 years Conviction: Rape, Assault, Burglary In 1985 Jennifer Thompson-Cannino was attacked and burgled in her own home. She identified Ronald Cotton from a Photo-array and then physical line-up. Cotton was sentenced to life plus 54 years and spent over 10 years in prison before his exoneration through DNA testing in 1995. Why was he mis-identified? -

Poor police line-up procedures

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Bias feedback from the police

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Busboy at a seafood restaurant. Just released for breaking and enter when he was 16.

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In July 1984, an assailant broke into Jennifer Thompson-Cannino’s apartment and sexually assaulted her; later that night, the assailant broke into another apartment and sexually assaulted a second woman. Thompson-Cannino, then a 22-year-old college student, made every effort to study the perpetrator’s face while he was assaulting her. As she says on 60 Minutes, “I was just trying to pay attention to a detail, so that if I survived…I’d be able to help the police catch him.”.

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The evidence at trial included a flashlight found in Cotton’s home that resembled one used by the assailant and rubber from Cotton’s shoe that was consistent with rubber found at one of the crime scenes, but overwhelmingly the evidence rested on Thompson-Cannino’s identification.

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During the trial, Jennifer Thompson-Cannino testified that she was absolutely certain that Cotton was her assailant – even after being presented with a person at the second trial who it was later discovered was the real perpetrator. “Ron was the only person who had been in both the photo and the physical lineups, making his face more recognizable to me. And then the police told me that I had identified the same person in the physical lineup whose photo I had selected, so by the time I went into court, everything added up for me: I was defiantly confident that Ronald Cotton was the one.” (Thompson-Cannino, Cotton, & Torneoet al, 2009 , p271).

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Page numbers?

Case example: Kirk Bloodsworth Sentence: Death penalty Served: 8 years Conviction: First-degree murder In 1993, Kirk Bloodsworth became the first person to be exonerated through DNA testing who had served time on death row. Bloodsworth became a suspect in the 1984 murder of a nine-year-old Maryland girl when an anonymous tipster called police to say that Bloodsworth resembled a composite picture composed from two witnesses. Police placed his photo in a photo lineup and multiple eyewitnesses identified him . At trial, five witnesses testified that they had seen Bloodsworth with the victim In 1984, a nine-year-old girl was found dead in a wooded area, having been sexually assaulted, strangled, and beaten with a rock.

An honorably discharged former Marine, Kirk Bloodsworth was the first person in the United States to be exonerated from death row by DNA testing. In 1984 he was arrested for the rape and murder of nine-year-old Dawn Hamilton. He was sentenced to death in Baltimore County, Maryland, in 1985.

Dawn Hamilton died on July 25th, 1984. Two young boys witnessed Dawn walking into the woods with a man they described as skinny, six foot-five, with a bushy mustache and blood hair. Bloodsworth was six feet tall, had red hair and was well over 200 pounds. The police produced a

composite drawing of the man based on the eyewitness testimony of the two young boys. The slim resemblance to the composite drawing and the eyewitness identification of 3 others who placed him near the scene of the crime, two of whom were not able to identify him during a lineup but had recognized him when the composite picture was shown on the news, ultimately led to the conviction and death sentence.

In 1986 Kirk was retried after an appeal but convicted again, this time sentenced to two lifetime sentences. Finally in 1992, after 8 years in prison, DNA fingerprinting taken from evidence collected at the scene of the crime proved that Kirk was innocent, and in fact, a known suspect at the time, Kimberly Shay Ruffner, already serving a sentence for rape, was the rapist and murderer of Dawn Hamilton, the nine-year-old girl, found dead in the woods, having been sexually assaulted, strangled, and beaten to death with a rock. (Kirk Bloodsworth, Innocence Project, 2016) DNA evidence not only vindicated Bloodsworth but also implicated the real perpe- trator, Kimberly Ruffner. Ironically, Bloodsworth looked more like the composite than Ruffner did. Bloodsworth was the only one in the photo lineup with hair that matched the composite. 20 Witnesses unknowingly took characteristics of the composite, like hair, and morphed that into their original memory. Because Bloodsworth shared more individual characteristics of the composite sketch than the other lineup choices, witnesses selected him. Their original memory of Ruffner had become irrevocably altered. Police placed his photo in a photo lineup and multiple eyewit- nesses identified him. At trial, five witnesses testified that they had seen Bloodsworth with the victim. DNA evidence not only vindicated Bloodsworth but also implicated the real perpetrator, Kimberly Ruffner. Ironically, Bloodsworth looked more like the composite than Ruffner did. Bloodsworth was the only one in the photo lineup with hair that matched the composite.20 Witnesses unknowingly took characteristics of the composite, like hair, and morphed that into their original memory. Because Bloodsworth shared more individual characteristics of the composite sketch than the other lineup choices, witnesses selected him. Their original memory of Ruffner had become irrevocably altered.

Use of Photofit/profiling software 

Composites are used when a suspect has yet to be identified.

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Creating a composites can reduce ability to later identify culprit.

Why? 

The composite face overrides the original face we have stored in memory.

The Wee Care Nursery Case (New Jersey State v. Micheals, 1988) On August 2, 1988, Margaret Kelly Micheals, school teacher at Wee Care Nursery School was convicted of 115 counts of sexual abuse. 

The first allegation was made when a boy from her class visited the pediatrician.

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Micheals was convicted of 115 counts of sexual abuse against 20 3-5 year olds and sentenced to 47 years in prison.

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After 5 years in prison, the prosecution dropped all charges against Michaels.

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A letter sent home to parents listed the possible criminal acts under investigation:

Please question your child to see if he or she has been a witness to any crime or if he or she has been a victim. Our investigation indicates that possible criminal acts include oral sex, fondling of genitals, buttock or chest area, and sodomy, possibly committed under the pretense of "taking the child's temperature." Also photos may have been taken of children without their clothing.

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Parents were told to watch out for the following signs: 

Bed wetting

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Nightmares

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Social problems ‘more withdrawn etc’

What happened? 

Highly suggestive questioning of pupils.

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Interviewers/parents were biased

Investigators blindly pursued the single hypothesis that sexual abuse had occurred. "Believe the children" became the motto for the trial. Amicus Brief for the Case of State of New Jersey v. Michaels (Ceci & Bruck 1993) http://www.falseallegations.com/amicus.htm

Memory evidence can also be of long ago childhood events.. Case: George Franklin, Sr (1990) 

In 1990 George Franklin, Sr (51 yrs old) stood trial for the murder of 8 yr old Susan Kay Nason that occurred in 1969.

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Major evidence: The recovered memory of Franklin’s daughter, Eileen Franklin (8 yrs old at time of the murder).

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Memory of the murder came back to Eileen Franklin while playing with her 2yr old son. She had completely forgotten it until this point

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The detail and confidence in memory led to the prosecution and guilty verdict in 1990 but later overturned in 1996.

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The first murder conviction based upon a repressed memory

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Was Eileen’s memory authentic? How can we know?

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If Eileen's memory is not authentic, where else might all those details come from? Media reports from 20 years before—December 1969, when the body was found— were filled with some of these same details. The facts that the murdered girl's skull was fractured on the right side and that a silver Indian ring was found on the body were reported prominently on the front page of the San Fran- cisco Chronicle ("Susan Nason Body Found," 1969). The fact that she apparently held her hand up to protect her- self, inferred from the crushed ring, was also well-known (e.g., San Jose Mercury, "Nason Girl Fought," 1969). Most of the details that fill the rich network of her mem- ory, however, are unfalsifiable or uncheckable—such as her memory for the door of the van that her father got out of after he raped Susie. One additional feature of Eileen's memory, worth noting, is that it changed across various tellings. For example, when she gave a statement to the police in November 1989, she told the police that her father was driving her and her sister Janice to school when they first saw

Susie and that he made Janice get out of the van when Susie got in. However, months later at the preliminary hearing, she did not report Janice being in the van. In the statement to the police, the trip hap- pened on the way to school in the morning or on the way back from lunch. During the preliminary hearing, after she presumably was reminded that Susie had not been missing until after school was out, she said it was in the late afternoon because the sun was low. Eileen's memory changed over the tellings, and there were alternative posible sources for details that made the memory seem so rich. This proves that at least some portions of these distant memories are wrong, although other parts could, in theory, still be authentic. 

When George Franklin, Jr., was convicted on the basis of little more that the return of a repressed memory, Newsweek magazine called it an "incredible" story ("Forgetting to Remember," 1991). It was apparently the first time that an American citizen had been tried and convicted of murder on the basis of a freshly unearthed repressed memory.

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However in 1996 – Frankin was exonerated and released upon appeal, based on the fact that the repressed memory was recovered under hypnosis.

How can we know when memory evidence is based on mostly correctly reconstructed remembering and when is it based on mostly incorrectly reconstructed remembering?

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Many people can accurately remember their abuse.. 

Seven priests in the Archdiocese of St John’s in Newfoundland were charged with child sexual abuse in 1990.

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In a series of trials now grown man recounted their abusive experiences

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Their experiences were accurately recounted in their memory narratives and their statements vindicated by additional corroborative evidence

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Professor Mark Howe acted as expert witness for the enquiry.

(Archdiocesan Commission, 1990 – St. John’s Winter Report) 

Deciding if a memory is reliable is no easy task

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Memory is not quite what the legal system assumes or

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It is unfortunately the case that many of these allegations typically involve only two witnesses: the victim and the perpetrator. In court, it is up to the triers of fact to determine which memory is most reliable. Something that is no easy task. We have learnt from science, however, factors that could easily distort our fragile memories. Something we will come back to through out the module.

wants it to be!...