Oregon State Bar Bulletin — OCTOBER 2012

“Key Points” on Memory and the Law

Memories are records of people’s experiences of events, not records of the events themselves.

Memory includes not only experienced events but also knowledge of a person’s life, such as schools attended. “As a general rule,” the report says, “memory is more likely to be accurate when it is of the knowledge of a person’s life than when it is of specific experienced events.”

Memories are mental constructions that bring together these different types of knowledge. As a consequence, memory is prone to error and is easily influenced by the environment in which it is recalled, including police interviews and cross-examination in court.

Memories for experienced events are always incomplete. Accounts of memories that do not feature forgetting and gaps are highly unusual. This must not be taken as any sort of indicator of accuracy.

Memories typically contain only a few highly specific details.

Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. “In general,” the report concludes, “the only way to establish the truth of a memory is with independent corroborating evidence.”

The content of memories arises from an individual’s comprehension of an experience, both conscious and nonconscious, and can be further modified and changed by subsequent recall.

People can remember events that they have not in reality experienced. This does not necessarily entitle deliberate deception.

Memories for traumatic experiences; childhood events; interview and identification practices and memory in younger children, older adults and other vulnerable groups all have special features which are unlikely to be commonly known by nonmemory experts.

Adapted from “Guidelines on Memory and the Law: Recommendations from the Scientific Study of Human Memory,” a report from the Research Board of The British Psychological Society, published 2008.

—Janine Robben

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