The fallibility of memory in judicial processes: Lessons from the past and their modern consequences

The capability of adult and child witnesses to accurately recollect events from the past and provide reliable testimony has been hotly debated for more than 100 years. Prominent legal cases of the 1980s and 1990s sparked lengthy debates and important research questions surrounding the fallibility and general reliability of memory. But what lessons have we learned, some 35 years later, about the role of memory in the judicial system? In this review, we focus on what we now know about the consequences of the fallibility of memory for legal proceedings. We present a brief historical overview of false memories that focuses on three critical forensic areas that changed memory research: children as eyewitnesses, historic sexual abuse and eyewitness (mis)identification. We revisit some of the prominent trials of the 1980s and 1990s to not only consider the role false memories have played in judicial decisions, but also to see how this has helped us understand memory today. Finally, we consider the way in which the research on memory (true and false) has been successfully integrated into some courtroom procedures.     

Revisiting the rise and fall of false recall: Presentation rate effects depend on retention interval

Leading theories of false memory predict that veridical and false recall of lists of semantically associated words can be dissociated by varying the presentation speed during study. Specifically, as presentation rate increases from milliseconds to seconds, veridical recall is predicted to increase monotonically while false recall is predicted to show a rapid rise and then a slow decrease—a pattern shown by McDermott and Watson (2001) in a study using immediate recall tests. In three experiments we tested the generality of the effects of rapid presentation rates on veridical and false memory. In Experiments 1 and 2 participants exhibited high levels of false recall on a delayed recall test, even for very fast stimulus onset asynchronies (SOA)—contrary to predictions from leading theories of false memory. When we switched to an immediate recall test in Experiment 3 we replicated the pattern predicted by the theories and observed by McDermott and Watson. Follow-up analyses further showed that the relative output position of false recalls is not affected by presentation rate, contrary to predictions from fuzzy trace theory. Implications for theories of false memory, including activation monitoring theory and fuzzy trace theory, are discussed.     

Interactions between spontaneous instantiations to the basic level and post-event suggestions

Extensive research shows that post-event suggestions can distort the memory for a target event. In this study we examined the effect of such suggestions as they interact with the products of a spontaneous memory process: instantiation of abstract information to an intermediate level of abstractness, the basic level (Pansky & Koriat, 2004 Pansky, A. and Koriat, A. 2004. The basic-level convergence effect in memory distortions. Psychological Science, 15: 52–59. [Crossref] , [Google Scholar]). Participants read a narrative containing items presented at the superordinate level (e.g., FRUIT), were exposed to suggestions that referred to these items at the basic level (e.g., APPLE), and were finally asked to recall the original items. We found that the tendency to instantiate spontaneously in the control (non-misleading) condition, particularly over time, increased following exposure to suggestions that were likely to coincide with those instantiations. Exposure to such suggestions, either immediately or following a 24-hour delay, reduced subsequent correct recall of the original items only if the suggested information coincided with the information one tends to instantiate spontaneously in a given context. Suggestibility, in this case, was particularly pronounced and phenomenologically compelling in terms of remember/know judgements. The findings are taken to imply that effects of post-event suggestions can be understood in terms of the constructive processes that set the stage for their occurrence.     

Mood-congruent false memories in the DRM paradigm

This study investigated the creation of mood-congruent false memories within the Deese–Roediger–McDermott (DRM) paradigm using recall and recognition of critical lures as performance measures. Participants (n=93) were randomly assigned to three mood-induction conditions (positive, negative and control) and were presented with positive, negative and neutral DRM word lists in audio form. We predicted that intrusion errors of the critical lures would be higher in the mood-congruent conditions. Results confirmed this prediction and extended previous DRM research by showing that already high false memory rates were increased when the valence of the lures matched the mood-induction condition. Furthermore, participants made more “remember” judgements for the emotion critical lures in their mood-congruent conditions. Discussion draws on spreading activation explanations of DRM findings, and considers how moods could increase activation of non-presented information.     

The role of cognitive appraisal in media-induced presence and emotions

In the present study, we applied Valins’ (1966) bogus bodily feedback paradigm to investigate the roles of cognitive appraisal (tele)presence, and emotion in the context of media usage. Participants (N=30) viewed short sequences of a TV show, whereby false heart rate feedback was provided. In line with Valins’ paradigm, the manipulation we used in this study included two levels: high vs. low false heart rate feedback. We assessed presence, enjoyment, and the real heart rate. Participants reported stronger experiences of presence and enjoyed the clips more when they wrongly believed that they had been aroused. Since bogus feedback increases the sensation of presence, the results indicate that presence—like emotions—can be influenced by cognitive appraisals. It is likely that the false heart rate feedback was attributed to the stimulus, which in turn enhanced the sensation of presence.     

History and Analysis of Delayed Discovery Statutes of Limitations in Adult Survivor Litigation

Summary

In this chapter, attorney Mary R. Williams examines how while Childhood Sexual Abuse (CSA) cases share many of the types of facts for which delayed discovery, mental incapacity, equitable estoppel and other legal statutes of limitations doctrines were created, the combination of factors of CSA cases, including unusual social dynamics and long-term psychological effects, does not fit exactly with any of these legal doctrines. She explores the historical development of delayed discovery statutes of limitations, evaluates the different types of statutes and case law, and analyzes the problematic use of the concept of repression in legislation. This chapter interprets her ground-breaking state-by-state tabulations of delayed discovery statutes of limitations and reported appellate decisions on limitations in CSA actions, published in this volume as appendices A, B, and C.     

Do social norms,false belief understanding,and metacognitive vocabulary influence irony comprehension? A study of five- and seven-year-old children

This study explores the effects of violating socially shared versus situationally defined norms on the understanding of ironic statements in 70 Italian-speaking five- and seven-year-old children. We also considered the possible relationships between irony understanding, receptive and metacognitive vocabulary, and false belief understanding. The results showed that violating socially shared norms does not benefit younger children's understanding of irony, although it does help older children's understanding. Ironic utterances that violate situationally defined norms were understood similarly across the two age groups. First- and second-order false belief understanding did not predict children's ability to interpret irony, although metacognitive vocabulary did predict interpretation for the seven-year-old group in instances of violating a situationally defined norm.     

Consensus collaboration enhances group and individual recall accuracy

We often remember in groups, yet research on collaborative recall finds “collaborative inhibition”: Recalling with others has costs compared to recalling alone. In related paradigms, remembering with others introduces errors into recall. We compared costs and benefits of two collaboration procedures—turn taking and consensus. First, 135 individuals learned a word list and recalled it alone (Recall 1). Then, 45 participants in three-member groups took turns to recall, 45 participants in three-member groups reached a consensus, and 45 participants recalled alone but were analysed as three-member nominal groups (Recall 2). Finally, all participants recalled alone (Recall 3). Both turn-taking and consensus groups demonstrated the usual pattern of costs during collaboration and benefits after collaboration in terms of recall completeness. However, consensus groups, and not turn-taking groups, demonstrated clear benefits in terms of recall accuracy, both during and after collaboration. Consensus groups engaged in beneficial group source-monitoring processes. Our findings challenge assumptions about the negative consequences of social remembering.     

A modality congruency effect in verbal false memory

The involvement of working memory sub-systems in syllogistic reasoning problems was assessed by dual task methods. Effects of skill level and training on working memory involvement in syllogistic reasoning were examined. In Study 1, participants were pre-selected into groups of High and Low skill at syllogistic reasoning on the basis of a pencil-and-paper screening test. Six separate High and Low skill groups completed syllogistic reasoning tasks in control conditions and each group was also tested under one of the following six dual task conditions: articulatory suppression, unattended speech, verbal random generation, spatial random generation, tapping in a simple pattern, unattended pictures. The results indicated that the more skilled participants were generally following a high demand strategy, which loaded the central executive, phonological loop and imagery sub-systems, but that lower skill participants were generally following a less demanding strategy which did not load working memory components so heavily. In two Pilot Studies a training procedure was assessed and validated. In Study 2, participants were selected, on the basis of a screening test, as being unskilled at solving syllogisms but as performing above guessing level. These participants underwent the training regime validated in the Pilot Studies. Following training, separate groups of participants carried out syllogistic tests with and without one of the following four secondary tasks: articulatory suppression, unattended pictures, spatial random generation, and verbal random generation. The pattern of results indicated that training had induced high demand strategies (often logic-equivalent), which loaded the central executive and to a lesser extent the phonological loop.