Criminal Law Conference 2013

1. Public Defenders Criminal Law Conference 2013

2. Memory “It is a capital mistake to theorise before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts” Sherlock Holmes, A Scandal in Bohemia Philip Strickland SC Public Defenders Criminal Law Conference 16 March 2013

3. Synopsis • Evaluating memory can be critical to outcome of case. • Memory experts have made important discoveries about memory. • Juries (and Judges) are rarely given information about how memory works. • Some rules of evidence have been shaped by assumptions about memory - not all those assumptions are correct. • Sometimes, lawyers should present to juries/judges the findings of memory experts.

4. Memory • Memory = “retention of knowledge previously acquired.” • Different types of memory use different cognitive systems and neural pathways. (a) short term (working) - minutes/hours. (b) long term: (i) declarative memory - “I remember X” • episodic memory - personal experiences. • semantic memory - knowledge of facts.

5. Memory (b) long term: (ii) non-declarative (or implicit, unconscious) memory - how to do something (drive car). It is said that such memory is unconscious.(i) • Autobiographical memory spans the episodic / semantic distinction. • Remembering an incident involves the assembly and disassembly of many different kinds of information. (i) Implicit memory is expressed in behaviour rather than language. It includes procedural memory which concerns knowing how – how to ride a bike or tie shoelaces or catch a ball, or conditioned emotional responses to frightening events

6. SCIENCE AND MEMORY • Memory experts are engaged in the fields of cognitive neuroscience (workings of the nervous system in the brain) and psychology. • Memory depends upon different areas of the brain and communications between neurons.

7. SCIENCE AND MEMORY • Long term memory is created by the growth and maintenance of new axons (long fibre of neuron) and new synaptic connections. Eric Kandel, In Search of Memory. • “Reconstruction” - memories are reformed at the molecular level at each time they are activated. • “Reconsolidation” every time a memory trace is accessed, it becomes unstable for a while until it can be consolidated again.

8. STAGE OF MEMORY The 3 stages of memory: Impact of stress Encoding Loss of memory over time - Ebbinghaus Retention Retrieving Post event information

9. Features of Memory I • Memories are mental constructions rather than records of the past. • “Recall of memory is a creative process. What the brain stores is thought to be a core memory. Upon recall, this core memory is then elaborated upon and reconstructed, with subtractions, additions, elaborations and distortions.”: Eric Kandel. • Plasticity of brain built into the molecular structure of the synapse. Synaptic connections are not fixed. • As consequence, memory is prone to error.

10. Features of Memory II • Human memory did not evolve to provide a static, highly accurate record of the past. The goal of most remembering is not accuracy. • “Memory serves its own master. It doesn’t work for anyone’s purposes except the rememberer………….Memories might be about the past, but they are constructed in the present to suit the needs of the self”: Fernyhough • Changes in memory occur over time depending upon the goal of remembering and the context in which an event is remembered. • A person can recalls events through a filter of later emotional states. e.g. a witness’ current opinion of a person they are giving evidence has a tendency to ‘bias’ his memory about events associated with that person.

11. Features of Memory III • Memories for emotional/traumatic events are often better remembered than non-emotional events. • Zooming into the most emotionally evocative aspects of the event, but certain details of the event fades or changes. e.g. The victim of an armed robbery faced with a shotgun. • A critical factor is the degree of attention paid to the event.

12. False Memories • People can honestly claim to remember events that they have not in reality experienced. • Suggestibility = Exposure to new information about an event after it has been encoded can distort/supplant earlier memory. • Artificially inflates a witness’ confidence in his testimony • The significance of suggestibility depends on the extent, nature, and repetition of the suggestive influence. • The credibility of the source of post event information and the plausibility of that information are also important factors • Certain types more susceptible than others to post event information. e.g. James Coan experiment.

13. The Law of Evidence& Memory I Hearsay • Rule against hearsay can exclude potentially reliable evidence. • Resolved (not satisfactorily) by exceptions such as the ‘fresh in the memory’ exception: Evidence Act s 66. • “Fresh in memory” in s 66(2) measured in hours or days: R v Graham (1998) 195 CLR 606 - exception based upon psychological research - Ebbinghaus. • Section 66(2A) inserted to deal with Graham. It conflates the “freshness of memory” (a temporal factor) with non-temporal factors, such as the ‘nature of event’. • S 66(2A)(b) Young children are more susceptible to memory distortions than young adults.

14. The Law of Evidence& Memory II Hearsay cont. • People sometimes forget how they acquired the information they possess. • If a witness mistaken about whether he acquired information about event, he may unwittingly give inadmissible hearsay evidence about that event. e.g. 1992 Amsterdam plane crash. • Errors about the source of the information are particularly prevalent in children. • If some material to suggest witness mistaken about personal knowledge of fact, basis for s 189 voir dire. • May be “substantial reason” or “special reason” for oral committal.

15. The Law of Evidence& Memory III Reviving memory in and out of court • Section 32(1) of the Evidence Act provides that a witness, who is giving evidence, must not “use a document to try to revive his memory about a fact or opinion unless the court gives leave”. • Section 32(2) and s 192 factors in granting leave. • Section 32(2) matters are somewhat conceptually confused and reflect anachronistic concepts of memory. • In the digital age, people should be able to refresh memory from more contemporaneous records.

16. The Law of Evidence& Memory IV Leading questions • Leading questions and inaccurate questions (in and out of court) can contaminate evidence due to the effect of suggestibility. • Suggestive influences may involve witnesses who receive confirmation concerning events that they have witnessed. e.g. Missouri eyewitness account • Subtle changes in words in a question can have a significant impact on subsequent recollections. • Section 37(1) of Evidence Act prohibits leading questions. • No right to ask leading questions in cross-examination: s 42 of Evidence Act.

17. The Law of Evidence& Memory V Discretionary exclusion • Part 3.11 of the Evidence Act. • A witness’ memory may be contaminated or distorted to such a degree before the trial commences that it is unfairly prejudicial or misleading to rely on that witness’s evidence. • Utility of voir dire. • Children are generally more susceptible to suggestive questioning than adults. Egregiously leading questions by investigating officers could affect the admissibility of the answers given by children. e.g. R v Anunga (1976) 11 ALR 412 rules • No guidelines about how DPP officers should interview witnesses to be called by the Crown.

18. How to Present Findings of Memory Experts Calling of Memory Experts • Lay opinion is often permitted to be given about a witness’s memory, but expert opinion is not. e.g. “You did not say that in your statement? Has your memory improved?” • Establishing that memory experts have “specialised knowledge” - knowledge outside a non-expert’s knowledge or experience. • R v Fang [1981] Qd R 90 – expert evidence refused.

19. How to Present Findings of Memory Experts Calling of Memory Experts • Overcoming judicial reluctance in admitting experts:Perry v New Hampshire (2012) 132 S.Ct 716. • Jurors lack of knowledge of memory distortions. • Satisfying section 79 requirements: HG v The Queen (1999) 197 CLR 414. • Connecting specialised knowledge with evidence in the case: HG v The Queen(1999) 197 CLR 414’ R v Dupas [2011] VSC 180. Smith (2000) 116 A Crim R 1; U.S v Smith 736 F2d 1103 (1984); U.S  v Russell 532 F.2d 1036 6th Circuit (1976). • Section 108C of Evidence Act.

20. Judicial Warnings on Memory • Judicial warnings - deficiencies in Judicial Benchbook. • Warnings on fragility of youthful recollections: Evidence Act s 165 and 165B; Criminal Procedure Act s 294AA. • What materials can be presented to Judges to persuade them to give warnings; the content of warnings and on granting leave. • Judicial notice: s 144 Evidence Act. • Significance of traumatic events on memory is that this is not an area of science “that is not reasonably open to question.” • Thomas v Mowbray (2007) 233 CLR 307 at [613].

21. Public Defenders Criminal Law Conference 2013