The Fragility of the Human Memory - Annie Strickland

Eyewitness identification has been regarded as the leading cause of wrongful convictions but, a mistake in an eyewitness is rarely, if ever intentional (1). These mistakes being made are deemed normal operations of the human memory (2). Our memories are frail, and the chance of a memory being unintentionally tampered with is relatively high. Numerous scenarios can impact any given memory including schematic processing, categorization, constructive processes and external sources (3).

The case of Thomas Sophonow can be used to demonstrate the fragility of human memory. A key witness of the murder, John Doerksen initially failed to identify Sophonow in an in-person lineup. After the lineup Doerksen read a newspaper that contained a photo of Sophonow, then through sheer coincidence, Doerksen passed by Sophonow in the Public Safety Building. After the two occasions of seeing Sophonow, Doerksen went on to identify Sophonow as the murderer (4). This situation can be seen as an external source of misinformation. Media coverage of criminal cases is among the most common sources of misinformation (5). Within hours of a crime, media outlets report on the incident, potentially various witnesses and evidence (6). There is research showing that these media outlets have biasing effects on eyewitnesses. When the crime is being reported on and an eyewitness sees it, it can reshape their memory.

According to Davis and Loftus, if the eyewitnesses are seeking a consensus and if a disagreement occurs then it must be resolved through the alternation of conflicting accounts towards consistency (7). We can see this occur during Sophonow's case where originally, Doerksen did not recognize Sophonow in an eyewitness lineup but through the media, he ended up seeing a picture of him and later on was able to identify him. What could have happened is that since the media was making Sophonow out to be the killer, Doerksen could have resolved the issue of conflict by believing that Sophonow was actually the killer and that is the man he saw and can now identify him.

As stated previously numerous scenarios can impact any given memory. The Thomas Sophonow case is just one example of how memory can be distorted through external sources. Schematic and inferential processing can also internally impact memory. Schematic processing is the most pervasive source of predictable errors in memory (10). Schemas are organized knowledge structures that include beliefs and expectations concerning the nature, characteristics, and behaviors or functions of objects, people, events and other cognizable entities (11). Memory can be distorted in three different ways in schema processing: (1) selective memory/forgetting (2) false memories for events that did not occur and (3) distortions/alterations in memory for those that did occur (12). Within each category of memory distortion, there are a plethora of ways that memories can be warped.

Hindsight bias can create distortions or alterations in memories for those that did occur. Davis and Loftus discuss an experiment that showed a conversation between a couple arguing over an interaction between the girl and a classmate, the boyfriend exhibited extreme jealousy and suspicion over the relationship. After the subjects viewed the conversation, half of the participants learned the couple broke up while the other half were told the female was found dead and the boyfriend was charged with her murder. The second half of the students (who learned she was dead) were more likely to accurately remember threatening statements he made to his girlfriend and more likely to falsely remember that he had hit his girlfriend during the argument and that he also threatened the classmate (13).

Canadian courts have been cautious when using expert witnesses on eyewitness testimony. In R. v. McIntosh the court excluded expert testimony from a psychologist about the fragilities of eyewitness evidence testimony because the fragilities of eyewitnesses were not outside the normal experience of the trier of fact (8). Once again, in R. v. Woodward, the trial judge refused to admit expert evidence on eyewitness identification since he did not consider it necessary to assist the trier of fact. Justice Chartier justified his refusal on the grounds that educating the jury on the frailties of eyewitness identification is generally best left with the

trial judge through strong jury instructions (9).

Overall, it can be noted that the human memory is a fragile thing and distortions can be made unconsciously. With that said, can we leave it up to the trial judge to properly relay information regarding eyewitnesses or is an expert witness needed? We must ensure that eyewitnesses are being properly evaluated and the fragility of eyewitness testimonies is communicated to the jury.

Endnotes.................................

1. Davis, D., & Loftus, E. F. (2008). Internal and external sources of misinformation in adult witness testimony. In Toglia, M. P., Read, J. D., Ross, D. F., & Lindsay, R. C. L. (Eds.). Handbook of Eyewitness Psychology, Volume 1, Memory for Events.

2. Campbell, K. M. (2018). Miscarriages of justice in Canada: causes, responses, remedies. Toronto ; Buffalo ; London: University of Toronto Press at pg. 48

3. Davis, D., & Loftus, E. F. (2008). Internal and external sources of misinformation in adult witness testimony. In Toglia, M. P., Read, J. D., Ross, D. F., & Lindsay, R. C. L. (Eds.). Handbook of Eyewitness Psychology, Volume 1, Memory for Events.

4. Thomas Sophonow. (n.d.). Retrieved from https://www.innocencecanada.com/exonerations/thomas-sophonow/

5. Davis, D., & Loftus, E. F. (2008). Internal and external sources of misinformation in adult witness testimony. In Toglia, M. P., Read, J. D., Ross, D. F., & Lindsay, R. C. L. (Eds.). Handbook of Eyewitness Psychology, Volume 1, Memory for Events.

6. Ibid

7. Ibid

8. R. v. McIntosh (O.), (1997) 102 O.A.C. 210

9. R. v. Woodward, (2009) 240 Man R. (2d) 24

10. Davis, D., & Loftus, E. F. (2008). Internal and external sources of misinformation in adult witness testimony. In Toglia, M. P., Read, J. D., Ross, D. F., & Lindsay, R. C. L. (Eds.). Handbook of Eyewitness Psychology, Volume 1, Memory for Events.

11. Ibid

12. Ibid

13. Ibid