[HowardCohodas]

Guidelines on Memory and the Law
Recommendations from the Scientific Study of Human Memory

http://www.forcescience.org/articles/Memory&TheLaw.pdf

1. Background and overview

In legal cases memory may feature prominently as the main or as the only source of
evidence. In such cases, evaluating accounts put forward as memories is nearly always
critical to the course and outcome of the case or litigation.

The law generally is unaware of the findings from the scientific study of human memory.
Consequently, courts and hearings typically cannot take advantage of these findings and
use them to inform their decision-making. Most importantly, courts/hearings cannot draw
upon a scientifically informed understanding of human memory during the process of
evaluating an account that claims to derive from a memory of an experienced event.

Currently the main way to deal with this problem, when a court/hearing acknowledges it
as a problem, is to seek the advice of an expert. But this is often especially unsatisfactory,
as many professionals are willing to act as memory expert witnesses, when this is not their
area of expertise.

Another, even more problematic solution is to deny that the court/hearing needs any
expert advice on issues relating to memory. The argument here is that as the jurors all
have memories, they know enough about memory from the experience of their own
memories to make reliable evaluations of accounts put forward as memories. Thus, the
argument goes, evaluating a memory is a ‘jury matter’. If this were the case then there
would be little need for the scientific study of memory and we would all simply know how
our memories work, their limitations, properties, and failings. As it is so palpably clear that
there is no such understanding, then relying on uninformed evaluations of memory can
only lead to unreliable judgements. This report is intended to help by providing those
who have to make such judgements in criminal and civil proceedings with straightforward
accounts of scientific findings and thinking about the nature of memory and memories.