Memory in Canadian Courts of Law.

Abstract

Abstract Thousands of people have found themselves facing criminal or civil litigation as a result of questionable memories. Sometimes these involve faulty memory of eyewitnesses to crimes. Psychological science has informed the legal system about memory and enabled productive changes in the handling of eyewitness evidence. The chances of wrongful convictions hopefully go down in the process . But sometimes the questionable memories involve allegations of massive repression of horrible brutalization. In these cases, there is enormous controversy, and downright skepticism, over whether such massive repression even occurs. Unless or until better proof becomes available for these types of claims, a reasonable argument exists for keeping these dubious claims out of the courtroom altogether. Canada has seen its share of problematic, if not downright dangerous, memories being introduced into legal cases. I had a chance to play a role in two such cases. One of them involved the mistaken identification of Thomas Sophonow, described in detail by (Yarmey, this issue). The other involved dubious allegations of repressed memories that forced teacher Michael Kliman to endure three trials before his ultimate acquittal, a case that should probably be considered when evaluating the conclusions drawn by Porter, Campbell, Birt, and Woodworth (this issue). In both of these cases, witnesses came to court to testify based on their memories, and in both cases false or highly dubious memories were accepted by Canadian jurors. For centuries now, we have had experience with people who come to court to testify, and they take the familiar solemn oath. In light of what psychological science has taught us about human memory, I recently proposed that witnesses probably ought to be taking a more realistic oath: Do you swear to tell the truth, the whole truth, or whatever it is you think you remember? (Loftus, 2002). Thomas Sophonow was accused of murdering a young waitress who worked in a donut shop in Winnipeg, Manitoba. Several eyewitnesses testified against Sophonow but there were problems with each one. For example, the photo array shown to a number of witnesses contained a picture of Sophonow, which was significantly different than the other men in the array. For one thing, Sophonow's picture was taken outdoors while the rest of the men were photographed inside. Sophonow is shown wearing a cowboy hat, unlike most of the other possible suspects. Sophonow was also the only man who was depicted in both the photo and the physical lineup, making it possible witnesses chose him because they had seen his picture before. Moreover, Sophonow was the tallest man shown to witnesses, and the killer had been described as a tall man. Despite these and other problems with the eyewitness testimony, Sophonow was convicted of murder and spent nearly four years in prison. Eventually, he was declared factually innocent. An official inquiry was established to investigate what went wrong, to determine just compensation for Mr. Sophonow, and to make recommendations about future cases. Commissioner Peter Cory was eloquent in his description of the suffering of this one man, falsely accused: What has he suffered? ...He is psychologically scarred for life. He will always suffer from the core symptoms of post-traumatic stress disorder. As well, he will always suffer from paranoia, depression and the obsessive desire to clear his name. His reputation as a murderer has affected him in every aspect of his life, from work to family relations. The community in which he lived believed him to be the murderer of a young woman, and that the crime had intimations of sexual assault. The damage to his reputation could not be greater. .... His reputation as a murder will follow him wherever he goes. There will always be someone to whisper a false innuendo. . In the mind of Thomas Sophonow, he will always believe that people are talking about him and his implication in the murder. …