What is a False Memory?
False memories are recollections of events that have been distorted or simply did not occur. The occurrence of false memories throughout legal proceedings presents significant challenges regarding the credibility of testimony and confessions. It is important to note the tactics used during interrogation that may involve suggestive or coercive language to facilitate certain memories.
Mendez and Fras (2011) suggest that false memories arise from the brains tendency to fill in the gaps with fabricated details or interpretations of real events. This fabrication is referred to as confabulation. Their research identified that false memories, like real memories, are both detailed and graphic. This adds to the difficulty of distinguishing real memories from false ones.
The sensitivity of memory to suggestive language makes it especially relevant in legal contexts, where witness testimonies are often vital pieces of evidence relied upon during proceedings.
Research also shows that during police interviews, people that are forced to confabulate their responses to questions in which they are unable to answer leads to the creation of false memories.
How do False Memories Impact the Legal System?
The phenomenon of false memory, whether entirely fabricated or slightly inaccurate, poses significant risks to the integrity of legal proceedings. Research shows that statements and confessions made during police interviews, can be easily influenced and elicited by interrogation tactics.
Previous research further suggests that false confessions, made via confabulations or false memories, can be the result of leading questions or suggestions by authorities themselves. These statements are often made to the detriment of the individual making them, as confessions are heavily relied upon during trial. As a result, false memories can lead to miscarriages of justice, including wrongful convictions and acquittals.
Has False Memory Affected Previous Cases?
For more information regarding legal challenges created by the formation of false memories, please refer to the below cases:
- R v. McKenna [1960] 1 WLR 1: Involving psychological pressure, coercive tactics, and wrongful convictions.
- R v. McMullen [1993] 1 WLR 515: Involving a child’s testimony in a sexual abuse case, leading questions, external pressure, and the risk of false memories.
- R v. McVicar [2013] EWCA Crim 2381: Involving sexual abuse, witness testimony, and false memories.
- R v. R [2000] 2 Cr App R 232: Involving retracted evidence and the impact false memories in cases involving sexual assault.
What Laws are there Against False Memory?
To mitigate the threat of false memories upon the integrity of the Criminal Justice System, several legislative provisions have been designed.
There are specific provisions within The Criminal Justice Act 2003 that address unreliable evidence, such as the vulnerability of certain witnesses and admissibility of confessions. There are measures that specifically reduce suggestive and/or leading questioning during interviews that may influence the production of false memories.
The Police and Criminal Evidence Act 1984 (PACE) includes provisions to help ensure evidence obtained is deemed reliable and fair. Specifically, s76 refers to coercive confessions, prohibiting oppressive conduct, tactics, and coercion used to illicit a false memory. As such, any confession obtained via such means would be inadmissible in a court of law.
Legislation
Police and Criminal Evidence Act 1984 (PACE)
Related Cases
R v. McKenna [1960] 1 WLR 1
R v. McMullen [1993] 1 WLR 515
R v. McVicar [2013] EWCA Crim 2381
R v. R [2000] 2 Cr App R 232
References
Wiggins, A., & Bunin, J. L. (2023). Confabulation. In StatPearls. StatPearls Publishing.
If you need further information or expert legal advice on this matter contact McArthur Solicitors today on enquiries@mcarthursolicitors.co.uk or 020 4587 4583. Our team is here to help.
Andrew McArthur & Georgina Bath
