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Expert Evidence About Memory in New Zealand Sexual Violence Trials and Appellate Courts 2001 to 2020

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Expert Evidence About Memory in New Zealand Sexual Violence Trials and Appellate Courts 2001 to 2020 EXPERT EVIDENCE ABOUT MEMORY in New Zealand Sexual Violence Trials and Appellate Courts 2001 to 2020 Suzanne Blackwell, Fred Seymour, Sarah Mandeno June 2020 This report was prepared with financial assistance from the New Zealand Law Foundation ABSTRACT In criminal proceedings in Aotearoa New Zealand there has been an increase in applications to admit expert evidence about memory, most commonly by defence counsel. Almost all these cases have involved allegations of historical child sexual abuse. Memory evidence has been admitted in some cases but deemed inadmissible in others. Thus, memory expert evidence may be regarded as contentious in our courts – as it is in courts in similar commonwealth jurisdictions. This project arose out of concern that the nature of memory expert evidence offered to the courts exaggerates memory fallibility in relation to sexual violence complaints and that the research cited in support lacks relevance or ecological validity. At issue is whether jurors need educating about memory, whether memory evidence represents settled science and/or whether memory witnesses inappropriately offer opinion about the credibility of witnesses. In Part One we describe the relevant legislation and case law in New Zealand, and case law in other commonwealth common law jurisdictions. We then examine the requirements for expert evidence as set out in the Code of Conduct for Expert Witnesses (Schedule Four, High Court Rules) and discuss memory expert evidence in relation to these rules. In Part Two we summarise the opinions commonly given by memory expert witnesses in our courts and describe the studies they cite in support. We observe that briefs of evidence cover similar topics regardless of the case or the court for which they are prepared. Topics include lay public knowledge about memory, then the specific memory topics that have been addressed in briefs of evidence: eyewitness identification and transference, false memories from post-event information, imagination inflation, false memory implantation, memory fallibility in personally experienced traumatic events, ‘recovered’ memory, and children’s memory reports and suggestibility. We consider the potential implications for victims/survivors of sexual violence and child sexual abuse should memory evidence of this nature be more widely accepted in our courts. 2 TABLE OF CONTENTS Abstract 2 Table of Contents 3 INTRODUCTION 4 PART ONE: Legal Considerations in Memory Expert Evidence Introduction 7 Chapter One: Case law on admissibility of expert evidence about memory 8 Chapter Two: Guidelines for experts giving evidence in trials 28 PART TWO: Psychological research cited by memory expert witnesses Introduction 40 Chapter Three: Do jurors in sexual violence trials require expert evidence about memory? 43 Chapter Four: Eyewitness identification and transference 53 Chapter Five: False memory (post event misinformation) 62 Chapter Six: Imagination inflation 87 Chapter Seven: False memory implantation 94 Chapter Eight: Recovered memory and ‘repression’ 106 Chapter Nine: Memory for personally experienced traumatic events 117 Chapter Ten: Children's memory reports and suggestibility 124 CONCLUSIONS 144 Authors 147 Appendix A: Checklist for prosecutors (Recovered memory) 148 Appendix B Checklist for prosecutors (Childhood Amnesia) 149 Appendix C Caselaw “Transference” in sexual violence trials 151 3 INTRODUCTION In criminal proceedings in Aotearoa New Zealand there has been an increase in applications, most commonly by defence counsel, to admit expert evidence about memory. Our experience encompassing the last 20 years has indicated that this has been almost exclusively in the context of sexual violence trials. Most of these cases have involved allegations of historical child sexual abuse, but allegations of recent child sexual abuse and allegations of sexual violence against adults have also featured. A recent informal survey by us of crown prosecutors identified only one case over the last 15 years where expert evidence about the phenomenon of memory had been offered by defence or prosecution apart from in sexual violence trials. This was an appeal of conviction for assault on a child and the expert evidence was proffered to raise doubts about memory of the complainant child and her siblings who witnessed the assault.1 On occasions, the proposed memory evidence has been deemed inadmissible on the basis that jurors do not need educating about memory; that is, that such evidence is not substantially helpful since it can be assumed that jurors already have common knowledge of memory through their own experience. Memory evidence or proposed memory evidence has also been questioned on the grounds that the opinions given by memory expert witnesses do not represent settled science and/or that opinions given are potentially misleading. The Crown has called rebuttal expert witnesses in support of such arguments. Thus, memory expert evidence has become contentious in our courts – as it has in courts in similar commonwealth jurisdictions. It is, therefore, timely to consider memory expert evidence in relation to our legislation and case law, and in relation to the scientific basis for memory expert evidence. Accordingly, in this report we examine both the law and the science in relation to memory expert evidence. This report includes consideration of the expert evidence about memory that has been offered for admissibility in sexual violence trials and in appellate courts determining appeals in sexual violence cases in Aotearoa New Zealand. In Part One we describe the relevant legislation and report case law in New Zealand and, in addition, we report the case law in other commonwealth common law jurisdictions. In a second chapter we examine the requirements for expert evidence in relation to the Code of Conduct for Expert Witnesses (Schedule Four, High Court Rules). There has been concern that the memory expert witnesses have speculated about memory in areas that were without factual basis in the evidence available to the court,2 and that the briefs of evidence have also invariably engaged with the specifics of the cases and offered opinion about the credibility of witnesses. Offering opinion on case specifics and witness credibility is unorthodox for expert evidence, where the purpose of expert evidence is usually regarded as being for the purpose 1 P (CA354/2017) v R [2018] NZCA 361 [11 September 2018] at [24]. The Court of Appeal referred to the evidence as being “offered in this case to directly impugn a fact witness.” The appeal was dismissed. 2 Ieremia v R [2020] NZCA 17 [18 February 2020] at [58] and B (CA463/2018) v R [2020] NZCA 18 [18 February 2020] at [21] 4 of educating the jury at the level of principle and not seeking to comment on the veracity or credibility of those who make allegations or those who are accused.3 In Part Two we summarise the opinions commonly given by memory expert witnesses in our courts, then in relation to each topic, we describe the studies that they cite in support. This includes firstly a consideration of the literature that has been cited in memory expert witness briefs in support of their assertion that jurors need expert evidence to correct misconceptions commonly held about memory. Then we examine each of the specific memory topics that have been addressed by memory expert witnesses, including eyewitness identification and transference, false memories from post-event information (‘the misinformation effect’), ‘imagination inflation’, false memory implantation studies, memory fallibility in personally experienced traumatic events, ‘recovered’ memory, and children’s memory reports and suggestibility. With respect to Part Two, it is important to state what this report is NOT about. It is not a review of the literature about memory. It is not a critique of the memory research. It is not about the applicability of memory research to all expert testimony. It is confined to the evidence given by memory expert witnesses only in sexual violence trials and appellate courts in Aotearoa New Zealand. However, as we indicate, the expert evidence about memory offered in this regard has been almost exclusively in the area of sexual violence. This project arose out of our increasing concern that the nature of memory expert evidence offered to the courts seems to be focussed on portraying the memories of complainants and other prosecution witnesses as necessarily flawed. We have increasingly been concerned that research cited in support of opinions expressed in the briefs of evidence of memory expert witnesses has exaggerated memory fallibility in relation to sexual violence complaints – which, as noted already, is the context for almost all such briefs. In particular, we consider much of the research cited to have limited relevance or ecological validity to the issues inherent in sexual violence trials. If flawed expert evidence is presented to the courts, it has the potential to become yet another barrier to victims/survivors of sexual violence accessing the courts and experiencing fair trials. The costs for the community of such an outcome is also significant. Two of the authors of this report are psychologists (SB and FS) – the other being a lawyer (SM) who has worked both as prosecuting and defence counsel. We have extensive experience as clinical psychologist practitioners working with child and adult victim/survivors of sexual abuse, and their families, and extensive experience working with offenders. We have often been engaged by the Crown as expert
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