Journal of Criminal Law and Criminology Volume 50 Article 6 Issue 3 September-October Fall 1959 The syP chological Basis of Evidence Practices: Memory Robert S. Redmount Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Robert S. Redmount, The sP ychological Basis of Evidence Practices: Memory, 50 J. Crim. L. & Criminology 249 (1959-1960) This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE PSYCHOLOGICAL BASIS OF EVIDENCE PRACTICES: MEMORY ROBERT S. REDMOUNT The Author, a practicing psychologist, is trained for the practice of law and is a member of the Connecticut Bar. He developed the present article while he was serving as a Research Associate at Yale University Law School under a National Institute of Health grant to the University.-EDnToR. The memory of individual witnesses, as it is Present memory, of whatever extent and quality, reported in the courtroom, is the largest fact-sub- is initially admissible, and is then subject to im- stance of juridical decisions. It is frequently in- pressionistic tests or rule of thumb indices of its tended as the vehicle for the accurate reconstruc- adequacy. Examination to challenge the adequacy tion of the past events which form the subject of present memory may be directed to the processes matter of litigation. A presumption may generally of memory as they attach to the specific event in be said to exist that the memory upon which a issue, 2 or it may be directed to demonstrated evi- person bases his testimony is reliable. A random dences of memory failure in related or unrelated person, given accurate original perception, will, events within the past or present experience of the in the ordinary course of events, reflect a memory witness.3 Courtroom examinations of memory competent to serve most of the purposes for which facility in the abstract may also be permitted in it is demanded. However, courts called upon to give a few jurisdictions.4 decisions based on the truth, and lawyers retained Examination of memory processes is most usu- to advance partisan causes, are not expected to ally directed to collateral matters and not to the rely upon such a presumption categorically. Prac- process by which memory takes place. The ade- tices and rules of evidence were developed to assist recollection is, as a practical matter, difficult to estab- them in detecting faulty recollection and to safe- lish. However, as long as there is some basis for the guard the accuracy of testimony by testing the testimony in observation and memory, it is admissible and the limitations, whether from observation or reliability of memory. memory, will reflect on the probative value of the evi- dence. Cf. WIGMORE, SCIENCE OF JUDIcIAL PROOF I. PRESENT RULES AND PRACTICES IN c. 22, §235-54 (1937). See also McComc, HAND- = cited RELATION TO MEMORY AND THEIR BOOK OF LAw OF EVIDENCE 20 and cases in notes 8 & 9 (1954). PSYCHOLOGICAL INFERENCES 2 See WIGmoRE, EVIDENCE §994 (3d Ed. 1940). 3 WIGmORE, op. cit. supra note 2 at §995, and cases Evidence rules and practices do not prescribe cited in footnote thereto. The examination of past specific qualitative or quantitative indicia to memory failures, based upon prior events that occurred qualify the present memory of a witness for testi- out of court, is not allowed by many courts. Examina- tion is limited to demonstrations of present memory monial purposes or to judge the reliability of failures. memory once testimony is given. The implicit 4Examinations of this sort have generally been attempted in relation to a witness' capacity to observe recognition that memory cannot be so finely graded and to hear. See WiunoR, Id. at §993 and n. 2. Upon or restricted to defined boundaries is reflected in analogy, a similar examination of memory would be the rule that any "impression" or "belief" may be permissible. The use of expert examinations and expert examiners to test memory facility has been suggested. admissible in the circumstances of the case, so See McCoPMCE, op. cit. supra note 1, pp. 97-98; long as there is inherent in the recollection process WIGmoRE, id. at §997, 998; HuTcINs AND SLESINGER, some basis of personal observation.1 Some Observations on the Law of Evidence-Menmory, 41 HAnv. L. REv. 860, 869-70 (1928). Cf. Note, Psychi- I See WIGooRE, EvIDENcE §§726-729 (3d ed. 1940). atric Aid in Evaluating Credibility of Rape Complainant, The witness' qualification of a positive statement by 26 IND. L. J. 98 (1950) (cites arguments and cases up- the assertion that it presents his "belief" or "impres- holding psychiatric examination of complaining wit- sioh" may be a matter of simple caution on his part, nesses in rape cases for the purpose of determining the or it may reflect limitation in either his original obser- witnesses' credibility). See also United States v. Hiss, vation or past recollection. If he is using expedient cau- 88 F. Supp. 559 (S.D. N.Y. 1950) and related Case tion in his statements and hi memory of an event pur- Comment, 30 NEBR. L. R~v. 513 (1951), (psychiatrist ports to be positive and definite, this can be established permitted to testify as to the credibility of a witness, through questioning on direct examination. The dis- based upon diagnosis derived from court-room obser- tinction between qualified observation and qualified vation). ROBERT S. REDHOUNT [Vrol. 50 quacy of opportunity for the observation and the event. It is also presumed that this general memory acquisition of knowledge, the skill of interpreta- facility may be tested in the abstract, through the tion, and the completeness of observation and in- largely exclusive use of examinations of simple formation, are the courtroom subject matter of the observational skills. Impeachment of the nitness operation of memory in relation to a particular for failure of memory under any of the aforemen- event.' Similarly, examination of memory in the tioned tests is a matter of impression. Standards abstract is generally focused on observational skills. of memory accuracy and reliability are implicit It is established inferentially that poor memory and non-specific, and are presumably reflected in for an event exists if observation has been limited the common sense expcrience and impressionistic or inadequate, perceptual ability is lacking, or if judgments of judge and jury. logical interpolation is faulty. The legal and courtroom consideration of Examination of the accuracy of the products memory is not restricted to absolute and unaided of memory process in relation to the event in issue, present recollection to be reflected in offered testi- represents the most direct assessment of memory mony. A further psychological inference is made function in relation to the experience that is the that adequate and useful memory of an event may subject oi testimony. However, examination of not always be immediately available to a witness memory production is not limited to matters con- and ready for articulation. Some fragmentation nected with the event at hand. 6 A free-ranging and temporary forgetting is inferred. It is further examination of memory production in relation to believed that cues and fragments may facilitate any events in any context is permitted, subject to more complete and articulate, but still reliable. the discretion of the court The underlying pre- recollection. On the basis of this set of psycho- sumption is that "repeated instances of inability logical inferences, operative by reason of a distilla- to recollect give the right to doubt the correctness tion of common sense and impressionistic ex- of an alleged recollection of a material fact." 8 An periences, provision is universally made for the inarticulate preposition is that the judge or jury, refreshing of present memory in court during the in attributing the significance to be attached to course of and as part of a witness' testimony.9 any one or several memory failures, may and per- For the purpose of refreshing and improving, a haps do consider the difficulty of the event or in- dormant memory a witness is generally permitted formation to be remembered, the recency and fre- to use "any artificial aid which under the circum- quency of its occurrence, its meaningfulness to the stances (and at the discretion of the trial court) witness, the probable impact or importance of the is appropriate and does not seem improperly sug- event to him, his motivation or readiness to make gestive."' 0 In particular, writings may be and observation and memory, etc. commonly are used. It is generally not required In point of psychological theory, present court- that the writing have been made by the witness room practice tests a witness' memory for a specific himself," and it need not have been freshly made event by his skills and opportunities of observation 0See WIGmOlE, id. at §758-65 and McComhci, and by his logical interpolations. A general facility id. at pp. 14-18. for memory is posited. It is presumed operative 10W xIGtoR,CODE Or EvrDEzcE 146-47 (3d ed. with equal distinction in all circumstances. Evi- 1942). See also Ward v. Morr Transfer Co., 119 Mo. App. 83, 95 S.W. 964 (1906), but see State v. Patton, dence of failure in any number of circumstances is 225 Mo. 245, 164 S.W. 233 (1914) (aid or memorandum evidence of failure in regard to any particular must have been made by the witness, and at a time when the facts were fresh in his memory).