Down Memory Lane: (In)Fallibility of Memory in Court

Abstract What matters most in court surroundings is finding out whether the narratives that are being told, e.g. a defendant’s confession under pressure, a witness’s testimony, or an expert’s statement, are actually true. Apart from the possibility of anyone telling blatant lies there is the question of how anyone’s memory of an event or act that usually lies well in the past before a case comes to court can be tested for its veracity. An eyewitness, however confident, may fail to remember accurately all the details of what she (thinks) she perceived. Hindsight and memory are all too often conflated. Is something truly a memory or is it based on association or prior knowledge? As Plato wrote in the Theaetetus , Mnemosyne, the mother of the Muses, gave humans memory but humans may err when they confuse what they know with what they perceive. The suggestibility of children or cognitively challenged persons may lead to false memories, and, ultimately, unjust outcomes of legal proceedings. Trauma and acute stress, too, may have negative effects on memory and may lead to false accusations, as psychological research shows. This article investigate these and other related aspects of memory from a legal-narratological perspective, giving examples of memory’s (ab)uses in legal practice.