"He Said, She Said": A Psychological Perspective on Historical Memory Evidence in the Courtroom.

Abstract Canadian courts are hearing an increasing number of allegations based on incidents. In most cases, complainants or witnesses report remembering the alleged offense continuously since its occurrence. In other cases (e.g., R. v. Francois, 1994), a witness reports that his/her memory was recovered after being blocked from conscious awareness for a lengthy period. Both continuous and delayed memory cases pose difficulties for legal decision-makers given the typical absence of corroborating evidence. Without clear guidelines for the assessment of allegations based on incidents, judges and juries may rely upon questionable assumptions about memory to assess the credibility of the allegation. A large body of psychological research on applied memory is relevant to the understanding and evaluation of such memory evidence. A review of this research indicates that the central details of most distant emotional/criminal experiences are recalled vividly and often accurately over time. However, some level of peripheral distortion can be expected for such events. In addition, amnesia for traumatic events may occur in rare cases. Conversely, completely mistaken memories for experiences also can occur. Guidelines are presented to assist in the evaluation of allegations based on events. Imagine being a juror in a trial that is based on a middle-aged woman's allegation that her neighbour sexually assaulted her after giving her a ride home 40 years earlier. She recounts a vivid and emotional memory of the accused person attacking her and comes across as a confident witness. As in many sexual assault cases, the defendant denies the allegation and there is no other evidence to corroborate either testimonial. Additionally, the defense team points to inconsistencies in the complainant's testimony relating to dates and locations. How would you evaluate the evidence in this case? Noting the factual errors, some jurors might be skeptical. However, others might view the testimony as highly credible and consider the errors to be minor and the result of the passage of time. A factor that might further complicate decision-making is the complainant's report that her memory of the incident was only recently recovered. There are parallels between the above hypothetical scenario and many civil and criminal cases heard in Canadian courts, such as the case involving the former premier of Nova Scotia, Gerald Regan (R. v. Regan, 1999, 2002). In 1995, Regan was charged with 18 counts of sex-related offenses against 13 women, dating back to the 1950s, '60s and '70s. The complainants were 14-24 years of age at the time of the alleged incidents, which ranged from sexual touching to rape. Mr. Regan was acquitted on some of the original charges and the Crown recently decided not to pursue prosecution on any remaining counts. The Regan case and similar historical cases have sparked a furor over the ability of judges and jurors to accurately assess the credibility of such allegations. Historical cases are those in which the incidents in question occurred years or even decades ago. Because of the complexity of the evidence therein, cases create significant challenges for the court system (e.g., Van Koppen & Crombag, 1999). In light of the difficulties in prosecuting or defending cases based on allegations of abuse, some legal experts, such as Regan's defense counsel (E. Greenspan), have called for a statute of limitations in Canada regarding sexual assault allegations. Others have argued that crime victims are being treated unfairly by a legal system that does not give sufficient credence to claims. It is beyond contention that some allegations of abuse are based in fact. For example, Jack Ramsay, the former justice critic in the Reform Party of Canada, was recently convicted for a sexual offense that occurred three decades earlier, in the absence of any physical or eyewitness evidence (R. …

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