Trauma and memory

Since I’m no brain scientist, I thought I’d crack open a textbook (crowns believe in textbooks, right?). I had a look at Witness Testimony – Anthony Heaton-Armstrong; Eric Shepherd; Gisli Gudjonsson; David Wolchover – Oxford University Press (oup.com) – 2006 (thank goodness for a solid Calgary law library).

While skimming the book, I was looking very closely for the expected chapters on how traumatic memories can be incredibly unreliable and inconsistent – as assumed by most criminal lawyers and judges these days, especially when it applies to a complainant’s weak evidence. To my shock, I couldn’t find a single chapter (or page) stating this assumption!
The book is from 2006, long before the #MeToo movement, so maybe that explains it. It is amazing what kinds of horses**t pass for “common sense” and law these days.

As I mention here at #4, R. v. G.M.C., 2022 ONCA 2 states the following (emphasis added, para. 38):

After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as:

  • observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date;

Similarly, see the disturbing case of R v ADG, 2015 ABCA 149, at para. 33, emphasis added, which I mention here:

The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v DD2000 SCC 43 at para 63, [2000] 2 SCR 275.  It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way.

See also the irresponsible and dangerous claim made by L’Heureux-Dubé J. in R. v. Osolin, 1993 CanLII 54 (SCC) (cited approvingly by Prof. Tanovich in his similarly-irresponsible article that I review here), supra note 4 at 625, where she notes that (emphasis added), “[t]here is absolutely no evidence to suggest that false allegations are more common in sexual assaults than in other offences; indeed, given the data indicating the strong disincentives to reporting, it seems much more likely that the opposite is true.”

Now let’s see what the textbook says. It begins “when witnesses lie by providing an account – whether to investigators or in court – which they know to be untrue the detection of their deceit, especially if they appear plausible or where there is no supportive or contradictory evidence, is elusive and prone to error” (p. 2, emphasis added).

Chapter 6 deals with recovered memory and false memory, and Chapter 7 deals with “crime-related amnesia.” Surely, Chapter 7 deals with trauma-related memories? Not really. It mostly deals with offenders and their convenient claims of “amnesia” – moreso than those of “victims.” As “a rule of thumb, one can say that 20 to 30 per cent of those who commit violent crimes claim amnesia” (p. 107). It states that older studies showing 20 per cent of offenders who claimed amnesia were malingerers (liars) is actually a very low number, and there are “good reasons to believe that the rate of malingering is much higher” (p. 109). Surely, no complainants are malingerers, especially if they’re brave enough to claim to be assaulted, given “disincentives” to reporting?

Here’s the “money” quote (p. 111, emphases added):

In comparing offenders’ memory before, during, and after the crime, Christianson and von Vogelsang [footnote omitted] found that it was more common to completely lose memory of what happened during the crime than information immediately before or after the crime. This pattern was evident for both groups, but was most pronounced in the reactive group. Note that this pattern is opposite to what is normally found when studying memory for emotional events. That is, subjects typically remember the emotion-inducing event quite well, but show impaired memory for information preceding and/or succeeding the highly arousing event.

This would suggest that the “law” that “trauma-affected” memories (of course, assuming trauma occurred, which is perhaps inconsistent with the presumption of innocence, to start) are often recalled poorly is nothing but pure, unadulterated, Grade A Alberta horses**t – of course, it is also binding “law” on just about all courts. It is not “soft science” or any other kind of science – although it is perhaps a selective distortion of science.

I also deal with this here, at #6. Note that my favourite podcast recently dealt with this topic, as well.

Complainants are well-coached by Crowns (ethically or otherwise) these days to claim “trauma” and to insinuate that their glaring inconsistencies should be entirely discounted, given their “trauma.” I had one lying complainant claim that “you’re in trauma. You’re not going to remember everything until everything settles out” explained why she left out significant details in her initial report to police – regurgitated by the Crown in closing submissions when claiming that her lying witness should be believed despite her inconsistencies. The gullible judge clearly accepted these “submissions” – asking me (emphasis added):

So just — just drawing from normal human experience where one is struck to the point of unconsciousness or being rendered unconscious, is it unreasonable for that person perhaps to have things mixed up? The chronology of events mixed up or — and, you know, we don’t have any experts here, but just, you know, drawing from human experience, when a person is put into a traumatic situation or a very fluid situation where there is violence involved, you know, are you suggesting that, you know, if you have a sequence of events, they’ll — messed up, that that points to the — points to a deliberate attempt to mislead the Court or — — you know, goes to credibility?

Yes, sir, yes it does. It also goes to reliability, too. Needless to say, my client was wrongly convicted.

How many dozens of wrongful convictions are happening daily thanks directly to this clearly well-established “science” and law?

To quote the timeless Eddie Greenspan from 35 years ago: “if we keep diluting our evidentiary rules; if we threaten our police, Crown attorneys, and judges with censure for applying the same common sense, or the same discretion, in cases of alleged sexual assault as they do in all other criminal investigations and trials, we will inevitably end up with innocent people convicted and ruined.”

Published by Efrayim Moldofsky

I am a criminal defence lawyer in Calgary, Alberta.

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