FALSE MEMORY, MISATTRIBUTION, AND PROSECUTION

Sexual predators, especially those in a position of power and influence, may victimize those they view as subordinate with little fear of accountability. However, recent societal movements, such as the “Me Too” movement and the “Start by Believing” approach, appear to empower victims to come forward with allegations to a more understanding public and law enforcement community. Obviously, society benefits when predators are held accountable.

Trained and encouraged to “Start by Believing,” law enforcement officers are instructed to use supportive and believing language and openness to victims reporting abuse. The End Violence Against Women International (EVAWI) campaign describes the objective, “The purpose of this campaign is to open the doors for the vast majority of sexual assault victims who are too afraid to report the crime and participate in the criminal justice process (Lonsway, K., Archambault, J., 2016).” The campaign also reminds that both implicit and explicit bias that may be present in law enforcement investigations and acknowledged the legitimate concerns “that sexual assault cases must be investigated and prosecuted based on the evidence.”

On page 11 of the EVAWI document for criminal justice professionals, a “Police Investigator” provides a quoted endorsement, “During my interview with the victim every time there were things that were strange or didn’t make sense I would look at my [training participation] bracelet and BELIEVE! I obtained an indictment on the offender and the case is awaiting trial. I Start by Believing!!” Notably, that endorsement did not include the mention of the collection of evidence to support the indictment, particularly after the investigator found “things that were strange or didn’t make sense.”

Citing concerns over criminal justice participation in the “Start by Believing” campaign, Volokh opined, “The concern is that the interjection of ‘belief’ into the law enforcement investigation creates the possibility of real or perceived confirmation bias. Confirmation bias is the tendency to search for, interpret, favor, and recall information in a way that confirms one’s preexisting beliefs or hypotheses, while giving disproportionately less consideration to alternative possibilities… many detectives have not been adequately trained to effectively defend the Start By Believing campaign on the witness stand. During a recent case in Iowa, a detective testified that the campaign required him to believe the victim, ‘no matter what.’ The prosecutor in the case explained, ‘… the [Start by Believing] verbiage is what’s killing everybody in court’ (Volokh, 2016).” Perhaps, the verbiage and underlying philosophy also influence the investigation and charging of the suspect.

However, what is to be understood by the allegations of seemingly sincere victims when all available evidence does not corroborate their claims and the identified perpetrator appears equally credible in their denial? Though a well-known condition for some time, it appears the forensically-accepted phenomenon of false memory is minimally introduced or regarded in law enforcement investigations, prosecutions, public opinion, and other proceedings.

Misattribution is a type of false memory that can occur when a subject’s identity and personal relationships are centered and influenced around a memory of an experience that did not actually ever occur (Depue, B., 2010).

The Department of Psychology chair at Harvard University and memory expert, Daniel Shacter, recognized, “. . . misattributions in memory are surprising common. Sometimes we remember events that never happened, misattributing speedy processing of incoming information, or vivid images that spring to mind, to memories of past events that did not occur (Schacter, D., 2001).”

Schacter cited the subsequent DNA evidence review for a group of cases in which a subject was imprisoned following the involvement of eyewitness testimony, and noted 90% of the subjects convicted were actually innocent of the charges. Schacter considered, “. . . how many other times have similar misattributions produced inaccurate testimony leading to the conviction of an innocent person? . . . The resulting shock waves have fractured families and shattered lives.” Schacter continued, “These chilling numbers create an urgency regarding the need to understand the nature of eyewitness misattributions, and to take steps to minimize them (Schacter, D., 2001).”

Following her study of false memory, Julia Shaw concluded, “Legal professionals and police officers need to realise how easy it is to manipulate someone’s memories. Judges in particular should never assume that they can tell when someone has a false memory and should consider the entire process to see if there was any risk of contamination of a defendant or witness’ memories. The findings really highlight how important it is to ensure that criminal proceedings are done right. The questioning process should be evidence-based, to reduce the risk of implanting false memories in people being questioned by the police.”

QUESTIONS

Could a confirmation bias influence a law enforcement agency’s investigation and arrest of the accused? Why, or why not?

Should the arrest and prosecution of an accused subject be based solely on the testimony of the victim? Why, or why not?

What are the implications of a prosecution without supporting evidence on justice for the victim and due process and protection for the accused subject?

Are there implications for the evaluation of a law enforcement use of force for reasonableness? Why, or why not?

Could a prosecutor, judge, or jury be influenced by a philosophy of default belief in the victim?

How should a prosecution or defense team address false memory? Should they? Why, or why not?

REFERENCES

Depue, B. E. (2010). “False Memory Syndrome”. The Corsini Encyclopedia of Psychology.

Lonsway, K., Archambault, J. (2016). Start by Believing: Participation of Criminal Justice Professionals. End Violence Against Women International (EVAWI), September 2016. https://www.startbybelieving.org/wp-content/uploads/2018/08/2016-09_TBSBBCJSResponse.pdf

Schacter, D. (2001). The Seven Sins of Memory; How the Mind Forgets and Remembers. Houghton Mifflin Company, Boston-New York.

Shaw, J. (2020). Do False Memories Look Real? Evidence That People Struggle to Identify Rich False Memories of Committing Crime and Other Emotional Events. Front. Psychol., 08 April 2020 | https://doi.org/10.3389/fpsyg.2020.00650

Volokh, E. (2016). The Volokh Conspiracy; “Don’t ‘start by believing’.” The Washington Post. Dec. 15, 2016 at 2:16 p.m. MST.