“Believe the children”? Childhood memory, amnesia, and its implications for law

How reliable are childhood memories? Are small children capable of serving as reliable witnesses in the courtroom? Are memories that adults recall from preschool years accurate? These questions are not only important to basic brain science and to understanding our own autobiographies, but also have important implications for the legal system. At the final Neuroscience, Ethics and the News journal club of the 2014 Fall semester, Emory Psychologist Robyn Fivush led a discussion on memory development, childhood amnesia, and the implications of neuroscience and psychology research for how children form and recall memories.

This journal club discussion was inspired by a recent NPR story that explored the phenomenon of childhood amnesia. Why is it that most of us cannot form long-term memories as infants, at least in the same way that we can as adults? This fundamental question has fascinated many researchers and psychologists and neuroscientists today are tackling it in innovative ways. Even adult memory of the recent past is not nearly as reliable as most people (and jurors) believe1 and while 2-year-old children can report long-term memories from several months prior2, adults typically cannot recall memories from before age 3.5. The emergence of autobiographical memory may arise from the realization of the self (~2 years) and acquisition of language skills, but it seems to happen gradually. Childhood amnesia may actually be the result of a slow conversion to recalling self-experienced episodes rather than just events themselves.3

Via medimoon.com

However, the general public has been shown to have a rather poor understanding of memory,1 perhaps due to “common sense” beliefs and cultural traditions. These common sense and cultural notions are deep-seated and may even have more influence in our society than the latest research, especially if those findings are not effectively communicated to the public. In fact, there is significant disagreement between the memory experts and judges, jurors, and law enforcement on the reliability of childhood memories recalled by adults.4 For example, nearly 70% of experts surveyed agreed that “Memories people recover from their own childhood are often false or distorted in some way”, but only about 30% of jurors thought that statement was true.3

Our collective understanding of childhood memory has had profound effects on American culture and society. The 1980 bestseller Michelle Remembers (Smith and Pazder) set off what Dr. Fivush described as a moral panic that swept the country in the 1980s and 1990s. The book was presented as a nonfiction account of Michelle Smith’s repressed childhood memories of satanic ritual abuse (SRA), which had been uncovered by her therapist (and eventual husband) Lawrence Pazder. Within the decade, two major criminal cases were colored by the hysteria. The prosecution of the “West Memphis Three” where victim mutilation was presented as evidence of SRA (when in fact it may have been due to animal predation), and the lengthy and exorbitantly expensive McMartin Preschool Trials, which ended with no convictions. More recently, the first season of HBO’s drama True Detective (2014), may in fact be guilty of introducing a whole new generation to this discredited yet endlessly intriguing conspiracy theory.

Michelle Remembers

A key component to this chapter in American history is the media coverage of these events. Some have pointed out that powerful voices in the media were not nearly as skeptical of these allegations as they perhaps should have been. Of course, this is a difficult line to walk in cases of alleged abuse – nobody wants a victim to endure additional suffering – but there is also a risk of innocent lives being ruined by unsubstantiated claims. Dr. Fivush discussed how questioning techniques that involved leading questions, coercion, and suggestion – tactics that are particularly apt to produce inaccurate testimony in children – were used in the McMartin Preschool Trials and have since been replaced with more accurate, evidence-based methods. There is also an issue of experts being willing to testify. Dr. Fivush gave an example of a different case where an attorney who told her that if she did not agree to serve as an expert, then their next choice was a school guidance counselor without any recent research experience. To the jury, they might both have appeared as reliable experts on the topic of childhood memory.

Early childhood memory is a particularly salient example of a topic that has been raised many times on this blog – the gaps that often exist between current views among experts in the field, what is reported by major news outlets, and what the public believes. Less accurate information seems to make it across each gap, like a game of telephone being played at a Drive-by Truckers concert.

It doesn’t necessarily have to be this way. Effective communication of science has received a great deal of attention and will hopefully continue to improve. However, as Dr. Fivush pointed out, it is also important for researchers to be willing to serve as experts in legal proceedings to ensure that their work and that of their field is interpreted faithfully and accurately.

[1] Lacy, J.W. and Stark, C.E.L. (2013) “The neuroscience of memory: implications for the courtroom.” Nature Reviews Neuroscience (14) 9: 649 – 58.
[2] Fivush, R., Gray, J.T., Fromhoff, F.A. (1987) “Two-Year-Olds Talk About the Past” Cognitive Development (2) 393-409.
[3] Nelson, K. and Fivush, R. (2004) “The emergence of autobiographical memory: a social cultural developmental theory.” Psychological review (111) 2: 486 – 511.
[4] Howe, M.L. (2013) “Memory development: implications for adults recalling childhood experiences in the courtroom.” Nature Reviews Neuroscience (14) 12: 869 – 876.

Want to cite this post?

Purcell, R. (2015). “Believe the children”? Childhood memory, amnesia, and its implications for law. The Neuroethics Blog. Retrieved on , from http://www.theneuroethicsblog.com/2015/01/believe-children-childhood-memory.html

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