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“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
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
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
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


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
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

Lacy, J.W. and Stark, C.E.L. (2013) “The neuroscience of memory: implications
for the courtroom.” Nature Reviews
(14) 9: 649 – 58.
Fivush, R., Gray, J.T., Fromhoff, F.A. (1987) “Two-Year-Olds Talk About the
Past” Cognitive Development (2)
Nelson, K. and Fivush, R. (2004) “The emergence of autobiographical memory: a
social cultural developmental theory.” Psychological
(111) 2: 486 – 511.
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
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