One of the greatest difficulties with eyewitness evidence is that fact-finders are reluctant to believe in the fallibility of memory. We rely on our memories on a day-to-day basis and the thought that other peoples’ memories might not be accurate sits uneasily with the faith we have in our own recollections.Who is telling the truth? Psychology, common sense and the law
Of course the reality is that our memories are unstable and malleable. We are all aware of instances where our memories have proved inaccurate, despite the fact that we were sure that they were correct. Even without external influences, memory will fade over time. This has been accepted by psychologists “ever since Hermann Ebinghaus published his classic work on remembering in 1885.” In addition to this inevitable deterioration, memories may also be altered by post-event factors.
From a judicial perspective, it is particularly important to recognise the susceptibility of memory to suggestion. It is not necessarily true that what is learnt in the cradle lasts till the grave. We forget much more than we remember. What we do remember may persist, but it will often change just as much as we do. Only rarely, if ever, will a person go to the grave with a clear and unaltered recollection of what happened yesterday, let alone of something that happened years before in their youth.
Justice Peter McClellan
Chief Judge at Common Law
Supreme Court of New South Wales