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Not guilty: memory in the criminal justice system

11 October 2016
Open for Discussion: The University of Sydney's podcast series

Think back to a week ago, a month ago, a year ago. How much can you remember? Do you remember exactly what you did and everyone you saw? Memory is a tricky thing, so what happens when it’s all that stands between a person going to jail, or walking free?

Celine van Golde

Dr Celine van Golde

In the latest episode of the University of Sydney podcast Open for Discussion, our host Dr Chris Neff speaks with Dr Celine van Golde from the School of Psychology about her research into the reliability of eyewitness testimony and memory.

And on October 18, both Chris and Celine will be two of 20 speakers taking over 20 pubs across Sydney for Raising the Bar, where they will discuss their areas of research to a live audience. Chris will be “Celebrating the top 10 LGBTQI wins” at the Oxford Hotel in Darlinghurst, while Celine will be discussing real life wrongful convictions at the Bristol Arms in the city.

Note: Celine's talk is currently sold out but there's tickets available to a number of other great talks, click here for details - tickets are free!

Full transcript available below

Transcript

(music plays)

Chris Neff: Ever wondered how reliable eyewitness testimony in court can really be? Memory is a tricky thing so what happens when it's all that stands between a person going to gaol or walking free? Joining me today is Dr Celine Van Golde from The University of Sydney's School of Psychology. Celine's research looks at the reliability of eyewitness memory in children and adults and specifically how interviewing techniques can affect memory accuracy.

Thank you for joining us today on Open for Discussion, Celine.

Dr Celine Van Golde: Hi.

Chris Neff: Did I just butcher your name?

Dr Celine Van Golde: Kind of, but that's fine...

Chris Neff: Ok, could you tell us how to pronounce it better?

Dr Celine Van Golde: Yes in Dutch it would be “Van Goulden”.

Chris Neff: Ok. good…

Dr Celine Van Golde: Yeah..yeah

Chris Neff: I'm not…

Dr Celine Van Golde: Dutch (laughs)

Chris Neff: …anywhere near that.

Ok good. But now your area of research is fascinating. It’s eye witness testimony in court cases. How did you come to start studying that?

Dr Celine Van Golde: Well originally I started of with a law degree and one of my electives was in forensic psychology and it looked at a lot of things ah such as eye witness memory, false confessions, anything like identification evidence and it actually made me realise that law wasn't really my thing and psychology might be more. So I switched to a psychology degree and I did my bachelors in cognitive psychology, really focusing on memory in general and I found memory very intriguing but specifically when we can apply it to forensic situations.

Chris Neff: Why is memory such a tricky thing? Are we good...like are we good with our memories?

Dr Celine Van Golde: Well even people that believe they're very good are actually not good at memory and that's because memory is reconstructive. So, unlike popular belief, I used to use the metaphor of a video recorder but I do realise nobody owns a video recorder anymore so I'm just going to say a YouTube video which you can pause…

Chris Neff: iPhone video.

Dr Celine Van Golde: iPhone video...anything. People watch YouTube don't they?

Chris Neff: Yes. I watch YouTube constantly.

Dr Celine Van Golde: (laughs) Not at work of course.

Chris Neff: No, no.

Dr Celine Van Golde: You can pause it. People believe that with memory you search for the one memory that you want to see. You can pause it, you can rewind it, you can look at all the details, however you want. However, research has shown that it doesn't work like that at all and when you try to retrieve your memory, a lot of different factors will actually influence what you remember and how you remember it so even the mood that you are in at that point will colour the memory that you are trying to retrieve.

Chris Neff: So what, what percentage of eye witness memory is correct? Like is...is what actually happened.

Dr Celine Van Golde: I'm...very skeptical at this moment about memory but I would say unless you have got actually collaborating evidence, so you've got independent evidence that can verify what happened like photos or videos. We are very uncertain what is correct what is incorrect.

Chris Neff: Ok. So I would assume in a lot of your research cases, people have asked to remember events from a long time ago.

Dr Celine Van Golde: Yep.

Chris Neff: What happens if it's not something that was current but testimony about a long passed event?

Dr Celine Van Golde: What we know from research is that like memory decays quite rapidly. So everybody's memory, within the first hour you will forget a big proportion of what you actually witnessed. So give and take like 10, 20 years that is gonna be even more and more that you'll forget. So I would say it's not very reliable for a very long period of time. Like if you remember something from very long ago, you might remember core details but overall…tricky.

With memory, unless you do something to consolidate it straight away…so we're, we're actually doing some research on how if you write something down straight away, how that can protect your memory, even for later on. And you can go back to your notes later on, but even if you don't read over the notes that you took straight away, you are actually better protected against suggestions later on. What you see, like there's a very famous like little forgetting curve and it shows that...if you ask people to watch a video and then an hour later ask them to describe what they saw in the video, they actually forget about like 60% of all the details already in there.

Chris Neff: Wow.

Dr Celine Van Golde: That's an approximate. And then you see it plateaus out. So then it becomes a little bit less and they remember a small proportion of that video and it plateaus out over time and the problem with forensic settings or with events that have happened to you, because they can be very sudden. So if you ask for specific details, it's very difficult to remember those specific details.

Chris Neff: Yes…well that's one of the things that we see often.

Dr Celine Van Golde: Yes…yep.

Chris Neff: And when we are looking at shark bites, it's whether or not eye witnesses can tell us what type of shark was involved...

Dr Celine Van Golde: Yep.

Chris Neff:...and the colour of the shark is often the key…

Dr Celine Van Golde: ...yep.

Chris Neff:...factor and that's very tricky.

Dr Celine Van Golde: Yep.

Chris Neff: ...and as you say these are highly emotional events…

Dr Celine Van Golde: Yep.

Chris Neff:...people are stressed out, bad things are happening so…

Dr Celine Van Golde: Yes. Because of course it's a very stressful event so if you see someone getting attacked, the stressful situation, what we found is that people that are highly aroused, so very stressed out, will remember the central details of the event better than peripheral details. So they will remember better like the shark and it's teeth than they would for example remember oh what was the bathing suit that the person was wearing...down the beach.

Chris Neff: Mmm hmm.

Dr Celine Van Golde: And even for like just life events. Everything about my childhood, I doubt everything now. Unless I see a picture.

(both laugh)

Dr Celine Van Golde: But it really is…like it's just a reinterpretation. It's what people have told you about your childhood.

Chris Neff: Yeah.

Dr Celine Van Golde: And then all of a sudden, that's what you come to remember and then you realise that's not true at all.

Chris Neff: Yeah.

Dr Celine Van Golde: We're doing some studies with it now where people like either take a picture of an event or they write about it after they've witnessed it...

Chris Neff: That's good...yeah.

Dr Celine Van Golde: ...and what they actually see is that you almost, if you take a picture…you...it's not that you don't consolidate the memory, but you kind of are relying that the picture is there so…

Chris Neff: Mmmm hmm.

Dr Celine Van Golde: ...you're not really…like the storage of it's just…

Chris Neff: Oh interesting.

Dr Celine Van Golde: Yeah but I don't know what the exact process is but people, you see a difference with people and now everybody's on their phones taking videos and photos and ahh...like I'll get back to that..

Chris Neff: Yeah.

Dr Celine Van Golde: …but then when you ask the question you're actually not that good at it.

(music plays)

Chris Neff: You're listening to Open for Discussion. A University of Sydney podcast that looks at research through a personal and critical lens. I'm your host, Chris Neff and we're exploring memory and it's pivotal role in criminal cases with my guest, Dr Celine Van Golde.

Chris Neff: In cases where eye witness testimony has turned out to be incorrect…

Dr Celine Van Golde: Mmm hmm.

Chris Neff:…is it more than likely because someone lied? Or...or are there instances where people genuinely believed what they saw?

Dr Celine Van Golde: It can go either way but what we often see with cases of wrongful convictions is that people mistook somebody that they thought was the perpetrator or are they actually created a false..what we call a false memory about an event. So...once something is suggested to them due to the type of questions that we ask them...that they are asked by police officers, that they are asked by others, they can really start to remember something that didn't happen to them. But people also can come to believe that they committed a crime that they didn't do, just because they had been like interviewed, in a specific way.

Chris Neff: Woah.

Dr Celine Van Golde: Yep.

Chris Neff: So our memory, short term and long term is bad and then, but we...depending on the way questions are asked, we could believe that we committed a murder.

Dr Celine Van Golde: Yes.

Chris Neff: Ok.

Dr Celine Van Golde: What you see is, there's a couple of famous cases. There's one case where a man, he's in gaol at the moment still. So his daughters actually created false memories about being sexually abused by their Dad. They were feeling very upset, they went into therapy and then the therapist was asking them questions, very suggestive, very leading. And they came to believe that their Dad had sexually abused them when they were children and involved them in satanic rituals and a lot of that sort of stuff. Afterwards they pressed charges and the police interviewed him and this guy was, he was very like...he was very religious and he believed in God and he thought my children would never ever lie to me and they would never accuse me of something like that so he started praying a lot and then he found out during all this like reflection, that he was like well because they wouldn't lie, I must've done this, even though I cannot remember it. And he then created a false memory about sexually abusing his children and he came to confess to a crime that he didn't commit. And then later on a psychologist intervened and said well like...this is like...all getting a little bit weird this whole story, let's just see if we can make him confess to whatever and make him believe that he did whatever. So he came up with...the psychologist was interviewing this guy and he came up with all these different details and the guy was just confessing to everything and he created false memories about all these different aspects that actually didn't happen and the psychologist said, we shouldn't believe in his confession, it's clear that he has created this false memory and his kids probably as well. And the guy was just like nah I truly believe what I did and I should be punished for this and he decided to stay in gaol.

Chris Neff: Oh my god.

Dr Celine Van Golde: Yes.

Chris Neff: How common is this kind of thing?

Dr Celine Van Golde: It's...I would say like nowadays its less common, even though it can...it can happen very easily and it's also how you define a false memory, is a false memory for a full event or is it just for an aspect of an event that you believe that has happened. What you see is during the 90s there was very much like an increase in court cases where there was suggestions of false memories.

Chris Neff: In the nineties?

Dr Celine Van Golde: Yes.

Chris Neff: So...

Dr Celine Van Golde: It happened a lot.

Chris Neff: ...what was going on in the nineties?

Dr Celine Van Golde: There were a couple of things going on. So there were a couple of celebrities that came out with recovered memories. They went into therapy and then they rediscovered their memories of sexual abuse. There were a couple of books written as well that were very popular and that stated things like it's very common for people to not remember any sexual abuse that happens and if there are signs like you are a little bit overweight or you feel a little bit sad, those might be signs that you have been sexually abused and just because you don't remember, doesn't mean it didn't happen so go into the therapy and start talking to people. And I almost want to say it's kind of the fashion thing that all of a sudden a lot of the people were looking for answers to the problems that they had when they were adults, started talking to unfortunately psychologists and therapists and they use very suggestive questions, sometimes used…tried to hypnotise them, people become very suggestible when they are…hypnotised and then they start remembering, they pick up on little suggestions and start incorporating that into their memories.

Chris Neff: And it's probably tricky because the symptoms of one thing are probably the symptoms of a great many things but I mean I think just important to note, and I think you'd probably agree, that there are real cases of sexual abuse and…

Dr Celine Van Golde: Oh absolutely.

Chris Neff:..I mean and so...which makes these cases even worse because

Dr Celine Van Golde: Yep.

Chris Neff: You know...you've got real cases of real trauma, real victimisation, rape and what not…

Dr Celine Van Golde: Yep.

Chris Neff:…that goes un talked about. And then false memories undermine the whole process.

Dr Celine Van Golde: I know...yeah it's a very tricky situation. You don't want to take away, like even just questioning if somebody is falsely remembering something like that. I mean for them that is also a real thing but then the people that have actually experienced that like...you don't want to discredit any of their memories or what happened to them. So it's…it's very...nasty.

Chris Neff: Well and children are…sort of unimpeachable. You know...they’re...they’re..you know a little kid says something you would...you would…genuinely believe them.

Dr Celine Van Golde: Yep.

Chris Neff: So how do you deal with analysing and researching child witness testimony?

Dr Celine Van Golde: Ok...so…what we do...so I look at a couple of different effects in children. So...for example how repeated questioning can influence the memory and change the memory of a child. A lot of people believe like kids are very bad at remembering things, just like adults but they're even a little bit worse. However, they are very comparable and even quite young kids can remember big live events and I think I need to make like a disclaimer because at the start I said like memory is really bad. What I mean is of course within the setting that I do research. So if you witness something and then are trying to like later on recall that, for those types of situations our memories are very bad.

So what is happening, and this is not to talk down the seriousness of sexual abuse but what often happens within those cases, children are young, it's that they don't necessarily experience the sexual abuse as immediately very traumatising. It is something that happened to them and because it's going on for quite a long time and they are groomed into that situation, they can be very uncomfortable but they don't realise it's not normal so they kind of forget about it because it was just something that happened when they were younger and then over time when they grow up and they actually realise well this is something that was not normal and then they reinterpret what happened to them when they were younger and then they recover that memory so to speak. So they never really forgot about it but they interpreted it in a different way and then they come to recover that memory. There's debate though about if people can actually completely block out a memory and I'm not specialised into that scenario.

Chris Neff: So...tell us a little bit about the…is it the innocence project?

Dr Celine Van Golde: It…we call it not guilty...the

Chris Neff: Not guilty.

Dr Celine Van Golde: Yes. The Sydney Exoneration Project.

Chris Neff: The Sydney Exoneration Project.

Dr Celine Van Golde: Yes.

Chris Neff: That started up here at the university.

Dr Celine Van Golde: Yes. Yep.

Chris Neff: Ok.

Dr Celine Van Golde: So what happens is that we…a colleague and I received a letter from a person who was in gaol and they said...ah we watched a documentary on forensic psychology, that's what happened in my case and I would like you to look at my case and show that I'm actually wrongfully convicted. Having worked in The Netherlands for a innocence style project that used psychology students and law students to work together to reanalyse cases of possible wrongful convictions, I thought like...what if we can set up something similar over here and this case was like the perfect start for that. So I got a group of students together, law and psychology and to analyse this first case and that's how it started.

Chris Neff: That's amazing.

Dr Celine Van Golde: Yeah.

Chris Neff: What has happened and how are the cases going? Is…is it improving their chances of appeal or is it...

Dr Celine Van Golde: So often they have already gone through their appeal…

Chris Neff: Mmm hmm.

Dr Celine Van Golde: Sometimes they have already gone through an enquiry as well so we are trying to see if there is fresh evidence so that we can go...try to get like…get the case reopened.

Chris Neff: So essentially I mean it sort of reminds me of like the back work that happens in these podcasts like Serial, you know...or making a murderer on Netflix...or something.

Dr Celine Van Golde: Yes.

Chris Neff: So is that good? Are these...are these Serial podcasts making us better at understanding these cases or is it…

Dr Celine Van Golde: Like it's two-fold. On one hand I think it's very good because it actually gets little bits of understanding within the community that our legal system is not flawless and that there are issues. And once it’s widely known, it's easier to address those issues and to actually make changes to the legal system. On the other hand a lot of people think like...because what you see within Serial, you see a podcast...that was I don't actually know how many episodes, I think it was 12 episodes I think. Umm...but that is like years of work that they have done and then in 12 episodes. And then you've got Making a Murderer which is 10 years of work all condensed into 10 hours. So a lot of people believe it's very easy and it's just like yeah you do it but it's super like Steven Avery, the guy from Making a Murderer is still in gaol. His nephew who was actually interviewed and then falsely confessed, which was interesting...he's like coming out now, he just like released but even that was 10 years, it's 10 hours that you see of it and then people believe it's a lot easier than it actually is. That there's less to it. There's more to it than what you see in those episodes.

(music plays)

Chris Neff: Well it has been an absolute delight to have you here, even considering that these are very difficult topics but fortunately you've helped us make sense of these. So thank you very much.

Chris Neff: Thanks for listening to Open for Discussion, a University of Sydney podcast. To hear more great stories you can subscribe on ITunes and Soundcloud. [This] month Celine and I are also taking part in The University's Raising the Bar event where along with 18 others will each be discussing our areas of research to a live audience in a number of pubs around the city. For more information head to raisingthebarsydney.com.au where you will also find the podcasts of all the talks after the event so if you aren't able to make it, make sure you stop by and listen to them there. And join me next time where I'll be chatting to Amanda Sallis all about the science behind a healthy diet.

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Memory in the criminal justice system: teaser

Host: Dr Chris Neff

Guest: Dr Celine van Golde

Producer: Annika Dean

Editor: Caitlin Gibson

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