Now I have absolutely nothing to say about yesterday's arrest of Max Clifford - oh no - but one thought has been bothering me, and that is the fact that this and other similar cases that are under investigation are said to have happened in 1977 or thereabouts. I had a think about what I was doing in 1977 (wasn't that Jubilee year?). I had a young family and was running a small business. Since then I have changed jobs a few times, and finally retired. My young children are now around forty, and I am a grandfather. A lot of water has passed by Big Ben in that time.
If I were called to give evidence in a trial relating to an incident in 1977, how could I or a jury or a bench be 'sure' that my memory was accurate to the very high standard required for a criminal conviction?
These sort of offences are way above anything that a magistrate could be expected to deal with (other than to decide on bail) and those more legally erudite than I will make their decisions in due course, but think about what you were doing 35 years ago. Could you give evidence that reached the criminal standard of proof?
Obviously not talking about any ongoing cases, but I find it hard enough to remember what happened last week, let alone 35 years ago. I imagine it will come down to "Yes you did!" "No, I didn't!" arguments. Quickly followed by "I've never met you, or I can't remember you!"
ReplyDeleteTrue in general. But I think that if you had been sexually abused or had sexually assaulted someone else, memory would not be a problem.
ReplyDeleteIt is unlikely that there will be any witnesses to these crimes although proving where a perpetrator or victim was on a specific day 30 years ago will prove difficult.
Having been, in some small way, a victim of abuse; I can recall the events (which took place 40 years ago) vividly.
ReplyDeleteThe fact that my evidence was not needed when the individual concerned came to court probably reflects the same thinking; why rely on a 40 year memory when there was a 5 year old memory available?
Although you were a 5 year old at the time, surely your memory would have been 45 years old
DeleteThe events took place 45 years ago when I was 15. The individual was sent to prision on the strength of the eveidence of a 20 year old who was also 15 at the time of the offences against him.
DeleteThe problem is not so much the presence or absence of antique memories. Rather, memories change with time. No matter how vivid the memory, it is bound to not be a comprehensive record of events, and usually to become more self-empathetic. Moreover, there is generally little insight into this process.
ReplyDeleteThis happens in journalism, too. All one needs to do is to compare, say, the local papers' reports of a West Ham versus Wigan match, or a journalist's account of an event one has witnessed onself. Major differences in memory immediately emerge.
What is happening is the standard of proof is being watered down. People are being accused on little or no credible evidence. You have to wonder if this is the revenge of the press or the cops , or is it just the potential compensation. I haven't sseen anybody who is Mr Ordinary being arrested.
ReplyDeleteAs they say, it all depends. I can remember exactly what I was doing, wearing and standing when I heard of the 9-11 events. Likewise when JFK was shot. I can't remember what I had for dinner the day before yesterday, save to say I was on my own somewhere.
ReplyDeleteAlso, memory is a very individual thing. I know a voice years after hearing it in short phone call, but routinely have to think out tricks to disguise from clients the fact that I can't tell their faces or names days after meeting them and talking to them at lenght. I usally remember every detail of their cases ( except dates, and of course, names) for years, though. Weird thing, memory is.Wouldn't want to be a witness, ever.
DeleteI remember some things from 30 or so years ago - but only isolated memories. I remember the pattern on my grandparents' stairs carpet, and which ornaments they had on the windowledge, but I wouldn't be able to tell you on which days we were there. I remember that I set off the burglar alarm by mistaking a panic button for a light switch, and that the postman, who was walking up the drive at the time, almost had to go home and change his trousers, but I could only tell you to within a couple of years when that was.
ReplyDeleteI remember exactly how I broke my brother's tooth, although I have no idea what the quarrel was about, or what day it happened. But I know he was wearing a dark blue anorak at the time.
I have no doubt that had I been raped by a person known to me, I could still remember what happened. I probably wouldn't be able to tell you when, and I probably wouldn't be able to give you a reliable description of his appearance.
I don't think the problem is with my ability to remember, but with obtaining corroborating evidence. Establishing whether or not I'm lying beyond reasonable doubt would be challenging.
If the complainant says "It was on a Saturday when I was seven" - and there has been such a case - that leaves the Defendant facing the impossible task of what he was doing on any of 52 days decades ago. These cases worry me.
ReplyDeleteI am currently dealing with such a case. My client is almost 90. In addition to the lapse of time since the alleged incidents he also has to contend with the problems that age brings. I hope that others are similarly troubled. It seems to me that CA got it quite wrong some time ago when it effectively gave carte blanche to this sort of prosecution despite the problems that the time lapse causes.
DeleteAs a victim of attempted sexual assault by a man who was scoutmaster/teacher/prominent freemason and family friend 45 years ago I can tell you that I can remember the events in complete clarity.
ReplyDeleteI can also remember being unable to tell my parents or anyone else at the time - thankfully I was big enough to be able to prevent him getting his hands completely down my trousers.
He was subsequently convicted of sexual assaults on pupils at his school and did quite a bit of time.
Unless you have had something like this happen to you - something so abhorrent, so wrong yet something that you felt so helpless about you cannot hope to understand the feelings of guilt, suspicion, and self doubt associated with the events.
That having been said thankfully my experience was mild and as far as I am aware it has ultimately been positive, in so much as I can go some way towards understanding the victims situations and perhaps inform others.
Hmmm, memory fades ? So what about all those convictions of Nazi concentration/death camp guards ? Were they unsafe. In the recent cases, as others have said, there can be vivid memories, but corroboration from those unaffected could be dodgy, (as in confirming or denying alibis)
ReplyDeleteI am afraid that the older the cases, the less reliance can be placed on what witnesses remember. This is especially in view of the fact that the appearance of the accused will have inevitably changed over his lifetime. Regardlesss of the monstrous crimes committed against their victims, the first question which has to be answered is, "Are we sure (beyond reasonable doubt) that the accused is the right man?"
DeleteIndeed, Fras. Remember Demjanjuk? Extradited to Israel as having been an SS-man `"Ivan the Terrible" at Treblinka. Identified as such by survivors and convicted. Appealled. The fall of the USSR opened up the KGB archives - and established that Ivan the Terrible was probably another man and that Demjanjuk was in fact an SS-man at Sobibor and Flossenburg; so the appeal succeeded.
DeleteIt is easy to imagine that a defence like that went down like a lead balloon in Israel; but he returned to the USA and got his citizenship back - and then lost it again and was returned to Germany to fact Sobibor/Flossenburg charges. Convicted, but died pending appeal; and by German law (which in this instance we would do well to imitate) if you die pending appeal you leave a clear name.
The point of course is that the eye-witnesses were in good faith but they made their ID forty-odd years after they were liberated. And that should be a warning to the police, the CPS, and us all.
What you are referring to is the idea of a witness who is not "lying" but "mistaken".
DeleteOf course, what you overlook is that in such circumstances you, the defendant do not have to meet the criminal standard of proof, or any other standard of proof come to that. That is for the Crown to do, and if it cannot then whatever the truth of the matter, you are entitled to be acquitted
ReplyDeleteThere is a psychologicl experiment which goes as follows.
ReplyDeleteA student arrives for the test and goes to the Reception desk where he is greeted by a young man. The young man bends down behind the desk to get an application form. While out of sight he changes place with a different young man who stands, gives the form to the test participant and directs him to where he should go next.
The majority of those tested fail to notice that the man at the Reception had changed. It is a matter of selective memory, the participant did not take in any details so would not have been able to say what colour hair Reception man had, what colour shirt he was wearing, his height, etc. The brain does not burden itself with unnecessary things to remember the applicant simply assumed that there was only one Reception Man.
This is a very big subject but experience of trials has often reminded me of how frail human memory can be and that an honest witness may be quite mistaken.
Mike
As 'Normal Bloke' said when it happens to you (and to an extent its just what 'Jaded' has recorded); when its something 'traumatic' you remember somethings vividly. With the individual who 'attacked' me there were many other occasions when I was in his presence - but because nothing happened then I don't have the same clarity.
DeleteAllbeit that I can remember the exact circumstances of his several assaults (what I was wearing, why I was in his house, what we did innocently beforehand, etc. etc.) I have no hope at all of remembering the date within a couple of years. Consequently the potential exists, I suppose, for some elaborate defence to be concocted.
DeleteOf course as we all know there are those out there who are mentally unbalanced attention seeking delusionists who make completely unfounded allegations - oh the joy of our judicial system - but can we think of anything better?
At Hendon we had two exercises regarding memory and writing statements.During a lesson a man came in and handed our Sergeant a piece of paper and walked out.10 minutes later the Sergeant made us all write down a description of him.Cue about 18 different jackets,hairstyles,ages etc.In our sister class the same man went in and pulled a fake gun on their instructor.The class then wrote statements about what they had seen.Their ones were much more accurate as the event was more dramatic.It has stuck in my mind for many years when I speak to witnesses at crime scenes.
ReplyDeleteI agree with the posters above though,I can't remember what I had for dinner last night....
You muse to good effect, BT, and the short answer is 'No' to your question. Police officers and historians working with primary sources based on eye witness accounts will readily admit to their unreliability. Add the vagaries of time and the imperfection of human memory and you are limited to calculating probability.
ReplyDelete@Fras : you raise the question of the conviction of nazi concentration camp guards. In recent years some of the accused have indeed claimed that they were not the person they were alleged to be and you will have seen that as memory of witnesses was at times less than certain, that more recent cases resulted in acquittals. This is one of those types of case where the only real point at issue was identification. No argument about the facts, unlike some of the current crop of sexual abuse claims, where it is not agreed that anything specifically actually occurred.
ReplyDeleteSurely similar fact evidence will come into play here. If 35 people, who have never met each other, report very similar crimes, Mo, abuser etc, against a single individual, that tends to make the evidence more credible.
ReplyDeleteIf the evidence is 1 individual saying something that is unsupported by anything else, thena conviction is not feasible; and indeed a prosecution seems unlikely.
Memory has to be selective for biological success. There is simply not enough capacity in the human brain, as currently evolved, to create a 100% record of everything experienced minute by minute. What is retained depends upon psychological significance. So a particularly offensive act (and great respect for overcoming, Normal Bloke) is remembered in detail; but the date, day of the week, might not be because the latter weren't worth recording, per se. The exercise with the gun is designed to raise the significance of what has been observed. Frankly, it matters little which young man gives you a form from behind a counter, and it is perfectly normal (and highly functional) not to clutter the memory with it. Significance can be created in many ways. I can remember the pattern of the rug in the hall of my grandmother too, but only because it was the only thing on the floor of that bungalow that would serve as a pattern for roads to roll my model cars up and down; it had been a long search for a three-years old. Odours, music, pain, unfamiliar environments, extraordinary events, and other stimuli can attach significance to an unrelated observation that otherwise, in itself, would not be "worth" remembering, i.e., would not ordinarily command space in a limited capacity system. Thus, e.g., the blue anorak is remembered only because of the broken tooth attached to it, the contents of a mundane letter being written in your own office, when you hear about 9-11, etc.
ReplyDeleteLastly, memory tricks often depend upon creating points of significance for oneself. A series of twenty objects can be easily remembered if one visualises each in turn with an object that rhymes with the number in the series of twenty. Indeed, with that trick one can easily generate the list of twenty in any order that may be requested.
This is one reason why a Policeman's lot is not a happy one.
time is a problem
ReplyDeletehowever... I have knowledge of historical abuse where the victim kept contemporaneous diary entries
powerful circumstantial evidence , testimony by confidants etc..
photographs of proximity and opportunity , for instance
the interview is crucial , any solicitor will advice no comment , a denial of place and location can be terminal
a current internet interest in er..certain topics after a search after arrest
you see, not necessary that time covers all tracks
depends how you see the world some times
what have they taken from his house in plastic bags
could be terminal
It appears to be possible for some people to recall almost every detail of their lives. Perhaps the issue is one of 'ability to recall' rather than what is actually stored in memory (whatever that mechanism really is). I think it's called hyperthymestia.
ReplyDeleteAnd at the other end of the scale, I think I'd have trouble giving evidence to the criminal standard of proof about what I was doing this time last month. Not a disability as far as I know, just a consequence of a not very eventful or varied lifestyle.
DeleteQuite, however this isn't necessarily because you have forgotten what you did, but may be because you simply cannot recall it on demand. My comment was in response to an earlier comment which seemed to imply memory somehow 'fills up' as though it has some kind of finite capacity, which short-term memory does of course.
Delete"These sort of offences are way above anything that a magistrate could be expected to deal with...."
ReplyDeleteNot quite as all magistrates can be jurors so you could indeed be dealing with it.
It is tempting to think of memory as a unitary faculty because that is how we experience it. In reality it is a highly complex process. First, you have to notice something and then (2) pay attention to it, (3) judge it to be sufficiently important to store, (4) select what appear to be the key components for storage, (5) retrieve these elements at some future date and (6) reassemble them into a coherent whole - which may not be the whole you experienced in the first place, and indeed will almost certainly not be, and then (7) express that in some way.
ReplyDeleteOn the other hand, such is the enormous storage capacity available, that if you paid attention in the first place, it will be in there somewhere and in some form.
We are effectively seeing the Pendle Witch trials all over again with all these cases. Frankly, at the moment I suspect that it will be almost impossible for any of the defendants to get a fair trial. The febrile atmosphere has spilled over from the Jimmy Saville and now affects other cases where the defendants are not well known public figures. As an example I had a trial last week where when the Judge withdrew one of the counts from the jury and directed the jury to record a not guilty verdict, one of the jury objected even though he had not heard the defence case.
ReplyDeleteIndeed! This is EXACTLY what we are seeing, with accusation given the status of proof.
DeleteSurely it's a truism that nobody can judge their own memory. Faced with a witness claiming "crystal clarity" of events 40 years ago the def brief should probably come back with: and who was prime minister at that time/what band was Top of the Pops/what was the weather like on that day? Or even: what was your phone number/car registration? It should be fairly easy to show that what you remember and what you think you remember are very different. Over 40 years you will have fixated on some details and your brain will have filled in some blanks.
ReplyDeleteContemporaneous notes are the solution.
The point is the publicity. It crowds out, other less government friendly issues .....
ReplyDeleteAt least it means that some people may feel English justice has woken.