Introducing The Defense of False Memory Syndrome (Confabulation) without usurping the function of the Jury.

This article is drafted to provoke a discussion and express personal views on how and when the courts should allow evidence to show that the witness in question is or is at least likely to suffer from the false memory syndrome. The well-established name for various forms of memory errors is confabulation.  

Regrettably, in our jurisdiction, it seems that many, if not most, criminal practitioners are not familiar with the term ‘confabulation ‘, let alone its implications.  This lack of understanding may be a significant reason why this concept is rarely used as a defence in our criminal courts. However, rather than solely blaming the justice system for this, I argue that our jurisprudence provides a built-in mechanism for admitting evidence of confabulation. Overcoming the challenges of presenting such evidence requires a mindset of lateral thinking or, at times, what is known as thinking outside the box.

Before attempting to adduce such evidence, it is desirable to take the following steps and an understanding of:

What is confabulation: The best description of a person who confabulates is given in our jurisdiction by Lord Bingham of Cornhill in his forward to Analysing Witness Testimony by Anthony Heaton-Armstrong, as  “A Witness may be completely honest, entirely confident, very persuasive, but quite wrong”.

Therefore, when one analyses Lord Bingham’s statement that the witness is:

• Giving False evidence but not lying in any form or shape. That means not fabricating, colluding, embellishing, or concocting evidence. This means that the witness believes in what is said in the evidence. Hence, the reason for those who confabulate is that they are not prosecuted for perjury, perverting the course of justice or wasting police time. 
• As the individual genuinely believes in the evidence they present, the witness is, at least in part, honest. As the person is honest and believes in what is given in evidence, the witness is confident and can persuasively provide evidence without realising that what is said in evidence is entirely wrong.

Therefore, the key difference between a witness who is confabulating due to some reason and an honest but mistaken witness, such as in cases of mistaken identification, and a witness who is fabricating, embellishing, or concocting their evidence, is the absence of deliberate intent to deceive. Confabulation does not involve the premeditated decision to lie in evidence, as in perjury.  While people may fabricate evidence for various reasons, including understandable ones like a mother wanting to protect her son, this does not change the fact that they are committing perjury. The distinction between lying and false memory is significant.   

There is much material available on false memory and how memory works. Much of the material comes from the USA, where there were several allegations by children, particularly against their parents and/or guardians, in some capacity. Those who were accused suffered a lot, including the loss of their entire family to serving prison sentences. However, after much research, it was established that allegations were made due to false memory syndrome. 

It is a human phenomenon that the human mind and memory are in a constant state of flux. Contrary to popular belief, scientific evidence shows that memory fades away much faster than an ordinary person will accept. 

It is common knowledge and everyday experience of every human to reflect after an event and interpret what has taken place, or be influenced by another experience and or from what we have learnt from a third party- what might be described as memory corruption, all be it not necessarily deliberately or with malice intent. As part of this ordinary human experience in life, we might fill in the gaps in areas where we find it difficult to reconcile and understand an incident, which could colloquially be described as making an assumption or guessing and adopting that answer as being correct as to the experience of the incident. Generally, when one reflects on a past event, the perception and understanding change, leading to a change in memory (distortion of memory). 

Some of us may have a vivid dream and believe it to be real or confused with a part of an incident that may have happened or may even try to interpret it.  Others may be addicted to illicit drugs and or alcohol, leading to a degeneration of the mind and cognitive functioning as well as hallucination. It is not difficult to understand the impact of such influence on a person who is already suffering from some form of mental health issues or who is easily susceptible. To make matters worse, one should understand that as human beings, we all have our weaknesses, likes, and dislikes, some with prejudices and biases, which would have a bearing on the perceptions and interpretation of an event. 

Scientific research by various academics has established that memory cannot be suppressed and recalled, such as taking an item from a chest of drawers after many years of leaving it or collecting a car from a car park. 

Therefore, it is the narration of an event that was unconsciously influenced by the mind, creating a fictitious event that can be described as confabulation, but not necessarily out of malice.   

1. Confabulation as part of an advocate’s armoury: If confabulation can be established, it will go to the heart of the case. It will affect the witness’s credibility to the extent that the prosecution may have to review their case and take a view on it. Therefore, it is essential to consider different aspects of how and when it can be applied at this stage.
2. The difference between confabulation and discreditable evidence: Discreditable evidence can exist for various reasons, such as a mistake like mistaken Identity, mere forgetfulness, coming to the wrong conclusion because of external error, or deliberate lying out of malice. 

However, confabulation can be the result of an external intervention such as taking drugs, be it legal or illegal drugs.  As for external interventions, there are pharmaceutical products that can lead to hallucinations, and illicit drugs such as cannabis can lead to hallucinations. On the other hand, it could be internal, such as the witness’s health conditions as schizophrenia leading to hallucinations or mixing up a dream as being real.    

Irrespective of the course of the memory distortion, the person suffering from a false memory believes what he/she understands to be events to be correct; therefore, there is no malice. Meanwhile, the person who fabricates or embellishes the evidence acts with malice forethought to give a false account.  Consequently, it comes down to the credibility of the witness.  

The witness who fabricates or embellishes the evidence could be caught out by the inconsistencies and contradictions within their evidence or from external evidence such as cell sites, DNA, or evidence from other witnesses, and that is easily understood by anyone.

Those who are confabulating can be proved wrong through their evidence or external evidence. However, it’s much more difficult unless there is some external evidence. That is because the witness is convinced that the version of events they narrate is correct.

What you can adduce before the Jury. Trusting the credibility of a witness is the duty and responsibility of the tribunal of facts, whether the Jury is in the Crown Court or the justices in the Magistrates Court. This is jealously guarded in English Jurisprudence. Therefore, an advocate can expect that no expert evidence or witnesses can be called upon to testify as to the credibility of the witness; for example, “A” cannot be called as a witness to testify as to the veracity of witness “B”, merely because “A” says that “B” is a habitual liar.  The rationale is that members of the Jury and justices have life experience in assessing a witness’s credibility, which is the very purpose of their function in court.   To interfere with the tribunal’s right is to usurp its function; therefore, such evidence defeats the very purpose of the tribunal of facts. 

However, evidence can be called to justify (reason or why) one’s assertion that the witness is not credible. This could include expert evidence if it is something that an ordinary person cannot understand without such evidence or other witnesses to prove that “B” ‘s evidence is wrong or very doubtful.  

An understanding of the circumstances when where a witness can confabulate:  As humans, we all confabulate to understand what we witness in whatever form.  However, the degree to which we confabulate can differ from person to person. We generally confabulate to fill the gaps in memory or to reconcile and understand what we have witnessed. This is because we do not record the events like an inbuilt electronic recording system.  This is human fallibility; for that reason, the courts trust the tribunal of facts to decide on the issue of the witness’s credibility and deter direct evidence from being called against the witness by another person to discredit the witness. However, the opposing party is allowed to challenge the witness’s credibility by adducing evidence to show the reason (why) the witness is not credible.  However, ordinary human fallibility is not the only reason; other permutation and combination factors that can trigger a person to confabulate could be infinite.  

There is a school of thought that there should always be evidence that the witness must have had some counselling or therapy before one can start confabulating. This belief is primarily caused as a result of what took place in the USA; professor Elizabeth Loftus, in her book, gives examples and the history of how where vast numbers of people made false allegations because of therapists implanting ideas in their patients’ minds false allegations, then the patients developing horrific allegations against various people such as parents, and others who were responsible for looking after the complainants when they were young. In her book Memory Illusion, Dr Julia Shaw discusses how easy it is to implant an idea and allow the person to cultivate a story that can be proved wrong. Similarly, it is a known fact some people make false confessions because of their health conditions and some because of drugs. Therefore, the author of this article would argue that, as lawyers, we should be very mindful that confabulation can trigger under various circumstances and for different reasons. However, it is not suggested that we should run the defence of confabulation, where we can identify some contradictions and inconsistencies. Therefore, what is proposed here is that we do not shut our eyes to the possibility of confabulation and carefully identify when and where there is the potential to argue the point. To this extent, our Jurisprudence can help us, which is explored as a tool in this article.

Cases where confabulation is most likely to occur: Several permutations and combinations of factors could trigger a person to labour under the false memory syndrome; a witness in any type of case can suffer from confabulation. 

However, there is more often than not room for confabulation in cases where the alleged incident has taken place away from the public eye. The primary reason for that would be that two parties to the alleged incident would have very different memories, perceptions, and understandings, allowing them to develop their evidence based on their perception of what is alleged to have happened. Therefore, the courts are left without being able to independently verify either account. 

Almost always, sexual activities take place between two people in private. Therefore, it is not unusual to have very different versions of events on a particular point, such as consent or even whether the alleged incidents did take place.  In a situation as private as a sex case, the witness, without realising, could regret later having had sex with a person or the circumstances. Consequently, to rationalise the events that took place, one may interpret those events as the witness later perceives them to be when, in fact, it was something very different. 

It could equally be how the allegation was extracted from the witness. It is common for some recipients of recent complaints to ask the witness suggestively if the alleged incident occurred, and the witness then agrees to the leading question. Thereafter, develop the narration of the events. The codes of practice for ABE interviews have laid down how to conduct an interview and the need to record pre-ABE interviews with the complainant. The purpose of the code is to deter leading questions and suggestions or affirmation of the witness’s evidence or even not to ask the same question repeatedly. If not, the witness could adopt the suggestions and change the account, thinking the witness is expected to give a different answer.  Unfortunately, such safeguards are not in place in a domestic or social setting.  In the absence of safeguarding facilities, room for memory corruption is obvious, albeit it may not be deliberate on the part of either party in the conversation. The situation can develop further when there are other intervening factors, which are discussed below.

The material that you would need to establish: What needs to be secured from the Crown will depend on the facts of the case. Therefore, it is challenging to prescribe precisely what should be asked.  As a rule of thumb, the following material could be of use:

1. Many do not advance the defence of False Memory syndrome because of their lack of knowledge and lawyers’ fear of being shot down in public. Therefore, it is important to understand the concept.
2. Medical notes and reports are essential.  In particular concerning mental health records to identify illnesses, the medication, and any therapy as well as compliance, self-help material that was considered or self-prescribed medication. Details of any drug or alcohol consumption. 
3. Details of any trauma suffered by the witness.
4. Any previous allegations that were not pursued, particularly of a similar nature, including their Statements and crime reports.
5. School and Social services reports.
6. If the prosecution papers reveal that the witnesses claim the complainant cannot be believed, seek clarification as to why that is
7. Notes of the Pre-ABE Interview: Check the ABE interview against the code of practice. 
8. The details of the circumstances in which the complaint was made, along with any notes or recordings of the complaint being made.
9. Ask the witness whether he/she is willing to be assessed by a defence expert(s)

Section 41 YJ&EA applications: Section 41 applications should be made where appropriate, and they will be carefully scrutinised by the court. Such applications should be made sparingly. Secondly, a section 41 application could be to shoot the defence’s foot unless the defence case is that the complainant has mixed up an allegation against another person and the defendant or similar circumstances.

Application for Bad Character: Bad Character is defined as “Reprehensible behaviour”. Therefore, there need not be any convictions, cautions, warnings and the like. As the definition is very wide, any previous allegations that were NFAd or not pursued through evidence lying and fabricating should be the subject of a Bad Character application.  Higher the number of reprehensible behaviours by way of false allegations or unsubstantiated or where the witness can explain why they say that the complainant cannot be trusted on oath, the chances of persuading the Crown to take a view on their case would be that much greater.   However, be mindful that your client’s Character may go in.

Instructing the experts and who is needed: Depending on the facts of the case, the following types of expert witnesses may be required:

1. A psychiatrist with suitable experience should consider the medical notes and reports and understand the types of medication for illnesses; comment on the medication dosage and describe characteristics as well as the severity of the disease, compliance with the medication administration, and the consequences of non-compliance. Further, the expert witness should be asked if the witness needs to be seen for an assessment. If the witness takes drugs and or alcohol, would it make a difference when taking the particular medication?  Finally, to comment on expert evidence that the Crown may produce as part of their Disclosure obligations.
2. Forensic psychologists should be instructed on where therapy or counselling has been provided or where self-counselling was undertaken by the witness.  The expert witness should be asked to comment on the suitability of those who conducted the therapy/ counselling and the methodology and record-keeping.  As part of the expert evidence, they should be asked to express an opinion of the witness’s suggestibility to consider if the witness was influenced by others. 
   
   
   
   
3. Expert on False Memory Syndrome:  Instructing an expert on false memory syndrome would be desirable. The witness should be provided with all the material that the expert needs. You may not call the expert witness, but having the expert report can enhance the defence case as the report can give pointers where to cross-examine the witness. 
4. A Toxicologist should be instructed where drugs and or alcohol are mixed with medication.  The expert should comment on the effect of the cocktail. It may be that the results of that report should be provided to other experts to consider as part of further evidence to do their work.
5. Intermediaries “are not Experts”: where there is any suggestion that the witness has communication difficulties, an Intermediary assessment should be made. It should be argued that Intermediaries are not expert witnesses when they assess a person to establish whether a witness needs the assistance of an intermediary to enhance the understanding and communication in the case. However, in this instance, the purpose of instructing an intermediary (unless that is already done by the Crown) is to establish whether there were any communication and or understanding difficulties on the part of the witness. The rationale is that it may be a simple miscommunication or a misunderstanding on the part of the witness.  Consequently, the suitably qualified intermediary can act as an expert, so they should be instructed.

Challenging experts: The Crown may produce its expert report in rebuttal if the defence introduces the type of material addressed here. Even if their expert is highly qualified, care should be taken.  It is not unheard of for the Crown to produce evidence from the Consultant who has been treating the complainant.  

The defence and the court should not be troubled by the expert’s qualifications. It would be an issue whether that witness comes within the definition of an independent expert.

The author of this article was instructed after a conviction for rape and child abuse. In that, the Crown had relied upon expert evidence from the complainant’s consultant psychiatrist. The single Judge and the Court of Appeal allowed the appeal on the basis that the purported expert witness for the Crown was not an expert witness for these purposes as he was not independent.  As a point of law, this issue should be addressed with the trial Judge. 

Discretionary corroborating warning: In our jurisprudence, the need to have corroborating evidence has been abolished. However, it does not mean that it is prohibited to administer a discretionary corroboration warning. Given the nature and sensitivity of a case of this nature, it is very likely that the trial judge would accede to an application for the discretionary corroborating warning to be given as for the case Mckunjula.

Possible Directions to the Jury: The Crown Court Compendium has suggestions for the trial Judge to use. However, in his article, Anthony Heaton-Armstrong argues that they do not go far enough. It is customary for the trial judges to canvass the points to be addressed in the “route to verdict” with the trial counsel. Therefore, there is an opportunity to have input from the Bar in the Directions to the Jury, and that opportunity should be taken to tailor the directions to suit the case at hand.

Appeals to the court of appeal: The author of this article was instructed to appeal the following conviction. The issue of confabulation appeared not to have been raised at trial. However, a large body of evidence was provided, and various citations were primarily from the academic works of Professor Luftas, Dr Shaw, and Professor McNally. 

The Learned Single Judge granted permission on at least two grounds, one of which was the material provided to the court at the appeal stage. The CACD allowed the appeal without considering the issue of confabulation but relying on the alternative ground.

Again, on another occasion, the author was instructed to act for an appeal, where the sole ground of appeal that was submitted was that the Learned Trial Judge leaned in favour of the prosecution by criticising the defence counsel’s conduct of the case in the presence of the Jury. Therefore, the Learned Judge undermined the defence case. The Single Judge refused the appeal, but the full Court of Appeal allowed the appeal to the Court of Appeal. 

At a pre-appeal hearing, the CACD was provided with submissions on the issue of confabulation.  The CACD encouraged the counsel to pursue the original grounds of appeal and abandon the new submissions on confabulation.

The author of this article maintained both limbs of the appeal. However, the CACD rejected the notion of confabulation and the original grounds of the appeal.

Although the anecdotal evidence is very limited to form a firm view, it appears that there is great reluctance on the part of our jurisprudence to accept the concept of false memory syndrome, fearing that it could erode the independence and function of the tribunal of facts.

Therefore, we should consider turning our jurisprudence on its head to construct an argument to present the defence based on false memory syndrome.

How to construct the argument- the test in our jurisprudence: Success is the failure turned inside out, and every action has an equal reaction. It is argued here that maxims are correct. Therefore, this article will say that the answer lies in the leading Judgement of Lord Ackner in the case of Andrews in identifying if a statement can constitute a Res Gestae.  It is submitted that the false memory syndrome is the mirror opposite of Res Gestae.

The logic of this argument is simple: Five questions must be satisfied in the Andrews case, which is still good law. The opposite of those questions should apply to determine whether the evidence in the present case can establish the converse of the criteria in the Andrews case on Res Gestae. 

The mirror image of the five criteria in Andrews:

1.            At this juncture, this argument is advanced as follows:

12. Good reference material:

Few practitioners have written books and articles covering this topic. As a starting point:

1. The sexual offences Law & Practice by Rook Qc & Ward CBE 
2. Anthony Heaton-Armstrong et al. have produced several books and articles which are very informative; they include:

• Analysing Witness Testimony
• Witness Testimony
• Witness Testimony in Sexual Cases
• Confabulation article on CLR 

3. The Memory Illusion by Dr Julia Shaw
4. The Myth of Repressed Memory by Professor Elizabeth Loftus
5. Remembering Trauma by Professor Richard J McNally
6. Some articles can be obtained from the British False Memory Society

Ravindra Chandrapala, Esq

Member of the Honourable Society of the Inner Temple

Barrister and the founder of Armchair Criminal and Seeking Justice