By: Jim Taylor

Court processes ignore the way memory works


Pity Lynn Ellingsen. She may be a sex trade worker, a drug addict, a drunk, a psychiatric case, and a chronic liar. But for over a week, she was relentlessly grilled by the defence lawyers for Robert William “Willie” Pickton.

        Every statement that she has made to the police, or to the court, has been dissected for inconsistencies and contradictions.

        "You lied to police on numerous occasions," defence counsel Rick Brooks charged.

        "Yes," Ellingsen admitted. "Every addict does."

        As Brooks paraded a seemingly endless list of inconsistencies, Ellingsen agreed that her memory is “a hazy fog, blurred by years of cocaine and alcohol abuse,” in the words of a Canadian Press report.

        Asked why she gave so many variations of the same incident in more than two dozen police interviews, Ellingsen replied: "I try to forget. It’s a nightmare for me… I’m trying to put this behind me."



The Pickton murder trial

Pickton is accused of murdering six women, all from Vancouver’s downtown eastside, and of disposing of their bodies either on his pig farm or in the rendering plant to which he delivered unwanted pig parts. A further trial on 20 more counts is expected later.

        Investigators sifted 14 acres of Pickton’s pig farm in Surrey. So far, some 150 forensic experts have identified the DNA in body fragments of 26 different women.

        But Ellingsen is the first witness in this six-month-old trial to connect Pickton directly to the murders. She testified that on a specific day in 1999 she saw Pickton butchering a woman’s body in his slaughterhouse the same way he butchered pigs, with the body slung from an overhead hook.

        Later she identified the woman as Georgina Papin.

        But a document from St. Paul’s Hospital in Vancouver indicated that Papin was alive following day.



Building by associating

 Does that invalidate Ellingsen’s testimony?

Hardly. I think the court process expects too much precision from human memory.

        Could you, for example, identify with absolute accuracy what you were doing eight years ago?

        I have kept a journal for 43 years. But not even my journal could guarantee accuracy, because I sometimes get behind. When I catch up, I don’t always care whether something happened on Monday or Tuesday.

        Sometimes I fail entirely to record significant events. I discovered that I had omitted a neighbour’s untimely death only when I checked my journal on his first anniversary, to refresh my memory of the tragedy.

        I can remember exactly where I was, and what I was doing, when I first heard about the assassination of John Kennedy, the death of Princess Diana, or the collapse of the World Trade Center. Because those provide a public event to pin my private recollections onto.

        Communications guru Eric McLuhan describes memory as “an act of imaginative re-creation.” You start with one element, and associate other details with it.

        Personally, I tend to connect memories to cars, children, or pets. Some people remember mainly their successes; others, their slights. Some recall words and phrases; some, colors or tastes; still others, faces or gestures. My mother-in-law re-created her memories around the recipes she served.



Truth in inconsistency

Whatever it is, that central memory provides a base, a foundation, on which to add related memories—who was there, what they said, how they acted, the setting, the weather…

        If Lynn Ellingsen’s testimony were utterly consistent, I would suspect her of memorizing a prepared statement. The inconsistencies and apparent contradictions suggest that she is genuinely rooting through the attic of her mind, and bringing forward as best she can the artifacts that she finds there.

        But the law—and the mass media—do not allow for the often whimsical ways our minds work.

        So in the Conrad Black trial in Chicago, David Radler and others were expected to recall precisely where they were, what they said or did, and what they read in documents they might or might not have seen.

        Any confusion or uncertainty was presumed to prejudice their accuracy.

        In Justice John Gomery’s inquiry into illegal transfers of federal funds to Liberal party loyalists in Quebec, an evasive “I can’t remember” was often portrayed by the media as an admission of guilt.

        By those standards, not even the Bible would stand up in court. The four gospels constantly disagree on details. Even when Matthew, Mark, and Luke tell the same story, they provide different details or alternate wordings. John’s gospel reverses much of the chronology, and includes variants that the others do not substantiate.

        But what else would you expect, when the stories were not written down until at least 30 years after the fact?

        And yet they agree on the central story—about a person who changed people’s lives by his teaching and example, who was tried and executed as a common criminal, but whose influence could not be extinguished by death.



Remembering the last time

Why then should our court system expect a witness whose brains have been addled by cocaine and booze to regurgitate a fully coherent set of facts?

        Memory doesn’t work that way.

        It may be true that memories are stored forever within the brain’s cells. The late Dr. Wilder Penfield discovered that stimulating portions of the brain could evoke powerful memories, so real that his patients felt they were reliving their earlier experiences.

        But short of performing brain surgery in the courtroom—and knowing exactly where to locate those neurological triggers—courts need to be realistic about how our memories work.

        Ironically, the act of grilling a witness affects the accuracy of memories. As each question probes some element that has not yet been properly revealed, each new detail dredged from the past glues itself onto the current blob of memories. The next time the witness is asked about that incident, she remembers not just the original event but what she remembers remembering about it last time.

        Little wonder that some details fail to harmonize fully.

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Copyright © 2007 by Jim Taylor. Non-profit use in congregations and study groups permitted; all other rights reserved.
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