It's funny, as I was starting this article, I had Bob Seger's Night Moves playing and the lyrics "I remember, I remember, I remember, I remember" at the end of the song seemed ominously fitting.

I came across a fascinating article this week online. Northwestern University posted it back in 2012, so there may be newer research that exists now. The article is called "Your Memory is Like the Telephone Game: Each time you recall an event, your brain distorts it" and you can read the full article here. The article summarizes a study published in the Journal of Nueroscience.

Basically, the researchers found that when you remember an event, the connections in your brain change in ways that can result in you remembering the event differently the next time. In the study, the lead author Donna Bridge wrote: "Your memory of an event can grow less precise even to the point of being totally false with each retrieval."

As a criminal defence lawyer, I can appreciate that by the time a witness attends court to testify, he or she may have recalled the event dozens of time. When something interesting or tramautic happens, most of us tell our friends or family about what happened. Partly, it is how we cope with things that happen to us but we also just really like telling stories. Each time you tell the story of what happened, you are retrieving that memory. For complainants, witnesses, and victims, they have to remember and tell what happened many times. First, to the police, and then to the Crown Attorney or Victim Services, and then to a preliminary hearing judge, and then to a trial judge. Nevermind all the times they share their story with their friends or family.

"Maybe a witness remembers something fairly accurately the first time because his memories aren’t that distorted,” [Donna Bridge] said. “After that it keeps going downhill.”

Bridge concluded that human memories are always adapting and that remembering an event in a new environment or in a different mood can cause the memory to integrate that new information. To me, it seems like this research is telling us that each time you remember an event it is like photocopying the last photocopy. The more times you recall the event, the less accurate it becomes - even more so if the environment you are in while recalling the memory or you mood is different. In a courtroom, a witness testifying may be nervous but he or she was likely concerned or even scared when they witnessed or experienced an incident.

What I think we can learn from this is to try and verify what witnesses testify to as much as possible and be skeptical sometimes of what a witness thinks they remember while testifying.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

When an accused person testifies in their own defence, the judge must consider the legal test established by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. R. v. W.(D.) was about the proper instructions a judge should give to a jury before they begin their deliberations, called a jury charge. The Supreme Court held a proper jury charge where an accused testifies may be:

First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

There was recently a case from Winnipeg where Queen’s Bench Justice Chris Martin had to assess the credibility of the witnesses who testified and of the accused. Here is a link to the article: Man found not guilty of gunpoint home invasion. Justice Martin questioned why the stories from the witnesses change so much and he concluded he could not place a lot of value about what they were testifying to in court. As for the accused himself: "Generally, he cannot be described as a trustworthy individual," said Martin. "I neither believe Mr. Kolba’s alibi evidence, nor does it raise a reasonable doubt." Which means Justice Martin concluded the first and second parts of the test in R. v. W.(D.) were not satisfied. Justice Martin ruled it would be unsafe to believe anyone’s story and acquitted the accused.