Memory and the Law
Spellman, B. A., & Weaver, C. S. Memory in the Law. Chapter for: M. Kahane and A. Wagner (Eds.), Handbook of Human Memory -- Vol. II: Applications. Oxford (Forthcoming)
Virginia Public Law and Legal Theory Research Paper No. 2020-56
62 Pages Posted: 9 Jul 2020
Date Written: July 6, 2020
Memory issues are well-known in legal trials that involve the reliability of eyewitnesses in criminal cases. However, the relevance of memory to law extends far beyond that context. We describe the importance of, and concerns with, different facets of memory in a range of legal doctrine and processes. For example, in product liability cases, witness memory provides key evidence, but such civil cases differ in both the content of the memories and the procedures used to elicit them. In intellectual property cases, memory for trademarks and potential cryptomnesia (unconscious plagiarism) may be used in assessing liability. In contracts and negotiations, parties’ memory may be useful, or not, when trying to make sense of the content of an agreement. Prospective memory, that is, remembering to do tasks in the future, is relevant to liability for actions as diverse as injury resulting from not following product warnings to forgetting a child in the backseat of a car. And neurologically impaired memory has consequences for attributions of blame and guilt. We end by providing brief reviews of some recent research on memory’s involvement in investigations and in courtrooms (particularly in the U.S.) including: eyewitness testimony, confessions, consequences of pretrial publicity and expert testimony, and the effectiveness of jury instructions for both disregarding evidence and improving juror decision making. Throughout we try to illustrate relationships between the law and different facets of memory described in this Handbook.
Keywords: Memory, forensic psychology, cognition and law, product liability, confessions, testimony, memory impairment
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