What do you actually remember? Is our memory perhaps already proving unreliable in court?

Memory as a construct 

It is precisely these kinds of questions that occupy Jeanne Gaakeer. As professor emerita at the Erasmus School of Law and a former judge at The Hague Court of Appeal, she knows the courtroom from the inside, both as an academic and as a judge. In her recently published article Down Memory Lane: (In)fallibility of Memory in Court, she draws a clear conclusion: memory is not a video recording, but an active process of reconstruction, and legal practice systematically underestimates the reliability of that process.  

Every time you recall a memory, you reconstruct it. Errors can creep in during this process: due to the time that has elapsed, due to emotions, due to what others have told you, or due to the way in which you were questioned. “Don’t be too quick to be categorical,” says Gaakeer. “Allow for doubt. If someone says ‘I remember it all very clearly’, as a judge you mustn’t jump to conclusions, but first set that statement aside and ask yourself: could it be true? Do I find it convincing?” 

That sounds logical, but in practice it is more difficult than it seems. As Gaakeer explains, “legal professionals, just like everyone else, are also prone to what is known as confirmation bias: the unconscious tendency to seek out evidence that confirms what you already think.” She illustrates this with an example: “Someone shouts ‘stop the thief’ in a supermarket. Who do you chase after? Most likely the person who looks the most ‘suspicious’, even though at that moment you have absolutely no idea what has happened.” 

Trauma clouds the memory 

It is not just preconceptions that play a role. Emotion, stress and trauma can also profoundly distort memories, and this has direct consequences in the courtroom. Victims of serious crimes, abuse or armed conflicts who sometimes give evidence years later may have memories that are incomplete or distorted as a result of trauma. Not because they are lying, but simply because that is how trauma works. Recalling a memory is then painful and fragmentary, and the act of testifying itself can be re-traumatising.  

“That makes the assessment of such statements extremely complex. An inconsistent account need not be a sign of unreliability; it can also be a sign of what someone has been through,” says Gaakeer. 

Leading questions can lead to false memories  

The way in which questions are asked also appears to be of great importance.   Gaakeer explains: “Leading questions, questions that already imply a particular answer, can cause people to ‘remember’ things that never happened. This is particularly true for children and people with cognitive impairments.” Gaakeer describes how even interrogation techniques intended to uncover the truth can backfire. “They can even lead people to confess to something they did not do.” 

The story behind the statement  

This is where Gaakeer’s own academic perspective comes into play, setting her research apart from purely psychological work. In addition to her legal background, she specialises in narratology: the discipline that studies how stories are constructed. “And that lens,” she argues, “is also indispensable in the courtroom.”  

After all, a witness statement is not merely a list of facts; it is a story. And stories have a structure: a timeline, a logic, a narrative style. If someone has testified about the same incident on multiple occasions, the question is not only what was said, but also how. Do the time references add up? Are there contradictions between earlier and later statements? Do certain details become increasingly elaborate as time goes on? 

Lessons for legal practice  

The insights described by Gaakeer are not new. As early as the nineteenth century, psychologists had established that memory is unreliable. “Yet legal practice seems to be slow to take this knowledge on board.” Gaakeer points to a structural problem: “Dutch criminal law is heavily focused on a fixed set of legal means of evidence. Within this framework, there is little scope and insufficient attention paid to the question of how that evidence was obtained and what psychological factors are at play for a witness or suspect.”  

Added to this is the fact that judges and police officers are too busy. “There is a lack of both money and time in the judicial system,” says Gaakeer. “Judges and court clerks are chronically overworked. Further training in memory psychology takes time, and that time is simply not always available.” 

Leave room for doubt  

Gaakeer calls for a concrete shift. “Make knowledge of the fallibility of human memory a fixed part of legal training, from day one, for lawyers, prosecutors and judges alike. Not as an optional subject, but as a core subject.”  

But training alone is not enough. What Gaakeer ultimately advocates is a different mindset in the courtroom: “less self-assurance, more awareness of one’s own blind spots. Ask follow-up questions. Pay attention to how someone tells a story, not just to what they say. And above all: leave room for doubt.” 

Her message to everyone who works in the courtroom is ultimately simple: “Absolute objectivity is an illusion. Allowing for doubt is not a weakness, but rather a prerequisite for a fair trial.”