Trauma, Memory and the Credibility of Victim Testimony: Rethinking Judicial Assessment through Forensic Psychology

Trauma and Memory: Why Remembering Is Not Always Linear

The traumatic incident may itself have an effect on how the incident is recorded, stored, and eventually recalled from the memory. Unlike other incidents, a traumatic incident can be recalled through fragmented memories, where some facts of the event come to the fore while others remain vague or are even forgotten. Hence, the order of telling the story need not be the same as the actual sequence in which events took place. The inconsistency in recall is no reason, by itself, for deception. Apart from the effect of a traumatic event on the process of recall, it may also affect how the experience is articulated. There could be delay in revelation, withholding of facts, variation in detail, non-expressiveness, or inability to articulate the experience following a trauma. Nonetheless, trauma cannot be used as a universal justification for all the inconsistencies. A line should be drawn between the variations that can be expected due to traumatic memory and those which have an impact on the essence of the claim.  Traumatic memory is thus essential for the proper interpretation by the courts, but it cannot substitute the process of the evaluation of evidence by the courts. Psychology may help in explaining the reasons why a certain pattern of memory recall or behaviour may occur, nonetheless, the final credibility judgment will always depend on the evidence itself.

Victim Behaviour Under Scrutiny: The Court’s Observation and Trauma Response. 

The traumatic event might have an impact on the manner in which the event is narrated, archived, and finally retrieved from memory. Contrary to other events, the traumatic event can be described by means of fragmented memories in which some facts about the event become clear while others become obscure or even forgotten. In this regard, the sequence of the narrative does not necessarily follow that of the sequence of events as they occurred. The inconsistency in remembering the facts is not by itself a sufficient reason for deception. In addition to the effects of the traumatic event on remembering the event, it may have a bearing on the articulation of the experience as well. Delay in disclosure, withholding of facts, variations in details, lack of expressiveness or failure to articulate the experience after trauma are among these factors whose importance lies in legal proceedings where issues of consistency and coherence are significant.

 Trauma becomes important here because there can be instances where victims react in ways that do not fit the common assumption of fear and resistance. In some cases, delay in reporting could be because of fear, intimidation, social stigmatisation, or the difficulty of approaching the law enforcement authorities. Nonetheless, a trauma-informed perspective does not mean ignoring the requirement of evidence review since there are material issues in the testimony that need to be addressed.

Credibility in the Courtroom: Inconsistency Becomes a Legal Question

The credibility of victim testimony in deciding sexual offences cases needs evaluation. Though consistency is one of the factors in assessing the credibility of testimony, every variation cannot be considered as an indication of lack of credibility of the statement. The context of recording the statement, the time elapsed between the occurrence of the act and the statement, and the effect of trauma must be taken into consideration.  A line must be drawn between the variations that do not matter and those which have a bearing on the credibility of the statement. Some variations in regard to peripheral facts may take place in human memory and cannot detract from an otherwise credible statement. According to the Supreme Court in Nirmal Premkumar & Anr. Vs. State represented by Inspector of Police, almost accurate memory of every fact is not expected from the victim of sexual offences, while material contradictions may have some bearing on the credibility of the statement.

On the other hand, trauma cannot be used for overlooking the substantial contradictions. The issue of credibility must be decided taking into consideration the overall testimony and the importance of the variations therein. Trauma could be one of the frameworks through which differences in testimonies could be explained; but in the end, it would be the evidence and standard of proof that would define the verdict. 

Forensic Psychology and Law: Understanding Testimony without Presumption 

Forensic psychology could be one way to interpret the effects of trauma on memory and behaviour in the context of the judiciary. This psychological knowledge could help judicial bodies understand the reasons behind the fragmented memory, delayed disclosure, or different emotional reactions after suffering a trauma. In that way, trauma-induced responses would not be mistakenly considered as signs of untruthfulness. However, the psychological knowledge will not be enough to establish the truthfulness of a specific testimony. The presence of trauma does not automatically prove the occurrence of the act in question, neither does the absence of any observable trauma deny it. Therefore, forensic psychology has to be used as a complement to judicial understanding, and not as a replacement of evidentiary assessment.

This means that an equal consideration of psychological evidence in combination with testimony, surrounding circumstances, and other evidence is necessary. Such an approach will make it possible to understand the effects of trauma without prejudice to the principles of impartiality and proof. Above all, the value of forensic psychology is that the role of the court is not to decide whether the truthfulness of the victim can be established, but rather to ensure that the psychological reaction cannot be misinterpreted. The concept of trauma can question the validity of our views of memory and behavior, without making decisions about the credibility, which is the job of the judicial system of evidence.

Reevaluating the Judiciary’s Approach to Assessment: From Presuppositions About Victim Behaviour to Evidence-Based Reasoning

It is necessary for judges to understand the nature of testimony that a traumatic experience entails, but this understanding should not be based on any assumptions regarding how the victim is expected to remember, disclose, or respond to the event. In other words, it is important that more emphasis be put on the nature of the testimony at hand, the inconsistencies present, and their importance in respect of the core issue. It does not imply that the standard of proof must be lowered. It is only implied that evidence needs to be evaluated without allowing one’s expectations of behaviour affect his/her evaluation of credibility. Psychological aspects relevant to the case may also be viewed as parts of the circumstances, whereas material inconsistencies and all the other issues concerning evidence must be taken into account as well. There must be a clear-cut difference made between trauma-informed analysis and presumptions of trauma. A testimony must not be discredited or accepted just because of the presence of inconsistencies or mention of trauma. It follows, therefore, that the goal ought to be one of going from a behavior-centered presumption to an evidentiary evaluation. An evaluative process of this nature will take into account the psychological nature of trauma without compromising the accused person’s right to a fair and unbiased judgment, thereby preventing credibility from being undermined by either an unreasonable expectation of behaviour consistency or trauma.

The inconsistencies in memory and behaviour associated with trauma should not, in themselves, be considered a reason for lowering the credibility of victim statements. Conversely, trauma should not be viewed as a basis for automatic acceptance of the testimony as credible. The credibility of testimony should ultimately be assessed based on its analysis along with the context in which it was made and the available evidence. In this situation, forensic psychology could aid in evaluating the way trauma impacts memory, disclosure, and behavior. However, this function should have an interpretative, but not a determining nature. This is why a trauma-informed judicial procedure would not entail any specific requirements regarding the victims’ behavior, nor would it diminish the standards of proof for the accused person. The correct strategy should be one where trauma is understood without assumption of truth and evidence is analysed without assumptions of inaccuracy.

Prajukta Mukherjee 

National Law University Tripura