Delays in Access to Justice and Memories

Everyone is the poet of their memories. … But like the best poems, they’re also never really finished because they gain new meaning as time reveals them in different lights.

Richard Hell

The resolution of disputes does not always depend on the memories of parties or witnesses, but when credibility is at issue the memories of actions can be a critical part of resolving disputes. The more we learn about how memories are formed, and more importantly, how they are retained, the more we should have real concerns about the ability of decision-makers to assess credibility of testimony of events that happened years ago.

The way in which memories change over time is another way that delays in getting to a hearing on the merits of a dispute can lead to negative consequences for the administration of justice.

In a recent book, “Why We Remember“, Charan Ranganath, an American professor of psychology and neuroscience, unpacks some of the science of memory for the lay audience. It is a good overview of how memories are formed, how we access our memories, and what happens to those memories over time.

Ranganath first points out that calling memories “true” or “false” is a fundamental mischaracterization of how memories work:

… I like to think of memory as less like a photograph and more like a painting. Most paintings typically include some mixture of details that are faithful to the subject, details that are distorted or embellished, and inferences and interpretations that are neither absolutely true nor entirely false, but rather reflection of the artist’s perspective. The same is true of memory.

Memories … are neither false nor true — they are constructed in the moment, reflecting both fragments of what actually transpired in the past and the biases, motivations, and cues that we have around us in the present.

So, we must start with the premise that our recollection of events is imprecise from the very beginning. But what happens to our imperfect memories over time? Memories are subject to our own influences when we recall them, as well as the influence of others. This is why, over time, our memories become less and less reliable.

As Raganath notes, our memories are “not etched in stone; they are constantly changing as they are updated to reflect what we have just learned and experienced.” The act of remembering is not a passive replay of the past — every time we remember, we apply information from the present that can either subtly or sometimes profoundly alter the contents of our memories:

Consequently, every time we recall an experience, what we remember is suffused with the residue of the last time we remembered it, and on it goes; each step is one link in a neural chain, subject to edits and updates, so that, overtime, our memories can drift further and further from that initial event.

What is crucial from the dispute resolution perspective is that when a memory is revisited over and over, subtle alterations occur with each repetition. So, the longer it takes for a dispute to get to a hearing on the merits, the more degraded (and inaccurate) that memory becomes.

Our memories do not exist in a vacuum — they are influenced by those around us. This happens in family conversations all the time – when stories are told in conversation, those who were also there at the event being recounted will often “correct” the memory using their perspective. This can change the storyteller’s memories of the event. Ranganath says that the interactions with others (especially family and friends) can reshape memories and, “in some cases, lead us to fundamentally reshape the narrative”.

One would think that collective memories, or the reconstruction of events by a group, would lead to more accurate memories. However, studies have shown that the opposite is the case – those working in a group have worse memory performance than those working alone. This phenomenon is known as “collaborative inhibition”. There are a few reasons for this. If you are recalling events in a group setting, you may lose the thread while waiting your turn to speak. There is also a homogenizing effect, “filtering out the idiosyncrasies that make each of us remember things just a little bit differently”:

…we tend to remember the information that we are moved to share with the others and leave out that which is unlikely to resonate with them, thereby morphing our memories in a way that makes them align with those of the rest of our group.”

In addition, our memories become skewed toward those who dominate the conversation — either by being loud, or because of their status.

What is most relevant to the issue of delay in hearings is what happens to collective memories over time. Ranganath cites a study by Suparna Rajaram that showed that as people get repeated opportunities to recall information with group members, “they begin to converge on the same memories”.

The more we learn about memory and how it is formed, the more concerned we should be about relying on memories alone to support findings of fact. Delays in access to justice exacerbate this concern since memories degrade or change over time.

The simple solution is to have all hearings occur within a reasonable time. However, with the current levels of backlogs in our justice system (in the courts and in tribunals), it will be some time before we have reasonably quick access to justice.

What are some of the precautions we can take in the short term? We cannot tell witnesses to “not think” about events — the brain is not that easily controlled. This is known as the “pink elephant paradox”. Once someone tells you not to think of a pink elephant, you will start to think about the pink elephant.

We could require witnesses to write down their recollection of an event as soon as possible after a dispute arises. Contemporaneous notes are often used as evidence in hearings, and notes that are not contemporaneous but are closer to the event than testimony should also be given some weight (and should generally be preferred over testimony given years later).

In the absence of notes from a witness, a decision-maker can often reconstruct a witness’s recollections from other documents written at, or close to, the events in question. E-mails, memos and texts can often provide a more accurate picture of events than the testimony of that witness years later.

Although difficult to enforce, advocates could tell witnesses not to discuss the events in question with others, thereby reducing the opportunities for memories to be revised.

I’ll end with a short anecdote from my experience as an adjudicator. I was hearing a grievance about events that had happened many years ago, related to the denial of an allowance under a collective agreement. Although the consequences were not insignificant, the conversations and representations made at the time were not memorable. Given the passage of time, I suggested to the parties that we could simply rely on the documents and dispense with testimony. The parties insisted that credibility was an issue and that testimony was required. At the hearing, none of the witnesses had any independent recollection of the events leading up to the denial of the allowance. I ended up assessing credibility based on the documentary record alone. This is a reminder that oral testimony is not always needed to assess credibility.

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