Eye-Witness Testimony

  • April 01, 2015
  • Joan McEwen

Memory manipulation and implantation

One can only hope that it is, by now, a truism that evidence of eye-witness identification is inherently unreliable. Far less understood are the notions of “memory manipulation” and “memory implantation,” yet both have the potential of converting a wrongful conviction from a “miscarriage of justice” into an “abortion of justice.”1

Joan McEwenIn 1983, six of the eight women who claimed to have been sexually assaulted by wrongly-convicted Ivan Henry identified him as the culprit based on a biased, hopelessly flawed police lineup. Later that year, Henry was declared a dangerous offender. Behind bars for 27 years, he was acquitted by the BC Court of Appeal in 2010 on the basis of faulty identification evidence.2

The six women were not being dishonest; they actually believed that Henry was the perpetrator.

When I asked memory expert Elizabeth Loftus how so many people could be mistaken, she said: “Witnesses do not encode all the information that a videotape does. Instead, memory rapidly and continuously decays. A witness’ retrieval of stored ‘memory’ can be impaired and distorted by a variety of factors, including suggestive interviewing and identification procedures conducted by the enforcement personnel.”3

In the Ivan Henry case, the VPD conducted, unbeknownst to the defence, lengthy “re-interviews” – including discussion of the lineup photo – shortly before the preliminary hearing. As well, a suppressed police document refers to witnesses having been exposed to photo lineups, physical lineups and so-called “brainstorming” sessions; as well as working with “several police artists for the purposes of drawing a composite of this person.”

Given this veritable petri dish for the cultivation of memory distortion – both peer and police/state contamination – small wonder that, at trial, the complainants’ (once variegated) descriptions of the attacker had more or less coalesced.

Regarding memory implantation, we now know that the lineup photo deemed by those same six women to be “accurate” was anything but. Asked to comment, leading forensic photography expert Greg Stutchman told me that the lineup photo produced at the preliminary hearing is a “composite of images,” and that the photo represented by the prosecutor at trial to be but an enlargement of the first photo, was in fact a re-doctored version thereof – re-doctored in order to hide the first doctoring.

Once again, how could six women honestly believe they’d seen something they had not?

In June 2010, Slate Magazine published an article about an experiment in which photos were fabricated to depict events that never happened – e.g., President Obama shaking hands with Iranian president Mahmoud Ahmadinejad. Though it had never happened, twenty-six percent of the participants remembered the event.4

Experts say that, though the average rate of false memories is about 30%, when visual images are used to substantiate the bogus memory, the number can increase.

Seeing is believing, even when what you’re seeing is fabricated.


  1. Michael Naughton, The Innocent and the Criminal Justice System: A Sociological Analysis of Miscarriages of Justice (Basingstoke, UK: Palgrave Macmillan, 2013).
  2. R. v. Henry, [2010] B.C.C.A. 462 (British Columbia Court of Appeal).
  3. Elizabeth Loftus, Eyewitness Testimony (Cambridge, MA: Harvard University Press, 1996).
  4. William Saletan, “The Memory Doctor,” Slate Magazine, June 4, 2010. slate.me/KyxWOV.

Joan McEwen is a lawyer, labour arbitrator and author of Innocence on Trial: The Framing of Ivan Henry