Published June 2020

In criminal proceedings in Aotearoa New Zealand there has been an increase in applications to admit expert evidence about memory, most commonly by defence counsel.
Almost all these cases have involved allegations of historical child sexual abuse. Memory
evidence has been admitted in some cases but deemed inadmissible in others. Thus, memory expert evidence may be regarded as contentious in our courts – as it is in courts in similar commonwealth jurisdictions. This project arose out of concern that the nature of memory expert evidence offered to the courts exaggerates memory fallibility in relation to sexual
violence complaints and that the research cited in support lacks relevance or ecological validity. At issue is whether jurors need educating about memory, whether memory evidence
represents settled science and/or whether memory witnesses inappropriately offer opinion about the credibility of witnesses. In Part One we describe the relevant legislation and case
law in New Zealand, and case law in other commonwealth common law jurisdictions. We then examine the requirements for expert evidence as set out in the Code of Conduct for Expert Witnesses (Schedule Four, High Court Rules) and discuss memory expert evidence in relation to these rules. In Part Two we summarise the opinions commonly given by memory expert
witnesses in our courts and describe the studies they cite in support. We observe that briefs of evidence cover similar topics regardless of the case or the court for which they are prepared.
Topics include lay public knowledge about memory, then the specific memory topics that
have been addressed in briefs of evidence: eyewitness identification and transference, false memories from post-event information, imagination inflation, false memory implantation,
memory fallibility in personally experienced traumatic events, ‘recovered’ memory, and children’s memory reports and suggestibility. We consider the potential implications for
victims/survivors of sexual violence and child sexual abuse should memory evidence of this nature be more widely accepted in our courts. (Authors' abstract). Record #6778