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It’s not uncommon for witnesses testifying in trials to experience memory problems, especially if alcohol or trauma was involved in the original event and also because of the passage of time, says Christopher Sherrin, an associate law professor at Western University in London.
Sherrin, who isn’t involved in the world junior trial and was speaking generally, says how the courts deal with memory loss depends on a number of factors — the most important being whether it concerns peripheral or central matters to the case, and then, whether the memory loss is accepted as genuine.
“To the extent that somebody forgets things that are not terribly significant to their overall evidence or to the live issues in a case, courts are more willing to accept that, forgive that and allow for that,” Sherrin says.
It gets more complicated if the memory loss is connected to crucial evidence because the witness becomes less reliable.
“If a witness can recount only part of an event or only pieces of an event, then there’s always a risk that the trier of fact will be receiving a misleading picture and might be led astray, even from the testimony of an entirely honest witness,” Sherrin says.
“If a court feels that a witness is feigning memory loss, in other words, they actually do remember but are claiming falsely that they do not, that can have a more significant impact on the assessment of their credibility.”