Juries aren’t mind-readers: The inconvenient psychology of jury trials

THE ONE-TIME MEDIA DARLING, roguish charmer and womaniser, Russell Brand is learning that times change. He has been convicted of one count of rape and three counts of sexual assault committed between 2004 and 2009. There is no time limit for prosecuting rape, and a delayed report does not in itself discredit an allegation. It’s accepted, reasonably, that trauma can delay reporting. In this case it took them up to nineteen years. And unhelpfully for Brand, the hedonistic image of the early noughties reads sleazy in 2026, which doesn’t help as his character was also entered into evidence.

The evidence was based on witness testimony. The inconvenient truth is that witness testimony relies on long term memory and long-term memory is unreliable. Memories aren’t replayed like videotapes. We like to think our memories sit in left luggage waiting to be collected. They don’t. They’ve been interfered with, rewritten and reshaped by new information. The memory replaying in your mind today isn’t necessarily the same memory you had ten years ago. Yet it can seem utterly convincing. We firmly believe what we think we saw. We aren’t necessarily lying when we describe our memories.

In a court of law, where the question is often “who do we believe?” between alleged victim and alleged perpetrator, a memory can seem entirely believable. It might be accurate. Or it could be wrong. And accepting the testimony of the more believable witness can be flawed: it does not necessarily establish whose account is accurate. Psychological studies have shown that memory has been found easy to alter over time.

The problem is that false memories feel real. The person describing them isn’t lying. They’re telling the truth as they remember it. But believing something happened and knowing it happened are not the same thing. And it doesn’t matter if what you are recalling is whether you went out by Gatwick or Luton, or if you loved or hated U2. It does matter if you are recounting a crime.

Another inconvenient truth is that memory accuracy can decrease simply through discussions with others about an event. It changes when we talk about it. Memory conformity means that the more we discuss an event with other people, the greater the risk that information supplied by other people becomes mixed together until we claim parts of it as our own. Before long, we can struggle to remember whether we witnessed something ourselves or simply heard about it later. Errors spread. A detail mentioned by one witness can end up woven into the recollections of another. Years later, everyone may be acting in complete good faith while remembering the same event slightly differently from how it actually happened. It’s the reason the police take your statement on your own as quickly as possible before your memory becomes contaminated by other people.

In the Brand case, the accusers spoke to others to recount their experiences. Those people are also entering evidence about what they remember of those discussions. Any errors might not be intentional. They aren’t lying. They believe it. If your defence relies on convincing someone that a decades-old memory replaying in their mind may be inaccurate, good luck with that. It gets even harder if some errors are accepted because of the length of time elapsed. How do you defend yourself against an account whose inconsistencies may themselves be explained away?

Human beings are terrible at separating character from evidence. Brand’s character was on trial. But being a terrible person is not a crime. And when we’ve decided what sort of person someone is, we start seeing everything through that filter. Like on BBC’s The Traitors, people will give you the benefit of the doubt if they like you more. And if we think someone is a scoundrel, every allegation sounds a bit more plausible.

In Russell Brand’s case, his character was in evidence during trial. His fame lets us judge his character. Famous people shouldn’t be given leniency by courts, of course. But neither should out-of-favour celebrities be rounded up and given a kicking by the court system. Would allegations dating back to 1999 lead to court action if the accused were Joe Public rather than Russell Brand? Would the same accounts of his character carry the same weight without the fame? I’m not convinced.