CHAPTER 41
CLINICAL STUDIES DEMONSTRATE how powerful eyewitness testimony is and how readily memories can be contaminated. As the renowned memory expert Elizabeth Loftus, a professor at the University of California, Irvine, has said,
A pointing finger of blame has a powerful hold on even the most informed and intelligent of juries . . . The danger of eyewitness testimony is clear: Anyone in the world can be convicted of a crime he or she did not commit . . . based solely on the evidence of a witness who convinces a jury that his memory about what he saw is correct.
Why is eyewitness testimony so powerful and convincing? Because people in general, and jurors in particular, believe that our memories stamp the facts of our experiences on a permanent, non-erasable tape, like a computer disclosure or videotape that is write-protected.1
“Memories don’t just fade,” Loftus said at a May 2012 lecture sponsored by Simon Fraser University in Vancouver, “they also grow. What fades is the initial perception, the actual experience of the events. But every time we recall an event, we must reconstruct the memory, and with each recollection the memory may be changed—coloured by succeeding events, other people’s recollections or suggestions, increased understanding, or a new context.”
Loftus breaks down the process of remembering into three stages—acquisition, retention, and retrieval. At each stage, she says, information offered as “memory” can be distorted, contaminated, even falsely imagined:
The witness does not perceive all that a videotape would disclose, but rather, getting the gist of things, constructs a “memory” on “bits of information . . . and what seems plausible.
The witness does not encode all the information that a videotape does. Instead, memory rapidly and continuously decays. Retained memory can be unknowingly contaminated by post-event information, and the witness’s 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.2
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AFTER HENRY’S ARREST at the end of July 1982, Detective Harkema conducted what he called “re-interviews” of the lineup attendees, each one lasting two to three hours. Hidden from Henry at trial was, first, that Harkema also re-interviewed Miss Ramirez, who had not been at the lineup; and, second, that he had shown the interviewees the lineup photo.
In addition to those re-interviews, the suppressed document entitled VPD Surveillance Project MCS #82/04 lists other steps taken to facilitate positive identification:
Every witness and victim identified as having any part in each (of 21 rapes) has been interviewed personally by the original-assigned detective team.
They have also been exposed to photo lineups, physical lineups, and so-called “brainstorming” sessions.
The RCMP witness-viewing system of rape or indecent assault suspects has been utilized extensively as have several police “artists” for the purposes of drawing a composite of this person. Every conceivable similarity in the victims’ backgrounds has been followed up with nothing conclusive to report.
Every rape has been detailed on an MO chart with the similar facts compared. There is strength in this comparison because, on close examination of these charts, it is very clear that the same person is responsible for these assaults.
It’s clear, then, that the complainants were exposed to a veritable petri dish for the cultivation of memory distortion—both complainant-to-complainant and police/state contamination. No wonder the differing descriptions of the attacker first given by the six lineup attendees evolved, over time, into similar descriptions.
Initial descriptions of the attacker’s hair colour morphed from very “dark,” “black,” “dark brown,” “coppery-tinged,” “coarse brown,” and “blonde to light brown”—into “brown with reddish highlights.” The assailant’s voice, once variously described as sounding American, having a slight French accent, having a slur/accent, whispering and sounding nervous, came to be described by everyone as low and gruff.
In 2010, the Court of Appeal concluded that this pretrial process of identification was so “polluted” as to render in-court identification highly questionable and unreliable. All ten verdicts, said the court, were unsafe—they were not verdicts that a properly instructed jury, acting judicially, could reasonably have reached.
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IN 2001, HARKEMA wrote a report for Inspector Barbara Morris. The small excerpt to which I am privy makes for riveting reading. Harkema writes that the (August/September 1982) re-interviews were required “because the initial response of the quite intelligent women was one of total disgust at the unfairness of the lineup”—that being the reason they failed to “conclusively pick someone out.”
Nothing in any transcript so much as hints at the fact that the lineup attendees were disgusted with the “unfairness of the lineup.” (And so much for the evidence of Acting Sergeant David Baker that the lineup was perfectly “fair.”) Farther on in the report, Harkema writes: “They were all questioned in detail at a later date after Henry had been charged with the [Kavanagh] attack. They were shown the lineup photo again, and were able to add some of their comments to their earlier apprehension. They all said they were 95% sure it was him.”
And then the last sentence: “They all said that the voice was his, and that they recognized the voice as belonging to their attacker.”
This is all well and good, but for one thing: none of the lineup attendees heard Henry speak between May 12 and the preliminary hearing at the end of October. What then caused them suddenly to be sure—months after the lineup and months before the preliminary hearing—that Henry’s voice was that of their attacker?
At the lineup, Miss Larson and Miss Horvath left their ballots blank. Miss Browning identified #18, who was a foil. Miss Jacobsen noted “12/18” on her ballot. Asked at the preliminary hearing how, having left her ballot blank, she could now identify Henry, Horvath replied, “Because, for the first time, I can see his face full on.” Not a word about his voice.
Asked the same question, Miss Larson agreed that she couldn’t recognize her attacker by voice at the lineup: “It didn’t seem the same, but then I thought I should probably ignore it because he’s got someone’s arm around his neck.”
At trial, Miss Simpson testified that when Henry made his outburst at the end of her preliminary hearing evidence, she first “became sure it was him.” Both Miss Horvath and Miss Jacobsen testified that they knew, when they heard Henry’s voice at the voir dire in late February or early March 1983, that Henry was their attacker. Miss Larson said, based on the accused’s voice at the preliminary hearing and at the voir dire, she was able to identify him as her attacker. In other words, not a single complainant testified that the turning point in their voice identification came, as Harkema said in his report, during or prior to the re-interviews.
Morris asked Harkema to provide her with this report. Had I been able to talk to her, I would have asked her whether she had knowledge of the Smallman investigation then underway and, if so, whether she felt obliged to alert the Attorney General.
In 2006, Crown prosecutor Jean Connor made the connection between the Henry crimes and the Smallman crimes. Had she kept silent—as so many others did over the years—Henry would doubtless still be rotting in jail.