Jay Kuten: Understanding of recall could have avoided travesty of justice

Peter Ellis : The central figure of what became known as the Civic Creche case. PEter Ellis has been fighting his convictions of child abuse imposed in 1993, for which he served a 10-year jail term.&#

I HAVE to believe that if, in 1992, more New Zealanders had read the 3000-page novel titled In Search of Lost Time by Marcel Proust, there never would have occurred the great travesty of justice that resulted in a 10-year jail sentence for Peter Ellis.

Proust's novel, written from 1909 to 1922, is an acknowledged masterpiece that deserves its place in world literature for its beautiful language and the acuity of its narrator's observations on art, aesthetics and social convention.

Its particular relevance lies in the artist's intuitive and then evocative description of the way that memory is stimulated, almost involuntarily, by sensory experience, by taste or smell, and is not fixed or final once created in the brain. Instead, memory is more fluid, subject to alteration by emotion and by further experience.

Proust's understanding of memory - and thereby of brain function - was derived not from modern scan technology but, instead, from intensive self-examination with artistic genius and unsparing honesty.

His view is completely in accord with evolutionary theory and with modern neuro-science. Our brain is our chief evolutionary tool, by which we mean it is adaptive, altering itself to changed circumstances external and internal.

Our understanding of memory and the way in which the brain works in terms of memory becomes particularly important when we try to determine fact - whether something happened and whether or not it happened in the way a participant described it. It becomes terribly important in a court of law when what is at stake is an accused person's guilt or innocence of a crime.

In the 1980s and 1990s, a wave of accusations of child molestation, child rape and animal ritual sacrifice occurred in parts of the developed world, including the United States and New Zealand. In New Zealand. those accusations emerged as the Christchurch civic creche case, in which first one child's parent, then several, accused five childcare workers of violating their children.

During the trial, two fallacies about memory received considerable endorsement from part of the mental health community. The first is that children do not "lie" about being sexually molested.

More problematically, the second is the notion that the brain functions like a tape recorder and that memory impressions once recorded can be accurately and reliably retrieved.

Children may not lie but they can be manipulated into believing sincerely what is false.

And a brain that functions like a tape recorder would have doomed us in evolution to remain with the accidental discovery of fire - and no more.

The most meticulous, researched look at the 1992 case is provided by Lynley Hood's book A City Possessed.

This award-winning work examines with exquisite clarity the social context, the legal manoeuvrings and the advocacy of expert witnesses whose objectivity she brings into question.

Hood demonstrates how those two fallacies about the nature of memory, insufficiently challenged by available scientific counter-argument, made possible an egregious example of the miscarriage of justice.

Particularly unsettling about the conviction of Peter Ellis (and the withdrawn allegations against the four other women workers) is that there exists no physical, no substantive evidence that any crime was even committed.

The case rested solely on the evidence of child plaintiffs whose repeated questioning by methods now deemed scientifically unacceptable tainted the reliability of their testimony.

The testimony could not even be challenged by the usual cross-examination due to special (and unnecessary) waivers granted in the unsustainable belief that the stress of the short time of cross-examination of the children outweighed the years of potential - then actual - incarceration faced by Peter Ellis.

Ellis has consistently claimed his innocence, refused parole rather than accept a plea of guilt, served the sentence.

It is now time for Parliament to convene a Royal Commission to establish the facts of the Ellis case and answer whether his conviction was safe in light of established neuro-science.

Anything less leaves a blight on the reliability and fairness of the criminal justice system of New Zealand.

-Jay Kuten is an American-trained forensic psychiatrist who emigrated to New Zealand for the fly fishing.