April 14, 2023 [Finland] Day 46: Experts heard
Expert witness Helinä Häkkänen is heard
The prosecution questions Dr. Helinä Häkkänen
The prosecution began by asking Dr. Häkkänen about her educational background. Dr. Häkkänen testified that she holds a PhD in psychology and is an associate professor in forensic psychology and criminal psychology. She also performs clinical work as a psychotherapist. Her experience in forensic psychology dates to 1996, when she began working for the University of Helsinki and various offices at the Finnish police. She has been working as psychotherapist since 2013 and has written 60 internationally published scientific articles and four books. She has testified as an expert witness dozens of times in Finland and was an accredited expert witness at the International Criminal Court (ICC) between 2005 and 2010. She has worked with refugees from Syria and Iraq, as well as internally displaced people from the Karelia region. Her research covers subjects such as memory function, amnesia and memory behavior related to violent crimes and violent situations, including trauma related to tribunals and criminal procedure and the police’s perception of how people behave in courts. Dr. Häkkänen testified that most of her clients in her clinical work are severely traumatized, having experienced situations such as violence and war. For most of her clients, many years have passed after the traumatic events, and for some, decades have passed since the event before they came to her.
The expert opinion that Dr. Häkkänen submitted to the court was based on the expert opinions issued by Dr. Julia Korkman, the pre-trial investigation report prepared by the Finnish police and the judgment of the lower court. She had read the witness testimonies in the pre-trial investigation report.
Dr. Häkkänen detailed the most important factors to be considered in the trial: “First of all, identification. I understand that the acts themselves are not contested, so identification is at the heart of it. On the other hand, how reliably can a person recall events decades after they have occurred. And also, the role of traumatization in remembering and telling the story. Furthermore, the way in which international criminal tribunals and the Finnish Supreme Court have assessed personal testimony in such cases and its reliability is also relevant.”
She stated that she would rather not testify about ‘collective culture’, as she is not an expert on culture. According to her, the notion of collectivism does not usually arise in the context of psychotherapy. Based on her clinical experience, people who have experienced traumatic events usually do not want to discuss such experiences as discussing them brings up feelings of fear and flashbacks. They generally avoid recalling such memories. According to Dr. Häkkänen, human beings, by default, remember situations where their life is at stake very well, at least when it comes to the details crucial for survival. They are able to recall these details in safe circumstances, where they also have the courage to face the memories. In psychotherapy, it might take hours before a client is ready to go through such issues.
Dr. Häkkänen then described her methodology. With her client, they select a specific memory and try to retrace it. She can often see how easy or hard it is for the clients to recall such memories. Recalling details such as the ones discussed in this trial is usually very difficult. People often say that they would not want to relive such memories. Such memories do not appear at once. They appear in phases and usually memories are supplemented during follow-up sessions. The first recollection is often rather limited and people only get the courage to face their memories as therapy progresses. Clients may also dissociate, a psychological defense mechanism where a person sees themselves from the outside, making it twice as hard to accurately recall the memory. She gave the example of international criminal jurisprudence which has demonstrated that child soldiers are often cold and emotionless when testifying.
The witness further testified that it is possible to recognize a traumatized witness based on their behavior in court. If a person starts shaking while recalling an event, this usually means that the event in question has severely traumatized them. She also pointed out that the hearing situation itself can also cause people to shake, because it can be a highly stressful situation. Besides the shaking which was reported for some of the witnesses, she testified that it is not possible for her to determine whether a particular witness is traumatized or not.
According to Dr. Häkkänen, the effect trauma has on a person’s memory is highly individual. According to current research, a traumatic event can still traumatize a person even decades afterwards, if they have not received proper treatment. The traumatic event can have the person being mentally present in the traumatic situation while recalling it. This can lead them to behave as if they were still in that situation: scarcity of speech, strong bodily reactions, ambiguities, incoherence, confusion, completions, omissions, etc. She explained that for this reason, she has previously argued that the case law of the Finnish Supreme Court on evaluating the credibility of witness testimonies is too demanding when it comes to traumatized witnesses, as the degree of uniformity in various testimonies given throughout a criminal trial required is too high. She cited research that demonstrates that post-traumatic stress disorder (PTSD) is prevalent with about a third of individuals who have experienced war, while the connection between PTSD and weaker cognitive functions has also been demonstrated. According to her, for example requiring a person to recall precise dates, decades after the fact, is too much to ask for.
The witness explained that the testimony of a traumatized person is more susceptible to change than that of a non-traumatized witness, while there are also examples of instances where highly traumatized witnesses were able to recall details even decades afterwards with a surprising accuracy. It is important to distinguish between a person’s ability to remember a fact, from their ability to produce the memory trace, especially in a stressful situation such as testifying in court.
Dr. Häkkänen further testified that it is easier for a traumatized witness to recall details that were crucial for their survival than other details of the traumatic event. Non-crucial details are more prone to be forgotten over time than crucial details. Traumatized individuals are also generally less willing to discuss their experiences. Another possible factor contributing to this unwillingness could be sexual violence, often experienced in armed conflicts, as it usually creates a strong stigma.
On the passage of time since the traumatic event, Dr. Häkkänen explained that details crucial for survival can survive even decades without being forgotten. Non-crucial details are more prone to being forgotten. People generally remember traumatic events rather well, apart from events that occurred when a person was two or three years old, as memory is not yet fully developed at that age. In psychotherapy, it is common that once a memory is being worked on, the person’s memory begins to expand and they can remember more and more details. When emotions are worked on, the stagnation in the memory system is removed. People may not have difficulty remembering things, but they have difficulty, for example, in verbalizing things around the memory. Dr. Häkkänen cited a study conducted among 78 survivors of Nazi concentration camps 40 years after they were released. A substantial number of them recalled the events in a detailed manner despite the decades that had passed since the events. Some of them had forgotten the name of the commander of the camp, while 90% of the survivors remembered it correctly. 80% could identify the commander from a photo, although this identification procedure was not valid as only one photograph was shown.
Dr. Häkkänen also referred to further studies conducted among war veterans and refugees demonstrating that the memories changed every time the interviewees recalled events. She testified that a person might remember a fact in one manner the first time they are asked to recall it, and in another manner the next time they recall it. This is a completely natural reaction caused by the person’s memory. Current research does not recognize a point in time after which memory stops changing. Memories are prone to change over time in two ways: some memories are forgotten, becoming impossible to recall, while others could come back after initially being forgotten, either as full memories or partially, getting more accurate over time. She explained that the idea that additions to memory are a sign of unreliability is not in line with psychology, nor with her own clinical experience. She described the ways a testimony might change over time. Reasons for such changes include new information, time to recall, rush, interview interaction, interpretation, perceived feedback from the first interview, whether the person feels safe when recalling the memory, etc. There is a huge number of possible contributors to such changes in testimonies.
The witness further pointed out that the perception of time in Africa is different. The ICC, for example, does not give much weight to the fact that a witness makes a mistake in recalling the date or cannot determine it at all.
As for the identification of the alleged perpetrator during the police investigation, Dr. Häkkänen testified that there are two types of witnesses: those who knew the perpetrator beforehand and those who did not. Only the latter truly recognize the perpetrator based on their face when shown a photograph by the police, making their identification more psychologically valuable. She explained that elements such as the lighting and distance from the perpetrator at the time of the events could impact the possibility of correct identification. As for the present case, she pointed out that often a witness who had identified someone else than the defendant had chosen somebody wearing a hat in the photo. If the perpetrator was wearing a hat at the scene, this could mislead the witnesses when looking at the photographs.
Dr. Häkkänen referred to a study that had examined the evaluation of witness credibility by international criminal tribunals. International tribunals have had to evaluate whether there are objective grounds for determining whether a witness’ testimony is based on something other than their own experiences. Some decisions have deemed that inaccuracies or lack of uniformity between testimonies do not automatically discredit the testimonies or witnesses. A lack of clocks, watches and calendars has also been taken into account in international criminal trials when evaluating the witnesses’ ability to recall the time and date of an event.
The defense questions Helinä Häkkänen
The defense began by asking for Dr. Häkkänen’s observations on Dr. Korkman’s latest expert opinion. Dr. Häkkänen stated that they seemed to both agree on two issues. Firstly, they both agree that the passage of time weakens an eyewitness’ ability to identify the perpetrator. However, this conclusion only applied to eyewitness, not direct victims of violence. Currently, there is not much research on how direct victims of violence identify perpetrators. She disagreed with Dr. Korkman’s statement that humans are inherently poor at identification, especially after a long period of time. She explained that neither of the sources cited by Dr. Korkman address that issue: the first source concerned the relationship between recognition accuracy and recognition reliability, and the second source dealt with the physical distance between the person identifying and the person being identified. She also criticized the fact that the studies cited by Dr. Korkman only dealt with external eyewitnesses, not the direct victims of violent crimes and their ability to identify the perpetrator, a phenomenon currently unknown to the field of forensic psychology. As to the ‘co-witness phenomenon’, she stated it is known that a memory can be shaped by information from other people, however it is not something that she had encountered in psychotherapy as having a substantial effect on memory recollection.
The witness explained that there is no way to tell whether a person’s memory recollection has changed or become more accurate over time. She could not say whether a person’s certainty of the accuracy of their memory could correspond to reality.
Dr. Häkkänen further criticized Dr. Korkman’s observations on amnesia, she did not see anything in the present case relating to amnesia. She was not aware of any studies about the amnesia of wartime experiences. She cited a scholar from Harvard University, who has stated that traumatic memories are never completely forgotten except due to external physical trauma, such as a hit to the head. Current research does not suggest that adults would be capable of completely forgetting their wartime experiences. She stated: “Today, it is not believed that it is possible to completely forget a war event in adulthood. Those memories are islands of recollection, they are fragmented, they are recalled in stages.”
She also criticized some of the studies referred to in Korkman’s report for being methodologically flawed or inapplicable to the circumstances examined in the present trial. She criticized Dr. Korkman’s report itself for not fulfilling the scientific standards for an expert report submitted in a trial.
On the crucial and non-crucial details for survival, Dr. Häkkänen gave examples of the color of the perpetrator’s hat as a non-crucial detail, while the fact that they were told that they are going to die could be seen as a crucial detail. Memories can be sounds, smells, or physical memories. Trauma can affect the existence of directly contradictory elements in testimonies, making two testimonies by the same person incompatible with each other. However, it is scientifically impossible to conclude whether trauma is the factor that causes such contradictions. The witness listed other factors which could contribute to contradictory memory recollections. Contradictory elements can also be the result of intentional lying, but according to Dr. Häkkänen, the research on lying demonstrates that a person who is lying often seeks to maintain their story as much as possible. She suggested that the way to verify which testimony is the most accurate is to link it to other witness accounts.
According to Dr. Häkkänen, the fact that the witness might later receive information about the potential perpetrator, such as their name, would not change their memory of the act itself. If the person has not seen the perpetrator themselves and trusts the person who provides them with the information, they may start to believe it. Who a witness may trust depends on their personal context, but most people trust some form of authority. An adult is also capable of completely fabricating a recollection of something. However, Dr. Häkkänen stated that the current research on this is not applicable to the present case. She mentioned one study, but noted that the authors of the study concluded that the data is not reliable, and conclusions drawn from this study would be speculative. She noted that it is possible that an adult creates an erroneous memory of something without external influences, but this is very difficult to verify.
On the fact that some of the witnesses had spoken about their experiences with others, Dr. Häkkänen stated that she would assume that these would mostly be external eyewitnesses to the events, not the direct victims of the violence, and stated that she had no research data on this. She explained that discussion could either refine or distort memories, but it is difficult to conduct research on memories becoming more accurate on the basis of external effects.
Dr. Häkkänen further stated that the effects of trauma and PTSD are highly individual. These effects depend on a person’s background, their prior experiences, and the help they may have received after the fact. However, the concrete effect that trauma has on human memory is similar from one person to another. Trauma contributes to the fragmentation of memories, making testimonies appear less logical when it comes to the non-crucial details. But for details crucial for survival, a traumatized person might remember them surprisingly well. She explained that an assessment of trauma requires a medical examination, an assessment by a psychotherapist or a symptom assessment by a clinical psychologist. It is impossible to determine that somebody has been traumatized based on the changes in their testimony alone. Physical or psychological factors can also point to traumatization, such as visible shaking or dissociation during a hearing, however Dr. Häkkänen also pointed out that these effects could also be caused by stress experienced during the hearing.
According to Dr. Häkkänen, current forensic psychology does not have any tool at its disposal to evaluate the credibility of a witness statement. When asked about a newspaper article she had written about the present trial, she stated: “The fact is, war is a traumatic experience in general. I’ve written a few articles about how judges in particular understand how traumatization manifests itself in people’s gestures and body language. That was part of the reason I knew these situations were challenging.” Her aim was to raise attention towards the issue of traumatization and the challenges it poses to evaluating witness testimonies.
Expert witness Julia Korkman is heard
The defense questions Julia Korkman
The defense began by asking about the background material Dr. Korkman had used when drafting the two expert opinions for the present trial. Dr. Korkman testified that she was asked by the Finnish police to summarize scientific research on questions presented by the Finnish police and the prosecution. She was not provided with the pre-trial investigation report or any other documents related to the case. Dr. Korkman testified that she is an associate professor in forensic psychology. She has led multiple research projects on themes such as eyewitness identification, and crimes committed against children and their investigation. Currently she is involved in research projects on victims of rape. She is also supervising a doctoral thesis on memory recall in legal contexts. She has also worked on the theme of the influence of culture on memory recollection and recall.
The witness was asked to explain the contents of her reports in more detail. She began by explaining that humans are herd animals and are susceptible to including the opinions and perceptions of others into their own. This phenomenon has been extensively researched in lab conditions. She described two cases, the Viking Sally and the Anna Lindh stabbing case, where this had been observed. She explained that this effect could also produce positive results, as humans are capable of receiving correct memories and observations from others. She stated that she could not say whether the definition of a ‘trustworthy person’ differs across cultures, adding that a child, for example, would always trust their parents.
According to Dr. Korkman, humans have a strong tendency to supplement gaps in memories, particularly in rapidly evolving situations. She described a case of police violence in the US which psychology experts examined, suggesting that the fact that police violence had been widely discussed in the US at the time created a preconception that influenced how people interpreted the situation. She explained that a person does not necessarily notice when their memory is being affected by preconceptions or any other factors external to the memory itself. She also explained that there is a difference between external eyewitnesses and direct victims, as “the emotionally important things are best remembered”. Current research demonstrates that all memories are susceptible to distortion, but it is difficult to research these issues in a scientifically and ecologically valid way. Research suggests that traumatic experiences are remembered better and for longer than regular, less important events. It is also known that in life-threatening situations, a person may focus on only a few details, for example through gun focus.
Current research indicates that traumatic memories contain more emotion that regular ones. A person that is traumatized tends to demonstrate avoidance behavior, to avoid anything that reminds them of the traumatic situation. Details that remain in a person’s memory include those details that were life-threatening. There has been research that a very traumatic situation makes face recognition more difficult.
When explaining the impact of time on recollection of traumatic memories, Dr. Korkman stated that most studies refer to an old study from 1885. According to this study, most of the content of a memory is forgotten almost immediately after the fact, and as more time passes, details are forgotten more slowly. If central details about an event are still remembered after a decade, they most likely do not disappear from memory at all. Dr. Korkman stated that her previous statement had been misunderstood by the lower court, and that memories are malleable and can change constantly. As for whether traumatic memories are more fragmented than memories on a non-traumatic event, she responded: “The criterion of consistency is not realistic, regardless of whether the situation is traumatic or not.”
On inconsistencies in witness testimonies, Dr. Korkman explained that the way the questions are asked must be considered. Open questions favor memory recollection. If interpretations are given and the person first denies it and then later says otherwise, it can be difficult to exclude that the person has not been influenced by the questioning. Leading questions can distort memories. While the majority of studies in the field have been done among on university students in the West, the basics of memory are universal. The witness explained a process by which a person subconsciously creates a memory using information that they have received afterwards.
Dr. Korkman had discussed the role of culture on memory recollection in her expert opinion. She explained: “Talking about cultural differences is always a gross generalization. However, it has long been argued that the West is a rather individualistic culture, where events are defined by the experiencer. Whereas other cultures, such as East Asian or African countries, have a more collectivist culture. For example, when adults reflect on their childhood, community-based cultures are more likely to remember community experiences, while Americans remember what happened to themselves.” She added: “I know of cases in Finland where people have imagined that they have been in a case where they have not, just because they heard so much about it. I would consider this a rather generic, universal trait. It’s possible, of course, that this tendency is greater in more communal cultures, but I don’t know that there is any research evidence for this.” She mentioned that the issue had arisen in a Finnish war crimes trial in Rwanda and noted that “Finnish authorities seem to have difficulty with people from Arab backgrounds when they give broad accounts of things.”
Next, the witness discussed the notion of co-witnessing, stating that discussing events with someone considered close can affect a person’s memories. She noted that the effect of trauma on memories is highly individual and varies from one person to another. It is very difficult to determine whether a person has been traumatized based on their behavior during an interview or a court hearing. A change in testimonies alone should not be used to conclude that a person is traumatized. Post-traumatic memories could be more susceptible to distortion. Post-traumatic recollection often involves nightmares, which can increase the risk of confusing the real with the imagined.
Dr. Korkman was asked to comment on the criticisms raised by Dr. Häkkänen in her first expert opinion. She explained that she agreed with most of the points raised by Dr. Häkkänen but disagreed with others.
The prosecution questions Julia Korkman
The prosecution began by asking whether the research projects Dr. Korkman had been involved in had to do with memory functioning in violent situations. Dr. Korkman stated that she had studied the testimonies of children who have experienced sexual and violent crimes. The context of asylum interviews also has a lot to do with traumatized people, but not necessarily in a criminal context. Dr. Korkman had not examined the case material during the preparation of her second report, but had looked at the lower court judgment.
According to Dr. Korkman, the fact that witnesses cannot remember exact dates or times in relation to the events should not be used to draw any particular conclusions. She also pointed out that cultural aspects, such as if people are not used to using a calendar, could also have a large impact on this. The lack of correct photo identifications should also not be given much weight as the elements of a credible identification are hard to achieve. In general, Dr. Korkman stated that an identification of a perpetrator effectuated two decades after the events in question should not be given much weight.
