Report 33: Expert Witness hearing pt. 2

Gohardasht prison in Iran. One of the prisons where many persons were executed in the summer of 1988. Photo: Gohardasht Prison / Ensie & Matthias (flickr.com) / CC BY-SA 2.0

In previous report, we provided summaries of hearings with witnesses 24 and 25, which were held on 22 and 23 March. In this report we will provide summaries of hearings with expert witnesses 3, 4 and 5, which were held on 23 and 24 March.

Expert Witness 3 – Torun Lindholm

Judge Zander started the court day by welcoming the witness, Torun Lindholm, and stating that she had been called on behalf of the prosecution for her academic expertise about the human memory. The judge then turned the floor over to the prosecutor.

Prosecutor Hanna Lemoine commenced by stating that Torun Lindholm is a professor in psychology and asked her to describe her work with regard to the human memory. Lindholm explained that she had done research since 1993 about the ability of witnesses to remember. During the last three years she had conducted research about the correctness of honest oral testimonies from witnesses.

When asked to describe the memory process, Lindholm explained that memory psychology is divided in three phases. First, you experience something. Second, the events are stored in your memory. Third, time passes and the memory is revisited. Memories fade as time passes. Many studies have shown, however, that the majority of the memory loss happens during the first ten hours after the memory was formed and that the memory loss plains out after that. The difference between revisiting memories 2 days after an event compared to 10 days after an event is not significant.

Lindholm further explained that humans have a good ability to remember faces. The memory loss with regard to remembering faces is less than for other memories and it does not have a significant difference if 30 years has passed, except if the person has aged, which does negatively affect the ability to remember. The longer the period of time that a person is exposed to a certain face, the greater the chance that they will be able to remember it.

The prosecutor then asked if there are any known causes for faulty memories, to which the witness responded that there are. Research has been shown that subtle signals from a police officer during a witness confrontation can affect the witness’ memory.

Lindholm further explained that if a person is not wearing any particular clothing, then humans tend to focus on the person’s face instead.

Lindholm went on to explain that the age of the person who is making an observation is relevant for their ability to remember. After the age of 60, the ability to remember declines. A person’s ability to remember is at its best when the person is in her or his twenties. Furthermore, research shows that women are better at identifying faces. Women are particularly good at recognizing the faces of other women, whereas men are better at remembering the faces of persons belonging to the same group as them.  

The prosecutor asked Lindholm to describe how a trauma can affect the ability to remember. Lindholm explained that events connected to strong emotions can have the effect that it is easier to remember what was perceived as important in the moment, rather than peripheral things.  Lindholm gave the example of a person observing a cyclist passing on the street compared to observing a cyclist being part of a traffic accident. According to Lindholm, the ability to observe events in the background is more likely in the first scenario. People tends to focus on what is central in the dramatic situation. Being subjected to traumatic events during a longer period of time affects the memory as well. The longer the exposure, the clearer the person will remember the events. However, recurrent traumatic experiences may lead to memories being mixed up.

Lindholm explained that studies that have been conducted with survivors from the world war two concentration camps 50 year after they experienced the traumatic events showed that the survivors tended to remember the worst experiences with the most clarity and had a surprisingly correct recollection of the events.  The survivor’s stories had been verified through the accounts of the perpetrators and from protocols from the Nuremberg trial. Lindholm further explained, that a person’s memory is approximately 80 percent correct when 50 years has passed.

Studies have also shown that malnourishment or fatigue affect the memory negatively. However, the studies conducted with the concentration camp survivors showed that they could remember the events remarkably well despite the poor physical state that they had been in when the events took place.

Another factor that can affect the ability to remember correctly is, for example, if a person talks with others about the events or read about them in the news. If a person has had a weak memory to being with, that is yet another factor that may affect the ability to remember negatively. Being asked leading question, will also affect the ability to recollect memories correctly.

The prosecutor went on to ask whether people can repress memories. Lindholm explained that there is a lack of consensus among scholars with regard to this.

On the topic of people’s ability to remember dates of specific events, Lindholm explained that studies conducted with concentration camp survivors showed that they were able to remember dates on which they had arrived at the camps and dates of certain events that had taken place, such as a fellow prisoner being tortured.

When the prosecutor ended her questioning, the hearing was handed over to the plaintiff counsels. Counsel Göran Hjalmarsson asked about people’s ability to recognize faces of people belonging to different ethnic groups, to which Lindholm responded that people are better at recognizing persons belonging to their own ethnic group.

When the plaintiff counsels ended their questioning, the hearing was turned over to the defense. Defense counsel Thomas Söderqvist asked Lindholm what her conclusions were from her research about the correctness of witnesses’ oral testimony. Lindholm responded that they had tested the memory direct after an event and up to 2 weeks after. Wrongful memories resulted in the witness pausing more when speaking and using expressions that indicated hesitation.

Upon question from the defense, Lindholm explained that a person’s ability to see also affects how well they remember something. For example, whether the observations were made in day light compared to at night, or from a long distance compared to a short distance.

The defense went on to ask about the studies made on concentration camp survivors, which Lindholm had mentioned previously during the hearing. Lindholm had previously explained that the survivors’ stories had been verified by accounts from the perpetrators, the Nuremberg trial protocols and by comparing the stories of different people. The defense asked whether it was possible that the survivors could have read books about these events, which might have affected their ability to remember. Lindholm responded that it was possible that they had.

The defense further asked whether it was correct that the risk of remembering something incorrectly increased the more time had passed from the memory being formed, which Lindholm explained was correct. The defense went on to ask whether it could affect a witness’ ability to remember a person correctly, if the witness has seen a picture of that person before a photo confrontation is made by the police. Lindholm explained that it could indeed affect the ability to remember a person correctly, and that showing pictures of a perpetrator prior to a photo confrontation should be avoided.

The defense asked what conformation bias is, which Lindholm explained is when a person seeks information that confirms what the person wants to remember.

Lindholm was further asked about whether and how stressful situations could affect a person’s ability to remember faces. Lindholm explained that the ability to remember a face in that situation depends on what the person was focusing on during the situation. For example, if the person has a gun pointed towards them, she tends to focus on the gun rather than the face of the person holding the gun. However, the person would have to be under a considerable amount of stress and under the impression that she is about to be killed for her memory to focus so exclusively on the gun.

Lindholm further explained that the relationship between two people can also affect a person’s ability to remember something correctly. For example, a child that has heard a trusted adult describe an event is likely to remember the event the way that the adult described it. 

When the defense ended their questioning, the judge thanked Lindholm for providing her testimony in court and ended the court day.

Expert Witness 4 – Eric David

The court day was initiated by Judge Zander welcoming the witness, Eric David, and informing him that the hearing concerned his knowledge of public international law and its applicability in the current court case. The judge then gave the floor to plaintiff counsel Kenneth Lewis, who had called the witness.

Counsel Lewis asked David to describe his academic background. He explained that he is a retired professor in international law, but that he is still active and has taught international humanitarian law since 1973.

David was asked whether the conflict between Iran and MEK should be classified as a non-international armed conflict or an international armed conflict. David responded that it should be regarded as a non-international armed conflict. According to David, two criteria need to be fulfilled for hostilities to be regarded as a non-international armed conflict. First, the hostilities need to be open. Second, the hostilities need to include parties that are identified and acknowledged actors under international humanitarian law. He explained that it was his opinion that MEK had operated in Iraq and had conducted military offensives on Iranian territory and that it did not concern isolated sporadic acts of violence. Furthermore, MEK as an organization had been recognized internationally, the witness stated. As such, the criteria for a non-international armed conflict was fulfilled.

The counsel asked which jus cogens rules had been applicable in a non-international armed conflict in 1988. The witness responded that Article 3 of the Geneva Convention IV had been applicable, which meant that some basic rules applied, such as the prohibition against the killing of civilians, inhuman and degrading treatment and the taking of hostages. Acts contrary to these rules were to be considered as war crimes. This had been confirmed by the International Committee of the Red Cross and the witness referred to an American military manual as well.

The witness claimed that even if there had been no explicit legal provision that had been applicable in a non-international armed conflict in 1988, guidance from the case against the president of the local board of the Serb Democratic Party in Kozarac, Duško Tadić, before the International Criminal Tribunal for the former Yugoslavia and post-World War two trials, indicate that individuals can be held criminally responsible even in the absence of explicit legal provisions.

David further argued that the mass-executions of 1988 could further be classified as crimes against humanity and genocide.

No other court actors had any questions for the witness, and so the judge closed the hearing once plaintiff counsel Lewis had finished his line of questioning. Judge Zander thanked the witness for providing his testimony and stated that the court would re-assemble after lunch for the hearing with Expert Witness 5. 

Expert Witness 5 – Mohammad Olyaeifard

When the court resembled after lunch Judge Zander welcomed the witness, Mohammad Olyaeifard, and informed him that the hearing concerned his knowledge of Iranian tort law. The hearing would also concern a legal opinion drafted by Mohammed Nayyeri.  

Olyaeifard had been called by three of the plaintiff counsels and participated in the hearing through video link from another country.

The hearing of Olyaeifard was initiated by plaintiff counsel Hesselberg, who commenced by describing new material that had been handed in to the court. The material concerned Iranian tort laws and three precedents from Swedish courts relating to the determination of damages. The cases indicated that if foreign laws were unclear, damages should be calculated according to Swedish law according to the principle of “Lex Fori”.

Olyaeifard was then asked to describe his background. He explained that he is a lawyer and a member of the International Lawyers’ Union. He has previously handled several legal cases and has been an advisor to a number of international organizations.

Counsel Hesselberg explained that in the current court case, the relevant damages concerned damages for his clients’ psychological suffering during their incarceration in Gohardasht prison. The legal grounds were based on two Iranian laws, one from 1960, which was about civil liability and another from 1992, concerning “diya”. Olyaeifard stated that it was his opinion that these laws were correct to refer to in this case.

Olyaeifard further explained that the law from 1960 had been in use since before the 1979 revolution and that the law covered both damages on property and immaterial damages. In another law, from 2014, it had been confirmed that psychological damages should be included as an immaterial damage. The law from 1992, concerning “diya”, dealt with criminal culpability. Olyaeifard explained that, according to Islamic law, even a non-Muslim was entitled to damages as a victim of a crime. The counsel asked if relatives of executed MEK sympathizers and executed sympathizers of leftist groups had a right to “diya”. Olyaeifard explained that they were in fact entitled to “diya” according to Iranian law.

The counsel further claimed that the survivors from Gohardasht prison were entitled to damages according to the 1960 law and that, according to the legal opinion of Mohammed Nayyeri, this amount could be higher than a “diya”. The counsel asked Olyaeifard whether he shared this view, which he explained that he did.

Mohammad Nayyeri had stated in his legal opinion that, in complicated cases concerning damages, a certificate from a doctor should be presented to prove the harm that a victim has suffered. The counsel asked whether Olyaeifard was of the opinion that a doctor’s certificate was needed to prove harm, upon which Olyaeifard responded that he did not. He further stated that the right to decide about damages in unclear cases had been afforded to the judge.

Since the defense did not have any questions, judge Zander thanked the witness for his testimony and ended the court day.

Next report

In our next report, we will provide summaries of the hearings with witness 25 and 26, which were held on 24 and 29 March.

A translated version of this report in Farsi can be found here.