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Anatomy of a Civil Trial Scientific Studies of Memory

Understanding the science of memory may aid in cross- examining a witness’s “recollections.” In a 2009 study, the authors concluded that “… all memory is false to some degree. Memory is inherently a reconstructive process, whereby we piece together the past to form a coherent narrative . . . based on what we know about the world. ”5

Tis process of filling

in details from known experience sometimes is considered confabulation. A witness may believe the details as true and accurate, but those details may be wrong. Scientific studies have demonstrated that perceptions

of events may be corrupted, altered, and/or manipulated. In 2005, Dr. Loftus reviewed many of the ways that the

“misinformation effect” impairs memories.6 phenomenon has been studied for over thirty years.

Tis In

one study, eyewitnesses saw a girl injure her neck during a robbery, although some subjects received misinformation that she hurt her arm. About 47% of the time, witnesses remembered that she hurt her arm.

Witness memory is also affected by other effects.

“Change blindness” and “unconscious transference” are known phenomena that cause mistaken eyewitness identifications.11 Change blindness occurs when a witness fails to notice the differences when one person is doing something and someone else is nearby. In studies, these effects have resulted in a witness identifying a nearby innocent person as the perpetrator of a crime. Tese issues concerning selective memory must be considered when presenting evidence to

jurors. Studies

have shown that trivial detail that may even be irrelevant to the central facts are more persuasive to jurors.12

Details of a

robbery such as requesting a few store items versus “Kleenex, Tylenol, and a six-pack of Diet Pepsi” made a difference in who the jurors believed and whether the defendant was convicted.13

Te authors suggest that the witnesses who told

more details were deemed more credible and as having better memories.

People “… have

been misled into remembering a yield sign as a stop sign, hammers as screwdrivers, and even something large, like a barn, that was not part of the bucolic landscape by which an automobile happened to be driving.”7

She also describes

other details that have been planted into memories. Studies also show age differences on susceptibility for accepting misinformation. Te original memory of events may or may not be retrievable. And the misinformation may be rich in detail.

Misinformation is not planted in the way that Leonardo

DiCaprio inserted a memory in the recent movie Inception. Memories become distorted in many ways. “When witnesses to an event talk with one another, when they are interrogated with leading questions or suggestive techniques, when they see media coverage about an event, misinformation can enter consciousness and can cause contamination of memory.”8 One recent study demonstrated that two witnesses to similar versions of an event who discussed what each saw tended to influence the memories of the other to become a blend even to the extent that they reported details that had not been in the version observed.9

Misinformation research

is constantly being updated and the reliability of eyewitness testimony is being challenged.10

5 Daniel M. Bernstein and Elizabeth F. Loftus, "How to Tell If a Particular Memory Is True or False," Perspectives on Psychological Science, vol. 4 – no. 4 (2009) at 370, 373.

6 Elizabeth F. Loftus, "Planting Misinformation in the Human Mind: A 30 – year Investigation of the Malleability of Memory," Learning & Memory (2005) at 361.

7 Id. 8 Id., at 365. 9 Elin M. Skagberg and Daniel B. Wright, "Te Co-Witness Misinformation Effect: Memory Blends or Memory Compliance," Memory (2008) at 436.

10 Steven J. Frenda, Rebecca M. Nichols, and Elizabeth F. Loftus, "Current Issues and Advances in Misinformation Research," Current Directions in Psychological Science (2011) at 20.

Trial Reporter / Spring 2012 19

Memory of details may not correlate to perception and memory of a wrongdoer’s face.

11 Kally J. Nelson, Cara Laney, Nicci Bowman Fowler, Eric D. Knowles, Debora Davis, and Elizabeth F. Loftus, "Change Blindness Can Cause Mistaken Eyewitness Identification," Legal and Criminological Psychology (2011) at 62.

12 Brad E. Bell and Elizabeth F. Loftus, "Trivial Persuasion in the Courtroom: Te Power of (a Few) Minor Details," Journal of Personality and Social Psychology (1989) at 669.

13 Id. But other studies undermine this conclusion.

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