Eyewitness Testimony: Memory, Reliability, and the Law

Introduction: Memory and Its Imperfections

In a Psychology Today article published in 2001, Elizabeth Loftus, Ph.D., and William Calvin, Ph.D., discussed what was then known about memory and what remained to be discovered. Loftus, who has written 18 books — one of which is titled Eyewitness Testimony — and Calvin noted that concern with memory and its imperfections dates to long before the period of modern jurisprudence. In the aftermath of overturned murder convictions based on eyewitness testimony, however, memory had once again become a pressing issue. As they observed, "Medieval and modern philosophical accounts of human cognition stressed the role of imagination. The 18th-century philosopher Immanuel Kant talked about imagination as the faculty for putting together various mental representations such as sense percepts, images, and concepts" (Loftus, 2002, March, p. 41+). As early as 1885, the first experiments concerning memory were published by German psychologist Hermann Ebbinghaus. Since then, much has been learned.

Among the surprising findings — probably unfamiliar to the layman — is that the human brain is cluttered, unlike the orderly data storage in a computer's RAM. Calvin noted that when a person loses a thought or memory, it often resurfaces an hour later, having been lurking just below consciousness all along. "The serious difference between computer and human memory is that we don't pop out a pristine copy of the original event, the way a computer does. Instead, we reconstruct things as best we can from all the clutter. We guess. Often that isn't good enough, especially for a fair judicial process" (Memory's Future, 2001, p. 55).

The judicial process, roughly twenty to twenty-five years before Loftus and Calvin wrote, was dependent on eyewitness testimony in a number of high-profile cases, many of them involving supposed child abuse by caretakers of every sort. Loftus notes that at the time, eyewitness fallibility and the inaccuracy of "recovered" memories were not well understood (Memory's Future, 2001). Indeed, the effect of this attitude toward memory was dramatic: "'Repressed memory therapists' went out and prospected for early childhood memories of trauma. 'Are you sure you weren't abused?'" (Memory's Future, 2001, p. 55).

Loftus and Calvin assert that those proactive seekers for "truth" "inadvertently created false memories of the worst sort in some of their clients" (Memory's Future, 2001, p. 55), and that the aggressive conduct of these professionals led patients to false memories of child molestation — many of which led to the arrest, conviction, and incarceration of innocent people.

Loftus and Calvin reach the conclusion that in an era of inexpensive electronics, it would be far better for justice to largely dispense with eyewitness testimony in favor of video surveillance. "A publicly supported surveillance trend began in Britain nearly 20 years ago. They installed 60 remote-controlled video cameras at various 'trouble spots.' Where they put them, crime dropped by half" (Memory's Future, 2001, p. 55). Those cameras also proved instrumental in identifying those responsible for the London bombings.

In a more academic paper published less than a year later, Loftus suggested a provocative alternative oath for witnesses: "Do you swear to tell the truth, the whole truth, or whatever it is you think you remember?" (Loftus, 2002, March, p. 41+). Other research seems to support that uniquely candid viewpoint.

Photographic Accuracy and the Reconstructive Nature of Memory

Loftus and Calvin both asserted that memory is at least as much invention as it is recording, making it notoriously unreliable as evidence in any criminal case. To demonstrate this, psychologist Craig Barclay conducted a study with graduate students at the University of Michigan. "Barclay's major thesis is that people do not reproduce the past, they reconstruct it in accord with 'self theories' of how they are likely to act" (Rubin, 1985, September, p. 38+). The experiment involved students writing down three events each day for four months and later recalling them; however, their own accounts were interspersed with accounts by others.

What Barclay concluded was that "We convey in precise and honest terms a plausible and consistent record of our own intentions and actions, but this record need not be, and in fact cannot be, complete and accurate. Our autobiographical memories reflect not only our past but also our personalities and beliefs about ourselves" (Rubin, 1985, September, p. 38+). He noted that while this reconstructive quality of memory has some usefulness for psychotherapists, it is far less useful for jurisprudence. Moreover, Rubin concluded from Barclay's work that "people are more likely to accept a false description as the resemblance between the false and original descriptions increases and as time passes" (Rubin, 1985, September, p. 38+).

Another significant finding is that an individual's state at the moment of remembering can alter the memory itself, and the memory can in turn change the individual — a potentially spiraling process that carries the "rememberer" farther and farther from actual events. A further sobering possibility involves undiagnosed disorders that can impair memory beyond the normal range of variation. Two researchers in England — Alan Baddeley in Cambridge and Barbara Wilson at Oxford — studied amnesiacs who functioned relatively normally day-to-day but had also sustained frontal lobe damage. These individuals "falsely remembered events," suggesting that they could not properly use the memory-retrieval mechanisms available to unimpaired individuals (Rubin, 1985, September, p. 38+). So striking was this finding that Baddeley and Wilson reported the case of one person who described clear memories of the death of a brother who had never existed (Rubin, 1985, September).

False Convictions and Recovered Memory Cases

The year 2002 saw "the release of the 100th person nationwide to be freed from prison after genetic testing" (Loftus, 2002, March, p. 41+). Loftus also noted that Larry Mayes of Indiana, then 52 years old, had spent 21 years in prison for the rape of a gas station cashier. The victim had failed to identify him in two separate lineups and picked him out only after she was hypnotized by police. "Mayes' story is a common one; analyses of these DNA exoneration cases reveal that faulty eyewitness memory is the major cause of wrongful convictions" (Loftus, 2002, March, p. 41+).

The 1990s were, in fact, rife with cases that captured public attention because of their extraordinary subject matter, often involving "impossible memory claims" — including intergenerational satanic ritual abuse or memories of having been molested at the age of six months (Loftus, 2002, March, p. 41+). From the standpoint of psychology, such cases were suspect even at the time. From the standpoint of jurisprudence, they raised the possibility that some prosecutors had a zeal for convictions at any cost. "The cases proceeded under the belief that when people are repeatedly brutalized, their memories can be completely repressed into the unconscious and later reliably recovered with hypnosis, dream interpretation, sodium amytal, or other therapeutic 'memory work.' In fact, no credible scientific support has been found for such claims" (Loftus, 2002, March, p. 41+).

Another prominent eyewitness issue from the 1990s was the "repressed" memory. One notable case involved an Arizona pediatrician, John Danforth, whose former patient, Kim Logerquist, remembered — after an interval of two decades — that the doctor had repeatedly molested her for two years, from the time she was eight until she was ten. Logerquist sought $3 to $5 million in damages, claiming that the flashbacks giving rise to her accusation were triggered by watching a children's aspirin advertisement. In the period leading up to her accusation, Logerquist had spent 57 sessions in analysis during which she was "urged to try to remember abuse that might explain her problems such as self-mutilation, depression, suicide attempts, obesity, and bulimia" (Loftus, 2002, March, p. 41+).

It took ten years for Danforth to clear his name, although the jury required only 40 minutes to find against Logerquist, who had also spent time considering which other men she had known might have abused her. Loftus calls this a "landmark repressed-memory case" and notes that it may have helped deflate the credibility of such testimony (Loftus, 2002, March, p. 41+).

The problem for those who pursued such claims, however, was that after the Danforth exoneration, clever accusers began alleging that abuse had taken place in settings like "a McDonald's bathroom or on a Royal Caribbean cruise or in the high school art room" (Loftus, 2002, March, p. 41+) — and that since the alleged event, the accused had since died. The accuser then sued the estate with a fair degree of success. "Even a well-funded corporation has a difficult time defending against supposedly repressed memories about events that purportedly happened 30, 40, or 50 years ago" (Loftus, 2002, March, p. 41+).

Compounding the problem, the issue of planted suggestion is inherent in all repressed-memory eyewitness accounts. "Psychological studies have shown that it is virtually impossible to tell the difference between a real memory and one that is a product of imagination or some other process" (Loftus, 2002, March, p. 41+). Loftus notes that science has found "post-event information" is integrated into what most people have actually experienced: "when people experience some actual event — say a crime or an accident — they often later acquire new information about the event. This new information can contaminate the memory" (Loftus, 2002, March, p. 41+).

Many false memories are also created — deliberately or by accident — in response to leading questioning by therapists or aggressive lawyers. "Subtle cues can be inadvertently conveyed and social reinforcements provided by interrogators operating with a biased set of expectations. But here, too, therapists, interrogators, lawyers, or worried parents may be innocent of any conscious intent to produce false testimony" (Callahan, 1993, p. 6+).

Callahan noted that once a false memory has been established, it becomes, for all intents and purposes, a true account to the person who holds it. "It is important to realize that what psychologists have called 'confident confabulations' are not the same thing as malicious lies which are consciously devised to deceive or harm others. Of course people do lie and knowingly bear false witness, but persons can also be sincerely mistaken in their memories" (Callahan, 1993, p. 6+). Confabulation may also be a factor when hypnosis is used in a forensic context, in the belief that it confers enhanced recall, according to Webert (2003).

Conclusion

While the evidence of the unreliability of eyewitness testimony is abundant, and has been developed mainly in response to high-profile death-row issues, there is apparently no clear direction in which the solution is headed. Loftus, a psychologist with an extensive publication and research history in both psychology and jurisprudence, noted that perhaps juries should be instructed to treat eyewitness testimony at their own risk. Even Supreme Court Justice William Brennan was apparently appalled by the ease with which juries were swayed by eyewitness accounts. Perhaps the best indication that courts may come to rely less on such testimony in the future comes from the Third Circuit Court, which held that even in a non-capital case, it was improper for a trial court to exclude the kind of expert testimony that would help a jury understand the limitations of eyewitness accounts.