Newsweek
Memory, as experts have been trying to teach judges and jurors, does not function like an iPhone camera recording. Memories can not only be deleted; they can be altered or invented without you even realizing it, as shown in a study published last year in the International Journal of Law and Psychiatry, which involved 861 U.S. soldiers enrolled in a survival school. As part of training, they endured abusive interrogations. Afterward, many were shown a photo of someone who looked nothing like their interrogator, and interviewers insinuated that the person depicted was the culprit. Eighty-four percent of the soldiers misidentified their interrogators after being misled, and some also remembered weapons or telephones that never existed.
An extensive body of research with similar findings has become increasingly perplexing for the nation’s judicial systems, leading the National Academy of Sciences (NAS) to release a sweeping report last month calling for an overhaul of how the courts and law enforcement deal with one of the most powerfully persuasive pieces of evidence that can sway a jury: eyewitness identification. Research has shown that leading questioning or suggestive behavior by psychiatrists, police or acquaintances, as well as accounts in the media, can result in “planting” false memories in the mind of a witness. In some cases, this can lead witnesses to believe they saw incidents that never occurred. In lawsuits recently filed against Castlewood Treatment Center in St. Louis, plaintiffs have argued that therapists used hypnosis and psychiatric drugs to recover “hidden” abuse memories that turned out to be false.
Between 60 and 80 percent of psychologists and other mental health professionals still believe therapy can retrieve repressed memories, as noted in a 2013 study in Psychological Science. Yet many scientists and mental health professionals now believe that research does not support the notion that traumatic experiences can “disappear” from one’s memory only to be recalled years later in evocative detail. Here’s the more likely scenario: Those traumatic memories were instead conjured up as false memories after leading questioning by a therapist.
When it comes to long-term recollections, most memory researchers believe modifications are constantly being made, while gaps in narrative are filled in with experiences and expectations—not the actual events. Stressful situations (especially those involving a weapon), like Yvonne’s abduction, can be particularly vexing for the memory: They can take a person’s attention away from an attacker’s face and possibly lead to a skewed or mistaken identification.
Unsettling as it might be to admit it, the mind is really a muddle of distorted memory associations, further complicated by the distracting details of the moment. For most of our country’s judicial history, this understanding has been largely absent from courtrooms, but a string of shocking cases across the world over the past three decades has ushered in debate, discussion and, finally, the revamping of national laws on the issue.
Take Donald M. Thomson, a psychologist and attorney in Australia who was arrested for assault and rape in 1975. The night before his booking, Thomson had appeared on a television show discussing his research on the flaws of eyewitness testimony. As the show aired, the woman who would later identify Thomson as her attacker was being raped in her apartment. Thomson’s alibi was solid—the television show had been live. The victim later admitted she had been watching the show before she was attacked. Authorities dropped charges against Thomson after realizing the victim had confused his face on her television screen with her rapist’s.
There have been 318 wrongful convictions overturned by DNA evidence since 1989. In most of those cases, the eyewitnesses who testified felt confident in their memories when under oath on the stand. Yet eyewitness testimony contributed to 72 percent of those wrongful convictions, according to the Innocence Project, a nonprofit legal and public policy group.
Gary Wells, a professor at Iowa State University who has been working on the issue of lineups and eyewitness identifications since the 1970s, says that for a defendant, it used to be, if “you get mistakenly identified by an eyewitness, you’re just going down. There was pretty much nothing definitive enough to trump the eyewitness account.” But when DNA exonerations began seeping into the legal system in the 1990s, more courts began to ask: Why are so many eyewitness accounts misfiring?
That question has prompted some courts to revamp how such evidence is handled. In 2011, the New Jersey Supreme Court released detailed jury instructions, requiring consideration (usually at the end of a trial) of the crime’s duration of time, a witness’s level of stress or distraction, distance from the event, lighting at the time, intoxication, a focus on a distracting weapon, if there were possible racial challenges (since research shows that people make more mistakes trying to identify strangers of races different from their own) and exposure to information that may mislead the memory.
In 2012, the Oregon Supreme Court also mandated new procedures for allowing eyewitness identifications in court, requiring determination of whether “suggestive” tactics like cueing the witness or bolstering an identification were used by law enforcement. Meanwhile, the Massachusetts Supreme Judicial Court has been positioning itself to follow suit after three years of closely examining the issue and hearing oral arguments this past September in four cases involving eyewitness testimony. Eleven states now require law enforcement officials to follow more careful procedures when obtaining eyewitness identifications, according to the NAS report, but policies and practices vary widely by state. Despite growing awareness about memory science, the intricacies of how it works still remain largely unfamiliar to many jurors, witnesses, attorneys, judges and law enforcement officials.
