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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

March 19, 2011

The Problem(s) with Memory - Part Two

In my last entry, I discussed three of the seven “sins of memory” identified by Daniel L. Schacter, in his book, The Seven Sins of Memory, How the Mind Forgets and Remembers. I will now discuss two more sins—ones that threaten the certainty of recollections we hear coming from a witness stand.

The fourth “sin of memory” is misattribution. Misattribution includes believing we remember things, that in fact, never occurred, and believing we are imagining things that we are actually remembering.

Schacter writes: “.. misattributions are surprisingly common. Sometimes we remember events that never happened, misattributing speedy processing of incoming information or vivid images that spring to mind, to memories of past events that did not occur. Sometimes we recall correctly what happened, but misattribute it to the wrong time or place. And at other times misattribution operates in a different direction: we mistakenly credit a spontaneous image or thought to our own imagination, when in reality we are recalling it—without awareness—from something we read or heard.”[i]

Examples of misattribution are déjà vu and erroneous eye witness identifications. Schacter discusses numerous examples of individuals falsely accused of crimes based on faulty eye witness identifications. He discusses the research on “unconscious transference” where one unconsciously transfers memory of an individual from one context to another, and binding failures where we incorrectly glue together various pieces of memory to create a fabricated memory.

The fifth “sin of memory” is the sin of suggestibility.

Schacter writes: “Suggestibility in memory refers to an individual’s tendency to incorporate misleading information from external sources—other people, written materials or pictures, even the media—into personal recollections. Suggestibility is closely related to misattribution in the sense that the conversion of suggestions into inaccurate memories must involve misattribution. However, misattribution often occurs in the absence of overt suggestion, making suggestibility a distinct sin of memory.”[ii]

This sin of memory is also implicated in false eyewitness identifications through things such as show-ups or poorly conducted lineups. Further, Schacter reports research that casts considerable doubt on an eyewitness’s evaluation of their certainty of their identifications. Anyone who has defended someone on charges based on an eyewitness testimony knows its power on a jury, especially the eyewitness’s testimony that they are “certain” that the defendant was the person who committed the crime. The research Schacter references infers that a very uncertain identification can be transformed into a certain identification merely with the word “Okay” spoken by the officer administering the line-up.

As a defense attorney, I was involved in an attempted homicide case that involved an issue of whether or not a knot would slip. I claimed that the knot would slip—which would help exonerate my client. The State argued that it would not slip. An investigator with the DA’s office and I took the knot to a Coast Guard Officer in Milwaukee. I was watching the officer play with knot. Unfortunately, the investigator had left the room for a minute. While the investigator was playing with the knot, the knot slipped. When the investigator came back into the room I told the investigator what happened. The investigator said to the officer: “It didn’t slip did it?” The officer immediately said, “No”. I couldn’t believe it. We went to trial. The knot slipped at trial, and my client was acquitted. I do not believe that the officer was lying. I believe that the officer’s memory was changed by the investigator’s suggestion that the knot did not slip.

Suggestibility also is implicated in false confessions. Certainly many false confessions are the result of outright coercion. But, as Schacter notes, a subset of these false confessions involve the confessors believing that they committed crimes that they actually didn’t commit. In his book, Schacter discusses individual cases involving false confessions and suggestibility.

Schacter further reports on the research regarding the suggestibility of interviews with young children. I understand this research is controversial as child victim advocates sometimes view this research as antithetical to protecting children and getting child molesters off the street. As a prosecutor I was extremely interested in this issue. It’s the reason I bought Schacter’s book, and started requiring recorded interviews by trained forensic interviewers. Anyone who has been involved with interviewing children knows the power of suggestibility—in both directions—from allegations to recanting of allegations. Anyone making decisions about other’s lives based on memories should know the research about suggestibility and be on guard for those factors that may influence memories.

I will continue my discussion of memory a future entry. As I will be involved in another project for the next several weeks, I probably won’t be back for a week or so.

[i] Schacter, Daniel L. (2001) The Seven Sins of Memory, How the Mind Forgets and Remember,N.Y., N.Y. p. 90

[ii] Ibid. p. 113.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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