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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 14, 2011

The Problem(s) with Memory

Human memory is often central to decisions made in the court system. Witnesses testify based on their memories of their observations of various matters. How confident should one be in a human’s memory? How confident should one be in someone’s confidence of their memories? Let’s say that human memory is far from infallible.

When I was a prosecutor, I handled most of the sexual assault cases. In many of those cases, the only direct evidence against a defendant was the victim’s memory of the assault. Many of the victims were children. I attempted to have the law enforcement agents who investigated these crimes consider the victim’s memory similar to a crime scene. I wanted to preserve the crime scene and prevent contamination of it until all of the evidence had been collected. I had trained interviewers complete videotaped forensic interviews of the victims. I insisted on taped statements from suspects and witnesses.

I also read a book by Daniel L. Schacter, a professor of psychology at Harvard, entitled The Seven Sins of Memory.[i] Although published ten years ago, it still offers much about the research into memory. The book is arranged in chapters around what Dr. Schacter has called the seven sins of memory. I will touch on each of the sins.

Schacter identifies the first sin of memory as transience which is forgetting things due to the passage of time. He writes: “Perhaps the most pervasive of memory’s sins, transience operates silently but continually: the past inexorably recedes with the occurrence of new experiences.” We forget things with time.

The second sin of memory that Schacter identifies is absentmindedness. Absentmindedness is “lapses of attention that results in failing to remember information that was either never encoded properly (if at all) or is available in memory but overlooked at the time we need to retrieve it.” Schacter believes absentmindedness is often the result of divided attention. You are thinking about something else so you are not remembering another thing. Anyone who has set his or her keys or glasses down, only to forget where, has experienced this sin.

Schacter states the third sin of memory is blocking. Blocking occurs when the information that you are attempting to recall has been encoded in memory, but you don’t have the ability to recall it when desired. We all have had the experience of having something on “the tip of our tongue” but can’t seem to come up with it.

These first three sins are mostly passive culprits in reducing the accuracy of the justice system. People forget, and therefore cannot tell us, what we want to know to make an accurate determination of past event. An honest statement from a witness of “I don’t remember” will often be considered as no evidence at all, providing no evidentiary weight in any direction. The sins that I address next week will be more pernicious in our quest for the truth.

[i] Schacter, Daniel L. 2001, The Seven Sins of Memory, How the mind forgets and remembers. Houghton Mifflin Co., N.Y., N.Y.

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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