Submitted By: Mike Spindell, Guest Blogger
I’d only planned to write one guest blog this weekend, but this morning on Huffington Post I saw a video from a TED lecture. http://en.wikipedia.org/wiki/TED_%28conference%29 The lecture was from Psychologist Elizabeth Loftus http://en.wikipedia.org/wiki/Elizabeth_Loftus who has been studying false memories since the 1970’s. She links what she discovered with one of the failings of our Criminal Justice System, with the false memories reported in court. This is an 18 minute lecture but it is well worth your time and bears directly on the topics we discuss here on the Law Blog. I must note that in it she is critical of certain psychotherapy techniques and I am a psychotherapist. Despite my training and profession I believe her critiques are on point and illustrate one of the problems inherent in some psychotherapies. For any readers that are interested in our legal system and who care about its problems, viewing this will represent time well spent. My technical skills are such that I don’t know how to properly make the video appear in WordPress but if you click on the following link you will be able to see it: Mystery of Memory
Submitted by: Mike Spindell, Guest Blogger
Thanks Mike…. I think I understand what Nick is saying about Marilou…. Aka Elaine Nardo…. But in general eye witness testimony is very unreliable….. Thanks for an excellent article..
Wasn’t Dr. Loftus hired by the Catholic Church in Boston in their case to defend the church against charges that the Rev. Paul R. Shanley molested plaintiffs Gregory Ford and Paul Busa? (repressed memory at issue)
Lou Reed died today. He was one of the best of his generation of musicians:
Apparently you don’t read well, one of the many accusations you love to fling.
“getting people to remember facts”
The whole point of the lecture and the corroborating evidence that OS supplied, is that often the “facts” remembered in criminal cases are specious and that people get wrongly convicted due to mis-remembered witness testimony.
Part two of the comment by thesaintdoktoroscar
http://www.csicop.org/si/show/whatever_happened_to_jane_doe/
I am going to bend the rules here a bit, because a great comment by contributor thesaintdoktoroscar got stuck in the trash. There were three links in the comment, so I am reproducing the comment, breaking it down into two comments so the links will publish. H/T to the commenter.
http://www.csicop.org/si/show/who_abused_jane_doe_the_hazards_of_the_single_case_history_part_1/
http://www.csicop.org/si/show/who_abused_jane_doe_the_hazards_of_the_single_case_history_part_2/
When a person is able to remember something then an investigator goes about finding corroboration to support or not support their memory. If you find corroboration it’s probably true, no corroboration, maybe not. It’s putting together a jigsaw puzzle. No one gives you the entire picture. A memory from a witness may take you down a path no one else had thought. There are dead ends, cross traffic, turns, all finding the pieces. If you’re strictly a linear thinker, you’re horseshit. It’s always about corroboration. If your case is the memory of a witness w/o corroboration, you have a horseshit case.
I worked a few false memory civil cases involving sexual abuse. Shrinks do much more harm than good. I always considered it hocus pocus horseshit. I saw a father put through hell because a feminist shrink made his adult daughter think he had abused her. I don’t know who was more screwed up, the plaintiff or her hairy legged/armpit shrink. The jury HATED her and rightfully dismissed her testimony. The jury, mostly women, came back in 45 minutes for the defendant.
It is no revelation to anyone who does investigations that memories can be wrong, partial, obscured, etc.
“Getting people to remember facts….”
That is exactly the problem Dr. Loftus describes. What a person “remembers” may not be what actually happened. The memory is “real” and the subject believes it to be real. There is a phenomenon called confabulation in which the brain inserts logical visual and auditory information into areas where there are no memories. That happens far more than people think. For example, I had a client who was involved in a car crash. She was hit from the side. She absolutely remembers pulling her car off the road onto a grassy shoulder and stopping. But something curious about her story. She says she saw the other car coming and felt the crash. Then she remembers pulling off the road and stopping. She then said that her mother was standing at her driver’s side door trying to get the door open and talking to her. There was also a police car there and a crowd had gathered. When asked how that could have happened in the space of three seconds between her stopping the car and the crowd gathering, she still insisted she remembered pulling off and stopping the car. Her mother was the passenger and said my client was knocked out cold by the impact and was slumped over the wheel. The car coasted to a stop on the grass beside the road. Yet, her memory was vivid and could not be dislodged.
Police investigators and mental health professionals who try to get people to retrieve memories are playing the game of GIGO. Garbage In, Garbage Out. I have worked with the late Martin Orne, PhD, MD, one of the leading researchers in memory and hypnosis. Martin’s very first published paper was on the subject of comparing a hypnotically recalled memory with what actually happened. He had subjects draw, under hypnosis, things they had drawn as children. The instruction was to age regress to childhood and draw something they drew as a child, exactly as they did as a child. He chose subject matter where he had obtained childhood drawings from those people for comparison purposes. The result? The drawings that were supposed to be exact replicas bore no resemblance to the original childhood drawings.
Martin and I worked on one case where the issue was a therapist who was “helping” a woman recall alleged abuse. What we found was the therapist, by repeated questioning with leading questions, was planting false memories that were “real” to the purported victim.
Both Dr. Orne and I thought any attempt to enhance or bring back memories was tampering with evidence, literally. That includes both hypnosis and repeated questioning.
http://www.psych.upenn.edu/history/orne/orneetal1985innijpcjbc.html
People w/ incredible memories have Hyperthymesia. Marilu Henner is one of these people. She can remember every day of her life. Give her a date and she’ll give you details of it.
Getting people to remember facts is what I did for a living. It’s a craft that takes patience and persistence.
I had an an experience about four years ago. I was dying from congestive heart failure and came to see that my daughters knew almost nothing of my life before I became their father. Since I married their mother at 37 there was much in my life, good and bad, that I had never discussed with them Since my father died when I was 18 I have missed him for more than 50 years and there is so many discussion I would have loved to have had with him as an adult and much regret that it couldn’t be. Anyway I wrote more than 850 pages detailing my experiences and did them as honestly as I could, to show them both may faults and my good deeds. In the writing of it I discovered these mistakes in my remembrance. I was able to discern it because certain songs and certain movies played a part in my tale. For instance the happiest day I had spent in my life with my parents occurred the day There was a private dealer advance showing introducing the new 59 Oldsmobile. After the festivities at the then NY Colosseum, we then saw Hitchcock’s “North by Northwestt” at the Radio City Music Hall and ended the day with dinner at the legendary Carnegie Deli. I would have sworn in court that that occurred in 1957. Research showed me the movie was released in the summer of 1959. This was just one incident of my memory deceiving me, luckily no ones life was on the line.
With this we can see the value of Magna Carta Article 38:
[As this is translated from the Latin original, the renderings vary:]
“38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purpose.”
“38. No bailiff, on his own simple assertion, shall henceforth put any one to his law, without producing faithful witnesses in evidence.”
“(38) In future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.” — British Library
“38. In future no official shall put anyone to trial merely on his own testimony, without reliable witnesses produced for this purpose.”
Clause 38 stated that no-one could be put on trial based solely on the unsupported word of an official.
“Clause 38 is almost as important. It said: ‘No official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.’ Most of the worst injustices in recent legal history have occurred when people have been convicted on no real evidence other than confessions made under interrogation.” — The Independent (UK), Sunday, Dec. 19, 2007
The practice of revenue agents (police) roaming the highways on the lookout for revenue taxable events (speeding, etc) would be destroyed if defendants invoked this principle. And if judges regarded it. Law enforcement would be reduced to pursuing suspected offenders upon the complaint of injured parties or witnesses. Highway patrols would be made into “Good Samaritans” on the lookout for distressed travelers.
Then we have the “Police Officers Perjury Immunity” case, Briscoe v LaHue, 460 U.S. 325 (1983),
which ruled that police officer witnesses have the same immunity from civil suit for damages as any other witness. No biggie there.
However, the Court went on to say that criminal prosecution of police officers for perjury was so little of a threat to dishonest officers as to be virtually nonexistent.
That is, a police officer’s oath is of no legal value. It will not be enforced on officers giving false testimony or presenting false evidence against a defendant.
The worst thing that will happen to a perjuring officer is that, if false testimony is extremely egregious, (s)he is fired. If that takes place the officer may have to move somewhere far away. Even the grossest misbehavior does not commonly result in the officer having to earn a living outside law enforcement unless convicted of a violent felony. And such felony will not be perjury.
From Briscoe:
“Former criminal defendants may well wish to avoid further entanglements with the legal system and are unlikely to have the resources needed to pursue such suits. Lawyers will probably have little incentive to become involved in actions against the police, and those that do face an uphill struggle.” Footnote 44
[A major reason for allowing suits against officers for alleged perjury is that the damages are not seized from the officer but are paid by his/her agency or by a risk management pool. It does not come from their assets nor is garnished from their pay. They are paid, overtime if appropriate, for attending court.]
“Police officers and other government officials differ significantly from private citizens, around whom common-law doctrines of witness immunity developed. A police officer comes to the witness stand clothed with the authority of the State. His official status gives him credibility and creates a far greater potential for harm than exists when the average citizen testifies. The situation is aggravated when the official draws on special expertise. A policeman testifying about a fingerprint identification or a medical examiner testifying as to the cause of a death can have a critical impact on a defendant’s trial. At the same time, THE THREAT OF A CRIMINAL PERJURY PROSECUTION, which serves as an important constraint on the average witness’ testimony, IS VIRTUALLY NONEXISTENT IN THE POLICE-WITNESS CONTEXT [my emphasis in bold]. Despite the apparent prevalence of police perjury, prosecutors exhibit extreme reluctance in charging police officials with criminal conduct because of their need to maintain close working relationships with law enforcement agencies. The majority thus forecloses a civil sanction in precisely those situations where the need is most pressing.”
“… the danger that official witnesses would be inhibited in testifying by the fear of a damages action is much more remote than would be the case with private witnesses. Policemen normally have a duty to testify about matters involving their official conduct. The notion that officials with a professional interest in securing criminal convictions would shade their testimony in favor of a defendant to avoid the risk of a civil suit can only be viewed with skepticism. In addition, police officials are usually insulated from any economic hardship associated with lawsuits based on conduct within the scope of their authority.”
“Police officers are generally provided free counsel and are indemnified for conduct within the scope of their authority.” Fn. 38
“Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices” Fn. 31
“[T]he courts are in many instances under the control of those who are wholly inimical to the impartial administration of law and equity” Fn. 31
“judges exercise their ‘almost despotic powers . . . against Republicans without regard to law or justice’ ” Fn. 31
“The outrages committed upon loyal men there are under the forms of law. It can be summed up in one word: loyal men cannot obtain justice in the courts . . .” Fn. 31
Further, on oaths:
In modern legal use oaths are not made by anything, not even “In the name of God.” They do not even so much as pretend to have any substance – danger of God or some god striking the perjurer dead, sick, whatever. At best they are relics of some or another religion or religions, which in that have no place in a secular society. To think that police and other government officers and paid witnesses fear God or some god if they lie under oath, and to rely on that for protection from lies is optimistic (or something else: credulous) to a fault.
All that is needed, in place of oaths, handsigns or other superstitious nonsense, is an instruction by the court (judge) to each witness that if (s)he lies on the witness stand (s)he can be punished according to law.
Mike S,
There is much support for what she said, as you know.
These techniques of implanting a false memory she spoke of is not the end of the matter.
One of the largest industries in the U.S. is the memory changing business:
(A Structure RE: Corruption of Memes – 3). You can call it propaganda or false memory implants, but either way it is damaging to the public when government does it routinely.
Very interesting discussion Mike. I watched the video and started wondering just what memories of mine are real.
Having studied hypnosis, and am now a certified trainer of same, I must agree. Memory is memory and feels the same even when implanted. Eyewitness testimony is the very worst evidence in my opinion.
How many prosecutors coach their witnesses. How many innocents were convicted on eyewitness testimony. All to many, right?
Mike,
i found the video on the Youtube site:
Elizabeth Loftus: The fiction of memory
In case the Huffington Post is too slow, the link above may be faster for you.
It is a good video.
Thanks Mike S.
http://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory.html
[ted id=1826]
I have met Dr. Loftus and have admired her work for years. She is an expert on eyewitness testimony as well. The courts rely on eyewitness accounts to an uncommon degree, which is a very dangerous practice. That the eyes can deceive was illustrated here yesterday by the illusion Nal presented.
I have a couple of courtroom anecdotes that illustrate the problem with eyewitness testimony. There was one case in which the defendant was an Amish man. He wore the traditional black attire and beard. Many of the man’s neighbors attended the trial, so his attorney got permission from the judge for him to sit in the gallery with his friends and family rather than the defense table. When the prosecution witnesses appeared in the courtroom, they were asked to identify the defendant sitting among all the other Amish men. Not one of them got it right.
In another case, a lawyer asked a young man of his acquaintance if he would come sit at defense table with him while the real defendant sat over by the courtroom wall. For a couple of portraits of Ben Franklin, the attorney’s employee obliged. He looked nothing like the defendant, but the police officer witness pointed him out as the man he had arrested–a man he had never seen before in his life. A guilty verdict came back and the bailiffs took the guy into custody. It practically took an act of Congress to get him out of prison and the judge was not at all happy with defense counsel. I have an idea a few more portraits of Ben Franklin had to change hands after that.
I have a whole lecture about “recovered memories” and on exactly how suggestible people are when interrogated. As a long-time student of Milton Erickson and his techniques of indirect suggestion, most people are surprised when it is demonstrated to them personally how easy it is to implant false memories.