Persuasion Matters

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Jurors Trust Witness Memories More Than They Should

Chances are we’ve all felt very strong about a memory at some time or another, but how accurate was that memory?  We tend to think our memories are spot-on, but research suggests otherwise.  The disparity between the perception that memory is flawless (or almost-flawless) and the reality that memory is distorted and ever-changing can present problems in the courtroom.

Why?  Memories are not nearly as “perfect” as most jurors think.   Jurors often make judgments, evaluate evidence and render verdicts based on memory-infused testimony that is not nearly as accurate as jurors (or even the testifying witnesses) believe it to be.

Simons and Chabris published an interesting study titled “What People Believe About How Memory Works: A Representative Study of the U.S. Population.”  The researchers conducted a telephone survey of 1,838 Americans with the goal of measuring common beliefs and perceptions about memory characteristics and properties.  Respondent answers were gathered, and then compared to those given by scientific experts in the psychological field of memory.

The following statements were presented to participants in the study.  The results are disconcerting.

  1. People suffering from amnesia typically cannot recall their own name or identity.
    83% of the American public agreed with this statement; 100% of the experts disagreed.   Why the discrepancy?  Researchers blame the media and popular culture as perpetuating false information about amnesia (e.g., The Bourne IdentityMemento).  The general public simply doesn’t understand how amnesia works.
  2. In my opinion, the testimony of one confident eyewitness should be enough evidence to convict a defendant of a crime.  37% of the public agreed with this statement compared to 0% of the experts.  Researchers cite prior studies related to eyewitness testimony and state that confident witnesses –even though testifying about faulty memories– are more persuasive. This can –and does–  result in wrongful convictions.
  3. Human memory works like a video camera, accurately recording the events we see and hear so that we can review and inspect them later.  Again, 0% of the experts agreed, yet 63% of the American public believed that memories were captured like a movie on a DVD.  The general public has an exaggerated and unrealistic expectation related to the accuracy of human memory.  The majority of jurors holding this belief will likely embrace any evidence based on memory as credible fact.
  4. Once you have experienced an event and formed a memory of it, that memory does not change.  48% of the public agreed with this statement.  94% of experts disagreed (6% “didn’t know).  People who likened memory to a video camera were more likely to believe that memory was permanent and unalterable.  The fact is, memory does change.  It doesn’t make the witness a bona fide liar, but it does raise questions about the accuracy of the memory.
  5. Hypnosis is useful in helping witnesses accurately recall details of crimes.  55% of the general public agreed; 0% of the experts agreed and 12% were noncommittal.  Even though the courts question the reliability of hypnosis-retrieved memories, the general public seems to give it quite a bit of weight.
  6. People generally notice when something unexpected enters their field of view, even when they’re paying attention to something else.  78% of Americans agreed.  While 81% of experts disagreed, 19% confirmed the public perception.  Researchers state that this perception can be dangerous in the courtroom: “If juries and lawyers believe that a suspect ‘should have’ noticed some event, they will tend to see claims of ignorance as deliberate attempts to deceive.”

The bottom line is this:  The general public –and therefore our potential jurors– have a very distorted and inaccurate view of how human memory works.  This misperceptions affect juror views of witness credibility, reliability and whether witness statements support the scientific, documented or physical evidence.  In short, jurors need to have a better awareness of the limitations of memory and an appreciation that even the most confident and “sure” witnesses have faulty memories.  Despite the best intentions to provide honest and accurate testimony, memories are impure, limited and can be distorted by future events.  Memories fail not because we want them to, but because our brains are simply not wired for perfection or Memorex-quality recall.

Most Americans have a distorted understanding of memory.  These distortions, if not corrected or challenged, can result in flawed evaluations of witness testimony.  Here are a few suggestions for overcoming the memory bias:

  • Introduce expert testimony pertaining to the limitations of memory.
  • All other things being equal, consider seating jurors with higher education (post-graduate) and some knowledge of psychology. Results indicated that these groups held beliefs that were more consistent with the experts.
  • Address the limitations of memory during voir dire.  Jurors tend to rally behind witnesses they like, and therefore find likeable witness testimony more credible.  With a greater awareness that memory is limited, jurors may be more willing to consider inaccuracies of the testimony.

Know your audience and plan accordingly!
Citation: Simons DJ, Cabris CF (2011)  What People Believe about How Memory Works: A Representative Sample of the U.S. Population.  PLoS ONE 6(8): e22757.  doi:10.1371/journal.pone.0022757

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