By SUSANNAH CAHALAN
Thanks to New Jersey, it’s been a good week for memory researchers.
The state Supreme Court announced on Wednesday that it will alter the way eyewitness testimony is presented to jurors in criminal trials, making it easier for defendants to dispute the oldest — and, studies now show, maybe most fallible — type of evidence.
In 75% of known wrongful convictions, false eyewitness testimony plays a large role. And 190 of the 250 first DNA exonerations involved mistaken eyewitness accounts. It’s important to note, however, that eyewitnesses are not lying; they really believe that they’re telling the truth, and that’s why their testimony is so convincing.
New Jersey’s decision requires higher scrutiny in pretrial hearings and better education of jurors, judges and lawyers about the science of memory.
Some of the new research tells us that there is no correlation between witness confidence and accuracy — the more certain a person is doesn’t make them more likely to be correct. It also shows that there is a pervasive “cross racial bias” that makes people less able to identify those outside their own race.
Researchers have also shown that highly stressful and violent situations can make experiences seem more vivid in hindsight — but less accurate. If there’s a weapon, a witness is less able to identify physical characteristics in a factor called “weapon focus.”
In his new book “Brain Works,” journalist Michael Sweeney talks about how memories are formed and saved — and can be manipulated, even without the help of a particularly cunning attorney. Though over 60 percent of people believe that memory is similar to a video camera, in reality Sweeney gives a better analog: it’s more like “working on four or five jigsaw puzzles at the same time.”
Just think, for example, of two people who experience the same thing, but recall it entirely differently. This is because not all memories are created equally — and are rife with issues.
A memory is first laid down in a process called encoding. The next phase is storage. Memories are believed to be housed in the area of the brain where the initial perception occurred (if it’s a visual memory, it will be housed in the visual cortex) but the entire memory is stored in several parts of the brain.
Conjuring up a complex memory — like a crime — takes the interaction of many different parts of the brain. Intense emotional experience or trauma makes it more likely for a memory to be recorded, but the more complicated the experience, the more complicated the retrieval.
“We have a need to make the human brain make sense of the world by creating little stories,” says author Sweeney. “We want a linear narrative, but in fact it’s like ‘Tree of Life’ or ‘Memento’ ” — movies in which recall is non-linear and confusing.
This week, the US Supreme Court said that it will re-examine the validity eyewitness testimony for the first time since 1977.
“People who are doing work on eyewitness testimony are glowing with pride,” says Elizabeth Loftus, professor of psychology and law at the University of California, Irvine and the nation’s preeminent expert on human memory.
Researchers, she adds, have “faced resistance over the decades. This is slowly eroding.”
The Innocence Project, a national organization dedicated to freeing people wrongly accused, is hopeful about the long-range implications of the New Jersey decision.” [This] should encourage those jurisdictions that have not yet done so,” says IP attorney Karen Newirth, “to adopt those reforms that will improve accuracy in eyewitness identifications.”
“Brain Works” author Sweeney is more unequivocal: “That our memory is fallible and malleable,” he says, “is going to shake up the foundations of our legal system.”
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