Much has been written about story-telling, and the use of stories to frame issues at trial. Two discrete documents – one a new law review article about story-telling versus scientific fact; the second a classic psychology text from 1932, describing an experiment where people read and then recalled a Native American story called “The War of the Ghosts” – both drive this point home.
Let’s start with DNA. After 300+ exonerations, and the attraction to forensics engendered by television series, one might think that the recovery of DNA at a crime scene – DNA that does not match the defendant – would quickly lead to acquittal. The contrary has occurred, however, particularly where a ‘good story’ to ‘explain’ the foreign DNA is told.
In NOTE: THE “ELASTICITY” OF DNA EVIDENCE? WHEN PROSECUTORIAL STORYTELLING GOES TOO FAR, 28 S. Cal. Rev. L. & Social Justice 138 (April, 2019), the following is reported:
In the recent psychological study, When Self-Report Trumps Science: Effects of Confessions, DNA, and Prosecutorial Theories on Perceptions of Guilt, Sara C. Appleby and Saul M. Kassin analyzed people’s perceptions of guilt when presented with the following: a defendant who had confessed to a crime, DNA evidence exculpating that defendant, and a prosecutor’s theory explaining the contradictory evidence. Although the study confirms that people are more persuaded by DNA than by confessions, participants in the study were three times more likely to convict when a prosecutor offered an explanation of why the exculpatory DNA conflicted with the confession than when no explanation was presented.
The NOTE goes on to show that this occurs not just in the psychology lab but in the courtroom.
The Center on Wrongful Convictions has reported 19 known cases in which a defendant confessed and was convicted despite exculpatory DNA, with additional cases having been reported since then. In rape-murder cases, a common prosecutorial theory used to override exculpatory DNA in the form of semen is known pejoratively as “the unindicted co-ejaculator” theory. The story advanced by prosecutors in these cases is that the victim had prior consensual sex with an unknown male; afterward, the defendant raped her, failed to ejaculate, and killed her. Prosecutors have also argued necrophilia, conspiracy, and other questionable theories in order to discount exculpatory DNA.
Id., 148. The proof of the potency of story-telling is in the guilty verdicts – the story triumphed over the science.
The understanding of the power of story-telling is nothing new. The 1932 book REMEMBERING by British cognitive psychology pioneer Sir Frederic Bartlett is a remarkable compendium of experiments and reasoning on how people remember and what they remember.
Particularly telling is Bartlett’s experiments with having test subjects read a story from a drastically different culture, the Chinook tale “The War of the Ghosts.” The test subjects were then asked to repeat the story over various time intervals. What was vividly demonstrated was the act of transformation – the story grew progressivey shorter [simpler] and morphed into one more familiar to the culture of the listener. In other words, unfamiliar facts were altered to fit the story format the listener was more comfortable with culturally.
Bartlett drew various lessons from this and other experiments. Memory is reconstructive, and memory is shaped by familiar schema. The basic plot was retained, but the elements were shaped by experience and culture.
What are the lessons from 1932 and 2019? Stories are powerful, but listeners will adapt the story to their own frame unless the story-teller either makes it familiar to begin with or repeats the story so it can’t be reconstructed.