{"id":2656,"date":"2020-03-20T14:42:31","date_gmt":"2020-03-20T18:42:31","guid":{"rendered":"https:\/\/www2.law.temple.edu\/aer\/?p=2656"},"modified":"2021-12-16T14:56:57","modified_gmt":"2021-12-16T14:56:57","slug":"the-memory-disconnect","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2020\/03\/20\/the-memory-disconnect\/","title":{"rendered":"THE MEMORY DISCONNECT"},"content":{"rendered":"

Anyone who thinks about the Law of Evidence knows that there are gaps between cognitive psychology and the rules we try cases by.\u00a0 Excitement may distort or inhibit perception, but we permit and rely upon excited utterances as statements valued for their sincerity and<\/em> truth.\u00a0 The dangers of limiting instructions are clear \u2013 they sometimes exacerbate the impact of the problematic proof, yet we teach Rule 105 as a \u2018fix\u2019 to almost all risky evidence and then proceed under the myth that jurors will follow them to the \u201ct.\u201d<\/p>\n

Yet nowhere may the gap between what science teaches and what the law allows be greater than on the subject of memory.\u00a0 We regularly see lawyers \u2018refreshing memory\u2019 as if it really works and generates accurate recall.\u00a0 Science suggests otherwise.<\/p>\n

Rule 612 presumes the validity of using writings \u2013 even of third parties \u2013 to refresh witness memory.\u00a0 And a brief LEXIS search found no cases \u2013 except where hypnosis is involved – where a Court concluded that the refreshing process produced an unreliable [read \u201cinadmissible\u201d] memory.\u00a0 Yet this can\u2019t be correct.<\/p>\n

What do we know from memory science?\u00a0 Detail memory drops significantly within hours of an event; and how questions are asked (if the document was generated in an interview process) can itself create false memories. \u00a0\u00a0Consider the classic memory research, the car accident study of Elizabeth Loftus.<\/p>\n

What did she test?\u00a0 As described in one summary,<\/p>\n

7 films of traffic accidents, ranging in duration from 5 to 30 seconds, were presented in a random order to each group.<\/p>\n

After watching the film participants were asked to describe what had happened as if they were eyewitnesses.\u00a0 They were then asked specific questions, including the question \u201cAbout how fast were the cars going when they (smashed \/ collided \/ bumped \/ hit \/ contacted) each other?\u201d<\/p>\n

Thus, the\u00a0 [Independent Variable] was the wording of the question and the [dependent variable] was the speed reported by the participants<\/p>\n

https:\/\/www.simplypsychology.org\/loftus-palmer.html<\/a> (last visited 2-22-20).\u00a0 The findings were stark \u2013 as the word changed, the speed estimate changed as well.<\/p>\n

\"loftus<\/p>\n

 <\/p>\n

The suggestivity was not limited to analyzing what was actually seen; it extended to what was not seen but what was believed.\u00a0 One week later those who viewed the film were asked questions including \u201cDid you see any broken glass \u2013 yes or no?\u201d\u00a0 There was no broken glass in the filmed event.\u00a0 Those who were questioned with the more potent word\u00a0 – smashed \u2013 now had a new memory entirely:<\/p>\n

\"loftus<\/p>\n

Id.<\/em><\/p>\n

What does this mean? \u00a0\u00a0When lawyers read\/use interviews, they must understand that the interviewer may have had as much to do with the memory as the speaker.\u00a0 And how does this link back to refreshing recollection?\u00a0 It allows a technique that has serious problems:<\/p>\n