Eyewitnesses are often the cornerstone of a criminal case —providing critical evidence to help prove the victim’s guilt. At least 77,000 people are arrested every year based on testimony from eyewitnesses. Unfortunately, the mistaken identification of perpetrators was responsible for around 69% of all wrongful convictions later overturned by DNA evidence. Cognitive psychologist Dr. Elizabeth Loftus suggests the problem lies in the fact that our memories might not be as reliable as we think.
Can We Rely on Our Memories?
The problem with eyewitness testimony is that while we constantly rely on information stored in our memories, our memories are actually terrible records of what really occurred. Most people understand that our emotions can play a role in remembering an event and that few people can remember everything they see, but the problems go far beyond these issues. In fact, it is incredibly easy for people to make up new memories, which is precisely what Dr. Elizabeth Loftus has studied and something she has noticed affecting criminal trials —which is why her research is so interesting to attorneys.
Modifying a Witness’ Memory
Dr. Loftus first noticed that people could be susceptible to memory alteration when she noticed that leading questions could modify someone’s recollection of an event.For example, if an eyewitness of a car accident is asked, “did you notice the broken headlight?” they will be much more likely to testify they saw a broken headlight than they would if they were asked, “were the headlights of the car working?” The leading nature of the first question causes witnesses to believe there was, indeed, a broken headlight in the car, which they may not have recalled originally.
Additionally, when witnesses hear other accounts of an event or media coverage of an event, they often unconsciously add details from these accounts to their stories. It’s easy to see how this could affect a criminal case and why criminal lawyers must question whether the testimony of an eyewitness is accurate.
Building False Memories
But people can even remember events that never occurred if they are coached the right way. Dr. Loftus proved this in her famous “lost in the mall” experiment. The researchers gave 24 participants narratives about four events that occurred in their childhood that were written by their family members. The participants were then asked to remember everything they could about the events. While three of the narratives were true, one (documenting a time the participant was lost in the mall as a child) was false, yet 25% of the participants recalled events related to the false narrative. When told that one of the narratives was false, 5 participants failed to identify the mall story as the fictional event. The participants who remembered the event combined real childhood memories from the mall to create a confirmation bias making them recall an event that never actually occurred. The result of the experiment is to show that you can’t consider an eyewitness account reliable just because someone accepts it as true.
How this Affects Criminal Trials
Criminal defense lawyers often see eyewitnesses providing testimony that a person looked a certain way only to change their story when they see the defendant charged with a crime. For example, they may originally recall a tall man with dark hair and a beard but then suddenly say the person they saw was short, blond, and clean-shaven. Many times eyewitnesses are certain of events, but just because someone feels certain about what they witnessed doesn’t mean their account is reliable.
Even confessions can be caused by false memories, especially after a suspect has suffered from severe sleep deprivation. In fact, the Innocence Project in New York says that up to a quarter of wrongful convictions are associated with false confessions —so even if you confessed to a crime, you can recant your confession, and your attorney can help show that you falsely confessed in the first place.
If you have been accused of a crime and want to challenge how reliable the eyewitness testimony is, please call Peter M. Liss at (760) 643-4050 to schedule a free initial consultation.