If you watch any crime dramas on TV, you’ll recognize that eye witnesses are often the cornerstone of a criminal case -providing critical evidence to help prove the victim’s guilt. But are firsthand witnesses accounts actually a reliable piece of evidence in a criminal trial? Cognitive psychologist Dr. Elizabeth Loftus suggests that our memories might not be as reliable as we think -and that’s something important to remember when discussing a firsthand witness accounts with your criminal defense lawyer.
The problem is that while we constantly rely on information stored in our memories, our memories are actually terrible records of what actually occurred. Most people understand that our emotions can play a role in how we remember an event and that few people can actually 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 defense attorneys.
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 a firsthand witness of a car accident is asked “did you notice the broken headlight” versus “were the cars headlights working,” they will be much more likely to say they saw a broken headlight because they were led to believe there was, indeed, a broken headlight in the car. Additionally, when witnesses hear other firsthand witness accounts of an event or media coverage of an event, they often unconsciously add details from these other accounts to their stories. It’s easy to see how this could affect a criminal case and why criminal lawyers must ask eye witnesses so many questions to evaluate the accuracy of their testimonies.
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 were false, 5 of the participants failed to identify the mall story as the fictional event. The participants who remembered the event combined real childhood memories from the mall together to create a confirmation bias making them recall an event that never actually occurred.
Criminal defense lawyers often see firsthand witness accounts recalling a person who looked one way (for example a tall man with dark hair and a beard) only to change their story when they see the defendant charged with a crime (for example, suddenly saying the person they saw was short, blond and clean-shaven). Many times eye witnesses are certain of events, but there is no relationship between certainty and accuracy.
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 convictions -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 believe false firsthand witness accounts may have affected your case, please call Peter M. Liss at (760) 643-4050 to schedule a free initial consultation.
Creative Commons Image by JD Mack