In Andrew Lloyd Webber’s musical Jesus Christ Superstar, Pontius Pilate asks his most famous prisoner, “And what is ‘truth’? Is truth unchanging law? We both have truths. Are mine the same as yours?” Pilate’s questions could just as well be asked in any discussion of witness testimony in legal proceedings, because the truth about the truth is that it is not a fixed and stable entity – modern science is showing us more and more that witnesses who testify honestly may not be telling the truth.
Lawyers seeking to combat the testimony of an opposing eyewitness do so through the tool of cross-examination. There are a couple of common approaches: (1) try to show the witness is lying; and (2) try to show the witness didn’t really witness the relevant event or action. Under the first approach, the lawyer will attempt to trip up the witness on specific facts, confront him with contradictory evidence, or show that he is biased in some way. The second approach focuses on perception and asks such questions as: Was the witness physically able to see, hear or otherwise perceive what was happening? and Was the witness impaired in any way from making accurate observations?
Lawyers have been using these techniques for centuries, but recent scientific discoveries about the nature of memory have raised a new and potentially explosive issue, one that applies even when the witness is not lying and when the witness fully perceived the relevant incident. According to the most recent studies, our memories may have little or no relationship to the events that we purport to remember. These scientists tell us that many individuals who ‘remember’ something they observed or experienced are not lying, but neither are they accurately reporting the events they observed.
For centuries, the common sense view of memory has been that when we experience or observe something, it is recorded in our brain accurately, like a videocamera records an event (although there are problems with this analogy because videos have their own limitations, which will be the subject of a future blog entry). There in our brains these billions of videotapes reside, waiting for something to trigger a “memory”, which, we think, means the tape is played. There are variations in quality and reception, and how easily accessible the tapes are. We do acknowledge that some people have better memories than others, and some people have something we call ‘photographic memories.’ But by and large the assumption is that the true, accurate memories are there, encoded in neuron pathways – it’s just that some are better than others in retrieving them. This view was supported by some experiments performed on patients during brain surgery, when doctors would poke a site in the patient’s brain and all of a sudden she would vividly remember an incident from her past, complete with sights, sounds and smells. For a time, some scientists believed that inside your head you might have the complete, accurate story of your past – just waiting for the technology to download it onto a boxed set of DVDs.
But more recent studies have erased this view and forced us to rewind our thoughts about memory. Apparently memories, far from being etched in neural stone, are very susceptible to changes – changes that we or others may bring about, either intentionally or not. The modern view is that each memory is a kind of computer file – when we retrieve the memory file from storage, it must be reconstructed according to a set of instructions – this reconstruction process makes the memory vulnerable to alterations. Any alterations, additions or deletions to the memory then become part of the file, which is then stored in its new form. The original file has been overwritten and is no more. A part of our past is forever changed. Scientists say that the more a person recalls a memory, the more likely that it will be changed over time. The only pure unadulterated memory, they say, is one that has never been remembered.
What causes alterations in your memories? Our psychologies are so complex that the answer is, almost anything. It could be as simple as a ‘bug’ in the instructions for reconstructing your memory that leaves something out, or takes a piece of one memory and inserts it in another. It could be new information – someone tells you your grandmother was there on your 10th birthday and you “remember” her being there, or you see an old picture and your brain incorporates the information in the photo into the memory the next time you recall it. In cases involving child abuse, some investigators and therapists have been accused of planting false memories through the power of suggestion. Or it could be a feeling – guilt, resentment, shame – that leads one’s unconscious to erase some portion of a memory.
Several years ago, at a Boston Bar Association seminar on witness testimony, an arbitrator on the panel told the story of the day he left the house with a legal document in his hand, drove around town doing various errands before finally sitting down to work on the document, which he then couldn’t find. He retraced his steps to every location he had been to since he left his house, but no document. Frustrated, he returned home – to find the document sitting on his desk. He had never taken it out of the house to begin with, yet he had a vivid memory of having the document with him throughout the entire trip. Why did the arbitrator’s memory insert the document where it didn’t belong? Maybe it was a matter of wishful thinking – he believed he should have brought the document with him, so in order to avoid a bad feeling about forgetting it, his brain simply added the document to his memories.
The bottom line of this new research, as the arbitrator’s story highlights, is that a witness may not be telling the truth, but may not be lying either. The old saying that ‘true fact’ is redundant may have to be revised. The facts of a case are what the finder of fact says they are. If an uncontradicted witness testifies without lying to a set of facts that are credited by the factfinder, those are the facts, but there is no guarantee that they are true. Where does that leave the search for the truth? In the 1700s, British philosopher George Berkeley concluded that nothing existed unless it was being perceived by someone. In order to avoid a world in which objects come in and out of being every time you close your eyes, Berkeley concluded that God was perceiving everything all the time. Berkeley’s theory has long since been debunked, but the new science of memory may require its resurrection. For if we cannot rely on the memories of credible, truth-telling witnesses as an accurate reflection of what they have observed and experienced, how can a legal factfinder ever find out what truly happened? As advocates, perhaps the best we can do is educate factfinders – and witnesses, for that matter – about the elusive nature of memory.
