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Tuesday, February 10, 2015

Brian Williams, Eye Witness Testimony and the Permeability of Memory

I have no idea after reading this article in the New York Times if Brian Williams does or does not believe that he witnessed the helicopter crash when he was actually nowhere near it, but I do believe, based on scientific evidence discussed in this post, that our memories are highly permeable.  Things that we see and hear later can become part of what we think are events we actually experienced.    In other words, our memory is not like a hard-drive or a camera where events are recorded.  Instead, they are a creation of our imagination that recreates themselves every time we think of them.  See this article in Scientific America for the details.   In an article I’m preparing for the current submission season, I start with reference to the charming  Lerner & Lowe song from Gigi  where Maurice Chevalier and Hermione Ginglold  compare conflicting versions of the first time they met—each equally sure they are right.  And that’s the problem—our mind gives us memories as a seamless whole, we cannot perceive cracks or seams. 

But what does this have to do with law?  Well, Brian Williams will be fine whatever happens.  However, the millions of people in the United States who have been convicted based on inaccurate eye-witness testimony are far less fortunate.  Here at Texas Tech University we recently honored the memory of Tim Cole, a student at the university, who died in prison after being wrongly convicted of a rape based on now recanted eye-witness testimony.

Elizabeth Loftus, the research psychologist who did the most to make this phenomena known in the criminal justice community, describes here research in this TED Talk and her website at the UC Irving School of Law will lead you to her substantial body of work.   My very favorite study showing how false memories can be created involves individuals who were convinced that they shook hands with Bugs Bunny at Disneyland (an intellectual property impossibility).  Other legal scholars to check out are Mark Godsey at the University Of Cincinnati College of Law School, Sandra Guerra Thompson at the University Of Houston Law Center, Professor Brandon Garrett at the University of Virginia School of Law, Patricia J. Williams at Columbia Law School.  For a compilation of materials see these collections put together by the Huffington Post and The Innocence Project including this piece by Barry Scheck highlighting a recent National Academy of Sciences report.

Posted by Jennifer Bard on February 10, 2015 at 12:53 PM in Criminal Law, Current Affairs | Permalink

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