IT-04-74-A 15650 A15650- A15513 29 May 2015 MC INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Case No. IT-04-74-A Before: Judge Theodor Meron, Presiding Judge Carmel Agius Judge Fausto Pocar Judge Liu Daqun Judge Bakone Justice Moloto

Registrar: Mr. John Hocking

Date filed: 29 May 2015

THE PROSECUTOR

v.

JADRANKO PRLI Ć BRUNO STOJI Ć SLOBODAN PRALJAK MILIVOJ PETKOVI Ć VALENTIN ĆORI Ć BERISLAV PUŠI Ć

PUBLIC

JADRANKO PRLI Ć’S BOOK OF AUTHORITIES FOR HIS REPLY BRIEF

Office of the Prosecutor: Mr. Douglas Stringer Mr. Mathias Marcussen Ms. Barbara Goy Ms. Laurel Baig

Counsel for the Accused: Mr. Michael G. Karnavas and Ms. Suzana Tomanovi ć for Jadranko Prli ć Ms. Senka Nožica and Mr. Karim A. A. Khan for Bruno Stoji ć Ms. Nika Pinter and Ms. Nataša Fauveau-Ivanovi ć for Slobodan Praljak Ms. Vesna Alaburi ć and Mr. Guénaël Mettraux for Milivoj Petkovi ć Ms. Dijana Tomašegovi ć-Tomi ć and Mr. Dražen Plavec for Valentin Ćori ć Mr. Fahrudin Ibrišimovi ć and Mr. Roger Sahota for Berislav Puši ć

15649

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Case No. IT-04-74-A

PROSECUTOR v. JADRANKO PRLI Ć ET AL.

PUBLIC

JADRANKO PRLI Ć’S BOOK OF AUTHORITIES FOR HIS REPLY BRIEF

TABLE OF CONTENTS

I. OTHER PUBLICATIONS

Tab 1. Shari R. Berkowitz & Naser L. Javaid, It’s Not You, It’s the Law: Eyewitness Scholars’ Disappointment with Perry-v-New

Hampshire, 19 PSYCH . PUB . POL . & L. 369, 371 (2013). Tab 2. Deborah Davis & William C. Follette, Foibles of Memory for

Traumatic/High Profile Events , 66 J. AIR L. & COM . 1421, 1524 (2001). Tab 3. Elizabeth F. Loftus & Hunter G. Hoffman, Misinformation and Memory:

The Creation of New , 118 J. EXPER . PSYCH J. 100 (1989).

Tab 4. Elizabeth F. Loftus, Gathering Post-9/11 , 66 AM. PSYCHOL .

532, 534 (2011).

1

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104 of 167 DOCUMENTS

Copyright (c) 2013 American Psychological Association , Public Policy and Law

August, 2013

Psychology, Public Policy & Law

19 Psych. Pub. Pol. and L. 369

LENGTH: 12495 words

ARTICLE: It's Not You, It's the Law: Scholars' Disappointment With Perry v. New Hampshire

NAME: Shari R. Berkowitz and Naser L. Javaid, Roosevelt University

BIO: This article was published Online First July 8, 2013.

Shari R. Berkowitz, Department of Psychology, Roosevelt University; Naser L. Javaid, Department of Political Science and Public Administration, Roosevelt University.

Order of authorship was determined alphabetically.

Correspondence concerning this article should be addressed to Shari R. Berkowitz, Department of Psychology, Roosevelt University, 430 S. Michigan Ave, Gage Room 400-J, Chicago, IL 60605. E-mail: [email protected]

LEXISNEXIS SUMMARY: ... In what follows, we review both the scientific research on eyewitness memory and the Court's constitutional jurisprudence as it relates to and evidentiary due-process concerns. ... New Hampshire (2012) to determine if the Constitution "requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police" ( Perry , 2012, p. 6), many eyewitness-memory researchers, criminal defense attorneys, and legal scholars were elated. ... Decades of scientific studies have revealed that there are numerous factors specific to the eyewitness or the crime (estimator variables) that can affect an eyewitness's ability to accurately identify a perpetrator (e.g., the presence of a weapon, the race(s) of the eyewitness and perpetrator, stress, etc.), as well as factors that the criminal justice system controls (system variables), which can increase the likelihood of an eyewitness making a mistaken identification (e.g., unfair lineups, the absence of lineup instructions that warn the eyewitness that the perpetrator may or may not be in the lineup, nonblind lineups in which the officer conducting the lineup is familiar with the suspect, etc.; see Wells, 1978, and Wells & Olson, 2003 for excellent reviews of estimator and system variables). ... United States (1968), an eyewitness's identification should be excluded if there is a "very substantial likelihood of irreparable misidentification" (p. 384). ... Although, eyewitness-memory researchers have identified several more factors that can affect an eyewitness's reliability (e.g., stress, the presence of a weapon, the race(s) of the perpetrator and the eyewitness, etc.), the five criteria that the Court relies upon in Manson include: (a) The eyewitness's confidence in his or her identification, (b) the eyewitness's 15646 Page 2 19 Psych. Pub. Pol. and L. 369, *

opportunity to view the perpetrator, (c) the degree of that the eyewitness paid to the crime and perpetrator, (d) the accuracy of the eyewitness's prior description, and (e) the amount of time that passed between the crime and the eyewitness's identification (see Wells & Quinlivan, 2009, for an insightful critique of the Court's reliance on the Manson criteria). ... Eyewitness-Memory Scholars's Response: "Safeguards" Are Fallible Of course, despite our understanding of the numerous factors that can distort and alter memory, eyewitness-memory researchers have yet to figure out (without independent corroboration) whether a particular eyewitness's memory is in fact true or false. ... Furthermore, several scientific studies have shown that active and potential jurors, as well as some other members of the legal community, do not have a proper understanding of the factors that affect an eyewitness's identification (Benton, Ross, Bradshaw, Thomas, & Bradshaw, 2006; Deffenbacher & Loftus, 1982; Schmechel, O'Toole, Easterly, & Loftus, 2006; Wise, Pawlenko, Safer, & Meyers, 2009; Wise & Safer, 2010; Wise, Safer, & Maro, 2011). ... Although eyewitness-memory scholars may feel temporarily hopeless, the best thing to do may be to continue to research and promote discussions about the possible unreliability of eyewitness testimony, as well as identify the procedures that promote the accuracy of eyewitness identifications. ... "Good, you identified the suspect:" Feedback to eyewitnesses distorts their reports of the witnessing experience, Journal of , 83, 360-376. doi:10.1037/0021-9010.83.3.360 Wells, G.

HIGHLIGHT:

In January 2012, the United States Supreme Court ruled that suggestive identification procedures violate a defendant's rights to due process only if law enforcement officials orchestrated the suggestive procedures. The Court's decision in Perry v. New Hampshire (Perry v. New Hampshire, No. 10-8974, 565 U.S. , 2012) dealt a serious blow to scholars who had contributed to the impressive advances of eyewitness memory research in the 34 years since the Court's last major statement on eyewitness testimony. In particular, it seemed as though the Court ignored the intervening years and the myriad scientific studies that had been conducted in that time. How could the Court be so blind? In what follows, we review both the scientific research on eyewitness memory and the Court's constitutional jurisprudence as it relates to eyewitness testimony and evidentiary due-process concerns. Together, we show that, although the Court may have seemingly ignored decades of scientific research, the question presented by Perry required the Court to remain true to existing due-process jurisprudence. We conclude by reviewing the limits of the Perry decision as well as a discussion of what the future may hold for the intersection of eyewitness memory research and constitutional interpretation.

Keywords: eyewitness, suggestive identification procedures, Supreme Court, due process

TEXT: [*369] Around 3:00 a.m. on August 15, 2008, police in Nashua, New Hampshire, responded to a call reporting that an African American male was trying to break into parked cars in an apartment complex parking lot. One officer who responded saw Barion Perry, an African American male, standing in the parking lot with two car stereos in his possession and a metal bat near him on the ground. The officer remained with Perry in the parking lot while another officer went inside the apartment building to interview the eyewitness caller who spotted the suspicious behavior from her fourth-story apartment window. The eyewitness provided the officer with a general account of what she saw, namely an African American male circling her neighbor's car in the parking lot and eventually removing something from the trunk. When the officer asked for a more specific description of the man, the eyewitness spontaneously looked out her window and identified the man standing next to the other police officer in the parking lot, Barion Perry, as the offender. Perry was arrested following this identification and, although the eyewitness was unable to pick him out of a photo array approximately one month later, he was charged with theft and criminal mischief.

Before his trial, Perry petitioned to suppress the eyewitness's identification, arguing that the initial identification amounted to "a one-person show-up in the parking lot . . . which all but guaranteed that [the witness] would identify [Perry] as the culprit" (Perry v. New Hampshire, 2012, p. 5). Although there were several reasons to question the accuracy of the identification, including the poor lighting in the parking lot and the fact that Perry was the only African 15645 Page 3 19 Psych. Pub. Pol. and L. 369, *369

American male standing next to a uniformed police officer, the trial judge determined that the should have the final consideration as to the reliability of the eyewitness's identification and testimony and denied the request. Perry was eventually convicted of theft and the New Hampshire State Supreme Court affirmed his conviction. Perry subsequently appealed his conviction to the United States Supreme Court (hereafter the Court).

When the Court agreed to review Perry v. New Hampshire (2012) to determine if the Constitution "requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police" (Perry, 2012, p. 6), many eyewitness-memory researchers, criminal defense attorneys, and legal scholars were elated. As law professor Brandon Garrett exclaimed, 'It is exciting that the Court has actually taken an eyewitness ID case for the first time in many years . . ." (Liptak, 2011, p. 11). Given that it had been 34 years since the Court had last ruled on constitutional issues of due process related to the reliability of eyewitness identifications, many were anxious to see how it would respond. As Adam Liptak (2011) of The New York Times explained, "there is no area in which social science research has done more to illuminate a legal issue" (p. 5). And it is true. Decades of scientific studies have revealed that there are numerous factors specific to the eyewitness or the crime (estimator variables) that can affect an eyewitness's ability to accurately identify a perpetrator (e.g., the presence of a weapon, the race(s) of the eyewitness and perpetrator, stress, etc.), as well as factors that the criminal justice system controls (system variables), which can increase the likelihood of an [*370] eyewitness making a mistaken identification (e.g., unfair lineups, the absence of lineup instructions that warn the eyewitness that the perpetrator may or may not be in the lineup, nonblind lineups in which the officer conducting the lineup is familiar with the suspect, etc.; see Wells, 1978, and Wells & Olson, 2003 for excellent reviews of estimator and system variables).

Moreover, real-life cases have shown that eyewitnesses can mistakenly identify an innocent person as a perpetrator (Garrett, 2011; Loftus & Ketcham, 1991). In fact, mistaken identifications are the leading cause of wrongful convictions (Garrett, 2011; Scheck, Neufeld, & Dwyer, 2003). At the time of writing this article, the Innocence Project (New York, NY), a nonprofit legal clinic associated with the law school at Yeshiva University, has identified 305 individuals who have been exonerated by DNA evidence proving that they did not commit the crimes for which they were convicted (see www.innocenceproject.org for an up-to-date count of these cases). These exonerations, however, likely represent only the tip of the iceberg, as DNA is not available in the majority of criminal cases. Nonetheless, mistaken eyewitness identifications played a role in approximately 75% of these documented exonerations. In addition, a new report from the National Registry of Exonerations (Gross & Shaffer, 2012)--a joint project by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law--has documented that there have been more than 2,000 exonerations in the United States between 1989 and 2012. An in-depth examination of 873 of these cases revealed that 667 (76%) involved mistaken identifications. Given the impressive achievements and advancements of eyewitness-memory scholars and attorneys over the past 34 years, many hoped that the Court's decision in Perry (2012) would recognize the malleable nature of eyewitness memory and mandate pretrial review of such testimony.

But on January 11, 2012, an eight-member majority of the Court concluded that, "the Due Process Clause [i.e., Due Process Clauses of the U.S. Constitution; Amendment V, 1791; Amendment XIV, 1868] does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not produced under unnecessarily suggestive circumstances arranged by law enforcement" (Perry v. New Hampshire, 2012, p. 18-19). Many eyewitness-memory researchers and criminal defense attorneys were crushed by the decision (Barnes, 2012; Challenging eyewitness evidence, 2012; Liptak, 2012a; "Supreme Court . . . seeing is not believing," 2012). For instance, one of the authors of this article received several emails from attorneys after the Perry ruling. One attorney asked the author, "How are you handling the post Perry v. New Hampshire blues?" Another attorney emailed, "I'm disappointed. It took 35 years from Manson v. Brathwaite (1977) to Perry. I have grave concerns that we'll be saddled with Manson for another 35 years before the Court finally comes to terms with eyewitness-ID science." Yet another attorney shared, ". . . [This] sounds like a big step in the wrong direction. Put another way . . . that really sucks." Furthermore, as distinguished professor and renowned eyewitness-memory scholar pointed out, just a day before the Court handed down their ruling in Perry, in a different case the Court reversed a conviction because the 15644 Page 4 19 Psych. Pub. Pol. and L. 369, *370

prosecutor withheld information that the eyewitness, who later identified the defendant at trial, did not initially identify anyone after the crime (personal communication, January 11, 2012; Liptak, 2012b; Smith v. Cain, 2012). For those who are aware of the major scientific advances in the field of eyewitness memory over the last 34 plus years, it is difficult to understand how the Court could ignore the science. As Justice Sonia Sotomayor acknowledged in her dissenting opinion:

It would be one thing if the passage of time had cast doubt on the empirical premises of our precedents. But just the opposite has happened. A vast body of scientific literature has reinforced every concern our precedents articulated nearly a half-century ago, though it merits barely a parenthetical mention in the majority opinion [internal citation omitted.] Over the past three decades, more than two thousand studies related to eyewitness identification [and its malleability] have been published (Perry v. New Hampshire, 2012, Sotomayor, J., dissenting, p. 14).

In what follows, we represent both the eyewitness-memory scholars and the law, and engage in a scholarly debate on the legal merits of the scientific research as applied to Perry. After a careful legal analysis, we conclude that, despite the impressive and rigorous scientific research on the topic of eyewitness memory, the outcome in Perry was not surprising given existing precedent. Ultimately, we will make the argument to the eyewitness-memory scholars that, "it's not you, it's the law."

The Perspective of the Eyewitness-Memory Scholars

In order for a judge to grant a motion suppressing an eyewitness's identification (like Perry tried to do before his trial), the criminal defendant must first pass the "due-process test." As the Court noted in Simmons v. United States (1968), an eyewitness's identification should be excluded if there is a "very substantial likelihood of irreparable misidentification" (p. 384). To assess if this is the case, the judge conducts a two-part inquiry of the identification. The first step is for the judge to determine whether or not the identification was impermissibly suggestive based on the totality of the circumstances. If the identification is not found to be impermissibly suggestive, than the eyewitness's identification is allowed into evidence at trial. If, however, the identification is found to be unduly suggestive, the judge must then determine if the identification was reliable, independent of the police procedures. The Court's opinion in Manson v. Brathwaite (1977; hereafter Manson), created five criteria that a judge must use to assess an eyewitness's reliability. Although, eyewitness-memory researchers have identified several more factors that can affect an eyewitness's reliability (e.g., stress, the presence of a weapon, the race(s) of the perpetrator and the eyewitness, etc.), the five criteria that the Court relies upon in Manson include: (a) The eyewitness's confidence in his or her identification, (b) the eyewitness's opportunity to view the perpetrator, (c) the degree of attention that the eyewitness paid to the crime and perpetrator, (d) the accuracy of the eyewitness's prior description, and (e) the amount of time that passed between the crime and the eyewitness's identification (see Wells & Quinlivan, 2009, for an insightful critique of the Court's reliance on the Manson criteria). Ultimately, this two-part inquiry means that even if a judge finds the eyewitness's identification to be impermissibly suggestive, the judge can still allow the eyewitness's identification to be admitted at trial if he or she subjectively finds that the identification is reliable. As the court explained in Manson, "reliability is the linchpin" (p. 114).

[*371] Given that this two-part inquiry effectively requires that the eyewitness identification procedures include at least an element of suggestion, we now briefly review the effects of suggestive identification procedures on memory. An extensive body of scientific research has demonstrated that factors related to the composition and conduction of the lineup itself may influence an eyewitness's ability to correctly identify the perpetrator (Brewer & Wells, 2011; Wells et al., 1998; Wells, Steblay, & Dysart, 2012). In a similar way, what occurs before and after the eyewitness participates in a lineup can also influence an eyewitness's identification and memory. In other words, identification and memory errors can occur when eyewitnesses view a photo of the suspect prior to the lineup and when eyewitnesses receive confirming postidentification feedback (Deffenbacher, Bornstein, & Penrod, 2006; Douglass & Steblay, 2006; Wells & Bradfield, 1998). Other examples of suggestion that take place outside of the lineup context can also contaminate an eyewitness's memory and subsequent identification (see Frenda, Nichols, & Loftus, 2011 and Loftus, 2011 for more on the dangers 15643 Page 5 19 Psych. Pub. Pol. and L. 369, *371

of misinformation).

Taken together, these findings illustrate that there is potential for an eyewitness to be exposed to several sources of suggestion during, as well as before and after the identification procedure. It is critical to note, some of these suggestive procedures and events may further distort the eyewitness's memory for the very events that Manson (1977) relies upon to determine reliability. Therefore, although the Court considers reliability to be the linchpin, the suggestive circumstances that are described above may in fact be especially dangerous to ensuring the reliability of an eyewitness's memory.

What is also important to understand about these suggestions is that they need not be arranged by the police for them to have deleterious effects on memory. To be clear, we do not doubt that police-orchestrated suggestive procedures do, in fact, affect the reliability of memory. Suggestive circumstances, however, may also come from non-law enforcement actors: Eyewitness-memory researchers have demonstrated for decades that eyewitness unreliability can be a product of many other sources. For instance, in many of the scientific studies conducted by eyewitness-memory researchers, the suggestion (and eventual unreliability) may have come from a researcher, a cowitness, a newspaper article, a computer program, a photograph, a video, or even a romantic partner (Berkowitz, Laney, Morris, Garry, & Loftus, 2008; French, Garry, & Mori, 2008; Hasel & Kassin, 2009; Loftus, 1979; Shaw, Garven, & Wood, 1997; Wade, Garry, Read, & Lindsay, 2002; Wade, Green, & Nash, 2010; Wells & Bradfield, 1998). Put simply, suggestive circumstances matter for memory, regardless of who or what creates them.

Furthermore, these suggestive procedures need not be intentional for them to affect memory. As Michael, Garry, and Kirsch (2012) fittingly explain, "Suggestions can come from other people or from the environment; they can be cultivated in the present or drawn from the past; and they can be deliberate or not deliberate" (p. 151). In other words, the potential for suggestive procedures or incidents to affect an eyewitness's memory is ubiquitous and need not be arranged by law enforcement, a point Justice Sotomayor recognized in her lone dissenting opinion in Perry (2012). Although in the research setting such suggestions are often manipulated or intentionally caused by the researcher, real-life cases illustrate that suggestive procedures can have harmful consequences regardless of whether or not the police officer orchestrated them maliciously. For instance, consider Garrett's (2011) research on the first 250 DNA exonerations in the United States. In his analysis of the 161 trial transcripts for which the wrongful convictions were caused by mistaken identification, he observed that 125 of these cases (78%) involved some form of suggestion(s), e.g., show-ups, unfair lineups, biased lineup instructions, postidentification feedback, etc. And though surely some of these suggestive circumstances were a product of police misconduct, these real-life cases also demonstrate that at least in some instances, the suggestive circumstances may have been a product of the police officers' poor training (Garrett, 2011; Loftus & Ketcham, 1991; Thompson-Cannino, Cotton, & Torneo, 2009). Thus, eyewitness-memory scholars would urge the Court in the future to understand that, regardless of whether they were intended or not, suggestive circumstances alone can still impair an eyewitness's memory.

The Law's Response: The Nature of Due Process

But the Court already understands this and it is not suggesting that only "intentional" suggestion can taint eyewitness testimony. In fact, the Court is not suggesting that eyewitness testimony is always accurate in the absence of suggestion. As the Court states in Perry (2012), "We do not doubt . . . the fallibility of eyewitness identification. Indeed . . . we [have] observed that 'the annals of criminal law are rife with instances of mistaken identification'" (p. 15, emphasis added, internal citations omitted). Rather, what the Court is doing is following the lines of existing precedents on issues that relate to constitutional rights of the criminally accused and the Due Process Clauses of the U.S. Constitution (hereafter the Clauses; Amendment V, 1791; Amendment XIV, 1868).

The Clauses are the portions of the Fifth and Fourteenth Amendments of the U.S. Constitution (Amendment V, 1791; Amendment XIV, 1868) that prohibit deprivation of "life, liberty, or property without due process of law," and each encompasses two fundamental types of "due process." Substantive due process is an interpretation of the Clauses that sees them as prohibiting government from imposing arbitrary laws: The substance and result of laws must be "just" 15642 Page 6 19 Psych. Pub. Pol. and L. 369, *371

and "reasonable." Whereas substantive due process is focused on the outcome, procedural due process is the type of due process that is applied to criminal prosecutions (and is most relevant to our understanding of the Court's decision in Perry), and its attention is on the process that produces the outcome. From this perspective, if the process that produces the outcome is fair and impartial, then the outcome is "valid." Procedural due process provides for fundamental fairness and impartiality during governmental proceedings, and it is this latter conception of due process that concerns the fairness of the use of evidence.

A crucial aspect of the Court's interpretation of the Clauses (Amendment V, 1791; Amendment XIV, 1868) is that it restricts their scope to activities of the federal or state governments or subdivisions thereof (e.g., federal or local law-enforcement officers), and not to the actions of private entities. In 1833, the Court concluded that because the Fifth Amendment did not mention states, its restraints were binding only on the actions of the federal government (Barron v. Mayor and City Council of Baltimore, 1833). By contrast, the language of the Fourteenth Amendment explicitly attaches itself to the actions of state governments, and in [*372] 1883, the Court concluded that the Fourteenth Amendment's due-process clause was applicable only to actions of states and their officials (Civil Rights Cases, 1883). This position was reaffirmed in 1948, when the Court concluded that the "amendment erects no shield against merely private conduct" (Shelley v. Kramer, 1948, p. 13). Put simply, the actions of nongovernment entities, including private citizens, do not implicate constitutional concerns of due process.

What is more is that the Clauses' restriction to government entities has also been an important aspect of the Court's doctrine with regard to eyewitness testimony. For example, both Neil v. Biggers (1972) and Manson (1977) emphasize "that due-process concerns arise only when law-enforcement officers use an identification procedure that is both suggestive and unnecessary" (Perry v. New Hampshire, 2012, p. 8, emphasis added). Although Manson was the Court's most recent decision regarding due process and eyewitness identification prior to Perry, it was not the only one, and the theme of possibly inappropriate state action in the identification was common through all of them (e.g., Coleman v. Alabama, 1970--seeing the suspect in the police station prior to the formal lineup; Foster v. California, 1969--dressing the suspect in clothing similar to the thief, using fillers six inches shorter in a lineup, allowing for repeated confrontations between the eyewitness and suspect; Neil v. Biggers--intentionally using a show-up instead of a lineup; Simmons v. United States, 1968--showing an eyewitness a photo of the suspect prior to trial in which the suspect is one of several individuals in the photo; Stovall v. Denno, 1967--bringing a lone suspect, without counsel, to be identified by the victim; United States v. Wade, 1967--conducting a lineup without allowing the defendant access to counsel). Thus, because the suggestive lineup procedures in Perry occurred spontaneously and were not intentionally orchestrated by law enforcement, it would be impertinent for the Court to shy away from its existing precedent and suddenly conclude that Perry's due-process rights were violated in the absence of state-orchestrated conduct.

It is important to emphasize, however, that the requirement of "state action" for the implication of due-process considerations is not just limited to eyewitness evidence, but rather is ubiquitous across the Court's due-process jurisprudence. For instance, consider the case of Colorado v. Connelly (1986): In 1983, Francis Connelly approached a uniformed police officer and, without any prompting, confessed to murder. Although Connelly was immediately advised of his right to remain silent by that officer following his spontaneous confession, Connelly again confessed to murder in a later interview at police headquarters after again being advised of his right to remain silent. In dismissing Connelly's claim that the subsequent (post-Miranda) confession violated his constitutional right to due process because his mental illness prohibited him from "voluntarily" waiving his rights, the Court relied on the "settled law requiring some sort of 'state action' to support a claim of violation of the Due Process Clause of the Fourteenth Amendment" (Colorado v. Connelly, 1986, p. 165, emphasis added). In that same opinion, the Court also stated, "The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause" (p. 166). It is notable that the Court has even been steadfast in this state action requirement when its conclusion supported the claim of a due-process violation, even in civil (rather than criminal) proceedings. For instance in Edmonson v. Leesville Concrete Company (1991), the Court concluded that race-based exclusion of jurors in civil cases violates the Fifth Amendment (U.S. Constitution, 1791). As the Court's opinion declared in Edmonson, 15641 Page 7 19 Psych. Pub. Pol. and L. 369, *372

With a few exceptions, such as the provisions of the Thirteenth Amendment [involuntary servitude], constitutional guarantees of individual liberty . . . do not apply to the actions of private entities" (p. 619).

Furthermore, the Court's opinion in Flagg Brothers v. Brooks (1978) stated that

Only a State or a private person whose action 'may be fairly treated as that of the State itself,' may deprive [a person] of 'an interest encompassed within the Fourteenth Amendment's [due-process] protection" (p. 156, internal citations omitted).

It is this unwavering component of the Court's jurisprudence that led renowned constitutional law scholar Erwin Chemerinsky (1985) to assert, "It is firmly established that the Constitution applies only to government conduct, usually referred to as "state action" (p. 507). Thus Perry "aligns with a healthy line of precedent . . . that due-process violations require some element of official misconduct" ("Suggestive Eyewitness Identifications," 2012, p. 250).

Although this "settled law" and "healthy precedent" require some sort of state action before due-process concerns are implicated, it is not the fact that any type of action (or inaction) by state actors per se implicates due-process concerns. Two illustrative cases are Town of Castle Rock v. Gonzales (2005) and Colorado v. Connelly (1986). In Castle Rock, the Court considered Gonzales's allegation that the town of Castle Rock, Colorado, violated her due-process rights "when its police officer, acting pursuant to official policy or custom, failed to respond properly" to Gonzales's repeated reports that her estranged husband was violating the conditions of a court-issued restraining order (Castle Rock v. Gonzales, 2005, p. 748). Despite the tragic and horrific circumstances of the case--Gonzales's husband kidnapped and murdered their three daughters, then open fired at the Castle Rock police station and was subsequently shot and killed by police--the Court concluded that because of the "well-established tradition of police discretion [that] has long coexisted with apparently mandatory arrest statutes," Gonzales did not have a "protected entitlement" under Colorado law, and therefore did not have a valid due-process claim (Castle Rock v. Gonzales, 2005, p. 759). As previously discussed, Connelly involved a due-process challenge to a mentally ill defendant's noncoerced confession after his Miranda warning, and the Court's opinion reiterated the need of state action prior to the implication of due-process concerns. The opinion also emphasized, however, the need for a causal connection between that state action and the allegedly unconstitutional outcome. As the Court stated, "Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law" (Colorado v. Connelly, 1986, p. 164, emphasis added). Taken together, Castle Rock and Connelly not only reinforce the state-action requirement of due-process considerations, but also demonstrate that actions (or inactions) by state actors do not per se implicate due-process concerns either. Rather, these state actions must involve [*373] the deprivation of some type of protected entitlement that is outside the scope of police discretion, and also must have a causal effect on the allegedly unconstitutional aftermath following that action.

Even if we remove the requirement of state action to implicate due-process concerns--and again, legal and constitutional precedents say it is a requirement--the nature of due-process protections still would not, on their own, undermine the admissibility of eyewitness-identification evidence. With regard to the admission of evidence in criminal trials, due process prohibits its admission only under circumstances in which the evidence "is so extremely unfair that its admission violates fundamental conceptions of justice" (Dowling v. United States, 1990, p. 352). Although it is possible that questionable evidence may be admitted under this standard, there is no requirement that a jury see such evidence as reliable. Furthermore, although "it is the province of the jury to weigh the credibility of competing [and evidence]," the Constitution requires that the accused be afforded the opportunity to convince the jury that such evidence is questionable and non-credible (Kansas v. Ventris, 2009, p. 554). Put another way, "due process" does not mean that evidence admitted is infallible, only that evidence is to be used in a fair manner, and other constitutional guarantees--the right to counsel, the right to confront accusers, and so forth--are mechanisms through which this "fair use" is safeguarded. Quite simply, "the aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false" (Lisenba v. California, 1941, p. 236, emphasis added). The Clauses (Amendment V, 1791; Amendment XIV, 1868) have never been interpreted to mean that evidence should be excluded because it may not be accurate, and it would be a 15640 Page 8 19 Psych. Pub. Pol. and L. 369, *373

stretch for the Court to suddenly switch to that interpretation now.

Such an interpretation would also run counter to the Court's jurisprudence pertaining to the exclusion of evidence and the logic behind that jurisprudence. For instance, the exclusionary rule states that evidence unconstitutionally obtained cannot be used against an individual during criminal proceedings because it violates the Fourth Amendment and also offends protections of due process (Mapp v. Ohio, 1961). This was not always the case, however, and prior to the development of the exclusionary rule, there were no per se punitive consequences for law-enforcement officers who obtained evidence illegally (e.g., without a valid search warrant; Weeks v. United States, 1914). Originally only applicable to the federal government, the Court extended the exclusionary rule to the states in Mapp v. Ohio (1961). Since Mapp, however, the Court has created exceptions to this rule, and when they have done so, the consequences of excluding evidence has played an important role. In United States v. Leon (1984), the Court allowed a "good-faith" exception to the rule, noting that, "the magnitude of the benefit [of excluding evidence] conferred upon such guilty defendants offends basic concepts of the criminal justice system" (p. 908). It is notable that "the exclusionary rule is designed to deter police misconduct" (p. 916, emphasis added). Therefore, because the rule is designed to deter inappropriate behavior, a blanket exclusionary rule is itself inappropriate because it fails to consider "whether Fourth Amendment interests will be advanced" (p. 916). Furthermore, excluding evidence "has always been [the Court's] last resort" precisely because it is applicable only to circumstances that "result in appreciable deterrence" (Hudson v. Michigan, 2006, p. 591; United States v. Janis, 1976, p. 454, respectively) and because exclusion "is a Draconian sanction . . . that may frustrate rather than promote justice" (Manson, 1977, p. 113). Hence, a similar type of rule for eyewitness testimony would be appropriate only in circumstances in which it can deter the misconduct of state actors, not in situations involving spontaneous private actions.

Despite all this, it is important to emphasize that no one is suggesting eyewitness identifications are infallible, always correct, or not open to manipulation. Again, the majority opinion in Perry emphatically admits all these things are not true. Yet the emphasis on the fallibility of eyewitness identification is misplaced precisely because of the fallibility of identifying which identifications are "misremembered." None of the scientific studies cited in the American Psychological Association's amicus brief in Perry (2012), nor any of those cited in this paper can ensure with 100% accuracy that a particular eyewitness's identification or memory in a real criminal case is accurate or inaccurate (at least not without independent documented corroboration). There certainly may be factors that increase the likelihood of an inaccurate identification, but the lack of infallible criteria for identifying misidentifications again raises issues of the balance between individual protections and "basic concepts of the criminal justice system" (United States v. Leon, 1984, p. 897). It is entirely possible that an eyewitness may make a positive (correct) identification when a host of confounding factors is present, but it is entirely possible that an eyewitness may also make a false (inaccurate) identification when zero eyewitness-memory factors are present. To exclude eyewitness identifications simply because they may be inaccurate is to exclude evidence because it may be false, but as noted above, this is not what the Court's interpretation of the Clauses (Amendment V, 1791; Amendment XIV, 1868) requires, nor what it is meant to provide. Rather, the Constitution only requires that evidence not be used in a fundamentally unfair manner (e.g., allowing the prosecution to present evidence but not allowing a rebuttal or cross-examination from the defendant), and the Constitution and justice system have mechanisms that try to protect against the unfair use of evidence.

Eyewitness-Memory Scholars's Response: "Safeguards" Are Fallible

Of course, despite our understanding of the numerous factors that can distort and alter memory, eyewitness-memory researchers have yet to figure out (without independent corroboration) whether a particular eyewitness's memory is in fact true or false. This argument is not new. Hugo M[#xFC]nsterberg, the former Chair of the Psychology Department at Harvard University and one of the founders of applied psychology, faced this same criticism after he published his renowned book On the Witness Stand in 1908 (as cited in Bornstein & Meissner, 2008; Doyle, 2005; Wells, Memon, & Penrod, 2006). In particular, as Doyle describes, John Henry Wigmore, the former dean of Northwestern University's School of Law and a prominent scholar on trial evidence, argued in 1909 that Miinsterberg's scientific experiments simply shed light on whether an eyewitness is more or less likely to be correct, but that none of his experiments definitively guaranteed whether an eyewitness's statement or identification is always incorrect (for a 15639 Page 9 19 Psych. Pub. Pol. and L. 369, *373

thorough [*374] review of the history of eyewitness-memory science and its use in the courts, see Doyle, 2005).

Nonetheless, eyewitness-memory researchers can (and in many instances, do) play a role in our legal system. Specifically, expert testimony is considered by some legal scholars to be "the only legal safeguard" that is effective in educating jurors about the malleable nature of eyewitness memory (Fradella, 2006; McMurtrie, 2005, p. 1276). Memory researchers have also examined the effectiveness of eyewitness-memory experts, and generally conclude that such testimony can be useful to a jury (Cutler, Dexter, & Penrod, 1989; Leippe, 1995; Loftus, 2010; Penrod & Cutler, 1989).

Other legal safeguards in place that are designed to prevent against wrongful convictions that arise from mistaken identifications include the defendant's right to an attorney, 's opportunity to identify the eyewitness issues during opening and closing arguments, the attorney's opportunity to cross-examine the witnesses, the trial court's opportunity to exclude prejudicial and misleading eyewitness testimony, and the inclusion of instructions that warn the jurors to carefully consider the eyewitness evidence (Perry v. New Hampshire, 2012; for a greatly improved example of jury instructions, we recommend that readers review a set of jury instructions forthcoming in Pennsylvania [E. F. Loftus, personal communication, September 6, 2012], as well as the recently released jury instructions established by the New Jersey Supreme Court following their decision in State of New Jersey v. Henderson, 2011). Of importance to note, however, is that legal scholars have warned that such safeguards are not foolproof (McMurtrie, 2005). For example, consider these limitations of jury instructions: Jury instructions may be too confusing for jurors to understand or may mislead jurors; jury instructions may be ineffective at the end of what is often a long and tiring trial, as jurors may have already been swayed by earlier testimony;, and jury instructions rarely include detailed empirical evidence (Fradella, 2006; Severance, Greene, & Loftus, 1984; Sheehan, 2011). Likewise, other safeguards (e.g., closing arguments and cross-examination) may not adequately convince a jury to place the appropriate weight (or lack thereof) on an eyewitness who genuinely believes that he or she has identified the true perpetrator (McMurtrie, 2005). Furthermore, several scientific studies have shown that active and potential jurors, as well as some other members of the legal community, do not have a proper understanding of the factors that affect an eyewitness's identification (Benton, Ross, Bradshaw, Thomas, & Bradshaw, 2006; Deffenbacher & Loftus, 1982; Schmechel, O'Toole, Easterly, & Loftus, 2006; Wise, Pawlenko, Safer, & Meyers, 2009; Wise & Safer, 2010; Wise, Safer, & Maro, 2011). For example, despite the fact that scientific research demonstrates that an eyewitness's confidence can be artificially inflated, scientific research also reveals that an eyewitness's confidence in his or her identification, compared with other factors, has potentially the most powerful impact on whether or not a jury will believe that a correct identification has been made (Wells, Memon, & Penrod, 2006; Wells et al., 1998). Therefore, although the Court may believe that these legal safeguards are reliable, research cautions that these safeguards are far from failsafe.

Moreover, nearly all of these safeguards have been available in the hundreds of cases in which innocent individuals were wrongfully convicted because of mistaken eyewitness testimony. For instance, Garrett (2011) found in his analysis of the first 250 DNA exonerations, of which 190 (76%) involved mistaken identification, that even in the eyewitness cases in which judges instructed jurors that an eyewitness can make a mistake, wrongful convictions still occurred. Further, some of these innocent individuals were wrongfully convicted multiple times despite the existence of these same protective safeguards (Garrett, 2011; Thompson-Cannino, Cotton, & Torneo, 2009). All one needs to do is to consider the human impact of these wrongful convictions to understand the gravity of proper legal safeguards. Consider that the first 300 individuals exonerated by DNA evidence spent a combined total of 4,013 years in prison, with 18 of these individuals serving time on death row, and that the true perpetrator has not been found in 51% of these cases (see www.innocenceproject.org/300/infographic.php for more on the first 300 DNA exonerations).

The Law's Rebuttal: Functioning Courts

It is true that the current "safeguards" that are in place, much like eyewitness testimony, are not infallible. Again however, the requirements of due process call for a balance between individual rights and basic concepts of the criminal justice system. The goal of due process, as interpreted by the Court, is to produce a "fair" system that seeks to minimize the misuse of the criminal justice system, and there are constitutional protections that seek to ensure a fair system is in place (e.g., a speedy and public trial, the right of the defendant to have a compulsory process for securing witnesses on 15638 Page 10 19 Psych. Pub. Pol. and L. 369, *374

his or her behalf, the right to counsel, etc.). It is also important to realize, however, that the constitutional protections are only inanimate institutions, and these institutions are filled, run, and controlled by perhaps the most fallible of all creatures, human beings. The old adage that "nobody's perfect" is, for better or worse, true, and so it is important to realize that no system involving humans will be perfect or perfectly accurate. The safeguards that are in place are also focused on the process, not the outcome, and are designed to maximize the possibility that a criminal defendant will have a fair trial. As Justice Byron White stated in Duncan v. Louisiana (1968).

Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies . . . [and they provided] inestimable safeguard[s] against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge (pp. 155-156).

Although not perfect, these provisions are meaningful and important, and they also allow the criminal justice system to function while guarding against inherently biasing the system against criminal defendants. Furthermore, real-life cases suggest that additional requirements such as revised jury instructions and/or the requirement of expert testimony may still fail to fully eradicate wrongful convictions (Garrett, 2011).

Given the Court's constitutional placement atop the hierarchy of "the judicial Power of the United States," (U.S. Constitution, Art. III § 1), it is understandable that the function and operation of the judicial system has often been a prominent consideration in their rulings (e.g., see Brady v. United States, 1970 and United States v. Nixon, 1974). The implications of Perry v. New Hampshire, 2012 are no less drastic for the criminal justice system. Even if the decision were limited to eyewitness identification, sustaining the argument in Perry that "suggestive circumstances alone . . . suffice [*375] to trigger [a] court's duty to evaluate the reliability [of evidence] before allowing presentation of the evidence to the jury" (Perry, 2012, p. 5; emphasis added) would in essence mandate a pretrial review of all eyewitness testimony, not only those involving suggestive procedures. As the American Psychological Association noted in their amicus brief in Perry, and as was discussed above, there are many factors that can affect the likelihood of misidentification. Sustaining Perry's argument would "thus entail a vast enlargement of the reach of due process as a constraint on the admission of evidence" (Perry, 2012, p. 14). Put differently, "it would mean everyday trials would be delayed indefinitely while lawyers and the judge fought over whether an eyewitness was reliable, capable and unbiased" (Savage, 2012, p. 3). But the possibility of limiting the conclusion to only eyewitness identification is small, precisely because sustaining such an argument rests on inherent imperfections in the accuracy of all evidence. For instance, in 2009, the prestigious National Academy of Sciences (NAS) released a scathing report on forensic science and found that with the exception of nuclear DNA analysis, most areas of forensic science (e.g., fingerprint analysis, bitemark evidence, etc.) were far from scientific (NAS; 2009). It is important to note that some of the limitations highlighted by the NAS report involved the fallibility of human analysis of the evidence rather than the evidence itself, but there is no evidence or evidentiary analysis that is infallible or not open to error. Thus, as the Court noted in Perry (2012), there is no evidence that would not be subject to pretrial review through a "vast enlargement" of due process as it relates to evidence (p. 14).

And this presents another practical issue of supporting Perry's argument: Determining the "reliability" of evidence. Not only would virtually every type of evidence now be subjected to a pretrial motion regarding its reliability, but courts would now also be faced with trying to determine what establishes evidence as "reliable" on a regular basis. This raises a host of issues: Are there universal standards of reliability? Are standards quantifiable to insure uniform applications within jurisdictions and across judges? What about across jurisdictions? What constitutes an "acceptable" likelihood of error? (See Mnookin et al., 2011 and Saks & Koehler, 2005 for more on these interesting issues as they relate to forensic science.) Regardless of the perceived merits of the constitutional arguments, sustaining Perry's argument when it is impossible to definitively identify accurate or inaccurate identifications opens a Pandora's box of practical questions to which there are no answers, and further inundates the ability of the courts to perform their duties in a timely manner, thereby eroding other constitutional protections offered to the criminally accused (e.g., the right to a speedy trial). 15637 Page 11 19 Psych. Pub. Pol. and L. 369, *375

Eyewitness-Memory Scholars' Rebuttal: Ignoring the Empirical Research

Although it is true that the legal system may in fact be severely undermined by a different ruling in Perry, it appears that the Court has chosen in this particular case to answer the legal question in the absence of the empirical research. Furthermore, given that the Court has been guided (and in some cases, misled) by the social science evidence in the past, it is entirely disappointing to both the eyewitness-memory researchers (and apparently Justice Sotomayor) that the decades of scientific research on eyewitness memory "merits barely a parenthetical mention" in the majority opinion (Perry v. New Hampshire, 2012, Sotomayor, J., dissenting, p. 14). Why, in this case, is the rigorous, empirical scientific research ignored, when in Brown v. Board of Education (1954) the Court relied heavily on what is considered flawed social science research? Why, in this case, is the rigorous, empirical scientific research ignored when in Roper v. Simmons (2005), the Court cited kindly to the extensive scientific literature on the immaturity and delayed development of the adolescent brain? Of course, these landmark cases represent key decisions that have favorably shaped our country, but how can the Court not similarly concern itself with the denial of liberty and justice that occurs when innocent people are wrongfully convicted? Although no one (including the authors) will disagree that police misconduct should be deterred, what hope will there be for the next several thousand innocent individuals who will face trial based on a memory an eyewitness believes is genuine, but is in fact mistaken? DNA evidence may have aided several hundred innocent individuals in gaining their freedom from prison, but DNA evidence is not available in the overwhelming majority of crimes (for more on obstacles to DNA exonerations, see www.innocenceproject.org/300/infographic.php). As a result, eyewitness-memory researchers have developed some recommendations for proper ways to conduct lineups and ultimately prevent wrongful convictions, but there are cases in which the police have followed the guidelines, but the memory is still influenced by estimator variables that are not under the control of the criminal justice system.

As described above, decades of scientific research have shown that memory is not only imperfect, but it is malleable. Moreover, suggestive circumstances only exacerbate the likelihood of there being a mistaken identification. Researchers have clearly shown that, regardless of whether this suggestion comes from the police or a lay individual and regardless of whether this suggestion is unintentional or intentional, suggestive procedures and suggestion can contaminate memory. If the Court relied on these empirical findings, as Justice Sotomayor did in her dissent (Perry v. New Hampshire, 2012), would it have ruled differently?

The Law's Reply: Answering the Legal Question

For scientific research, the empirical questions are clearly important, but the simple fact is that the Court concerns itself with questions of law rather than empirics. This is not to say that questions of fact are unimportant; indeed, the opposite is true because resolution of legal questions require applying rules of law to the facts of a given case. But it is important to emphasize that it is the application of legal rules to facts, and not the facts in and of themselves, that drive judicial opinions. n1 This point is emphasized at various parts throughout Perry (2012), in which the Court's opinion acknowledged many of the flaws with eyewitness testimony. What drives the Court's conclusions, however, is the application of the Constitution and precedents to those facts. The [*376] legal question to ask is not if an eyewitness's identification is more likely than not to be inaccurate, but rather if the Constitution requires preliminary determination of all eyewitness testimony under all circumstances.

And although it is true that in some cases some courts have been influenced by or even cited empirical scientific data to support their conclusions (e.g., Brown, 1954 and Roper, 2005; see also Muller v. Oregon, 1908), in no instance has any court said that data and/or research must bind a particular court to a particular interpretation of the Constitution; indeed, although the Court's decision in Brown (1954) was a morally just one, it was criticized by many legal scholars of all stripes, in part because it relied on scientific data rather than legal precedents (Rosenberg, 1999). On the other hand, one of the most famous instances of the Court dismissing scientific data took place in McCleskey v. Kemp (1987), which involved a challenge to the application of the death penalty in Georgia. McCleskey's argument relied in large part on a scientific study that concluded that the death penalty was disproportionately imposed on African Americans who had been convicted of killing Whites (as opposed to African Americans who had been convicted of killing individuals of other races). A majority of the Court, however, did not accept the argument that this established a constitutional 15636 Page 12 19 Psych. Pub. Pol. and L. 369, *376

violation. As Justice Lewis Powell's opinion for the Court in McCleskey (1987) stated:

To evaluate McCleskey's challenge we must examine exactly what the [scientific] study may show. Even [the study's author] does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case. Statistics at most may show only a likelihood that a particular factor entered into some decisions (McCleskey, 1987, p. 308, emphases added).

It seems as though a majority of the Court took a similar position in Perry (2012): The scientific research does not prove that Perry was misidentified, nor can it ever prove that a particular identification is invalid. Rather, the only valid conclusion is that, in some instances, some factors may increase the likelihood that an identification is invalid; but of course, any given identification, even with these eyewitness-memory factors present, may in fact still be valid. Thus, coming to a different conclusion in Perry would have placed empirics ahead of the law and the Constitution, something a majority of the Court did not think was its duty.

Conclusion

In August, 2011, approximately 5 months before the Court issued its decision in Perry (2012), law professor Brandon Garrett noted, "It is exciting that the Court has actually taken an eyewitness ID case for the first time in many years, even if it might be the wrong case on the wrong issue" (Liptak, 2011, p. 11; emphasis added). Professor Garrett's sentiment aptly summarizes the main point of this article: We agree that the scientific research on eyewitness memory has impressively advanced over the last 35 years and serves as a shining example for many researchers interested in other causes of wrongful conviction (false confessions, forensic science errors, etc.). We further agree that mistaken memory is a crucial problem for the criminal justice system. In fact, we agree that eyewitness testimony does deserve special attention by the courts. Yet, our aim in the current article is to show that, although eyewitness-memory issues deserve their day in court, legally, there was no way that the Court could have come to the "desired decision" in this particular case. Perry represented an issue of what is required by the Constitution, not the potential shortcomings of criminal trials or the broader criminal justice system.

Although the outcome of Perry (2012) may be a disappointment, it is important to establish exactly what the Court's opinion does and does not say. First, the Court says that the U.S. Constitution does not require pretrial motions across the board to establish the reliability of eyewitnesses' identifications. The Court, however, is not precluding judges from determining that such a motion may be warranted if there exists a possibility of unduly suggestive police-arranged procedures. It is important to note that Perry says nothing about what exactly constitutes "unduly," and so it is possible for a trial-court judge to conclude some innocuous action or even inaction by the police did amount to "unduly suggestive procedures." In addition, though the Court's interpretation of federal constitutional provisions is binding on all courts (state and federal), there is nothing precluding state courts from interpreting due-process provisions of state constitutions differently. In other words, a state's high court may in fact conclude a due-process clause in the state's constitution does require a pretrial hearing for all eyewitness testimony, so there may be more "protection" for defendants in local courts (as there is in New Jersey following the New Jersey Supreme Court's ruling in State of New Jersey v. Henderson, 2011 and in Oregon following the Oregon Supreme Court's ruling in State of Oregon v. Lawson, 2012). Lastly, there is nothing in Perry that precludes the introduction or consideration of other nonpolice, suggestive circumstances when determining if in fact an identification is reliable. Put another way, if a judge grants a pretrial hearing for whatever reason, there is nothing that forces the judge to limit their consideration of the identification's reliability only to police activity. Instead, nonpolice created conditions may be entered in to the evaluation of the identification's reliability (at the trial judge's discretion).

There are also many important eyewitness issues for the Court to review in future cases. One possible issue that the Court may face is the inconsistent admission/exclusion of eyewitness-memory experts across jurisdictions. Currently, if Perry had committed his crime in Louisiana he would not be likely to have an eyewitness-memory expert testify at his trial, yet had he committed his crime in Utah it is likely that he would have been permitted to have such testimony 15635 Page 13 19 Psych. Pub. Pol. and L. 369, *376

admitted (State of Louisiana v. Young, 2010; State of Utah v. Clopten, 2009). In fact, as of today, the decision to admit expert testimony on eyewitness memory in the courtroom remains controversial. Some jurisdictions have reversed defendants' convictions and admitted eyewitness experts on the grounds that the evidence is a proper subject for expert testimony (State of Arizona v. Chappie, 1983; People of California v. McDonald, 1984; Clopten, 2009). For instance, in Chappie (1983), the Arizona Supreme Court was the first state Supreme Court in this nation to reverse a trial court's ruling to exclude an eyewitness expert on the grounds that expert testimony on eyewitness identifications was "within the common experience of the people on the jury" (p. 1220). Specifically, the Arizona Supreme Court recognized that it "cannot assume that the average juror would be aware of the variables concerning identification and memory" (p. 1221). More recently, in Utah v. Clopten (2009), the Utah Supreme Court [*377] similarly found that the lower courts erred in excluding an eyewitness-memory expert and that expert testimony is "both reliable and helpful . . ." (p. 22). In fact. Justice Ruth Bader Ginsburg cited Clopten favorably in her majority opinion in Perry (2012) and noted that, "In appropriate cases, some States also permit defendants to present expert testimony on the hazards of eyewitness identification evidence" (p. 17). Other jurisdictions, however, have excluded eyewitness experts on the grounds that the evidence is not a proper subject for expert testimony or that the expert testimony would invade the province of the jury (United States v. Amaral, 1973; United States v. Brown, 1974; State of Louisiana v. Young, 2010). Thus, it remains to be seen whether the Court will rule on this important issue.

It is obviously impossible to predict the composition of the Court that will hear the next eyewitness case or what the facts of that case will be, but if we were to speculate on possible constitutional interpretation of future Courts we would suggest the following: It is unlikely that interpretation of the Due-Process Clauses (Amendment V, 1791; Amendment XIV, 1868) will become more favorable to the accused from an evidentiary perspective. Since the Court's opinion in Mapp v. Ohio (1961), circumstances requiring the application of the exclusionary rule have been reduced, and as the Court's opinion in Perry demonstrated, even contemporary justices with well-established liberal leanings seem hesitant to extend the reach of the Clauses beyond their well-established boundaries. The Court's interpretation of the Clauses has required some type of inappropriate behavior on the behalf of the police for almost 40 years, and this requirement is unlikely to go away in the next 40 years.

If these constitutional interpretations seem unlikely to change, what is the best course of action in the wake of Perry? Although eyewitness-memory scholars may feel temporarily hopeless, the best thing to do may be to continue to research and promote discussions about the possible unreliability of eyewitness testimony, as well as identify the procedures that promote the accuracy of eyewitness identifications. Although such action may have little impact on constitutional interpretation, the research may be able to sway various institutions (e.g., legislatures) that have control over jurisdictional rules of evidence for courts, as well as influence policy reform and improve the procedures that law enforcement officers use to collect eyewitness evidence. A parallel can be drawn here to the admissibility of polygraph testing in criminal proceedings across jurisdictions. In 1998, the Court concluded that a per se rule excluding the admission of polygraph results in military trials did not violate a defendant's Sixth Amendment rights (United States v. Scheffer, 1998; Scheffer had passed a polygraph test and wanted to have it admitted in his defense). Key to the Court's conclusion was the lack of consensus regarding the reliability of polygraph tests. As Justice Clarence Thomas's opinion for the Court stated, "State and federal governments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial . . . [and] there is simply no consensus that polygraph evidence is reliable" (United States v. Scheffer, 1998, p. 309). Although Scheffer and Perry implicate the Constitution in different ways--in the former it allows the exclusion of one type of evidence, but in the latter it does not mandate pretrial hearings-Scheffer suggests legislative redress may be a viable option.

In addition, a recent landmark decision by the Oregon State Supreme Court suggests that judicial redress may also be a viable option, at least as it pertains to state-based rules of evidence. Specifically, in State of Oregon v. Lawson (2012), the court concluded the state's rules for determining the admissibility of eyewitness identifications were outdated and ignored the last 30 years of scientific research on eyewitness memory. Therefore, the court revised those evidentiary rules to better reflect the current understanding of the many variables that can affect the reliability of an eyewitness's testimony and transferred the burden of establishing the admissibility of an eyewitness's testimony to the 15634 Page 14 19 Psych. Pub. Pol. and L. 369, *377

state. It is important to note that Lawson was based "on applicable provisions of the Oregon Evidence Code" (State of Oregon v. Lawson, 2012, p. 1) rather than provisions of the federal constitution, and the Oregon court also differentiated evidentiary principles of state law from constitutional due-process concerns (and the state actor requirement for the latter). However, the conclusion that, "As a matter of state evidence law . . . there is no reason to hinder the analysis of eyewitness reliability with purposeless distinctions between [state actor] suggestiveness and other sources of unreliability" (Lawson, 2012, p. 25, emphasis added) suggests judicial redress at the state level remains both a theoretically and practically viable endeavor. Indeed, it is even possible the Court could revisit the flawed Manson criteria for reliability in a future case involving some type of state action (see Wells & Quinlivan, 2009). Thus there is nothing prohibiting the scientific community from continuing to conduct research about the reliability of eyewitness testimony in an attempt to spur legislative or judicial action to amend rules of evidence with regards to such testimony.

As eloquently explained by Doyle (2012), Wigmore claimed, approximately 20 years after M[#xFC]nsterberg's death, "When the are ready for courts, the courts will be ready for the psychologists" (p. 4). The psychologists were and remain more than ready, but in Perry, the Court was not as prepared as the psychologists had hoped. So in the future the hope is that the Court will really be ready for the psychologists, going further than merely acknowledging (at best) the overwhelming scientific evidence about the malleable nature of human memory, and incorporating protections against this malleability into the concept of due process. Perhaps it will take another 34 years for an eyewitness identification case to make its way to the Court, but as renowned eyewitness-memory scholar Gary Wells shared, "I hope not . . . I don't think I can climb these stairs [to the Supreme Court] at the age of 95" (as cited in Weinberg, 2012, p. 82). Undoubtedly, psychologists also hope that day comes much sooner, but regardless of when it does come it remains to be seen if in the future the Court will be ready to turn to the law and say, "It's not you, it's the fallibility of eyewitness memory."

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McMurtrie. J. (2005). The role of social sciences in preventing wrongful convictions. The American Criminal Law Review, 42, 1271-1287. Michael, R. B., Garry, M., & Kirsch, I. (2012). Suggestion, , and behavior. Current Directions in Psychological Science, 21, 151-156. doi:10.1177/0963721412446369 Mnookin, J. L., Cole, S. A., Dror, I. E., Fisher, B. A. J., Houck, M. M., Inman, K., . . . Stoney, D. A. (2011). The need for a research culture in the forensic sciences. UCLA Law Review, 58, 725-779. Muller v. Oregon, 208 U.S. 412 (1908). National Academy of Sciences. (2009). Strengthening forensic science in the United States: A path forward. Washington, DC: National Academies Press. Neil v. Biggers, 109 U.S. 188 (1972). Penrod, S. D., & Cutler, B. L. (1989). Eyewitness expert testimony and jury decision making. Law and Contemporary Problems, 52, 43-83. doi:10.2307/1191907 People of California v. McDonald, 37 Cal. 3d 351, 208 Cal. Rptr. 236, 690 P. 2d 709 (1984). Perry v. New Hampshire, No. 10-8974, 565 U.S. (2012a). Perry v. New Hampshire, No. 10-8794, 565 U.S. (2012b). Brief for amicus curiae, American Psychological Association, in support of petitioner. Retrieved from http://www.apa.org/about/offices/ogc/amicus/new-hampshire.pdf Roper v. Simmons, 543 U.S. 551 (2005). Rosenberg, G. N. (1999). African-American rights after Brown. Journal of Supreme Court History, 24, 201-225. doi:10.1111/j.1540-5818.1999.tb00160.x Saks, M. J., & Koehler, J. J. (2005). The coming paradigm shift in forensic identification science. Science, 309, 892-895. doi:10.1126/science.1111565 [*379] Savage, D. G. (2012, January 11). Supreme Court rejects curbs on eyewitness testimony at trial. The Los Angeles Times. Retrieved from http://articles.latimes.com/2012/jan/11/nation/la-na-court-eyewitness-20120112 Scheck, B., Neufeld, P., & Dwyer, J. (2003). Actual innocence: When justice goes wrong and how to make it right. New York, NY: New American Library. Schmechel, R. S., O'Toole, T. P., Easterly, C., & Loftus, E. F. (2006). Beyond the ken? Testing jurors' understanding of eyewitness reliability evidence. Jurimetrics, 46, 177-214. Segal, J. A., & Spaeth, H. J. (2002). The Supreme Court and the attitudinal model revisited. Cambridge, UK: Cambridge University Press, doi:10.1017/CBO9780511615696 Severance, L. J., Greene, E., & Loftus, E. F. (1984). Toward criminal jury instructions that jurors can understand. The Journal of Criminal Law & Criminology, 75, 198-233. doi:10.2307/1143210 Shaw, J. S., Ill, Garven, S., & Wood, J. M. (1997). Co-witness information can have immediate effects on eyewitness memory reports. Law and Human Behavior, 21, 503-523. doi:10.1023/A: 1024875723399 Sheehan, C. (2011). Making the jurors the "experts": The case for eyewitness identification jury instructions. Boston College Law Review, 2, 651-693. Shelley v. Kramer, 334 U.S. 1 (1948). Simmons v. United States, 390 U.S. 377 (1968). Smith v. Cain, No. 10-8145, 565 U.S. (2012). State of Arizona v. Chappie, 135 Ariz. 281, 297, 660 P. 2d, 1208:1224 (1983). State of Louisiana v. Young, 2009-KK-1177 (2010). State of New Jersey v. Henderson, 27 A. 3d 872 (2011). State of Oregon v. Lawson, 353 Or. (S059234) (2012). State of Utah v. Clopten, UT 84, 223 P. 3d 1103 (2009). Stovall v. Denno, 388 U.S. 293 (1967). Supreme Court needs to know seeing is not believing. (2012, January 19). St. Louis Post-Dispatch. Retrieved from http://www.stltoday.com/news/opinion/columns/the-platform/editorial-supreme-court-needs-to-know-seeing-is-not-believing/article_6e699cfe-ebc0-5c05-8004-7f4c5030a645.html Thompson-Cannino, J., Cotton, R., & Torneo, E. (2009). Picking Cotton: Our memoir of injustice and redemption. New York, NY: St. Martin's Press. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005). United States v. Amaral, 9th Cir. 488 F. 2d 1148 (1973). 15631 Page 17 19 Psych. Pub. Pol. and L. 369, *379

United States v. Brown, 501 F.2d 146 (1974). United States v. Janis, 428 U.S. 433 (1976). United States v. Leon, 468 U.S. 897 (1984). United States v. Nixon, 418 U.S. 683 (1974). United States v. Scheffer, 523 U.S. 303 (1998). United States v. Wade, 388 U.S. 218 (1967). United States Constitution. Amend. V (1791). United States Constitution. Amend. XIV (1868). United States Constitution. Art. III, § 1. Wade, K. A., Garry, M., Read, J. D., & Lindsay, S. (2002). A picture is worth a thousand lies: Using false photographs to create false childhood memories Psychonomic Bulletin & Review, 9, 597-603. doi:10.3758/BF03196318 Wade, K. A., Green, S. L., & Nash, R. A. (2010). Can fabricated evidence induce false eyewitness testimony? Applied Cognitive Psychology, 24, 899-908. doi:10.1002/acp.1607 Weeks v. United States, 232 U.S. 383 (1914). Weinberg, S. (2012, November 27). Seeing is believing. The American Prospect, Retrieved from http://prospect.org/article/seeing-believing Wells, G. L. (1978). Applied eyewitness-testimony research: System variables and estimator variables. Journal of Personality and , 36, 1546-1557. doi:10.1037/0022-3514.36.12.1546 Wells, G. L., & Bradfield, A. L. (1998). "Good, you identified the suspect:" Feedback to eyewitnesses distorts their reports of the witnessing experience, Journal of Applied Psychology, 83, 360-376. doi:10.1037/0021-9010.83.3.360 Wells, G. L., Memon, A., & Penrod, S. D. (2006). Eyewitness evidence: Improving its probative value. Psychological Science in the Public Interest, 7, 45-75. doi:10.1111/j.1529-1006.2006.00027.x Wells, G. L., & Olson, E. (2003). Eyewitness testimony. Annual Review of Psychology, 54, 277-295. doi:10.1146/annurev.psych.54.101601.145028 Wells, G. L., & Quinlivan, D. S. (2009). Suggestive eyewitness identification procedures and the Supreme Court's reliability test in light of eyewitness science: 30 year later. Law and Human Behavior, 33, 1-24. doi:10.1007/s10979-008-9130-3 Wells, G. L., Small, M., Penrod, S., Malpass, R. S., Fulero, S. M., & Brimacombe, C. A. E. (1998). Eyewitness identification procedures: Recommendations for lineups and photospreads. Law and Human Behavior, 22, 603-647. doi:10.1023/A: 1025750605807 Wells, G. L., Steblay, N. K., & Dysart, J. E. (2012). Eyewitness identification reforms: Are suggestiveness-induced hits and guesses true hits? Perspectives on Psychological Science, 7, 264-271. doi:10.1177/1745691612443368 Wise, R. A., Pawlenko, N. B., Safer, M. A., & Meyer, D. (2009). What US prosecutors and defence attorneys know and believe about eyewitness testimony. Applied Cognitive Psychology, 23, 1266-1281. doi:10.1002/acp.1530 Wise, R. A., & Safer, M. A. (2010). A comparison of what U.S. judges and students know and believe about eyewitness testimony. Journal of Applied Social Psychology, 40, 1400-1422. doi:10.1111/j.1559-1816.2010.00623.x Wise, R. A., Safer, M. A., & Maro, C. M. (2011). What U.S. law enforcement officers know and believe about eyewitness factors, eye-witness interviews and identification procedures. Applied Cognitive Psychology, 25, 488-500. doi:10.1002/acp.1717

Legal Topics:

For related research and practice materials, see the following legal topics: Constitutional LawBill of RightsFundamental RightsProcedural Due ProcessGeneral OverviewConstitutional LawSubstantive Due ProcessScope of ProtectionCriminal Law & ProcedureEyewitness IdentificationGeneral Overview

FOOTNOTES: 15630 Page 18 19 Psych. Pub. Pol. and L. 369, *379

n1 A large literature in political science argues that particular actions of Supreme Court justices may be motivated by personal or political goals rather than "legal considerations" (see, e.g., Epstein & Knight, 1998; Segal & Spaeth, 2002). However, because it is the justices themselves who craft legal rules, it is still fair to say opinions are the result of the application of legal rules to facts, regardless of what the motivation may be behind the formulation of those rules. 15629

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Copyright (c) 2001 Southern Methodist University School of Law Journal of Air Law and Commerce

Fall, 2001

66 J. Air L. & Com. 1421

LENGTH: 52227 words

ARTICLE: FOIBLES OF WITNESS MEMORY FOR TRAUMATIC/HIGH PROFILE EVENTS

NAME: Deborah Davis*, William C. Follette**

BIO: * Deborah Davis received her B.A. from the University of Texas, Austin; and her Ph.D. in psychology from Ohio State University. She has taught psychology at Southern Illinois University in Carbondale, Illinois, and Georgia State University in Atlanta. Currently, she teaches psychology at the University of Nevada, Reno. Dr. Davis is also president of Sierra Trial and Opinion Consultants, a firm offering jury selection services, mock jury research, graphic design and production, among others. Dr. Davis serves as an on memory, and on issues of consent in sexual assault cases.

** Dr. William C. Folette received his Ph.D. in psychology from the University of Washington in 1984 with special training in clinical quantitative, and physiological psychology. He is currently an associate professor in the Department of Psychology and research associate professor in Family and Community Medicine at the University of Nevada. Dr. Follette conducts research in development, research design and methodology, clinical and functional assessment, and clinical behavior analysis.

LEXISNEXIS SUMMARY: ... Did Seale deliberately lie to protect himself? Or did he honestly "remember" that he had, indeed, feathered the propeller? If so, did his desire to protect himself from any blame for his wife's death and his friends' injuries fuel his "memory" that he followed proper procedure? Or did the ingrained knowledge of the routine procedure for engine out on take off make him assume that is what he did? ... A. Why Is Witness Memory a Problem? ... To summarize then, witness memory is a problem because: ... Summary: The Problem with Witness Memory ... Thus, many of our research examples will come from these areas of witness memory research. ... Unfortunately, jurors' common sense understanding of the relationship of memory for central detail versus peripheral detail is diametrically opposed to the actual relationship. ... At the narrow extreme, memory loss may be very selective, even as narrow as selected components of the traumatic event. ... In the intervening period, a number of both internal and external influences affect witness memory. ... These processes have been explicitly addressed in the witness memory literature. In fact, errors in source memory are responsible for a number of the common failures of witness memory. ... Modern dream research, however, has shown that the content of dreams is less symbolic than Freud believed. ...

HIGHLIGHT: I. INTRODUCTION 15627 Page 2 66 J. Air L. & Com. 1421, *

"The jury, or at least the judge, should know how far errors in recollection are normal and how they vary under different conditions." J. McKeen Cattell n1

TEXT: [*1427] A FEW YEARS ago, Nevada politician Robert Seale took off in his Cessna 410 heading for a campaign tour of rural Nevada with his wife, two other candidates for office, and a member of the campaign staff. Seale had owned the plane for several months, noticing during that time that the left engine was difficult to start. Despite these difficulties, Seale continued to use the plane.

On the day of the Cessna 410 crash, Seale experienced a left-engine out on take-off. He turned the plane around, located an open field, and attempted to land. Unfortunately, the plane ran into a hidden gully as it landed and crashed. Seale's wife was killed, and he and the other passengers were severely injured.

Initially, Seale testified that he had feathered the propeller, a procedure necessary to maintain altitude and maneuverability during an engine out situation. Pictures of the cockpit taken at the scene, however, showed the throttle still in full open position. Did Seale deliberately lie to protect himself? Or did he honestly "remember" that he had, indeed, feathered the propeller? If so, did his desire to protect himself from any blame for his wife's death and his friends' injuries fuel his "memory" that he [*1428] followed proper procedure? Or did the ingrained knowledge of the routine procedure for engine out on take off make him assume that is what he did?

Mechanics who worked on the plane testified that they had checked the engine and had it running correctly. Had they? Or did they "remember" in hindsight that they had actually done what hindsight told them they should have?

Ground witnesses testified that they heard the engine stall and sputter before take off. Did they? Or did hindsight tell them it must have been that way?

Other passengers testified that they had asked Seale about the safety of the engine and that he had reassured them. Did hindsight and the motivations associated with their liability suits cause them to "remember" falsely? Or did they actually ask Seale about the engine before the crash?

Modern memory research would suggest that although false testimony may be deliberate, it is more often sincere. Motivations and biases such as those alluded to in the Seale case pervasively influence memory such that witnesses sincerely believe the false reports they provide in court. They become, in effect, "honest liars."

Notwithstanding the potential for error in memory, American courts rely extensively, and in some cases exclusively, on witnesses' recollections to provide the "facts" of the cases before them. These recollections range from the details of a particular event to an event's many antecedents and consequences. They run the gamut of recollections - from those of the observer's own thoughts or behavior to the statements and behaviors of others, and from physical events to documents and conversations, among many other things. They refer not only to overt observable behaviors, objects, and events, but also to pertinent motives, intentions, or other interpretations of what happened and why. In other words, witnesses must testify about virtually all aspects of everyday life, from the more usual everyday activities leading up to the target event or the more unusual to traumatic, acute incidents that lead to trial. Indeed, it is hard to imagine a trial without witnesses.

In fact, everyday life would not be possible without memory. But memory has a darker side, fraught with , errors and distortions. We forget things sometimes almost as soon as they happen. We remember things that did not actually happen as if they did, and we remember things that did happen incorrectly. [*1429] Daniel L. Schacter 15626 Page 3 66 J. Air L. & Com. 1421, *1429

n2 referred to this duality of vast capacity and susceptibility to error as memory's "fragile power," and offered a list of memory's foibles, which he termed the "seven sins of memory."

Just as the biblical seven deadly sins (pride, anger, envy, greed, gluttony, lust, and sloth) occur frequently in daily life, so do . These can be broadly divided into three categories n3 including sins of forgetting (either temporary or permanent inability to remember), distortion or inaccuracy (remembering incorrectly), and persistence (pathological intrusive remembrances, or information we cannot forget even though we wish we could).

A. Why Is Witness Memory a Problem?

"Memory, whether we like it or not, is one more source of fiction ..." n4

The "sins" of the darker side of memory are often innocuous and merely inconvenient, such as difficulties remembering where we put our keys, the name of a former colleague, or what movie we saw last. Other "sins" are more serious, such as those experienced by elderly people when they forget to make an important appointment, forget to take necessary drugs, or even forget to eat.

Memory errors in court may sometimes be similarly unimportant. However, the outcome of a case will often turn on the testimony of witnesses - sometimes on the testimony of a single witness. In such instances, where witness testimony may replace or outweigh physical evidence, it is crucial for jurors to have the means to evaluate its accuracy.

Jurors are clearly aware that a witness may consciously deceive, choosing to falsely report their memories of relevant facts. They consider any vested interest the witness may have in the outcome of the case and try to monitor the testimony of fact or expert witness for evidence of truth or deceit. Unfortunately, research on detection of deception has shown that few people, including jurors, judges, attorneys, psychologists, or other professionals and laypersons, are able to reliably detect deception. [*1430] More than twenty years of research has shown that the average accuracy in judging truthfulness rarely exceeds 60% (chance performance being 50%), with some falling below chance ability. n5

Alone, jurors' inabilities to detect deception represent a substantial problem for evaluation of witness accuracy. Memory research, however, has clearly demonstrated that false reports come not only from false intentions, but also from false recollections, the latter arguably being a more frequent source of error. Unfortunately, whereas distortion and inaccuracy in memory is commonplace, judges, attorneys, and jurors are generally unaware of the frequency and causes of such honest errors. Thus, jurors suffer from a dual problem in evaluation of accuracy (as opposed to honesty) in witness memory. That is, jurors lack understanding of the fact that memory is much more fallible than they think, and lack understanding of when and under what circumstances memory is most likely to be inaccurate. In other words, jurors both underestimate the need to try to evaluate the potential for honest failures of memory and lack understanding of how to make such an evaluation if they know they should.

To summarize then, witness memory is a problem because:

(1) Witness testimony includes a host of honest errors of memory, and

(2) There are many features of the event, the parties involved, or the witness that are known to reduce witness accuracy, sometimes to the point that virtually no witness can accurately describe the event or the parties at issue.

However,

(3) Jurors underestimate the potential for honest errors of memory; and, therefore,

(4) Jurors tend to believe that witness testimony (particularly that of uninterested witnesses) is accurate, although 15625 Page 4 66 J. Air L. & Com. 1421, *1430

(5) Jurors do not accurately understand the conditions under which witness testimony is most and least likely to be accurate; and, therefore,

(6) Jurors are unable to distinguish reliably between accurate and inaccurate witnesses.

Nevertheless,

[*1431] (7) Jurors frequently decide a case solely on the basis of eyewitness testimony (for example, convicting a criminal defendant solely on the basis of a single eyewitness's identification), and thus,

(8) Jurors often make erroneous decisions on the basis of testimony from inaccurate witnesses.

Documented sources of error in eyewitness testimony combined with jurors' tendencies to over-believe the witnesses are widely considered by social scientists to account for a large number of erroneous verdicts. This conclusion has been best supported by studies of wrongful convictions of defendants proven innocent by evidence uncovered after trial. Eyewitness identifications of perpetrators, for example, are largely responsible for many false convictions.

One systematic investigation of various sources of miscarriages of justice has singled out mistaken identification as the number one source of error, n6 being responsible for 52% of the wrongful convictions identified. More recently, DNA analyses have freed at least sixty-two wrongfully convicted prisoners. n7 Eyewitnesses convicted the vast majority of these prisoners largely on the basis of mistaken identification. n8 Gary Wells n9 found that of forty exonerations, mistaken identification was involved in thirty-six of the cases involving fifty separate eyewitnesses mistakenly identifying the defendants. Barry Scheck's n10 analysis of the full sixty-two cases identified fifty-two cases involving mistaken identifications by seventy-seven confident, but mistaken, eyewitnesses.

While there are many sources of error in actual witness memory, jurors generally show three forms of misunderstanding or misuse of eyewitness testimony. First, they tend to over-believe eyewitness testimony, assuming greater-than-realistic accuracy. Second, they misunderstand the variables that affect accuracy, and thus do not adjust their judgments of accuracy properly. Finally, they cannot discriminate between accurate and inaccurate [*1432] witnesses. These failings are documented in a number of sources. n11

1. The Special Issue of Witness Confidence

The issue of the relationship between witness confidence and accuracy is particularly important since confidence is the single cue to accuracy jurors rely on most. There is widespread belief (among college students, jurors, police officers, trial lawyers, and even the U.S. Supreme Court) that witness accuracy and witness confidence are highly correlated. n12

Given this widespread belief, it should not be surprising that there is substantial evidence that jurors (and mock jurors) substantially rely on witness confidence to judge the accuracy of the witness's testimony. n13 Further, jurors tend to give more weight to the confidence of the witness than to factors that are more predictive of accuracy. Wells, R.C. Lindsay, and their colleagues have demonstrated this in a series of studies. n14

[*1433] Across all of these studies, mock jurors were unable to discriminate between accurate and inaccurate witnesses. Witness confidence was a strong predictor of perceived accuracy, whereas: (1) confidence was not actually significantly related to accuracy, and (2) mock juror of witness accuracy were not related to actual witness accuracy. In fact, juror perceptions of witness confidence accounted for as much as 50% of the variance in juror judgments of accuracy. Brian Cutler and his colleagues n15 found that out of ten witness variables known to affect actual accuracy, only confidence predicted perceptions of accuracy and verdicts. Thus, it is clear that witness confidence has a dramatic influence on jurors' perceptions of witness accuracy.

It is equally clear that confidence is not a good predictor of witness accuracy. Recent reviews and meta-analyses of the literature on the relationship between eyewitness confidence and accuracy have uniformly concluded that witness 15624 Page 5 66 J. Air L. & Com. 1421, *1433

confidence is only modestly (at best) related to accuracy - either between or within subjects. n16

[*1434] There is also some evidence that eyewitness confidence is, in part, a stable individual difference variable. Looking at accuracy-confidence relationships within individual subjects, Evan Brown, Kenneth Deffenbacher, and Sturgill n17 found that a given eyewitness's confidence when correct was highly correlated with that person's confidence when incorrect. In contrast, however, a given eyewitness's confidence when correct was not significantly higher than that same person's confidence when incorrect. In other words, a person's confidence in his/her own eyewitness testimony seems to be determined more by whether (s)he is a confident person than by the accuracy of his/her testimony. n18

To summarize, jurors are strongly affected by the confidence of the witness. Such that they are very likely to believe a confident witness. Unfortunately, overall, confident witnesses are not reliably more accurate than less confident witnesses.

It is important to note that the research documenting these effects was conducted with eyewitness accounts of crimes, persons, and events that did not directly involve them. Thus, the witnesses were uniformly free from any personal involvement or motivation that might promote false accounts. Even in such circumstances, witness confidence was unrelated to accuracy.

a. Procedures that Cause Distortion in Memory Also Enhance Confidence

Confidence in our memories is dependent on many factors, not just the validity of our memories. Unfortunately, many things that affect confidence also carry great potential to cause distortion in memory. For example, most of the common procedures used to aid memory retrieval or to prepare for trial have been shown both to cause distortion in memory and simultaneously to enhance witness confidence. These include such common techniques as hypnosis, guided imagery, repeated [*1435] questioning, preparation for cross-examination, and many others, as shown in the sections below.

2. Summary: The Problem with Witness Memory

Research using varying methods has converged on the twin conclusions that: (1) witness memory is subject to many sources of error and distortion, and (2) empirical findings regarding factors that actually affect eyewitness accuracy are often inconsistent with lay assumptions about the factors that influence eyewitness performance and thus with the criteria jurors actually use to evaluate witness accuracy. n19 Witnesses tend to use the least accurate cue (confidence) and remain unaffected (or minimally affected) by other cues that more strongly predict witness accuracy. Thus, there is clear evidence that jurors possess neither an adequate nor accurate understanding of witness memory and what may affect accuracy.

It is this conflict between how memory actually works and how jurors believe it works that has led to the rise in use of memory experts in court. Expert testimony on witness memory is useful for the jury in that it gives them a more accurate basis for evaluation of the accuracy of witness testimony. Expert testimony is also useful for the explanation of the implications of failures in memory. For example, an expert may explain the impact of trauma, such as rape or other extreme violence, on memory to help jurors understand the implications of temporary or permanent lapses of memory of the victim. Finally, memory experts may be useful for the attorney in preparing motions to exclude testimony based on issues of probable witness inaccuracy or for preparation for cross-examination of a witness.

The remainder of this article will provide an explication of how memory works. In doing so, it will explain common causes [*1436] of memory failure and distortion and identify typical categories of errors that follow from specific causal processes, providing examples pertinent to the legal system, particularly aviation litigation, as it proceeds. Finally, the article will end with a discussion of how memory researchers can be helpful as consultants or expert witnesses. Throughout the article, the discussion will be confined to sources of unintentional errors. 15623 Page 6 66 J. Air L. & Com. 1421, *1436

The discussion of the foibles of witness memory will be based on principles of memory discovered over the full history of memory research. Thus, some research citations will not pertain specifically to witness memory, although the principles by which memory operates are constant and will apply unchanged to analogous witnessing circumstances.

Further, much of the scientific literature dealing with witness memory has addressed issues relevant to criminal trials, with the greatest emphasis on factors related to accuracy in identification of perpetrators of crime and, to a lesser extent, emphasis on factors related to reports of the criminal events. More recently, extensive literature has developed concerning the potential for trauma-induced loss or "repression" of memories and the potential for memory distortion induced by common techniques or processes for "recovery" of those memories, particularly in cases concerning child sex abuse or rape. Finally, a small but growing body of literature has begun to examine factors determining the accuracy of conversational memory - an area vitally important to civil trials in particular, and an area where expert testimony is beginning to appear. Thus, many of our research examples will come from these areas of witness memory research.

II. FUNDAMENTALS OF MEMORY PROCESSES

Modern scientific theories of memory suggest that our memory system operates in three general stages: (1) Acquisition (or ), when information is first transferred into our memory system; (2) , while information is maintained in memory over a period of time; and (3) Retrieval, when information is located and retrieved from storage. At each stage, memory may be compromised by failure or inaccuracy.

III. ACQUISITION/ENCODING

At the acquisition stage, information about an event is perceived by the observer and processed for storage in memory. [*1437] The popular "modal model" of memory n20 proposes that three subsystems of memory operate at the acquisition stage. Information moves between them through active "control processes" such as focusing of attention, rehearsal, and thinking, but may be disrupted or distorted in the process.

A. Sensory Registers

The first stage of encoding (entry into memory) is called the "sensory register," which perceives information in its original physical form just long enough for us to determine if some aspect of input is worthy of further attention. Visual information in the sensory register decays within less than a second, and auditory information decays within a few seconds. At this stage, information may be lost through disruption of sensory processes, resulting in failure to ever encode the information or failure to encode it clearly. For example, a witness may fail to encode some aspect of an event in (either clearly or at all) because at the time it occurred something interfered with the opportunity to observe clearly.

B. Short-Term (or Working) Memory

Given that the observer has had the opportunity to observe, the information may or may not enter short-term memory before it is lost. Information from the sensory registers enters short-term memory if and when it becomes the focus of attention. Those sensory impressions that do not engage attention are lost within a few seconds. In turn, information that does enter short-term memory will decay within thirty seconds unless sustained by continued attention, rehearsal, and elaboration. Those features that do engage attention, rehearsal, and elaboration are more likely to enter long-term memory.

C. Long-Term Memory

The "modal model" of memory n21 suggests that information from short-term memory enters long-term memory through "elaborative rehearsal" - the process of thinking about the information and relating it to other information already in long-term memory. If elaborative rehearsal is prevented by distraction or [*1438] other factors, information 15622 Page 7 66 J. Air L. & Com. 1421, *1438

in short-term memory will be lost. n22 With greater interference or distraction associated with faster and greater information loss. n23

Some controversy exists concerning the exact nature of the relationship between the three memory systems, and the sequence in which information is processed. For example, there has been increasing attention to the "Parallel Distributed Processing" model of Stephan Lewandowsky and Bennet Murdock. n24 The model suggests that information is processed simultaneously in several different parts of the total memory system. Sensory impressions, for example, must engage information in long-term memory for recognition of an object to occur in short-term memory. However, despite competing theoretical perspectives regarding the exact nature of the interaction between memory systems and the exact processes by which memory operates, research has converged in identification of factors that tend to compromise memory through failures of encoding.

These failures include both failures to encode the information at all and inaccuracy in encoding. If the information does reach long-term storage, memory may still be inaccurate. That is, if the information is not encoded accurately, it will not be later retrieved accurately. Thus, much general memory research, and specifically witness memory research, has focused on factors that may interfere with the accuracy of encoding. Generally, three types of factors have been investigated: (1) the nature of events witnessed; (2) the conditions under which they are witnessed (lighting, for example); and (3) characteristics of the witness (either enduring characteristics or temporary states).

Each of these factors tends to affect encoding through either: (a) the ability to clearly see or perceive the event; (b) effects on the amount of attention and therefore, information processing capacity devoted to the event itself or to the particular aspect of the event (such as a central party versus peripheral actors or characteristics of the setting); or (c) biasing the interpretation of what is witnessed, and therefore what one later remembers.

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IV. FAILURES OF ACQUISITION/ENCODING

A. Failures of Perception

1. Failures of Opportunity to Observe

The Importance of Clarity of Perception. Intuition would tell us that anything affecting a witness's opportunity to observe the events in question would affect accuracy. To the extent one remembers an event at all, one will at best remember only what was originally witnessed. Thus, it follows without question that if one is unable to see or hear clearly at the time the event is witnessed, one will be unable to remember it any more clearly later on. Indeed, the U. S. Supreme Court has accepted this assertion as a criterion for judging eyewitness reliability. n25

The eyewitness literature has documented negative effects on witness accuracy stemming from factors compromising either the opportunity or ability to observe clearly. These include physical features of the environment, such as noise or other acoustical interference, or factors compromising vision such as poor or sudden changes in lighting, obstructions, and distance between the observer and the event in question. Also included are features of persons or objects being observed, including a perpetrator's obstructing hats, clothing, or disguise. n26

Important observer factors including age, degree of visual, olfactory, auditory or tactile sensory loss, or temporary incapacities such as extreme stress, blindfolding, drug or alcohol use, can also affect accuracy through ability to observe. n27

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2. Duration of Exposure 15621 Page 8 66 J. Air L. & Com. 1421, *1440

Clearly, the opportunity to observe any aspect of an event depends in part on the length of time one can observe it. In part, longer exposure allows time for sensory impressions to receive adequate attention, and for the elaborative rehearsal necessary to transfer information from short to long-term memory. Not surprisingly, a number of studies in the basic memory literature have shown memory to depend upon length of exposure. Similarly, the eyewitness literature has shown that eyewitness reports are more accurate after a longer exposure to a perpetrator or event. n28

Duration of exposure may also be reflected in the frequency of exposure. Just as memory for any information is facilitated by frequent exposure or practice, so is memory for people and events. The more often a person is seen, for example, the easier it is to identify him. n29

Opportunity to observe may be a problem in many respects with regard to aviation accidents. Among them is the speed of unfolding events. Many plane crashes happen rapidly with little warning of the trouble that will cause the crash and with little time between the onset of the problem and the crash. It may be less than thirty seconds, for example, between an engine out on take-off and contact with the ground. Regardless of the interval between the first sign of trouble and the crash, however, events tend to unfold rapidly with little opportunity to observe every detail or to attend to any individual detail for a long period of time.

Although one might expect that we ourselves (and the average witness) would be aware of the limitations of our memories for what we never clearly perceived, this is often not the case. A very large body of literature in the eyewitness identification area has repeatedly shown that witnesses asked to identify the perpetrator of staged crimes or to describe other witnessed events do so confidently, although the event itself provided little opportunity to observe clearly. The poorest "witnessing conditions" (such as poor lighting, brief exposure, great distance, perpetrator wearing a hat, etc.), where the rate of accuracy of identification of the perpetrator may be as low as 10%, nevertheless produce [*1441] large numbers of witnesses willing to positively (but inaccurately) identify a perpetrator with confidence.

We are equally unaware of the foibles of others' memories. For example, Cutler, Penrod and Stuve, n30 as described earlier, had mock jurors observe one of a number of versions of the reenactment of a trial. Ten factors that have been shown to affect eyewitness accuracy were varied, including some regarding opportunity to observe. Among these, only eyewitness confidence affected mock juror judgments of witness accuracy, even though the mock jurors did testimony regarding each of the nine other factors that are known to compromise accuracy. Thus, the damaging impact of poor witnessing conditions (and other biasing influences) is underestimated by both the witnesses themselves and by the jurors who base their judgments on witness testimony.

Similarly, factors that may compromise witness ability to observe may be unknown to both the witness and the jury, such as age-related failures of attention, hearing, vision (both general and color specific), or understanding. For example, ability to taste declines rapidly with age, a fact unknown to most people.

B.

"Absent-mindedness" and Failures of Processing

Memory may also fail because of insufficient attention and/or depth of processing. Schacter n31 referred to these deficiencies as "absent-mindedness" - the second deadly sin of memory.

1. Memory Depends Upon Attention

It has been demonstrated in countless areas of research and is uncontested among psychological researchers that: (a) memory follows the focus of attention, such that what is most focused on will be remembered better; and (b) that memory is a function of the amount of attention devoted to a particular event or object. Memory is better for any object or event where more attention is devoted to it. This includes both the quality of attention (concentration, lack of distraction) and/or the duration of attention. Events that are not attended to will be poorly remembered, if at all. Further, 15620 Page 9 66 J. Air L. & Com. 1421, *1441

features of an event that are not well attended to will be remembered poorly. Thus, anything about the event, the conditions under which it is witnessed, or the state of those witnessing [*1442] it that reduces either the amount or the quality of attention to it will also impair memory.

The effects of the focus of witness attention have been demonstrated in several ways in the eyewitness literature. For example, Cutler, Penrod and Martens n32 directly told subjects what to attend to when exposed to a videotaped scene. Subjects remembered the aspects they focused on better than those they did not. Similarly, Reinitz, Morrissey and Demb n33 directly manipulated how much attention a subject could devote to a face by subjecting some subjects to distraction while viewing the face. They found that later recognition was superior for faces originally viewed without distraction. Moreover, the importance of attention has been further demonstrated through studies of the impact of selective attention to some features of a scene and not others.

2. Memory Depends Upon the Depth of Processing

Both the amount and quality of attention and the "depth of processing" of information (referring to the amount of thinking about it or analyzing it) will affect memory. n34 considered shallow processing to be the second prong of the sin of "absent-mindedness."

Information may be encoded on a continuum from shallow to deep, with deeper processing producing better memory. n35 Presumably, memory is enhanced because deeper processing may lead to a stronger and more elaborate memory trace. The more elaborate the memory trace, the more distinctive it becomes from other memories, and therefore the more easily it can be located. n36 Further, the more it is related to other information in [*1443] memory, the more associations it forms and therefore the more associative paths available to lead to retrieval.

a. Three Levels of Processing

Fergus Craik and Robert Lockhart n37 identified three levels of processing: sensory processing, intermediate processing, and deep processing. Sensory processing involves the encoding of the physical features of the information. Intermediate processing involves recognition and labeling of information. Deep processing involves semantic processing and assignment of meaning. It includes elaborative rehearsal (where repetition maintains new information in short-term memory longer, allowing greater opportunity for elaboration and entry into long-term memory), thinking about what is observed and its meaning/interpretation, and relating it to already stored knowledge. Deeper processing has been consistently shown to produce better memory. It is for this reason that recommendations for studying material for tests include thinking about it and relating it to one's life and experiences as a device.

It is also for this reason that organization is such an excellent facilitator of memory. Students are routinely advised to outline material to study for tests. Material presented in an organized manner is encoded better. n38 It is more understandable and easier to encode at the deepest semantic level of processing. Further, memory works by association, and associations are easier among organized material. Finally, the act of organizing material (as in outlining study materials) creates better understanding and builds associative links.

b.

"Absent-mindedness" and Shallow Processing

1. Specificity of Encoding

Among the hallmarks of shallow processing is lack of specificity in encoding. That is, when information is processed without adequate attention and elaboration, it tends to be encoded in terms of its "gist." Often, the "gist" will consist of a category label, such as "talking," "having dinner," "running," "party," "man," "black man," "doctor," etc. In this way, much of the detail is lost. 15619 Page 10 66 J. Air L. & Com. 1421, *1443

[*1444] Because little detail is encoded, features of a specific event, object or person that might otherwise allow the observer to distinguish it from a similar other are not encoded. Thus, when later asked to identify the specific person or object involved, or to describe the details of the event or actions, the observer cannot.

a. Cross Racial Identification

Failure in specificity of encoding is widely considered to be responsible for difficulties in cross-racial identification. We may simply engage in shallow categorical processing, attending to the person's race and not to individual facial features. We may also attend to the wrong features. Specific features we use to distinguish between members of our own race (such as hair and eye-color among Caucasians) do not succeed as well in distinguishing between members of another race (such as those whose members are characterized predominantly by dark hair and eyes). Thus, if we use the familiar strategies and encode those features, we will not successfully distinguish members of the other race. n39 Cross-racial identification is less difficult for those who spend more time with members of other races and thus learn to use the correct features. n40 For example, Dunning, Li, and Malpass n41 showed that Caucasians, who are avid basketball fans, therefore having more exposure to African American faces, have less difficulty with cross-racial identification.

b.

"Change Blindness"

One of the more interesting illustrations of the importance of the quality of attention, or depth and specificity in processing, is [*1445] the newly discovered phenomenon of "change blindness." n42 "Change blindness" refers to failure to detect changes in scenes or objects under continuous .

In one study, n43 for example, observers watched a movie in which an actor performed a simple action. Unknown to the observers, one actor was replaced by another during the course of the scene. Unbelievably, two thirds of the observers failed to notice the change.

In an even more incredible demonstration of the phenomenon, Daniel Simons and Daniel Levin n44 had a confederate on a college campus ask subjects for directions. While the two were conversing, the confederate was momentarily obscured by two men who walked between them holding a door. Behind the door, the confederate changed places with another, so that by the time the door passed, the subject was confronted with a different person who continued the conversation as if he was the original. Incredibly, less than half of the subjects noticed the change! The authors n45 suggested that change blindness might be explained by "shallow encoding" of the features of a scene or person, such that the "gist" of the scene is recorded without specific details. The "gist" of similar objects or the same object in a slightly different position or configuration is the same. Thus, detection of the difference between stimuli requires encoding of the features or details that distinguish one from another.

Change blindness with respect to people may be an unrecognized source of errors in eyewitness identifications. Imagine a convenience store robbery in which the witness has a clear opportunity to observe a man entering a store, but does not notice that a different man walks to the counter to rob the clerk. With a clear memory of the person he did observe clearly, the witness describes him to the police and later identifies that person as the perpetrator of the robbery. In fact, some laboratory evidence exists for this phenomenon. n46 The authors found that [*1446] many witnesses to an assault confused the assailant and the bystander, thinking that they were the same person.

Change blindness may also provide an explanation for various aviation, vehicular, or industrial accidents. A pilot may fail to perceive crucial changes in gauges; a driver may fail to perceive changes in location or motion of other vehicles; or a factory worker may fail to perceive indications of danger on devices he or she monitors for warning of trouble. Further, genuine lack of awareness of such changes may be the basis of honest false testimony. If these actors fail to notice crucial changes, they will later honestly, but falsely, report that the changes did not occur, thus misleading 15618 Page 11 66 J. Air L. & Com. 1421, *1446

regarding the true causes of and responsibility for accidents.

The change blindness phenomenon provides a clear illustration of the general principle that in order to later accurately identify or describe a particular person or object (or to distinguish one from another), one must attend to and encode the features that distinguish the one in question from similar others. Thus, if one attends only to the category of the object, rather than its individual features, or if one attends to the wrong features (i.e., those that do not distinguish the particular object from others in its category), one will later be unable to identify the individual.

2. Did I Remember to Lock the Door? Consequences of Automatic vs. Controlled Processing

Many of the activities we perform in daily life are routine, effortless, and do not require the focused attention and deep processing necessary to form long-term memories. Things we tend to do on "automatic pilot," to put it colloquially, are done by means of what is called "automatic processing" n47 in information processing terms. When we are in the automatic processing mode, we pay minimal attention and may accomplish things while devoting focal attention to something else.

Activities that form a regular morning routine, such as brushing teeth, taking pills, getting ready to go, locking the doors, and even driving to work are often done in automatic processing mode. This is why, for example, we often cannot remember whether we took a pill, fed the cat, or locked the door. If we do [*1447] remember that we did these things, it is unlikely that we also remember the doing of them, as in the sense of having an internal video of exactly what we did.

Driving is also accomplished in automatic mode much of the time. We listen to the radio, talk to other passengers, and pay only minimal attention to the physical task of driving. In fact, if we shifted to controlled processing mode, where each action is placed in focal attention, and thought about it in depth, we would experience difficulty driving, much like a beginning driver who gets behind the wheel for the first time.

Automatic processing mode is necessary to accomplish everyday activities smoothly and efficiently without too many demands on limited processing capacity. The side effect of this efficiency, however, is loss of memory. How many of us have been stopped by a traffic cop only to wonder what our offense might have been? Then when confronted with having run a stop sign, how many of us could not remember how completely we stopped, or even whether the stop sign was there?

Memory for routine behaviors often becomes crucial in court. When putting the plane's engine back together, did the mechanic put a particular filter in place correctly? Was the door locked? Did you recall seeing your husband that morning? Did you warn this particular patient about the risks of the procedure? Often, the issue is whether a professional did or did not perform, in a specific instance, what they usually do perform in the typical instance. Inherently, reports of such behaviors are unreliable.

Because routine activities are often done in automatic processing mode, they are not encoded elaboratively, in a way that would facilitate long-term memory. When these activities later become an issue in court, the witness will often be unable to accurately report on their behavior. Instead, (s)he will tend to base the report on a memory constructed (see section on constructive processes below) from the assumption that they would have done it that way because that is how they usually do it. For example, we cannot truly remember each physical act involved in driving, even though we know what we did. We must have, or we would not have gotten to work!

3. Attention/Processing Capacity is Limited, and Therefore Selective

The amount of information in the environment exceeds the limits of our attentional resources, a situation that forces attention to selectively focus on some features of the situation and to [*1448] neglect others. Predictably, certain kinds of people, objects and events tend to selectively draw attention and to compromise attention to other features of the 15617 Page 12 66 J. Air L. & Com. 1421, *1448

situation in the process.

a. Salient Features

Some things draw attention by their very nature, such as those that are loud, colorful, dramatic, exciting, or central to the action. Recall the standard techniques for "creating a diversion" among TV criminals or private detectives designed to draw attention away from the person who wants to sneak in or snatch something unobserved.

b. Threatening Features

Situations or objects that are personally threatening tend to draw attention. For example, investigations of the presence of a weapon during a crime have demonstrated that the weapon tends to attract the attention of the witness, leaving less attention to the perpetrator's facial and physical characteristics. This phenomenon is often referred to as "." Nancy Steblay performed a meta-analysis of weapon focus studies, showing a reliable decrement in recognition accuracy for the perpetrator when a weapon is present as opposed to when one is not. n48

c. Distinctive Features

We have all heard references to the idea of "sticking out like a sore thumb," illustrating the idea that attention is drawn to things that are distinctive or different. In turn, those features are more likely to be remembered than less distinctive or noticeable aspects of the scene.

Distinctiveness is also the basis on which we distinguish one object from similar others. Attention tends to go to the distinguishing features of a person, hence the importance, should one want to commit a criminal act, of looking and dressing in the least distinct manner possible.

The use of distinctiveness to differentiate between people is widely considered to contribute to the difficulty in cross-racial identification, n49 as noted earlier.

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d. Features Relevant to Personal Interests, Goals, or Current Concerns

Rachel Remen, in her book Kitchen Table Wisdom, tells of a time when she was in medical school, riding the subway to see her parents: "I remember traveling home to visit my parents on the subway, realizing only after a while that I had been unconsciously scanning the veins of the bare-armed people around me, wondering whether my skills with a needle were good enough to allow me to successfully draw blood from them." n50 Attention is naturally drawn to things relevant to one's own personal interests, goals, or current concerns, just as her attention was drawn to veins as she was being trained to draw blood. When planning to buy a car, for example, one tends to notice different makes and models in parking lots, car ads on TV, and other relevant information where it is encountered. If cars are not of concern, such information is either not noticed at all or not deeply processed. The world is generally filtered through the lens of our own interests and needs.

Imagine, as suggested by S.T. Fiske and S.E. Taylor, n51 that you walked through a house with the eye of a burglar casing the house for entry and loot. Would you notice and remember the same things as if you walked through as a potential buyer of the house, or as the police investigating the burglary? Attention research has shown that memory will be best for features relevant to the burglary, the crime investigation, or to the purchase decision, depending upon the observer's intentions.

e. Features Relevant to Activated Schemas, , and Expectations 15616 Page 13 66 J. Air L. & Com. 1421, *1449

"Labeling sets up an expectation of life that is often so compelling we can no longer see things as they really are... . We are in a relationship with our expectations and not with life itself. n52

"Schemas" provide the basis of our understanding of the world around us. They include social category schemas (or stereotypes), event schemas (telling us what tends to happen and who tends to be involved in particular event categories), causal schemas (telling us what tends to cause particular events or outcomes), person schemas (telling us what a particular person is [*1450] like and how (s)he is likely to behave), and self schemas (our own beliefs about ourselves), among others.

Research in cognitive and social psychology has shown that the influence of schemas on information processing is pervasive. They allow us to recognize objects, people, procedures, social situations, and much more. They form the basis of expectations that tell us what to do with a person or object or, in a particular situation, what to expect to happen. They offer the standards against which we evaluate specific individuals or events. Finally, they direct attention to relevant features of what we observe and direct interpretation of what we see.

A particular schema may become active in any number of ways. For example, the social category of "criminal" may become salient to an observer because the target was identified as a criminal by another observer (labeling), because the target "looked" suspicious, because the observer is a policeman and deals with criminals every day, or because the observer had just seen a television show about crime.

Once a schema is activated, it has very predictable consequences for attention and information processing. Among them is the tendency for attention to selectively focus on schema-relevant aspects of the situation the observer is in and later to selectively remember that information. n53 Further, memory for information consistent with expectations generated by the schema is better in most circumstances than memory for information that is inconsistent with them. Incongruent information can be remembered as well as, or better than, consistent information under limited circumstances. When the observer is highly motivated to perceive things accurately at the time an event or information is first encountered, incongruent information may be processed carefully in an effort to understand it. This increased depth of processing, in turn, will facilitate encoding and memory. In the absence of such motivation, incongruent information tends to be ignored. n54

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f. Memory for the "Core" of the Event is Superior

Attention tends to be drawn to what may be thought of as the "core" of the event. Thus, memory for the nature of the event and the central actors and actions tends to be superior to that for peripheral details. This holds true for both stressful/traumatic and non-stressful events and for observers or victims of all ages (see section IV.B.4(b)(2) infra on trauma and memory).

Interestingly, observers often assume that witnesses who can provide great detail concerning peripheral aspects of an event will be more accurate regarding central detail. However, just the opposite tends to be true. Gary Wells and Michael Leippe, n55 for example, reported a negative correlation between the ability to recognize a perpetrator and the ability to recall peripheral details. Subjects in their experiment observed a man steal a calculator. Later, those who remembered details about the room in which the theft took place were less likely to accurately identify the perpetrator.

Unfortunately, jurors' common sense understanding of the relationship of memory for central detail versus peripheral detail is diametrically opposed to the actual relationship. Jurors tend to believe that failure to accurately remember peripheral details casts doubt on a witness's accuracy for central actions, persons, or events. However, exactly the opposite is true. Good memory for peripheral details would suggest that the witness's attention was directed away from the core event at the time it was witnessed, and that memory for core details may be compromised. 15615 Page 14 66 J. Air L. & Com. 1421, *1451

4. Attention is Vulnerable

Try as we may to focus our attention undisturbed, it is nevertheless vulnerable to distraction by both internal and external forces.

a. Distraction

1. Complexity

Attention may be compromised by event "complexity." The more demands for attention there are, the less attention is available for any specific feature of the event. The events of, and leading up to, airplane crashes are perfect examples of complex events.

[*1452] Passengers in a commercial jet, for example, may be confronted with unexpected physical events such as jolts, changes in altitude, announcements and direct interactions with the crew and other passengers, severed parts of the plane, fire, decompression (many occurring simultaneously), and ultimately the crash and its aftermath. The crew must attend to the physical events noticeable to passengers, as well as gauges and crucial readings and must attempt to fix or compensate for mechanical problems. Additionally they must manage the plane and communications with both ground crews and flight attendants. The flight attendants must attend to physical events with the plane, the passengers and their needs, and liaison communications between crew and passengers. Ground crews, in turn, must manage not only the flight in danger, but also others that may be affected. Thus, everyone involved is confronted with a rapidly unfolding complex event with many divergent demands on their attention - a situation that continues unabated for those who survive and confront the aftermath. Under such circumstances, attention to the details of the event, as well as the depth of processing of those details, will be compromised through several processes.

First, the necessity of attending to so many different details of the event, per se, reduces not only the likelihood of attending at all to a given detail, but also the amount of time one can attend to it and consolidate it to memory.

As noted earlier, memory is dependent upon attention. The less attention devoted to a particular aspect of the event, the less well it will be remembered later. In our plane crash example, there are so many diverse things to attend to that attention is necessarily divided, forcing the witness both to fail to witness some details at all, and, among those they do witness, to devote less time to each. Thus, on the average, memory for any given aspect of a complex event will be: (a) less likely to exist at all, and if it does, (b) less clear and accurate than for the same aspect had it been part of a simpler event.

This point has been demonstrated in the eyewitness identification literature. There, research has shown that as the complexity of a criminal event increases (e.g., more bystanders, more perpetrators, the use of weapons, other events occurring simultaneously with the crime, a more complex environment), descriptions of and memory for any given detail, including the [*1453] perpetrator, will decrease in detail and accuracy. n56 Brian Clifford and Clive Hollin also found that the effects of complexity were greater at higher levels of event violence, probably due to greater emotional in the witness. n57 This finding is consistent with the notion that the stress and trauma of an airplane crash would similarly exacerbate the negative impact of event complexity on memory.

a. The Issue of Ambiguity

Related to the issue of complexity is the issue of ambiguity. That is, complexity itself can sometimes render what one is witnessing ambiguous. This is in part because the necessity of dividing attention between a number of different people, actions, and events makes it impossible to track each of them as carefully. Thus, one many be unable to know for certain what is going on with everything or everyone at all times (especially if they are in disparate locations).

Studies of social influence have demonstrated that people are more susceptible to persuasion or influence by others 15614 Page 15 66 J. Air L. & Com. 1421, *1453

if they are uncertain of their own perceptions or opinions. Thus, the complexity of the situation in which events take place, combined with conditions of the witness that may compromise attention, such as intoxication, extreme stress, trauma, etc., may create less clear perceptions. In turn, this ambiguity of perception may give rise to the potential for greater contamination of both their perceptions of the events as they occurred and of their subsequent memories of the events. For more information, see our discussion of witness contamination below.

2. Proactive and Retroactive Interference

Memory is further compromised by "interference" processes resulting from a rapid overlapping sequence of events. These processes are similar to those preventing us from remembering jokes heard as part of a sequence of many. We can remember a particular joke better when it is the only one heard that day than when it is one of many in a rapid sequence of jokes. Those of us [*1454] who are older may recall that we remembered everyday events better when there were not so many to remember (back when our lives were less complex). Similarly, students can remember exam materials for a particular class better if that material was not preceded or followed by studying for other exams.

This problem has been documented extensively in the memory literature, where it has been shown repeatedly that memory for information is better when it is learned (encountered) in isolation. When either preceded ("proactive interference") or followed ("retroactive interference") by other information, the target information is remembered more poorly. n58 Interference from prior or subsequent additional information or events interferes with the ability to consolidate and transfer the target information from short into long-term memory.

These interference processes are one reason (other than advancing senility) why the rapidly sequenced events of a complex life can lead us to forget some things as fast as they happen. Similarly, a rapidly unfolding airplane crash involving multiple overlapping events permits neither adequate attention to given neither details nor time for processing, elaboration, and consolidation or storage in long-term memory.

b. Witness Factors Disrupting Attention

Clearly, external forces may disrupt attention. Internal forces, however, may sometimes be even more disruptive.

1. Intoxication

Intoxication from either alcohol or other drugs can severely impair attention and, later, memory. n59 Further, there is some evidence that later recall is better when again intoxicated than when sober, a phenomenon called "state-dependent retrieval." n60

2. Trauma and Stress

Among the hallmarks of aviation disasters are strong emotion, trauma, and stress among all involved, from victims and their [*1455] families to ground personnel, rescue workers, and investigators. Many assume that memories for trauma are more accurate and more durable over time than those for any other events; that is, they are "burned-in" and indelible. The true picture, however, is much more complicated.

Memory research has addressed memory for stressful or traumatic events at two levels. First, laboratory studies have assessed memory for events or other materials varying in violence or ability to create strong emotions. This research has enabled researchers to examine basic attentional processes engaged by violent, arousing, or stressful material. However, ethical constraints prevent laboratory examinations of extreme personal trauma. Thus, the second level of research has attempted to examine memory for personally traumatic events primarily through non-experimental methods. Our discussion of emotions and memory will first examine principles developed in laboratory research and then turn to the application of these principles in studies of memory for real life traumatic events. 15613 Page 16 66 J. Air L. & Com. 1421, *1455

a. "Tunnel Memory"

Sven-Ake Christianson and his colleagues have suggested a three-stage process by which stress or arousal affects memory. n61 First, in the "pre-attentive" stage, emotion-eliciting stimuli, such as blood or personal threat, trigger an orienting response drawing attention to the emotion-eliciting stimuli. Then, in the second stage, active attentional mechanisms engage elaborative encoding focused on the emotional material. This selective attention and elaboration limits processing capacity for peripheral information not central to the emotional aspects of the event. In cases of very strong emotion, the person may become preoccupied by intrusive thoughts regarding the threatening event, further narrowing the focus of attention/processing.

The authors refer to the outcome of the narrowed attention and heightened psychological focus on the source of the emotional arousal as "tunnel memory." n62 Events witnessed under this narrow processing mode will tend to promote better memory for central information - the details of the emotion provoking part [*1456] of the event. In contrast, it will tend to inhibit processing of and memory for peripheral details - details that are either irrelevant or spatially peripheral to the core source of arousal. A number of studies have supported this conclusion. n63

Memory also tends to be better for details that are spatially or temporally associated with the main characters (or source of emotion) for highly arousing events than for less arousing events, but better for peripheral details in less emotional events than in emotional events. In part, this tendency may result from the tendency for memory to be more focused spatially for traumatic scenes than for either the actual scene or an equally large, but non-emotional scene. The narrow focus of attention seems to narrow the subjective range of perception. In contrast, subjects tend to remember more neutral scenes as more wide-angled than they actually were. n64

Finally, in contrast to memory for most things, memory for highly emotional or traumatic events can sometimes become better over time and with repeated questioning. As arousal and anxiety fades, all aspects of information processing become easier, including efforts to remember. Thus, it is not unusual to find a victim or witness who at first is unable to fully describe what happened, but is able to later provide much richer and coherent reports. n65 It is vitally important to consider, however, the nature of post-event influences that may have contaminated the witness's memory. Memory may improve if left to itself, but may become seriously distorted if the person is subjected to biasing interviews or techniques for memory retrieval (see Section VII infra).

i. How Do We Know What Attention Will Narrow to in a Witness Under Stress?

Although there appears to be solid evidence that memory for events that become the narrow focus of attention under stress will be enhanced and memory for peripheral details will be diminished, [*1457] the difficulty is identifying exactly what becomes the focus of narrowed attention.

Many of the laboratory studies on this topic have identified the central characters in violent or stressful scenes as the probable focus of attention. In practice, however, it is much more difficult to predict.

A. Reduction in Eyewitness Identification Accuracy Under Stress

This problem has been identified in the eyewitness identification literature, which has shown that memory for the perpetrator of a violent action will not always be enhanced by the emotion caused by the violence. When a perpetrator uses a weapon, for example, the eyewitness's ability to later identify the perpetrator is reduced n66 because attention goes to the weapon.

Some studies have examined general effects of arousal by exposing witnesses to events that vary in either: (a) the degree of violence involved in an event or (b) the intensity of personal threat involved. In many such studies, higher arousal levels (as created by violence or personal threat) have resulted in reduced eyewitness accuracy for certain characteristics of the event. n67 15612 Page 17 66 J. Air L. & Com. 1421, *1457

One study is worth describing in more detail. Douglas Peters n68 had witnesses provide physical descriptions and identifications from photo lineups of a nurse who had recently inoculated them at an immunization clinic, and of a second person who [*1458] had taken their pulse two minutes later. The researchers had measured actual physiological arousal in subjects during both events.

Arousal was higher (as one might expect) during the inoculation (88 beats per minute), as compared to the pulse measurement (71 beats per minute). n69 Further, even though the two targets were equally memorable, physical descriptions of the nurse were less accurate as compared to those of the pulse taker. Witnesses also identified the nurse in target-present lineups at a much lower rate than the pulse taker (41% versus 66%). n70

Thus far, the results were similar to many of the studies cited above. Peters, however, also included an analysis of the relationship between individual arousal and identification accuracy. The most physiologically reactive witnesses (an average elevation of 39 beats per minute at inoculation as compared with pulse measurement) showed a considerably lower rate of correct identification of the nurse (31%) than did the least physiologically reactive witnesses (59%), whose pulse elevation during inoculation averaged 2.8 beats per minute. n71 Thus, the results indicate that regardless of the objective arousal potential of the events with which a witness is confronted, later identification accuracy is strongly predicted by the witness's own arousal level during the event.

It is also important to note that extreme arousal at any time, whether during encoding, storage or retrieval, debilitates information processing. To understand its effects during retrieval, for example, consider the case of test-taking anxiety (which plagues many students). Students suffering from test-taking anxiety may know the material very well, but nevertheless, do very poorly on the test because their anxiety does not permit them to retrieve the material from memory (usually until just after they leave the testing situation and their anxiety drops).

B. The Role of Individual Differences in Anxiety/Arousal

Consistent with Peters' individual difference approach, Robert Bothwell n72 found that the debilitating effect of potentially arousing external events depends upon the neuroticism level of the witness (which is associated with chronic anxiety). They [*1459] found that subjects high in neuroticism (high in the tendency to interpret stimuli as personally threatening) were particularly debilitated by potentially arousing external events. n73 The accuracy of their perpetrator identifications decreased as the arousal potential of the witnessed events increased.

High levels of either acute or chronic anxiety can affect memory in the same manner as heightened fear, stress, or emotion. Anxiety generally interferes with information processing, as illustrated in the test-taking example above. It will interfere with attention and elaboration and thus, impair encoding; and later, it will interfere with retrieval. Two studies, for example, showed poorer eyewitness accuracy among witnesses high in anxiety and/or self-preoccupation. n74 Further, anxiety appears to narrow the focus of attention in much the same manner as other sources of arousal or threat. n75

C. The Importance of Self-Focus

Clearly, attention did not narrow to the perpetrators in the above examples. Instead, attention to the perpetrator (whom one might have predicted to become the central focus of attention) was compromised. Where then, did attention go?

In many cases, attention turns inward in response to stress. The person may focus on thoughts of dying or on trying not to panic. Thoughts may go to loved ones also in danger or to God and worry over whether (s)he is or is not headed to heaven in the event of disaster. The possibilities are many, and while one person may focus on the central actors and action, others may focus on their own feelings or those of companions around them.

For this reason, when trying to assess the potential for error in a witness' testimony one should always ask the witness what he or she was thinking about and feeling during the incident. A witness who reports that (s)he primarily 15611 Page 18 66 J. Air L. & Com. 1421, *1459

focused on concern for [*1460] children, for example, would be expected to remember the children and their reactions far better than other features that might objectively be more central to the event.

b. Real-Life Trauma and Memory

Studies of memory for real-life traumatic events have fallen into two categories: (1) those involving highly emotional and significant but non-personal events, such as the Challenger explosion, assassination or death of public figures, and so on; and (2) those involving personal trauma, such as sexual abuse or assault, violent crime, or death of loved ones.

i.

"Flashbulb" Memories for Shocking Public Events

Roger Brown and James Kulick n76 coined the term "flashbulb memories" to refer to recollections of novel and shocking events. The authors proposed a mechanism called "Now Print!" through which the brain acts like a camera flashbulb to "freeze" the memory of the moment when we learn of the shocking event. n77 To examine this phenomenon, researchers have studied memories of highly publicized and shocking public events such as the Kennedy assassination, the Challenger explosion, the Martin Luther King assassination and others. Participants are considered to have a "" of the event if they report vivid memories of where they were and with whom at the time they learned of the event, and how they learned of it. Research on the flashbulb memory phenomenon has generally shown the following.

First, most people remember shocking public events during their lifetimes. For example, Brown and Kulick found that all but one of eighty adults interviewed in 1976 possessed flashbulb memories of the Kennedy assassination. n78

Second, flashbulb memories are more likely for public events that are personally significant. This is reflected in greater flashbulb memory for the King assassination among blacks than among whites, for Margaret Thatcher's resignation among British than among Americans, and for the Loma Prieta earthquake near San Francisco among those affected by it than those not [*1461] affected. n79 Even among those to whom the event is significant, those experiencing greater emotional arousal upon hearing of it experience greater flashbulb memories.

Third, flashbulb memories are subjectively detailed, vivid and compelling.

Fourth, as with other emotional events, the central subject of flashbulb memories is clearly well remembered over very long periods of time. People remember that the shocking event did happen. But how well do they remember the peripheral detail, i.e., where they were when they learned of it, who they were with, how they learned of it, etc.?

Despite the subjectively compelling nature of flashbulb memories for these details, they can be quite inaccurate in some respects. Researchers study accuracy by interviewing people both immediately after a shocking public event and again months or years later. This research has indicated that memory for shocking emotional events is superior to that for more mundane events. Like memory for mundane events, however, memory for shocking events does decline over time. Further, memory for the peripheral details of where, when, with whom, etc. can become quite inaccurate over time, even as the person maintains great confidence in its accuracy. n80

The results of studies of memory for shocking, emotional, and personally significant public events are generally consistent with laboratory studies of memory for emotional events. People are more likely to remember emotionally significant material and events. However, while memory is better for the central facts to which attention is drawn, it may be lacking or inaccurate for peripheral details. But what about memory for traumatic personal events?

ii. Memory for Personal Trauma

Substantial controversy exists among psychologists over the issue of how, if at all, memory for traumatic personal 15610 Page 19 66 J. Air L. & Com. 1421, *1461

events is different from memory for less emotional events. Are such memories significantly more vivid, durable, and resistant to distortion? Do they engage different biochemical processes or brain mechanisms? Are they subject to repression and later sudden [*1462] recovery? Are they more or less susceptible to distortion through investigative interviews or memory retrieval aids?

Research on memory for traumatic personal events has revealed both similarities and differences to memory for mundane events.

A. Trauma and Persistence

First, consistent with the laboratory studies of emotional event, and studies of flashbulb memories, case studies of real-life tramata ranging from Holocaust survivors and war veterans to childhood tramata such as kidnapping or sexual abuse have shown that memories for these tramata are more likely to persist over time than memory for other events. n81 In fact, Daniel Schacter n82 suggested that "persistence," the seventh sin of memory, is particularly characteristic of memory for traumatic events. "Persistence" refers to intrusive recollections that one would prefer to forget but cannot.

Memories for most traumatic events are both persistent and intrusive. Strategies to avoid or suppress the memories fail to affect either the frequency or power of intrusive images and thoughts. n83 In fact, the persistence and intrusiveness of memories for traumatic events, and the interference with work and family life that result, can become part of a claim for damages in civil actions resulting from traumatic accidents.

B. Psychogenic

Although memory for traumatic events is, more often than not, both persistent and intrusive, can temporarily create the exact opposite reaction. "" refers to loss of memory caused by psychological trauma. Amnesia following psychological trauma has been documented in the literature for well over a century. Patients may experience either very broad scale psychogenic amnesia, involving loss of most or all of their personal past, or very specific amnesia for some or all aspects of the traumatic event itself. At the broadest extreme, the victim may enter what is [*1463] called a "fugue state" where (s)he has lost all sense of personal identity without realizing it. At the narrow extreme, memory loss may be very selective, even as narrow as selected components of the traumatic event.

Psychogenic tend to be temporary, often serving as a temporary escape from an intolerable situation. Typically, the victim will recover his or her entire personal past with the exception of what happened during fugue.

Claims of amnesia occur in both victims and perpetrators of trauma. Claims of limited amnesia, for example, are common among perpetrators of violent crime. Research on violent criminals has found perpetrator claims of amnesia for the crime ranging between 25% and 65%. n84 Clearly, some claims of amnesia among criminal defendants may be regarded as false. However, such claims tend to be associated with alcohol or drug use, and thus may reflect true loss of memory. Schacter n85 argues that most cases of limited amnesia involve intoxication, head injury, or loss of consciousness during the trauma. For this reason, clear evidence that memory loss is caused by psychological trauma itself is lacking.

Claims of lost memories are common among victims, particularly those of sexual abuse. Although there is general agreement that any memory may be lost, including those of traumatic events, disagreement exists concerning the mechanisms of forgetting. Amnesia may occur either because of special defense mechanisms such as repression or dissociation, n86 or because of normal memory processes such as decay, interference, inhibition, or intentional or unintentional failure to rehearse the event. n87

[*1464]

C. Traumatic Memory and Distortion 15609 Page 20 66 J. Air L. & Com. 1421, *1464

Although there may be room for debate over the relative susceptibility of memory for traumatic events to distortion, there can be no question that such memories are not "burned in" precise recordings, impervious to distortion. Instead, memories for traumatic events may be severely distorted and even fabricated completely.

As noted earlier, traumatic or emotional memories are less likely to fade over time and, on average, tend to be more accurate regarding central but not necessarily peripheral details. They are, however, nevertheless susceptible to distortion through the same mechanisms as more mundane memories. These mechanisms will be discussed in some detail in the section below on biasing aids to memory retrieval. Here, however, we will provide a few salient examples from studies of real life trauma that illustrate the extent to which memory for traumatic events can be distorted.

Several studies of children's memories for real-life trauma have illustrated this potential for distortion. Lenore Terr, n88 for example, studied the memories of the victims of the Chowchilla, California school bus kidnapping. The children had been kidnapped from their school bus and then buried underground for sixteen hours. When Terr interviewed the children both immediately and four to five years later, she found that about half of the children made dramatic errors in recall. n89 Some of the children had remembered accurately immediately after the kidnapping, but remembered incorrectly in the later interviews, even to the extent of adding two additional kidnappers. n90 Clearly, even initially accurate are susceptible to change and distortion over time.

Similarly, a study of children's memories for a sniper attack at an elementary school in 1984 revealed distortions in memory for events during the attack. More surprisingly, however, some children who were not at school during the attack later remembered that they were. n91

[*1465] Willem Wagenaar and J. Groeneweg n92 illustrated the "tunnel memory" phenomenon of superior memory for central detail of traumatic or emotional events in survivors of Nazi death camps. Comparing the memories of survivors of Camp Erika a few years after their release with those forty years later, the authors found remarkable consistency regarding camp conditions and daily routines but poor recall of the names of fellow prisoners and guards.

Among the traumatic memories widely considered to be virtually exact replays of the original trauma are the "flashbacks" experienced by victims of posttraumatic stress disorder (PTSD) such as war veterans, rape victims, or victims of other violent crime or disasters. However, research has shown that even such flashbacks are sometimes more likely to represent a combination of real and feared or imagined events. n93 In some respects, such flashbacks represent the "worst fears" of the victim, rather than precise memories.

Finally, research fueled by the currently raging controversy over "recovered" memories of sexual abuse has documented through both case studies and laboratory demonstrations that memory for sexual abuse and other traumatic experiences can be distorted and even fabricated completely through biasing therapeutic and memory retrieval techniques. n94

D. Are Memories for Traumatic Events More or Less Accurate Than Those for Mundane Events?

Although no doubt exists that memory for traumatic events can be inaccurate, controversy exists regarding whether memory for traumatic events is superior to that for mundane events. As noted earlier, laboratory studies have tended to indicate that memory for central detail is superior under stress, whereas memory for peripheral detail suffers.

Similar issues have been addressed in field studies of victims or witnesses to traumatic events. Generally, these studies have shown that memories for traumatic events can be quite accurate and fade little with time. Studies of both victims and bystander [*1466] witnesses to non-sexual events, for example, have compared witness reports immediately after the crime with recall months later. Although some errors occur after the delay, reports are generally stable across time. n95 Sven Christianson and B. Hubinette n96 found, however, that victims' reports were more accurate than those of bystanders. 15608 Page 21 66 J. Air L. & Com. 1421, *1466

Exactly the opposite was found in studies of the memories of adult victims of rape. n97 They found the familiar tendency toward better memory for central than peripheral details, along with reasonable accuracy and good retention over time. However, when memories for rape were compared to memories for other intensely unpleasant experiences, the authors found that memories for rape were less accurate, less clear and vivid, less meaningfully organized, less thought and talked about, but more emotionally intense. Similarly, L.L. Keuhn n98 found that victim's ability to describe race, sex, age, height, weight, build, complexion, hair color, and eye color of their assailants was inversely related to the severity of the crime. Rape victims and injured victims were less accurate and complete than robbery and uninjured victims.

Thus, at this point, no clear answer exists regarding whether traumatic memories will be superior or inferior to memories for more mundane events. On the other hand, it is abundantly clear that they can be either very clear and accurate or very inaccurate.

To evaluate the likelihood of memory distortion for any given witness or victim, the memory expert would need to consider the entire context in which the event took place and the nature of the event itself in combination with the personality and background of the witness.

[*1467]

E. Brain Mechanisms Underlying Traumatic Memories

Evidence is accumulating that brain mechanisms underlying encoding and persistence of traumatic memories may be unique. Modern has used technologies such as PET scans to examine brain activity during encoding of emotional versus non-emotional material. These studies, in combination with studies of animals or patients with brain damage, have indicated that the is crucial to encoding of emotional but not unemotional material. The amygdala shows increased activity during exposure to emotional material. The degree of such activity is related to later memory for emotional material but not to memory for unemotional material; and damage to the amygdala is associated with failure to retain emotional material but not unemotional material. These and other findings indicate a unique role of the amygdala in encoding emotional material. n99

3. Injury

Although clear evidence of amnesia through psychological trauma may be lacking, n100 there can be no doubt that physical trauma can create memory loss ranging from complete loss of identity to temporary amnesia. The most common forms of memory loss resulting from trauma to the head are "," or failure to remember events preceding the physical or psychological trauma, and "," or difficulty remembering everyday events and activities following trauma. The latter is more likely to become an issue in litigation as a claim for damages.

"Retrograde" amnesia, however, is commonly an issue either as a claim for damages or as a problem of witness testimony. It is important to note that amnesia for a traumatic event that results from head injury is often permanent. Thus, when confronted with a witness who has apparently "recovered" memory for the event, the attorney should carefully examine the potential for post-event influences to have created confabulated memories.

Clear evidence exists to show that "retrograde amnesia" due to physical trauma is not reversible, as it results from failure to enter information into long-term memory. The ability to complete [*1468] the consolidation of short-term into long-term memory is interrupted by serious head injuries. Those sustaining such injuries are virtually inevitably unable to remember the accident itself or the few minutes preceding it, and virtually never recover those memories. n101

Philip Yarnell and Steve Lynch cleverly demonstrated this. n102 The authors studied the memories of football players for the play leading up to a "ding" (a particularly hard hit dazing the player). Each time a ding occurred, the 15607 Page 22 66 J. Air L. & Com. 1421, *1468

researchers rushed to his side within roughly the first thirty seconds and interviewed him about the play and again interviewed him twenty minutes later after he had recovered. All dinged players were able to remember what happened and what play they had run at the initial interview, but by the second interview, they remembered neither what happened to them nor what play was run.

C. Failures of Interpretation

"Memories are replicas of how we have experienced the events, not replicas of the events themselves." n103

Contrary to popular belief, memory does not work like a video camera, recording exactly what it physically perceives. The act of encoding does not simply create a visual or auditory memory trace of exactly what happened, a judgment-free snapshot stored unchanged and available for retrieval and review. Instead, the act of encoding includes interpretation. We encode a combination of visual and semantic (meaning) aspects of the event, something that holds the meaning, sense, and emotions the experience provided us. Often, these meanings will remain clearer over time than the sensory memory, such that they become the primary basis of later reports of the event.

1. Consequences of Failures of Interpretation

This role of interpretation would not be problematic if our interpretations were uniformly accurate and unbiased. However, this is clearly not the case. Instead, it is clear that memory may be compromised by failures of semantic encoding, including either forgetting or distortion.

[*1469]

a. Forgetting Due to Inability to Understand

Forgetting will tend to occur when the witness cannot understand what was observed sufficiently to engage semantic processing (i.e., could not categorize or identify what was observed). Since encoding into long-term memory tends to involve the meaning of an event more strongly than simple physical features, if meaning cannot be assigned, material will less likely enter long-term memory. If, nevertheless, the material is stored in long-term memory, it is more likely to be inaccurate.

b. Distortion Due to Incorrect Understanding

"The image at the eye has countless possible interpretations." n104

Distortion occurs when the observer does assign meaning to what is observed, but for some reason chooses the incorrect interpretation or label. As we will elaborate below, distortion tends to occur as a result of either: (a) predictable distortion in sensory perception (b) contextual cues that suggest a particular interpretation (including social influence) or (c) characteristics of the observer that might bias interpretation of what (s)he observes, such as existing attitudes, motivations, stereotypes, expectations, thoughts, or understandings. A particularly unfortunate example of this problem is the recent police shootings of unarmed blacks who police mistakenly believe to possess a weapon. Stereotypes associating blacks with violence lead police to "see" a weapon rather than the actual object or empty hand. n105 Keith Payne compellingly demonstrated the power of expectations associating blacks with violence in a recent study. n106 Payne demonstrated that merely seeing a black face led subjects to be more likely to mistake objects for weapons, even when the objects were presented independently of the face. Thus, the associations to weapons and 15606 Page 23 66 J. Air L. & Com. 1421, *1469

violence elicited by the black face were so strong as to affect perceptions of objects not associated physically with the black face.

[*1470]

2. Failure of Interpretation Through Difficulty/Ambiguity of Perception

A witness may be asked about any number of different facts and events, some of which may be very difficult to accurately perceive. In such cases, errors in witness reports may be common, occurring more likely than not. They will result from direct failures of perception due to difficulty, from greater susceptibility to distortion in interpretation through contextual cues or social influence from other observers, or through the influences of the observer's own personal motivations and biases.

Years of research on persuasion and social influence, for example, have demonstrated that perceptions and opinions are most malleable through influence when the person is less certain of his(her) existing views. Solomon Asch, n107 for example, demonstrated this process using a perception task where he varied the difficulty of the perceptual judgment. He found that subjects' reported judgments were more affected by those of other participants as the ambiguity of the stimulus increased. Generally, conformity is greater when a person feels incompetent or uninformed, when the task is difficult, or when (s)he really cares about being right. n108 Thus, under certain circumstances, the potential for influence from others to affect the meaning a witness encodes into is great.

Similarly, perception research has illustrated the importance of motivation on perceptions of ambiguous stimuli. A hungry person, for example, is more likely to interpret an ambiguous stimulus to be food. On the other hand, research on perceptual defense has shown that people show resistance to accurate perceptions of ambiguous objects related to anxiety-provoking motivations. This resistance may be manifested in longer times to recognize the objects, or tendencies to mislabel them in less anxiety-provoking terms.

While social influence and motivational processes operate broadly and can affect interpretation of less ambiguous objects and events, ambiguity increases the opportunity for distortion through either mechanism.

[*1471]

a. The Importance of Knowledge, Expertise and Familiarity

As a general rule, familiarity, knowledge or expertise regarding either the general type of objects and events being observed or with the specific objects, persons and events in question increases the ease, efficiency and accuracy of encoding. Think of chess masters, for example, who can remember the entire configuration of a chessboard with one glance, and even play full matches with one another in their heads. Novices, in contrast, may have difficulty even labeling the pieces and find it impossible to remember their location. Similarly, while a pilot might glance briefly at the plane's instrument panel and accurately encode and remember the status of the gauges, a novice passenger would be unlikely to either understand or later remember them.

Generally then, witness reports regarding unfamiliar objects and events are more susceptible to error. The unfamiliar is inherently more ambiguous to the observer, and therefore more difficult to understand. This renders the observer more susceptible to both direct errors of interpretation and indirect errors due to internal and external influences on interpretation, such as personal motivations or influence from other observers or contextual cues.

Sometimes expertise or familiarity is tied to gender. One study of eyewitness performance examined male and female ability to accurately recall features of an event considered more male or female oriented (i.e., of greater interest and familiarity to males versus females). As expected, each sex was more accurate and less easily influenced by misleading questions on the issues "oriented" toward their gender. n109 Thus, to the extent that gender-related features of an event are the subject of witness testimony, it is important to note that each gender (or indeed, each individual) will 15605 Page 24 66 J. Air L. & Com. 1421, *1471

tend to be more accurate in areas of particular interest or expertise. In aviation cases, for example, males may tend to be more accurate observers and recorders of the technological flight-mechanics-oriented features of the event than females.

Expertise may also be tied to age. Clearly young children do not have well-developed or elaborate knowledge structures in many areas - including those regarding objects or actions in aircraft, or situations leading to disaster. Not being able to understand what they see, they will later be unable to remember.

[*1472]

b. Some Specific Areas of Difficulty in Perception

"Shall we henceforth distrust the witness of vision, knowing now its penchant to perjure?" n110

While psychological research on fundamental perceptual processes has identified some difficult areas of perception, other difficult areas have been identified in the eyewitness literature.

1. Duration

Generally, people tend to overestimate the duration of complex events. Studies of witness time estimations have shown that witnesses consistently tend to overestimate the duration of events by a factor sometimes as high as thirty-to-one or more. On the average, overestimations tend to be more in the range of two or three to one. However, while underestimations are rare, overestimations are common and sometimes extreme. Elizabeth Loftus and her colleagues, Schooler, Boone, and Kline, n111 for example, found that some subjects remembered a thirty-second bank robbery tape as having lasted over fifteen minutes.

Further, arousal and stress tend to lead to even greater overestimation. n112 The high stress and complexity characteristic of aviation accidents would be expected to compromise time estimations among passengers and ground crews alike.

2. Speed, Distance and Direction

a. Speed

Estimates of both speed and distance are notorious for their susceptibility to error. n113 Both are important in cases involving vehicular accidents of all kinds, and are subject to both over-and underestimation.

Estimates of speed, for example, depend upon the size of the moving object, such that large objects appear to move more slowly than small objects. Herschel Leibowitz and D. Alfred [*1473] Owens n114 reported this phenomenon with respect to airplanes and trains. For example, they noted that although all jets land at roughly the same speed, jumbo jets appear to land more slowly than smaller jets. Similarly, large locomotives appear to move more slowly than their actual speed, a factor Leibowitz and Owens believed to contribute to the many accidents each year in which a car tries to cross the tracks in front of a too rapidly approaching train. In contrast, Elizabeth Loftus and James Doyle n115 illustrated the reverse problem, citing a case where the speed of a relatively small vehicle (a motorcycle) was seriously overestimated.

Generally then, although estimates of speed are common in trials involving vehicular accidents of various kinds, they tend to be unreliable. They vary substantially between witnesses to the same event n116 and may tend to over-or underestimate actual speed depending upon the size of the object in question. n117 15604 Page 25 66 J. Air L. & Com. 1421, *1473

b. Distance

Estimates of distance are similarly difficult. Distortion of distance in becomes greater with longer distan- ces. n118 People may produce systematic over or underestima- tions, or may show asymmetries. For example, they may estimate the distance from their house to a mailbox as different from the distance from the mailbox to the house. n119

Distance estimates can be affected by the nature of the intervening space. For example, Kazunori Hanyu and Yukio Itsukushima n120 showed that estimated distances and times for walking were greater for stairways than for equally long flat paths. Similarly, other studies have examined the relationship [*1474] between travel time, effort, and distance estimates. n121 Some studies of distance estimations have been conducted with blindfolded walkers, n122 having potential application in cases of abducted witnesses.

Distance tends to be overestimated when a barrier is placed between objects, or when spatial "clutter" exists such as many turns or landmarks. n123 Estimates also differ between "egocentric" (distance between oneself and other objects) and "exocentric" (distance between two other objects), such that egocentric estimates tend to be underestimated. n124 Distance estimates are also affected by characteristics of the observer. Adults, for example, are more accurate than children. n125

Estimates of distance and size reciprocally affect one another, n126 and size estimates become more difficult with increasing distance. n127

Distance estimates for moving objects are affected by perceived speed and vice versa. n128 Some investigators have examined the foibles of distance and speed estimates among drivers in an attempt to understand causes of accidents. For example, Ota Hiro n129 showed that when drivers drove at higher [*1475] speeds, they underestimated the distance between their own cars and others, compared with estimations made at lower speeds. Donald Gordon and his colleagues n130 showed that drivers could not correctly estimate overtaking and passing distances. Average errors of estimation for various conditions varied between 20% and 50% of actual overtaking distance. Further, errors of underestimation increased with speed. At 18 mph, 15% of estimates were low, whereas at 50 mph, 68% were low.

Some studies have specifically examined the accuracy of speed and distance estimations for aircraft in flight, including the effectiveness of training in aircraft recognition and velocity judgments. They include accuracy for both unaided and technologically assisted estimates, ability to visually estimate the distance to high-speed jets, and ability to track aircraft by ear. These studies also attempted to determine the distances at which various aircraft structural features could be recognized. n131

One study specifically examined memory for distance. n132 Performance was best for estimates made while the objects were visible. Accuracy declined for estimates made from memory (even when made immediately after seeing the stimulus objects), particularly when subjects had to integrate several pieces of spatial information to estimate distance.

Finally, some studies have examined estimates of distance from sound. n133 The results have suggested that distance hearing is accurate mainly in detecting variations in the distance of the source, but is relatively inaccurate for estimation of absolute distance.

c. Direction

Distortions in directional perception and memory are common when complex inferences are required; for example, taking many turns and/or reversing directions, even along a [*1476] familiar route. Such distortions are more common among children than adults, and are smaller for familiar routes or spaces. Further, the ability to use available markers or 15603 Page 26 66 J. Air L. & Com. 1421, *1476

landmarks in a particular space increases with experience in that space or similar spaces. n134

One reason for distortions under complex conditions is the tendency for people to normalize angles toward ninety degrees. When drawing roads from memory, for example, all kinds of angles are distorted toward ninety degrees. Generally, spatial distortions reflect tendencies toward simplification, regularization (distortion toward familiar angles and shapes), and organization. n135

3. Sequence

Memory for the sequence of events is often poor. This problem is found in memory for single events, in which the sequence of specific actions within the event may be an issue (who hit who first, for example). However, the problem can become particularly acute for sequences of events ranging over longer time spans, such as those typically involved in complex civil litigation. Studies of have shown that memory for when something happened is far less accurate than memory for what happened. n136

4. Color

Color is often a crucial feature of evidence. Witnesses in criminal trials are routinely asked to describe the appearance of the perpetrator or other participants, including the color of hair, skin, or clothing (and perhaps that of objects or weapons involved in the action). Witnesses to a hit and-run accident may be asked to describe the color of the car. Often, the object in question is more unusual, such as the color of a pill, a gauge, or a piece of paper. Whatever the object in question, proper color identification may well affect the outcome of the case.

[*1477] Perception of color may seem simple, something most of us take for granted. In fact, color vision is far from a simple process. Rather, it is a complicated system that may be compromised by either organic dysfunctions of the vision system or contextual circumstances interfering with its ability to operate properly. If color is an important issue in a witness' testimony, it would be important to know if (s)he suffers from any organic problem that would compromise color vision, or whether other internal or external factors may have compromised color vision--such as colored sunglasses.

a. Organic Problems With Color Vision

A person may be "color blind" in varying type and degree. Some who have no functioning cones (the structures responsible for color vision) are "monochromatic," or totally color blind, and see the world in shades of white, gray, and black. Monochromats are rare (about one in a million) and tend to have poor visual acuity, and difficulty seeing at all in bright lights. n137

"Dichromats" lack one of three pigments typically found in the cones. Some are red-green blind and see the world in shades of blue and yellow. Others, although fewer, are blue-yellow blind and thus, see shades of red and green. Each dichromatic disorder is more common among males than females, as it is caused by a recessive sex-linked gene that women may carry but rarely express. n138

Color blindness will cause an obvious problem with correct identification of color. However, it can also cause difficulties with one's ability to distinguish one object from another. Just as camouflage can prevent a person with normal vision from seeing an object against a background of similar color, the restriction in range of color among color blind individuals can, in effect, function as camouflage for many objects. For monochromats, many colors will appear to be the same or similar shades of gray. Thus, each can provide camouflage for the others. Similarly, for those who cannot distinguish blue from green, a blue object may not be visible against a green background.

Most color blindness is genetic and therefore present from birth. However, problems of color perception may also be caused by diseases such as alcoholism, glaucoma, diabetes, or [*1478] age-related macular degeneration, or by 15602 Page 27 66 J. Air L. & Com. 1421, *1478

trauma to the visual cortex. n139 Age-related macular degeneration and diabetes are both associated with destruction of cones. After age fifty or so, blues can begin to look darker and become more readily confused with greens. Thus, an older person may confuse one pill for another, one car for another, one color panel or dial with another, or fail (because of fading color contrast) to distinguish two objects from one another at all. n140

An opposite condition occurs for those suffering from "night blindness" - difficulty in dark adaptation. Such persons have rods that fail to operate sufficiently in poor light. Thus, they experience poor visual acuity under poor illumination, seeing objects as fuzzy and indistinct, and may also have difficulty recognizing familiar faces under dim street lamps or driving at night.

b. Context and Color Perception

Under most circumstances, we enjoy good color "constancy" - the ability to see the same color even when viewing context changes. Nevertheless, there are certain viewing conditions that substantially alter color perception.

i. Illumination

The most important contextual influence on color vision is illumination. As illumination decreases, two important changes take place.

A. Shift From Cone to Rod Vision

First, color vision dims and then fades completely. We shift to rod vision, and the cones necessary for color vision cease to function. Thus, at night under moonlight everything appears as shades of gray. Lacking color contrast, objects appear less clear, and our ability to distinguish between them is compromised. The features (including color) of people, clothes, objects, and actions become more difficult to clearly perceive and identify. Blood, for example, may be misidentified in moonlight because [*1479] it will appear to be black in the absence of sufficient illumination.

B.

"Purkinje Shift"

Second, objects that appear relatively brighter in daylight will appear relatively darker under moonlight, a phenomenon called the "Purkinje shift." n141 Thus, while objects at the red (long wavelengths) end of the color spectrum will appear brighter in daylight, those at the blue (short wavelengths) end will appear brighter in moonlight (for example, a red tomato will appear brighter than the green vine in daylight, but the vine will appear brighter at night). Failure to understand this shift in apparent brightness may lead police or other investigators to search for clothing or other objects of the wrong color. A blue shirt (which appears brighter at night than an orange one) could lead to a search for a lighter colored shirt, notwithstanding the fact that the actual blue shirt in question appears relatively dark in normal daylight.

C. Band and Band Width

Even when there is apparently sufficient illumination, color vision may be compromised by the nature of the lights in question. Narrow band lights (red or blue, for example) or sodium lamps found in many parking lots will narrow the range of visible color toward those in the narrow spectrum of the light.

Thus, witness reports of color must be understood in the context of the lighting conditions under which the event was witnessed, including both the degree of illumination and the width of the light's color band.

ii. Changes in Illumination: Light and Dark Adaptation 15601 Page 28 66 J. Air L. & Com. 1421, *1479

Further, one must consider sudden changes in illumination. Light adaptation, which occurs in response to changes from darker to lighter conditions, takes place relatively quickly, within a matter of a few seconds. Dark adaptation, on the other hand, occurs more slowly. When plunged from bright illumination into darkness, humans have difficulty seeing at first. Full recovery [*1480] of the cones can take about five minutes, whereas full recovery of the rods can take about thirty minutes, depending upon the length and brightness of the previous illumination. During that time, one will first have difficulty distinguishing objects at all and subsequently have difficulty seeing clearly and distinguishing brightness between objects. When dark adaptation is complete, most people can see reasonably well under dim illumination, excluding color.

While the focus of this paper is on witness memory, it is worth mentioning that issues of color vision may be important with regard to product liability aspects of aviation litigation. That is, to the extent that instrument panels and other displays that affect the operation of an aircraft or the ability of crew and passengers to respond to emergency situations use color in ways that impair ability to rapidly identify and interpret necessary objects, portals or signals, the product may be deemed defective. Color vision experts are hired to aid in the design of aircraft for just these reasons, and may be similarly engaged as expert witnesses on product design.

3. Failures of Interpretation Through "Schematic" Processing

Theories of information processing converge on the assumption that all information processing is "schematic" in nature. That is, it is driven by expectations and assumptions based on previous experience and existing knowledge. The following sections will summarize the basic effects of schematic processing on interpretation of information or events. For a detailed review of literature documenting the processes we will describe, see texts on "Social Cognition." n142

a. The Nature of Schemas

"Schemas" are defined as cognitive structures representing knowledge about a concept or type of stimulus, including its attributes and the relationships among those attributes. A schema includes a dictionary definition of the concept, object, or event, along with a host of expectations concerning what it is like, how it behaves, what it should look like, and much more. As noted earlier, we possess a variety of schema types including: (a) category schemas telling us what the members of particular social or object categories are like; (b) person schemas telling us what to [*1481] expect of particular individuals (c) self-schemas consisting of how we think about ourselves (d) role schemas telling us what individuals occupying particular social roles should be like and how they should behave; (e) event schemas (or scripts) containing expectations for particular events or event categories; and (f) causal schemas, telling us what tends to cause what, and how it does so.

These schemas are crucial for information processing. They allow us to instantly identify people, objects, and events and to understand what we see. Without schemas, we would not know what to expect from individuals or categories of individuals or how to treat them. We would not know how to behave in various social situations or how to evaluate the behavior of others. Generally, schemas allow us to understand and evaluate what we see and plan what to do - in other words, they allow us to function in the world.

Like memory, we cannot function without schemas and schematic processing. However, also like memory, schemas have a dark side, leading to predictable errors in memory and judgment.

b. How Schemas Affect Interpretation

1. Inference: Filling in with "Default Assumptions"

By definition, schemas include expectations concerning the nature of people, objects and situations, and how they will behave. When we perceive, we cannot encode the entire set of information we see. Instead, we encode the "gist" of what we encounter. Both at the time, and later as we remember the information, we tend to "fill in" what we have seen with 15600 Page 29 66 J. Air L. & Com. 1421, *1481

the "default values" suggested by our schemas and expectations. A number of experiments have demonstrated this tendency to remember both more and less than what we actually see. We do not remember schema-irrelevant information as well as schema-relevant information, and we add information that makes sense based on what we did see and what our expectations, knowledge, and schemas would lead us to expect that we should have seen.

2. Biased Interpretation

"Ideas of the cavern are the ideas of every man in particular; We every one of us have our peculiar den, which refracts and corrupts the light [*1482] of nature, because of the differences of impressions as they happen in a mind prejudiced or prepossessed." n143

Just as schemas tell us what to expect in certain situations and from certain people, they also tell us how to interpret what we see. Imagine, for example, attending a circus with no schema for what a circus is, who the performers are, or what they are doing. Everything would seem confusing.

We need the interpretive function of schemas to understand and function in the world. However, just like all of our other information processing systems, the same things that make the interpretative function of schemas so important also give it the potential to lead us astray.

The effects of schemas on how we interpret what we see have been documented in countless domains. For example, we are more likely to interpret a person's behavior as involving psychopathology if we know (s)he is a mental patient, more likely to interpret a black than a white person's behavior as criminal, a person's comments as hostile if we think of them as a hostile person, and so on. Our schemas can lead us to see what we expect to see rather than what is truly there.

c. What Determines Which Schemas Influence Perception?

A number of factors determine what schemas will be activated and affect perception in a given person or situation, ranging from current moods, what we happened to recently encounter or think about, salient goals, what schemas we characteristically use or think about, and so on. We will not review all determinants of schema use. However, the following are some of those most pertinent to witness perceptions.

1. Situational Context

Often, the situation we are in will activate a particular schema. When we enter a restaurant, for example, our "restaurant script" becomes activated, and we expect things to happen in general conformity with this script.

2. Social Context and Influence

Interpretation may be biased through the influence of others. For example, imagine that you saw a man take the upper arm of [*1483] a woman in his hand as he talked to her. The physical act you observed may be interpreted in a number of ways - varying from hostility and aggression to love and affection. Now, imagine instead that someone else had said, "Look, he's hurting her!" before you turned to observe the man holding the woman's arm. Your perception and interpretation of the event would be biased by the label applied by the other person, causing you to activate a schema for "aggressive," "fighting," "danger," etc. You would be more likely to perceive the act as aggressive and more likely to remember it as aggressive later.

3. Individual Witness Differences 15599 Page 30 66 J. Air L. & Com. 1421, *1483

"We don't see things as they are, we see them as we are." n144

a. Personal History

"As the central point of the perceptual field, the phenomenal self is the point of orientation for the individual's every behavior. It is the frame of reference in terms of which all other perceptions gain their meaning. n145

We do not encounter the events of our lives as a blank slate. Current motivations and emotions, in combination with our vast accumulated store of knowledge, opinions and past experiences, provide the template against which new experience is instantly evaluated, understood and categorized.

The O.J. Simpson trial provided a perfect illustration of the way in which accumulated life experiences shape interpretation. Recall the difference in how blacks and whites interpreted the potential for police planting or contaminating evidence. It was, well, "black and white." Whites believed the DNA evidence and discounted stories of the planting of the glove and other evidence. Blacks believed the DNA evidence was faked and that police planted the physical evidence. These differences were clearly based on experience.

Blacks live in a world where police stop them for "DWB" (driving while black), where they are searched and accused falsely, and where they or their friends and family are suspected of and charged with crimes they did not commit - because they are black. These experiences provide the backdrop against which all police actions are evaluated. Why would they not believe the [*1484] evidence could have been planted? Whites, on the average, have no such experiences and, thus, far less reason to suspect the police might be untrustworthy.

As the wisdom of the Talmud suggests, who we are is inextricably woven into what we see and later into what we remember of it.

b. Expectations

Further, expectations may affect interpretation. For example, returning to our earlier example of the man and woman, if you knew the man in question and thought he was a hostile or aggressive person, or perhaps thought that he did not like the woman in question, these expectations could lead you to see his actions as being consistent with your preconceptions of him.

Generally, expectations may be based in part on stereotypes that, for example, may cause you to perceive the action of a member of one race differently than the exact same action by a member of another. Your impressions of a particular person (such as in the above example) or your expectations for the situation in which the event occurs (for example, if you saw the same physical actions of taking the woman's arm in the man's hand in a romantic restaurant on Valentine's day versus in a dark alley) can greatly affect perceptions of the event.

Expectations can also influence sensory perceptions. This is illustrated by the relationship between color and taste or smell. We have learned through experience to associate objects of particular color with specific tastes, such as lemon with yellow or cherry with red. In effect, the color leads to the expectation of a particular taste. That expectation can interfere with the experience of taste when the actual taste is inconsistent with expectations generated by the color of the food or drink. For example, when Arnold Hyman n146 asked subjects to identify the taste of samples of white birch beer, he found that subjects correctly identified it 70% of the time if the samples were colorless. However, when colored red, accuracy dropped to 25%. Some subjects reported that the red-colored beer tasted like cherry cough medicine, cherry soda, mint flavor, or dentist's mouthwash. [*1485] Similarly, C. N. DuBose and his colleagues n147 found that 15598 Page 31 66 J. Air L. & Com. 1421, *1485

the tastes of cherry, orange, and lime beverages were judged correctly an average of 67% of the time if the colors matched their beverages' taste, but only 37% of the time if they were colorless or color did not match actual taste. Analogous results have been obtained with smell, such that when colors and odors match expectations, subjects are better at identifying the odor. n148

c. Motivation, Interests, and Current Goals

"A clear conscience is often the sign of a bad memory." n149

Interpretations are biased by motivation, including prominently those of self-protection and self-interest. This principle has been documented repeatedly by research showing that our own motivations distort perceptions of the entire world around us, from simple objects to complex human events. Cognitive processes are affected at all stages by motivation, from initial perceptions to later memories.

That is, these motives can affect both the interpretation (encoding) of events as they happened and constructive and reconstructive processes occurring later. These possibilities are discussed further in the section on contamination between witnesses.

Further, the jury will not understand that motivation can actually distort memory, as opposed to simply provide an incentive for dishonesty. The jury will be more adequately equipped to evaluate the potential for motivations that may lead to deliberate false testimony. However, they would be unlikely to sufficiently understand the potential for motivation to affect encoding and memory processes.

d. Characteristic Criteria for Categorizing and Evaluating the World

Interpretations may be biased by the person's individual characteristic criteria for evaluating the world and the people in it. [*1486] For example, a person who considers agreeableness to be one of the most important things about people would be more likely to interpret the man's action (in our earlier example) in terms of either hostility or affection. Another, who thinks of people more in terms of intensity or level of engagement may have assumed the man was "serious" or that he "really cared" about what they were discussing.

e. Self-Schemas

"It is not as ye judge that ye shall be judged, but as you judge yourself so shall you judge others." n150

Substantial evidence exists suggesting that people possess organized, generic concepts of themselves termed "self-schemas." Dimensions central to the self-concept tend to be used for evaluation of others and their actions. We tend to notice and remember characteristics and behaviors related to these traits in others and give greater weight to them in forming impressions of others. We tend to use ourselves as reference points for evaluation of others.

V. STORAGE

"Storage" refers to the process by which recollections are kept in long-term memory. The term retention interval refers to the amount of time between the time the event is witnessed (encoded) and the time it is retrieved. During this time, memory may be compromised by several factors. The most prominent factors are: (1) the simple passage of time, during which memory tends to decay; and (2) other information acquired during the storage interval. 15597 Page 32 66 J. Air L. & Com. 1421, *1486

A. Transience and Simple Decay

Memory for information typically becomes less accessible over time, particularly information that is not revisited and rehearsed. n151 Daniel Schacter n152 labeled this phenomenon "transience" and called it the first of the seven "sins" of memory. [*1487] Research involving witness memory specifically has clearly documented significantly greater forgetting with longer retention intervals. n153

As first described in 's n154 well-known studies, forgetting tends to occur most rapidly at first and slows down with the passage of time. The "" over time is best described mathematically as a power function. n155 The rate of forgetting for real life events, however, varies considerably.

First, memory for the "gist" of an event declines much more slowly, if at all, than memory for less central detail. n156 John W. Shepherd found, for example, that although memory for the fact of a hostile encounter with a stranger remained intact, the ability to accurately identify the stranger declined over time (from 65% to 10% after eleven months). Even more disturbing, false identification can escalate as accurate identifications decline.

Second, memory for personally salient events can remain quite stable over time, while that for less important events fades away. n157

Third, memory for very familiar information declines more slowly. For example, H.P. Bahrick and his colleagues n158 found that memory for pictures of high school classmates remained almost perfect after thirty-five years and very good after an average of forty-five years.

Finally, the rate of forgetting depends in part upon the person. Forgetting occurs more quickly in children, for example, than in adults. n159

[*1488] There are some circumstances under which memory can actually become stronger over time. When people are repeatedly asked to recall stimuli they have seen (but without suggestions as to what they might have seen), the overall percentage of correct answers tends to increase over time, a phenomenon labeled "hypermensia" by psychologists. This rehearsal seems to both minimize forgetting and promote consolidation and recovery of previously unrecalled information. Note, however, that this effect of repeated requests for recall is not equivalent to the effects of suggestive or coercive interviewing.

1. Buried in Mothballs: The Role of Disuse in Forgetting

Forgetting over time is greater when the memories are not retrieved and rehearsed in any way. n160 Conversely, retrieving and rehearsing experiences produces better memory over time. For example, some studies have found a positive relationship between the number of interviews with a witness and accuracy. n161 However, rehearsal in certain contexts can also serve to distort memory, n162 as subsequent sections will illustrate.

For the majority of civil litigation (including aviation litigation), years have passed between the event and trial, with even greater lag between trial and events leading up to the acute event, such as issues of aircraft maintenance or warnings of dysfunction. In the intervening period, a number of both internal and external influences affect witness memory.

B. Interference

Information encountered either before or after the event in question can interfere with memory for the target event, in processes known as proactive and retroactive interference (discussed earlier in the section on attention and complexity). This interference can occur with respect to information immediately preceding and following the target event and information across [*1489] much longer periods of time. In fact, Daniel Schacter n163 suggests that much forgetting is the result of interference from the many events following the one in question. 15596 Page 33 66 J. Air L. & Com. 1421, *1489

Events that are substantially similar can become confused with one another, their separate memories being lost. For example, many visits to a favorite haunt may become blended and indistinct. This phenomenon can become particularly important in the context of litigation. To the extent that a particular action becomes important, blended memories of many similar occasions can severely compromise the accuracy of the testimony.

C. Constructive and Reconstructive Processes

"It isn't so astonishing, the number of things I can remember, as the number of things I can remember that aren't so." n164 Mark Twain

Recall Nevada politician Seale's testimony that he had feathered the propeller when his engine failed on take-off. Why did he "remember" feathering the propeller when the pictures of the cockpit at the scene clearly showed he did not?

Memory research would suggest that Seale's "memory" of feathering the propeller derived in part from his assumptions about what he would do under those circumstances. He expected to feather the propeller, knew he should feather the propeller, had practiced feathering the propeller during engine out maneuvers, and therefore, he assumed he must have done it when the time came. Seale's memory was "constructed" from the combination of the actual experience and his preexisting expectations and assumptions about what he would and should do.

Alterations in memory caused by preexisting expectations and knowledge (such as in Mr. Seale's case) or by new information acquired after the fact are what memory researchers refer to as "constructive" and "reconstructive" memory processes.

1. Constructive Processes

"Out of a few stored bone chips, we remember a dinosaur" n165

Constructive processes refer to the tendency to elaborate on what was originally perceived, such that other information is added [*1490] to the original memory. The tendency to add "default assumptions" discussed earlier, for example, is one form of constructive memory process. Information added to memory through constructive processes most commonly comes from two sources.

a. Schema-Based Inferences

Constructive processes result in part from the tendency of the person to draw inferences from the information or event that they did see, and to remember the inferred additions as if they were real. Often these inferences are based on expectations, stereotypes, personal desires, and so on - all of the same factors that can lead to biased interpretation during encoding.

For example, imagine a person who has watched a scene where two persons enter a restaurant, sit down at a table, order, and eat. The film did not show the waitress offering the guests a menu or show them looking at one. Many people who watch such a scene will later remember inaccurately that they did see the waitress offer the menu (and that the guests looked at it) before ordering. They do so in part because their expectations for what happens in restaurants include the idea that guests will be offered and use a menu.

Constructive memory processes in which persons add information to the memory of an event they witnessed have been demonstrated from information as simple as a list of words that are related to a word not presented to information as elaborate as a complex enactment of a crime. n166 15595 Page 34 66 J. Air L. & Com. 1421, *1490

It is important to note that persons with a more highly developed schema or script for a particular situation tend to be more susceptible to constructive and processes for that situation. Although "experts" will generally be better able to understand and interpret what they see, they also have more developed and powerful expectations that may engage constructive or reconstructive processes of both perception and memory. This will be especially true when the observer was not paying full attention during the event. Whereas an expert observer might notice inconsistencies with what (s)he expects when paying full attention and remember them later, that same expert may fail to notice inconsistencies when devoting minimal attention, thus allowing their schema-or script-based expectations to fill in missing [*1491] information through constructive or reconstructive processes later on.

b. Influence

Constructive processes may also occur because additional information about an event that is acquired after the original encoding essentially becomes confused with the memory of the original event. This information may later be remembered as if it had actually been witnessed.

In the eyewitness literature, this phenomenon has been illustrated through studies of various ways in which witnesses are exposed to other information or accounts of a crime, such as newspaper reports, the accounts of other witnesses, interviews by police, counselors and so on. Laboratory demonstrations of such phenomena have examined witnesses who have been exposed to new information (that they did not personally witness) about an event they did earlier witness. These witnesses sometimes later remember falsely that they had actually personally witnessed the new information. In other words, we cannot always distinguish between what we have actually seen for ourselves and what we believe we have seen because we have heard (from other sources) that it was there. These tendencies will be discussed and documented in more detail under "Vagaries of Source Monitoring," below.

2. Reconstructive Processes

Reconstructive memory processes refer to changes in memory as a result of information acquired after the original encoding. Like constructive memory processes, reconstructive processes result from both inferences of what would probably be the case given the new information and influence from others who might promote a particular interpretation. Such reconstructive processes have been well documented both in the general memory literature and in the eyewitness memory literature in particular.

Returning to the earlier illustration of the man gripping the woman's arm, imagine that the witness had seen this event with no idea of who the two people were or of the nature of the relationship between them. Subsequently, the witness learns that the woman was murdered later that night, and that the man is a suspect. Research on reconstructive memory processes would suggest that many witnesses in such a situation would "reconstruct" [*1492] their memories of the original event such that the man would appear more angry or violent, the women more afraid, and the event as essentially more hostile in nature than those who did not later learn of the murder.

Claudia Cohen illustrated this process in a classic study. n167 Participants watched a videotape of a woman interacting with her husband. The video portrayed many of the woman's attributes, behaviors and appearance. Of these, some were consistent with the of librarians, but inconsistent with the stereotype of waitresses (e.g., wears glasses, listens to classical music). Others were consistent with the waitress stereotype, but not the librarian (e.g., affectionate with her husband, drinks beer rather than wine).

Subjects were divided into four groups. Half were told that the woman was a waitress and half that she was a librarian. For each of these groups, half were told her occupation before seeing the videotape and half after. Later, memories for the woman and her actions in the tape were assessed.

The results clearly demonstrated the biasing effects of expectations activated either when information is first perceived or when activated later. Those who were told the woman was a waitress tended to remember her appearance 15594 Page 35 66 J. Air L. & Com. 1421, *1492

and behavior as more consistent with a waitress stereotype (e.g., blond hair, drinks beer, affectionate with her husband, listens to rock and roll, etc.), whereas those told she was a librarian tended to remember librarian consistent behaviors and attributes (e.g., brown hair, drinks wine, listens to classical music, etc.).

Many subsequent studies have shown similar reconstructive effects of information acquired after the fact.

a. Post-Event Sources of Information/Schematic Activation

The typical witness does not remain an inviolate repository, storing an exact replica of the events in question. Instead, from the first moments of the relevant events, witnesses are exposed to constant sources of influence on their memories. These sources range from interviews or interrogations by police, attorneys, or other investigators to conversations with friends, family, therapists or other witnesses, to media publicity. Each of these sources may provide additional true information not originally [*1493] observed by the witness or misleading false information. They may offer interpretations that activate particular schemas and engage constructive or reconstructive processes.

Constructive and reconstructive memory processes lead to alterations or additions in memory outside the awareness of the witness. When later asked to retrieve memories, the witness may suffer a phenomenon called "source confusion," as a result of which (s)he cannot accurately remember where the information in the memory comes from (for example, from his or her original versus from subsequent media publicity).

Recently, prominent memory expert Elizabeth Loftus n168 has offered an account of media and other potentially biasing influences on eyewitness reports of the intensely publicized crash of TWA Flight 800 on July 17, 1996. Her description of the history of witness reports in that case illustrates the power of reconstructive processes to shape witness memory.

Within days after the crash, the media began to present and discuss the theory that the plane had been shot down by a missile. Media reports of the "missile theory" included graphics illustrating how the missile shooting may have occurred and reports of witnesses who saw "a flare" streaking toward the plane immediately preceding the explosion. In one witness report, a National Guard helicopter pilot flying in the area during the time of the crash reported seeing a streak of red-orange light ending in a small explosion followed by a larger explosion turning into a huge fireball descending slowly into the ocean. His observations were broadcast on Rivera Live (CNBC, July 19) two days after the crash.

Three days after this broadcast, ten more unnamed witnesses reported seeing something streaking toward the plane before the explosion. This "missile" theory was pursued and continuously discussed in the media for much of the next year.

The testimony of pilot Meyer and his co-pilot Baur became crucial in the investigation of the crash. However, as Loftus and G. Castelle n169 describe in detail, both were subjected to a number of post-event sources of influence. These included media publicity of the missile theory, conversations between the pilots and crew of the helicopter, repeated questioning by media and [*1494] investigators, and the use of questionable memory recovery techniques such as hypnosis, guided imagery and relaxation techniques.

The pilot Meyer reported recovering a fully detailed memory of the missile impact in a dream. In fact, however, there is no evidence that dreams reliably replay real memories. The co-pilot "remembered" the missile impact for the first time after the use of hypnosis, guided imagery and relaxation, and well after exposure to media accounts and repeated conversations with investigators and the pilot Meyer (the one who had first described seeing events consistent with the theory of an oncoming missile and impact). The reports of each changed as time went on, becoming more explicit and more consistent with the possibility of a missile attack. Not surprisingly, the confidence of these witnesses in their reports increased along with the changes.

By October 1997 (more than one year after the crash), the NTSB had identified 183 witnesses who claimed to have 15593 Page 36 66 J. Air L. & Com. 1421, *1494

observed a streak of light prior to the explosion of the plane. Did each of the 183 witnesses who eventually reported seeing the streak leading toward the plane actually see it? Or did pilot Meyer and the media reports of the missile theory influence them? Did they actually see a moving streak? Or did they see the trace well after it was stationary and "reconstruct" the direction based on the missile theory?

Ultimately, the CIA concluded that the crash was not caused by missile attack. They prepared an elaborate video simulation of the real cause of the crash, explaining that the plane could have briefly ascended after an explosion blew off the nose causing the ascending streak seen by the witnesses. Nevertheless, many witnesses and much of the general public remained unconvinced, doubtlessly believing to this day that the plane was brought down by a missile.

Clearly, media and other post-event sources of information influence memory through reconstructive processes. Once accomplished, these reconstructive changes can be highly resistant to influence. Embedded in a host of beliefs and other information that make them seem not only real but also plausible (or even logically necessary), the new "memories" can become virtually unassailable.

Research documenting these effects and typical post event sources of these effects will be discussed in Section XIII.A(2) infra. Meanwhile, we return to consideration of other reconstructive influences.

[*1495]

b. Memory In Retrospect

"Memory, the would-be anchor of selves and lives, constructs the materials from the past that an earlier, more innocent view would have us believe it merely stored." n170

One of the most powerful causes of reconstruction in memory is present knowledge. Several lines of research have documented the influence of present beliefs on memories of our past behaviors, experiences and beliefs. Generally, this research has shown that we tend to believe that our past beliefs, behaviors, and experiences are more consistent with our current beliefs than they actually were.

1. The "Retrospective Bias"

Studies concerned with the "retrospective bias" have shown that reports of past attitudes or behaviors are biased by current attitudes or recently acquired information. Recollections of past political attitudes, for example, tend to be distorted significantly by current political beliefs. n171 Similarly, recollections of one's own behavior have been shown to change to conform to newly acquired information about how one should behave. In other words, we reconstruct memory of the past so that we believe we behaved in a more sensible or desirable way than we actually did. These kinds of distortions toward consistency have long been known to survey researchers with interest in past behavior, and underlie the common recommendation to have respondents, when possible, consult records before answering questions regarding the past.

How could the "retrospective bias" become important in litigation? Generally, both tragic events and the lawsuits that follow them tend to identify actions we should have taken but did not, and those we should not have taken but did. The retrospective bias would tend to lead us to misremember our actions as more correct and desirable than they actually were. Just as self-protective motivations may lead to deliberately false testimony, the retrospective bias may cause "honest" false testimony.

[*1496] 15592 Page 37 66 J. Air L. & Com. 1421, *1496

2.

"Hindsight is 20/20," or Is It?

Just as the proverbial Monday morning quarterback is certain he could have predicted the outcome of the "Hail Mary" pass lofted in the final moments of the playoff game, human observers typically feel they could have predicted the outcomes of everyday events, such as a neighbors' divorce, a political election, a business investment, career choices or foreign policy decisions. Past events appear simple, comprehensible, and predictable in comparison to the events of the future. This tendency to believe, in hindsight, that we knew in foresight that particular events or actions would lead to specific outcomes is called the "." n172

Once an outcome is known, victims of this "hindsight bias" have been shown to not only overestimate, in hindsight, how likely that particular outcome was to occur, but to also overestimate what others could have or should have anticipated in foresight, thus giving them undue credit or blame for the outcome. Further, blissfully ignorant of their own hindsight biases, they cannot accurately remember their own judgments or behavior before the outcome was known, recalling instead that they were wiser ("I knew it all along!") and more confident ("And I was sure of it!") and that their behavior was more consistent with that knowledge ("I told you that would happen" or "I checked that seal before we took off") before the event than was actually the case. Finally, having rewritten the history of their judgments and thus not acknowledging their mistakes, victims of hindsight feel less need to reevaluate and improve their decision-making processes and evidence-gathering strategies and therefore do not learn effectively from their errors. n173

Baruch Fischhoff n174 called this tendency to perceive past events as inevitable consequences of their predecessors "creeping [*1497] determinism." In other words, in retrospect, we seem to perceive the past as a sequence of events that follow logically from one another. Since the outcome is perceived to follow logically from events preceding it (determinism), we develop the perception that no other outcome was possible under the circumstances, that we knew it all along, that we were behaving accordingly, that others should have known it too, and that because they should have known better, they are responsible for any negative outcomes of their actions.

A number of studies have examined the implications of this "hindsight bias" in the legal system. Some of the focus of this research has simply been the fact that judgments in hindsight can be inappropriately harsh because people blame themselves or others for making the wrong decision even though in foresight the decision made sense based on the information available at the time. For example, several studies showed that judgment of medical and financial decisions and of behaviors on a date are affected by knowledge of the outcome. The exact same actions, judged without knowledge of the outcome, are viewed as more competent or appropriate in foresight. In hindsight, however, if the patient died, the money was lost, or the girl was raped, the same behaviors are judged as incompetent or inappropriate. Thus, many lawsuits and verdicts may be caused by harsh judgments in hindsight. n175

However, the effects of hindsight also include reconstructive memory processes. That is, the outcome (or result) of a behavior that took place in the past is a new piece of information that can cause reconstructive memory processes in the same way as any other new information. In this case, as with other new information, memory is altered so that the previously stored information is changed to appear more consistent with the new information. If the outcome is negative, for example, the observer may reconstruct the memory of the behaviors leading up to the outcome (such as conversations, precautions, information searches and so on) such that they appear more inappropriate or inadequate. On the other hand, one's own behavior may be reconstructed to appear more appropriate.

Interestingly, one of the first studies of hindsight in the legal setting dealt with biases in production of evidence rather than in reactions to it. That is, rather than biases in judgments of the [*1498] jury and judiciary, it dealt with distortions in witnesses' recollection of the events preceding the outcome at issue in trial.

a. John Dean and the Watergate Cover-up 15591 Page 38 66 J. Air L. & Com. 1421, *1498

"I began by telling him there was a cancer growing on the Presidency, and that if the cancer was not removed, the President himself would be killed by it." John Dean n176

Once the Watergate cover-up failed and President Nixon and his staff became the target of Watergate investigators, John Dean confidently reported that he had known all along that the cover-up would fail and that Nixon would be in jeopardy as a result. Was this confident assertion just an example of the hindsight bias in operation, or did Dean actually foresee the outcome and warn the president?

Cognitive psychologist n177 analyzed the portion of John Dean's testimony during the Watergate hearings recounting his conversations with the President. This analysis provided an ideal opportunity to examine the effects of hindsight on recall. Unlike most evidentiary situations, Dean's testimony could be compared to an objective record of the events in question - i.e., the subsequently released recording of his conversations with the President. n178

Neisser traced many errors in Dean's testimony to events subsequent to the conversations he recounted, clearly demonstrating that Dean's testimony concerning events prior to exposure of the cover-up was biased by his knowledge of later events. Dean claimed, as quoted above, that he had warned Nixon of the danger of exposure of the cover-up which hindsight clearly exposed as dangerous and of the consequences for Nixon himself that were also confirmed in hindsight, although the tapes later revealed that he had given no such warnings. Dean reported with likely absolute belief in their verity things that should have occurred given his hindsightful knowledge of the outcomes.

Such objective comparisons of testimony with fact are, unfortunately, rare. However, studies of the biasing effects of hindsight, [*1499] and of retrospective biases in general, on memory suggest that distortions due to hindsightful knowledge of subsequent events will be pervasive.

Civil litigation routinely involves lengthy sequences of events involving many people leading up to a particular outcome. Aviation litigation, in particular, often involves testimony reaching back twenty years or more, covering the design and manufacture of the model aircraft involved, the history of its ownership and maintenance, the actions of owners and maintenance personnel covering the period before the crash, and the actions of ground personnel, crew, passengers and others immediately preceding the crash.

Hindsight will distort testimony among many, if not most, such witnesses. Some will remember the status of the plane as more dangerous in hindsight than they perceived in foresight. Others will remember that they performed maintenance and inspection procedures that they should have but did not. Passengers may remember that they asked the pilot about maintenance and were reassured, as in our Nevada case, whether they did or not. The pilot may remember that he performed appropriate emergency maneuvers that were never done, as when Nevada's state politician Seale "remembered" that he feathered his propeller when his engine failed although he did not. In many ways, through many voices, hindsight will permeate the fabric of the case.

D. Collaboration/Influence Between Witnesses

The first author recently testified in the trial of Mr. Strode, a man accused of an Oregon bank robbery. The perpetrator was described to police over the phone during the initial report of the robbery. As police operators were asking for a description, they were told to wait, "We're getting a consensus on that." The witnesses continued to discuss the proper description of the perpetrator, and finally provided a description of an Asian or Hispanic man with long black hair wearing a running suit. They provided estimates of height and weight and a description of the suit.

Police then picked up the only dark skinned man who could pass as Asian or Hispanic in the area, although he was 15590 Page 39 66 J. Air L. & Com. 1421, *1499

not in a jogging suit, and brought him to the bank. The defendant was made to stand in front of the police car outside the window of the bank for witnesses to identify. As soon as she saw him, the [*1500] teller who was robbed burst into tears and collapsed on the floor.

How should we interpret the testimony of the bank witnesses? Should we trust the initial description arrived at after resolving any individual differences through discussion? How might the other witnesses have been influenced by the reaction of the teller? Similarly, how should we interpret the testimony of helicopter co-pilot Baur from the TWA case (or the other 183 ground witnesses) in light of their exposure to pilot Meyer's testimony through his media appearances and to the accounts of both Meyer and other witnesses through descriptions from media reporters? Social science research would indicate that we should be wary. The way in which influence may occur between witnesses is amply documented in the social science literature.

The potential of people to influence one another's judgments is well documented in a well-known series of studies on conformity conducted by Solomon Asch in the 1950's. Generally, the method employed in Asch's original research and that of those who followed was to expose subjects to a stimulus of some sort and ask for a judgment. The judgment could be objective, such as the length of a line, distance between points of light, height, etc. or subjective, such as the quality of a work of art, pleasantness of taste, and many more. The subjects were asked for their judgments under various conditions of potential for group influence.

Typically, conditions with high potential for influence, such as when others have announced their judgment first, when the subject must announce his or her judgment in front of the group, when the subject is less sure of his or her own judgment, etc., are contrasted with those with less potential, such as when the subject announces his or her judgment without knowing the judgment of others, when the subject's judgment can be made anonymously, when the subject is more expert than the others, etc. Uniformly, these studies have found that subjects' judgments are influenced by the judgments of others. Further, they are more influenced by the judgments of those they perceive as: (a) more expert than they are, or particularly credible for any reason; (b) well-liked; or (c) part of their own in-group. Subjects are also more influenced on judgments of stimuli where they are uncertain of their own judgment.

It is important to note that when subjects announce their judgment when they know of others' judgments, they announce judgments different from those they make when judging alone. [*1501] This occurs for two reasons. First, they are sometimes unsure of the correct answer and use others' judgments as a source of information about what is true. Second, they sometimes conform just to please others or avoid social rejection.

It is also important to note the extremity of distortion that can result from knowledge of others' judgments. In the original studies of this topic, Solomon Asch had groups of subjects judge the length of lines. He exposed subjects to a target line (on one presentation card) and three comparison lines (on another card). The subjects' task was to choose which comparison line matched the target line. Asch constructed the comparison lines such that the task was very easy. There was no doubt of the correct response. When subjects did this task alone (for twenty-four comparisons), the error rate was practically zero.

However, Asch set up another condition where he had varying numbers of confederates announce incorrect judgments on eighteen of twenty-four trials before the subjects' turn. Among subjects who heard the incorrect responses from others, only 10% remained free of error. A full 90% of the subjects gave incorrect responses on at least one of eighteen possible trials, and 25% responded incorrectly on all trials.

Asch's results were impressive because: (a) virtually no subjects completely resisted the influence of what they could clearly see were false judgments of others; and (b) so many subjects completely succumbed to that influence. Asch's findings have been replicated over and over in many studies that followed.

These findings have also been replicated in the context of jury decision-making, where it has been shown that when jurors take a show of hands to vote on guilt there is substantial conformity to others. A show of hands is more likely to 15589 Page 40 66 J. Air L. & Com. 1421, *1501

result in an immediate verdict than an anonymous poll because jurors who might otherwise maintain a minority opinion are swayed by the knowledge of the majority opinion.

The social influence and conformity literature has conclusively demonstrated the power of social influence to alter reported judgments. Additionally there is direct evidence from the eyewitness literature demonstrating that co-witnesses can influence both the accuracy of one another's testimony as well as their confidence in those accounts. For example, Elizabeth Loftus and Edith Greene n179 (1980) found that participant-witnesses [*1502] incorporated misleading details from other witnesses' written descriptions into their own descriptions of target faces. More recently, Wright, Self and Justice, n180 demonstrated that other witnesses can influence memory for cars, and Betz, Skowronski, and Ostrom n181 have demonstrated that bogus responses of others can influence people's later memory reports for details from a written story.

These memory studies focused on later reports from a witness after that witness had already been exposed to co-witness statements. However, there is also evidence for immediate effects of co-witness reports. Perhaps the clearest demonstration of these efforts can be seen in a series of three studies by Shaw, Garven and Wood. n182 In the first study, student witnesses were questioned in ways that were intended to be analogous to the experience of a witness who receives information from an interviewer or questioner about what other witnesses have already said. A second and third study simulated the situation where witnesses received the information directly from co-witnesses. In all three studies, witness reports were significantly affected by information about the reports of other witnesses, whether they received the information directly from the co-witnesses or indirectly from the interviewer.

Further, the experimenters varied whether the interviewer conducted the interview in a misleading way by suggesting particular incorrect responses. The misleading interview questions created more errors in witness reports. The most errors, however, were committed by witnesses who received incorrect information both directly from other witnesses and indirectly via the misleading questions of the interviewers. These results suggest that discussions between co-witnesses have great potential to influence the testimony of all of the witnesses. When interviews by police or other investigators suggest information similar to that being conveyed by other witnesses, a target witness will be particularly likely to adopt the suggested account.

The potential for immediate influence between witnesses has far reaching consequences. They not only shape one another's initial reports. A witness' first statements have been shown to [*1503] shape that witness' later reports during subsequent interviews or court appearances. In other words, once a witness has told his or her version of what happened, that witness is likely to stick with that account in the future. Loftus n183 has referred to this phenomenon as the "freezing effect." As time goes by, it becomes increasingly difficult for a witness to change or back down from an initial statement or identification. The pressures to continue to be consistent can overwhelm virtually any witness.

Further, the first statements of even a single witness may influence the subsequent investigation of a case, just as helicopter pilot Meyer's initial report of the TWA explosion triggered the "missile theory" of the crash and thousands of hours of investigation of that theory, and influenced countless reports of witnesses who heard Meyer's account on TV before being interviewed themselves. Similarly, based upon one witness's initial account of a criminal incident, the police may construct a lineup, choose particular mug shots, interview specific witnesses, formulate detailed theories about the commission of the crime, and even make an arrest. Thus, even minor errors, misstatements, or omissions in one witness's initial memory report can have far reaching effects on the investigation of the case, n184 whether civil or criminal.

1. Inflation of Witness Confidence Through Collaboration/Corroboration

We have discussed earlier how witness confidence is minimally associated with witness accuracy. Thus, it is important to point out that witness confidence can be inflated through discussions with other witnesses and the knowledge that they agree with the witness's own account of the events in question. For example, Luus and Wells n185 showed that confidence became inflated in witnesses who knew another witness made the same perpetrator identification. They 15588 Page 41 66 J. Air L. & Com. 1421, *1503

staged a theft in front of seventy pairs of witnesses. Witnesses who were told that their co-witness identified the same person they had identified showed an increase in confidence in their identifications, as expressed to an ostensible police officer. Those who thought their co-witness disagreed showed deflation of confidence.

[*1504] Luus and Wells then showed tapes of the seventy witnesses to other mock jurors who judged the credibility of their testimony. Witnesses who had heard that other witnesses agreed with their identifications were judged as more credible by the mock jurors than those who had heard that other witnesses had disagreed or who had not been given any information. In other words, witness confidence was affected by information about the opinions of other witnesses, and the witnesses' confidence, in turn, affected mock jurors' judgments of their credibility.

Finally, it is important to point out that social influence between witnesses may occur due to both the influence of the information conveyed between them and the potential for motivational distortions in memory created by any desire they may have to avoid rejection or to help or support others, whether it be other fact witnesses, investigators, or parties to the case. To the extent this motivation exists, it would tend to both distort their own memories in the direction consistent with the interests of the other person and to render them more susceptible to the influence of any source who might be reporting the events in line with the other's interests.

Expert testimony on issues of witness contamination will be useful since jurors will not understand the potential for witnesses to influence one another's memories. Jurors will also not understand that collaboration among witnesses will inflate their confidence. Instead, jurors will tend to assume the inflated confidence the witnesses may display means they are accurate.

VI. RETRIEVAL PROCESSES

"Even the seemingly simple act of calling to mind a memory of a particular past experience ... is constructed from influences operating in the present as well as from information you have stored about the past." n186

Even if the witness has accurately encoded and stored information until asked to retrieve and report it, accuracy may still be compromised during the process of retrieval as we attempt to reconstruct our original observations. Recall, we do not store a precise record of what we observe. We store bits and pieces that provide the basis for reconstructing the event much like, as Neisser n187 [*1505] suggested, the paleontologist reconstructs a dinosaur from fragments of bone.

However, just as the paleontologist's reconstruction is part fact and part inference, so are the memories we reconstruct when asked to retrieve them. Particularly when the real memories of the event are not clear, our reports of them become susceptible to a wide variety of influences.

A. Confidence and Commitment Enhancing Processes

Recall our earlier discussion of the impact of witness confidence on juror belief in the witness' testimony. Processes associated with retrieval of memories can have profound effects on the content of witness testimony as well as the confidence of the witness. These processes include both post-event interviews and discussions with other witnesses, police, investigators and attorneys, as well as specific memory retrieval techniques designed to enhance retrieval of difficult or lost memories.

1. Confirmatory Feedback

Among the processes that lead to enhanced confidence is feedback suggesting that witness reports are correct. Gary 15587 Page 42 66 J. Air L. & Com. 1421, *1505

Wells and Amy Bradfield n188 illustrated this problem in the eyewitness identification context, where police often praise witnesses who have identified a suspect for having picked the right one. As the authors note, the witness' confidence will be inflated by feedback that (s)he identified the same suspect police believe to be guilty.

Similarly, confirmation is provided by police for other aspects of witness reports and by attorneys and other witnesses among others. All confirmatory feedback has the potential to both artificially inflate confidence and to interfere with any true but contradictory memories the subject may have had.

2.

"Illusory Truth" Through Repeated Rehearsal, Questioning or Recounting

In legal settings, once something is witnessed or experienced, memories of the event are typically retrieved repeatedly as the witness thinks about what happened. Particularly when the [*1506] event is unexpected, before a witness recounts them even for the first time, the memories are continually "constructed" by the witness' efforts to understand and process what happened. Before trial, the average witness will have retrieved and reported relevant memories countless times for many different audiences, ranging from other witnesses on the scene to police interviewers, friends, family, counselors, corporate employees, doctors, attorneys, media, and many others. On each of these occasions, memory is changed. It may simply begin to seem more certain or real, or details may be added or changed. No matter the nature of the change, it will have the potential to affect the jury's assessment of the witness.

Even the simple act of repeating a statement can increase the strength of one's belief in its truth. Memory researchers have dubbed this effect the "illusory truth effect." n189 The effect occurs from the mere act of repetition, even when statements are simply repeated in the laboratory with no implication the statement is true, and out of context, without the personal involvement and very real consequences inherent in case-relevant testimony. How much stronger would such effects become when the other influences around a witness are consistent with the statements being repeated?

A witness may or may not alter a memory as a result of recounting. The repeated recounting may simply cause the witness to have increased confidence in the memory. However, increased confidence will tend to increase the witness' credibility, thereby affecting the jury's reaction to the testimony. More seriously, post-event discussions may substantially alter memory and completely mislead the jury. Thus, whether large or small, the changes in witness memories that come from post-event interviews and discussions are rarely trivial.

a. Preparation for Cross-Examination

Repetition and rehearsal in the context of cross-examination have exceptional potential for enhancing witness confidence. The context of a trial team's preparation for trial is, by its nature, focused on promoting one point of view. The witness may [*1507] be exposed to the full arguments and evidence for that point of view. Further, with a good trial team, sometimes including trial consultants, the witness may be led repeatedly through expected testimony, practicing direct testimony and how to handle cross-examination. Mere exposure to the arguments and evidence consistent with one's testimony will build confidence, as will the successful experiences of handling mock cross-examination.

VII. FAILURES OF RETRIEVAL

A. The Importance of Contextual Cues for Retrieval

"Recollection is a kind of perception, ... and every context 15586 Page 43 66 J. Air L. & Com. 1421, *1507

will alter the nature of what is recalled." n190

One of the most well-established phenomena in memory research is the fact that our ability to retrieve a memory is strongly affected by the context in which we try to remember. All of us experience this effect every day as memories are constantly triggered by something we see, read, or hear that "reminds" us of something associated in memory with what we just encountered. Similarly, we fall victim to failures of memory triggered by contextual features that temporarily block the memory we are looking for, as when we cannot remember one person's name because a recent encounter with a person with a similar name has blocked it. Thus, to understand how retrieval can be either compromised or enhanced, it is important to understand how context affects retrieval.

1. Finding the Path to Memory

Retrieval of memories tends to occur through associative pathways connecting related information in memory. Forgetting occurs, in part, because as time passes, interference from new information makes it progressively more difficult to find a retrieval cue that triggers the associative pathway. n191

a. Start with Cues Associated with the Event

A particular memory can become easier to retrieve if the person is first reminded of related information - a principle called "context-dependent memory." This process has been illustrated, for example, in studies of "cued recall," showing that providing "cues" [*1508] related to the information to be retrieved aids retrieval; for example, in studies demonstrating that returning victims to the scene of a crime helps them remember details they could not otherwise remember, n192 that scuba divers can remember lists of words learned in water better when they are again in water than when on land and lists learned on land better when again on land than when in water, n193 in studies of "state-dependent learning," indicating that retrieval is superior when attempted in the same state as the person was in when the information was originally encountered (such as when using drugs or alcohol), and in studies of "mood-congruent retrieval," n194 showing that it is easier to retrieve pleasant memories when in a pleasant mood and unpleasant memories when in an unpleasant mood. n195

b. Interfering Contextual Cues and Memory "Blocking"

Just as retrieval may be facilitated by useful contextual cues, interfering contextual cues may also block it. Even if a person has encoded an event deeply and it has not been lost from storage over time, (s)he may be temporarily unable to retrieve the memory. Daniel Schacter n196 included this among his list of seven sins of memory under the name "blocking." Very often, memory is "blocked" by something in the current context making it more difficult to think of the desired information. Typically, information that tends to block retrieval is related in some way to the information sought as, for example, when the attempt to retrieve one person's name is blocked by another similar name.

Although blocking is usually temporary, it may occur over a longer term. This was illustrated in a witness memory paradigm, n197 where it was shown that repeated retrieval of some aspects of a witnessed event can block retrieval of other related aspects of the event. Participants viewed photographs of a crime [*1509] scene and then were repeatedly questioned about certain categories of objects in the scene. Subjects were repeatedly questioned about some objects from the category in question but not others. Later, compared to objects in other categories, subjects had poorer memory for the non-reviewed objects in the target category. That is, the repeated retrieval of some objects in a particular category (such as clothes) appeared to block memory for related others that had not been similarly rehearsed.

The implication of this later research is that post-event questioning leading the witness to focus selectively on some aspects of the event can cause difficulty in remembering other details that may be very important.

c. Led Down the Wrong Path: The Effects of Biasing Retrieval Cues 15585 Page 44 66 J. Air L. & Com. 1421, *1509

Schacter n198 argued that memory is not simply "cued" by contextual cues; it is shaped and constructed by these cues. He argued that retrieval cues combine with the stored memory "engram" to yield "a new, emergent entity - the recollective experience of the rememberer - that differs from either of its constituents." n199

Schacter n200 reported an experiment in which college students looked at photographs of people they had heard speak in either a pleasant or irritating tone of voice. Later, they were asked to recall the speaker's tone of voice. They were cued with photographs of the speaker posing with either a slight smile or slight scowl. Regardless of the actual original tone of voice of the speaker, subjects who were cued with a smiling face were more likely to "remember" a pleasant tone of voice and those cued with a scowling face were more likely to "remember" an irritating tone of voice. In other words, memory was greatly influenced by the retrieval cue, drifting toward consistency with the cue. Similar biasing influence of questions as retrieval cues can be seen in studies of the "" found in 2.e below. n201

To summarize, memory is affected in many ways by the contextual cues present during retrieval. These cues may either facilitate or interfere with memory. Thus, it is important for the attorney (or the memory expert) to consider the context in [*1510] which the memory was retrieved and be aware of the potential for bias.

B. Confusing the Present with the Past: The Importance of Current Motivations, Goals, and Beliefs

Recall our earlier discussion of the "retrospective bias." Current motivations, goals, and beliefs provide powerful cues that both direct retrieval and color interpretation of what is retrieved. In the earlier section, we reviewed evidence that current beliefs and motives cause us to remember the past as more consistent with the present than it actually was.

There is also evidence that present motivation affects this tendency directly through its effect on the ability to retrieve consistent versus inconsistent information. For example, the phenomenon called "mood-congruent retrieval," referred to above as affecting retrieval through contextual cueing processes, may also result from motivated-retrieval processes or the desire to avoid mood-incongruent memories. n202

C. Dissociation and the Vagaries of Source Monitoring

On the evening of October 4, 1992, shortly after take-off, an El Al Boeing 747 crashed directly into an eleven-story Amsterdam apartment building. The plane crashed almost straight nose-down, immediately bursting into flames as it fell to the ground. Media coverage never included the crash itself, but began within the first hour after the crash and included films of the ensuing fire and rescue operations. Coverage continued for some time and reached most of the country.

In a study appropriately titled "Crashing Memories and the Problem of Source Monitoring," Hans Crombag and his colleagues, Wagenaar, and Van Koppen, n203 examined the memories of Dutch citizens exposed to media accounts of the El Al crash. The authors were interested in the potential for media accounts to cause reasonably intelligent adults to believe they had witnessed the crash they could not actually have seen themselves. Although the crash was not filmed and never shown on TV, many accounts were given in both television and written media. In two separate surveys, ten months after the crash, the authors asked respondents, "Did you see the television film of the moment [*1511] the plane hit the apartment building?" Those who answered "yes" were then asked whether they could remember how long it was until the plane caught fire. Startlingly, notwithstanding the implausibility of the media having caught the moment of the crash on film, more than half of the respondents reported having seen the crash (55% and 66%, in the first and second surveys). Of those who "remembered" seeing the crash, more than 80% "remembered" when the fire started, although some did so incorrectly. Many gave vividly detailed descriptions of the crash they could not have actually seen.

Did these Dutch residents really remember seeing the crash? Did they just report what they believed happened? If they did remember the crash, how could these pseudo-memories develop, and why did the residents not understand that 15584 Page 45 66 J. Air L. & Com. 1421, *1511

they were not real? These are the questions examined by memory researchers concerned with the problem of "source monitoring." n204

Crombag's n205 dramatic illustration of the ease with which we can "remember" things that never were is one among a growing literature documenting the facility with which false memories can be created, and the mechanisms through which they are produced.

Crombag, n206 for example, attributed the false "crashing memories" of the Dutch citizens to problems of "source monitoring," or failure to understand where the vivid images of the crash they "remembered" came from. The authors argued that the false memories reported by their respondents were based on vivid internal images the respondents had created through imagining the various scenes described in the media. Eventually, experiencing failures of "source monitoring," the respondents confused these internally created images with actual memory for the event.

Crombag n207 suggested that source-monitoring failure may be even more common for memories of dramatic, highly publicized events such as a plane crash than for more mundane events. Events tending to provoke both publicity and discussion [*1512] and to evoke vivid images are more likely to impair our ability to accurately track the sources of these images. n208

Still, "How?" we might ask. How can we confuse knowledge of facts we gained from watching television with the actual memory of seeing an event? Marcia K. Johnson offered an explanation based on cognitive studies of the contributions of reality monitoring and source monitoring to the delusions and of the brain damaged or mentally ill. n209 She argued that the characteristics making a perception, a belief, or an event memory seem real are common to all three. Because the basis of the sense of reality is the same for a belief as for an actual event memory, the potential for confusion between them is high.

According to Johnson, the bases of the sense of reality include sensory detail, embeddedness in spatial and temporal context, embeddedness in supporting memories, knowledge, beliefs and "the absence of consciousness of or memory for the cognitive operations producing the event or belief." n210

Notice, all of the factors Johnson cited as sources of the feeling of "reality" are often present even when one did not witness or experience an event. We can receive a host of information from other sources, such as interviews, conversations with others, or accounts in the media (as in the El Al and TWA cases). The information can provide a great deal of detail, helping us to form our own visual images of the events discussed. It can include more than sufficient contextual and historical information to give us a sense of how the event fits into time, place, and situation and how it makes sense in the context of other relevant knowledge and memories. The high visual imagery for an event that makes sense contextually creates the sense of reality that can become confused with actual reality. Thus, the sense of reality associated with false event memories can be created through any number of pathways, ranging from simply thinking about or imagining something oneself, or describing it to others, to the massive and redundant publicity associated with dramatic public events, of which aviation disasters are powerful examples.

[*1513] The eyewitness literature has identified a number of factors common to witnesses in a host of events that tend to induce false memories through problems of source monitoring. In the sections that follow, we will first discuss the nature of difficulties in memory caused by dissociation and inaccurate source monitoring. We will then consider specific areas of testimony in which source monitoring causes problems.

Next, we will consider common causes of source monitoring errors, such as pretrial publicity or suggestive interviews, and review what is known about interviewing techniques that enhance or minimize memory distortion. We will then turn to the discussion of techniques commonly employed to aid in retrieval of "lost" memories that have been shown to distort memory, and even to create , or false memories. Finally, we will consider organic causes of source amnesia, including brain damage and aging.

1. The Nature of Dissociation and Source Misattribution 15583 Page 46 66 J. Air L. & Com. 1421, *1513

Accurate recollection depends in part on the ability to recall exactly where, when, and with whom an event occurred and from where one's own exposure to the event came (i.e., being present versus hearing about it later). In others words, accurate recollection includes accurate memory of the context in which events or information were encountered. These contextual associations are referred to as "source memory."

Source memory is absolutely crucial to everyday life. It lies at the heart of our ability to distinguish actual memories from intentions, fantasies, delusions and other products of our imagination. Mistakes in these crucial distinctions are not confined to the mentally ill. As asked earlier, how many of us over forty have wondered whether we actually took a pill, mailed a letter, locked the door, etc. or only thought about it?

Our ability to make such everyday distinctions between what we thought about doing and what we actually did depends upon accurate source memory in the same manner as distinctions between reality and fantasy, or between what we actually witnessed during the course of a crime or accident and what we saw and heard described in later media accounts.

Unfortunately, memory research has clearly shown that source memory is extremely fallible. Several lines of research in basic cognitive processing have demonstrated that experiences are often encoded or retained at a level below conscious awareness. In other words, the subject may have no conscious memory [*1514] of the experience. Yet, these experiences have demonstrable effects on subsequent behavior, including the feeling of familiarity with the stimulus, with no memory of having been previously exposed to it, and confusion of the source of familiarity among many other effects. These phenomena are documented in literature on what is called "automatic processing" n211 and "." n212 Together, this research examines the way in which material is registered in memory without conscious awareness, and the way in which the material in memory outside conscious awareness affects current memory and behavior so that the person does not understand the source of the memories or the reasons for current behavior. These processes have been explicitly addressed in the witness memory literature. In fact, errors in source memory are responsible for a number of the common failures of witness memory.

2. Common Distortions Due to Difficulties in Source Monitoring

a. Remember When ... ? Difficulties in Memory For Timing of Autobiographical Events

Among the most common failures of source memory is remembering when something happened. n213 What if we were asked what we did two weeks ago on Tuesday night? Many of us who have no regularly scheduled activities on Tuesday nights would be at a loss. Or what if we were asked when we last had our oil changed? Even worse, what if we had to recall the year that we read a certain book? Most of us fail miserably when asked such questions.

Memory for times and places is especially poor for events that occur repetitively. Victims of repeated physical or sexual abuse, for example, remember the gist of their experiences. However, they often confuse the details of particular incidents, including the time or dates of particular assaults and which specific actions occurred on which specific occasion. As events recur, it can become [*1515] difficult to remember exactly when specific actions occurred even though memory for what happened is clear. n214

Notwithstanding our inability to accurately report times and dates, witnesses are commonly asked to do so. A slate of suspects must report their alibi on the date and time of a crime. To verify one of their alibis, two weeks after the crime the bartender must report whether or not he saw the defendant (a frequent patron) in the bar on the night of the murder. Aircraft or automobile owners or mechanics must report when they last performed a particular maintenance activity. Fact witnesses in countless criminal and civil suits report on when they had specific conversations or sent a particular piece of mail. In some cases, objective records may be available. However, witness reports of the timing or sequence of events should be regarded with extreme skepticism when there is no external objective verification of their reports. As with any other information where the witness may be uncertain, the potential for distortion due to 15582 Page 47 66 J. Air L. & Com. 1421, *1515

motivation, self-interest, and other sources of external influence is high.

b. Remember Who ... ? Misidentification Through Unconscious Transference

The term "unconscious transference" refers to a process whereby a witness confuses an innocent but familiar-looking person with the perpetrator. The feeling of familiarity can lead the person into a false identification during police identification procedures (line-ups, show-ups, examination of mug shots, etc.). The witness may incorrectly believe the person is familiar from the crime context rather than from the true context of exposure to him/her.

Technically, the concept of unconscious transference is defined as "the transfer of one person's identity to that of another person from a different setting, time, or context." n215 It is considered unconscious in that the witness misidentifies the familiar innocent person without having a conscious recollection of the previous exposure to him/her and without awareness of the true context [*1516] of the previous exposure. The process of unconscious transference is illustrated in a frequently cited case. n216

A ticket agent in a railroad station was the victim of an armed robbery and later identified a sailor from a police lineup. The sailor, however, had irrefutable proof that he could not have been at the station at the time of the robbery. When questioned about why he misidentified the sailor, the ticket agent claimed the sailor looked familiar to him. An investigator later discovered that the sailor lived near the train station and had purchased tickets from the agent on three different occasions prior to the robbery. Thus, the ticket agent had clearly seen the sailor before but did not remember him as a customer. Instead, the feeling of familiarity led the ticket agent to assume he recognized the sailor as the robber.

Ironically, one of the more strange and dramatic instances of source confusion on the part of an eyewitness victimized a psychologist whose research had focused on memory distortion and eyewitness identification. Donald Thompson, who had testified frequently as an expert witness on the vagaries of eyewitness memory, himself became the victim of mistaken eyewitness identification. Dr. Thompson was interrogated as a suspect for a rape. n217 Fortunately, Thompson had an airtight alibi. Ironically, shortly before the rape, he was doing a live television interview describing how people can improve their ability to remember faces. It later came to light that the victim had been watching Thompson on television prior to the rape. Incredibly, the victim appeared to have confused her memory of Thompson from the television show with her memory of the rapist. n218 Again, memory had committed a virtually unthinkable error.

Such confusions are far from rare. A number of similar cases have been reported, each sharing in common an encounter between the victim and the accused outside the context of the crime. Later, failing to accurately recall the source of their memories of the accused, the victims nevertheless felt a lingering strong sense of familiarity with the accused that misled them into erroneous identification of the accused as the perpetrator.

[*1517]

1. Scientific Evidence of Unconscious Transference

This process of "unconscious transference" has been demonstrated experimentally specifically in the eyewitness context in at least two ways. First, some research has directly examined the potential for innocent but familiar persons to be misidentified as the perpetrator of a crime. Generally, subjects in these studies are exposed to a crime (or other incident). For some subjects the innocent person is present during the crime, but is not the perpetrator. For other subjects, the innocent person is not present at all. At varying later intervals, subjects are asked to inspect a line-up that includes the innocent person. Several such studies have found that the innocent person is more likely to be identified as the perpetrator if (s)he was present at the scene of the crime (incident) than if (s)he was not. Thus, the rate of false identification is increased by the presence of an innocent but familiar person. n219 15581 Page 48 66 J. Air L. & Com. 1421, *1517

2. Who Said What?

Generally, studies described as concerning "unconscious transference" have addressed confusion of one person's behavior with that of another. However, some studies have addressed the tendency to mistakenly attribute one person's statements to another. This research has shown that confusion of the source of statements tends to occur for people perceived as belonging to the same salient social category. For example, the statements of those forming a minority in social groups are more frequently confused than those in the majority. Justice Ruth Bader Ginsburg, for example, noticed that she tends to be confused with Justice O'Connor by attorneys addressing the Supreme Court. n220 Similarly, source errors for statements are more likely to occur [*1518] between members of the same race than between those of different races. Highly prejudiced people for whom race is a more salient social category show greater tendency to confuse within race sources than those low in prejudice. n221

c. Biased Identification Procedures

Unconscious transference has also been shown to create false identifications in police line-ups. For example, studies of identification procedures have shown that innocent persons who were present in mug books are often misidentified during a line-up procedure. n222 This is presumed to occur because the person's face is familiar to the witness from the context of looking at mug shots. The witness then confuses the source of the person's familiarity and concludes that the person is the perpetrator.

John Shepherd n223 recommended that if one witness identifies a suspect from a mug-shot array, other witnesses should attempt the line-up identification if possible. This would avoid a line-up identification that resulted inappropriately from familiarity with the suspect strictly from exposure to his or her picture in the mug book rather than from the scene of the crime. A number of other problems with eyewitness identification procedures have been identified. n224

d. Effects of Pre-Trial Publicity: Is This Real or Did I See It on TV?

Many cases, particularly those involving multiple victims, highly unusual events, high profile parties, or dramatic, interesting crimes, find their way into the mass media long before they appear in court. Media accounts include many details of the event, the parties involved, speculations regarding the causes, motives, consequences, and so on. They often show pictures of [*1519] the scene, the victims, accused perpetrators and much more. Both the TWA 800 crash and the Dutch El Al crash provided excellent real-life demonstrations of the power of the media to shape memories both among witnesses to the original event and among later consumers of media portrayals. Hans Crombag's n225 study of memories of the El Al crash showed that verbal descriptions in media accounts can create elaborate, subjectively real and compelling pseudo-memories of seeing the physical event. The witness accounts of the TWA crash illustrated the power of media accounts to influence reconstructive memory processes. "Hindsight" and "retrospective" biases caused witnesses to reconstruct memories of what they saw in the sky to fit the missile theory of the explosion that had permeated press accounts for over a year. n226

Social science research has clearly demonstrated the biasing effects of exposure to pre-trial publicity. Most of this research has focused on potential effects on jurors, primarily with regard to criminal trials. Generally, it has been demonstrated that the more people know about a case, the more likely they are to presume the defendant guilty even when they claim to be impartial, n227 and the more jurors know about a case, the more likely they are to vote for conviction. n228 The biasing impact of such publicity is even more powerful when the news is seen on television rather than in print. n229

Such demonstrations show clearly that beliefs are influenced by information acquired from the media among those who hear about the event from secondary sources. The media present far more incriminating information than exculpatory information. Thus, not surprisingly, those who are exposed to it tend to presume guilt. 15580 Page 49 66 J. Air L. & Com. 1421, *1519

What about the effects on witnesses who watch and read all of the same reports of the incident as the potential jurors? Again, source confusion plays a crucial role. Witnesses may confuse the face of a suspect presented on television with that of the real [*1520] perpetrator. They may become more confident of their memory as a result of hearing their own or others' reports presented on television. They may hear reports of events or descriptions of persons they did not directly witness and later "remember" these memories as if they were their own. They may hear that a suspect is in custody and therefore assume (s)he is in a line-up they later inspect.

Just as in the case of unconscious transference, the information or person becomes "familiar" because the witness did see or hear it somewhere (in this case in media reports). This feeling of familiarity is later confused with actual memory of personally witnessing the event or of personally observing the information or evidence in question. In addition, the media can have direct persuasive effects, giving the witness confidence that the evidence reported is true or that the suspect presented is the actual perpetrator.

The tendency of media accounts to directly persuade and to create source confusion among witnesses can carry a double whammy. When it offers potentially unreliable post-event reports, media coverage may simultaneously present false information to the witness, causing the witness to later remember it as if (s)he had personally witnessed it and present information that the witness at first discounts as incredible, but later finds persuasive.

Persuasion research has shown that we are typically sensitive to the expertise, knowledgeability, and trustworthiness of the source of information when we first hear it. We are more likely to believe those that are more credible and trustworthy than those who are not.

This crucial ability to distinguish information likely to be true from information likely to be false is compromised, however, by another failure of source monitoring termed source dissociation. This term refers to the situation in which a person does remember information (s)he has heard but forgets where it came from. Source dissociation tends to occur with the passage of time so that we later become more persuaded by information coming from a low-credibility source. We tend to forget that the source lacked credibility and consequently forget to discount the information. n230

[*1521] Generally, research has shown that we have a bias toward believing in the truth of what we hear, and that it takes more cognitive effort to disbelieve than to believe. n231 Thus, particularly when we fail to remember source cues that would cast doubt on the truth of particular information, we will tend to accept it as truth. n232 Thus, source dissociation leads to a general failure in witness ability to accurately report where information has come from and in their ability to remain unaffected by unreliable information.

e. The Misinformation Effect

The power of suggestive questions has been illustrated in Elizabeth Loftus's classic studies on (mis)leading questions. In some of her early studies, she showed that (mis)leading questions can cause witnesses to falsely remember seeing a yield rather than a stop sign, a conspicuous barn in a bucolic scene that actually contained no buildings at all, broken glass and tape recorders that were not present, a white instead of a blue vehicle in a crime scene, incorrect colors of objects, curly rather than straight hair, and Minnie Mouse when they actually saw Mickey Mouse.

In other studies, Loftus and her colleagues showed that the language of the questions asked may shape reports of events. For example, when asked how fast a car was going when it "hit" versus when it "smashed into" another car, subjects gave higher estimates of speed when the wording "smashed into" was used. Later, they were also more likely to report having seen broken glass (since this occurs more often with higher speed collisions). Thus, these studies showed that (mis)leading questions can lead people both to add things to their memories and to alter memories of those things they did see. n233

Misleading questions tend to induce the greatest distortion when introduced after a delay rather than immediately after the [*1522] event, n234 when the wording of the misleading question is more definite (e.g., "Did you see the stop 15579 Page 50 66 J. Air L. & Com. 1421, *1522

sign?" versus "Did you see a stop sign?"), n235 when encountering or retrieving suggested information under conditions of limited attentional resources, n236 and when the source of the misleading information is of high status or apparently unbiased. n237

Misleading information also creates more distortion among children than adults, n238 for peripheral rather than central detail, n239 for more poorly remembered information, n240 and when it is subtle rather than blatant. n241 On the other hand, less distortion is observed for negative information with high personal significance. n242

Nevertheless, in the years since Loftus's original demonstrations of the misinformation effect, research has shown how (mis)leading questions can cause a person to develop false memories of much more dramatic incidents, including incidents involving the self as well as others. For example, this process has been illustrated by studies on child witnesses. In these studies, children are first subjected to an event about which they are later questioned in a leading and repetitive fashion (including repeated leading and suggestive questioning about an aspect of the event that did not happen). Many of the children will later report that the suggested events did occur. Thus, although it may be debated whether actual memory or simply the report of the [*1523] event is altered, clearly the process of questioning alters the witness' testimony.

In one experiment, for example, Stephen J. Ceci and his colleagues n243 asked preschool children about some everyday events that had actually occurred and others that had never happened (as verified by the children's parents). In one of these, the "mousetrap" incident, they asked children to recall when they "got a finger caught in a mousetrap and had to go to the hospital to get the trap off." For the next ten weeks, the interviewer repeatedly asked children to think hard about the incidents and try to visualize them.

At the end of the ten weeks, children were asked, "Tell me if this ever happened to you: Did you ever get your finger caught in a mousetrap and have to go to the hospital to get the trap off?" Over half of the children "remembered" at least one of the made-up incidents. More astonishing was the richness and fabricated detail of the false memories. The children included long descriptions of what led up to the finger getting caught, detailed descriptions of the hospital personnel and procedures, how they got there, and incidents that happened on the way, among others.

Clearly, misleading questioning can lead to autobiographical confabulations in children. n244 They can also result in false reports of recent everyday events. Leichtman and Ceci found that a visitor to their school could mislead children into false reports of a number of behaviors. A number of other studies have found similar results. n245

Although some may question the extent to which children may be misled, both the real-life cases of fantastic confabulations in preschoolers and the hundreds of studies of the suggestibility of children's memories have shown beyond doubt that children can be misled into false reports of events both mundane and bizarre. Such false memories are likely the result, in part, of impaired source memory. n246

In fact, studies of source monitoring in children have shown that compared to older children and adults, younger children [*1524] are less able to accurately identify the source of suggested information, n247 are more likely to confuse actions they did perform with those they only imagined performing, n248 and make more errors in source monitoring when confronted with similar rather than dissimilar sources. n249 Although both children and adults are more susceptible to source confusion with similar than dissimilar sources, children are more susceptible.

Nevertheless, adults are not immune to source monitoring difficulties, and may also be led to falsely report autobiographical memories. Loftus n250 succeeded in implanting a memory of being lost in a shopping mall as a child among college students. In this study, the "misinformation" came from the researchers, who gave subjects a description of an incident in which they were supposedly lost in a mall for an extended period, became upset and cried, and were comforted by an elderly woman. The descriptions supposedly came from the subjects' parents. The parents, however, had verified that the incident had never occurred.

Subjects were asked to write as much as they could recall about the incident that never was. Later, in follow-up 15578 Page 51 66 J. Air L. & Com. 1421, *1524

interviews, subjects were asked to report as much detail about the incident as they could remember. Fully 25% of their subjects falsely "remembered" having been lost in the mall, and many provided very detailed descriptions of the event, including much detail not included in the original suggested event. Similar results were obtained for other implanted childhood events. n251

Some evidence suggests that the ability to "implant" memories may depend on the plausibility of the events suggested. n252 Similarly, Kathy Pezdek and C. Roe n253 found that it is easier to [*1525] change or distort memory for something that did occur than to implant memories for something that did not occur.

Further, it is possible to introduce "resistance" to the effects of misleading interviews. Witnesses who are warned, for example, of the potential for incorrect information are less affected by it, n254 with more explicit warnings being more effective. n255

f. Coercive Interrogations/Interviews

Perhaps the most startling demonstrations of the power of suggestive questions to elicit false memories are those of the ability of coercive interrogation to elicit false confessions. These demonstrations have shown that people can be led to falsely remember or least report their own past behavior, even to the extent of falsely remembering murder, sex abuse, or other heinous crimes.

Police interrogation techniques include two general approaches designed to encourage confession. The first is to befriend the suspect, offer sympathy and friendly advice, and "minimize" the offense by offering face-saving excuses, including blaming the victim. The second is designed to intimidate the suspect by exaggerating the charges or pretending to have damaging evidence such as fingerprints or an eyewitness, leading the suspect to feel it is useless to deny the crime. n256

Such tactics can be useful in eliciting true confessions. Unfortunately, however, they are known to elicit false confessions as well. Some, of course, are knowingly false, perhaps the result of exhaustion and desperation to escape further pressure or abuse from the police. Others, however, occur because the witness becomes genuinely convinced (s)he committed the crime.

The first step toward is often false belief. A person who does not remember committing a crime or believe (s)he committed the crime may nevertheless become convinced [*1526] of his or her own guilt through the constant pressure and false claims of proof provided by police. Faced with seemingly convincing evidence of guilt, the person first begins to believe (s)he committed the crime, then begins to picture doing the crime, and finally, the person "remembers" having done it.

1. The Inextricable Relationship Between Memory and Belief

"Memories are beliefs about what happened, and beliefs are constructed from, and reinforced by, memories." n257

Among the many stories of false confessions, perhaps the most astonishing is the story of Paul Ingram, a man accused by his two daughters of rape and a host of satanic ritual cult atrocities, including ritual sexual abuse and murders of infants. Faced with more than five months of incessant interrogation by detectives, a psychologist and a minister, Paul Ingram (chief civil deputy of the sheriff's department, chair of the local Republican party, conservative Christian churchgoing pillar of his community) confessed to sexually abusing his two daughters over a period of seventeen years. He acknowledged his role as high priest of a satanic cult involved in ritual sodomy, murder, dismemberment, and cannibalization of infants. n258 How could Ingram confess and believe that he committed such outrageous acts if they 15577 Page 52 66 J. Air L. & Com. 1421, *1526

never occurred? A close analysis of the case revealed the crucial role of belief throughout.

The case began when one of Ingram's daughters attended a revival where another participant, Karla Franko, held the participants in thrall with reports of her many "visions." The meeting was highly emotional and had produced a number of "visions" related to abuse, as well as sudden revelations among other participants. Subsequently, while praying over Ingram's daughter, Franko announced that she knew the "truth" and that Ericka, Ingram's daughter, had been abused as a child. Further, she identified the abuser as Ericka's father and said the abuse had taken place over many years. She advised Ericka to seek counseling in order to uncover the traumatic memories.

Belief first impacted this case with Ericka's assumption, based on her religious beliefs, that Franko's vision would be true. Shortly after, both Erica and her sister Julie accused their father and their two brothers of rape and long-term abuse.

[*1527] Over the next five months, Ingram was subject to repeated interrogations. At the same time, the stories his daughters told escalated from rape and abuse to ritual Satanic abuse, infant abuse, murder, and sex with dogs, goats, and witches. Furthermore, the list of accused expanded from their father to their mother, as well as to other members of the community.

At first, Ingram denied any memory of sex with his daughters or of any ritual abuse. Nevertheless, while still possessing no memory of any of the crimes of which he was accused, after the first four hours of interrogation, Paul Ingram confessed to abusing his daughters. During those four hours, the police had convinced Ingram that he committed the crime. How could they have convinced Paul Ingram that he was guilty of behaviors of which he never before imagined himself capable?

The answer lies in the power of preexisting beliefs. First, Paul Ingram believed in his daughters. He believed they were decent, honest girls who would not lie about something as serious as abuse. The police reinforced this belief by constantly asking him why his daughters would say such things if they were not true and exhorting him to help his daughters by telling the truth. In addition, the police were his friends and colleagues whom he trusted. He believed they would not try to deceive him.

Secondly, Paul Ingram believed in repression. He believed that violent criminals and sex offenders often repress memories of their crimes, unable to face the horror of what they have done. He personally witnessed such denial and apparent repression as a member of the sheriff's office. In addition, Ingram believed in Satan and in the power of Satan both to cause evil behavior and to destroy the memory of it (a belief suggested and reinforced by his family minister).

Finally, Ingram believed in the restorative power of confession. He believed the only way to find the truth was to admit his guilt. If he confessed, he believed, his memory would return. These three beliefs made Ingram willing to believe he had done what his daughters claimed he had done. All that remained was to remember.

The first step, he believed, was to confess. So, he confessed. But he described his behavior in terms of inference. Instead of saying, "I went into her bedroom," he would describe what he did with the preface, "I would have." He had no real memory--only belief in his guilt.

[*1528] The next morning, Ingram was visited by psychologist Richard Peterson, whom Ingram asked why he was unable to remember the events of which he was accused. Peterson told Ingram it is not unusual for sex offenders to repress memories of their crimes. Peterson even went so far as to suggest that Ingram had been the victim of sexual abuse as a child and that Ingram had learned to repress as a child when he had to repress his memories of his own abuse. Finally, Peterson, as the detectives and Ingram's minister had done, assured him that once he confessed to the crimes his memories would come back.

Throughout the investigation preceding his trial, Ingram remained convinced that he must be guilty and focused on trying to remember what he had done. Meanwhile, his daughters continued to change and add to their stories. Day after 15576 Page 53 66 J. Air L. & Com. 1421, *1528

day, the sheriff or others would tell Ingram of his daughters' accusations, and he would try to remember. He practiced a nightly ritual in an effort to remember, putting himself into a trance-like state where he emptied his mind of all else and tried to visualize and remember the events in which he had been told he participated. By the next day, he would provide detailed "memories" to the investigators.

Meanwhile, a similar confluence of belief, persuasion and coercive interrogation convinced Ingram's son to first believe and then "remember" that he had been raped by his father's friends and colleagues, a story he retracted within the next month. Ingram's wife was induced to confess to involvement in the abuse and to sex with the same friends and poker partners alleged to have raped Ingram's son. These colleagues, in turn, spent over a year in jail, having confessed, like Ingram, that they must have committed (and repressed) the alleged crimes if all those people said they did.

Amid the wild escalation of accusations and confession, noted sociologist Richard Ofshe was called in to consult. Unconvinced by Ingram's confessions, Dr. Ofshe n259 resolved to test their source. Having reviewed the records to date, Dr. Ofshe made up an event that had not previously been discussed (an occasion when Ingram presumably made his children have sex with one another while he watched) and told Ingram his children had reported it. As usual, Ingram at first failed to remember it. However, also as usual, Ingram began to "remember" after thinking about it and trying to remember, and eventually he produced [*1529] a three-page confession, including dialogue and great detail. n260 This time, however, there was no doubt whatsoever that the confession was false. Even his children testified that this event never happened.

Clearly, Paul Ingram was the victim of powerful forces leading to the creation of false memories. They are the same forces, some in exaggerated form, that occur in the more common suggestive interviews of police and other investigators and counselors with fact witnesses that first give the witness an idea or belief that something may be true which later becomes a "memory." Repeated suggestion, building on a foundation of readiness to believe created by already existing beliefs, motivation to find the truth, lingering doubt about what really happened, and desire to know, subtly or blatantly creates the belief from which the "memories" are finally born. Paul Ingram came to "remember" something much more strange and extreme than most, although the process that led him to it was commonplace.

Even Ingram, however, eventually understood that his "memories" were false. Once he pleaded guilty to hundreds of incidents of abuse, satanic abuse, rape, and much more, he was finally left alone with his thoughts. Soon he began to doubt the reality of his confessed deeds, and eventually recanted, too late, in court.

Paul Ingram's confessions of sexual abuse are the latest modern manifestation of the age-old relationship between core beliefs and false confessions or memories. Several hundred years ago, belief in God and the devil inspired tens of thousands to confess to witchcraft and to implicate friends, family and even animals in Satan's circle. More recently, scores of people report abductions by aliens or recovered memories of past lives. Clearly, firm belief in the possibility of such events precedes false beliefs in and later false memory of their actuality.

2. False Confessions in the Laboratory

Saul M. Kassin and Katherine L. Kiechel n261 proposed that two factors increase the risk of false confession among those confronted with coercive interrogations: (1) a suspect with unclear memory of the event in question; and (2) presentation of false evidence against him/her. The authors tested this proposition [*1530] in the laboratory by causing a computer to crash while undergraduate subjects were using it. Half were working on a fast-paced task and the other half on a slow-paced task, thereby making it more or less difficult for the subject to remember what actually happened immediately before the crash. The subjects were falsely accused of having caused the crash by hitting a key they had been specifically warned to avoid. All students at first denied the charge. However, half were confronted by a second student who had been present at the time of the crash (actually a confederate of the experimenter) who claimed to have seen the student hit the forbidden key.

As the authors expected, students were most likely to deny publicly and to later admit guilt privately when their 15575 Page 54 66 J. Air L. & Com. 1421, *1530

own memories were less clear (i.e., those who were performing the fast-based task), and when they were confronted with "evidence" that the other student saw them cause the crash.

g. Lost and Found: Biasing Aids to Memory Retrieval

Techniques commonly used as aids to memory retrieval are known to produce distortion and confabulation, but also some enhancements in true memory. Such techniques include hypnosis, relaxation and guided imagery, memory recovery groups, memory recovery "homework," and other common therapeutic techniques. The potential for memory distortion and outright fabrication through these techniques is well documented in the literature on "recovery" of memories of child sex abuse. n262

To the extent that an alleged victim or other witnesses report use of such techniques, the memories recovered through their use must be regarded with caution. It is well worthwhile to ask witnesses about the source of their memories, and whether they used any special techniques to try to help them remember what happened.

1. Efforts to Remember

When a witness experiences difficulty remembering some or all of an event, (s)he is typically encouraged to try to remember. Recommendations for how to try to remember vary from the simple instruction to "try" to a variety of memory recovery techniques as discussed below. All of these techniques share in the common instruction to think about the event. Some instruct [*1531] the subject to write down their thoughts and feelings about the event (whether or not they currently remember anything about it). Others instruct the subject to imagine or visualize the event or to concentrate on certain aspects to try to remember them better.

Although these kinds of efforts may appear to be legitimate paths to recovery of lost memories, all have been shown to increase the probability of distortion, as discussed below.

2. Direct and Indirect Suggestion

Efforts to recover memories are typically subject to both direct and indirect suggestions regarding what might have happened from police, investigators, therapists, other witnesses, friends and family, and others. The previously cited literature on the "misinformation effect" has clearly shown that suggestions can alter or fabricate memories. However, when the suggestions come in the context of memory retrieval processes (such as hypnosis, etc.), they have even greater potential to distort memory.

3. Hypnosis

Hypnosis is widely believed to be an effective aid to memory recovery among police, mental health professionals, and the general public. Over 90% of the public, for example, endorses such beliefs as: "A person can remember more while hypnotized;" "Memory works like a video camera;" or "Hypnosis improves memory." Roughly three quarters or more believe that one cannot lie while hypnotized. In other words, hypnosis is widely believed not only to increase the amount one can remember, but also to improve the accuracy of one's memories.

Unfortunately, nothing could be farther from the truth. Although people do tend to remember more while hypnotized, the additional information is just as likely to be false as it is to be true. Further, to make matters worse, hypnosis also tends to increase the subject's confidence in the accuracy of the new memories. Thus, the ratio of correct to incorrect information may actually decline even as subjects' conviction of the truth of their memories increases. n263

[*1532] By its nature, hypnosis is a state of aroused, attentive, focused concentration, including heightened imagination, and heightened sensitivity and responsiveness to social cues (including suggestion). Thus, by its nature, it enhances the subject's susceptibility to influence and suggestibility. 15574 Page 55 66 J. Air L. & Com. 1421, *1532

These external forces are enhanced by the nature of the persons who tend to be hypnotizable. Three essential ingredients characterize the hypnotic experience: (1) absorption, or the immersion in a focal experience at the expense of other aspects of the context; (2) dissociation, or the tendency to restrict conscious processing of perceptions, thoughts, memories, motor activities, or sensory experiences that are not the focus of attention (such as not feeling pain); and (3) suggestibility, or the uncritical acceptance of instructions or suggestions. Each of these ingredients is more characteristic of hypnotizable than of non-hypnotizable individuals, even when they are not under hypnosis. Thus, hypnotizable individuals are already more suggestible before they are hypnotized, and this suggestibility is further enhanced while they are hypnotized. n264

Finally, the potential for hypnosis to generate distortions in memory is enhanced by the concurrent use of other memory retrieval techniques known to create distortion on their own. These include repeated questioning, direct and indirect suggestion, age regression, and guided imagery (as discussed below). Hypnosis for the purpose of memory retrieval is, more often than not, accompanied by one or more of these additional techniques, thus magnifying the potential for each of them to create distortion.

4. Guided Imagery/Imagination

"Guided imagery" and imagination-based techniques are common to several different techniques of memory retrieval, including hypnosis, relaxation techniques, home memory exercises involving visualization, and attempts to recover memory by imagining the events sought in memory. The subject is asked to imagine the situation (s)he is trying to remember and then picture (visualize) the event. Unfortunately, both visualization and deliberate imagination have been shown to create or alter memory.

[*1533]

a. Memory and Visualization: From Seeing in the Mind to Remembering as Fact

Marcia K. Johnson's n265 source-monitoring theory suggests that the feeling of reality for memories is directly associated with sensory detail. Thus, when a person retrieves event-related information, it will more likely seem like an actual "memory" of the event itself if it includes a lot of sensory detail, such as visual imagery of the details of the event. For example, people often argue for the validity of memories of autobiographical events based on their "memory" of visual detail n266 further reported confidence in the reality of memories is associated with the level of detail. n267 Simply thinking about events, whether real or imagined, maintains the vividness of memories. n268

Unfortunately, sensory detail may come from external sources or one's own imagination and self-created visual imagery rather than from the actual event. For example, visual imagery during reading leads people to later say they "remember" seeing in a picture what they actually only read about in the text. n269 Similarly, hearing the sound associated with an object (such as the barking of a dog) leads people to later "remember" seeing a picture of a dog. n270

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b.

""

"Ten thousand different things that come from your memory or imagination - and you do not know which is which, which was true, which is false." Amy Tan, 1991 15573 Page 56 66 J. Air L. & Com. 1421, *1534

Elizabeth Loftus coined the term "imagination inflation" to refer to the process of creating or strengthening memories through imagination. n271 Subjects in her "imagination inflation" research began by reporting whether a number of life events had or had not happened to them as children. Two weeks later, they were asked to imagine several of the same events. For example, subjects who reported initially that they had never broken a window with their hand were asked to imagine a scene where this happened (including how they tripped and fell, who else was there, and how they felt when it happened). Later, in the final stage of the experiment, subjects again reported on whether they ever experienced any of the original long list of events. For each of the imagined events, imagination inflated confidence that the event had actually occurred in childhood. n272

An experiment by Johnson, Foley, Suengas and Raye n273 may help to explain why false memories of childhood can be created by imagination. They asked subjects to either think of an actual memory from childhood or to imagine the events and then to rate these remembered and imagined events on thirty-nine different characteristics. They also performed the same procedure for recent events. Results indicated that there were almost no differences between the rated characteristics of real and imagined memories for childhood events, although the memories for real and imagined recent events differed in a number of respects.

The authors reasoned that when real memories are vague and lacking in vivid detail, as when they are from the distant past or were never encoded richly in the first place, it will be easier to confuse imagined and real events. If genuine memories cannot be distinguished from false memories on the basis of vividness, richness of perceptual detail, and other contextual information, [*1535] both will seem equally real and easier to confuse, just as Amy Tan observed.

Thus, the "imagination inflation" phenomenon suggests that witnesses who are testifying about events that are not recent, that were never encoded deeply, or were without rich imaging and contextual embedding will be particularly susceptible to memory distortion or creation through the use of imagination based techniques.

Although Loftus' work has primarily addressed the issue of autobiographical memory in an effort to understand the mechanisms underlying creation of false memories of sexual abuse, other work has examined the ability of imagination to create more mundane event predictions or memories. Imagining a future event, for example, has been shown to increase the subjective confidence that the event will actually occur. n274 Those future events that are more easily imagined produce greater inflation in confidence. n275

Similarly, imagination can influence memory of a variety of events. For example, in a 1988 study, Johnson, Foley and Leach showed that if people imagine another person's voice as opposed to their own, they are subsequently more likely to claim the other person actually said those words. Further, Johnson, Raye, Wang and Taylor n276 showed that the more often something is imagined, the more likely people will later "remember" it as real, and those who are better at imagining are more likely to develop false memories than those who are poor. Other research has shown that subjects will misremember having performed actions they had only imagined themselves performing. n277 Clearly then, imagination can become confused with reality.

[*1536] This tendency can be quite dangerous in legal contexts. Memory-recovery techniques emphasizing imagination (hypnosis or guided imagery, for example) can lead to the creation of false memories in which the subject has great confidence, as illustrated in many cases of recovered memories. n278 Unfortunately, such techniques are often recommended. For example, Maltz n279 encourages clients to "spend time imagining that you were sexually abused, without worrying about accuracy, proving anything, or having your ideas make sense. As you give rein to your imagination, let your intuitions guide your thoughts." With rampant use of such techniques, the flood of accusations of sex abuse based on "recovered" memories should be no surprise.

Although false memories are often created in the context of therapeutic use of these techniques, law enforcement personnel sometimes attempt to induce suspects to engage in repeated acts of imagination of the criminal act as a means of inducing the suspect to confess. n280 In part, such imagination exercises were responsible for Paul Ingram's 15572 Page 57 66 J. Air L. & Com. 1421, *1536

confessions.

c. Age Regression

Nicholas Spanos and his colleagues n281 have developed a procedure for demonstrating how not only false, but also impossible memories may be created by the common therapeutic technique of "age regression." Subjects were misled to believe they had been born in a hospital with swinging, colored mobiles over the crib. Half were then hypnotized, age-regressed to the day after birth and asked what they remembered. The other half were led though a mnemonic procedure using age regression. They were encouraged to imagine the infant experiences and try to recreate them. The majority of subjects in each group reported "memories" of the hospital, hospital personnel and/or mobiles (95% of the imagination group and 70% of the hypnotized group).

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5. Dream Interpretation

a. Do Dreams Replay Actual Events?

Some time after his initial descriptions of the event, helicopter pilot Meyer (the witness to the TWA 800 explosion) reported to investigators that he finally "saw" what happened clearly in a dream. At that point, his description included a previously unreported detail. He added the "memory" of having seen an impact and explosion preceding the explosion of the plane itself. His dream had shown him a vision of the event much more consistent with the missile theory that had become widely publicized after his initial reports. Like many people, he believed that dreams could be exact reenactments of events we have participated in or witnessed. Armed with that belief, he confidently reported his dream version of the explosion as if it was a video recording of the actual event itself.

Sigmund Freud popularized the notion that dreams are symbolic representations of emotions, experiences and motives outside conscious awareness (the "royal road" to the unconscious). Thus, with proper interpretation, Freud argued, dreams provide the key to the unconscious mind, including "repressed" memories of actual events. n282

Modern dream research, however, has shown that the content of dreams is less symbolic than Freud believed. Dreams tend to reflect what is happening in daily life. n283 If a person is thinking about something during the day, there is a good chance the person may dream of it at night. However, the dream is simply the residue of the day's concerns and not an authentic memory of actual events. As the source-monitoring framework suggests, because dreams are high in visual imagery and often in emotion and other perceptual details, they can seem very real. This sense of reality increases the chance of confusion with a real memory.

b. Creation of False Memories Through Dream Interpretation

Clearly, dreams do not replay events exactly as they happened. Nor does dream interpretation reliably identify actual [*1538] events. Instead, research has shown that the process of dream interpretation can create false memories of events suggested by the interpretations.

Guiliana Mazzoni and her colleagues n284 have shown that bogus dream interpretations (i.e., the same interpretation given to all subjects, regardless of the dream reported and with no reason to believe the interpretation applied to each subject) can lead to false memories for mildly traumatic suggested events.

Since Freud developed his theory of the unconscious and characterized dreams as the "royal road" to the unconscious mind, dream interpretation has been pervasive as a clinical tool, including as a tool for recovery of "repressed" memories. However, dream interpretation can be a suggestive enterprise. As Mazzoni's work clearly demonstrated, incorrect suggestions or interpretations offered by therapists may lead to the development of false memories and beliefs. Although in most legal cases one cannot separate the influence of the many memory recovery 15571 Page 58 66 J. Air L. & Com. 1421, *1538

techniques (since they tend to be used conjointly), dream interpretation has been among the techniques used in most cases of recovered memories of sex abuse, n285 many later recanted.

h. Brain Damage and Source Amnesia

In some witnesses, susceptibility to source-monitoring errors is increased by injury. Source-monitoring errors are common, for example, among patients with some patterns of brain damage. n286 In the extreme, such a patient may be able to learn new facts but be completely unable to remember the source of the information, even immediately after it is encountered. Patients without general amnesia who have damage to specific areas of the frontal lobes tend to show greater susceptibility to source amnesia. n287 Such injuries can also be associated with extensive [*1539] false recollections of events that did not occur or could not occur. n288 Such imagined events are called confabulations. More generally, right frontal lobe injuries appear to interfere with the ability to distinguish actual memories from convictions that something happened coming from another source, such as post-event publicity, conversations with others, or inferences based on other knowledge and expectations. n289 In fact, some of the most severe cases of confabulation come from patients with both medial-temporal and frontal damage. n290

Since head injuries and brain damage are common among accident victims of all types, it is important to consider the potential effects of any head injuries on memory, including susceptibility to source-monitoring errors. Those with increased susceptibility to source confusion will also be more susceptible to the common errors of witness memory resulting from failures of source monitoring.

i. Source Monitoring Problems in the Aging Witness

"When I was younger, I could remember anything, whether it had happened or not; but my faculties are decaying now, and soon it shall be so I cannot remember any but the things that never happened." Mark Twain

Ever the astute observer of human nature, Mark Twain noticed in himself the now well-documented later-life difficulties in source monitoring. Noted memory researcher Henry Roediger recently summarized the documented vagaries of memory in old age as follows: "Aging and Alzheimer's disease are a kind of double-edged sword. You are less likely to remember things that really did happen to you but you're more likely to remember things that never happened to you." n291 Perhaps already suffering the early devastations of Alzheimer's, Ronald Reagan provided a dramatic example of source dissociation on 60 Minutes during the 1980 presidential campaign. Repeatedly telling the story of a World War II bomber pilot who ordered his crew to bail out of his damaged [*1540] plane while he remained behind with a young belly gunner who was too injured to jump, Reagan tearfully quoted the heroic pilot who told his crew, "Never mind. We'll ride it down together." Reagan forgot, as the press soon discovered, that his story actually came from a scene in the 1944 film A Wing and a Prayer. While Reagan's error was doubtless much more noticeable than most, it was typical of source-monitoring errors common among the elderly, whether suffering from incipient Alzheimer's or not.

An understanding of the causes of age-related declines in memory functioning has accelerated exponentially with the advent of modern brain-imaging technology. n292 Research employing brain-imaging techniques has shown that normal aging is, on the average, associated with neuropathology in medial-temporal and frontal regions of the brain. n293 Just as patients with damage to these areas suffer from source-monitoring difficulties, so do many older adults.

Older adults are less likely to remember contextual features of events such as the speaker, the color or type style of stimuli, the location of items, the origin of trivia facts, or whether something was seen in a video or a photograph. n294 They are less able to remember who told them something and less able to remember what information they are supposed to keep secret and what they are not. n295 They are somewhat less able to remember the gist of an event and 15570 Page 59 66 J. Air L. & Com. 1421, *1540

much less able to remember the specific actions comprising the event. n296

Older adults are particularly susceptible to false memories of having seen something that is suggested by the features of what they did see. They are more likely than younger adults to falsely believe they have seen or heard words, for example, that are semantically related to words they did see or hear or that rhyme with those that were presented.

One study specifically addressed the susceptibility of older adults to the "misinformation effect." Gillian Cohen and Dorothy Faulkner n297 showed a videotape of a kidnapping to older and younger adults. Later, half of each group read a written summary [*1541] of the event that contained misinformation, and the other half read an accurate summary. Older adults were more influenced by the misinformation than younger adults, frequently claiming that the misinformation had been part of the original videotaped event.

Further, the reasons underlying these source confusions include both the manner of encoding and difficulties in retrieving. Medial-temporal impairments appear to compromise the richness with which event memories are bound to contextual information during encoding, whereas frontal regions are more important for later retrieval and source attributions. n298 Thus, source-monitoring difficulties have been shown to be greater among older adults with medial-temporal and/or frontal dysfunction with poorest performance among those who suffer from both. n299 Memory for sequence depends upon frontal regions and accordingly becomes increasingly impaired with age.

Age appears to impair the richness of the images encoded at the time something is witnessed. Thus, when asked to recount recent episodes, older adults report less "visual reexperiencing" of the event than younger adults. They tend to offer descriptions that are relatively sketchy and incomplete while still feeling certain the event occurred. n300 When retelling a story recently heard for the first time, older adults recalled less of the story than younger adults, told it less cohesively, and made more errors in retelling the story. n301

Common stereotypes suggest that the memories of elderly eyewitnesses may be inaccurate and tend to obstruct police investigations. n302 Jurors share these concerns. n303 In fact, as compared to younger adults, older adults provide less accurate and [*1542] less complete eyewitness reports, n304 make more errors, n305 and experience more difficulty in face recognition under some circumstances. n306

Older adults are also more susceptible to the effects of distraction on memory apparently as a result of the effects of age-related declines in dopamine receptors on the functioning of . Thus, already impoverished encoding may be further impaired by distractions or other failures of attention. n307

Schacter n308 suggested that this impoverished encoding may be responsible for the age-related decline in the incidence of "flashbulb" memories. n309 He noted that a flashbulb memory, by definition, includes details about its source. Age-related declines in richness of encoding provide less contextual information to help the person retrieve the memory.

Advancing age may also alter the criteria by which we judge the reality of a memory. For example, both older and younger people judge the reality of a memory in part on the basis of how clear it seems. As noted earlier, however, older adults tend to encode less detail. Remembering fewer details of recent experiences, the elderly may rely more on general feelings of familiarity to judge whether something happened or not. n310 Older people give greater weight than younger people to the emotional power of memories when judging their validity. n311 Marcia Johnson and Carol Raye n312 suggest that older adults may require less perceptual information to convince them a memory is real, [*1543] but may weight emotional detail more heavily because they find the emotional aspects of events more interesting.

As we continue to learn more about the interrelationships of memory and brain function, further age-related changes in the functioning of memory will no doubt be identified. Meanwhile, it is important to consider age when evaluating the potential for post-event contamination of witness memory. Both the extremely young and the extremely old will tend to suffer greater distortions from failures of source monitoring. In the elderly, problems of source monitoring will vary greatly in magnitude as a function of declines in brain function. Thus, while being aware of the 15569 Page 60 66 J. Air L. & Com. 1421, *1543

potential for impaired memory, one should not assume all elderly will suffer such declines.

3. Minimizing Bias Through the ""

Investigative interviewing tends to be both leading and coercive in nature (and sometimes hostile). For example, one analysis of a large number of police interviews was found to contain, on the average, only three open-ended questions. n313 Further, if a witness began to give narrative responses, they were interrupted within an average of 7.5 seconds. Generally, police and investigators tend to ask too many closed-ended questions and too few open-ended questions, to interrupt the witness in the middle of narrative accounts, to ask questions in a predetermined order without regard for continuity for the witness's report, and to ask leading and suggestive questions.

Based on this and other analyses of police interviews, Ronald Fisher and Ed Geiselman began to apply psychological knowledge to develop interviewing techniques that would maximize both the quantity and quality (accuracy) of witness reports. n314 Among their recommendations are the following:

First, the interviewer must try to encourage the witness to have the motivation to report what (s)he knows and give the witness the opportunity to tell everything (s)he knows. To do this, the investigator should develop rapport with witnesses and allow them to talk openly and freely without interruptions. Closed-ended questions should be kept to a minimum. Instead, open-ended and non-suggestive questions should be used, and [*1544] the witness should be allowed plenty of time to complete answers without interruption.

Second, the cognitive interview is designed to incorporate principles of memory and retrieval that will help the witness remember without distorting the memories in the process. To facilitate retrieval of difficult or traumatic memories, the interviewers should conduct the interview at a slow pace and ask few, primarily open-ended, questions.

When the witness has difficulty remembering a particular detail, a trained cognitive interviewer will be able to provide non-distorting memory aids. These include reminding the witness of other features of the event known to be accurate or encouraging the person to begin to recall through many different retrieval pathways (or starting points). A trained cognitive interviewer will also attempt to understand the witness and how that witness thinks about the event so that (s)he will be able to ask questions that will be most helpful to the specific witness. Finally, the interviewer will make use of other means of expressing memories, such as sketching figures or scenes.

The cognitive interview has been tested in many laboratories against more traditional interviews, and has elicited between 35% and 75% more information without increasing incorrect responses. n315 Two field studies with real witnesses mirrored those of the laboratory studies with 55% and 35% increases in the amount recalled. n316

The success of the cognitive interview is encouraging. However, it remains to induce police and other investigators, as well as therapists and others who interview witnesses, to conform to similar practices.

VIII. HOW CAN THE MEMORY EXPERT HELP?

Memory experts can be of assistance to attorneys either as expert witnesses to explain basic memory processes and the circumstances under which memory tends to fail to the jury, as damage experts, or as consultants to help the attorney prepare for trial.

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A. Testimony as an Expert Witness

1. To Provide Context For Jury Evaluation of Witness Accuracy

The most common use of memory experts has been to provide understanding to the jury of how memory works and 15568 Page 61 66 J. Air L. & Com. 1421, *1545

how and under what circumstances it might fail. Most frequently, this has occurred when an eyewitness has identified a suspect as the perpetrator of a crime. The memory expert is asked to explain to the jury: (a) that eyewitness testimony is less reliable (in general) than jurors tend to assume; and (b) the nature of witness, event or post event factors that tend to be associated with more or less accurate memory. n317

2. To Provide Context For Jury Understanding of Traumatic Failures of Memory

Memory experts have also been called to provide understanding of trauma-induced failures of memory in order to provide the context for evaluation of a victim's testimony. For example, testimony regarding "rape trauma syndrome" n318 might be offered to explain the victim's failure to remember details of the event or to explain inconsistencies in her memory. The testimony is offered to explain to the jury that some failures in memory or inconsistencies do not reflect general inaccuracy in the rest of the reported memories. Long-term memory deficits in victims of prolonged stress, such as in victims of child sex abuse or in war veterans, may also be addressed and explained to support claims of liability.

3. To Support or Question Claims for Damages

Memory experts may be of use to provide expert testimony either in support of claims of damages or to question them.

a. To Support Claims for Damage to Memory

Modern neuroscience has progressed exponentially in understanding the physiological bases of memory. Each day, more is learned about specific brain processes and structures involved in [*1546] and necessary for memory processes. In part, this understanding includes: (1) how psychological trauma can temporarily or permanently affect the structure and functioning of the brain and (2) how physical damage to the brain affects memory.

1. Long Term Effects of Psychological Trauma and Stress on Brain and Memory

Severe trauma and/or prolonged stress has recently been shown to permanently alter brain structure and function. For example, recent imaging studies have shown deficits in hippocampal volume both in subjects with PTSD (which would be expected in most victims of aviation disasters) and in women exposed to abuse in childhood. Others have shown deficits in other areas of the brain (for example, in cortical functioning). These areas of the brain are crucial to memory processes. Even long-term stress in the absence of trauma can compromise memory functioning. n319

Thus, memory experts may be of assistance through testimony regarding the damage to memory that can result from psychological trauma, explaining both the potential extent of damage to memory and the effects of trauma on the brain that underlie declines in memory functioning.

2. Long-Term Effects of Brain Injury on Memory

Both medical/biological and psychological investigators have begun to provide great understanding of the relationship between the brain and memory. n320 Thus, where the nature of brain damage can be specifically established, memory (or generally, neuroscience) experts can provide testimony regarding the impact of specific brain damage on memory as well as other cognitive functions.

Interestingly, although such testimony tends to be offered more frequently in support of claims of damage in cognitive functioning, it can also be useful to dispute such claims when the nature of the damage claims are inconsistent with the nature of the brain damage. In other words, depending upon the precise injuries and claims involved, modern knowledge of the relationship of brain injury to cognitive dysfunction can aid in the detection of false damage claims.

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b. To Question Claims for Other Damages 15567 Page 62 66 J. Air L. & Com. 1421, *1547

"Since my past only truly exists in the present and since my present is always in motion, my past itself changes too - actually changes - while the illusion created is that it stays fixed." n321

Plaintiffs and those close to them must provide accounts of the changes in physical and mental functioning, work, family relationships and lifestyle in support of their damage claims. Memory experts may be of use either to testify regarding common distortions in reports of behavior changes and functioning or to help the attorney identify and understand this potential.

The very nature of autobiographical reports of change requires both accurate memory for the past and accurate understanding of the present. In fact, both are problematic.

Memory of the past is often inaccurate. As discussed previously in the sections on constructive and reconstructive memory processes, memory for the past can be distorted, among other things, by current motivations and beliefs. In fact, both memory for the past and perceptions of the present are distorted by many factors, including self-serving motivations. Anthony G. Greenwald, n322 in an article entitled "The Totalitarian Ego: Fabrication and Revision of Personal History," argued that personal history, similar to the revisionist historical practices of totalitarian regimes, is continually revised in light of current motivations. Subsequent research has clearly demonstrated that current motivations can bias autobiographical memory. n323 The motivations activated by a lawsuit and desire to prove damages clearly provide a significant source of potential distortion.

However, other factors present for most plaintiffs may similarly distort memory for changes in behavior and functioning. For example, causal schemas, referring to implicit theories about what causes what, have been shown to distort autobiographical memory. n324 If a plaintiff or those close to him or her, including treating experts, believe that an injury of the sort sustained by the plaintiff is likely to cause effects such as changed personality, loss of memory, changes in sexual functioning, and so on, such [*1548] a belief will tend to cause memories of the plaintiff's condition or behavior to be distorted to indicate better functioning than actual before the injury and worse functioning than actual after the injury. The witness may be an "honest liar" in this respect, as people are generally subject to the distorting effects of expectations based on causal schemas and honestly believe in the changes they perceive. n325

Reports of patterns of behavior, as opposed to specific incidents, are also subject to error. Michael Ross, a noted expert on autobiographical memory, illustrated this problem in the description of his attempt to respond to a survey on health and lifestyle. Just as plaintiffs are often asked these types of questions, he was asked how many hours per week, on average, he had spent on various activities and how frequently he had eaten various foods in the past year and during different preceding periods of his life. He was also asked to report current as opposed to previous personal characteristics such as weight.

Noting that he found these questions very difficult to answer, Ross n326 went on to address the reasons for his difficulty. He pointed to the fact that such questions cannot be answered by simple retrieval of stored memories. Few people have stored the frequencies with which they engage in activities or eat particular foods. Such answers have to be constructed from other memories that can be brought to mind in combination with attempts to somehow mathematically average them across time.

Also, consistent with research on the "retrospective bias," Ross noticed that his memory and certainly his reports were colored by the desire to report what he knew he should have been doing. His answers were "constructions, reflecting his beliefs, preferences, and guesses, as well as his retrieval of stored memories." n327

As Ross' problem answering his lifestyle questionnaire illustrates, it is generally very difficult for people to 15566 Page 63 66 J. Air L. & Com. 1421, *1548

accurately report on patterns of behavior, whether past or present. This problem commonly plagues research on medical issues regarding diet, lifestyle, and health and plaintiff reports of damage alike.

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B. Consultation

1. Providing Understanding of Potential for Errors of Memory/Perception

Memory experts are sometimes hired to explain the circumstances under which memory will tend to be inaccurate in order to help the attorney evaluate the testimony of witnesses for his or her case. This assistance may help the attorney to identify witnesses who may be partially or wholly inaccurate about what they remember. The attorney may then decide whether to retain a memory expert to testify to the jury regarding the potential pitfalls in memory.

2. Preparation for Cross Examination of Witnesses

Finally, once potentially inaccurate witnesses are identified, the attorney may retain a memory expert to assist with the preparation of cross-examination of those witnesses. A number of points regarding the potential for inaccuracy may be made through cross-examination without the necessity of expert testimony. The memory expert might write a script for cross-examination in order to express the potential for distortion clearly.

Legal Topics:

For related research and practice materials, see the following legal topics: EvidenceScientific EvidenceRepressed MemoriesEvidenceTestimonyGeneral OverviewTortsTransportation TortsAir TransportationGeneral Overview

FOOTNOTES:

n1. John McKeen Cattell, Measurements of the Accuracy of Recollection, in Science 761-766 (1895).

n2. Daniel L. Schacter, Searching for Memory: The Brain, The Mind, and The Past 7-8 (1996); Daniel L. Schacter, The Seven Sins of Memory: Insights from Psychology and Cognitive Neuroscience, 54 Am. Psychologist 182 (1999).

n3. Schacter, The Seven Sins of Memory, supra note 2, at 182.

n4. Paul J. Eakin, Autobiography, Identity, and the Fictions, in Memory, Brain, & Belief 290, 291 (D.L. Schacter & Elaine Scarry eds., 2000). 15565 Page 64 66 J. Air L. & Com. 1421, *1549

n5. & Maureen O'Sullivan, Who Can Catch a Liar?, 46 Am. Psychologist 913 (1991).

n6. Arye Rattner, Convicted but Innocent: Wrongful Conviction and the Criminal Justice System, 12 Law & Hum. Behav. 283, 289 (1988).

n7. Barry Scheck et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 73 (2000).

n8. Edward Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial 24 (1996); Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav. 603, 605 (1998).

n9. See Wells, supra note 8, at 606-608.

n10. See Scheck, supra note 7, at 73.

n11. See generally Kenneth A. Deffenbacher & Elizabeth F. Loftus, Do Jurors Share a Common Understanding Concerning Eyewitness Behavior, 6 Law & Hum. Behav. 15, 26 (1982); Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal 75 (1987); Peter N. Shapiro & Steven Penrod, Meta-Analysis of Facial Identification Studies, 100 Psychol. Bull. 139 (1986); Gary L. Wells & Elizabeth F. Loftus, Eyewitness Testimony: Psychological Perspectives 87 (1984); Kipling D. Williams et al., Eyewitness Evidence and Testimony, in Handbook of Psychology and Law 141 (Dorothy K. Kagehiro & W. S. Laufer eds., 1992).

n12. John C. Brigham & Melissa P. WolfsKeil, Opinions of Attorneys and Law Enforcement Personnel on the Accuracy of Eyewitness Identifications, 7 Law & Hum. Behav. 337, 344 (1983); Deffenbacher & Loftus, supra note 11, at 19-21; Manson v. Brathwaite, 432 U.S. 98, 114-116 (1977); Neil v. Biggers, 409 U.S. 188, 199-200 (1972); A. Daniel Yarmey & Hazel P. Jones, Is the Psychology of Eyewitness Identification a Matter of Common Sense, in Evaluating Witness Evidence 13 (S. Lloyd-Bostock & B.R. Clifford eds., 1983).

n13. John C. Brigham & Robert K. Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of 15564 Page 65 66 J. Air L. & Com. 1421, *1549

Eyewitness Identifications, 7 Law & Hum. Behav. 19, 28 (1983); S.G. Fox & H.A. Walters, The Impact of General Versus Specific Expert Testimony and Eyewitness Confidence Upon Mock Juror Judgment, 10 Law & Hum. Behav. 215, 224-25 (1986); R.C. Lindsay et al., Can People Detect Eyewitness Identification Accuracy Within and Across Situations? 66 J. Appl. Psychol. 79 (1981); Gary L. Wells & Michael R. Leippe, How Do Triers of Fact Infer the Accuracy of Eyewitness Identifications? Using Memory for Peripheral Detail Can Be Misleading, 66 J. Appl. Psychol. 682 (1981).

n14. R. C. Lindsay et al., Mock Juror Belief of Accurate and Inaccurate Eyewitnesses: A Replication and Extension, 13 Law & Hum. Behav. 333, 336-37 (1989); Lindsay, supra note 13, at 79; Gary L. Wells et al., The Tractability of Eyewitness Confidence and Its Implications for Triers of Fact, 66 J. Appl. Psychol. 688 (1981); Wells & Leippe, supra note 13, at 682; Gary L. Wells et al., Accuracy, Confidence, and Juror Perceptions in Eyewitness Identification, 64 J. Appl. Psychol. 440 (1979); Gary L. Wells et al., Effects of Expert Psychological Advice on Human Performance in Judging the Validity of Eyewitness Testimony, 4 Law & Hum. Behav. 275, 282-83 (1980).

n15. Brian L. Cutler et al., Juror Sensitivity to Eyewitness Identification Evidence, 14 Law & Hum. Behav. 185, 188-190 (1990); Brian L. Cutler et al., Juror Decision Making in Eyewitness Identification Cases, 12 Law & Hum. Behav. 41, 48-51 (1988).

n16. Brian H. Bornstein & Douglas J. Zickafoose, "I Know I Know It, I Know I Saw It": The Stability of the Confidence-Accuracy Relationship Across Domains, 5 J. Exp. Psychol. Appl. 76 (1999); Robert K. Bothwell et al., Correlation of Eyewitness Accuracy and Confidence: Optimality Hypothesis Revisited, 72 J. Appl. Psychol. 691 (1987); Peter Juslin et al., Calibration and Diagnosticity of Confidence in Eyewitness Identification: Comments on What Can Be Inferred from the Low Confidence-Accuracy Correlation, 22 J. Exp. Psychol. Learn. Mem. Cogn. 1304 (1996); Saul M. Kassin et al., The "General Acceptance" of Psychological Research on Eyewitness Testimony, 44 Am. Psychol. 1089 (1989); Saul M. Kassin, et al., The Accuracy-Confidence Correlation in Eyewitness Testimony: Limits and Extensions of the Retrospective Self-Awareness Effect, 61 J. Pers. & Soc. Psychol. 698 (1991); C. A. Elizabeth Luus & Gary L. Wells, The Malleability of Eyewitness Confidence: Co-Witness and Perseverance Effects, 79 J. Appl. Psychol. 714 (1994); Jennifer Nolan & Roslyn Markham, The Accuracy-Confidence Relationship in an Eyewitness Task: Anxiety as a Modifier, 12 Appl. Cogn. Psychol. 43 (1998); Nils Olsson, A Comparison of Correlation, Calibration, and Diagnosticity as Measures of the Confidence-Accuracy Relationship in Witness Identification, 85 J. Appl. Psychol. 504 (2000); Timothy J. Perfect & Tara S. Hollins, Predictive Feeling of Knowing Judgements and Postdictive Confidence Judgements in Eyewitness Memory and General Knowledge, 10 Appl. Cogn. Psychol. 371 (1996); Timothy J. Perfect et al., Accuracy of Confidence Ratings Associated with General Knowledge and Eyewitness Memory, 78 J. Appl. Psychol. 144 (1993); J. Don Read et al., The Unconscious Transference Effect: Are Innocent Bystanders Ever Misidentified, 4 Appl. Cogn. Psychol. 3 (1990); Michael D. Robinson & Joel T. Johnson, How Not to Enhance the Confidence-Accuracy Relation: The Detrimental Effects of Attention to the Identification Process, 22 Law & Hum. Behav. 409, 410 (1998); Vicki L. Smith et al., Eyewitness Accuracy and Confidence: Within-Versus Between-Subjects Correlations, 74 J. Appl. Psychol. 356 (1989); Siegfried L. Sporer et al., Choosing, Confidence, and Accuracy: A Meta-Analysis of the Confidence-Accuracy Relation in Eyewitness Identification Studies, 118 Psychol. Bull. 315 (1995); Gary L. Wells & Donna M. Murray, Eyewitness Confidence, in Eyewitness Testimony: Psychological Perspectives, 155 (Gary L. Wells & Elizabeth 15563 Page 66 66 J. Air L. & Com. 1421, *1549

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n25. See Neil v. Biggers, 409 U.S. 188, 199-200 (1972) (listing factors bearing on whether a line-up identification procedure was overly suggestive).

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n73. Id.

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n78. See id.

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n199. See id.

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n206. See id.

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n220. Ruth Bader Ginsburg, The New Look of Liberalism on the Court, N.Y. Times, Oct. 5, 1997, at 6 (Magazine) at 60.

n221. Kunda, supra note 53, at 46.

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n315. Ronald Fisher & M.L. McCauley, Information Retrieval: Interviewing Witnesses, in Psychology & Policing 81 (N. Brewer & C. Wilson eds., 1995). G. Kohnken et al., The Cognitive Interview: A Meta-Analysis, 5 Psychol., Crime & L. 3 (1999).

n316. Roy P. Fisher et al., Field Test of the Cognitive Interview: Enhancing the Recollection of Actual Victims and Witnesses of Crime, 74 J. Appl. Psychol. 722 (1989); R. George & B.R. Clifford, Making the Most of Witnesses, 8 Policing 185 (1992).

n317. For a review of the nature of expert testimony on eyewitness issues, and the evidence supporting its effectiveness in causing the jury to more accurately differentiate between accurate and inaccurate witnesses, see Michael R. Leippe, The Case for Expert Testimony About Eyewitness Memory, 1 Psychol. Pub. Pol. & L. 909 (1995).

n318. P.A. Frazier & E. Borgida, Rape Trauma Syndrome: A Review of Case Law and Psychological Research, 16 Law & Hum. Behav. 293 (1992).

n319. Susan J. Bradley, Affect Regulation and the Development of Psychopathology 36 (2000); Schacter, supra note 2, at 8.

n320. Schacter, supra note 2; Schacter, supra note 2, at 182. 15530 Page 99 66 J. Air L. & Com. 1421, *1549

n321. B.J. Mandel, The Past in Autobiography, 64 Soundings 75, 77 (1981).

n322. Anthony G. Greenwald, The Totalitarian Ego: Fabrication and Revision of Personal History, 35 Am. Psychol. 603 (1980).

n323. Kunda, supra note 53, at 342; Rasyid Sanitioso et al., Motivated Recruitment of Autobiographical Memories, 57 J. Pers. & Soc. Psychol. 539 (1990).

n324. Michael Ross & Anne E. Wilson, Constructing and Appraising Past Selves, in Memory, Brain, and Belief 231 (Daniel L. Schacter & Elaine Scarry eds., 2000).

n325. Sissela Bok, Autobiography as Moral Battleground, in Memory, Brain, and Belief 307 (Daniel L. Schacter & Elaine Scarry eds., 2000); Eakin, supra note 4, at 291; David Middleton & Derek Edwards, Collective Remembering (1990); Ross & Wilson, supra note 323, at 231; Rubin, supra note 157.

n326. Ross & Wilson, supra note 323, at 231.

n327. Id. 15529

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Journal of Experimental Psychology: General Copyright 1989 by lhe American Psychological Association, Inc. 1989, Vol. 118, No. 1, 100-104 0096-3445/89/$00.75

Misinformation and Memory: The Creation of New Memories

Elizabeth F. Loftus and Hunter G. Hoffman University of Washington

Misleading information presented after an event can lead people to erroneous reports of that misinformation. Different process histories can be responsible for the same erroneous report in different people. We argue that the relative proportion of times that the different process histories are responsible for erroneous reporting will depend on the conditions of acquisition, retention, and retrieval of information. Given the conditions typical of most misinformation experiments, it appears that misinformation acceptance plays a major role, memory impairment plays some role, and pure guessing plays little or no role. Moreover, we argue that misinformation acceptance has not received the appreciation that it deserves as a phenomenon worthy of our sustained investigation. It may not tell us anything about impairment of memories, but it does tell us something about the creation of new memories.

Once upon a time, a man (whom we'll call Mike) stumbled another way, entirely different process histories can lead to upon an armed robbery in a hardware store. The robber the same final response. rummaged around the cluttered store brandishing a silver Mike's erroneous report is analogous to the thousands of weapon; finally, he stole all the money. Then, almost as an erroneous reports after the receipt of misinformation that afterthought, he grabbed a hand calculator and a hammer, have been obtained in laboratory studies of the "misinfor- placing these in his satchel as he left the store. The police were mation effect" conducted in the United States, Canada, Great summoned immediately, but before they arrived, Mike talked Britain, Germany, Australia, and the Netherlands (Ceci, Ross, to another customer about the robbery. We'll call her Maria. & Toglia, 1987a, 1987b; Ceci, Toglia, & Ross, 1988; Chandler, Maria told Mike that she saw the robber grab a calculator and 1989; Geiselman, 1988; Gibling & Davies, 1988; Gudjonsson, a screwdriver, stuffing them in his satchel as he left the store. 1986; Hammersley & Read, 1986, in press; Kohnken & The police arrived, and when they questioned Mike, he re- Brockmann, 1987; Kroll & Ogawa, 1988; Kroll & Timourian, counted the robbery at some length: He described in detail 1986; Lehnert, Robertson, & Black, 1984; Morton, Hammers- the silver weapon, the money, and the calculator. When the ley, & Bekerian, 1985; Pirolli & Mitterer, 1984; Register & police asked him about a tool that they heard had been taken, Kihlstrom, 1988; Sheehan, 1988; Sheehan & Tilden, 1986; "Did you see if it was a hammer or a screwdriver?", he said, Smith & Ellsworth, 1987; Wagenaar & Boer, 1987; Zaragoza "Screwdriver." & Koshmider, 1989; Zaragoza, McCloskey, & Jamis, 1987). How did it happen that an ordinary upstanding guy like This enthusiasm for investigating the misinformation effect Mike came to remember seeing a screwdriver? (a) He might has been fueled by an abiding interest on the part of research- never have seen the hammer in the first place, and he men- ers in uncovering the mechanism that produces it. tioned the screwdriver because he remembered hearing about When the first collection of misinformation experiments it. (b) He could have remembered both the hammer and the appeared in the mid-1970s, the lesson that was being learned screwdriver, but he mentioned the screwdriver when asked from these experiments was that misleading postevent infor- because he trusted Maria's memory more than he trusted his mation can impair memory of an original event (Loflus, 1975, own. (c) He could have failed to see the hammer and failed 1977, 1979). According to the "impairment" view, Mike's to hear Maria mention the screwdriver, and he simply guessed recollection of a screwdriver came about because of the fourth about the tool when asked by the police. Last, (d) he could mechanism just cited: that his memory for the hammer had have initially had a memory for a hammer, but when Maria been altered by the misleading postevent information. The mentioned the screwdriver, his memory was altered, sup- notion of memory alteration bothered people. It challenged pressed, or impaired in some way. In fact, if there had been the prevailing textbook view that memories, once stored, are four customers in Mike's shoes that day, they might have all permanently stored; that traces once formed always survive; reported seeing a screwdriver, each for a different reason. Put and that forgetting is due to a labile retrieval system (Atkinson & Shiffrin, 1968; Chechile, 1987). In fact, at least one theory explicitly claimed that postevent information does not impair The underlying research fundamental to the arguments made here underlying memory traces; rather, it impairs only accessibility was supported by a grant from the National Institute of Mental Health. to those original memories (Morton et al., 1985). We thank G. Loftus for his helpful comments. Among the more articulate of those who were bothered by Correspondence concerning this article should be addressed to all notions of impairment were McCloskey and Zaragoza Elizabeth F. Loftus, Department of Psychology, University of Wash- (1985). They claimed that memory for an original event is ington, Seattle, Washington 98195, not impaired by misleading postevent information. According

100 15527

COMMENTS 101 to the "no-impairment view," Mike's recollection of a screw- to say that memory has been impaired? Is it the memory driver came about because of one of the first three mecha- traces themselves that are impaired, or is it our ability to nisms cited earlier: that he never saw the hammer but remem- reach those memories? bered hearing about the screwdriver, that he remembered both the hammer and the screwdriver but trusted the screw- How Much Impairment Occurs? driver information more, or that he remembered neither tool but guessed that it was a screwdriver. McCloskey and Zara- Belli (1989, Experiment 2) estimated that 32.6% of correct goza devised a test that excluded the misinformation as a responses about the event item resulted from an actual mem- possible response alternative, and they found no misinfor- ory for the item in the control condition. He estimated that mation effect. Their procedure was analogous to the police- 26% of the correct responses resulted from an actual memory man's asking Mike whether the tool he had seen the robber for the item in the misled condition, which was thus a drop steal was "a hammer or a wrench." On the basis of the of 6.6%. Although the 6.6% difference between control and observation of reasonably good reporting of the hammer, misled subjects' performances appeared on the surface to be given this "modified" test, McCloskey and Zaragoza argued rather small, Belli stressed that the impact of misinformation that it was not necessary to assume any memory impairment on actual memory was actually more substantial. When con- at all--neither impairment of traces nor impairment of access. sidering only the responses traceable to a true memory for the McCloskey and Zaragoza (1985) were right about one thing: original item, the misled subjects suffered more than a 20% When the policeman asked Mike whether he saw a hammer (6.6% of 32.6%) reduction in accuracy in comparison with or screwdriver, his answer, "Screwdriver," did not necessarily control subjects. When looked at in this way, this reduction imply that he once had a memory for a hammer and that suggests that memory impairment can be a significant source memory was now impaired. So the question now is, Does of erroneous reporting. However, this may not always be the misinformation ever produce memory impairment? Belli case. In the experiment in which Belli obtained a 20% im- (1989) says "Maybe," whereas Tversky and Tuchin (1989) pairment, the exposure time was 5 s, the interval until mis- say "Yes," on the basis of new findings involving "Yes"/"No" information was 5 rain, and the final test occurred 10 min retrieval tests, rather than the usual forced-choice recognition after that. The relative proportion of times that the different tests. Although the studies are similar in that both involved process histories cited earlier are responsible for erroneous "Yes"/"No" tests, they differed in terms of the number of reporting will depend completely on the conditions of acqui- tests concerning a critical category of item (e.g., the number sition, retention, and retrieval of information. Consider an of tests about various tools) that any individual subject re- extreme case: Mike sees a hammer; minutes later Maria ceives. More specifically, Belli's procedure is analogous to the mentions a screwdriver, and months pass before the police- policeman's asking Mike either "Did you see a hammer--yes man asks Mike, "Did you see a hammer or a screwdriver?" or no?" or "Did you see a wrench--yes or no?" (i.e., no The response of "Screwdriver" would very likely be due to subject received both questions). Tversky and Tuchin's pro- pure guessing. On the other hand, if Mike saw the hammer, cedure is analogous to the policeman's asking Mike both and months passed before Maria talked to him about a questions and, in addition, a similar question about a screw- screwdriver and the policeman questioned him, his response driver. of "Screwdriver" would very likely be due to what Belli calls In both studies, the researchers found that misleading misinformation acceptance. postevent information reduced the "Yes" responses to the question about the original item (e.g., the hammer). In both What Does It Mean to Say That studies, they found that subjects were quite good at rejecting Memory Has Been Impaired? the novel item (e.g., the wrench). Belli (1989) found that misled subjects were better than control subjects at rejecting Memory impairment could refer to a weakening of memory the novel item, whereas Tversky and Tuchin (1989) found traces, or a clouding of memory, or an intrinsic impoverish- that they were as good as control subjects. Belli never asked ment of memory. It could refer to what an earlier generation people what they thought about the misinformation item of psychologists called "unlearning" (Barnes & Underwood, (e.g., the screwdriver), but Tversky and Tuchin did. Misled 1959; Melton & Irwin, 1940) or to what a later generation subjects were more likely to incorrectly say that they had seen called "disintegration" of features (Brainerd & Reyna, 1988b). the misinformation item than to say that they had seen the Whatever the mechanism, its fading involves things that we one they actually saw. When they adopted the misinformation currently cannot see or touch but can only infer from behav- item as their own memory, they did so with a high degree of ior. confidence, which is not something that one would expect Another potential form of interference has been called from people who are merely guessing. source misattribution (Lindsay & Johnson, 1987). The idea The collection of experiments seem to be teaching us an here is that there is access to the postevent item but confusion important lesson: When people do not have an original mem- regarding its origin. Although appealing at first glimpse, the ory, they can and do accept misinformation and adopt it as notion of source misattribution has been tossed around; not their own memory. However, it also appears that misinfor- much thought has been given to what it really is in the context mation can sometimes impair an otherwise accessible original of exposure to misinformation. memory. But this conclusion leaves us with many unanswered Belli (1989) argues that memory impairment and source questions. How much impairment occurs? What does it mean misattribution hypotheses have one thing in common: the 15526

102 COMMENTS notion that misleading information interferes with the ability Tversky and Tuchin (1989), in a related vein, asserted that to remember an original item. He combines these hypotheses, specific claims about the retroactive alteration of memory referring to them collectively as misinformation interference traces cannot be addressed, given current knowledge and hypotheses, and then distinguishes them from misinformation tools. We believe that the future "knowledge and tools" may acceptance hypotheses (in which no interference is assumed). involve the discovery of new neurobiological facts, but strong He eventually concludes that some misinformation interfer- advances in theorizing in this area will occur with new devel- ence occurs and then declines to commit to deciding whether opments in cognitive research. impairment or source misattribution or both are the respon- sible parties. This line of argument raises the important question of just How Much Guessing Occurs? what source misattribution is. We think that neither Belli Among the reasons why Mike might have reported seeing (1989) nor Tversky and Tuchin (1989) adequately dealt with a screwdriver, one (cited earlier) is that he failed to encode this issue. Source misattribution means, in its most general the hammer and he did not hear Maria mention the screw- sense, confusion over the source of origin of some item. It driver, but when asked whether it was a hammer or a screw- might involve interference with an original item in memory, driver that he saw, he simply guessed that it was a screwdriver. but on the other hand it might not. Suppose that Mike never In other words, he made a pure guess, as opposed to a biased saw the hammer in the first place. He subsequently hears guess. We argued earlier that pure guessing could under Maria talk about a screwdriver and decides that he has seen certain conditions of acquisition, retention, and retrieval, be the screwdriver during the original robbery. Mike has com- responsible for a significant proportion of erroneous "screw- mitted a source attribution error, but no interference with an driver" reports. However, in the current studies, we believe original memory has occurred because there was no original that pure guessing plays little or no role. Tversky and Tuchin memory to begin with. Change the facts slightly and, lo and (1989) found that when misled, subjects were certain of their behold, we have on our hands a source attribution error that errors, which is not the type of response that one would expect is indeed associated with interference with an original item in from people who were merely guessing. memory. If Mike encoded the hammer and subsequently Using the now-familiar burglary sequence (McCloskey & encoded "screwdriver" from Mafia, he could become con- Zaragoza, 1985), Donders, Schooler, and Loftus (1987) also fused about the source of "screwdriver," could reconstruct his gathered data that argue against the notion that the "pure memory to include a screwdriver, and simultaneously could guessing" process history makes much of a contribution to "impair" his original memory for a hammer. In this case, the misinformation effect. In this study, subjects watched the Mike would have committed a source attribution error that burglary sequence (including, for example, a hammer), then was associated with memory impairment. This analysis makes received misinformation (e.g., about a screwdriver) or neutral it clear that there is more than one type of source misattri- information about four critical items, and then were tested in bution. The type that does not involve memory impairment what Tversky and Tuchin (1989) call the "Loftus test" (e.g., is definitely at least partly responsible for the observed results "Did you see a hammer or a screwdriver?"). The innovation (at least in some subjects); this is in fact what misinformation in Donders et al.'s (1987) research is that speed~ of responding acceptance is all about. was measured, in addition to confidence. I.f a high proportion However, Belli (1989), at least, showed more than this. He of the misled subjects who selected the misinformation (the showed that memory impairment has occurred. It could result screwdriver) were simply guessing, one would expect their from a "clouding" or degrading of memory (picture a Xerox response times to be long and not associated with a high of a Xerox of a Xerox), or it could be a type of source degree of confidence. The obtained confidence data revealed misattribution that is associated with accessibility of the orig- that when misled subjects selected the misinformation item, inal memory, or it could be some of both. Whatever he wants they did so with a high degree of confidence (just as Tversky to call it, it appears to involve a type of impairment, and thus & Tuchin, 1989, found when they used the "Yes'/"No" test). Belli's conclusions favoring the memory impairment hypoth- The fastest response times ofalI occurred when misled subjects esis could be expressed more strongly than in fact they were. selected the misinformation item (see Figure 1). On this fine point, Belli could take a lesson from Tversky and In sum, because subjects embrace the misinformation item Tuchin (1989) on how not to be a shrinking violet. They with a high degree of confidence, and they do so very quickly, unhesitatingly characterize their data as arguing "against the we believe pure guessing does not play a significant role claim that nothing happens to the memory for the original that in producing the misinformation effect in studies in which event as a consequence of misleading information" (p. 89). fairly typical exposure time and retention interval parameters In reaching this conclusion, we acknowledge that a different are used. We do not mean to imply that pure guessing never type of research is probably necessary before specific claims occurs, but only that is a rare process history in the misled about what "impairment" means can really be addressed. condition. Some biologically oriented psychologists have suggested that additional neurobiological facts are required before research- ers can settle the issue of whether impaired performance Misinformation Acceptance: A VCo~hy Phenomenon reflects an actual loss of information from storage and a corresponding regression of some of the synaptic changes that Among the many reasons why Mike might have reported originally represented that stored information (Squire, 1987). seeing a screwdriver after hearing Maria mention it, one (cited 15525

COMMENTS 103

have similarly argued for the crucial role played by the strength of the original memory: Brainerd & Reyna, 1988a; Ceci et al., 1987a; Chandler, 1989). Belli did indeed find more misinformation interference when there was more memory to begin with. However, there is a limit. In the extreme case, when memory for an original item is virtually perfect, people are unaffected by misinformation (e.g., see Loftus, 1979). They readily notice a discrepancy between what they have in memory and what is being offered to them as misinformation (Tousignant, Hall, & Loftus, 1986). In order to affect those persons whose memory for some critical item is strong to begin with, one must wait until the memory fades to a level below which they are not likely to immediately notice dis- crepancies. Figure 1. Reaction times (RT) associated with correct and incorrect responses (Donders, Schooler, & Loftus, 1987). (Msec = milli- seconds.) Conclusion

We are grateful to McCloskey and Zaragoza (1985) for making it evident that there are different ways of arriving at earlier) is that he never saw the hammer in the first place, and the same memory report. Initially, we thought that memory he claimed that he saw the screwdriver because he remem- impairment was implicated in the process of distortions in bered hearing about it. If Mike reported the screwdriver with reporting that are due to misleading postevent information. conviction, we would say, in Belli's (1989) language, that he We are gratified to find some support for this notion in the had accepted the misinformation. In fact, this is one of the current studies. However, even in the absence of memory clearest cases of misinformation acceptance; it cannot by impairment, the finding that people can come to accept definition involve any original memory impairment because misinformation and adopt it faithfully as their own is an there was no original memory to be impaired. Much of the important phenomenon in its own right. Put another way, theoretical discussion about the misinformation effect would regardless of whether there is a buried original memory, leave us with the impression that this process is uninteresting. waiting to be kissed awake like Sleeping Beauty, researchers It may not, of course, tell us anything about impairment of still must take seriously the erroneous memory reports that memories, but it does tell us something about the creation of are so freely obtained. Researchers have created them in new memories. If a memory for a screwdriver came about laboratory environments, which Tversky and Tuchin (1989) through the process of suggestion but was subjectively as real claim are "unusual." However, we believe that we have tapped and as vivid as a memory that arose from the actual perception a phenomenon that occurs quite often in real life whenever of a screwdriver, we would find this fact important from both people who experience the same event talk to one another, a theoretical and an applied perspective. In fact, there is overhear each other talk, or gain access to new information evidence that suggested memories might differ statistically from the media, interrogators, or other sources. We believe from genuine memories (Schooler, Gerhard, & Loftus, 1986), that the misinformation effect is sufficiently pervasive and but they still have great similarities in common. For one eventually may be so highly controllable that we are tempted thing, suggested memories are expressed with a great deal of to propose a Watsonian future for the misinformation effect confidence, just as are some genuine memories (Donders et (see Watson, 1939, p. 104): Give us a dozen healthy memories, al., 1987; Tversky & Tuchin, 1989). Moreover, suggested well-formed, and our own specified world to handle them in. memories are quickly accessible, just as are some genuine And we'll guarantee to take any one at random and train it memories (Donders et al., 1987). to become any type of memory that we might select--ham- Thus researchers in this area should be more interested in mer, screwdriver, wrench, stop sign, yield sign, Indian chief-- "misinformation acceptance," especially when it is associated regardless of its origin or the brain that taolds it. with a high degree of conviction about the new memories. In exploring the factors that enhance susceptibility to misinfor- mation, we have discovered that allowing time to pass after References the event, so that the original memory can fade, makes a person particularly vulnerable to suggestion (Loftus, Miller, Atkial~, R. C., & Shiffrin, R. M. (1968). Human memory: A & Burns, 1978). Some items that could never be modified proposed system and its control processes. In K. W. Spence & when they are fresh in the mind will eventually fade to the J. T. Spence (Eds.), The psychology of learning and motivation point that modification is possible. The process could essen- (Vol. 2, pp. 89-195). New York: Academic Press. Barnes, J. M., & Underwood, B. M. 0959). "Fate" of first-list tially involve one of creating a new memory, but it would still associations in transfer theory. Journal ofExperimental Psychology, be an interesting one, worthy of our research attention. 58, 97-105. These ideas also bear on Belli's (1989) observation that BeUi, R. F. (1989). Influences of misleading postevent information: having a better overall memory for original items would make Misinformation interference and acceptance. Journal of Experi- it easier for misinformation interference to be detected (others mental Psychology: General, 118, 72-85. 15524

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Brainerd, C. J., & Reyna, V. F. (1988a). Memory loci of suggestibility (Eds.), Children's eyewitness memory (chap. 6). New York: Sprin- development: Comment on Ceci, Ross, and Toglia (1987). Journal ger-Verlag. of Experimental Psychology: General, 117, 197-200. Loftus, E. F. (1975). Leading questions and the eyewitness report. Brainerd, C. J., & Reyna, V. F. (1988b). Development of forgetting Cognitive Psychology, 7, 560-572. and reminiscence: A disintegration/redintegration theory. Unpub- Loftus, E. F. (1977). Shifting human color memory. Memory & lished manuscript, University of Arizona. Cognition, 5, 696-699. Ceci, S. J., Ross, D. F., & Toglia, M. P. (1987a). Age differences in Loftus, E. F. (1979). Eyewitness testimony. Cambridge, MA: Harvard suggestibility: Narrowing the uncertainties. In S. J. Ceci, M. P. University Press. Toglia, & D. F. Ross (Eds.), Children's eyewitness testimony (pp. Loftus, E. F., Miller, D. G., & Burns, H. J. (1978). Semantic integra- 79-91). New York: Springer. tion of verbal information into a visual memory. Journal of Exper- Ceci, S. J., Ross, D. F., & Toglia, M. P. (1987b). Suggestibility of imental Psychology: Human Learning and Memory, 4, 19-31. children's memory: Psycholegal implications. Journal of Experi- McCioskey, M., & Zaragoza, M. (1985). Misleading postevent infor- mental Psychology: General, 116, 38-49. mation and memory for events: Arguments and evidence against Ceci, S. J., Toglia, M. P., & Ross, D. F. (1988). On remembering... memory impairment hypotheses. Journal of Experimental Psy- more or less: A trace strength interpretation of developmental chology: General, 114, 1-16. differences in suggestibility. Journal of Experimental Psychology: Melton, A. W., & Irwin, J. M. (1940). The influence of degree of General, 117, 201-203. interpolated learning on retroactive inhibition and the transfer of Chechile, R. A. (1987). Trace susceptibility theory. Journal of Exper- specific responses. American Journal of Psychology, 53, 173-203. imental Psychology." General, 116, 203-222. Morton, J., Hammersley, R. H., & Bekerian, D. A. (1985). Headed Chandler, C. C. (1989). Specific retroactive interference in modified records: A model for memory and its failures. Cognition, 20, 1-23. recognition tests: Evidence for an unknown cause of interference. Pirolli, P. L., & Mitterer, J. O. (1984). The effect of leading questions Journal of Experimental Psychology: Learning, Memory, and Cog- on prior memory: Evidence for the coexistence of inconsistent nition, 15, 256-265. memory traces. Canadian Journal of Psychology, 38, 135-141. Donders, K., Sehooler, J. W., & Loftus, E. F. (1987, November). Register, P. A., & Kihlstrom, J. F. (1988). Hypnosis and interrogative Troubles with memory. Paper presented at the annual meeting of suggestibility. Personality and Individual Differences, 9, 549-558. the Psychonomic Society, Seattle, Wa. Schooler, J. W., Gerhard, D., & Loftus, E. F. (1986). Qualities of the Geiselman, R. E. (1988). Improving eyewitness memory through unreal. Journal of Experimental Psychology." Learning, Memory, mental reinstatement of context. In G. M. Davies & D. M. Thom- and Cognition, 12, 171-181. son (Eds.), Memory in context: Context in memory (pp. 245-266). Sheehan, P. W. (1988). Confidence, memory and hypnosis. In H. Chichester, England: Wiley. Pettinati (Ed.), Hypnosis and memory (pp. 96-154). New York: Gibling, F., & Davies, G. (1988). Reinstatement of context following Guilford. exposure to post-event information. British Journal of Psychology, Sheehan, P. W., & Tilden, J. (1986). The consistency of occurrences 79, 129-141. of memory distortion following hypnotic induction. International Gudjonsson, G. H. (1986). The relationship between interrogative Journal of Clinical and Experimental Hypnosis, 34, 122-137. suggestibility and acquiescence: Empirical findings and the theo- Smith, V. L., & Ellsworth, P. C. (1987). The social psychology of retical implications. Personality and Individual Differences, 7, 195- eyewitness accuracy: Misleading questions and communicator ex- 199. pertise. Journal of Applied Psychology, 72, 294-300. Hammersley, R., & Read, J. D. (1986). What is integration? Remem- Squire, L. R. (1987). Memory and brain. Oxford, England: Oxford bering a story and remembering false implications about the story. University Press. British Journal of Psychology, 77, 329-341. Tousignant, J. P., Hall, D., & Loftus, E. F. (1986). Discrepancy Hammersley, R., & Read, J. D. (in press). What memory changes detection and vulnerability to misleading post-event information. can account for the misleading question effect? In E. Boyd & L. Memory & Cognition, 14, 329-338. Radtke (Eds.), Psychological perspectives on eyewitness testimony. Tversky, B., & Tuchin, M. (1989). A reconciliation of the evidence New York: Spectrum. on eyewitness testimony: Comments on McCloskey and Zaragoza Kohnken, G., & Brockmann, C. (1987). Unspecific postevent infor- (1985). Journal of Experimental Psychology: General, 118, 86-91. mation, attribution of responsibility, and eyewitness performance. Wagenaar, W. A., & Boer, H. P. A. (1987). Misleading postevent Applied Cognitive Psychology, 1, 197-207. information: Testing parameterized models of integration in mem- Kroll, N. E. A., & Ogawa, K. H. (1988). Retrieval of the irretrievable: ory. Acta Psychologica, 66, 291-306. The effect of sequential information on response bias. In M. M. Watson, J. B. (1939). (2nd ed). Chicago: University of Gruneberg, P. E. Morris, & R. N. Sykes (Eds.), Practical aspects of Chicago Press. memory: Current research and issues, Vol. 1 (pp. 490-495). Chich- Zaragoza, M. S., & Koshmider, J. W. (1989). Misled subjects may ester, England: Wiley. know more than their performance implies. Journal of Experimen- Kr.oil, N. E. A., & Timourian, D. A. (1986). Misleading questions tal Psychology: Learning, Memory, and Cognition, 15, 246-255. and the retrieval of the irretrievable. Bulletin of the Psychonomic Zaragoza, M. S., McCloskey, M., & Jamis, M. (1987). Misleading Society, 24, 165-168. postevent information and recall of the original event: Further Lehnert, W. G. Robertson, S. P., & Black, J. B. (1984). Memory evidence against the memory impairment hypothesis. Journal of interactions during question answering. In J. Mandler, N. L. Stein, Experimental Psychology: Learning, Memory, and Cognition, 13, & T. Trabasso (Eds.), Learning and comprehension of text. Hills- 36-44. dale, N J: Erlbaum. Lindsay, D. W., & Johnson, M. K. (1987). Reality monitoring and suggestibility: Children's ability to discriminate among memories Received September 13, 1988 from different sources. In S. J. Ceci, M. P. Toglia, & D. F. Ross Accepted September 19, 1988 • 15523

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Intelligence Gathering Post-9/11

Elizabeth F. Loftus University of California, Irvine

The gathering of information for intelligence purposes intelligence in ways that increase the chances that things do often comes from interviewing a variety of individuals. not go wrong. Some, like suspects and captured prisoners, are individuals In this article, I review new basic research in these for whom the stakes are especially high and who might not three areas that is relevant to the gathering of intelligence. be particularly cooperative. But information is also gath- In the United States, the intelligence establishment is vast. ered from myriad individuals who have relevant facts to It consists of more than a dozen agencies employing some provide, and occasionally the smallest details can be im- 100,000 people whose job it is to evaluate, integrate, and portant. In gathering this information from both groups of interpret information (Fingar, 2011). Although sometimes informants, investigators need to worry about memory dis- intelligence gatherers are sitting in vast open spaces listen- tortion, especially the extent to which memories can be ing with headphones to digitally recorded wiretaps (Rose, contaminated by poor questioning or other sources of 2005) or are tracking suspicious financial movements postevent information. Moreover, they need to worry about (Finnegan, 2005), at other times they are out in the field the potential for poor methods and other forms of influence talking to human beings (or gathering information from to create false confessions, thereby leading investigators “the street”; Finnegan, 2005, p. 64). The post-9/11 research astray. A third area in which psychological science can reviewed here is relevant to the latter type of intelligence contribute is in the detection of deception. Recent science gathering, and here I speculate about how this information in these domains can improve the quality of information might be useful to the intelligence community. The appli- that investigators gather and the inferences that they draw. cability of the research becomes more obvious when we recognize that it is not simply suspects or captured prison- Keywords: memory, interrogation, confession, deception, ers who are interrogated for intelligence purposes. These lying are individuals for whom the stakes are especially high and who might not be particularly cooperative. But information n the summer of 2010, two citizens of Yemen were is gathered from all sorts of people who might have rele- arrested on suspicion of preparing a terrorist attack vant facts to provide. When an analyst goes to Lockerbie, Iafter some strange items were discovered in their air- Scotland, to learn about the explosion of a Pan Am flight in line luggage. After all, not everyone travels with a cell 1988, to Istanbul to learn about the bombings of the city’s phone taped to a bottle of Pepto-Bismol or three cell synagogues in 2003, to Russia to learn about the school phones taped together. Not everyone travels with $7,000 in massacre at Beslan in 2004, to Madrid to learn about the cash and heads to a final destination that is a terrorist train bombing in 2004, or to Germany to learn more about breeding ground. Was this a dry run for a terrorist plot? key 9/11 terrorist Mohamed Atta, key information from Suspicious as this appeared, one day after the arrest, the nonsuspects is often sought. For example, in the case of men were released. Their records were clean, their expla- Atta, interviews with other students at the German school nations were accepted, and their case was lauded as an that he had attended revealed that he had voiced violently example of how the aviation security system works well anti-American opinions (Kean & Hamilton, 2004). And in (Hilkevitch & Skiba, 2010). the Madrid train bombing case, successful interviewing Had the Pepto-Bismol caper not been resolved so revealed that the bombers had parked their vans blocks quickly, a number of things could have gone wrong. The from the station and carried those bombs to the trains by Yemeni citizens could have provided erroneous informa- hand, a fact that has implications for design of protection of tion about their actions, their intentions, or peripheral mat- likely terrorist targets. ters. They could have given false information due not to The Lockerbie tragedy is a good one for illustrating deliberate lying but to faulty memory. It might have led the complexities of interviewing and for showcasing the investigators astray. The Yemeni citizens could have been problem of postevent contamination of memory. The fol- interrogated in a way that led them to falsely confess to something they did not do. They could have been declared liars, when in fact they were telling the truth. In the years This article was published Online First August 8, 2011. since the tragedies of September 11, 2001, psychological Correspondence concerning this article should be addressed to Eliz- scientists have produced a great deal of research in these abeth F. Loftus, Department of Psychology and Social Behavior and Department of Criminology, Law, and Society, School of Social Ecology, three domains (memory distortion, false confessions, and University of California, Irvine, 2393 Social Ecology II, Irvine, CA detection of deception) that is relevant to the gathering of 92697-7080. E-mail: [email protected]

532 September 2011 ● American Psychologist © 2011 American Psychological Association 0003-066X/11/$12.00 Vol. 66, No. 6, 532–541 DOI: 10.1037/a0024614 15521

information, not the least of which was a magazine article that included an image of al-Megrahi and specifically linked him to the bombing. Postevent information is an important and relevant scientific topic that is discussed in detail below. Many people are aware and some are out- raged by the fact that al-Megrahi was sent back to Libya on compassionate grounds because of advancing cancer. What is less well-known is that because of many of the incon- sistencies and doubts in his case, the Scottish Criminal Cases Review Commission had expressed deep reserva- tions about the conviction in the case and concluded that it may have been a miscarriage of justice (Adams, 2007; Oliver, 2007). Gauci was a cooperative witness (some might say too cooperative). Some experts have argued that law enforce- ment is not very proficient at interviewing cooperative witnesses (Fisher, Ross, & Cahill, 2010), so imagine the even greater challenge of interviewing those who are not cooperative. Poor methods of gathering information can lead investigators astray, causing memory distortion, false Elizabeth F. confessions, and erroneous decisions about whether some- Loftus one is deliberately trying to deceive. Interviewing and Interrogating People lowing information can be found in the police reports, trial court opinion, and appellate court opinion in this case (see Today, a distinction is frequently made between in- Al Megrahi v. Her Majesty’s Advocate, 2002). On Decem- terviews and interrogations (Redlich & Meissner, 2009). ber 21, 1988, Pan Am Flight 103 exploded over the Scot- The distinction was brought to the attention of the scientific tish city of Lockerbie. The 259 passengers and crew mem- community in the late 1990s (Kassin, 1997) and was intro- bers who were on the plane were killed, as were 11 duced to practitioners in a training manual (Inbau, Reid, residents of Lockerbie, where the debris fell. At a trial held Buckley, & Jayne, 2001). Interviews of witnesses or even over 12 years later, the defendant, Abdelbaset al-Megrahi, persons of interest are often conducted in a nonaccusatory was convicted, in large part on the basis of the eyewitness manner. In these cases, one must worry about the accuracy testimony of a Maltese shopkeeper named Tony Gauci. and completeness of the memories of interviewees and the Al-Megrahi had allegedly purchased trousers, pajamas, and preservation of their memories. New research on memory other clothing from Gauci at Mary’s House in Malta, distortion, described below, is relevant. sometime in late l988. Those items were thought to be Interrogations of suspects, on the other hand, are often packed in the Samsonite suitcase that contained the explo- conducted in a more coercive manner. (For a brief history sives, which themselves were hidden in a Toshiba radio of research on interrogation, see Brandon, 2011, this issue.) cassette player. They might involve confrontation, in which the person is Gauci was first interviewed on September 1, 1989, presumed guilty and sometimes given false evidence. Or nearly nine months after the clothing purchase. He remem- they might involve minimization, in which a sympathetic bered that the purchase had occurred one day in the winter interrogator attempts to gain the suspect’s trust and offers of l988 and that the purchaser was six feet or more in justifications to minimize the crime and thereby elicit a height, had a big chest and large head, was clean shaven, confession. Here one must worry not only about the accu- and spoke Libyan. Gauci would make a number of attempts racy of memory but also about whether the interrogations to reconstruct the face and to select the man from photos. themselves might lead to other problems, such as false There were many viewings of photos, and only after two confessions or erroneous inferences about lying and truth years did Gauci make a highly tentative identification of telling. New research on confessions and on detecting al-Megrahi. As late as April 1999, Gauci viewed a lineup deception is described below. As Leo (2008) has noted, and thought al-Megrahi looked most like the man, but he interrogation is a valuable and important resource, and wasn’t sure. At trial in 2000, Gauci seemed to grow in “interrogation is necessary and thus here to stay” (p. 271). confidence in his selection of al-Megrahi. His testimony So we ought to maximize the chances that it is done with about other key facts also changed at various points in time the “tripartite goals of protecting individual legal rights, (e.g., testimony about the date of the clothing purchase and checking unwarranted or overreaching state power, and about the specific clothing that was purchased). promoting truth-finding” (Leo, 2008, p. 271). Whether the How might we understand these changes? It is clear individuals being interviewed are witnesses or suspects, that Gauci was exposed to numerous instances of postevent there are at least three important areas of recent research

September 2011 ● American Psychologist 533 15520 that can help maximize the accurate information and min- studies to demonstrate this phenomenon, conducted prior to imize the inaccurate information that is obtained. Although September 11, 2001, the memory of high-school students some useful information about interviewing techniques has for a life-and-death situation was contaminated by poste- been obtained from field research, , and vent suggestion (Abhold, 1995). The students who partic- even case histories, experimental laboratory research has ipated in this study had attended a football game at which also contributed greatly to our understanding of how to a player on the field went into cardiac arrest. Attempts to properly gather information and which strategies to avoid. resuscitate the player appeared to fail, and many students Memory Distortion thought he had died. (Actually, the player was later re- vived, but the students would not know this for some time.) When people experience an event, say a crime or an acci- Many students were highly upset at the time, as evidenced dent, they are sometimes exposed to new information after by their sobbing and screaming. Six years later, many of the event has occurred. Over the last three decades, an the students were interviewed, and some of them were enormous literature has been devoted to the impact of that exposed to misinformation about the traumatic event. In new information (Brainerd & Reyna, 2005; Frenda, Nich- particular, they received a suggestion about there being ols, & Loftus, 2011; Loftus, 2005; Wright, London, & blood on the player’s jersey when there had been none. Waechter, 2010). The general finding is that after being More than a quarter of the students accepted the misinfor- exposed to misleading postevent information, people make mation, thus demonstrating the experimental contamination errors even when trying hard to accurately report what they of traumatic memory. experienced. Postevent information can supplement their The experimental contamination of an upsetting mem- memory, or it can alter the memory. Some have argued that ory was also demonstrated in a post-9/11 study that exam- it invades the mind, like a Trojan horse, precisely because ined Russian subjects’ memories for a terrorist bombing we do not detect its influence. that had occurred a couple of years earlier (Nourkova, To illustrate how psychological scientists have studied Bernstein, & Loftus, 2004). Some of the subjects received the misinformation effect, I briefly present the typical ex- the strong suggestion that they had seen a wounded animal perimental paradigm. Subjects come to the laboratory and in the attack and had mentioned it in an early report. Of witness a simulated event. It might be a violent crime or an those who received the suggestion, 12.5% fell for it, and automobile accident. Sometime later, some of the subjects are fed new, misleading information about the event, but some of these individuals even elaborated their accounts others are not. In the final phase, subjects try to remember with sensory detail (e.g., a “bleeding cat lying in the dust”). the original event as best they can. In one study (reviewed These findings support the notion that even upsetting, in Loftus, 2005), subjects saw a stimulated traffic accident highly arousing, or traumatic events are susceptible to and afterward received written information about the acci- suggestion and that memory for them is malleable. dent. Some subjects were misled about what they had seen. Even trained soldiers undergoing naturally stressful For example, a stop sign was referred to as a yield sign. experiences can have their memories tampered with. This Later, on the final test, when asked whether they originally has been shown in a series of studies of soldiers who attend saw a stop sign or a yield sign, those subjects who had been “survival schools,” where they are trained to withstand the given the phony information tended to adopt it as their mental and physical stresses that they might experience if memory. They claimed to have seen a yield sign. Or when captured as prisoners of war. They experience mock POW faced with a choice of scenes and asked to pick the one they camps, food and sleep deprivation, and intense interroga- had seen, they chose the scene with the yield sign. In some tion. They are physically threatened and even assaulted. of the studies of the misinformation, very large deficits in Their levels of stress hormone and heart rate reveal the memory occurred because of the misinformation, with intensity of the experience. And their memories are sus- memory accuracy frequently depressed by 30% to 40% ceptible to all sorts of contamination, often leading to (Loftus, 2005). misidentification of the person who assaulted them and What types of errors have experimental subjects made mistaken memory for other key details (Morgan et al., in misinformation studies? They have recalled seeing non- 2007; Morgan, Southwick, Steffian, Hazlett, & Loftus, existent items, such as broken glass or tape recorders. They 2011). Again, memories of stressful events are not immune have even recalled something as large and conspicuous as from contamination, even in trained soldiers. a barn in a bucolic scene that contained no buildings at all. Once the misinformation effect had been identified, They have recalled incorrect details about items that they psychological researchers began to ask a number of ques- did see. Just as the stop sign turned into a yield sign in the tions. Chief among them were the following: mind, so a clean-shaven man was remembered as sporting a mustache and an individual with straight hair was recalled 1. When are people especially prone to being influ- as having curly hair after subjects were given misinforma- enced by misinformation? Conversely, when are tion to that effect. In short, misleading postevent informa- they resistant to the effects of misinformation? tion can alter a person’s recollection in powerful and pre- 2. Are we all susceptible to misinformation effects? dictable ways. Are some types of individuals particularly suscep- Postevent information can contaminate memory, even tible to misinformation’s damaging influence on for highly important and arousing events. In one of the first recollection?

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New research on misinformation conducted since Septem- from basic principles of cognitive and social psychology ber 11, 2001, has expanded our ability to answer these (e.g., encouraging witnesses to search through memory questions. from different perspectives) designed to gather better in- One answer to the first question is that as time passes, formation about past experiences. Many of the studies of memories fade and become especially vulnerable to the the CI and refinements in methodology have been con- influence of misinformation. Put another way, the longer ducted post-9/11, and they have been amply reviewed in a the time period between some key event and exposure to recent article by Fisher, Milne, and Bull (2011). So, for misinformation, the higher the chance that misinformation example, work has been done on the development of a will be incorporated into a person’s memory. We have shortened, more efficient version of the CI for situations in known this for some time (Loftus, 1979). Another impor- which the longer version cannot readily be used (Dando, tant variable is the method by which a person is exposed to Wilcock, & Milne, 2009). Other work has shown that a misinformation. People are especially likely to pick up self-administered form of the CI can be profitably used in information that is delivered to them via other witnesses or special situations in which there may be a large number of individuals (Wright et al., 2010). witnesses, not all of whom can be interviewed right away One answer to the second question is that young (Gabbert, Hope, & Fisher, 2009). In general, these studies children and the elderly are especially susceptible to mis- show that the CI draws out a great deal more information information (see Davis & Loftus, 2005; Otgaar, Candel, in criminal and noncriminal investigations than do more Smeets, & Merckelbach, 2010; Polczyk et al., 2004; Roe- conventional interviewing strategies. There has been an diger & Geraci, 2007). One recent project examined the especially favorable reaction to the CI among police forces capability of adolescents, who are among the most com- around the world (e.g., England, Australia, Norway), where mon victims and witnesses, to participate in the legal it has proved useful for interviewing cooperative witnesses system (Wright et al., 2010). Their age, associated as it is and for other investigative interviews. with the onset of social anxiety, has made them an espe- Understanding the conditions under which memory cially interesting group in which to examine memory con- distortions occur and the types of misinformation that are formity. most likely to influence people has important applications Individuals who tend to have dissociative experiences for intelligence gathering. First, investigators should be are more susceptible to misinformation (Hekkanen & Mc- made aware of these phenomena and of how they can guard Evoy, 2002; Wright & Livingston-Raper, 2002). Dissocia- against the problem of mistaken or distorted memory. Four tive experiences include driving to work and suddenly points are worth emphasizing: realizing one does not remember what happened on all or l. People are routinely exposed to new information part of the trip and being unsure if one actually performed after some key events are over. Look for instances in which some act or only thought about doing so. Related to this exposure to new information may have supplemented or finding is the notion of memory distrust. People who dis- altered an interviewee’s memory. People get information trust their own memories have been found to be more when exposed to the versions of others, when exposed to susceptible to developing false memories from misinfor- media coverage, and when interrogated in suggestive ways. mation than have people who do not distrust their memo- Recognize that when a memory is relatively poor, that ries (van Bergen, Horselenberg, Merckelbach, Jelicic, & memory is even more susceptible to contamination. Beckers, 2011). 2. When someone makes a claim, especially a dis- Temporary states, such as hypnosis, can lead to en- puted one, it is important to explore potential sources of hanced misinformation effects (Scoboria, Mazzoni, Kirsch, suggestion. In the ideal world, one would know about the & Milling, 2002). Believing that one has consumed alcohol conversations, the media exposure, the films, and the in- (even if the drink contained no alcohol at all) can magnify terrogations by authorities that preceded particular disclo- the misinformation effect (Assefi & Garry, 2003). People sures of “memory.” Some false memories have been pro- who have lower cognitive abilities are more susceptible to duced in psychotherapy that was aimed at excavating misinformation (Zhu, Chen, Loftus, Lin, He, Chen, Li, et buried memories of trauma (Brainerd & Reyna, 2005; al., 2010). People with certain personality characteristics, Campbell, 1998; Crews, 2006; McNally, 2003). Therapy such as being high in cooperativeness, are especially sus- records have provided valuable information about how ceptible to having their memories distorted by misinforma- these dubious memories evolved (Loftus, Paddock, & tion (Zhu, Chen, Loftus, Lin, He, Chen, Moyzis, et al., Guernsey, 1996). Harder to get at but still important are any 2010). inferences or postevent thoughts that might be a source of The research on understanding memory distortion has self-generated misinformation. Of course, the ideal of gath- been accompanied by a parallel enterprise that concerns ering information on these potential sources of suggestion discovering methods of enhancing the accuracy and com- sometimes comes head to head with privacy issues. When pleteness of information obtained from witnesses. There can we require that a potential suspect or witness, whose has been a wealth of research, for example, on the cognitive memory might be questionable, turn over diaries, e-mail interview (CI) as a means of gathering information, largely correspondence, Internet searches, or psychotherapy re- from cooperative witnesses. The CI was developed in the cords? This is the kind of balancing that Leo (2008) was mid-l980s by Geiselman, Fisher, MacKinnon, and Holland referring to when he talked about needing to balance indi- (1985); it incorporates a number of techniques derived vidual legal rights and the need for truth finding.

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3. Keep in mind a primary lesson gleaned from re- went into his university laboratory one day in January 2003 search on memory distortion: Just because someone says it only to find that 30 vials of Yersinia pestis (the bacterium happened, just because the person is confident, just because that causes plague) had gone missing. He thought they the recollection is detailed, just because the person is might have been stolen and alerted the authorities. Inves- emotional when describing it, does not mean it is true. tigators scoured the area looking for the missing vials, False memories can be detailed and can be expressed with fearful that terrorists would get them and spread disease. confidence and great emotion. Butler was interrogated intensively, on one occasion for 12 4. Be aware of a useful manual for training police on hours until 3:00 a.m. Under enormous pressure, exhausted how to gather information. The recommendations in this from sleep deprivation, and having been falsely told that he manual are largely based on psychological science. The had flunked a polygraph test, Butler changed his story and manual has been described as “a sophisticated training tool, claimed to have accidentally destroyed the vials. His “con- including detailed lesson plans, illustrative slides, and a fession” meant the community could rest assured that the CD-ROM designed to ease the local police trainer’s work” plague was not in the hands of sinister people. Butler was (Doyle, 2005, p. 190). Called Eyewitness Evidence: A eventually arrested and charged with, among other counts, Trainer’s Manual for Law Enforcement, it was issued in lying when he originally claimed that the vials were miss- September 2003. It can be found on the Office of Justice ing and denying knowledge of their whereabouts. Later he Programs/National Institute of Justice website (http://www would tell the press that he had been tricked into confessing .ojp.usdoj.gov/nij). Suggested procedures and reforms are by investigators. A Texas jury eventually acquitted Butler largely based on eyewitness science showing that small of lying but convicted him of a number of “add on” changes in procedure can lead to important benefits for charges, such as misuse of funds (Miller, 2003). Assuming accuracy. Some of the reforms, which have already been that his confession was false (which I believe to be the adopted by a number of jurisdictions in the United States, case), why did Butler confess? Did the coercive interroga- are discussed by Wells, Memon, and Penrod (2006). One tion lead this intelligent, educated scientist to do so? particular reform, use of the sequential lineup for identify- The literature on confessions is varied, consisting of ing people whom a witness has encountered in the past, has case studies, archival data, and laboratory and field studies. been subject to multiple meta-analyses and thorough dis- Proven cases of false confession, such as those compiled cussion (Steblay, Dysart, & Wells, 2011). and analyzed by Davis and Leo (2006) and Drizin and Leo False Confessions (2004), are useful for generating hypotheses about what leads to false confessions. Experimental methods can sup- Those familiar with research on false confessions like to plement this work and provide information about causal remind readers of the famous case that occurred a decade links. In the experimental domain, long before September before 9/11, involving a female jogger who was beaten and 11, 2001, the well-known computer-crash paradigm pio- raped in Central Park in New York. The victim survived, without any memory of the crime, and wrote a gripping neered by Kassin and Kiechel (1996) was used to study book about her ordeal (Meili, 2003) with the jolting title of experimentally induced false confessions. Subjects in that I Am the Central Park Jogger. Within two days of the research worked on a computer-based task; they were attack, five Hispanic and African American teenagers were firmly instructed never to hit the Alt key, as it would cause arrested on the basis of what have been called “police- the computer to crash and the experiment to be ruined. induced confessions” (Kassin & Gudjonsson, 2004). Some Shortly after the computer task began, the computer 13 years later, another man came forward with accurate and crashed and the subject was accused of having hit the Alt corroborated knowledge that resulted in the convictions of key. Many subjects responded to the accusation by con- the teenagers being overturned just one year after 9/11. So fessing to wrongdoing, and they were particularly likely to why did the teens confess to something that they seem do so when told that an eyewitness had seen them hit the clearly not to have done? forbidden key. Many of those individuals who confessed It is not only teens but also grown adults who falsely demonstrated that they truly believed in their confession, as confess, as the famous “Norfolk Four” case reveals (Wells evidenced by the fact that they told another, seemingly & Leo, 2008). Four innocent men confessed to the rape and unrelated individual that they had done so. murder of a Norfolk woman that occurred in 1997. DNA Since the early demonstrations, confession researchers would ultimately point to the real perpetrator, yet some of have devised clever ways of getting people to confess to the confessors have still not been freed. Media attention acts that were seemingly more serious than ruining a psy- can be credited with exposing some of the poor treatment chologist’s experiment. They have confessed, for example, that the confessors received by police, prosecutors, and to cheating on tests when in fact they did not (Russano, others. Such treatment helps us understand why people Meissner, Narchet, & Kassin, 2005). In the “cheating” would confess to some horrible crime that they did not paradigm, subjects are accused of providing help in solving commit. a problem to a confederate after a clear instruction that the Even the best educated among us are not immune to two must not collaborate. Many subjects have been led to the coercive tactics that can result in confession, as Thomas falsely confess to providing such help. The cheating para- Butler, a well-respected researcher of bubonic plague at digm was a valuable addition to the confession literature in Texas Tech University, discovered (Piller, 2003). Butler that it elicited confessions to an intentional (rather than

536 September 2011 ● American Psychologist 15517 negligent) act that would have had some consequences for This last type of false confession is called a coerced- the subject. internalized false confession. Bluffing can also increase the Another clever paradigm for studying false confes- likelihood of false confessions (Perillo & Kassin, 2010). sions used tampered video evidence to lead people to claim Here investigators pretend to have evidence without actu- they had committed an act that they did not commit, ally claiming that the evidence implicates the suspect. So, namely, that they had cheated during a psychological ex- for example, an investigator may tell a suspect that blood or periment (Nash & Wade, 2009). This was accomplished by other biological evidence was collected and will be sent to asking subjects to participate in a computerized gambling a laboratory for testing. task. Subjects answered general knowledge while betting Some groups of people, such as children, juveniles, fake money on their answers. If they answered correctly, a and the mentally retarded, appear to be especially vulner- green tick mark appeared and they took money from the able to making false confessions (Gudjonsson & Sig- “bank”; if they answered incorrectly, a red tick mark ap- urdsson, 2010; Redlich & Goodman, 2003). Policymakers peared and they had to return money to the bank. Later they need to be especially vigilant about the problem of false were accused of taking money when they should have confession with these high-risk individuals. returned it. Many confessed. Some subjects were exposed A major development in the study of police interro- to a doctored video that depicted them committing the gation and confession was the publication by the American “crime” (taking money when a red tick mark appeared). Psychology–Law Society of a scientific review paper by This was a particularly powerful way of eliciting false Kassin et al. (2010). This was only the second such paper confessions; almost all subjects who were exposed to the to be approved by the society in its 42-year history fake video confessed. The study has been described as “the (Thompson, 2010). The paper represented not only the first study to demonstrate the dangers of modern digital- opinions of Kassin et al. but a consensus view of the manipulation technology when encouraging people to re- members of the society. It underwent peer review, public member recent autobiographical experiences (Wade & review, and vetting by a scientific advisory board. Among Laney, 2008, p. 590). its many insights was the strong belief that law enforce- Modern technology in general and digital media in ment should be videotaping interrogations as a way of particular already allow us to take representations of indi- documenting potential suggestion or coercion in interview- viduals and show them engaging in all sorts of behaviors ing. Some jurisdictions have actually mandated that suspect (Bailenson & Segovia, 2010). Some research allowed sub- interrogations be taped; some have been doing so for quite jects to watch themselves from the third-person perspective a few years (Meissner & Kassin, 2004). There are obvious engaged in actions such as eating chocolate candy or baby advantages to doing so, not the least of which is that the carrots. These experiences affected how much food of tape provides an accurate record of what transpired. The various types the subjects later consumed. In other work, tape preserves information about whether the detectives subjects watched themselves endorse a particular product; intimidated the suspect or whether the details contained in this affected how strongly they later felt about the product. the confession actually came from the suspect or were And in yet other research, child subjects who watched supplied to the suspect via the interviewer. There are added themselves engaging in unusual actions (e.g., swimming benefits: Taping might deter law enforcement from using with whales) were more likely to report false memories of psychologically coercive tactics and can also deter frivo- these experiences. Bailenson and Segovia speculated that lous claims by the defense that such tactics were used when the media richness makes it harder to distinguish between they were not. an actual memory elicited by a true event and a false Redlich and Meissner (2009) have identified a number memory elicited by the mental image. As these technolog- of myths, misconceptions, or widely held beliefs about ical advances become even more sophisticated, we might interrogation and false confessions that should be dispelled. worry even more about how they might be used or misused Among these are (a) that false confessions do not happen or in the intelligence-gathering enterprise. are extremely rare; (b) that only vulnerable people falsely In real-life cases, people falsely confess for many confess; and (c) that the study of police interrogation and reasons (Meissner & Russano, 2003). Some people make a false confession is in its infancy. Another misconception is voluntary false confession without any coercion or pres- that suspects are sufficiently protected by their rights to sure, perhaps for attention (as in the Lindbergh baby kid- silence and to a lawyer, because the truth is that many napping or the JonBene´t Ramsey case) or to protect some- people—especially innocent ones—waive these rights one else. Some never believe they committed the criminal (Kassin, 2008). or bad act but confess because they think it will lead to a On the basis of what we now know about confessions, less negative outcome than not confessing (“if you will just it has been suggested that government officials should seek tell us you accidentally rather than deliberately set the fire, corroboration for confessions. Proper analysis of the report you can go home; otherwise, you’re going to prison for a that a suspect gives involves a number of key steps. First, very long time”). This is called a coerced-compliant false what is needed is a determination of the conditions under confession. Some people actually come to believe that they which the report was made and, especially, whether coer- committed the act. This often occurs after false evidence is cion was involved. Next, what is needed is a determination supplied, such as telling the accused “You flunked the of whether the report contains details that are accurate polygraph” when in fact he or she did not (Schwartz, 2010). when compared to what is known about the event being

September 2011 ● American Psychologist 537 15516 described. A confession is particularly valuable if it con- citizens show more gaze aversion than their Caucasian tains details that only the perpetrator could know rather counterparts do (Johnson, 2007). People from Turkey and than details that have been reported elsewhere. Finally, Morocco who are living in the Netherlands show more gaze what is needed is a determination of whether there are aversion than comparable Dutch-born citizens do (van Ros- aspects of the situation that would make an innocent person sum, cited in Vrij et al., 2011). Think of the trouble that can confess, such as isolation for prolonged periods, fatigue brew when a Caucasian detective interviews an African and sleep deprivation, and presentation of false evidence. American or Moroccan citizen and interprets gaze aversion as evidence of lying. Awareness of these cross-ethnic or Detecting Deception cross-racial misinterpretations can hopefully mitigate this Anthropologist Rob Johnston, who analyzed the culture sort of trouble. and activities of the intelligence community, argued that in If gaze aversion and fidgeting are not the way to go, many law enforcement functions outside of intelligence, the literature on detecting deception happily does reveal intentional deception occurs but is treated as the exception. that some speech cues are diagnostic of deception. One In the case of intelligence gathering and analysis, deception recommendation is to use particular interviewing ap- is the rule, at least as it applies to the information collected proaches that are focused on gathering information rather (Johnston, 2005, p. 35). If so, there would be great benefit than on accusing someone of wrongdoing. In the informa- in knowing whatever we can about the detection of decep- tion-gathering style of interviewing, witnesses are asked tion, and here psychologists have made important recent for detailed information about their activities using open- contributions. ended questions (e.g., “What did you do yesterday after In the last 10 years, much has been written about the you left work at 5:00 p.m.?”). The accusatory approach behaviors, both nonverbal and speech behaviors, that can confronts the witness with suspicions (“You seem like be used by someone who wants to try to detect deception in you’re deliberately not telling me something”). The infor- another person. Since 9/11, there have been a number of mation-gathering approach is superior in that it leads to a excellent overviews of research on detecting deception larger body of information that can be used later to com- (see, e.g., DePaulo et al., 2003; Sporer & Schwandt, 2007; pare with other evidence or to check for inconsistencies Vrij, Granhag, & Porter, 2011). What the research has (e.g., Vrij, Mann, Kristen, & Fisher, 2007). Yet another shown is that people are not good at detecting lies. A major recommendation is to ask questions that are not likely to be reason in ordinary life is that people often do not want to anticipated by the person being interviewed. When the find deception but would rather live in a rosier world where witness claims to have been eating dinner with a friend at it seemingly does not exist. That reason probably does not some critical point in time, he might be asked, “Who apply as much to the intelligence community, which, one finished their meal first, you or your friend?” Liars are less presumes, is greatly motivated to ferret out deception. But likely to say “I don’t know” to these unexpected questions, a second reason people are not good at detecting deception possibly because they fear that failure to provide some is that they rely on behaviors that are not useful or, worse, answer would look suspicious. on behaviors that lead them astray. People think that liars Several new approaches to improving the detection of will behave in particular ways, such as averting their gaze deception involve the development of techniques that can or fidgeting. But these cues are not reliable for detecting “outsmart” the liar. One approach involves withholding lies. known event (crime) facts from a suspect (as opposed to Clever experimental paradigms have been devised in disclosing the facts right away) in order to trap the suspect the lie detection field that teach us about what people in inconsistencies (Hartwig, Granhag, Stromwall, & Vrij, actually do when they deceive. Subjects are typically asked 2005). So, for example, the police might deliberately not to tell the truth about some issue or to lie. They might tell disclose the presence of fingerprints until after the suspect the truth about a film they just saw, or they might lie about asserts that he or she has never been to the crime scene. it. Or, more elaborately, some subjects actually engage in Another approach involves increasing the difficulty of the some act, such as going to a restaurant to have lunch, and interview. The reasoning here is that lying is cognitively other subjects commit a mock crime and pretend they were effortful; if interviewers increase the difficulty of the in- at the restaurant having lunch (Vrij et al., 2011). In one terview, it will make things especially difficult for liars and study, the subjects were passengers at an airport who either will make detection of their lying easier. The theory is that told the truth or lied about a trip they were about to take inducing cognitive load causes behaviors in an interviewee (Vrij, Granhag, Mann, & Leal, in press). Contrary to the that can be useful in the detection of deception. Some beliefs that many laypeople hold about lying, in most of support for this strategy can be found in a study in which these situations, those who are lying do not show gaze people were forced to recall events in reverse order (Vrij et aversion or fidget more than those who are telling the truth. al., 2008). What is particularly troubling about this example of a A major problem for those who wish to catch liars is mismatch between popular belief (that liars look away) and that some people can soon begin to believe that their lies scientific truth (liars do not look away more than truth are true; when this happens, they might not experience the tellers) is that it can lead to serious repercussions for those emotions (e.g., fear or guilt) that could accompany some cultural or ethnic groups that engage in more gaze aversion acts of deception. If they come to develop a belief that their in their day-to-day lives. For example, African American lie is true, they could be called “honest liars.” In some

538 September 2011 ● American Psychologist 15515 recent research people started off lying, but their lies later wenstein, 2011). People who are experiencing pain are became true for them (Merckelbach, Jelicic, & Pieters, more likely than those who are not in pain to classify a 2011). Subjects in this research were asked to lie about particular tactic as torture (and declare it unethical). And having certain physical symptoms, such as having trouble yet policymakers who decide that something is or is not concentrating. Later on, the subjects were asked to report torture are typically not experiencing pain, nor have they their symptoms truthfully. Even though they were trying to ever experienced the kinds of tactics that they may be be honest, those who had lied in the past reported more approving. It is more than tempting to suggest that policy- concentration problems than those who had not. This prob- makers should consider including “experienced” individu- lem speaks to the practical situation that occurs when als in their decision-making process. An important perspec- people feign symptoms in legal cases to reap a larger tive would be added by individuals such as the former verdict. But it also poses a special challenge to people Marine Quang X. Pham. His memoir (Pham, 2005) de- who want to detect deception, for the deception has been scribes his experiences as a Marine in Southern California, turned into a sort of truth. Finding signs that would be where he went through a two-week training program at diagnostic of this situation is a challenging problem for the Survival, Evasion, Resistance, Escape (SERE) school. future research. The SERE experience is intended to train members of the In the meantime, the deception researchers are turning military on how to avoid capture as a prisoner of war and their attention to an issue that is important for national to survive in captivity. During an intense interrogation, security, namely, how to spot lies about future actions or Pham was slammed against the wall. He was slapped until intentions. When someone reports that he or she crossed a stars appeared in his vision. He bit his gums and his mouth national border for a vacation rather than for nefarious filled with blood. And he endured the waterboard torture. reasons, how can one decide whether this represents the As Pham recounted, “I left the SERE school a few pounds truth? In their excellent overview of research on deception, lighter, with a swollen mouth and an incredible fear of Vrij et al. (2011) prompted readers to recall the 9/11 being captured by the enemy” (Pham, 2005, p. 194). Indi- terrorists who were seen smiling and chatting with airport viduals who have endured these experiences might be well staff despite the hatred they undoubtedly felt toward the suited for helping make decisions about what constitutes targets of their intended violence. Can we devise ways of torture. At the same time, the lack of solid evidence that identifying unusual behavior among would-be passengers these coercive or “enhanced” interrogation techniques that could indicate an intention to cause harm to airliners make people reveal information that they would not other- and their passengers? The Transportation Security Admin- wise reveal and the concern that these techniques may do istration (TSA) is, of course, deeply interested in this issue the opposite of what they are intended to do should be (Hilkevitch & Skiba, 2010). Society should greatly value added to discussions of the ethical and legal controversies research on the ways we can detect such planned and these techniques provoke. intended, but not yet committed, criminal acts. As they It should be kept in mind that ethical and legal con- collectively search for techniques for detecting malintent, troversies surround other specialized techniques that do not or the intent or desire to cause harm, policymakers need to involve physical pain or torture. For example, some Cana- be careful not to let urgency lead them to accept methods dian police agencies have been using the “Mr. Big tech- that are unsupported by good science. A recent article in nique” (Smith, Stinson, & Patry, 2010). In this technique, Nature highlighted several TSA programs for detecting undercover police operatives develop a friendship with a malintent. A program called Screening Passengers by Ob- suspect that might include a good deal of eating, drinking, servation Technique (SPOT) is designed to identify people and spending money. The suspect eventually has the op- who could pose a threat to airline passengers. Another portunity to meet the big boss (Mr. Big) and is led to program, called Future Attribute Screening Technology confess to a crime after being provided with a variety of (FAST), has passengers walking through a portal as sensors phony inducements. Scholars have rightfully worried that monitor their vital signs for malintent. As of this moment, the effectiveness of the Mr. Big technique has not been evidence for the efficacy of these programs appears to be supported by solid science, that its features create fertile utterly lacking (Weinberger, 2010). ground for suspects to provide false confessions, and that even these types of techniques, which do not involve tor- A Word About Torture ture, need our continual scrutiny. The recent release of legal memos detailing coercive inter- rogation techniques used with individuals suspected of Final Remarks terrorism has fueled considerable discussion of the use of Those involved in intelligence gathering ought to be mind- what are sometimes called “enhanced interrogation tech- ful that memory distortions are widespread. False confes- niques” designed to gather information from those sus- sions happen, and the current collection of known cases pects. These techniques include the repeated induction of appears to represent the tip of the iceberg, according to shock, stress, and anxiety, and they include torture experts in the field (e.g., Drizin & Leo, 2004; Redlich & (O’Mara, 2009). In thinking about these issues, scientists Meissner, 2009). People lie and they tell the truth, and it is have questioned the legal definition of torture, pointing out not easy to distinguish which is which. Gathering informa- that it is truly a subjective judgment involving speculations tion from a broad range of sources on a given topic is about the severity of pain (Nordgren, McDonnell, & Loe- important so that the sets of facts, biases, and differences in

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