Barely Legally

Confessions of a Moot Court Bailiff

The Fault in our Brains

The Boston Globe highlights the work of a standing committee in Massachussetts, convened by their Supreme Judicial Court. Is it about drug sentencing guidelines? Three Strikes laws? The death penalty?

Nope. It’s about memory. Specifically: it’s useless.

Eyewitness testimony is one of the most powerful forms of evidence in a trial. It’s also one of the most problematic; in fact, it’s “the number one cause of wrongful convictions,” says Daniel Medwed.

Medwed is a law professor at Northeastern and a member of the new Standing Committee on Eyewitness Identification, which was recently convened by the Massachusetts Supreme Judicial Court. The committee is charged with devising police and court procedures that take into account the central lesson of research on eyewitness testimony: “Our memories of what we see aren’t static. They’re elastic and malleable and change over time,” Medwed says.

This is great news. The fact is that human memory is awfully fallible, and Massachusetts is researching ways to improve their use of other peoples’ memories. This is very important. But it’s not a surprise. I’ve written previously about how human memory isn’t a good foundation for our entire legal system.

The memory-related surprise this week is courtesy of Simon Oxenham at Neurobonkers, who describes a new study that found it’s not just eyewitnesses’ faulty memories you need to worry about; it’s your own traitorous brain’s as well:

It’s not often that a study comes along that makes me want to drop everything and read it from cover to cover, right there and then. It’s also not often that a paper is terminated early, out of fear of inflicting harm on participants; one memorable example is Zimbardo’s infamous Stanford prison experiment. Take note of that; we’ll come back to that later. One such paper was recently published in Psychological Science. Researchers convinced 70% of participants that they had committed a serious crime — theft, assault, or assault with a weapon, when in reality they had done no such thing. […]

The fact that the researchers were able to create false memories of serious crimes will likely make the study relevant in criminal trials involving alleged false memories. In the US, 30% of wrongful convictions overturned by DNA evidence resulted from false confessions, admissions, statements to law enforcement, or guilty pleas, according to the Innocence Project. Many of these have been blamed on the controversial Reid technique of interrogation, that remains widely used by many police forces in the U.S. and around the world.

The numbers here are staggering and sickening. Subjects were deemed to be “convinced” they’d committed a crime if they “remembered” (i.e. invented) ten specific details about the crime itself. A full 70% of folks just wholesale invented a criminal experience under the right circumstances (i.e. ones which are very similar to the circumstances in which police interrogate suspects). Mind boggling. And then that second number: 30% of the folks exonerated by DNA evidence confessed to the crime.

You’ll want to read Oxenham’s piece. And then maybe you start keeping a really good diary. You know, just in case.