5.

Blind Memory

In 1979 in Georgia, a woman was raped by an intruder in her home. She told police that her attacker had a round face and stocky build.1 Several weeks after the rape, the police had her look at suspects in a live lineup (see fig. 3).

FIGURE 3. Photo of live lineup in the case of John Jerome White.

All five suspects in the lineup are quite thin with narrow faces, except the man on the far right. The man on the right seems to be the only one who fit the physical characteristics of the rapist described by the victim. Nevertheless, the victim selected the man in the middle, John Jerome White. After she identified him again at trial, White was convicted and spent more than twenty-two years in prison before DNA testing exonerated him.² The testing further proved, however, that the man on the far right, James Parham, was the actual rapist.

Why did the victim erroneously choose White when the real rapist was right in front of her? Because a few days before the live lineup, the police had her look at a photo spread, which included a photo of White but not Parham. The victim selected White because out of the choices given to her that day, he looked the most like the rapist. Her selection of White, however, placed White’s face in her memory as the face of the rapist, overpowering her original memory of the rapist, and led her to select White again at the live lineup a few days later, even when the real rapist was present right in front of her nose! As I will explain, memory experts now understand that when a rape victim incorrectly selects the photo of an innocent person, the face in that photo often transplants the face of the real perpetrator, and the victim may no longer even recognize the actual rapist.

•  •  •

I first became aware of the phenomenon of altered memory early in life, from two different events. The events remained a mystery to me, or perhaps more accurately a curiosity, until later in life when I studied memory and understood better what had happened. The first involved being bitten by a dog as a small child, probably at age five or six. My neighborhood friend named Keith had an aggressive, protective dog. Whenever I went over to his house to play, the dog had to be locked away in the basement, where it would bark violently whenever I walked by the basement door. On one occasion, Keith and I were watching television in a room far away from the basement door when the dog got free and came charging into our room, jumped onto the couch, and bit me hard on the thumb through the nail and down to the bone. The bite bled profusely and, of course, the whole event was very traumatic. I had to go to the doctor, and the thumbnail eventually turned black and fell off.

I was a frequent visitor to that house over the next decade, and on several occasions other kids from the neighborhood would arrive to play with Keith when I was there. Keith’s mother would have to explain the barking dog to these kids and why it had to be locked away in the basement. Each time this happened, she would tell the kids, in my presence, something like, “Don’t worry, the dog won’t get you from the basement. Once when Mark was really little he teased the dog through the door. I told him to stop, but he was little and didn’t listen and just opened the door instead, and of course he got bit.” “He learned a lesson about following instructions that day,” she would say laughing, patting me on the head. Sometimes she told me, “It’s okay, you were little and didn’t know better.” She would go on to assure the new kids, “If you just stay away from the basement door, the dog won’t bother you.”

As a child, I didn’t have the courage to challenge her version of what had happened. I clearly had the impression, however, that each time she told that story she truly believed it.

The second event occurred when I was perhaps eleven or twelve years old. It involved the only childhood “fight” I ever had. I can no longer remember why the fight occurred, but it was with a childhood friend, who I’ll call Dan, in his backyard. Several other neighborhood kids who were mutual friends of Dan and myself were present, as were some of Dan’s siblings. I remember Dan was very angry over something that had occurred at school that day, and he began yelling at me. At some point Dan physically charged me. I was much bigger than he, and quickly wrestled him to the ground. I pinned his arms down without any of his punches landing, and tried to talk through whatever had happened at school to defuse his anger. After a while, I let him up, but he just charged me again, so I pinned him down again and continued trying to calm him down. This cycle of charging, wrestling, and pinning him down went on two or three more times until his mother, who was unaware of the scuffle, yelled out the window for the kids to come in for dinner.

At that point, the fight ended, with no punches ever landing. Dan, his siblings, and the neighborhood kids who had been rubbernecking followed me over to my bike as I left. As I hopped on, Dan said, “You won today, but this is not over and we’re going to finish this tomorrow.” His sister said the same thing, telling me I won “round 1,” but that when it continued the next day with “round 2,” Dan would fare better. Of course, nothing happened the next day, the whole thing blew over, and we soon resumed our friendship.

The curious thing for me, which always made me scratch my head, was that a few years later when we were in high school Dan and his sister brought up the “fight” during a conversation at their house, and their version differed drastically from mine. I was an athlete in high school, and the first time the fight came up was after I had won a wrestling match at school. Dan brought up my victory and said something like, “Remember when we were kids and I totally kicked your butt in the backyard? That’s hilarious to think about now.” I laughed and told him that was nonsense—that he and his sister had conceded at the time that I had won round 1, and that round 2 never took place. But then Dan’s sister “remembered” the same version of the incident as Dan’s, colored with a lot of detail about how Dan had given me a black eye and bloody lip. It was clear to me by the way they talked that Dan and his sister had discussed Dan’s “victory” over me many times in the past.

Another friend was present for this conversation at Dan’s house, and he had been at the altercation many years earlier. When we left Dan’s house together that day, I asked him why he didn’t back up my version of the story. He said something like, “It wasn’t even a fight—you just pinned him down and that was it. It’s not worth arguing about.”

Dan and his sister brought up the fight a few more times in the remaining years of high school, but from then on I just let it slide and laughed it off. I agreed with my friend—it wasn’t worth arguing over.

My memories of these events are as clear as they possibly can be. I am as confident about them as almost any other memory in my life. I can remember as clear as day watching television and seeing the dog charge into the room out of nowhere, jump up onto the couch, and bite me unprovoked. It happened so quickly I could barely react. I was not teasing the dog by the basement door on the other side of the house, and I did not ignore Keith’s mother’s request to stop teasing the dog. I was scared to death of the dog and never would have teased it or opened the basement door. Likewise, no punches were landed during my only childhood “fight.” I did not get a black eye or bloody lip from Dan’s punches. In fact, I never had a black eye as a child or at any other time in my life.

I look at these events now and think that Keith’s mother, Dan, and his sister had modified their memories out of confirmation bias and cognitive dissonance—the human desire to remember life events in a way that comports with our positive self-image. The mother didn’t want to be responsible for my bite due to her own negligence in not properly protecting me from the dog. She didn’t think of herself as someone who would allow a small child to be violently bitten by a dog under her charge. As time passed, her memory changed to fall in line with her vision of how she protects her guests and small children. She needed to tell future guests that they were safe, and that her dog had never, ever hurt anyone who had listened to and followed her instructions. Likewise, Dan and his sister had twisted their recollections of the “fight” through time in a way that comported with Dan’s self-image of his physical prowess. And it was clear to me that they honestly believed their memories wholeheartedly.

But despite the clarity of my memories of these events, I now know enough about human memory to realize that I might be the one with altered memories. Although I still believe that my memories of these two events are largely accurate, I am open to questioning. I may have my own reasons, perhaps subconscious ones, to have reshaped these memories in my mind. Or my memories about the “fight” could have been shaped through conversations with other kids who were present and were trying to boost my self-esteem (although, if so, I have long forgotten those conversations). It is possible that the truth might be the version of events told by Dan’s family, or something in between my version and theirs.

In more recent years, I have experienced the phenomenon of altered memory numerous times. I tend to pay more attention to it now that I’m so keenly aware of it. I have attended meetings at work where several peers and I met with our boss, and where each person came out of the meeting with a different memory of what the boss said. Often, the impression that each person took away from the meeting reflected what they wanted the boss to say before the meeting started. If my coworker was pretty sure before we went in that the boss would not approve my idea, sometimes the coworker, in my opinion, twisted comments by the boss to support that notion, while forgetting the boss’s comments that suggested she liked my plan. When I pushed the coworker on the discrepancy, I often became convinced that it was not just a case of my coworker intentionally twisting things, or lying, to further his own agenda, but rather his version of events had become a memory that he firmly believed.

I have gone into family meetings with a doctor about a terminally ill family member, where each family member had a different belief before the meeting started as to which medical treatment our ill family member should receive next. In their reports to the doctor, each person “remembered” the symptoms our family member had demonstrated since the last appointment in a way that increased the chances that their desired treatment would be approved. And often each family member came out of the meeting with the doctor “hearing” what they wanted to hear before they went in, and their version of events had already become steadfast memory as soon as the meeting ended. They recounted what the doctor said in a way that made me wonder if I was in the same doctor’s appointment. Of course, confirmation bias may have led each family member to hear what they desperately wanted to hear, and then this altered version of events became their memory.

Again, I recognize in these instances that I could be just as guilty of having an altered memory as anyone else, so I try very hard to be as objective as possible. I cannot know what my success rate actually is. But because of confirmation bias and malleable memories, our reality—the “facts”—are often different to us than they are to other people. “He said/she said” is not always one person lying and the other telling the truth. Both people may be truthful about their memories and simultaneously baffled at the story told by the other.

The documentary film Stories We Tell (2012) is a fascinating exploration of this phenomenon. The film’s director, actress Sarah Polley, grew up the youngest of several children. Sarah’s mother died when she was young. After her death, the notion that Sarah had been conceived as a result of her mother having an extramarital affair became a family myth among the older siblings and her father; it was always cast as a light-hearted “inside joke” within the family. Sarah decided to investigate the myth, filming her efforts. She extensively interviewed all of her family members and her mother’s friends about the myth and their memories of key events from the past, such as behaviors or comments by her mother that might suggest an affair. She also investigated past events that might shed light on who her mother might have had an affair with. The film culminates with Sarah performing DNA testing of the various male suspects that her investigation identified, revealing that she was, in fact, the product of an extramarital affair.

But by the time shooting wrapped up, the film had become something Sarah had not expected. Rather than being a “whodunit,” the film’s most compelling narrative was the drastic differences in memory among all persons who were interviewed. Each person conveniently “remembered” key events in ways that comported with their own theory as to whether their mother had an affair and, if so, with whom. The film was billed as exploring “the elusive nature of truth and memory . . . and how our narratives shape and define us as individuals and families.” Polley explains:

I think what kind of captivated me about what was happening in the aftermath of this story . . . was the way we were all telling the stories about it, and the way those stories were different from each other. There are these huge gaps between these stories we were telling, both in terms of the fact of them, but also in terms of the perspective and what we decided were the most important elements of it. I got really transfixed by this idea that it was so necessary for us to be able to tell this story to make sense of some kind of basic confusion we had in our life. I just started thinking of storytelling as a really basic human need.3

I do not believe that Sarah Polley’s experience is unique. Anyone, if they become aware of this issue and start paying close attention to memory discrepancies in work and family situations, will probably report similar occurrences. Although most at first blush will say that others with different memories are “lying” or “twisting things” because they are “biased” and have an “agenda,” the psychology of memory shows that is not always the case. Confirmation bias and cognitive dissonance exert powerful influences on our memories.

•  •  •

Most people recognize that human memory is fallible to some degree. We have all had the experience of forgetting a friend’s birthday or searching for our car keys mystified at their disappearance. These types of memory lapses are common and widely understood as part of the human experience.

However, most people think of their memories as generally being fairly reliable. We may forget things here and there, but what we do remember we remember correctly. We think of memory as like a video recorder, accurately recording from the mind’s eye what happens in our lives, with the events able to be played back later when the need to remember them arises. Or, if not a video recorder, then a hardbound encyclopedia or computer hard drive that encodes and stores the events from our lives verbatim as they happen. Occasionally, parts of our internal videotape or hard drive get erased as time passes, and sometimes we are too busy and distracted to even hit the record button. But if we think back about an event, the parts we remember we recall accurately.

Yet human memory is much weaker and more malleable than most people realize. Rather than acting as a hard drive or videotape, our memories are more like Wikipedia, a metaphor coined by the famous psychologist and memory expert Dr. Elizabeth Loftus. We constantly edit our memories subconsciously. And, just as anyone can edit a post on Wikipedia, other people can edit our memories as well, by the mere act of suggestion. We don’t even realize it when external suggestions have altered our own memories. By the time we recall an event hours, days, weeks, or years later, frequently we or others have altered our memory. We may state our memory with confidence, and may truly feel confident about it, but it may be completely inaccurate. The videotape may have been edited, the code in the hard drive altered. Human memory is a bit like images, sounds, smells, and thoughts set in quicksand, always changing and shifting underneath us.

The scariest thing is that because we don’t know when this has happened, we often cling to an altered or false memory with confidence, if not defensiveness, when someone contradicts our version of the facts: “You’re wrong; that’s not what happened.” “No, you’re wrong,” the other person replies. While both people arguing over what happened may be confident that they are right, the truth is that we often can’t know who is right, or if both are wrong. Indeed, if a third person joins the discussion, that person’s memory might differ as well. But each person might be supremely confident about their memory.

Several cognitive problems cause altered memories. Misattribution occurs when our minds blend past memories together, or fill in gaps in our memories with information from other sources without knowing it. A common example of misattribution occurs when we learn a fact from a friend or a TV commercial but later think we learned it from a more reliable source, like a newspaper. Studies show that this type of misattribution is quite common, a daily experience.4 In the criminal justice system, misattribution occurs when, for example, an eyewitness to a crime sees a mug shot of the alleged perpetrator on TV, notices that he has a mustache, and then later “remembers” that the culprit had a mustache, when in fact he was clean-shaven. This may cause her to select an innocent person from a lineup.

Confirmation bias frequently twists our memories as well. If we are told that someone we are about to meet is a successful doctor, we are more likely to remember her as well-dressed and smart than if we are told that she is a waitress.⁵ Cognitive dissonance is also a powerful sculptor of memory. Leon Festinger’s famous theory of cognitive dissonance holds that humans are uncomfortable with memories or facts that are inconsistent with their positive self-image or with their beliefs and behaviors.⁶ As a result, we have an inner drive to bring our memories and attitudes into harmony. This causes us to engage in what is frequently referred to as “revisionist history,” where we alter our memories to better fit our theories and self-images.

THE RESEARCH

While the weaknesses and malleability of human memory have not yet reached the public’s consciousness, research by leading psychologists has demonstrated this phenomenon for decades. Dr. Elizabeth Loftus is probably the most influential psychologist in the field of human memory. Several of her studies have become the gold standard for demonstrating flaws in human memory. In her 1974 study “Reconstruction of Automobile Destruction: An Example of the Interaction between Language and Memory,” subjects viewed an automobile accident and then attempted to reconstruct from memory what they saw.⁷ Loftus noted that prior experiments and even courtroom cases had demonstrated how common it is for witnesses to have wildly divergent memories about such things as how fast cars were traveling before they collided, or how much time had passed between the sounding of the first car horn and the crash. In one study, for example, when subjects were told in advance that they would be asked how fast a car was moving, they later recalled speeds ranging from 10 mph to 50 mph, when the car in question was actually moving at 12 mph.⁸ Loftus’s study set out to determine how easily subjects’ memories could be altered by the mere words chosen when questioning them about their memories of an event.

Loftus had forty-five subjects view seven films of automobile accidents, each five to thirty seconds in length. After each film, the subjects received a questionnaire asking them to recount what they had witnessed. The forty-five subjects were divided into different groups, but only one question differed from group to group. Some questionnaires started out by asking how fast the cars were going when they “contacted” one another, while others used increasingly loaded and suggestive terms in place of “contacted,” such as “hit,” “bumped,” “collided,” and finally “smashed.” The more suggestive the term, the faster the subjects remembered the speed of the cars, as table 1 illustrates.

TABLE 1 Effect of Word Choice on Car Speed Remembered

Thus, the mere use of the word “smashed” in the questionnaire caused subjects, on average, to remember the speed of the car as nearly 9 mph, or 27 percent, faster than when “contacted” was used. It may not be surprising that a change of words could cause subjects to remember the cars as traveling faster, since speed is a very subjective variable. But Loftus’s follow-up study produced more startling results. She again had subjects watch an automobile accident on film and then answer questions about it from a written questionnaire.9 Fifty of the subjects were asked, “How fast were the cars going when they hit each other?” Fifty other subjects were asked, “How fast were the cars going when they smashed?” Similar to the first study, when the word “smashed” was used, subjects remembered the speed as 30 percent faster than when “hit” was used.

But this time Loftus also had the subjects return one week later and complete a second questionnaire without rewatching the film. The critical question in this second questionnaire was, “Did you see any broken glass in the automobile accident?” The correct answer was no—neither of the cars depicted in the fender bender suffered shattered windshields, headlights, or taillights, in the slightest. But subjects who had been asked one week earlier “How fast were the cars going when they smashed” were more than twice as likely as those in the “hit” group to incorrectly answer that they had seen broken glass in the film the week before.10 This proved to be true even for those subjects for whom use of the word “smashed” did not cause them to significantly inflate the speed of the cars. Thus, use of the word “smashed” as opposed to “hit” had the effect of both increasing the mean speed and causing subjects to falsely remember that they saw broken glass. But these two dependent variables were somewhat independent of one another—one effect could occur without the other. Of course, unlike speed, which is subjective and perhaps easy to manipulate in one’s memory, whether or not there was broken glass in the film is a concrete fact.

If the mere use of the word “smashed” in a written questionnaire can cause witnesses to “remember” broken glass that wasn’t there, imagine how a witness’s memory might be altered when they feel intense pressure to help solve a terrible crime and a stressed-out police officer is repeatedly returning to questions like, “Are you sure he wasn’t out of breath and acting nervous or flustered at all when he returned to the bar that night?” “And are you sure he returned by 11:00 P.M.? It could have been 11:30, couldn’t it? How close were you paying attention to the clock when you were partying and watching the game? Other witnesses in the bar that night are telling us it was more like 11:30.”

Another paper by Elizabeth Loftus, “The Formation of False Memories,” delves further into how false memories can be created by information supplied to a witness after an event. She writes:

For most of the century, experimental psychologists have been interested in how and why memory fails. As Green has aptly noted, memories do not exist in a vacuum. Rather, they continually disrupt each other through a mechanism that we call “interference.” Virtually thousands of studies have documented how our memories can be disrupted by things that we experienced earlier (proactive interference) or things that we experience later (retroactive interference).

Relatively modern research on interference theory has focused on retroactive interference effects. After receipt of new information that is misleading in some ways, people make errors when they report what they saw. The new post-event information often becomes incorporated into the recollection, supplementing or altering it, sometimes in dramatic ways. New information invades us, like a Trojan Horse, precisely because we do not detect its influence. Understanding how we become tricked by revised data about a witnessed event is central goal of this research.¹¹

Loftus goes on to recount prior studies in which witnesses to an event, such as a horrible crime, were given incorrect written information about the event that they then incorporated into their memories. For example, if the color of the automobile fleeing from the scene was first reported by witnesses as blue, reading a report of the event in which the vehicle is described as white can cause a significant number of those witnesses—often as high as 30 or 40 percent—to remember the vehicle as being white. Similar studies show high rates of altered witness memories of such things as a clean-shaven man having a mustache, straight hair as curly, stop signs as yield signs, hammers as screwdrivers, and “something as large as a barn in a bucolic field” as a scene with no buildings at all.12 All of these altered memories were created from having the witnesses read written reports, with no police officer or other person applying any type of stress or other pressure.

Loftus noted in these studies that witness memories were altered about events that actually happened. In her next study, however, she attempted to find out how easily false memories could be created about events that never occurred. Loftus told her subjects that she was studying “the kinds of things you might be able to remember from your childhood.” An older relative of each subject was interviewed in advance to provide three real events from the subject’s childhood. Each subject was then given materials that contained four stories about different childhood events that the subject was informed had been obtained from the subject’s family. While three of these stories had actually been reported by the subject’s family member, the fourth story, which involved the subject being lost in a mall as a child, was entirely made up by Loftus and her team. (Loftus confirmed with each subject’s family that the subject, to the family’s knowledge, had never been lost in a mall as a child.) An example of a false story, provided to a Vietnamese-American woman who grew up in the state of Washington, was as follows: “You, your mom, Tien and Tuan all went to the Bremerton K-Mart. You must have been 5 years old at the time. Your mom gave each of you some money to get a blueberry Icee. You ran ahead to get in the line first, and somehow lost your way in the store. Tien found you crying to an elderly Chinese woman. You three then went together to get an Icee.”¹³ The subjects were first asked to recall their memory of each of the four events in writing, and then were interviewed about their memories twice, once two weeks after completing the written document and again two weeks later. In their written responses, 29 percent of the subjects not only “remembered” the false event of being lost in a mall as child, but described it. (In the follow-up interviews, one of the subjects recanted her memory of being lost in a mall, bringing those who clung to the false memory down to 25 percent.) One subject, for example, used a full ninety words to describe the incident in her written response. The Vietnamese-American subject, for example, wrote, “I vaguely, vaguely, I mean this is very vague, remember the lady helping me and Tien and my mom doing something else . . . but I don’t remember crying. I mean I can remember a hundred times crying. . . . I just remember bits and pieces of it. I remember being with the lady. I remember going shopping. . . . I don’t remember the sunglasses part.” She went on to remember the lady who rescued her as “nice” and “heavy set, older.”14

At each interview, subjects were asked how confident they were in their memories of being lost in a mall. Interestingly, the confidence level of the subjects increased significantly between the first and second interviews, demonstrating that the more a person talks about a false memory, the deeper it becomes imbedded in his or her psyche.¹⁵

In a similar study reported by Loftus, one subject recalled additional “facts” in a second interview such as looking at puppies in the pet store when she became lost, and that the lady who rescued her was wearing a long skirt. The subject reported, “I do remember her asking me if I was lost . . . and asking my name and then saying something about taking me to security.” She recalled that she didn’t cry while she was lost, but cried once she was finally reunited with her parents. She remembered a feeling of “initial panic when you realize that your mom and dad aren’t there anymore.” After the second interview, when she was informed that the event never happened, the subject found it so hard to believe that she called both of her parents, who confirmed that it had never taken place and that they had worked with Loftus’s team to construct the false story.

Psychologists have also reported success rates of 20 to 25 percent in implanting false memories of being at a wedding and spilling the punch bowl on the parents of the bride; having to evacuate a grocery store when the overhead sprinkler system malfunctioned, suddenly spraying everyone with water; being in a car in a parking lot and releasing the parking brake, causing the car to roll and crash into something; being rescued from a pool by a lifeguard; being bitten by a dog; and being hospitalized overnight with a high fever caused by an ear infection.¹⁶

For any reader wishing to hear more about the malleability of human memory, a great source is Elizabeth Loftus’s fascinating seventeen-minute TED talk recorded in June 2013 and available online.¹⁷

MEMORY AND EYEWITNESS ERROR

Faulty eyewitness identification testimony—caused by errors in human perception and memory—is the single greatest cause of wrongful convictions. Of the first 325 DNA exonerations in the United States, 235, or 72 percent, involved mistaken eyewitness identification testimony.18 This figure dwarfs the second leading cause, bad forensic testimony, which accounted for 154 cases, or 47 percent (see fig. 4).

FIGURE 4. Contributing causes of wrongful convictions (first 325 DNA exonerations). Total is more than 100 percent because wrongful convictions can have more than one cause.

The National Registry of Exonerations, which currently lists more than two thousand DNA and non-DNA exonerations in the United States since 1989 (with the number growing weekly), says that faulty eyewitness identification contributed to 30 percent of wrongful convictions.¹⁹ These statistics do not include cases where a witness intentionally lied to frame an innocent person.²⁰ Rather, they encompass only those cases in which eyewitnesses testified in good faith—believed they were telling the jury the truth—but were simply wrong. Their memories failed them, causing an innocent person to be convicted.

When a person witnesses a crime, there are many things that can lead to inaccurate memory recall later in a courtroom. In fact, the psychological literature on eyewitness identifications is so rich that entire books have been dedicated to this issue.²¹ Below I will provide just a quick overview, and then focus on a few specific subfacets of the problem that are both pervasive and preventable.

ENCODING, STORAGE, AND RETRIEVAL

In general, memory involves three stages: encoding, storage, and retrieval. Encoding occurs when the witness experiences the event. But, given limitations in our cognitive abilities, we simply cannot encode everything that we take in during an event, no matter how important the event is to us. Rather, “we integrate fragments of a new experience into memory by combining it with what we already know or what we are expecting in a situation,” as one memory expert has noted.22 In other words, the mind encodes some of the new information, but provides shortcuts for the rest, supplying information from previous memories or filling in the blanks with our assumptions. For example, if you go to a child’s birthday party, you probably will not encode what the birthday cake looked like unless for some reason the appearance of the cake was particularly important to you. Instead, you may combine the image of the cake with preexisting memories of children’s birthday cakes, and save the fresh encoding space in your brain for something that mattered most to you, like where the cake was purchased if the taste was particularly delicious, or the fact that your ex showed up at the party unexpectedly. The less important details surrounding the event, such as who else was at the party or the color of the balloons, may not have been encoded but combined with some previous memory or a bias as to who you expected or assumed would be at the party, or what you think balloons at a child’s birthday party are supposed to look like.

In one sense, therefore, the brain helps us by not forcing us to encode everything that we encounter, allowing us to borrow from past memories and our expectations to create shortcuts. But, in another sense, the brain cheats us by creating inaccurate memories about many of the details we experience in everyday life. Sometimes details may seem minor or trivial when we experience them, like whether a person we barely know named Dave was at the birthday party, and thus we do not encode them cleanly. But this same fact can become very important later when we suddenly realize that our testimony as to whether Dave was present or not at the birthday party could mean the difference between whether he is convicted or acquitted of the murder of his wife, which occurred at the same time as the party. We may feel that we have a strong memory as to whether or not Dave was present, but in reality, unless our brain encoded that information correctly on that day, we cannot know if the memory is accurate.

Obviously, intoxication, or not wearing glasses, impacts our ability to encode, as does anything else that hinders our ability to perceive. Contrary to popular opinion, stress negatively impacts the encoding process as well. While many jurors believe a witness when he or she says, “As the crime happened, my adrenaline was pumping. . . . I became very awake and aware and paid close attention,” the reality is that stress of this nature interferes with the encoding process and significantly reduces the reliability of the resulting memories.23

Studies show that when a crime occurs and the perpetrator brandishes a gun, victims and eyewitnesses tend to engage in “weapon focus,” where they become intent on keeping an eye on the gun at all times to be ready should the perpetrator point it at them. In such situations, the eyewitnesses may “see” the hair color or other features of the perpetrator, such as whether he has a mustache, but will not encode them accurately; instead, they focus all of their brainpower on the gun. Later, when they are asked to recall the facial features of the perpetrator, their “memories” may be nothing more than a contaminated collection of past memories and expectations that their brain used to fill in the picture so that it could focus on more important things—like where the gun was pointed.²⁴ But the witnesses will not know that their memories are inaccurate.

The selective encoding process allows confirmation bias and cognitive dissonance to contaminate our memories. A story in the Washington Post about eyewitness accounts of a NYPD shooting of a hammer-wielding assailant illustrated this phenomenon.²⁵ Immediately after the incident, one eyewitness told a New York Times reporter that the deceased was fleeing when the police officer shot him. “He looked like he was trying to get away from the officers,” the witness said. A second eyewitness was riding her bike when she saw the shooting. Shaken, she contacted the Times and told them that the man had been shot by the police in cold blood after he was already in handcuffs. “I saw a man who was handcuffed being shot,” she reported. “And I am sorry, maybe I am crazy, but that is what I saw.” Later, a surveillance video surfaced that showed that the police shooting was completely justified and both eyewitnesses were wrong. When contacted by the Times after the video was released, the second eyewitness said, “I feel totally embarrassed.” Radley Balko of the Washington Post wrote:

She now believes that she saw the initial encounter and then looked away, as she was on her bicycle. In that moment, the man began the attack, which lasted about three seconds until he was shot. “I didn’t see the civilian run or swing a hammer,” she said. “In my mind I assumed he was just standing there passively, and now is on the ground in handcuffs.” “With all the accounts in the news of police shootings, I assumed that police were taking advantage of someone who was easily discriminated against,” she added. “Based on what I saw, I assumed the worst. Even though I looked away.” As the [Times] article points out, there’s no reason to think that [this eyewitness] was lying. False memories can seem just as real as real memories.

The next stages of memory after encoding are storage and retrieval. These stages influence each other. Several factors at the storage and retrieval stages often affect the reliability of memories. Two changes happen. The first is that our memory of the encoded event weakens as time passes. Memory does not improve over time.26 One study has shown, for example, that an eyewitness’s ability to correctly identify the perpetrator from a photo lineup is no better than chance after eleven months have passed from the day of the crime, even if the witness accurately encoded many details on the day the crime occurred.²⁷ This is due to the passage of time, which severely weakened the encoded information. In the meantime, the second change occurs: weakened memories are supplanted with false information that the witness saw on the news about the case (like a picture of the suspect who was arrested), or contaminated by what the police or others tell her about the case. Or her memory could be contaminated by her biases, assumptions, expectations, and personal desires about the case. When she picks someone from a lineup eleven months later, studies show that her identification should be handled with great caution, even though she may feel highly confident in her memory.

Dr. Charles Goodsell described the contamination of memory by extraneous information and biases as an expert witness in my Ohio Innocence Project case of Ohio v. Douglas Prade, which involved very shaky eyewitness identifications made after significant time had passed and the witnesses had seen my client’s mug shot on the television news:

A suggestion by another person (e.g., another witness, the police, or the media), or an inference made by the witness, can modify or influence a memory. . . . There are countless studies that demonstrate this phenomenon. . . .

Most do not realize that memories are the result of a constructive process whereby we combine specific elements we can recall from an event, along with general knowledge and assumptions or expectations of what should have happened. Each time you recall (think about) some memory, that memory is altered. There is opportunity to add, change, or omit elements of that memory as you store that latest instance of the memory. New information that is received or belief about what probably happened can be added in, or information that now doesn’t seem consistent or accurate can be omitted or changed.

In short, the memory possessed by the witness at some later point (e.g., when the witness testifies in court) can be quite different from the memory he or she formed at the time of the event. Longer retention intervals (the time between witnessing and recall of an event) result in a greater likelihood of forgetting and incorporation of inaccurate information. This new, but inaccurate, information can get incorporated into the person’s memory of the original event, thereby increasing memory distortion.²⁸

Dr. Goodsell noted that because the eyewitnesses had seen my client’s photo on the news prior to selecting his photo in a lineup, we cannot know whether they did so as a result of an accurate memory or contamination. DNA testing later suggested that my client was innocent.

CONTAMINATION AND MISATTRIBUTION

Countless wrongful-conviction cases demonstrate the phenomenon discussed by Dr. Charles Goodsell. Eyewitnesses see an innocent suspect’s picture on the television news, where he’s presented as the man just arrested for committing the crime, and then they “remember” that face as the face of the perpetrator instead of the face they actually saw when the crime occurred. Or the police may ask a witness a question suggesting that the perpetrator’s mustache was bushy or trimmed, and the witness suddenly “remembers” a mustache on the clean-shaven perpetrator that he saw the week before. This is called memory contamination or misattribution.29 The study by Loftus mentioned previously, where subjects incorrectly remembered broken glass in the film showing an automobile accident simply because the loaded word “smashed” was used to describe the accident, is a perfect example of memory contamination in the clinical setting.

In these examples of misattribution, the subjects’ memories became contaminated by outside influences even though they had no internal motive to alter their memories. In the examples I gave at the beginning of this chapter from my childhood, however, the witnesses had a motive to alter their memories. The mother with the dog that bit me had a strong internal motive, stemming from cognitive dissonance: she wished to assure visitors that her home was safe and that her dog had never bitten anyone who followed her instructions. She did not want to think of herself as a dog owner who would allow a small child under her care to be bitten. It did not comport with her self-image.

Make no mistake: in criminal investigations, motive is a powerful influence on perceptions and behavior. When a crime happens, the victim, the eyewitnesses, the police, the prosecutor, and the public all want it solved and solved quickly. They want retribution, and they want the bad guy off the street. Thus, eyewitnesses and players in the criminal justice system are subconsciously more likely to integrate outside information or suggestions into their memories if it helps move the case in the right direction. Any lawyer like myself who specializes in wrongful conviction cases can provide dozens of examples where the witnesses changed their stories—their memories—over time to keep the train moving toward conviction. I frequently saw this process at work when I was a prosecutor as well. Because we do not collectively appreciate the dangers of memory malleability, altered memories are ingrained in the system.

Numerous eyewitness identification studies have shown this phenomenon at work. The following framework has been employed. Subjects are shown a surveillance video depicting a convenience store robbery and then a photo lineup that does not include the actual perpetrator. They are asked if they see the perpetrator in the lineup. Among those who select a photo, some are told that they made the right choice and some are given no feedback. The subjects who selected a photo are asked to complete a questionnaire requiring them to rate such things as how confident they are that they selected the right person, how closely they paid attention to the video, and how willing they would be to testify in court.

These studies produce similar results regardless of the age of the subjects or other factors.30 When witnesses receive positive feedback about their identification, it significantly increases their confidence level. They also report that they viewed the crime more carefully and are more willing to testify at trial. Outside influences have contaminated their memory. Instead of going to court and testifying that the defendant “looks like” the perpetrator, or “I’m only 75 percent sure it is him,” for example, witnesses who receive confirmatory feedback will often come to court and testify that they are 100 percent certain that they saw the defendant commit the crime. And they will testify that they paid very close attention to the perpetrator’s physical features. Yet their confidence—which can easily lead to a wrongful conviction—was simply manufactured by the confirmatory feedback, without the witness even being aware of it.

Confirmatory feedback can take various forms. When a police officer says, “You picked the suspect,” that, of course, is a clear example of confirmatory feedback. But when a witness goes to the police station, picks a photo, and then learns from the TV news that the man she picked has been arrested by the police, that is another form of confirmatory feedback. So is hearing on the news that “several” witnesses identified the suspect as the culprit. Another example, which is also not uncommon, is making a selection from a photo lineup and hearing the police officer sigh in relief, then watching him excitedly put away the photo lineup while he says, “Thank you. We will be in touch very soon.”

The American public saw an example of the effects of confirmatory feedback in Making a Murderer, the Netflix docu-series that explored Steven Avery’s conviction for murdering Teresa Halbach, as well as his earlier wrongful conviction for the rape of Penny Beernsten. Avery was later exonerated of Beernsten’s rape by DNA testing. But after Beernsten had incorrectly chosen Avery as her rapist, the police told her that she had selected their suspect. Beernsten later told Dateline NBC that this confirmatory feedback greatly boosted her confidence.31 From that point on, she was confident in her memory. And when she remembered the attack, she saw Steven Avery’s face “like a photograph.”³²

When I was a prosecutor, an FBI agent and I worked on a case for a long time and finally developed some evidence against a particular suspect. Our ability to bring charges against the suspect hung on the ability of the crime victim to identify him from a photo lineup. When she arrived at my office, the FBI agent and I were very nervous. We had put a lot of work into the case, believed our suspect was guilty, and desperately wanted the victim to select his photo. When she selected him, the FBI agent and I quickly left the room into the hallway and excitedly started discussing what to do next, just around the corner from where the victim was sitting. In fact, when we first left the room, we did little “touchdown dances” and gave each other high fives. There is no doubt in my mind that the victim—the lone eyewitness to the crime—knew from our reactions that she had picked the right person. She could also tell that this was a big deal to us, and that it would be important to keep moving forward with the case. After seeing how we reacted, she would surely have known that she would be disappointing us tremendously if she ever expressed doubt about her identification. I, like many prosecutors and police officers today, had no idea how this behavior could alter the testimony of an eyewitness.

EYEWITNESS MISIDENTIFICATION CASES

With eyewitness error so common and human memory so malleable, it should come as no surprise that in many cases multiple eyewitnesses—in one case, even ten—can all be dead wrong.³³

Raymond Towler

I represented Raymond Towler, who was convicted in Cleveland in 1981 of raping a young girl in the woods of a public park. A few weeks after the rape, Raymond, who had just successfully completed a stint in the military and was going to the park to relax and meditate, was pulled over by a park ranger. He was stopped presumably because he was African-American, like the rapist, in a park surrounded by an affluent, white neighborhood. The ranger took Raymond’s picture and identification information and let him go. Later, the rape victim, her older brother, and two adult eyewitnesses all identified Raymond from his picture in a photo lineup as the rapist. At trial, all four eyewitnesses again identified Raymond as the rapist, and they expressed great confidence in their identifications. Raymond was convicted. After serving twenty-nine years in prison, he was exonerated by DNA testing and freed in 2010. The four eyewitnesses were all dead wrong.

Dean Gillispie

I have talked at length about Dean Gillispie’s case, in which three different eyewitnesses identified him as the perpetrator of rapes that occurred in 1988. In that case, a police officer created a photo lineup that was highly suggestive.34 All of the photos had a glossy finish and a blue background, except Dean’s, which had a matte finish and a yellow background. Also, the rapist had been described as having a wide face, so Dean’s face appeared close to the camera—his face took up the entire square in the photo—while the other individuals in the lineup were much further away; their photos could be characterized as torso shots. Many years later, the Dayton Daily News aptly characterized Dean’s photo as “all but circled and starred.”³⁵

Dean’s case involved gross examples of confirmatory feedback by the police officer. The witnesses were not shown the photo lineup until twenty-two months after the crime, which, as we’ve seen, studies have shown renders the reliability of their identifications close to nil and their memories highly vulnerable to alteration through suggestion. Indeed, the eyewitnesses admitted on the stand at trial that after they selected Dean from the photo lineup, the police officer told them that they had selected the right person. Such statements, of course, grossly inflate eyewitness confidence and can alter memories, implanting the face of the man in the photo in witnesses’ minds as the face of the perpetrator.

In addition, Dean’s hair was brown and peppered with a lot of gray, but no red, while the eyewitnesses had described the rapist’s hair as brown with a reddish tint but no gray. At trial, when Dean’s defense attorney cross-examined one of the eyewitnesses about the discrepancy between Dean’s hair color and how she had previously described the hair color of the rapist, she responded something to the effect of, “He has colored his hair.” The surprised defense attorney then inquired further of the witness, and the witness admitted that the police officer in question had told her before trial that Dean would not look like the rapist because he had colored his hair and tried to alter his appearance for trial. Though Dean’s attorney called Dean’s hair stylist to testify that his hair had been gray for many years and had never been dyed, and several witnesses testified to Dean’s alibi, the jury convicted him. This is not surprising: it is a rare jury that will not convict, despite such discrepancies and an alibi, when three separate eyewitnesses take the stand, cry, and state with emotion that they are “positive” this man was the rapist. Jurors naïvely tend to accept the testimony of eyewitness as gospel, despite the limitations in human memory.36

To this day, the three eyewitnesses still believe that Dean was the rapist. That, too, is not uncommon in wrongful conviction cases. Once a false memory is created, and a conviction is obtained as a result of it, confirmation bias, cognitive dissonance, and a desire to avoid confronting the possibility that your mistake put away an innocent man for twenty years tend to fortify the falsely created memory. Penny Beernsten, the rape victim who incorrectly identified Steven Avery as her rapist, before DNA testing proved that her attacker was actually Gregory Allen, described this phenomenon well: “I’ve seen a picture of Gregory Allen and he doesn’t look real to me. I would swear I’ve never seen him before in my life. I look at his picture, I can’t feel angry, I think he could walk in the room and my blood pressure wouldn’t even go up. I still see Steven Avery as my assailant.”³⁷

Ronald Cotton

Jennifer Thompson was a twenty-two-year-old college student in North Carolina when, on July 28, 1984, a man broke into her house and raped her.³⁸ During the half-hour she spent with her attacker, she took great pains to study and memorize his face. The detective in charge of the case later recalled that Jennifer’s first comment when she arrived at the police station was, “I’m gonna get this guy who did this to me. I took the time to look at him and I will be able to identify him if given an opportunity.”

She was shown a photo lineup and selected the photo of a young man named Ronald Cotton. A few days later, she also identified Cotton from a live lineup. The detective told her that Cotton was the same man she had selected from the photo lineup. Later, Jennifer explained that when she heard this she felt a sense of relief. “Bingo . . . I did it right . . . I did it right,” she thought to herself. She subsequently testified with certainty and confidence at Cotton’s trial. And, of course, Cotton was convicted.³⁹

After Cotton went to prison, he saw another inmate who looked like the composite sketch Jennifer had made of her attacker after the rape. He was in for rape. Cotton approached the inmate, who he later learned was Bobby Poole, and asked him where he was from. Poole said that he was from the same town in North Carolina as Jennifer and Cotton. Cotton’s lawyers later won a new trial so that they could argue that Bobby Poole, a known rapist from the same area, was the actual perpetrator. At the new trial, Poole was brought into the courtroom for Jennifer to view. She stated that she had never seen Poole in her life. She later recounted that she felt intense anger at the defense—“How dare you question me. How dare you paint me as someone who could have forgotten what my rapist looked like—the one person you would never forget.” Ronald Cotton was convicted again, and this time he was given two life sentences.

Seven years later, back in prison, Cotton was listening on his radio to the O.J. Simpson trial, and he learned about DNA testing. He wrote to his lawyer, saying he wanted DNA testing in his case. The testing proved what he had been maintaining all along: not only was he innocent, but Jennifer Thompson’s rapist was Bobby Poole. Cotton was released after serving ten years in prison for a rape he didn’t commit.

Thompson, when she learned the news, was initially incredulous. But eventually she accepted the truth, saying that she felt “suffocating, debilitating shame.” But, like Penny Beernsten, when she thought or dreamed about the rape, she still saw the face of the wrongly convicted man. Her false memory of Cotton had been contaminated and then reconfirmed for so many years that it couldn’t be easily broken. The memory expert Dr. Elizabeth Loftus later explained on a 60 Minutes episode about the Cotton case that once an eyewitness like Jennifer or Penny picks an innocent suspect, that face replaces the face of the attacker in the eyewitness’s memory.40 It is now a false memory, and one very hard to ever shake.

Jennifer ultimately asked to meet Cotton, to whom she apologized, and a friendship eventually developed between the two. Together, Jennifer and Ronald wrote the book Picking Cotton, which became a New York Times bestseller.

But Jennifer and Penny, both of whom openly acknowledged their mistakes, are the exception rather than the rule. In my experience, eyewitnesses—and police and prosecutors—are often unable to ever fully embrace the truth that their mistake may have put an innocent man in prison. The witness’s false memory, now hardened by time, confirmation bias, and repeated confirmatory feedback, and a desire to avoid coming to terms with their error, often causes the witness to dig in deeper. This is, of course, a natural human reaction. In fact, Jennifer later stated that when she saw Bobby Poole in the courtroom at the second trial, there wasn’t even a “flicker” of recognition, so hardened was her false memory of Cotton. Jennifer once told me that memory is not like beef stew, where you can pick out and separate the potatoes, carrots, and beef, but more like beef stew after it’s been put through a blender. Once memory is contaminated, you can’t tell which recalled memories are real, and which ones are the result of outside influences and other forces. Just like beef stew put through a blender, it can never be put back together as it was.

Knowing what I now know about human memory, I think it was naïve of Ronald Cotton’s lawyers to think that when they brought Bobby Poole before Jennifer Thompson during the second trial there was any chance that Jennifer would say, “Oh, that’s him. I made a mistake.” It would virtually never happen. And it only happened later in Cotton’s case because of the DNA testing that conclusively matched Bobby Poole, and the remarkable courage, open-mindedness, and humility of Jennifer Thompson.

Damon Thibodeaux

In 1997, Damon Thibodeaux falsely confessed to the rape and murder of his fourteen-year-old stepcousin, Chrystal Champagne.41 Champagne had gone missing on July 19, 1996, and her body was found the following evening along a levee in Bridge City, Louisiana. She had been strangled and badly beaten, as well as partially disrobed, leading investigators to believe that she had been sexually assaulted.⁴²

Damon was one of many people questioned about Chrystal’s death the day after the murder. At first, Damon denied involvement and agreed to take a polygraph test. Afterward, he was told that he had failed. He was interrogated for eight and a half hours, less than an hour of which was recorded.⁴³ Eventually, he gave the police a detailed false confession by incorporating crime facts he had learned from them during the interrogation.⁴⁴ He was then arrested and charged.

Following his arrest, two eyewitnesses came forward claiming that they had seen a man pacing near the levee the day of Chrystal’s murder. The eyewitnesses identified Damon in a photo array and then in court at trial.⁴⁵ Damon was convicted of capital murder and rape on the basis of the eyewitness identifications and his confession. He received the death penalty.⁴⁶

A decade later, the Innocence Project and the Jefferson Parish District Attorney’s Office joined forces to reinvestigate Damon’s case.⁴⁷ After a five-year investigation they jointly reached the conclusion that Damon’s confession was false and that he had been misidentified by the eyewitnesses who testified at his trial.⁴⁸

Why did they misidentify Damon? Prior to identifying him from a photo array, both witnesses had viewed his photograph on television during a news segment that identified him as the alleged culprit.⁴⁹ As Elizabeth Loftus explained on the 60 Minutes episode about the Cotton case, witness identifications are easily contaminated by prior exposure to a suspect’s image in a news segment. After seeing Damon’s picture on television, their memories were altered, and they replaced the face of the man they’d seen with Damon’s face without even knowing it.

Damon’s confession was determined to be entirely false, a conclusion supported by common sense, logic, and DNA evidence. Nearly everything in his statement was at odds with the rest of the case.50 Damon’s descriptions of the crime did not match the crime scene and conflicted with other evidence.⁵¹ Furthermore, while none of the DNA found at the scene belonged to Damon, the DNA of an unknown male was discovered on the cord used to strangle the victim.⁵² The DNA tests also disproved the theory that the victim had been sexually assaulted.⁵³

In September 2012, a Louisiana state judge vacated Thibodeaux’s conviction, and he was released after sixteen years of incarceration, fifteen on death row. He was the three hundredth person in the United States to be proven innocent through DNA testing.⁵⁴

FALSE MEMORIES AND FALSE CONFESSIONS

False confessions are another leading cause of wrongful convictions, and perhaps, at first glance, the most counterintuitive. Of the first 325 DNA exonerations in the United States, 88 cases, or 27 percent, involved a false confession by an innocent defendant.⁵⁵ Of the more than two thousand wrongful convictions identified by the National Registry of Exonerations, 12 percent involved a false confession by an innocent defendant.⁵⁶

Psychologists have identified three types of false confessions. Voluntary false confessions occur when, without any police prompting, an innocent person decides to falsely confess to a crime he or she didn’t commit. These cases usually involve the mentally ill. A typical scenario can be found in the U.S. Supreme Court case Colorado v. Connelly,⁵⁷ where a mentally ill man walked up to a Denver police officer and out of the blue confessed to a murder. Another example, one that received national media attention in the 1990s, is the voluntary false confession of John Mark Karr for the murder of child beauty pageant queen JonBenet Ramsey.⁵⁸

Coerced-compliant false confessions occur when a suspect falsely confesses to a crime under police pressure despite knowing he is innocent and without constructing false memories during the interrogation. This type of suspect usually confesses because extreme police interrogation tactics—for example, fabricated stories by the police that his DNA or fingerprints have been found at the scene—ultimately convince him that his situation is hopeless, that he will be convicted, and that the only way he can get the interrogation to end and minimize his punishment is to tell the interrogators what they want to hear. This type of confessor comes to rationally believe that confessing is his only option, the lesser of two evils. While many people believe they would never confess to a crime they didn’t commit, this type of false confession occurs surprisingly often. An excellent discussion of coerced-compliant false confessions can be found in Dr. Richard Leo’s book Police Interrogation and American Justice, and compelling examples can be found in Tom Wells and Richard Leo’s book The Wrong Guys and John Grisham’s The Innocent Man.59 The documentary film The Central Park Five, which recounts the false confessions of five boys who were falsely convicted of the violent rape and assault of a female runner in the “Central Park jogger case,” provides another excellent account of coerced-compliant false confessions.⁶⁰

The third category of false confessions, coerced-internalized ones, occurs when suspects come to actually believe, as a result of police pressure, that they committed a crime they did not commit.⁶¹ The police pressure makes them doubt their memories, and they ultimately start to “remember” the crime, constructing the facts from information supplied by the police. The false confession expert Dr. Saul Kassin writes that “coerced-internalized false confessions are statements made by an innocent but vulnerable person who, as a result of exposure to highly suggestive and misleading interrogation tactics, comes to believe that he or she may have committed the crime—a belief that is sometimes supplemented by false memories.”⁶²

I have had two innocent clients who falsely confessed in this last way, but both involved special circumstances that make them atypical. Chris Bennett, discussed earlier, was convicted of vehicular manslaughter after the police charged him with being the intoxicated driver in an accident that killed Chris’s best friend. But Chris suffered a head injury in the crash and was diagnosed with amnesia. He could not remember anything about the crash, or the events preceding it, including whether or not he had been driving. He came to believe from the police officers and others who told him that he had been the driver, however, that he must have been the driver, and he agreed to plead guilty. Later, in prison, Chris’s memory started to return in snippets, and he eventually realized that his deceased friend had been driving and that he had been in the front passenger seat. Through DNA testing of the bloodstains left by the impact of the occupants on the windshield, and the discovery of a new witness who placed Chris in the passenger’s seat, we were able to get Chris’s conviction overturned, and he was freed after four years in prison.

Ohio Innocence Project client Glenn Tinney was exonerated after being convicted due to a false confession of murdering a waterbed salesman in his store. But Tinney is severely mentally ill, which caused him to crumble under police questioning and believe what they were telling him rather easily.

SEVENTY PERCENT OF COLLEGE STUDENTS CONSTRUCT DETAILED, FALSE MEMORIES OF CRIMES THEY DIDN’T COMMIT

Before you say, “I would never confess to a serious crime I didn’t commit,” consider this. In 2015, psychology professors in Canada, simulating typical interrogation methods used by the police, got 70 percent of their college student subjects to create false memories of having committed an assault, assault with a weapon, or theft that was entirely fictitious.63

The researchers contacted each of the seventy subjects’ parents or other prior caregivers to confirm that none of the subjects had ever been arrested or had any sort of criminal background. They also obtained details about a true event that had happened to each subject between the ages of eleven and fourteen. In the first interview with them, the researchers told the subjects that they were studying memory-retrieval methods, and asked the subjects to recall two events that happened to them between the ages of eleven and fourteen. Subjects were told that the researchers had learned about both events from interviewing their caregivers. Unbeknownst to the subjects, the second event was a false story of having committed a crime that had been manufactured by the researchers.

In the first round of interviews, the subjects generally could recall the true event but none could recall the false story about having committed a crime. Before leaving, each subject was told that if they tried hard enough, they could remember details about the criminal activity, and they were asked to try visualizing the crime each night before coming back for the second interview.

In the second and third interviews, researchers employed tactics commonly used by the police in interrogations. They told the subjects that there was incontrovertible proof that they had committed the crime, in the form of detailed statements about the crime from their caregivers, and that “most people are able to retrieve lost memories if they try hard enough.” The researchers mentioned “facts” that would make the subjects believe the researchers knew intimate details about their crime, like the name of a friend who they had allegedly committed it with, and a specific, familiar location in their hometown where the crime allegedly occurred.

By the third interview, the vast majority of the college students admitted that they had committed the crime, and were able to tell a detailed story about how they did it. Yet their stories were all based on constructed false memories of facts that had been supplied by their interrogators. At the end of the process, the subjects were asked if they truly believed they had committed the crime or whether they had merely gone along with what the interrogator told them without really believing it. Seventy percent reported that through the memory-retrieval process employed by the researchers they had retrieved a true memory, and now believed that they had committed the crime.

The psychologists who performed this experiment concluded: “This study provides evidence that people can come to visualize and recall detailed false memories of engaging in criminal behavior. Not only could the young adults in our sample be led to generate such memories, but their rate of false recollection was high, and the memories themselves were highly detailed. Additionally, false memories for perpetrating crime showed signs that they may have been generated in a way that is similar to the way in which memories for noncriminal emotional memories are generated. False memories for committing crime also share many characteristics with true memories.”64 Dr. Saul Kassin notes that police interrogators create an atmosphere conducive to false memory construction—far more intense than the atmosphere created in this study—by “exhibiting strong and unwavering certainty about the suspect’s guilt, isolating the suspect from all familiar social contacts and outside sources of information, conducting sessions that are lengthy and emotionally intense, presenting false but allegedly incontrovertible proof of the suspect’s guilt, offering the suspect a ready physical or psychological explanation for why he or she does not remember the crime, and applying implicit and explicit pressure on the suspect, in the form of promises and threats, to comply with the demand for a confession.”⁶⁵ An interrogation conducted in such an intense manner, for a lengthy period of time, can produce a “trance-like state of heightened suggestibility” so that “truth and falsehood become hopelessly confused in the suspect’s mind.”⁶⁶

Peter Reilly

Young Peter Reilly came to believe, through such police pressure, that he committed a crime he didn’t commit. One night in September 1973, his mother, Barbara Reilly, was brutally beaten and stabbed to death in her home.⁶⁷ Three hours after discovering her body, Peter, eighteen, was hauled off to the police station for questioning. An eight-hour interrogation consisting of four rotating officers moved him from denial to confusion and self-doubt, and finally to acceptance of his alleged culpability. Reilly ultimately confessed to his mother’s murder. He had become convinced of his guilt.

Years later, Reilly, speaking at a conference, explained a bit disjointedly what led to his false confession:

To be kept awake for many hours, confused, fatigued, shocked that your only family was gone, in a strange and imposing place, surrounded by police who continue to tell you that you must have done this horrible thing and that nobody cares or has asked about you . . . assured by authorities you don’t remember things, being led to doubt your own memory, having things suggested to you only to have those things pop up in a conversation a short time later but from your own lips . . . under these conditions you would say and sign anything they wanted.68

Reilly served two years in prison before his conviction was tossed. His mother’s murder remains unsolved.

Michael Crowe

Michael Crowe was only fourteen years old when overzealous detectives persuaded him that he had killed his younger sister.⁶⁹ On January 21, 1998, twelve-year-old Stephanie Crowe was found murdered in her bedroom in San Diego. Michael eventually confessed to the killing after a series of brutal interrogations. He at first adamantly maintained his innocence—which would later be proven through DNA testing—but by the end of his final interrogation, he was convinced of his guilt. His belief persisted for two weeks while Michael was held in juvenile hall awaiting trial. But by the end of the two weeks, he had come to realize that he had falsely confessed to a crime he did not commit.

Michael, too, had been told he failed a lie-detection test and that there was evidence implicating him in the crime. To help him reconcile his memory with the events envisioned by the police, the interrogating officers suggested that he had a split personality. The so-called bad Michael murdered his sister but the good Michael could not remember bad Michael’s actions. The officers then pushed Michael into a corner, insisting that if he had not committed the crime someone else in his family did. Faced with no option but to accept guilt or lay blame on a family member, Michael confessed. “You keep asking me questions I can’t answer,” he said at one point. “I’m not sure how I did it. All I know is I did it . . . I don’t remember details.”

After being charged and arrested, Michael spoke to his parents on the phone from juvenile hall, admitting that he must have committed the crime. But his parents never believed it.

Before the case could reach trial, the charges against Michael were dropped. The DNA testing proved that the perpetrator was a mentally-ill drifter named Richard Tuite. Tuite was tried and convicted of manslaughter in 2006.

Bill Wayne Cope

In 2001, Billy Wayne Cope falsely confessed to the murder and sexual assault of his twelve-year-old daughter, Amanda, after police convinced him of his guilt as well. He had denied killing his daughter more than 650 times.70 But after police berated him unmercifully and told him he had failed a lie-detector test, he confessed. Cope had come to believe that the police were right.

At trial and after retracting his confession, Cope testified that the supposed polygraph results had caused him to distrust his memory:⁷¹

I started to doubt myself . . . I thought I knew better. I thought I knew different and I knew that I didn’t do nothing to Amanda. But then he kept saying . . . Mr. Cope, you did and even pictures don’t lie. . . .

[I] started to formulate all these images in my head . . . I started to doubt myself. I felt weak. I felt maybe I did . . . I really did not know. . . . And I started to doubt everything that I had been telling him. I felt vulnerable. I listened to what he said. I trusted the machine. It said I was a liar. . . .

Cope was so convinced that he had committed the crime, he felt relief upon confessing: “I truly did. I thought I had done it . . . I was relieved I had gotten it out and now my daughter’s death could be avenged . . . I was glad to get . . . the images out of my head.” Although semen and saliva collected from the crime scene matched the DNA profile of a local sex offender named James Sanders, as of 2017 Cope remains in prison and continues to fight his conviction today.⁷²

SYNTHESIZED TESTIMONY

Criminal investigations and prosecutions often rely for their success on altered witness memories that have been subtly changed by police and prosecutors. This pernicious problem has not received as much attention as it deserves.

When I became a prosecutor, I learned that it was common for the various witnesses to a crime to have contradictory stories of what happened. Some witnesses might give statements helpful to the prosecution, and others might give statements helpful to the defense. Through leading questions, we would often “correct” the statements of witnesses helpful to the defense so that they were more in line with our theory of the case. For example, if the crime happened at 11:00 P.M., and a witness said the suspect left the bar at 10:30 P.M. and returned at 11:30 P.M., we would “test” the memory of a second witness who claimed that the suspect was in the bar at 11:00 (thereby providing the suspect with an alibi) by grilling him on what we believed was his “obviously faulty” memory. Through our questioning, and even sometimes our implicit hints that other witnesses or other evidence contradicted him, his statement would often change. Indeed, it doesn’t take much in the way of repeated questioning and exasperated responses for a witness to get the message that his memory on a certain point must be wrong, and that he ought to dig deeper and think about it some more. And the “correct” answer was always obvious from our questioning.

Eventually, the witness might come to say, “You know, the more I think about it, you’re probably right. He probably left earlier than that.” He then might suddenly “remember” that the football game playing on the bar’s TV ended around 11:00, and that the suspect had certainly left well before the end of the game. By the time this witness testified at trial, he might be certain that the witness left the bar at 10:30, before the end of the game, and that he didn’t return until much later. And if the witness had earlier said that he noticed nothing out of the ordinary about the suspect when he returned to the bar, with enough pointed questions he might eventually agree that the suspect appeared disheveled, distracted, or agitated when he got back. These are very helpful statements for a prosecutor who thinks that the suspect committed a murder before he returned to the bar.

Psychologist Dan Simon calls this “synthesized testimony.”73 Two factors contribute to it. First, witnesses often want to please law enforcement and help the police catch the “bad guy.” If they pick up from the questioning what the police want them to say, and what the “right” answer is, some witnesses are apt to assume they are wrong and to go along with what the police think happened. When I was a prosecutor, I recall an FBI agent coming back from a witness interview that had taken place at the witness’s home. I asked him, “How’d it go? Did he tell us what we expected?” The FBI agent answered, “He’s a buff.” I asked what that meant. He said, “We get these people who are big FBI fans—buffs. And they’re so excited when an FBI agent knocks on their door that they tend to cooperate and give us whatever we want.” I imagine the same holds true, albeit perhaps to a lesser degree, when any kind of detective or official investigator knocks on the door of a law-enforcement buff.

Second, memories, as we’ve discussed, are quite malleable. Thus, witnesses can be made to question their memories, and then ultimately adopt, and even come to believe, a statement that is quite different from their original statement. Based on my experience as a prosecutor, and what I have seen as an innocence lawyer, I know that synthesized testimony is a common occurrence in our criminal justice system. And it’s not only inappropriate, but it can lead to wrongful convictions.

When we engaged in this practice in my prosecutor’s office, we didn’t feel we were unethically altering witness testimony. Because of tunnel vision, cognitive dissonance, and other human factors, we were always certain that we knew what had happened, even though of course we weren’t there when the crime happened. There was never a doubt in our minds that we had the right guy. So if a witness suddenly uttered that the suspect was still in the bar at 11:00 P.M., and that didn’t fit with what we knew, then this witness had to be wrong. And it was our job to help him remember correctly. After all, it would be an outrage for a suspect to get off scot-free because of the sloppy recollection of a single witness who obviously wasn’t paying close attention, or was not trying hard enough to remember correctly, and who spouted answers to our questions before really thinking them through. By prodding the witness on points that he was “obviously” wrong about, we were helping him make his testimony more accurate and truthful, we believed. Or so we told ourselves.

In fact, when I was hired as a prosecutor, one of the first things I was told was not to write down the parts of a witness’s statements that I believed were incorrect until he had “come to Jesus” and told the “truth.” If we wrote down an early version of the witness’s recollection when he still might be “confused,” it would later have to be turned over to the defense attorney, and that witness would be torn apart on cross-examination for changing his story. The defense attorney might even suggest to the jury that we had told the witness what to say and coaxed him into changing his story. That, of course, is arguably what we had done in reality, but we didn’t see it that way.

So we considered a witness’s initial answers to our questions, if they were incorrect, to be preliminary thoughts or off-hand comments. A statement was not an official “statement” that needed to be written down until the witness had time to collect his thoughts, hear our questions and prodding, had time to focus, and get his memory straightened out. Once he had “come to Jesus” and given us what we wanted to hear, then the statement became official, and could be written down. After that, if we were worried about the witness wavering or going back to his original story at trial, we would have him testify in the grand jury to “lock in” the statements that were helpful to us. Indeed, after a witness has testified in the grand jury under oath, there’s no going back. If he tries to change his story later, we can remind him that he already testified to the contrary under oath, and thus that changing his story could result in a perjury prosecution. “Locking in” witness statements was so common that everyone knew what you meant when you said, “I’m going to put this witness in the grand jury to lock him in.”

What I was taught is, apparently, not uncommon in prosecutors’ offices around the country. A survey of federal prosecutors nationwide found that it is “office lore” in many places not to “take notes until you have enough of the truth.”74 Its status remains as “office lore” because a prosecutor’s office could never enact this practice as an official policy and put it in writing (as it violates the constitutional Brady doctrine!).

As Dan Simon has expressed:

Courtroom testimony is usually proffered months, sometimes years, following the criminal event. Moreover, the investigation itself can induce erroneous testimony. Over the course of the investigation and preparation for the adversarial contest, the evidence often undergoes editing, embellishment, and alteration. Thus, by the time the memorial account is presented at trial, it has both decayed and been subjected to conditions that are conducive to contamination. The transformation of evidence also guts some of the traces of accuracy that occasionally accompany the testimony. Determining the facts accurately from this synthesized evidence is a daunting task. This is one of the most serious impediments to accurate factfinding in the criminal justice process.⁷⁵

I was also told when I started as a prosecutor not to make the various witness statements too in line with one another. If we did, it would give the defense attorney ammunition at trial to claim that we were telling the witnesses what to say. So we would intentionally include in our notes incorrect information supplied by the witnesses on minor points—points that didn’t matter to the case—to show that we weren’t coaching them. If an accusation of coaching was made at trial, we could point to these discrepancies and say, “See, they didn’t all tell the same story—look at these differences! If we were telling them what to say, their stories would all be the same.”

While the vast majority of the time we probably were dealing with guilty suspects and helping witnesses “correct” faulty memories or initial attempts to hide the truth, this practice manufactures evidence and can lead to wrongful convictions in cases where the suspect truly is innocent. And if such a questioning process did help a witness remember more accurately, the change in story should be disclosed to the defense attorney so that she can question the witness about it on cross-examination. If the change was innocent, the witness should have to explain as much to the jury.

When I say “we” did this in my prosecutor’s office, I cannot speak for every prosecutor. There was no office-wide training on these issues, and no official policy. Rather, each new prosecutor learned the customs and practices from the senior prosecutors who were assigned to supervise them, and to “second chair” or mentor them during their first three jury trials. It was “office lore.” And I at times did it myself, convinced that I was doing the right thing by helping witnesses to properly refresh their memories. But, again, I cannot speak for every single prosecutor in the office, although I believe this practice was fairly widespread.

When I look back on the cases of the individuals the Ohio Innocence Project has exonerated and freed, I am struck by my first meetings with my clients in prison—before we had the evidence proving them innocent. A common comment I heard from them in these initial meetings was, “How did the prosecution get the witnesses to say all these things that weren’t true?” My client Clarence Elkins was wrongfully convicted of killing and raping his mother-in-law and assaulting and raping his niece. When I first met him in prison, he said, “They took all these innocent interactions I had with my mother-in-law before she was murdered and made them look sinister. Witnesses testified that at certain parties and gatherings I had appeared angry with her, and I had said hateful things to her. But I was in a good mood at those parties. I wasn’t angry with her at all. That stuff didn’t happen.” Other innocent clients reported similar occurrences. Another client told me that witnesses testified at his trial that he was angry with the victim at a child’s birthday party shortly before she was murdered, and that he left in a huff. But in reality he had been in a good mood at the party and nothing like that had actually occurred. Rather than leaving early in a huff, he’d even stayed late after the birthday party to help clean up.

Now that we know these clients are innocent and were wrongfully convicted on false evidence, it is easy for me to see how such testimony may have been synthesized. After a murder has occurred, and the community is outraged and filled with hatred toward the person the police think did it, it is not a stretch for witnesses to suddenly “remember” social interactions in a way that favors the prosecution’s case. Particularly when the police are asking them pointed questions suggesting the “correct” answer. Just as all the family members in Sarah Polley’s film The Stories We Tell remembered social interactions in a way that confirmed their beliefs about whether or not her mother had an affair, witnesses to criminal activity often fall prey to memory alterations when they’re asked by the police, “Was he angry with her or did he act strange toward her at all in the weeks leading up to the murder? Are you sure? Think hard.”

My office represented Dewey Jones, who was eventually exonerated by DNA evidence and freed after spending nineteen years in prison for a murder he didn’t commit. At trial, several witnesses identified Jones as the culprit, but only after their statements had been synthesized or manufactured by the police. Robert Strittmatter, for example, testified at trial that he had seen Jones standing outside the victim’s house on the day he was murdered. What the jury didn’t hear, however, was that Strittmatter had made multiple contradictory statements before eventually identifying Jones. Indeed, when first interviewed by the police, Strittmatter said that he knew Dewey as a frequent visitor to the victim’s house but that Dewey was not the man whom he saw outside the victim’s house on the day of the murder. When shown a photo lineup, Strittmatter selected the picture of a man named Terry Bowers as that man. Shortly after the first interview, the police went to Strittmatter’s house again, this time with thirty photographs, including a photo of Dewey. This time, Strittmatter selected the photo of a man named Bill Wilson as the man he saw outside the victim’s house that day. He also picked up the photo of Dewey and said that he knew Dewey as a frequent visitor to the victim’s house, but that it wasn’t Dewey whom he saw on the day of the murder.

Several weeks later, the police went to Strittmatter’s house again to talk about the murder. They brought up Dewey Jones as a suspect again. But Strittmatter continued to insist that Bill Wilson was the man he had seen outside the victim’s house, and again stated that it wasn’t Dewey Jones. A few months later, the police returned to Strittmatter’s house with a five-person photo lineup that included a picture of Jones. Strittmatter again stated that he recognized Dewey as a man who frequented the victim’s house, but that Dewey wasn’t the man he had seen on the day of the murder. The police then showed Strittmatter a single photo of Jones, and Strittmatter finally gave them the answer they had been looking for—that Dewey was the man outside the victim’s house on the day of the murder. Later, the police returned to Strittmatter’s house with a new photo array that contained Dewey’s picture, and Strittmatter formally identified Dewey again and signed the photo lineup with his selection.

Another eyewitness, Charles Hughley, received similar “corrections” from the police. Hughley first identified a man named Larry Hayes from a photo lineup, but after repeated attempts by police to get him to identify Jones, he eventually succumbed and identified Jones.

None of these discrepancies came out at trial. Why? Because the police reports containing the witnesses’ prior statements had been improperly hidden from Jones’s defense attorney. We found out about them only years later, after Dewey had already spent nearly two decades in prison.

It is interesting to me that the early, inconvenient versions of Strittmatter’s and Hughley’s statements were even written down by the police, since early versions of statements are often not written down if they are not helpful to the prosecution. Although the jury didn’t know how the police had manufactured a case against Dewey through synthesized testimony, we fortunately found the reports years later and were able to exonerate him with these reports and the results of DNA testing on the crime scene evidence.

•  •  •

In a study in 2016,76 researchers set out to determine whether witnesses could be made to falsely accuse others through a typical police interrogation process. Thirty college student subjects signed up to take what they believed would be a logic test. When they arrived, one at a time, they were placed in a room with another person, who was unknown to the subject and who was also set to take the same test. After the administrator distributed the tests and provided basic instructions, she left the room. A few minutes later, she returned and told the test takers that she had left her cell phone in the room, and she asked if either had seen it. In reality, the administrator never even had a cell phone.

Later, the subjects were interrogated for thirty minutes about the missing cell phone. Interrogators told the subjects that the other test taker had stolen the phone and that they needed the subject to cooperate and tell what they saw. Pressures typical during police interrogations were used on the subjects, such as expressing disbelief when the subject stated he had not seen the cell phone, and in some instances the administrators interrogating them even threatened the subjects with disciplinary action at their universities if they did not cooperate. After only thirty minutes of such discussion, five of the thirty college students stated that they had seen the other test taker steal the cell phone. Each of the five even provided a narrative story about what they had witnessed.⁷⁷

If five out of thirty college students will make up a false story—a complete fabrication, concocted out of whole cloth—to implicate an innocent person under such prodding in an experimental setting after only thirty minutes, it’s not hard to understand how a much higher percentage might be willing to blur a few edges when it comes to helping the police catch someone they think is a dangerous criminal. And when dealing with more subjective and ambiguous details, such as what time the suspect returned to the bar, or whether he appeared shaken up or agitated when he returned, malleable memories begin to play a bigger role. When a police officer asks enough times, “Are you sure he didn’t appear agitated or angry?” and the witness grasps what the officer wants and adopts the statement, the witness often believes it by the time he testifies at trial.

Another recent study also demonstrates how synthesized testimony can be elicited through supplied information.78 In this study, subjects were left alone in a room with another person, who was a confederate of the researchers, and asked to perform some tasks with this person. The purported purpose of the experiment was to study human problem-solving abilities when working alone versus when working in pairs. While the pair were working together, several $20 bills were visible in an open moneybox sitting on a desk in the room. After working on tasks together for a while, the pair were moved to another side of the room behind a cubicle wall, and asked to perform tasks individually. From that point on they could no longer see the money.

A short while after the subjects were moved, they were informed that, after they had moved behind the cubicle wall, the cash had been stolen. Because the subjects were together at all times behind the cubicle wall, however, and could either see or hear each other at all times (the confederates in the study had been told to shuffle papers or otherwise make noise when they were not in the subject’s line of vision), the subjects theoretically should have been able to provide an alibi for the participants and vice versa.

As expected, when interviewed by the researchers, more than 90 percent of the subjects initially provided an alibi for the confederate they were paired with, stating that they could see or hear the confederate at all times and that this person could not have returned to the other side of the room and stolen the money. But upon being shown an “incident report,” which said that the confederate had confessed to stealing the money, but had then recanted his or her confession and claimed he or she was innocent, 55 percent of the subjects who initially provided an alibi backed off their alibi (even though the alibi was true) and were no longer willing to assert that the confederate remained behind the cubicle wall at all times. When the researchers went a bit further and exerted some pressure on the subjects, by suggesting that they could be implicated in the theft if they continued to “cover” for the confederate, 80 percent of the subjects backed off their alibi.

Subjects in this experiment who abandoned their alibi statement reported that they believed in the guilt of their partner, and questioned their own memories, once they learned of his confession.

This study shows, again, the extent to which witness statements, and often their memories, can be influenced by how they are questioned and what they are told during an investigation. The results of this experiment comport with my own experience as a prosecutor, having seen witnesses frequently change their testimonies in response to pointed law-enforcement questioning. And I believe that most of the time when this occurs, the witnesses end up believing their new statements, either as soon as they utter them or, at a minimum, by the time they testify later at trial.

Synthesized testimony was apparent in the docu-series Making a Murderer with respect to the case against Steven Avery for the murder of Teresa Halbach. According to police reports, a young man named Michael Osmundson told the police during the initial investigation that, after it became public that Halbach was missing, he and Avery’s nephew Bobby Dassey had joked with Avery about whether Avery had Halbach locked in a closet somewhere, and that Avery joked back that he needed help hiding a body. If this conversation occurred, it was crude and insensitive but would not be considered incriminating since it was known publicly by that point that Halbach was missing and had possibly been abducted and killed.

At Avery’s trial, however, prosecutor Ken Kratz did not call Osmundson to testify, but instead called Bobby Dassey. In response to leading questions from Kratz, Dassey agreed with Kratz that Avery was the one who brought up the subject of Halbach’s disappearance—by asking Dassey and Osmundson if they could help him hide her body. Dassey further testified, or rather agreed with Kratz’s leading questions, that this conversation occurred a week earlier than what Osmundson had told the police. The date of the conversation was crucial, because Dassey’s version placed the conversation at a time when it was not yet publicly known that Halbach was missing. If Dassey’s testimony were true, it would be highly incriminating evidence against Avery, because only the murderer would have known at that point that Halbach was missing and dead.

At a press conference following Dassey’s testimony, reporters expressed shock that Dassey had given testimony that contradicted the only police report on the matter. They accused prosecutor Kratz of suggesting the date of the conversation in his questions to Dassey in a leading fashion, rather than letting Dassey answer the questions on his own. They also asked Kratz why there were no police reports backing up Dassey’s testimony, and how Kratz was able to obtain such incriminating testimony on the eve of trial. Kratz responded that Dassey provided the incriminating date and details of the conversation during a pretrial preparation session only a few days before the trial. In response, the reporters expressed concern because the leading way in which Kratz had directed Dassey to the “correct” date at trial raised serious questions as to whether Kratz had put words in Dassey’s mouth—in other words, whether he had synthesized Dassey’s testimony on this point. Given what I routinely saw as a prosecutor, and the leading way Kratz questioned Dassey at trial, I share the reporters’ concerns.

THE PUBLIC’S MISCONCEPTION OF MEMORY

The public believes that memory is reliable. When an eyewitness testifies that she is positive the man on trial is the man who raped her, jurors tend to think, “Why would she lie? What does she have to gain by lying? She was there. She would know.” And when the prosecution introduces evidence that the defendant confessed to murder, and signed a written confession, jurors think, “Why would he confess to murder if he didn’t do it? I would never do that unless it was true. There’s no way.”

In a survey of prospective jurors in Washington DC, three-quarters reported that their memories were “excellent.”79 My guess is that the quarter who admitted to not having a perfect memory did so because they are aware of being forgetful at times, not that they think they have false or inaccurate memories of events they actually remember. And almost half of those taking the survey agreed with the statement that memory is like a tape recorder that can be recalled as if it had been “imprinted or burned onto one’s brain.” Again, I suspect that those who disagreed with this statement did so because they acknowledge that they are forgetful, but they are unaware of the malleability of their own memories and the extent to which they likely hold false memories of their own lives. Police officers have given similar responses about human memory. A survey of British police officers found that three-quarters believed that eyewitnesses are rarely wrong.⁸⁰

Even judges are often ignorant of the problem. In several of my cases involving false confessions, judges have made comments like, “Why in the world would he confess if he didn’t do it?” Comments like this serve as an important reminder of the work that needs to be done to get the judicial system to understand modern advances in memory science.

The public reacts with scorn when someone in the public spotlight is exposed as having a false memory, as if their error must have been intentional. NBC news anchor Brian Williams had a false memory of being in a helicopter that was shot down when he covered the war in Iraq. The public reacted with outrage, and he was suspended for sixth months for the transgression.⁸¹ Mitt Romney, a presidential candidate in 2012, got in trouble for claiming on the campaign trail that he vividly remembered when he was four or five years old attending the “Global Jubilee,” when three-quarters of a million people gathered to celebrate the fiftieth anniversary of the automobile.⁸² The event was notorious because it was the last public appearance of Henry Ford. The problem, however, was that Mitt Romney had not yet been born when this event occurred. Romney’s running mate, Paul Ryan, got in similar hot water for claiming that he had once run a marathon in less than three hours.83 He later explained that his memory had simply failed him. But both were lambasted for their memory transgressions.

President George W. Bush gave three contradictory accounts as to how he learned of the 9/11 terrorist attacks. He even claimed to have seen television coverage of the plane hitting the first tower at the World Trade Center at a point in the day when no footage of it yet existed, even for the president.⁸⁴

Misattribution about where you were, or what you were doing, when you learned of a famous event, such as the Pearl Harbor attack, the Kennedy assassination, or the Challenger space shuttle explosion, is actually quite common and called a false “flashbulb memory.” My sister recently recounted a vivid memory of when she lived in a particular home for several years in the 1990s. She woke up one morning, put on her bathrobe, and retrieved the newspaper on her doorstep, only to learn that Princess Diana had died the night before in an automobile accident. When we argued over what year it was that Princess Diana had died and then looked it up to resolve the dispute, she realized she had been wrong and that, in fact, she no longer lived in that particular home on the date Princess Diana died. Even after knowing that she had experienced a false flashbulb memory, when she thought about learning of Princess Di’s death, she could picture only being in the home in which she was no longer living at that time.

Such is the terrible unreliability of human memory.