Kavanaugh’s Accuser and the Sticky Issue of Witness and Victim Memory

Kavanaugh’s Accuser and the Sticky Issue of Witness and Victim Memory

There are a lot of problems with the Kavanaugh accuser’s story, including the fact that it’s possible that she may be deliberately lying for political reasons.

But even if she’s not purposely lying, there are many problems connected with the phenomenon of memory itself, particularly after all these years.

Juries set great store by eyewitness testimony of all kinds, and in particular by that of victims. But bona fide victims can be very mistaken, and in sex crimes there have been many imprisoned men convicted by witness/victim testimony who have later been exonerated by DNA testing. It is very troubling indeed.

Research tells us about it [emphasis mine]:

The uncritical acceptance of eyewitness accounts may stem from a popular misconception of how memory works. Many people believe that human memory works like a video recorder: the mind records events and then, on cue, plays back an exact replica of them. On the contrary, psychologists have found that memories are reconstructed rather than played back each time we recall them. The act of remembering, says eminent memory researcher and psychologist Elizabeth F. Loftus of the University of California, Irvine, is “more akin to putting puzzle pieces together than retrieving a video recording.” Even questioning by a lawyer can alter the witness’s testimony because fragments of the memory may unknowingly be combined with information provided by the questioner, leading to inaccurate recall.

Many researchers have created false memories in normal individuals; what is more, many of these subjects are certain that the memories are real. In one well-known study, Loftus and her colleague Jacqueline Pickrell gave subjects written accounts of four events, three of which they had actually experienced. The fourth story was fiction; it centered on the subject being lost in a mall or another public place when he or she was between four and six years old. A relative provided realistic details for the false story, such as a description of the mall at which the subject’s parents shopped. After reading each story, subjects were asked to write down what else they remembered about the incident or to indicate that they did not remember it at all. Remarkably about one third of the subjects reported partially or fully remembering the false event. In two follow-up interviews, 25 percent still claimed that they remembered the untrue story, a figure consistent with the findings of similar studies.

More here [emphasis mine]:

The process of interpretation occurs at the very formation of memory—thus introducing distortion from the beginning. Furthermore, witnesses can distort their own memories without the help of examiners, police officers or lawyers.

I will add here that many of us “tell” stories of our memories over and over to ourselves, and that affects the story as well.

Continued [emphasis mine]:

Once witnesses state facts in a particular way or identify a particular person as the perpetrator, they are unwilling or even unable—due to the reconstruction of their memory—to reconsider their initial understanding. When a witness identifies a person in a line-up, he is likely to identify that same person in later line-ups, even when the person identified is not the perpetrator…

Bias creeps into memory without our knowledge, without our awareness. While confidence and accuracy are generally correlated, when misleading information is given, witness confidence is often higher for the incorrect information than for the correct information. This leads many to question the competence of the average person to determine credibility issues.

At least in a court of law there are various protections built in to help the defendant. The Kavanaugh accuser’s story—as it stands now, without important details, and of such antiquity—almost certainly could not stand in a court of law. But even if, between now and some hypothetical trial, the accuser managed to flesh out more of those details, she would be harshly criticized by a defense attorney for having suddenly “remembered” the details she couldn’t come up with years ago or even a few months ago. That would be highly suspect.

However, in testimony before Congress, there are no such protections for the accused, and people tend to see what they want to see. The standard of proof is very different than the legal standard, and is more likely to favor the accuser. That’s one of many reasons why this particular situation is so pernicious.

As for false memories that emerge in therapy:

Some memory errors are so “large” that they almost belong in a class of their own: false memories. Back in the early 1990s a pattern emerged whereby people would go into therapy for depression and other everyday problems, but over the course of the therapy develop memories for violent and horrible victimhood (Loftus & Ketcham, 1994). These patients’ therapists claimed that the patients were recovering genuine memories of real childhood abuse, buried deep in their minds for years or even decades. But some experimental psychologists believed that the memories were instead likely to be false—created in therapy. These researchers then set out to see whether it would indeed be possible for wholly false memories to be created by procedures similar to those used in these patients’ therapy.

The answer was that yes, they could, in a substantial number of people. Some people resist false memories, but a “substantial minority” are vulnerable to them. It’s a very troublesome phenomenon. And many of these false memories emerge in the context of therapy. In order to judge the likelihood of a memory of trauma being a false memory, one would have to know many details of the therapeutic sessions to see how much leading was done by the therapist, how the story emerged, and in what initial detail. It is literally impossible to judge the veracity of any story that comes out in a therapeutic session unless there’s a lot of independent corroboration.

The Kavanaugh accuser’s story came out in marital therapy. We know nothing about the dynamics of the revelation and no details whatsoever, except that the therapist’s notes did not include any names of the alleged perpetrators, and differed from the accuser’s current story as to the numbers. This is telling, and suggests at the very least a mutable, changeable memory.

Is a Congressional hearing any way to discuss these very important and very troubling issues? I can’t imagine that it would be. For one thing, questioning the veracity of the memory opens the questioners up to the charge of “disbelieving and re-traumatizing the victim.” But alleged victims can lie—and sometimes they lie without even realizing it.

[Neo is a writer with degrees in law and family therapy, who blogs at the new neo.]

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