How many of us believe we have good memories? Even great memories? After all, most of us have spent a good part of our lives memorizing facts for tests in school. We can easily memorize phone numbers or a list of things we need at the store. We remember lines from favorite movies and jokes we heard in the third grade.
But when it comes to identifying the characteristics of a person’s face or general appearance for a police investigation, or the color, make, or model of a car used in the crime, not only can eyewitness memories fail but they can change over time. Why then do prosecutors rely so much on eyewitness testimony? An even better question might be—if you were prosecuting someone you believed had committed murder, would you risk a hung jury or an acquittal on the testimony of someone who says they saw that person commit a crime?
Before the use of DNA testing, eyewitness testimony was considered the best method of proving that someone had committed a crime. Back then, without an eyewitness, investigators were forced to rely on evidence left behind by the perpetrator. And of course, often, the perpetrator didn’t leave any evidence behind.
Regardless of how often it’s used, however, eyewitness testimony has always been fraught with problems. Consider two people who see the same car accident but remember two totally different scenarios. That happens because the brain is not a camera. It doesn’t take a snapshot and then produce an exact replica of the visual.
Instead, our brains are always in ‘processing’ mode, which means we’re constantly thinking, evaluating, and interpreting what we see. While I might watch an argument between two people and testify that they clearly hated each other based on my frame of reference, someone else may say the argument was merely good-natured sparring.
According to psychologist Elizabeth F. Loftus of the University of California, Irvine, rather than operating like a video recording, our memories are reconstructed much like piecing together a puzzle. And many things can influence the accuracy of the memory, including how the witness is questioned. Loftus says, “…fragments of the memory may unknowingly be combined with information provided by the questioner, leading to inaccurate recall.”
In one study, researchers tested this theory by presenting false memories to subjects as if the incidents had actually happened to them. When the false memory included even one or two true details given to subjects by relatives, up to a third of them stated categorically that they remembered all or a portion of the incident, when in fact, it never happened.
If you’re a fan of Netflix and have watched any of the docuseries about the Innocence Project, you’ll know that these kinds of witness mistakes are not rare in the legal justice system and can be devastating to people accused of a crime they swear they didn’t commit. The Innocence Project is a nonprofit organization created in 1992 by Peter Neufeld and Barry Scheck and is committed to working with individuals who have been wrongly convicted as well as working to reform the criminal justice system to prevent future injustice.
Since the time DNA testing became available, the Innocence Project reports that of the 239 convictions overturned by DNA testing, 73% of those individuals were convicted based on eyewitness testimony. Even more disturbing is that a third of those cases rested on the testimony of two or more eyewitnesses who were mistaken. When you consider that studies have shown that approximately 4-6% of incarcerated people are innocent, that means potentially thousands of people are sitting in prison right now because of a mistake—possibly an eyewitness mistake.
We are a country of laws, and yet the laws don’t always work for everyone. And when the system relies on an individual’s memory as the means to lock a person up for decades, perhaps for life, we should question how those memories were elicited in the first place.
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