Suppose the promised hearing convinces you that Professor Christine Blasey Ford is an honest person whose accusations against Judge Brett Kavanaugh are made in good faith. Does that mean Judge Kavanaugh’s denials are false and that he is a liar or guilty of sexual misconduct? Not at all.
More often than most of us realize, honest witnesses sincerely swear to things they vividly recall but simply are not true. When events are long past, memory errors become very common, even for dramatic events seared into our memories like a flashbulb going off. Human memory is a very tricky thing, and our memories get worse with the passage of time.
Importantly, witnesses often are unaware of possible defects in their memories. When we draw a blank or a blur, at least we know we do not recall. But that is not the only way memory fails us. A degraded memory may seem vivid and sharp, and witnesses with such memories testify to them with full conviction. Observers can’t detect a lie because there is no lie to be detected. We can be convinced a witness is being completely honest, but that does not mean the witness’s testimony is true. Sometimes the memory is false.
But can such an error really extend to a victim misidentifying an attacker, someone whose face should be seared in the victim’s mind? In fact, that happens all the time, including an episode reported in the September 18 Washington Post and hundreds of examples collected by the Innocence Project. But first a little background.
I began learning the vagaries of memory 45 years ago, early in my career as a litigator. Fresh out of law school, it seemed to me that losers in civil tort trials usually should be prosecuted for perjury. After all, if one side was telling the truth, the other must be lying, right?
But as I began to work with witnesses, friendly and hostile, I made a troubling discovery. Often two people I judged to be entirely honest and sincere would provide radically different descriptions of the same event. Gradually I began to understand the critical role that expectations and emotions play in shaping our perceptions and, hence, our memories. If an executive entered a meeting worried about issue X and convinced he would be pressured about it, he might perceive and thus recall the meeting to be centered around that subject, with every comment bearing on it somehow. If the issue was troubling, he might recall the meeting as going on forever. Another executive with different concerns might perceive the focus and meeting length very differently and even overlook any references to issue X. Later they would testify to opposite memories of the meeting, yet both would be telling the truth as they saw it. If reliable lie detectors existed, both would pass with flying colors.
Such sharply differing witness memories proved one of the important barriers to settling disputes (an outcome I increasingly came to favor over the years.) It pained my clients to think the other side could get away with such outrageous lies. To the extent I could help clients understand there might be a difference of perception and memory, rather than dishonesty, better angels could prevail.
The troubling fragility of memory lately has been underscored in the context of eyewitness identifications. Anyone who reads the papers knows that DNA comparisons and other forensic techniques are showing that a troubling number of defendants convicted based on the eyewitness memories of victims and witnesses are, in fact, entirely innocent. In most of these cases the witnesses were honest, but their memories were wrong.
Emerging concerns over witness memories were addressed in a 2014 consensus study report by a blue ribbon group of scientists convened by the National Research Council titled Identifying the Culprit: Assessing Eyewitness Identification. The study found that eyewitness memories were more fragile than generally assumed and were easily distorted. It reported that “perceptual experiences” are both shaped “by expectations that are based on prior experiences” and “stored by a system of memory that is highly malleable and continuously evolving.” “The fidelity of our memories to actual events may be compromised by many factors at all stages of processing [as] unknown to the individual, memories are forgotten, reconstructed, updated, and distorted.” The report cautioned that many existing law enforcement practices were likely to distort eyewitness memories and should be changed.
Parallel scientific research confirms the report’s conclusions in the context of “flashbulb” memories, recollections of extreme events that seem burned into our minds for life. A series of widely reported national tragedies provided opportunities for scientists to test such flashbulb memories. Days after President Kennedy was shot, Challenger exploded, and the World Trade Center fell, different groups of researchers persuaded large numbers of people to provide basic facts, such as where they were when they first learned of the event, how they were informed, what they were doing, and what they observed. These immediate answers were recorded and then, at increasing intervals of months, years, and a decade or more, researchers asked the same questions again.
These fascinating studies and their surprising results are freely available in both scholarly and popular sources. Just do an Internet search for “flashbulb memories unreliable” and start reading. As you will see, two conclusions consistently jump out:
- First, these vivid flashbulb memories become inaccurate as time passes. Later answers flatly contradict earlier accounts. It turns out that, contrary to popular belief, many people do not accurately remember where they were when President Kennedy was shot or who first told them of the shooting. They just think they do. After 10 years, most memories were seriously inaccurate.
- Second, witnesses with degraded flashbulb memories often were firmly and sincerely convinced their memories had not changed. Their present recollections felt clear, vivid, and certain. Confronted with their contrary earlier written responses, they wonder how they gave such mistaken answers, some vigorously denying their earlier responses even as they admitted they were recorded in their own handwriting.
But could a victim of sexual assault really misremember a perpetrator’s identity? Such an example just appeared in a Washington Post article by Elizabeth Bruenig titled “What Do We Owe Her Now?” The article presents a sad recounting of how local Texas officials shamefully failed a high school girl who promptly reported a rape by a football player and a soccer player. But some of its details bear directly on the present. The Texas victim was a 16-year old varsity cheerleader who attended an alcohol-fueled party, went driving with two older boys, who raped her. Although she immediately returned to the party and reported the rape, she “was disoriented and confused [and] misidentified one of the two … instead naming a third boy who had been at the party.”
In that case, because the girl’s report was prompt, her identification error was quickly corrected. There was no question which two boys had been with her in the truck. But the key point is that, within minutes of the attack, her memory already had substituted one boy at the party for another who was innocent. That young woman is not an isolated example. Far from it. Eyewitness Identification from the Justice Project reports that faulty eyewitness identification memories account for 75 percent of hundreds of convictions later shown to be wrongful by DNA evidence. In some cases, the memories of multiple eyewitnesses failed. In 1983, Georgia mistakenly convicted Calvin Johnson of rape based on identification memories of four eyewitnesses, all wrong.
Parallel results were reported when more than 500 highly selected military personnel were given hard-core training in how to survive as a POW. Part of the experience was a realistically intensive and threatening interrogation. But although the POW and interrogator were face-to-face for 30 to 40 minutes, almost two-thirds of the POWs later failed to identify their interrogator. These and other similar results were collected in a 2013 article by Joyce Lacy and Craig Stark, “The Neuroscience of Memory.”
It may seem incredible that the memory could play such tricks. But remember what the 2014 study observed about the effects of expectations and circumstances on memory. The Texas cheerleader, who apparently was not entirely sober herself, suddenly was plunged into a chaotic and terrifying situation, struggling to protect herself. In the moment, she had more to do than memorize a face. Later her memory had to construct a coherent linear story from the jumbled confusion of experience.
Importantly, scientists now reject the old belief that memories are simply recorded and stored intact, to be played back by the brain like a video. Instead, in a still-mysterious process, the brain calls up a few linked facts and combines them with a sense of what normally occurs to reconstruct a memory. As the 2014 report cautions, this process of memory reconstruction is complex, open to error, and may mistakenly incorporate items that then get embedded in future reconstructions. In particular, memories of the identities of attackers are easily corrupted, as the report documents.
So, apply this science to Ford’s reported recollections. She says she was a 15-year old girl attending a party in a house with several older teens. Loud music was playing, and alcohol was present. She went upstairs alone looking for a bathroom. With no warning, a heavily intoxicated older boy suddenly pushed her into a bedroom and onto a bed and fell on top of her. He fumbled with her clothing and held his hand over her mouth. Then a second boy jumped on top, knocking them apart. She escaped to the bathroom. The boys left.
Professor Ford says her young self was terrified. She expected to be raped and possibly killed. Such events easily could form a flashbulb memory in which, 35 years later, Professor Ford still feels she can see and hear everything with crystal clarity. If so, she may display every mark of honesty and good faith in testifying to the memory. But that does not mean that the memory is accurate. It just means she is not lying.
Unlike the case of the Texas cheerleader, Ford did not report events immediately. No quick process of verification and correction occurred. Beginning right after the assault and continuing for decades, her memory would have been constructed and reconstructed over and over. In the process, it is not only possible but perhaps even probable that errors crept in. Critically, she would not be aware of those errors. In short, she may testify honestly and in good faith to an identification of Judge Kavanaugh that is simply untrue.
Obviously, we have to work with human memory, fallible as it is. But we must do so with an acute awareness of its fallibility and limits. We may sympathize with the common reluctance of girls and women to report assaults promptly and consider ways to encourage such reports. We may recognize that delay, even lengthy delay, is not the mark of a liar.
But at the same time, we must not close our eyes to the scientific fact that a long-delayed report often will be seriously inaccurate, both as to who acted and what they did. And the lack of other evidence, whether due to the delay or other factors, must not, perversely, be thought somehow to bolster the memory’s accuracy. Absence of evidence is not evidence of sexual assault. The reason we need to encourage prompt reporting of assaults is precisely to record immediate memories and to develop to corroborate or refute the slender reed of eyewitness memory.
Honest people testify to false memories all the time, particularly where the memory is of traumatic events long-past. If we conclude that Ford is testifying honestly, we can accept that she experienced a frightening assault and genuinely holds the memories she describes, and we should sympathize with the pain those memories cause her. But, as frustrating as it is, we cannot use her honesty as proof that her memories have remained accurate over the decades. Giving fair weight to what science teaches about the fallibility of memory, we likely will have to conclude the underlying truth is one of those billions of things we never will actually know.
