Criminal Defense: Study Questions Reliability of Witness Recall

By David Lindsey Attorney of David Lindsey, Attorney at Law posted in Criminal Defense on Friday, October 5, 2012.

A recently published study in the Journal of Neuroscience may affect the witness cross-examination by criminal defense teams at trial; it calls into question the validity of witness recall, citing research that demonstrates the way brain networks alter the way an event is remembered.

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The Northwestern University Feinberg School of Medicine conducted the study, in which subjects were asked to recall the location of objects on a grid over the course of three consecutive days. A series of tests given about the objects showed a clear pattern: if a mistake was made in object location on the second day of the test, the subjects tended to remember the incorrect placement when tested again. In other words, memory reinforced the mistake.

These findings have clear implications with regard to the reliability of witness testimony in criminal proceedings, since memories can be distorted over time. Criminal defense attorney should take note of this in preparing witness cross-examinations.

“Your memory of an event can grow less precise even to the point of being totally false with each retrieval”, according to Donna Bridge, a postdoctoral fellow who worked on the study. “Maybe a witness remembers something fairly accurately the first time because his memories aren’t that distorted. After that it keeps going downhill.”

The study also measured “neural signals”, or the electrical activity in the brain; stronger signals were measured during incorrect recall, which “seems to indicate that a new memory was being laid down,” Bridge said, “and the new memory caused a bias to the same mistake again.”

Northwestern psychology professor Ken Paller oversaw the study, and noted that “the study shows how memories normally change over time, sometimes becoming distorted. When you think back to an event that happened to you a long time ago – say your first day at school – you actually may be recalling information you retrieved about that event at some later time, not the original event.”