Litigator’s Playbook: Is It ‘Seeing is Believing’ or Is It More Likely that ‘Believing Is Seeing’?

by Jeri Kagel, M.Ed., J.D.

Trial Synergy, LLC
www.trialsynergy.com

Memory – we revere it and we fear it. We rely on our own and most often we trust the memory of others, unless it disagrees with ours and then we think we know best. At varying ages, we become concerned if we do not remember something – scared that we are “losing it” and that it – not remembering – is sure to get worse and worse. We want to be able to remember.

We trust our memories. Remembering something is basically synonymous with believing in that memory. Many people tend to be adamant about what they remember, unless they are unsure from the beginning or are asked to refer to the memory far from the event remembered.

As attorneys, whether for the State or the defendant in criminal trials, or the plaintiff or defendant in almost any civil case, we think our case is stronger and more easily won if we have eyewitnesses. We want someone about whom we can say to the jury, “That person saw what happened. That person knows. Rely on what that person tells you.” And jurors do. We hear jurors often say, “I wasn’t there. Witness Jones seems like a nice guy; he was there and he told us that he knows what he saw. Who am I to disagree?”

Yet, research shows more and more that memory is imperfect and can be influenced by many different things. Our legal system has acknowledged this with different techniques for witness identification, the bias toward DNA testing over eyewitness testimony, admitting expert testimony to point out the inconsistencies in the eyewitness’s assertions or how those assertions do not make sense given the facts of the remembered situation.

What is memory? Our brains incorporate three different functions to remember. Each function is open to error.

First is perception. We receive information through any one, or combination of, our senses – we see, hear, touch, smell. Perception is imperfect. We may not notice something, we may overlook one thing for another, or we may hear something and turn in that direction when something else is happening in a different direction.

Second is storage. Whatever we have perceived is stored in our brain. We know that over time we tend to forget parts, or all, of what we perceived. We rewrite or revise what we have stored in the face of, and to fit with, new information, ideas or beliefs.

Third is retrieval. Different parts of our brain work together to search for what it has stored. Memory is not fixed. Each time we attempt to pull up this stored information we may reinterpret or reconstruct the memory.

All three functions are vulnerable to subtle, and not so subtle, influences – the stress of seeing a crime or car accident, the desire to do what (the witness thinks) is right to help the police, the embarrassment people want to avoid if they admit to not seeing or hearing something, and more.

At trial, when we want to counter eyewitness testimony, we most often have two important difficulties to overcome: 1) our jurors are unlikely to understand the limits to memory, and 2) the witness testifying is not lying because he or she believes the memory is correct.

What’s an attorney to do?

My advice is most often geared to the specifics of the case I am working on, so I am reluctant to say too much here. However, should the memory of a witness be an important aspect of your case, here are some issues to consider:

Create juror profiles and voir dire questions that explore what people know about memory in general – its psychology and its function. You’d want to know how people evaluate their own memories and their experience with their memories over time. Who trusts memories – their own and of others? What factors into the degree of trust they attribute to memories?

Testimony of an eyewitness is afforded the most credibility by jurors when the witness testifies in a confident manner. The witness’s conviction may actually be more important than that person’s memories of exact details. Think hard and long about how to cross examine an eyewitness. Often, when confronted, eyewitnesses become more definitive, more defiant and more adamant about the validity of their memory.

Finally, design ways to educate your jury about memory, its limitations and its influences, in your opening and throughout trial.