Have you ever heard someone tell a story of a past event many times and noticed that the story changed with each recounting? Is the narrator of the story lying? Is he/she altering the story to make it more appealing? Or is he/she relying on a distant memory that’s not so reliable? Tough questions all but important ones given the stakes at today’s Senate hearings on a Supreme Court justice.
As a criminal defense attorney, I run into this issue of false memory all the time. Juries in criminal trials have before them the standard of “beyond a reasonable doubt” which means that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty.
Yet, this standard is nowhere to be found in our original jurisprudence. An intriguing piece in National Review clarifies this point.
“Beyond a reasonable doubt” is not a phrase found in the Constitution. Yet these four words, which begin appearing in United States jurisdiction around 1798, have become legal cliché. In 1970, the Supreme Court cited them as the evidentiary gold standard (though in 1990 the Court distinguished it from “moral certainty”). Now we tend to think of “reasonable doubt” as a safety net for the accused. But it did not begin this way. In fact, legal scholars say that the need for proof beyond “reasonable doubt” comes from Christian theology and was originally enshrined in law to prevent jurors from damning themselves by bearing false witness.
. . . to prevent jurors from damning themselves by bearing false witness.
“False witness” is either lying outright or knowingly playing fast and loose with facts. Which makes it a particularly jarring phrase this week, given that Christine Blasey Ford is scheduled to testify before the Senate Judiciary Committee tomorrow. A possible counter-explanation of Ford’s story would be to say that she has a “false memory,” not that she is bearing “false witness.”
Regarding false memories and criminal convictions, National Review points to Dr. Elizabeth Loftus’ controversial work on the subject:
“Dr. Elizabeth Loftus, a cognitive scientist and law professor who has studied memory for more than 40 years, with a particular focus on how it unfolds in the courtroom, has advanced a number of illuminating studies over the years. One gathered information on 300 people in the United States who had gone to prison for crimes they did not commit, as proved by later DNA evidence. Of those 300 (some of whom were imprisoned as long as 30 years), three-quarters of the convictions were the result of the false memories of the accuser.”
False memories hold no moral determination. It’s not that people strive to concoct false memories for devious or sinister purposes. Recent studies in neuropsychology tell us that false memories are the result of how our brains function. Again, National Review,
“Now, Harvard psychologist Daniel Schacter explains that false memories form partly because our brains are constructive — they create narratives about our future, which might lead to related memory errors about our past. Elizabeth Phelps, a psychologist at New York University, reports in Identifying the Culprit: Assessing EyewitnessIdentification that “unknown to the individual, memories are forgotten, reconstructed, updated, and distorted.”
Each of us has a particularly unique way of looking at the world and interpreting sensory data that conforms with that worldview. This construction includes our past, present, and future. In this sense, our view is not objective but highly subjective-being filtered through our carefully constructed interpretive lenses.
This happens in the Kavanaugh case and in every criminal case. So, the issue can’t be defined as liberal or conservative, partisan or non-partisan. It’s far more complex than that. It’s what makes life so complicated and fascinating. It is also why getting at the truth can be so difficult.