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Memory and the Law in Oxford Handbook of Human Memory, Volume II: Applications

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Abstract

Memory issues are well-known in legal trials that involve the reliability of eyewitnesses in criminal cases. However, the relevance of memory to law extends far beyond that context. We describe the importance of, and concerns with, different facets of memory in a range of legal doctrine and processes. For example, in product liability cases, witness memory provides key evidence, but such civil cases differ in both the content of the memories and the procedures used to elicit them. In intellectual property cases, memory for trademarks and potential cryptomnesia (unconscious plagiarism) may be used in assessing liability. In contracts and negotiations, parties' memory may be useful, or not, when trying to make sense of the content of an agreement. Prospective memory, that is, remembering to do tasks in the future, is relevant to liability for actions as diverse as injury resulting from not following product warnings to forgetting a child in the backseat of a car. And neurologically impaired memory has consequences for attributions of blame and guilt. We end by providing brief reviews of some recent research on memory's involvement in investigations and in courtrooms (particularly in the U.S.) including: eyewitness testimony, confessions, consequences of pretrial publicity and expert testimony, and the effectiveness of jury instructions for both disregarding evidence and improving juror decision making. Throughout we try to illustrate relationships between the law and different facets of memory described in this Handbook.
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Memory and the Law
in
Oxford Handbook of Human Memory, Volume II: Applications
Barbara A. Spellman, J.D., Ph.D.
University of Virginia School of Law
Spellman@law.virginia.edu
Charles A. Weaver, III, Ph.D.
Baylor University
Charles_Weaver@baylor.edu
Acknowledgments: The authors would like to thank Fred Schauer for comments on an
earlier draft and Kathyrn Boudouris for assistance with legal research.
Citation:
Spellman, B. A. & Weaver, C. A. III (2022). Memory and Law. Oxford
Handbook of Human Memory, Volume II. M. J. Kahana and A. D. Wagner (eds). New
York, Oxford University Press.
Spellman & Weaver p. 2
Abstract
Memory issues are well-known in legal trials that involve the reliability of eyewitnesses
in criminal cases. However, the relevance of memory to law extends far beyond that
context. We describe the importance of, and concerns with, different facets of memory in
a range of legal doctrine and processes. For example, in product liability cases, witness
memory provides key evidence, but such civil cases differ in both the content of the
memories and the procedures used to elicit them. In intellectual property cases, memory
for trademarks and potential cryptomnesia (unconscious plagiarism) may be used in
assessing liability. In contracts and negotiations, parties’ memory may be useful, or not,
when trying to make sense of the content of an agreement. Prospective memory, that is,
remembering to do tasks in the future, is relevant to liability for actions as diverse as
injury resulting from not following product warnings to forgetting a child in the backseat
of a car. And neurologically impaired memory has consequences for attributions of blame
and guilt. We end by providing brief reviews of some recent research on memory’s
involvement in investigations and in courtrooms (particularly in the U.S.) including:
eyewitness testimony, confessions, consequences of pretrial publicity and expert
testimony, and the effectiveness of jury instructions for both disregarding evidence and
improving juror decision making. Throughout we try to illustrate relationships between
the law and different facets of memory described in this Handbook.
Keywords: Memory, forensic psychology, cognition and law, product liability,
confessions, testimony, memory impairment
Spellman & Weaver p. 3
1 Introduction
Issues of memory permeate the law. The most prominent issues, if you ask television
watchers or “psychology and law” researchers, are problems with eyewitness testimony. But the
relevance of memory to law extends far beyond the police station and courtroom, and not only to
criminal law. A glance at this Handbook’s table of contents reveals that most chapters have a
connection to some legal rule or procedure. Law depends not only on episodic memory but also
on semantic and autobiographical memory. It depends not only on visual memory, but also on
auditory memory, and memory for faces, time, and events. It depends on the memory of
individuals, from children to the elderly, but also on interpersonal memory, for example, for
repeated interactions and shared experiences. It often involves memories that involve emotion
and were created under stress. And it depends on metamemory – the beliefs that individuals
have, and the law assumes, about how good memory is and how it actually works.
Accordingly, the first half of this chapter describes the relevance of different facets of
memory to issues of law that do not often appear in the psychology memory literature. These
facets of memory play out in legal areas like the huge product liability cases (e.g., asbestos,
cigarettes) that have awarded millions of dollars in verdicts to injured consumers. They are
relevant to the creation, use, and ownership of intellectual property. And they are applicable to
things people do every day like enter into agreements or contracts with other people and use
consumer products that are generally safe but contain warning labels. We then briefly discuss
some potential legal consequences for people with temporarily or permanently impaired
memories.
The latter half of the chapter provides relatively short descriptions of the research on
“memory during investigation” and “memory in the courtroom”— two areas in which much has
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already been researched and written. Rather than recapitulate it (again), we describe the legal
issues and relevant aspects of memory, and give pointers to recent reviews that can be found in a
variety of different literatures including cognitive psychology, social psychology, neuroscience,
law, and the field known as “psychology and law” (see also Chapter 12.7).
2 Memory in Product Liability Cases
Anyone watching cable TV has seen advertisements from law firms soliciting
calls from individuals diagnosed with mesothelioma. Mesothelioma is a rare form of
cancer, with approximately 3000 cases diagnosed each year (Henley et al., 2013).
Between 70% and 90% of those cases are linked to asbestos exposure (Attanoos, Churg,
Galateau-Salle, Gibbs, & Roggli, 2018). Because of the link between asbestos and
mesothelioma, those diagnosed often initiate lawsuits against the manufacturers of
asbestos-containing products to which they believed they may have been exposed. The
typical award for asbestos-related cases ranged between $6 million and $17 million in a
three-year period within 2009-2012 (Berkowitz, 2012), likely one reason behind the
fierce competition for clients (attorneys’ contingency fees are typically 33-40% of the
award; Hyman, Black, & Silver, 2015).
Product liability cases alleging asbestos exposure present some unique challenges
for the reliability of witness memory. First, asbestos-containing products were
discontinued more than 40 years ago. Second, mesothelioma has a latency period
typically between 20-40 years, sometimes even longer (Mazurek, Syamlal, Wood,
Hendricks, & Weston, 2017). Third, most manufacturers of asbestos-containing products
have long-since declared bankruptcy (Johns-Manville, for example, declared bankruptcy
in 1982). Active defendants are likely to be those (still-solvent) companies that
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manufactured products using comparatively small amounts of asbestos (like joint
compound), or those companies alleged to have supplied or delivered products. Fourth,
in order to win damages, plaintiffs must recall not simply the kind of products they may
have been exposed to, but the specific brand and name of those products as well. Joint
compound manufacturers, for example, usually made many kinds of products, only a few
of which contained asbestos. Finally, witnesses must recall not only specific brands, but
also the time period within which the products were used. Products manufactured,
purchased, and used after about 1978, for example, did not contain asbestos, even if they
were sold under a pre-existing brand name.
These are daunting conditions for any witness. As a result, firms specializing in
asbestos litigation often employ practices to assist their clients in identifying
manufacturers and products. One firm, for example, advertised:
“Our position as asbestos lawyers is that if a mesothelioma or asbestos
lung-cancer victim can recall at least a few details of the exposure, we may be
able to fill in the gaps with appropriate research,” the firm said. “For
example, if a person exposed to asbestos can remember where he or she
worked 20, 30, 40 or more years ago, chances are we can pinpoint the
asbestos-containing products with which he or she came into contact and
identify the corporations responsible for causing the injury.”
(PRWeb, 2012)
Other firms provide lists or photobooks of products to “refresh the recollection”
of witnesses. A witness-preparation memo written by one plaintiff’s firm was
inadvertently disclosed to defense attorneys in the late 1990s (Biederman, Korosec,
Lyons, & Williams, 1998). After viewing photographs of asbestos-containing products,
potential witnesses were given the following instructions for future deposition or trial:
“You may be asked how you are able to recall so many product names.
The best answer is to say that you recall seeing the names on the containers or
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on the product itself. The more you thought about it, the more you
remembered!
“You will be asked if you ever saw any WARNING labels on containers
of asbestos. It is important to maintain that you NEVER saw any labels on
asbestos products that said WARNING or DANGER.” (emphasis in the
original).
Whether these practices reflect zealous representation on a client’s behalf or
something else is beyond the scope of this review (though for an extensive discussion of
the legal issues involved, see Brickman, 2004). Instead, we focus on the literature
examining factors likely to affect the reliability of the testimony elicited in these cases.
Some experimental work on product identification has been conducted using
procedures mimicking those in older more traditional eyewitness memory studies (e.g.,
the Loftus “misinformation” studies described in section 7.1, below). In a more recent
study (Terrell & Weaver, 2008), participants were asked to use (or watch others use)
various cooking products while following recipes. Importantly, they did use flour, but not
Gold Medal brand flour. In the second stage of the study, some participants were given
brief suggestive but misleading information, such as “the Gold Medal flour container
wasn’t a normal size. Was it smaller or larger?” Finally, participants were asked not only
which types of products were used, but also which specific brands were used. Those
who had been exposed to such misleading information were much more likely to
misidentify Gold Medal during this “questioning” test. Using a similar task, Krug and
Weaver (2005) found that as delays increased between product use and subsequent
questioning, participants were increasingly more likely to misidentify brands based on
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overall familiarity rather than specific recollection, a well-established finding in the
general memory literature (see Yonelinas, 2002, and Chapter 5.6).
What about refreshing recollection of witnesses prior to their identification and
testimony? Does it actually increase witness accuracy? Using a similar “kitchen recipe”
task, Terrell and Weaver (2006) showed participants a video containing various products
being used by someone else. Product brands identified by prior research as “highly
familiar” (such as Morton salt or Gold Medal flour) were never used in the video. Then
there was a “refreshing task”, in which participants saw pairs of photographs, with
instructions that the photographs contained product brands they “may have seen”
previously. Some participants viewed pairs containing a correct photograph (for example,
King Arthur flour) with a distractor. Some viewed pairs of two incorrect photographs,
with one of the brands previously identified as high in familiarity (such as Gold Medal
flour) and the other as low in familiarity (such as Shawnee Best flour). Later, participants
were tested on their memory for the specific brands that had been used in the video.
They were shown five brand names (the one actually shown in the video, those shown in
the photographs, and distractors not shown in either the original video or in the refreshing
task) and they were asked to select the one actually used in the video.
On the final recognition test, witnesses who had been refreshed using a pair of
photos that included the correct item identified it as such about 60% of the time.
However, witnesses who had been shown photographs of only incorrect products,
selected the correct product less than 10% of the time. Instead, 80% of the time they
selected one of the products that they had only seen in the photographs. Thus, witnesses
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tended to select products based on the photographs they were shown in the refreshing
task, even if those were products they had not actually seen in the original video.
Subsequent research (Terrell & Weaver, 2007) tested the limits of refreshing
recollection by showing witnesses photoshopped pictures of plausible products that don’t
exist in reality (like “Smucker’s Barbeque Sauce”). Participants shown these
photographs of fictitious products during a “refreshing” phase subsequently selected them
on a recognition test more than one-fourth of the time; without refreshing, they were
never selected. The use of photographs in situations like this is a highly suggestive
procedure, much like the use of “show-up” identifications in criminal cases (see section
7.1.2 “Show-ups”, below); similar cautions and warnings are appropriate (see National
Research Council, 2015).
Product liability cases are also complicated by the structure of costs and benefits.
The payoffs for correctly identifying the products at fault (a “hit” in signal detection
terms) are potentially enormous. Failure to identify a “guilty” product (a “miss”) carries
significant cost—potential damages are left unrecovered. However, for an incorrect (e.g.,
safe) product, identifying the product incorrectly (a “false alarm”) carries no negative
consequences in most jurisdictions. And, there is no financial inducement to reject the
incorrect alternatives. That payoff structure, then, is one that rewards a witness for saying
“yes” even in the face of uncertainty.
The issues above are not restricted to asbestos litigation. For example,
manufacturers of talcum-based products like baby powder are now being sued for their
alleged role in causing ovarian cancer. A jury in Missouri awarded nearly $5 billion to a
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group of 22 plaintiffs (Hsu, 2018; as of early 2020, the case is on appeal), and several
other awards have exceeded $100 million.
Evaluating the reliability of the testimony in such cases is a challenge. Except in
very rare cases (e.g., a witness recalling having used a product when that product didn’t
exist at the time), outside experts cannot say with certainty whether the memory is
accurate. That task is left to the jury (or to the judge in a bench trial). What kinds of
factors should a jury consider when evaluating testimony in these cases? To some extent
that depends on the facts of a specific case, but those common to most such cases include
the following:
1. The length of time since the events transpired. Often retention intervals span
many decades.
2. The age of the witness at the time in question. Many plaintiffs allege exposure
that occurred when they were children.
3. How meaningful the brand names of the products in question were at the time
they were used. We might remember one of our parents painting the basement
as a child, but did we pay attention to the brand of painter’s tape that was
used? The brand of paint thinner? Kassam and colleagues demonstrated that
providing motivation to remember is significantly more effective when that
motivation occurs before (not after) an event is encoded (Kassam, Gilbert,
Swencionis, & Wilson, 2009).
4. The kind of procedures used to elicit the testimony. Sometimes this is not
knowable, because some states consider this sort of witness preparation to be
covered by attorney-client privilege. If witnesses reviewed lists, discussed
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potential products with other individuals, conducted internet searches of
potential products, or reviewed photographs, their memory would certainly be
affected by such post-event information.
5. The presence of independent, corroborating evidence. Some of this evidence
may be in the form of other witness testimony, but the most persuasive are
likely to be things like written records, photographs, or reports.
3 Memory and Intellectual Property
Intellectual property law gives legal rights and protections to various types of
creative products such as writing, artwork, music, designs, and inventions. Among the
protections is typically (though sometimes only temporarily) the right to not have other
people use or copy the product unless the creator gives permission. Intellectual property
law applies to trademarks, copyrights, patents, and trade secrets. Memory plays a variety
of roles in assessing whether a violation of intellectual property law has occurred.
3.1 Memory for Trademarks
Marketing and advertising firms spent more than half a trillion dollars worldwide
in 2019 to build brand reputation and influence consumer purchasing (Handley, 2019).
Trademark protection is given to allow only authorized products to carry identifying
logos and names. Makers of competing products, particularly those from poorly-known
competitors, stand to gain from consumer confusion, and thus often design competitor
products with names that look like, or sound similar to, or are packaged in ways that
mimic, the brand being targeted.
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In absolute terms, memory for product logos is remarkable poor. Blake, Nazarian,
and Castel (2015) found that only one of their 85 UCLA undergraduate participants could
correctly draw the Apple logo from memory, and fewer than half could identify the logo
when shown eight plausible alternatives. In most situations, though, a logo or name
simply needs to be distinctive enough to guide consumer behavior. To the extent a
competing product is selected because it is mistaken for the target product, trademark
infringement has occurred. As Humphreys et al. (2017, p. 831) state, “At its core
trademark law is a law against consumer confusion.”
What makes brands confusable? With respect to brand names, both orthographic
and phonological similarity come into play (Miceli & Pieters, 2010). Products with
brand names that look alike are more likely to be confused. This is particularly true if the
similarity occurs at the beginning rather than at the end of the name (Burt et al., 2017).
Although not a trademark violation, confusion between drug names that look similar
(“oxycodone” and “oxytocin,” or “clonapine” and “clonidine”) is a common and
potentially dangerous source of medical error (Hoffman & Proulx, 2003; Schroeder et al.,
2017).
Even more important than name similarity, however, is perceptual similarity of
the packaging. Humphreys et al. (2017) created lookalike fictitious product labels based
on real products they had purchased in supermarkets. These fictitious labels copied those
of the real products, but were altered to include a false-but-similar or false-but-dissimilar
name instead of the actual product name. Their participants largely ignored brand names
when identifying products. Only when the real and fictitious products were presented
side-by-side was the name on the label noticed. Humphreys and colleagues argue that the
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trademark guidelines of Australia and the U.K. (the authors’ affiliations), which focus on
the names or brand but not the similar packaging of the lookalike products, are failing to
provide protection intended by trademark law. (U.S. law does provide trademark
protection for packaging, called “trade dress”; see McCarthy, 2020).
3.2 Cryptomnesia and Unconscious Plagiarism
In 1969, as the Beatles were breaking up and pursuing solo projects, George
Harrison wrote a song called “My Sweet Lord.” At the end of 1970, the song became the
#1 single in the United States, spending 4 weeks at the top of the charts. Astute listeners
noted the striking similarities between “My Sweet Lord” and a song recorded about a
decade earlier, “He’s So Fine.” Among those noticing the similarities was the publishing
house that owned the rights to “He’s So Fine,” and they proceeded to sue Harrison and
his publisher for copyright infringement. In 1976, after years of legal wrangling, the
judge found in favor of the plaintiffs, awarding the writer/publisher $1.6 million in
damages (Huntley, 2004). The judge in the case did not believe that Harrison deliberately
stole the song
1
: “Did Harrison deliberately use the music of ‘He’s so Fine?’ I do not
believe he did….Nevertheless, it is clear that ‘My Sweet Lord’ is the very same song as
‘He’s So Fine’ with different words, and Harrison had access to ‘He’s So Fine’…. This
is, under the law, infringement of copyright, and is no less so even though subconsciously
accomplished” (Abrams & Ochoa, 2019; Yin, 2015).
Early references to cryptomnesia often referred to memory for the original
information being “repressed,” or even a product of psychical, parapsychological origin
(see, e.g., Stevenson, 1983). The first systematic review of the phenomenon (Brown &
1
For what it’s worth, Harrison’s former bandmate John Lennon did not believe Harrison’s act was subconscious
(Sheff, 2000).
Spellman & Weaver p. 13
Murphy, 1989) recast cryptomnesia as a problem of source memory (see also Brown &
Halliday, 1991; Gingerich & Sullivan, 2013): one generates information (quite possibly
with enhanced fluency) without recalling that the source of the information was external.
Sometimes individuals may plagiarize themselves, not remembering that they had
previously written or generated something substantially similar. The late Larry
Weiskrantz, long-time chair of Experimental Psychology at Oxford, would tell stories of
how S.S. Stevens, one of his professors at Harvard, used to disappear into the library for
days at a time researching what he believed to be an interesting question. Weiskrantz
told of Stevens returning from the library stating that is was a good idea, as evidenced by
the fact that he had published on it a decade earlier.
Unconscious plagiarism differs from (conscious) plagiarism primarily by intent. A
conscious plagiarist is engaged in deliberate deception or fraud, misrepresenting work
completed by others as having been completed by themselves. Unconscious plagiarism
has no such intent; the influence is real, but the writer has no awareness of this influence.
However, as was true in the Harrison case, this does not excuse the act itself, nor does it
exempt one from potential liability (Abrams & Ochoa, 2019). Unconscious plagiarism is
more likely to occur when material is created under speeded conditions, and when
individuals are focused on generating information rather than on reviewing what was
written (Marsh, Landau, & Hicks, 1997). A number of procedures have been proposed to
reduce the likelihood of cryptomnesia and unconscious plagiarism, most of them
following from source monitoring frameworks (Johnson, Hashtroudi, & Lindsay, 1993).
For example, knowing that one’s work will be reviewed decreases unconscious
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plagiarism (Weidler, Multhaup, & Faust, 2012), as do deliberate attempts to review what
was generated.
4 Memory for What Was Agreed To: Contracts and Conversations
People engage in making contracts every day even though they may think of
“contracting” as something only businesses do. We have ongoing contracts for our jobs and our
housing (leases or mortgages); when we travel we may create agreements with airlines, hotels,
and rental car agencies; and we agree to terms when we pay by credit and to a huge number of
undecipherable terms when we download new software. We also make less formal contracts with
other individuals to repair our homes or take care of our children (Wilkinson-Ryan, 2014).
In its role as a regulator and arbiter of human transactions, the law wants to enable and
protect “fair” contracts. To do that, the law needs to know what exactly was contracted for, and
thus typically prefers evidence that comes in the form of contemporaneous writing rather than
retrospective memory. In the absence of a written agreement, or even in the presence of one that
seems unclear or incomplete, courts are circumspect about oral reports because of two potential
dangers: (1) intentional fraud and (2) failures of memory. However, as always, law has concerns
other than the accuracy of memory -- for example, fairness, consistency, efficiency – that justify
many of the exceptions to the rules regarding writing. Accordingly, most jurisdictions have
some variation of a “Statute of Frauds” providing that contracts that are for less than $500, and
can be completed in less than a year, are valid as long as they don’t involve real estate.
4.1 Writing versus Speaking
There are thousands of psychology experiments that involve memory for heard stimuli:
word lists, sentences, stories, etc. Most of these studies assume that there is nothing special about
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the stimuli being auditory and that the results will generalize to stimuli presented visually. There
is much less research on memory using entire conversations as stimuli, although there may be a
current surge of interest in it (compare Davis & Friedman, 2007, p. 41, to Brown-Schmidt &
Benjamin, 2018).
Cognitive psychologists typically have studied memory for content (gist and details);
with some research on memory for whether a statement was made by oneself or another person
or by which of several people in a group (e.g., source memory); social psychologists have more
often studied the latter (and how such attributions may be mistaken). Each may be important in
assessing memory for whether a contract was formed at all and, if so, what its contents are. So,
suppose you want to enter into an agreement with another person to sell them goods or property
or to engage in a business venture together. You talk about what is involved, have a few back-
and-forth-discussions negotiating the details, and shake hands on it. But something happens so
that one person is (or feels) financially injured and months or years later you end up in court.
Everyone wants to talk about their memory for the conversations that were had. Does the court
want to hear it? Typically – no.
Courts do not want to hear about contradictory prior oral agreements (i.e., made by
conversations) if there is a subsequent written document, agreed to by both parties, that is
intended to be a complete and final expression of their agreement. The rule against the prior oral
evidence is commonly called “The Parol Evidence Rule (UCC section 2-202), where “parol”
means “oral.” Legal scholars have suggested several different rationales for the rule (see
O’Gorman, 2016) but a major one is the belief that a written agreement is more reliable evidence
than oral testimony. As various legal scholars have noted, oral testimony can be the result of
intentional lying (which we will ignore) or of “slippery memory”.
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4.2 Are Oral Contract Negotiations Special ?
Of course, the problem of “slippery memory” arises whenever memory is involved. But
there are several things that are special about oral contract formation that suggest that memory
for them might be particularly slippery – or not.
First, contracts are typically the result of one or more conversations, and research shows
that memory for conversations declines rather quickly after the event. It is difficult to measure
how much decline there is: laboratory studies measuring memory for the gist (“idea units”) of
conversations report average free recall memory between 0% and 20% when tested from 5
minutes to several days later (Brown-Schmidt & Benjamin, 2018). That low number illustrates,
at least in part, the inaccessibility of the conversation through free recall; cuing recall will
typically increase memory (but the legal system worries about biases elicited by cuing). In free
recall, subjects tend to report more gist than verbatim information (Campos & Alonso-Quecuty,
2006, 2008); however, verbatim information is likely more necessary for uncovering the contents
of an oral contract. Of course, the amount and accuracy of what is remembered depends on how
the memories are elicited (e.g., recall versus recognition), and on the content and context of the
conversation (Brown-Schmidt & Benjamin, 2018). But is there reason to believe that the kinds of
conversations involved in creating contracts would be likely to create more or less accurate
future memories?
Why might they be better? The testimony would be coming from people who were
involved in the negotiation not mere eavesdroppers. People are better at remembering
conversations in which they were a participant than if they were merely an observer. When they
are engaged in conversation, they must be paying attention in order to respond appropriately and
must be updating and connecting new information in order to advance the conversation. Plus,
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people are better at remembering what they themselves said during a conversation than what they
heard (McKinley, Brown-Schmidt, & Benjamin, 2017; see also “the production effect”,
MacLeod & Bodner, 2017).
On the other hand, memory for conversations about agreements might be worse because
the two parties each have a stake in reporting the past conversations in ways that benefit
themselves. Even without intentionally lying, memory for past events can be biased to make
oneself look good. Call it motivated reasoning, confirmation bias, hindsight bias, or self-serving
bias, people are more likely to misremember or reinterpret aspects of earlier conversations so
that consequences are more in their own favor (Babcock & Loewenstein, 1997).
Second, negotiations are the type of conversations in which people are more likely to
confuse whether they, or another person, said something (see section 3.2 “Cryptomnesia and
Unconscious Plagiarism” above and, generally, theories of source monitoring, Johnson,
Hastroudi, & Lindsay, 1993, and cryptomnesia, Perfect & Stark, 2008). In negotiations, each
party is typically engaged in trying to detect what the other party wants. Self-other source
confusions are more likely in conversations in which people are all focused on the same
information and in which one may be anticipating what the other person will say (Brown-
Schmidt & Benjamin, 2018; Foley et al., 2006.)
Third, in forming a contract, people may make various suggestions, they will agree,
disagree, and change the features of the offers. They may go back to an earlier agreement and
replace it with something novel. These actions are detrimental to memory because they create
interference (see Chapter 6.1, Interference Theory) – even beyond just which term is old and
which is new. What is needed is an accurate report of what was ultimately agreed upon – which
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may have been changed many times and which may not be the last thing fully discussed (e.g., if
there is a discussion of new terms but then the parties agree to go back to prior terms).
Attempts have been made to improve recall for conversations with techniques other than
simple instructions to recall everything. One approach has used a variation of the Cognitive
Interview (Geiselman et al., 1984; see fuller description in section 7.11 “Eyewitness Testimony”
below). Participants were asked to recall a dyadic criminal conversation seen on videotape.
Those in the Cognitive Interview condition recalled more gist and more verbatim information
than those in the very minimal Spanish Traditional Interview (simply asked: “What happened?”)
(Campos & Alonso-Quecuty, 2008).
Another approach to improve memory for conversations, which references the research of
fuzzy trace theory and its distinction between gist and verbatim memory traces (see Brainerd &
Reyna, 2002), is to have participants create a physical timeline for the conversation (Hope et al.,
2019). The participants populate the vertical timeline with “speech cards” that indicate what
they heard and who said it – indicating the latter by placing cards to the left or right of the
timeline. (Think of the display of a text message conversation on a smart phone.) Compared to
participants who wrote down their free recall, those in the timeline condition generally (across
three studies) recalled significantly more gist and verbatim information correctly; for
descriptions of the speakers, they recalled both more correct and more incorrect descriptive
details, but the overall accuracy rates were not different between the two conditions.
Despite the law’s usual preference for written contracts, many contract disputes do rely
on memory. The irony of the “Parol Evidence Rule” is that it does not only apply to oral
statements, it also applies to earlier writings that contradict a final written agreement; those
earlier writings may not be used as evidence either. Accordingly, many current legal scholars
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believe that the parol evidence rule has nothing (or not much) to do with failures of memory for
oral agreements specifically but, rather, for other non-memory-related legal rationales such as a
distrust of juries’ ability to evaluate memory for contracts and having a clear rule about what
constitutes the final, enforceable, version of a contract (O’Gorman, 2016).
5 Memory for Safety Concerns: Warnings and Prospective Memory
Memory is important for keeping us safe. We have to remember whether we’ve
left the stove on, how many pills we have already taken, and which path has the more
slippery rocks. Law is concerned with keeping citizens safe and, as with product liability
cases (see section 2 “Memory in Product Liability Cases”, above), evaluating whether
companies and individuals have taken sufficient care of the people who rely on them.
5.1 Consumer Safety Warnings
Memory plays an important role in consumer safety; consumer warnings are
ubiquitous, but both their memorability and effectiveness are a matter of concern. Some
problems that appear to be memory-related are better thought of as comprehension
problems. For example, despite frequent exposure to Miranda warnings through
television and movies, many people fail to comprehend what those rights mean (Rogers,
Harrison, Shuman, Sewell, & Hazelwood, 2007; Rogers, Rogstad, Steadham, & Drogin,
2011). (See section 7.2 “Interrogating Suspects: Confessions”, below.)
Ironically, warnings need not be well remembered to be effective; indeed, the
most effective warnings are more likely to act as prospective memory cues rather than
information to be recalled (Dismukes, 2012; Laughery & Wogalter, 2006). Cigarette
warnings, for example, need not be recalled to be effective—they simply need to be
Spellman & Weaver p. 20
visible and noticeable on the package, and deter purchasing or smoking once noticed.
Over the past few decades, European lawmakers, among others, have increasingly relied
on sterner, more graphic warnings on cigarette packages, including some that include
images as well as text. Pictorial warnings were noticed more frequently, and those
viewing them reported more smoking-cessation activities (Agaku, Filippidis, &
Vardavas, 2015). Adolescents also noticed graphic tobacco product warning labels more
than those used previously (Vardavas, Connolly, Karamanolis, & Kafatos, 2009). The
warnings are effective because they draw attention at the time product use is being
considered.
In many product liability cases, a central issue is whether an individual
remembers seeing a warning label as part of a “reasonable care” approach to safety. In
cases where risks are foreseeable, products are expected to be designed to reduce those
risks, if alternatives are economically viable and technologically feasible. Next,
manufacturers are expected to recommend or provide safety equipment to prevent (or
reduce) the user from being harmed by the hazard. Finally, manufacturers are expected
to provide training and warnings to consumers about potential threats, both in the
immediate and the long-term. In liability cases where the first and second portions of
these guidelines have been followed, manufacturers may still be liable if users do not
remember seeing a warning.
Warning labels, though, are often ignored. As Rauschenberger and colleagues
state, “the assumption is made that what will capture attention is that which is salient or
conspicuous, and that these qualities are both necessary and sufficient to capture
attention….[However,] there are very few features of an object that will draw attention to
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themselves without or against the observer’s intentions” (Rauschenberger, Sala, & Wood,
2015). The failure of warnings in these situations is not a failure of memory per se, but a
failure to provide information at the time it is salient and likely to be most effective. In
that sense, warnings are best conceptualized as event-based prospective memory cues
(Dismukes, 2012).
5.2 Forgotten Baby Syndrome
Prospective memory failures are also largely responsible for “forgotten baby
syndrome,” the tragic event in which a child dies of exposure after being left unattended
in a car. In a typical case, a caregiver, out of their routine, may be asked to take a child to
day care. The person may then drive, out of habit, to their more usual location (such as to
work rather than day care). A sleeping or quiet child might not be noticed when the
person arrives at work and engages in their get-to-work behavior. By the time the
caregiver realizes the error, it may be too late.
The second author (CW) consulted in such a case. A District Attorney contacted
him when trying to decide how to proceed after a father left a sleeping child in the car
seat, and the child died of exposure before the error was noticed. In this particular case,
the father was asked to take the child to day care one morning, a task usually performed
by the mother. During the commute, it began raining heavily, and the child apparently
fell asleep. The father, rather than turning toward the day care facility at the end of the
commute, drove his usual route to work. The child did not awaken as the father exited the
vehicle in the rain. Several hours later the father realized what he had done, but the
damage was done. The rain had ended, the Texas sun had returned, and the child died of
exposure. The prosecuting attorney wanted to understand whether it was possible that the
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father had “just forgotten” about his child, which seemed to me to be likely under the
circumstances.
More than 800 children in the United States have died this way in the past 20
years, most of whom were simply forgotten (Long, 2018). Preventive legislative efforts
have been initiated to outfit cars with warning systems; similar systems may pair a
caregiver’s cell phone to an electronic tag on the car seat or child’s clothing, setting off
an alarm should the parent leave the child unattended, or have a timed alarm remind the
parent. Some car manufacturers have begun to install such reminder technology (Thomas,
2020).
6 Diminished Capacity in Patients with Memory Disorders
Central to the notion of guilt and culpability is mens rea, or “guilty mind.” In
many U.S. state courts, to mount a successful insanity defense, one must show that the
person who committed a crime had been incapable of distinguishing right from wrong.
The high-profile case of Andrea Yates, who drowned her children in what she believed to
be “the only way to save her children from hell” (McLellan, 2006) is a classic example.
Can the same standard be applied to those who committed crimes but claim no memory
of having done so?
Roughly 25%-40% of those committing murder claim amnesia for the crime, a
number that has remained consistent since the 1950s (see Cima, Nijman, Merckelbach,
Kremer, & Hollnack, 2004, for a review). Until fairly recently, many in the psychiatric
community attributed such memory failures to traumatic, dissociative amnesia. More
recent scholars are skeptical of such claims (Cima et al., 2004; Cima, Merckelbach,
Spellman & Weaver p. 23
Nijman, Knauer, & Hollnack, 2002; Jelicic, 2018), instead proposing that amnesia can
result from a number of causes. Cima et al. (2002) distinguish (at least) three kinds of
amnesia: (1) dissociative amnesia, where the trauma or emotion was presumed to be so
extreme that an individual blocks the memory from consciousness; this is the kind of
amnesia typically portrayed in television shows or in movies; (2) organic amnesia, or
amnesia caused by clear, identifiable neurological abnormalities; these would include
drug- and alcohol-induced memory loss, although the legal culpability for those is
considerably different than for memory loss associated with concussion or epilepsy (Go,
2017); and (3) feigned (or malingered) amnesia, in which the individual is falsely
claiming amnesia in hope of reducing his or her culpability. (See Chapter 9.1, Amnesic
Syndrome.)
Trauma-induced, dissociative amnesia, however, is inconsistent with virtually
everything known about affect, personal significance, and memory. That is, when one
experiences highly emotional, personally significant events, the outcome is enhanced
memory, not poor (or absent) memory. Indeed, these are the conditions that produce so-
called “flashbulb memories”, the subjectively vivid and detailed memories of the
circumstances under which we learned emotional information (such as 9/11/01;
subsequent research has called into question the “special” nature of these memories, with
consensus emerging that they are distinguished by our subjective impressions and
confidence rather than their literal accuracy [see Hirst et al., 2015; Talarico & Rubin,
2007; Weaver & Krug, 2004]). Some research does show impairment in memory with
exceptionally high levels of stress, such as those undergoing highly stressful interrogation
during military training (Morgan III et al., 2007; Morgan III et al., 2004), but the
Spellman & Weaver p. 24
memories for the broad outline of the events themselves do not disappear. More typically,
stress tends to improve memory for central, core features of an event, while impairing
memory for the peripheral details (see Lane & Houston, 2019, for a recent review; and
see Chapter 3.7, Affective Memory).
Organic amnesia is a term that captures many disparate phenomena, from drug- or
alcohol-induced loss of memory to dementia. Although drug-induced memory loss is
certainly well-established, it does little to reduce one’s culpability. An individual who
kills another individual while in an alcoholic blackout may have no memory for the
event, while still being held responsible (U.S. state law varies; Robinson, 2019). A
literature on the relationship between PTSD and diminished capacity defenses is
emerging, though it is not clear those are best considered disorders of memory (Sparr,
2015; Sparr & Pitman, 2007). People with dementia, on the other hand, produce a
difficult challenge for the legal system. Alzheimer’s disease, and especially
frontotemporal dementia, often produce an increase in criminal behavior in addition to
the familiar memory disturbances. In an audit of nearly 2500 patients at the Memory and
Aging Center at the University of California, San Francisco between 1999 and 2012,
nearly 8% of those with Alzheimer’s disease and 40% of those with frontotemporal
dementia displayed criminal behavior of some sort (Liljegren et al., 2015). Particularly in
the case of frontotemporal dementia, the issue is often not one of mens rea but rather one
of impulse control (Mendez, Chen, Shapira, & Miller, 2005). Typical insanity or
diminished capacity laws are not well suited to memory disorders (Go, 2017), and these
issues are likely to play a greater role in an increasingly aging population.
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Identifying feigned amnesia is often difficult. Jelicic (2018) offers some guidance
to sort genuine cases of memory loss from feigned amnesia. Organic causes should be
ruled out, especially damage to neurological structures known to be critical to memory
formation and function, along with memory loss that is attributable to drug or alcohol
use. Genuine memory loss tends to have “blurred edges” at both onset and offset;
memory loss that begins or ends abruptly may indicate feigned amnesia. In addition,
most individuals with genuine amnesia retain “islands of memory,” where some details or
parts of an event are retained. Finally, genuine amnesia usually recedes over time, with
more memories returned as time passes. None of these characteristics provide definite
proof that amnesia is or is not genuine, but people feigning amnesia may be unaware of
the characteristics of real amnesia; thus, relying, at least in part, on these characteristics is
likely to be more accurate than relying on clinical judgment alone.
7 Memory in Criminal Investigations
During a criminal investigation, the police attempt to gather enough evidence to show
that a jury could find the suspect guilty beyond a reasonable doubt. Procedures used to gather
such evidence include interviewing eyewitnesses, using line-ups or show-ups to identify
perpetrators, and interrogating suspects. Each of these procedures heavily involves memory;
some other types of important evidence (e.g., forensic science) are less memory reliant. And each
of these procedures has been the subject of much psychology research that has played a role in
changing police behavior.
Both types of evidence described below – from eyewitnesses and from suspects –
received a major blow to their credibility after a study of the DNA exonerations, which began in
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1989, revealed that of the first 250 DNA exonerations, 76% involved misidentifications and 16%
involved false confessions (Garrett, 2011, p. 8-9). That a witness could yell with great
confidence, “Yes, he is the one who robbed me at gunpoint” and be mistaken, and that a suspect
would confess to something she didn’t do, are things that most people, including jurors, can’t
believe could happen. Yet psychology research can explain when and why they are most likely to
happen. (See the National Registry of Exonerations for the most recent count.
https://www.law.umich.edu/special/exoneration/Pages/about.aspx)
These topics are covered extensively in Chapter 12.7 and in review papers, in all the
major Psychology and Law textbooks, and in popular books. Rather than review these topics in
depth, below we briefly sketch the typical police procedures, mention the important memory
factors, and describe changes made to the law as a result. For a recent general review see Lane
and Houston (2019); for information about the relevant case law see Acker and Redlich (2019).
7.1 Witnesses’ Memory for Events and People
Police rely heavily on what witnesses remember. They interview witnesses about things
that differ in many factors related to memory: for example, events that have happened minutes
ago or years ago and been dramatic or mundane, the witness may have been involved or just an
observer, and been with others or by herself.
The legal system cannot affect how the memories were originally encoded but it can
affect how they are retrieved. Accordingly, the literature draws a nice distinction between
“estimator variables” – an odd name for variables present at the time of encoding (e.g., lighting,
stress, time to view) – and “system variables” – variables the that legal system can affect post-
encoding that may influence what is (truly, falsely, or not) remembered and the confidence in
that memory (see Wells et al., 2020; Wells, Memon, & Penrod, 2006).
Spellman & Weaver p. 27
Thus, the challenge for police is to try to elicit the most accurate and complete
information without contaminating those memories because the memories are likely to be useful
multiple times, including during police questioning, lawyer questioning, depositions, and in the
courtroom.
The extensive literature on eyewitness memory in criminal cases has had two main
focuses: recall memory for events (often referred to by the general term “eyewitness memory”)
and recognition memory for people/faces typically at a line-up or show-up (usually referred to as
“eyewitness identification”).
7.1.1 Eyewitness memory for events
Typically, police would like to maximize the amount of accurate recall by eyewitnesses.
But as Elizabeth Loftus, who spearheaded research on eyewitness memory, is fond of saying,
“memory is malleable” (see Loftus, 2018). Many of the chapters in this handbook recount ways
in which memory is malleable and how recall accuracy can be affected by dozens of factors,
some of which are especially salient when trying to remember witnessing a crime (Chs. Episodic
Memory; Autobiographical Memory; Free Recall and Memory Search). There is often stress or
emotion involved (at both encoding and retrieval; see, e.g., research on “weapon focus” cite and
Chs. Affective Memory; Memory and Stress). On the other hand, the witness might have had no
idea at all that there was something to be remembered and paid little attention to relevant events
(e.g., “Did you see anything suspicious in your neighborhood three Mondays ago?”; Ch.
Attention and Memory). There is memory decay because sometimes the first police interview is
long after the crime or there may be retrieval-induced forgetting due to multiple recall attempts
across the investigation and case preparation (Chs. Repetition and Frequency Effects; Inhibition
Theory). There may be memory distortions due to schemas (e.g., misremembering a gun at a
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bank robbery even though there was none, Ch. Schema, Inference, and Memory) or due to
leading questions by police or conversations with other witnesses (Chs. Memory Errors and
Distortion; Memory for Salient Shared Experiences).
Over the years, and often as a result of the vast research, police have implemented a
number of procedures that may increase what is recalled without contaminating memory. First,
police know to try to separate witnesses at a crime scene to prevent them from talking to each
other and creating converging memories. Second, police know that asking leading questions can
contaminate a witness’s memory and also change confidence in that memory. Third, although
hypnosis may help people remember more than they initially report, research has shown that
people are quite suggestible while under hypnosis. Thus, very few courts allow a previously-
hypnotized witness to testify, so hypnosis is now mostly used as a last resort by police for
almost-cold cases (DOJ Criminal Resource Manual, Sec. 287).
Police also learned that they can do better than asking witnesses to report, “Just the facts,
Ma’am” as was allegedly, though perhaps not accurately, done by the iconic Sergeant Friday on
the TV show Dragnet. The Cognitive Interview (see Geiselman et al., 1984) was developed in
the 1980’s using known memory techniques to help increase what witnesses would recall
without introducing distortions to the story or changing later recollections, as often happens with
hypnosis (Geiselman et al., 1985). In the Cognitive Interview, the first phase of questioning
aims to enhance recall, asking witnesses to mentally reinstate the physical context of the event
and their mental state at the time of the event (see Ch. Context Reinstatement). Witnesses are
also encouraged to report as many details as they remember “because anything might be
important” – thus lowering their reporting criterion. Later, witnesses are provided with different
retrieval cues and asked to recall events in different ways, typically by varying the order (e.g., go
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backward or start from a key action) or from the perspective of different people or locations
(e.g., what would the bank teller have seen)?
This interview technique has been studied, re-evaluated, and slightly updated over the
years and been adopted by many types of investigative departments (Fisher, Geiselman, &
Amador, 1989; Memon, Meissner, & Fraser, 2010; DOJ Criminal Resource Manual, Sec. 287).
7.1.2 Recognition memory for faces: Show-ups and line-ups
People have relatively good memories for recognizing faces that they have seen before
but there are many factors that affect whether their memory will be accurate when elicited to
identify a perpetrator. In 1998, six prominent memory researchers published a scientific review
paper, representing the position of the American Psychology-Law Society (AP-LS), containing
four recommendations for police about how best to collect eyewitness identification evidence
(Wells et al., 1998). In 2020, a similar paper was published, updating the 1998 paper with the
vast amount of relevant research from the past two decades (Wells et al., 2020). The new paper
retains the four recommendations of the earlier one, some with slight revisions, and adds five
new ones. Most of the recommendations (i.e., the ones relevant to memory elicitation) are
described below; we refer to the scientific review papers as the “1998 recommendations” and
“2020 recommendations”.
Show-ups. The police use two main techniques to present a suspect to a witness and ask
whether the suspect was the person they had seen at the crime scene. The less well-known
technique is a “show-up” – where very soon after a crime, a suspect is apprehended and
individually shown to the witness. For example, 30 minutes after a crime, the suspect may be in
the back of a police car that has been driven to the witness’s location, and the witness is asked to
identify whether the person in the back seat was the person they had seen.
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On one hand, show-ups are good for identification because the witness gets to see the
suspect soon after the event, before much forgetting has occurred. (The suspect is often wearing
the same clothing that the witness has described, which has mixed effects on identification
accuracy and certainty.) However, on the other hand, any memory expert (or experimentalist)
should be appalled by the situational pressures and “experimenter demands” present in the show-
up procedure. Because of the DNA exonerations and research by psychologists, lawyers have
argued that all show-ups are “unduly suggestive” and, therefore, a violation of the 5th and 14th
Amendments. Some appellate courts have agreed and overturned convictions, narrowly ruling
that the specific show-up in question had been “unduly suggestive” (e.g., State v. Dubose, 2005).
The prevailing law, is that every show-up must be evaluated based on “the totality of the
circumstances”, which includes whether the police or courts deem it “necessary” in the
individual case. Still, due to fears that a show-up might be ruled unlawful, police began to use
show-ups less-widely than previously (Cicchini & Easton, 2010). The 1998 recommendations
did not address show-ups; the 2020 recommendations include show-ups, suggesting that
“showups should be avoided whenever it is possible to conduct a lineup” (p. 26).
Line-ups. In a line-up, a witness is shown a minimum of six photographs or six people
and asked whether they recognize any of them from the crime. (Note that currently nearly all
initial line-ups are done using photospreads.) Which photos are shown, how they are shown, and
how the witness is asked to respond are all factors (i.e., system variables) that can affect the
accuracy and confidence of a witness’s identification.
The most influential psychology research on line-ups, much of it conducted by Gary
Wells and colleagues, concluded that eyewitness identification was much worse than people
believed it to be and that there was a very low correlation between witnesses’ confidence and
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accuracy. Indeed, the Innocence Project reports that as of September 2019, of the 365 people
who were exonerated by DNA evidence, about 69% percent involved eyewitness
misidentification. The 1998 recommendations made four suggestions for improving line-ups.
One recommendation was about the selection of the five (or more) “filler” photographs
(or people). Line-ups in which the suspect “stands out” have been overturned by courts on the
grounds that they were too suggestive. The standard for a fair, unbiased, line-up is that a random
person reading the description that the witness gave to the police would be equally likely to pick
any of the six people.
The other recommendations involved processes in conducting the line-up. Two
suggestions had to do with decreasing equivalents of “experimenter influence” or “demand
characteristics” found in a laboratory experiment. One was to have the line-up administered by
someone (police or otherwise) who did not know which one was the suspect. This double-blind
procedure would eliminate the problem of intentional or even unintentional signals from the
administrator to the witness as to which person they should select. The other was to instruct the
eyewitness that the perpetrator may or may not be in the line-up. Without that instruction,
witnesses are more likely to select someone from the line-up because they infer that they are
supposed to do so, and thus are more likely to select the (innocent) person who looks the most
like the person they saw – which is often the suspect.
A final 1998 suggestion was to ask witnesses how certain they were in their identification
– and to get the confidence statement before giving them any feedback. Post 1998, researchers
continued to (sometimes) find low correlations between accuracy and confidence; however, the
current belief is that eyewitness confidence and accuracy can be highly correlated – if it is the
witness’s first judgment and their memory has not (yet) been contaminated by any post-event
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processes (Wixted & Wells, 2017; Wixted, Mickes, & Fisher, 2018). The 2020 recommendations
call for a confidence statement immediately after an identification decision is made; it also calls
for confidence statements to be video-recorded along with the entirety of the identification
procedure.
In the years following the 1998 report, other line-up procedures were suggested to law
enforcement. An unusual recommendation was that rather than be shown all six photos at the
same time (“simultaneous”), witnesses should see them one at a time (“sequential”). The theory
was that when viewed all at once, witnesses would be comparing photos to each other and would
select the one that looked that most like what they remembered (whether or not is was the actual
perpetrator); however, when viewed one at a time, witnesses would compare each one to their
memory, and only select someone when the two images “matched” above some very high
threshold. Subsequent research and new analyses have called into question the benefits of the
sequential analyses (see the next chapter in this volume: “Eyewitness Testimony” by Wixted and
Mickes).
These five suggestions, plus others, were adopted for federal jurisdictions by U.S.
Attorney General Janet Reno (NIJ, 1999) and by several state and local courts.
One new 2020 recommendation is that identification procedures should not be repeated
with the same suspect and eyewitness combination. A major objection to such a procedure is
that the eyewitness’s memory will be contaminated and they may make a source memory error
(Johnson et al., 1993), attributing the familiarity of the suspect to the original crime rather than to
the earlier line-up. The other three new recommendations concern pre-lineup interview
procedures (e.g., get a description of the suspect from the eyewitness as soon after the crime as
possible), requiring a written justification for using a lineup (e.g., are there solid evidence-based
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reasons to suspect the suspect before creating a lineup), and video-recording procedures (i.e.,
record everything). Note that eight of the nine 2020 recommendations, that is, all but the
justification requirement, implicate memory considerations.
7.2 Interrogating Suspects: Confessions
The DNA exonerations revealed that many suspects had confessed to crimes that they
hadn’t committed. But why would they do so? Procedurally, people who are interrogated (as
suspects) must be given a Miranda warning stating that they “have the right to remain silent” and
that they have a right to have a lawyer present. However innocent suspects often continue to talk
to the police. One reason is that they may believe that their innocence will protect them (Kassin,
2005); another is that they don’t understand, or don’t remember, the warning (Rogers et al.,
2007; 2011; Smalarz, Scherr, & Kassin, 2016).
Two big questions involving memory arise. First, might some innocent people who
confess actually (falsely) “remember” having committed the crime? Kassin (1997) distinguishes
three types of false confessions; in the first two, suspects know they are not guilty. In
“voluntary” confessions, suspects confess because they actually want to be considered guilty
(e.g., for fame or to protect someone else); in “coerced-compliant” confessions, suspects confess
because they think it is the strategic thing to do under the circumstances (e.g., it will end the
interrogation). But in “coerced-internalized” confessions, innocent suspects come to believe that
they did commit the crime. This belief may result from both individual and situational factors.
Many exonerated people who falsely confess have been adolescents, had general intellectual
impairments, or were cognitively impaired (e.g., drunk, sleepy) at the time of the alleged crime.
Plus, in a typical interrogation, suspects are told repeatedly that they committed the crime
and they may be told (falsely) that there is confirming evidence (e.g., that their friend implicated
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them or that their fingerprints had been found at the crime scene). If suspects start imagining
how they might have committed the crime, they are starting down the well-studied road to
creating a false memory. Repeatedly imagining one’s own possible actions may increase
confidence that one has actually done such actions (e.g., in the famous Loftus “Lost in the Mall”
study from 1995 and its huge progeny, see, e.g., Garry & Polaschek, 2000).
The second memory question is: if the suspects were innocent, why do some of their
confessions contain facts that only the real perpetrator would know (e.g., facts that had never
been released to the public)? Video recordings and transcripts from some interrogations show
police clearly contaminating the memories of suspects by bringing them to the crime scene, by
asking them leading questions (e.g., did you use the clothesline to strangle her?; Garrett, 2011,
pp. 23-44), and by re-asking questions until the suspect gives the “correct” answer (Garrett,
2011, p. 44). Police might even unintentionally “leak” information about the crime to a suspect
in the course of non-coercive questioning, thereby adding to the suspect’s knowledge of the
crime and to what might be included in a false confession (Alceste, Jones, & Kassin, 2020).
Experts who study the psychology of confessions agree about the tactics that are likely to
lead to false confessions and who is likely to be susceptible (Kassin et al., 2018). Knowledge of
the procedures that result in false confessions (and sometimes the creation of false memories) has
led to the strong recommendation that all interrogations be fully recorded from beginning to end
(Kassin, Drizen, et al., 2010). Some, but not all, states have since complied.
For reviews of confession research see: Garrett, 2015; Kassin, 2017.
8 Memory in the Courtroom
Memory issues in the courtroom have also been extensively researched. One major
concern is the reliability of eyewitness testimony, which we dealt with, in part, in the previous
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section on criminal investigations. The courtroom, however, implicates new actors – including
judges and juries – and the important questions of how they evaluate the reliability of eyewitness
testimony presented there. Another important concern, though perhaps not worth the thousands
of pages written about it, is the problem of jurors (and judges) learning information that they
should not know when deciding a case. We briefly deal with both issues below.
Some other questions we don’t cover include: What are the memory effects of lawyers’
opening statements and the order in which the parties present them? When during a trial should
jurors be given instructions about the specific case – beginning, end (as is done), or both? Is
juror memory for the case helped or hindered by allowing jurors to take notes or ask questions
during a trial (Diamond, Rose, Murphy, & Smith, 2006)? What happens to individual jurors’
memories when they interact and deliberate as a group (Hirst, Coman, & Stone, 2012) and
should they be allowed to discuss information before all the evidence has been presented
(Diamond, Vidmar, Rose, & Ellis, 2003; Kerr & Jung, 2018)? In a bench trial, during which
judges both rule over the case and decide the case, how might exposure to inadmissible events
affect judges’ final decisions (e.g., Wistrich, Guthrie, & Rachlinsky, 2004)? Do the rules about
“refreshing recollection” with prior writings (for witnesses who cannot remember things) make
sense? (See section 2 “Memory in Product Liability Cases”.) For recent background on the role
of juries and jury research see Diamond and Rose (2018), for a very useful compendium of jury
decision making research see Devine (2012); for relevance to the Federal Rules of Evidence
(FRE) see Saks and Spellman (2016).
Note that for most of these issues, the majority of the research and writing has concerned
criminal cases, yet as noted throughout this chapter, almost all of it is relevant to both criminal
and civil cases.
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8.1 Learning Things that Jurors Shouldn’t Know
Jurors are supposed to make their decisions based only on the information that they are
given at trial plus their own common sense. But sometimes, accidentally or intentionally, jurors
may learn information that they are not supposed to use. They may be told to “disregard” the
information, which technically doesn’t mean that they should forget it but does require that they
not use it in coming to their decisions. The bottom line is that people often will be affected by
such information, but the current view of jury decision making research is that their decisions
will be affected only in close cases because the primary driver of jury decisions is the actual
weight of the evidence presented (see Saks & Spellman, 2016).
We describe three situations in which such instructions arise; these situations are not
often discussed together but they implicate similar issues of memory. This research could likely
profitably connect with the burgeoning research on memory for fake news and other types of
misinformation.
8.1.1 Pre-trial publicity
Trials are typically conducted near where the incidents giving rise to the trial occurred;
jurors are from nearby areas as well. Therefore, if any news about the incidents was generated,
potential jurors would be the ones likely to learn it. Such news might contain information that a
juror would not hear during the case (perhaps because it was inadmissible) and so could unfairly
bias the juror – who could then contaminate the other jurors during deliberation. When potential
jurors are being selected, they may be asked questions about whether they had heard anything
about the case. If they say yes, they may be asked whether they “can set aside that information
and decide the case based only on what you hear in the courtroom.” Many jurors will (naively)
answer yes. (The first author, BAS, got removed from a jury panel after answering, “I can try.”)
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However, as expected, plenty of studies show that subjects who are incidentally exposed to
information about a case, then participate as mock jurors (either reading or seeing a video of a
condensed case), more often decide in the direction of the information than those who were not
exposed to it. (e.g., Ruva & Coy, 2020). This result occurs even for those who were asked
whether they could set it aside and answered yes. If information has permeated local media,
lawyers may ask that the trial be moved to another location (“change of venue”). However, such
requests are rarely granted; judges will note that jurors have agreed to disregard what they have
learned and rule as if that is sufficient. Note that jurors are admonished not to learn anything
about the case from media or other people during the trial. In recent years, several courts have
removed jurors or called mistrials when jurors were found to have been doing online searches
relevant to the case or discussing the case on social media (see Hoffmeister & Watts, 2018, for a
review).
8.1.2 Disregarding evidence
Probably every reader of this chapter has laughed while watching a courtroom scene in
which a witness blurts out some crucial information, a lawyer objects, and the judge admonishes
the jury to “disregard the witness’s statement.” Dozens of published studies show that jurors are
usually not able to set aside having heard such to-be-disregarded (TBD) information. (It is
unclear what the large number of unpublished studies show.) A good experiment should have (at
least) four conditions, although most do not (Steblay et al., 2006; Walker Wilson & Spellman,
2014). There should be two baseline conditions: a “no-evidence” condition in which mock
jurors do not hear the TBD information and a “no-instruction” condition in which they hear it
with no instruction to disregard. The difference in judgments between these two conditions
reveals the potency of the TBD information. The main condition of interest is one in which
Spellman & Weaver p. 38
jurors hear the information, it is objected to, and then the jurors are instructed by the judge to
disregard it. If jurors were not able to disregard, the result would be the same as the no-
instruction condition; if they were able to fully disregard, it would be the same as the no-
evidence condition. The typical published result shows something in between (see meta-analysis
by Steblay et al., 2006). The published studies include many variations including: the type of
case, the type of TBD evidence, whether the content of the TBD evidence is ever repeated, the
timing and intensity of the instructions to disregard, and whether and how the judge explains
why it should be disregarded. No type of instruction to the mock jurors has been uniformly
successful in erasing the biasing effect of the TBD information although some have been
promising. See Demaine, 2008; 2012; Devine, 2012; Saks & Spellman, 2016, Chapter 3, for
reviews.
The fourth, rarely used condition, is one in which jurors hear the TBD information, and it
is objected to, but the judge rules that it is admissible (so that jurors may use it). Some research
suggests that jurors rely more heavily on such information when it is objected to and let in than
when it gets in with no objection. Potential explanations include that hearing “objection” directs
jurors to pay more attention and that jurors would give particular weight to information that one
side didn’t want the jurors to know (Walker-Wilson & Spellman, 2014).
8.1.3 Limiting use
Sometimes jurors hear evidence that they are supposed to use for one purpose but not for
another. The most prominent example is when a defendant takes the witness stand and his prior
convictions are allowed in to impeach him (i.e., call into question whether he is likely to lie on
the stand) but are not allowed in for considering guilt (FRE 609). For example, suppose a
defendant is on trial for robbery of a convenience store and decides to take the stand (despite his
Spellman & Weaver p. 39
5th Amendment right not to do so). He had been convicted of burglary within the previous 10
years and so the judge decides that the prosecutor can ask the defendant whether he had
committed that prior crime. The judge will instruct the jury that they should consider the answer
only with respect to whether the defendant is likely to be telling the truth on the witness stand
and not whether he committed the robbery for which he is being tried. (Saks & Spellman, 2016,
refer to this as asking jurors to do “mental gymnastics”.) Not surprisingly, studies show that
when the prior crime is similar to the present crime, mock jurors are more likely to convict (e.g.,
Wissler & Saks, 1985). Archival studies of real criminal trials reveal that witnesses with prior
convictions are less likely to testify on their own behalf than those without, although there are
likely confounding variables at work that explain those data (Bellin, 2017; Blume, 2008;
Eisenberg & Hans, 2008).
8.2 Evaluating Other People’s Memory / Metamemory
An important task for jurors, in all trials, is to determine the facts, which means that they
must evaluate whether witnesses are telling the truth, lying, or misremembering part or all of
their testimony. Despite plenty of research showing that people are not very good at detecting
lies, this task is considered to be the “province of the jury”. Accordingly, courts have been
reluctant to admit polygraph evidence (only a few do so), potentially relevant neuroscience
(fMRI) evidence, and testimony by memory experts – even though the first, and possibly the
second, are likely to be better at distinguishing truth from lies than the jurors. Part of the
pushback against admitting such evidence is the common justification that jurors would give it
more weight than it deserves. But do jurors do that and can that mismatch be disabused?
8.2.1 People’s beliefs about memory
Spellman & Weaver p. 40
Over the years, researchers have sampled from every group of people involved in the
U.S. justice system (including judges, police, lawyers, and potential jurors) and shown that their
beliefs about how memory works are very different from what memory experts believe (see
Desmarais & Read, 2011, for a review; Simons & Chabris, 2011, 2012, for later results; and.
Brewin, Li, Ntarantana, Unsworth, & McNeilis, 2019, claiming that some of those results are
artifacts of the survey process).
How can accurate information about memory be imparted to jurors?
8.2.2 Trial techniques to inform jurors about memory: Cross-examination
and calibration information
Could jurors become more knowledgeable about or skeptical of eyewitness memory
during a trial? Courts usually argue that the best way to create the right level of juror believe is
through cross-examination (often called, citing the great evidence scholar Wigmore, “the greatest
engine of truth seeking ever devised”), and that a skilled attorney should be able to reveal that
someone is misremembering what happened. But as Gary Wells has pointed out (60 minutes
interview), although the legal system is designed to help distinguish truth from lies, it is not
designed to help distinguish truth from good faith misremembering.
A few studies informed by the reality monitoring framework (Johnson & Raye, 1981, a
precursor to the source monitoring framework) address “interpersonal reality monitoring” and
suggest that people are above chance at distinguishing whether something they heard or read
from someone else – say the description of an object -- is the product of that person’s actual
memory (e.g., a viewed object) or their imagination (e.g., after being told to picture that same
type of object). However, the studies may contain some confounds and the stimuli (object
Spellman & Weaver p. 41
descriptions) would not have the richness of full testimony containing false memories (Clark-
Foos, Brewer, & Marsh, 2015).
Jurors’ reliance on a particular witness’s memory can be reduced by demonstrating that
the witness is not well-calibrated in his accuracy-confidence judgments. For example, suppose
participants were told that Witness A claims to remember two events prior to seeing a car
accident in which the Blue Car slams into the Red Car. Witness B also claims to remember two
events prior to seeing the accident but says it was the Red Car that slammed into the Blue Car.
Witness A remembers both prior events with total confidence but later one of those memories is
shown to be inaccurate. Witness B remembers one event with total confidence (shown to be
accurate) and one with some uncertainty (shown to be inaccurate). Although prior research
suggests that confident witnesses are viewed as more credible than unconfident ones (see
Spellman & Tenney, 2010), mock jurors believe the well-calibrated Witness B more than the
over-confident Witness A when deciding which car caused the accident (Tenney, MacCoun,
Spellman, & Hastie, 2007; Tenney, Spellman, & MacCoun, 2008). It may be difficult in real
trials, however, to create an opportunities for jurors to get a good sense of a witness’s calibration.
8.2.3. Expert testimony on memory
Although courts had been reluctant to let memory experts testify in trials, in recent years
they have become more open to allowing such testimony (likely, in part, because of both the role
that bad eyewitness testimony plays in wrongful convictions and the strong relevant psychology
research; Wells et al., 2000). Several preconditions must be met to allow an expert to testify. In
addition to showing that the proposed witness is an expert, the expert’s field must be shown to
have a genuine scientific basis including reliable methods and principles and other indicia such
as peer review, quality testing, etc. (Daubert, et al. v. Merrell Dow Pharmaceuticals, 1993).
Spellman & Weaver p. 42
More relevant here is the precondition that the expert’s specialized knowledge “will help
the trier of fact to understand the evidence or to determine a fact in issue” (FRE 702). Courts
initially agreed with lawyers who argued that memory experts could not help triers of fact (i.e.,
jurors) because jurors already knew everything there was to know about memory, so the experts
would just be wasting time. But the survey research described above was essential in helping
courts recognize that jurors (and judges) had much to learn about memory.
Another reason to disqualify memory experts was that they could not reach conclusions
about the facts of the particular case. For example, if a memory expert testified that witnesses’
memories may be changed after multiple rounds of questioning or that the presence of a gun
diminishes memory for other events during a crime – the opposing lawyer is likely to (and
usually should) ask: “But can you say that in this particular case that was a factor that definitely
impaired the witnesses’ memory?” The answer, of course, is no.
However, expert testimony has been increasingly allowed in courts to provide “social
framework” evidence (Walker & Monahan, 1987; Monahan, Walker, & Mitchell, 2008). Social
framework evidence includes general empirical results that provide background context for
deciding factual issues important in a specific case. Eyewitness experts have been allowed to
testify in order to help jurors understand properties of memory that are relevant to the specific
case.
8.2.4. Jury instructions
Some courts now use jury instructions, typically read to jurors just before deliberation, to
describe factors they should consider when evaluating eyewitness testimony. In Neil v. Biggers
(1972), the Supreme Court first set out criteria for evaluating eyewitness memory: “the
opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of
Spellman & Weaver p. 43
attention, the accuracy of the witness’ prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time between the crime and
the confrontation.” This language formed the basis for the Telfaire (U.S. v. Telfaire, 1972)
instructions which directed jurors to “take into account both the strength of the identification,
and the circumstances under which the identification was made.” Such instructions are vague
and potentially misleading, and ultimately proved ineffective (Cutler, Penrod, & Dexter, 1990).
In 2011, the state of New Jersey adopted a much more detailed and evidence-based set of juror
instructions, the so-called Henderson instructions (New Jersey v. Henderson, 2011).
Presumably, jurors asked to evaluate the reliability of eyewitness memory would benefit
from extensive (roughly 3000-word) instructions summarizing the available evidence on factors
affecting witness reliability. Indeed, mock jurors in cases with eyewitness identification were
less likely to vote for conviction after reviewing the Henderson instructions (Dillon, Jones,
Bergold, Hui, & Penrod, 2017; Papailiou, Yokum, & Robertson, 2015). However, this was true
in cases where the eyewitness evidence was strong, not only when the evidence was weak. That
is, the Henderson instructions tended to increase skepticism of all eyewitness memory, but did
not increase juror sensitivity (see also Jones, Bergold, Dillon, & Penrod, 2017). Jones and
Penrod (2018) studied the effectiveness of Henderson instructions modified to incorporate the
interview-identification-eyewitness (I-I-Eye) teaching aid (Pawlenko, Safer, Wise, & Holfeld,
2013). The I-I-Eye instructions are considerably shorter, and use less complicated language.
These modified Henderson instructions did indeed improve witness sensitivity, so that jurors
were more likely to convict a suspect when the evidence was strong, but less likely to do so
when the evidence was weak. Another promising technique (Kurinec, 2019) involves having
Spellman & Weaver p. 44
jurors learn about memory functioning and then trying to explain it themselves—an attempt to
counter the well-known “illusion of explanatory depth” (Rozenblit & Keil, 2002).
9 Conclusion
Despite its well-documented frailties, memory will continue to play an important role in
legal procedures. Much of the research conducted in the past 40 years has focused on eyewitness
memory for suspects in criminal cases and on jurors’ memory and knowledge about memory.
However, as reviewed in the first half of this chapter, the role of memory is equally critical in
other legal contexts, which have had much less written about them by memory researchers. We
believe, and have tried to illustrate, that many of the chapters in these volumes have relevance to
a wide variety of legal issues, and that the time is ripe for more exchanges between basic
memory researchers and the law.
Spellman & Weaver p. 45
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