Professor Christine Blasey Ford, Courtrooms and the Human Memory System

Brain Yapping by Dr Dean Burnett

The human memory can be unreliable so does this mean that we should be discounting Professor Ford’s recall of the events from her youth? No. For several reasons, we believe her.

The majesty of the courtroom and the questionable reliability of the human memory system have long been associated.

Several years ago, while I was working at Cardiff University, a very strange letter landed on my desk. It was from an unnamed man who was due to appear in court in Glasgow for, I think, breaking and entering (the handwriting was somewhat ‘opaque’). Apparently, there were several witnesses to the crime. What my would-be-pen-pal wanted was for me to travel to Glasgow, on my own time and at my own expense, to testify on his behalf that because the human memory system was known to be unreliable and prone to false memories, then none of the witness testimonies could be taken seriously, and he was therefore innocent.

Much as it would have made a good anecdote, I didn’t end up going to Glasgow, mostly because I wasn’t inclined to sacrifice my own time and money so as to defend someone I’d never met from a crime he was, I suspected, probably guilty of (because nothing says “I’m innocent” like asking a complete stranger to undermine the concept of memory on your behalf, right?)

But there was also part of me that thought… what if I went, and succeeded? I’d have shown in a courtroom that no witness testimony was ever reliable. That would set a considerable precedent in a legal setting, one that could probably bring down the whole justice system. And I’ll be honest, I didn’t want that on my conscience.

I bring this up because I was reminded of it just this week when the Republican party in the US seemed to use pretty much the exact same tactic as my would-be pen-pal, during the testimony of Professor Christine Blasey Ford at the Hearing of Supreme Court Nominee Bret Kavanaugh. In order to challenge the allegations that Kavanaugh sexually assaulted her when they were teenagers, Republican senators regularly questioned the reliability of her memory.

This probably isn’t the best approach when dealing with a psychology professor, but then you’ve got to work with what you’ve got, I suppose.

The details of this disgraceful situation are being covered consistently via many other outlets, but it may surprise many to know that the reliability of witness memory in courtroom settings has been extensively studied by psychologists for years.

[NOTE: I’m aware that the Ford/Kavanaugh process is a ‘hearing’ and not a ‘trial’, but in this context the difference is negligible]

This is because, much as we may not like to admit it or even think about it, the human memory system is not infallible. Far from it. It is very plastic and prone to all manner of distortions and biases.

The US Supreme court. You’d hope this institution would be above reproach, but then it’s 2018 so all bets are off.

Indeed, the Innocence project has caused many convictions to be overturned, because they were based on eyewitness testimonies that were later found to be wrong, thanks to DNA evidence or other things which provide a more ‘robust’ record of reality. As such, many psychologists are regularly suggesting that the legal system reliance on eyewitness statements needs to be looked at or revised, to take into account the slippery nature of human memory.

Doesn’t this mean, then, that we should be discounting Professor Ford’s recall of the events from her youth? Are all the people saying “we believe her” jumping the gun?

No. For several reasons.

One is that, as unreliable as eyewitness statements can be, they’re often not totally so. Sometimes it can be a matter of fine detail in a fleeting instant that decides whether someone is guilty or not, and that’s where one observer’s vague recollections can make all the difference, but it’s also when they should be relied on least. But if it’s something serious and the exposure was prolonged and substantial, then the gross details contained in an observer’s memory are generally quite reliable.

But there’s an important distinction to be made here; Professor Ford is not simply an eyewitness, she’s a victim. A victim of assault. That’s not something you can glance at in passing, that’s a prolonged deeply traumatic multi-sensory experience. And if there’s one thing that enhances our memories and our ability to recall them, it’s instances of severe stress or trauma.

There’s a great deal of evidence to suggest that negative emotional experiences enhance the persistence and accuracy of a memory. This can often go so far as to cause clinical problems, as seemingly happens with PTSD. Some suggest that an intense emotional component causes the brain to prioritise memory for what it considers to be ‘important’ details, while overlooking more inconsequential ones.

Sure, there are issues with memory for traumatic events too, which suggest that they can be distorted or changed, making them less accurate or detailed. But that’s where we get to perhaps the most important question; how detailed/accurate does someone’s memory need to be? And in many cases, while a person’s memory may not be 100% accurate, it is still accurate enough.

You may remember a job interview going better than it did, but you won’t remember being given the job if you weren’t. You may not remember the exact colour and model of the car that you were hit by, but you definitely remember being hit by it and all the subsequent pain and injuries experienced. And you will be far more likely to accurately recall a sexual assault and who was responsible, even if you don’t remember what was written on their coat at the time, or the style of wallpaper in the room where it happened.

The human memory is flawed and unreliable in many ways, ways which often prove integral to legal proceedings, but it’s not an either/or situation. Just because someone can’t remember fine details doesn’t mean that all their memories should then be discounted. Insisting on 100% accurate detail from a witness before you’re willing to believe them at all is a hopelessly unrealistic demand. It’s moving the goalposts beyond the horizon.

That’s the sort of tactic you use if you want your side to win at all costs. But don’t ever assume it’s a reasonable or fair one, because it isn’t, and never will be.

Dean Burnett delves into how human memory is affected by emotion and other things in his books The Idiot Brain and The Happy Brain.

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Dr Dean Burnett is a neuroscientist, author and stand up comedian. He is the author of the international best -sellers The Idiot Brain and The Happy Brain. His former column Brain Flapping for The Guardian was the most popular blog on their platform with millions of readers worldwide. He is a former tutor and lecturer for  the Cardiff University Centre for Medical Education. He is @garwboy on Twitter.

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