The memory wars: testing the vagaries of human testimony

Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with you.

Today, the vagaries of human memory. Elizabeth Loftus is a well renowned professor of both law and psychology based at the University of California’s Irvine campus. She’s just been visiting Australia as a guest of La Trobe University’s School of Psychology. Professor Loftus has for many years been at the forefront of complex and controversial debates around the nature of memory, and her research has made her a much sought-after expert witness in both criminal and civil trials.

Elizabeth Loftus: I’ve testified in court cases more than 250 times on the subject of human memory and the factors that influence memory, and it’s always hard to know what influences a jury verdict. I’m one small piece of a case as an expert witness, but there is also the skills of the attorney and the facts of the case and the luck of the jury selection and so on that influences the outcome. But I can tell you that eyewitness testimony, we now know, is the major cause of wrongful convictions.

In one project in the United States where more than 300 cases of wrongful conviction…I mean, we know these are wrongful convictions because DNA testing was ultimately done and proved that these individuals were absolutely innocent, after they had served 10, 15, 20 years in prison for these crimes they didn’t do. And we know that the major cause of these wrongful convictions is faulty eyewitness testimony. So I think it’s essential to do something about the eyewitness testimony because, unchecked, jurors are going to have a tendency to want to believe it.

Damien Carrick: Tell me…I know you’re reluctant to pick on a particular case, but can you tell me about one or two which really stick out in your mind where you think that the evidence you gave was very important and you’re very proud of having given that evidence?

Elizabeth Loftus: Well, there is a case of one man who had been convicted of a brutal murder. His conviction was overturned for technical reasons because prejudicial photographs had been used and introduced in a way in which the higher court decided was unfair to the defendant. He was granted a new trial. I came into the case and testified about the sort of shabby eyewitness testimony and what factors were problematic, and he was acquitted at the second trial. So that was a very special case for me.

Damien Carrick: Like you say, you’ve given evidence in something like 250 cases. You first began studying how memory works I think back in the 1970s, and you began by looking at eyewitness accounts of car accidents, and you began to construct some really interesting experiments. And you found that the questions that are asked have a huge impact on the answer. Tell me about your study and some of the really interesting discoveries that you made.

Elizabeth Loftus: Okay. The kind of conclusions that I would reach based on this work really applied to memory for any kind of complex event. But what I was doing back in the first batch of experiments is showing people simulated accidents, maybe films of traffic accidents, and then I would question people about what they witnessed. And in one study, for example, we asked people a question like, ‘How fast were the cars going when they hit each other,’ and we asked other witnesses a similar question but with a different verb, ‘How fast were the cars going when they smashed into each other,’ and we found that our witnesses told us the cars were going faster if we use the word ‘smashed’ than if we used the word ‘hit’.

But then we also had another finding. If you came back a week later and said to these witnesses, ‘By the way, did you see any broken glass?’ Those to whom we’d earlier used the ‘smashed’ question, they were far more likely to say they’d seen broken glass that did not exist compared to witnesses who had been asked to be less leading question with the word ‘hit’.

And so based on this kind of research, this study and many others, we concluded that those leading questions affect not just the answer that a witness gives but can have a long-range affect, can affect the answers to completely different questions that you put to a witness often much, much later.

Damien Carrick: I believe that you found that even prepositions can make a major difference. So if you asked the question, ‘Did you see a broken headlight,’ you’ll get a different answer from the question, ‘Did you see the broken headlight?’

Elizabeth Loftus: That’s right, using the definite article, ‘Did you see the broken headlight,’ led more people to say, ‘Yes, I saw it.’ There was no broken headlight in the accident, and yet using the definite article ‘the’ compared to ‘a’ led witnesses to claim they saw this non-existent object. So another example of how the wording of a question can affect what people saw and can make people think they saw things that didn’t exist.

Damien Carrick: You’ve given evidence in many cases. I think there was one where a woman was accused of killing an abusive boyfriend, and the question was; was this self-defence or premeditated murder. And the big question was how much time had elapsed between picking up the gun and firing it. Some witnesses said minutes, some said seconds, and your evidence was very important in terms of the jury coming to a decision about who to believe.

Elizabeth Loftus: I did work on that case, I consulted on that case. I actually consulted on that case for free because I wanted to get a close-up look at real witnesses, not just the laboratory witnesses that I’d been dealing with for the whole previous couple of years. So I volunteered my services to the chief public defender who was trying that case of that female defendant. I consulted on the case and ultimately the woman was acquitted. I then wrote an article about the case and how the science could be used to understand what happened in this case and how the lawyer was able to use some of that science and publish that article, and that’s what alerted the legal field to the value of psychological science in this arena.

Damien Carrick: You’ve gone on to, as you say, give evidence in many, many trials. Some of them have been very high profile and very controversial criminal trials, and you’ve usually worked for the defence. I believe you worked on a case for Ted Bundy and he was I think convicted of kidnapping in that trial but escaped and of course he eventually went on to admit killing something like 30 people. Do you ever worry about the evidence that you gave may be getting people off…?

Elizabeth Loftus: In the case of Bundy we did not know that he was the Ted Bundy. When I got a call from the attorney representing Ted Bundy, it was Ted who was a law student at the University of Utah Law School who was arrested for this aggravated kidnapping. And I did analyse the eyewitness aspects of that case, I testified about some of the issues that the judge should think about in that case. I believe it was a bench trial. In the end the judge did convict Bundy of that crime, and as you indicated and the rest of the world knows, he would ultimately be extradited to Colorado where he was standing trial for another crime and ultimately escape from jail in Colorado, end up in a Florida and commit horrible crimes there. So I don’t have to worry that somehow my testimony in that case led to an acquittal and lead to somebody out on the street committing more crimes. I would feel terrible if that happened. So far I guess I’m lucky because to my knowledge it hasn’t happened.

Damien Carrick: So it’s not something that keeps you awake at night?

Elizabeth Loftus: No, it’s not, and of course earlier in my career I believed that psychologists should involve themselves in legal cases, and not be trying to decide who is guilty and who is not, but the public paid for the scientific work and has a right to the information and to have it be available. Nowadays I prefer to testify for people when I have this gut feeling that I may have somebody who is innocent. But I have so many cases that I could work on. I now have the luxury of waiting for that one that I think may really be innocent.

Damien Carrick: There have been a lot of very high profile cases. The Hillside Stranglers, the 1992 trial of the police officers who beat Rodney King in LA, Phil Spector the music producer. I imagine that you would as an expert witness come to these cases and say at the end of the day everybody is entitled to a fair trial and it’s the job of the prosecution to establish beyond reasonable doubt somebody’s gilt.

Elizabeth Loftus: I agree with that completely. But also just to clarify so the record is just perfectly pristine here, sometimes I consult on cases but end up not testifying. So I did testify on behalf of Phil Spector. I still have doubts about what really happened in that case, and I think that the sort of accident theory is an extremely viable theory, even though the jury did decide to convict him. The officers in the Rodney King case, I did consult on that case, didn’t actually testify.

Damien Carrick: They didn’t want your testimony.

Elizabeth Loftus: No, I think they probably did want the testimony but the judge wouldn’t admit the testimony because there’s a whole issue there about whether judges admit this psychological evidence or exclude it.

Damien Carrick: You’re listening to the Law Report on ABC Radio National. Today, a conversation with Professor Elizabeth Loftus from the University of California, who is currently in Australia.

We’ve been talking about the unreliability of memory and some of the issues around that, but you are perhaps most famous for your work in cases involving repressed memories. Can you tell me about when you first became involved in that field, which is an incredibly controversial field. Tell me about that first case you were involved with.

Elizabeth Loftus: Well, that one I remember very well because it was approximately 1990. By that time I had spent 15 years involved in criminal and civil cases involving eyewitness issues. I’d testified quite a few times by then. Typical eyewitness types of cases, so some event really did happen and the witnesses’ memory is or is not accurate or affected by other influences.

I got a call one day from an attorney and he said, ‘I’m representing a client, he is accused of murder, his name is George Franklin. And the claim against him is that his daughter witnessed her father kill her little best friend when she was eight years old and repressed the memory for 20 years, now the memory has come back and now they are prosecuting George Franklin based on this claim of repressed memory. So what do you know about repression?’

And there I was, at that point I’d had my PhD for 20 years, I’d been studying memory for 20 or more years, and I said, ‘Well, I’ve heard of the idea, it’s kind of this hand-me-down Freudian concept that you take horrible things and banish them into the unconscious and then you can somehow reliably recover them later.’ And he said, ‘Well, what’s the evidence for it?’ And I said, ‘Actually I don’t know if there’s any good evidence.’ And I started to look, in conjunction with working on that case. And I was shocked. There was no credible scientific support for this. And despite that, George Franklin was convicted of murder. He could be virtually the first American to ever be convicted of murder based on a claim of repressed memory.

Damien Carrick: Was there other corroborating evidence?

Elizabeth Loftus: No, no. He spent, by the way, five years in prison, and ultimately his conviction was overturned, and he is now free. But I was kind of shocked, as were his attorneys, that a jury would be willing to convict based on this kind of claim. I didn’t think we would see too many more of these cases, but what we began to see is thousands of people now coming forward and saying they repressed not memory for murder but repressed memory for years of sexual brutalisation, sometimes claims of being forced into satanic rituals and forced into baby breeding, all supposedly repressed into the unconscious. There is no credible scientific support for the idea that memory works like this, and yet we saw hundreds and hundreds of cases based on these claims.

Damien Carrick: Let’s come back to that wave of claims in a moment. At around that time you decided to do what you always do, is try and establish some empirical evidence, and your experiment was inspired as you drove past a shopping mall. Tell me about the study that that drive-by inspired.

Elizabeth Loftus: Well, the inspiration started a little earlier. In my earlier studies of eyewitness testimony where I could get people to tell me they saw broken glass that didn’t exist or broken headlights that didn’t exist or stop signs in stead of yield signs, in other words memory is malleable and subject to suggestive influences, it was such a stretch from what George Franklin’s daughter was claiming. She was claiming that she saw him commit a bunch of murders and that there was years of sexual abuse committed upon her, all allegedly repressed into her unconscious. And his defence was that none of this happened. So this is a little different from just turning a stop sign into a give way sign, you would say here. If these memories weren’t real, these were really big, rich false memories, and so I was looking for a way to study the process by which a human mind could conjure up a really, really big false memory of something that didn’t happen.

I thought about it for a number of years. What kind of a false memory could we plant in experimental subjects to study this phenomenon? We have to worry about the ethics review panels that review our proposed research. They’re not going to let me convince people that Daddy raped them for a bunch of years and committed murders, so I needed an analogue. And the idea did come to me one day driving past a shopping centre; how about trying to convince people that they were lost in a shopping mall when they were five or six years old, that they were frightened, crying, ultimately rescued and reunited with the family? And that’s the false memory we decided to try to plant in people’s minds. And we succeeded after a few suggestive interviews with about a quarter of our sample of ordinary adults.

Damien Carrick: And what you did, from memory, was you had about 24 people, and with the cooperation of their families you presented them with four detailed events from their childhood, three of them were true, and the fourth scenario was this fabricated one. And then I understand that when presented with these four scenarios, one-quarter of the participants claimed that they could remember this false event, something like seven out of 24, and then several of those seven went on to add their own details to this fabricated memory. So it was pretty extraordinary.

Elizabeth Loftus: It was, and it did make a big splash when I first presented it at scientific meetings. And the critics came out and they hated this result, they could see where I was going and I was heading in the direction of talking about suggestive psychotherapy and that maybe it was leading these patients to have these rich false memories. And so they criticised the study, they said, you know, getting lost is so common, I mean, at least show us you can plant a false memory for something that would be more unusual or bizarre or traumatic than getting lost even for an extended time at the age of five.

And so we and others did plant these more unusual and bizarre memories. In one Canadian study, planting a false memory you nearly drowned and had to be rescued by a lifeguard, that one was in Tennessee actually, but the Canadian study was you were a victim of a vicious animal attack. An Italian study showing that you could get people to believe they’d witnessed people being demonically possessed. These are very rich false memories that were planted in the minds of ordinary people through this process of suggestion.

Damien Carrick: So you as a result of this study and I guess other people like you’ve just been telling me about, you became one of the key players in what went on to become the memory wars where there was a battle of psychologists about what was possible and not possible, and I just want to throw a few pithy quotes at you. This is yours: ‘This is one of the great mental health scandals of the 20th century.’ ‘We saw thousands of lawsuits, all that money, all that waste, all that pain.’ ‘When people have been abused in childhood, their problem is not that they can’t remember but that they can’t forget.’

And this put you centre stage at this very, very acrimonious battle in the courts and throughout the whole legal system and throughout the whole business and profession of psychology. Was there a lot of hostility towards you?

Elizabeth Loftus: Well, there were periods that were just terrible because I was seeing all these families being ripped apart by what I thought was pseudo scientific views. I was speaking out about it as forcefully as I could and I was making people mad, particularly the subset of therapists who were conducting…deemed as repressed memory therapy, and the patients that they had helped to persuade, either inadvertently or advertently, that they were victims. I had death threats, I had to have armed guards at lectures that I was invited to give, I had people try to get invitations that were issued to me to come and speak, to get those invitations rescinded, and ultimately a lawsuit, which dragged on for almost five years.

Damien Carrick: We might come to that in a moment, but I guess before we do that, is it your argument that there is no such thing as a repressed memory of an actual event, or are you saying that they may well occur but there’s also the distinct possibility of fabricated false memory and there’s no way that we can sort the chalk from the chaff?

Elizabeth Loftus: I think it’s a little closer to the latter for sure, but the way I would put it is first of all repression, the idea, the repression folklore is that you can take years of brutalisation, banish it into the unconscious, it’s walled off from the rest of mental life, you need to get in there, dig down, do some psychotherapy, whatever, to unveil that repressed memory, and that’s necessary for the patient to heal. There is no credible scientific support for this.

There is a lot of support for the idea that you can not think about something for even a long period of time and then be reminded of it, of course that happens. But this claim of repression and the claims of repression that were being introduced in these legal cases, no credible scientific support, and I just don’t feel that people should be thrown in prison, which they have been, or deprived of money or assets, which they have been, based on an unsubstantiated theory. We may one day find evidence, and then feel justified in doing this, but we don’t have it now.

Damien Carrick: Elizabeth Loftus, people say that what you have been able to achieve is to cast doubt over repressed memories, but you haven’t been able to actually disprove them. And that means that in these complex cases there could well be some perpetrators who have been found not guilty because of your evidence.

Elizabeth Loftus: It’s certainly conceivable that some people who actually committed bad acts could say that their accusers have false memories. I certainly wouldn’t be surprised if somebody tried to claim that.

Damien Carrick: They must’ve.

Elizabeth Loftus: But I’m still focused on the fact that there’s a theory that is being advanced in the therapy offices with these patients, in books, with other therapists and in courtrooms that doesn’t have any credible support. And I don’t think we should put up with that.

Damien Carrick: So you were at the centre of this legal and scientific storm. How has it panned out over the years? Has the storm settled or is it still raging?

Elizabeth Loftus: You know, the media covered this issue so intensely and for so long that the media kind of lost interest in it. And so people think somehow the memory wars are over and that we don’t see cases like this, but that’s not true. Right now for the media to get interested you’ve got to have somebody really famous do the accusing or have somebody really famous be accused and then it might get back into the news. But legal cases are still going on based on claims of repressed memory, and there are still a few experts who will testify on behalf of these accusers, still saying that this is the way memory works and everyone agrees. And so I feel it sort of my job and the job of people, other right-minded, right-thinking people to go in there and say, ‘That’s not true.’ At most you could say, ‘This is highly controversial.’

Damien Carrick: Elizabeth Loftus, this has been a very wide-ranging conversation and we’ve been talking about the possible fabrication of memories, either inadvertently, or you’re suggesting that sometimes perhaps recklessly maybe. Are there any positive uses for this kind of fabrication? What about making people forget, and I’m thinking of soldiers with post-traumatic stress disorder or people who have been victims of crime or have had some other, say, abuse, coming back to that topic. Are there ways of using false memories to somehow lessen the pain that people have associated with memory?

Elizabeth Loftus: You know, I don’t know about using false memories to do that. I did publish a paper not too long ago with my New Zealand collaborators on people’s feelings about a particular drug that is being used to dampen traumatic memories. You give this drug to people after they have had a traumatic experience, it dampens their memory, and these drugs are in clinical trials to try to accomplish this. We’re not giving the drug to people, we’re just asking people if you had this kind of trauma, would you want to take this drug?

To my surprise, the majority of people say no, they don’t want the drug, they are a little nervous about it, they are worried about the side-effects, they want to know what else would go with it besides the memory for the trauma. And this has kind of taught me that people really do seem to cherish their memories, even when these memories could be harmful. And certainly the reason for the drug is to reduce the possibility and probability of getting post-traumatic stress disorder, but despite that health benefit they still want to hang on to those memories.

Damien Carrick: It goes to wanting to own your own life and your own experiences, and maybe people wanting to somehow work through them without repressing them or putting them…

Elizabeth Loftus: Are you sure you want to use that word? [laughs]

Damien Carrick: I’ll use your preferred term [laughs]…I’m not a psychologist.

Elizabeth Loftus: But you’re right, people cherish their memories and they know they are part of their identity, but I guess my work has made me feel a little differently about memory because even though I cherish my memories, I also know how much fiction is already in there.

Damien Carrick: And you’ve said that some of that fiction is often a good coping mechanism, can help us look forward to life and deal with life better. What do you mean by that?

Elizabeth Loftus: One of the things about this malleable memory that we all have is we distort our own memories, without any external suggestion coming from a researcher or another witness or whatever. So there is evidence, research evidence showing that we remember our grades as better than they really were, that we voted in elections we didn’t vote in, that we gave more to charity than we really did, that we had kids that walked and talked at an earlier age than they really did…

Damien Carrick: Oh we all have brilliant kids.

Elizabeth Loftus: Of course, and these prestige-enhancing memories maybe allow us to feel a little better about ourselves.

Damien Carrick: Elizabeth Loftus, wrapping up, I understand that your current focus is looking at some of the broader issues in the justice system and how memory or eyewitness accounts are dealing with those, and at the moment you’re looking at the presence of a weapon and whether that can draw attention away from, say, a perpetrator’s face. Is that something you’re looking at at the moment?

Elizabeth Loftus: That phenomenon is called weapon focus, and I did some studies of weapon focus that show that it does draw attention away from other aspects of a scene, it results in reduced ability to remember those other details. And there does continue to be work going on on weapon focus. I’m more interested right now in trying to figure out which kinds of people are more susceptible to memory contamination, and conversely who is more resistant.

Damien Carrick: What have you found?

Elizabeth Loftus: Well, for example, people who have self-reported lapses in memory and attention have trouble remembering—you know, did I do that or did I just think about doing that—are more susceptible to memory contamination. People who are highly cooperative people tended to be easier to mislead with suggestive information. So these are just a few of the little bits and pieces coming out of that work on individual differences.

Damien Carrick: It will be great to hear about what you conclude. Professor Elizabeth Loftus, Professor of Law and Psychology at the University of California in Irvine, thank you very much for speaking to the Law Report.

Elizabeth Loftus: My pleasure, thank you.

Damien Carrick: That’s the program for this week. Thanks to producer Erica Vowles and also to audio engineer Angela Grant. I’m Damien Carrick, thanks for your company, talk to you next week with more law.

Title

The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse

Author

Elizabeth Loftus and Katherine Ketcham

http://www.abc.net.au/radionational/programs/lawreport/the-vagaries-of-memory/5162382#transcript