Memory and eyewitness testimony: The distortion of public perception of the plausibility of false recall.

Introduction

The phenomena of distorted recall can be academically exciting and socially fascinating; however, in a court of law, where memory and testimony are offered where life itself might hang in the balance, public perceptions of this gold standard are highly inaccurate. And while eyewitness testimony has historically been among the most convincing and damning forms of evidence in criminal trials (Magnussen et al., 2010), and has long been held up by the police and the public as the gold standard of the proof of guilt or innocence, there remain severe accuracy concerns. Even when witnesses are honest, although they may be convinced of what they have observed, that is not the same thing as being accurate (Loftus, 2018; Smith et al., 2017). As a result, eyewitness testimony is far more fallible than the general public would suppose. The advent of DNA analysis, which led directly to the settling of many closed cases, has identified over 350 people who have been convicted and sentenced to death by eyewitness testimony to have since been exonerated by DNA evidence (West & Meterko, 2015).

Discussion

Neurology, fear learning, and the misinformation effect

           For over half a century, conditioning, including operant conditioning and classical conditioning, has been studied in particular related to innate and learned responses. Operant conditioning has been mostly successful for the use of diminished response to fear in models (Young et al., 2018); French (2003) recognized that many reports of strange experiences had been found in all societies and often included biases based on an ignorance of social sciences, and a tendency toward beliefs about religion, race, or ethnicity. Memory and recall are based on a foundation of lived experiences, overarching culture accepted norms, and unfounded assumptions about those we see as different. Further, Han (et al., 2019) found that being involved in or witnessing a traumatic event inhibits memory formation, rather than making it easier to recall the event. Moreover, Kaplan (et al., 2016) were clear in their finding that eyewitness identification is highly vulnerable to distortion, often without the witnesses’ knowledge, rather than outright falsehoods, and such testimony is often subject to distortion. Consider the findings by Li (et al., 2017), that reduction of hippocampal calbindin levels (Calbindin modulates intracellular Ca2+ dynamics and helps govern synaptic malleability) and may be implicated in stress-induced memory loss, and, similar findings indicate at least some indication that stress, particularly traumatic stress, negatively impacts accurate memory and recall (Gallagher & Kaplan, 2017).

           Further, Han et al. (2019) found that psychological trauma created acute activation of the hypothalamic-pituitary-adrenal axis. This survival mechanism significantly disrupts and inhibits memory formation and the ability to recall past events accurately. As previously mentioned, witnessing or being involved in a traumatic event inhibits memory formation rather than making the event easier to recall (Han et al., 2019; Li et al., 2017). Considerable research has been conducted in maltreatment situations; particularly, children with substantial long-term physical and psychological abuse have shown significant association with chronic disease through hypothalamic-pituitary-adrenal axis activation (Davis, 2015). In many cases, memory has been distorted, conjoined with more recent or previous traumatic events, and in other cases, significant aspects of the events themselves have been either forgotten, suppressed, or magnified, no longer resembling the reality of the event or events (DePrince et al., 2012).

           The level of trauma witnessed, the criminal act or acts, and the willingness to testify to the event can cause enormous stress by elevating cortisol, impeding the accurate recollection of events (Jiang et al., 2019). In models, Zimmermann & Bach (2020) have shown that fear-based memory can be diminished if not eliminated through classical conditioning procedures. Fear memory is formed in the hippocampus and amygdala, which has been evolutionarily critical to avoiding danger and memory consolidation (Pöhlchen et al., 2020). In animal models, fear learning has been studied as a classical conditioning phenomenon and is frequently associated with abrupt changes in the environment resulting in a conditioned response (Jansen et al., 1995). Should this abrupt change in the environment be significant or long-lasting, a fear response may be elicited (Zimmermann & Bach, 2020). Researchers suggest that the defense/stress system found in mammals evolves naturally for survival and defense. When activated chronically, the increase of chemicals and stress hormones can negatively impact organ systems and neurology, affecting emotionality, memory, and function (Davis, 2015; Jiang et al., 2019; Travis et al., 2015). And while it is not possible to ask most mammals about their stress responses and recall ability, we can ask humans, and evidence suggests that highly stressful situations significantly impact memory and recall ability (McCarty, 2017; Russell & Lightman, 2019). And while many researchers argue that most animals’ fear response is somewhat different from that described in humans, the mechanisms involved, including perception and interpretation, are neurochemically similar. In humans, this is referred to as deconsolidated memory (Corrigan & Hull, 2018); some researchers suggest that purely psychologically traumatic events can lead to an inability to retrieve autobiographical memories (Otgaar et al., 2019).

           It should be noted that the parts of the brain that are believed to be the seat of emotion, including the amygdala (Davis, 2015; Fox & Shackman, 2019), are also directly involved in the storage of specific memories, including traumatic memories (Inman et al., 2018). Considering the emotionality of psychological trauma and the complexity of memory recall, memory distortion is not only possible but, at least in some circumstances, likely. How then can witness testimony create a viable and confident impression despite the likelihood of incorrect recollection?

           Memory distortion is often an unconscious process where believers accept their recollection of events as accurate, regardless of how erroneous or impossible they may be (Bolitho, 2017). Another concern in grave circumstances such as testimony at trial, confirmation bias may also play a significant role. While eyewitness testimony remains a potent weapon for conviction, it is subject to unconscious distortion, discrimination, and depending on the event, psychological stress, all of which may negatively affect accurate recalling of past events. Finally, Gallagher and Kalin (2017) investigated public perceptions of well-known past events, how these have been represented in the media, and how media has altered public memory, challenging accepted concepts of authenticity. They found that emotionality, including stress responses to the event, significantly impacted memory and recall. We must ask why, given the enormous amount of research that indicates there exist significant issues with accepting eyewitness testimony as factual, has the belief in such testimony persisted? Much of the reason is popular televised drama and police detective series that seem to promote the belief in the importance of witness testimony and the ease with which criminals are apprehended.

The CSI phenomena

           Despite these recent news headlines about wrongful convictions and exonerations, people continue to place profound confidence in eyewitnesses. This is, at least according to leading research, largely allegorical (Mahr & Csibra, 2020). Yet this belief persists for several reasons, including the popularity of televised drama like Hill Street Blues or more modern iterations such as the CSI television dramas in various duplications (Cole & Dioso-Villa, 2008). Historical depictions can be equally problematic and include such popular fiction as the continual investigations of Sherlock Holmes and his arch-nemesis Professor Moriarty (Hernández‐Fernaud & Alonso‐Quecuty, 1997). Fictional television shows have so dramatized many forensic investigation elements that the general population maintains unrealistic expectations of the value of the evidence, including eyewitness testimony (Cole & Dioso-Villa, 2008; Wagner, 2020).

           Both false beliefs and false memories can significantly influence behavior. Researchers into cognition and memory have demonstrated that people can be quite easily convinced of faulty recollection through suggestion and later report the suggestion as if it were remembered (Laney & Loftus, 2013). During the 1990s, particularly in parts of California in the United States, a pattern began to emerge where people would go into therapy for relatively minor concerns like anxiety or depression but throughout treatment came to believe that they have been victims of violent abuse during childhood (Loftus & Ketcham, 1994). The therapists claimed that they had been able to recover suppressed memories of abuse that had been buried for decades; the result was an upheaval of families, divorces, and lawsuits against innocent parents by people who have been led to believe by unscrupulous therapists that they had been the victims of horrendous abuse and neglect. These memories have been created through suggestion in therapy and were later found to be entirely false. But the damage had been done, and even though some of these former patients have come to understand that the memories they thought were genuine were implanted, the relationships with their families have never recovered (Brewin & Andrews, 2017; Patihis & Younes Burton, 2015). If the stress of believing in events that have never actually occurred can cause such inner turmoil and stress, altering perceptions and beliefs, how much would the extreme duress of a traumatic event change perceptions (Aydin, 2017; Brand et al., 2018).  

           While they can be accepted as real by the person, false memories often create visible signs of distress. One example is the alien abduction phenomenon. Researchers discovered that when people count their memories of all the events, they show increased heart rate, muscle tension, and galvanic response (Finkelstein, 2017; Otgaar, Howe, & Patihis, 2020). Researchers have remarked (Otgaar, Howe, & Patihis, 2020; Otgaar et al., 2017; Patihis & Younes Burton, 2015) that clear and distinct parallels can be drawn with abuse survivors discussing their trauma. Recorded accounts of alien abduction, of implanted memories of abuse or trauma, when listened to by people who had recorded these accounts, often elicited significant stress. The events were believed to have been valid by the individual even though false. In both the clinical and forensic field, we are left with a problem: how can we ascertain if our memory is indeed wrong.

           Unlike experimental settings where predictions determine which memories are real and not, the real-world events surrounding a court case and one where eyewitness testimony is offered are open to interpretation. Social studies have been conducted where false information was introduced to individuals, and after repeated suggestion, they were asked whether the memory was true or false (Brand Schielke, & Brams, 2017). When a faulty memory was reported as accurate, people would fill in the gaps with memories from previous experiences.

           Imagination is often used to fill in the gaps in memory, and this imagination can be comprised of previous experience, beliefs, or biases (Brand Schielke, & Brams, 2017). Therefore, when investigators interview witnesses, the first thing they often focus on is, did this person witness this event? Or did they imagine it? The principal question to be asked is, “is it plausible or even possible the witness saw what they believe they saw?”

The implausibility of remembering

           As mentioned briefly, numerous daily examples show that people report impossible, many will say scientifically impossible, experiences and events ranging from alien abduction, past life memories, or recalling abuse by individuals that may never have existed. In such cases, and in any case, where an individual’s freedom hangs in the balance, there must be some measure as to the plausibility of the accuracy of the event and the likelihood that the witness observed what they reported. Numerous studies suggest that imagination and previous experience shape observation (Brewin & Andrews, 2017; Brown, 1975). Any person who was a child in the United States or, for that part, much of the western world may remember stories of the night before Christmas, and a number of us remember well hearing the sound of hooves on the roof. Retrospectively we realize this was imagination, yet at the time, we were convinced it was real. And even now, if we are honest, we remember thinking it was real at the time and may recall an elevated cardiovascular response even today. A large component in the development of false memory is the belief that the experience occurred, shaped by imagining the perceived event, real or imagined, especially when others believe they remembered (Norrick, 2019).

           In an attempt to better understand the phenomenon of imagination inflation, researchers have begun to study responses from subjects concerning childhood occurrences that had occurred versus those that could not have happened (Wade et al., 2018), for example, witnessing the tooth fairy entering their bedroom, seeing the Easter bunny, or witnessing flying reindeer. Witnesses using imagination professed more certainty when remembering unreal past events (Goodman, 2019). Other researchers have noted that imagination inflation occurs more for unusual or strange experiences (Li et al., 2020). Part of the psychological tool kit that we use to deal with society daily, paraphrasing, or visualizing is evolutionary tools that we use to explain the world to others and depend on what we are describing and whom emotionality and imagination may be significant factors. Imaginative language then is a considerable part of linguistic communication, filling in gaps in the information or knowledge with imagination, emotion, or images from daily life (Brown, 1975; Howe, 2012; Raber et al., 2019). Unlike the original social constructs where storytelling, memory, and reimagining evolved to help make sense of a world that was almost entirely unknown, there are significant perils in the use of imagination as a means to fill in memory gaps, either in event or experience (Chamberlain et al., 2006). While this may be excellent fodder for academic discussions in cultural anthropology or evolutionary psychology, in the real world, where eyewitness testimony carries such impactful authority, and where it is currently unknown how many innocent persons in the United States have been convicted, jailed, and executed through knowingly or accidentally fabricated eyewitness accounts, imagining events takes on a much more severe pallor (Loftus, 2018; Magnussen et al., 2010; Otgaar et al., 2020). Research is filled with examples of innocent people who have been prosecuted due to memories introduced in therapeutic or criminal questioning (Blizard & Shaw, 2019; Niforatos et al., 2017; Otgaar et al., 2017). There are tens of thousands of case files where false witnesses and false memories have divided families and helped prosecute innocent persons.

Consequences of False Memories

           Both false beliefs and false memories can affect behavior. In one study, people who received a false suggestion that they had become ill after eating strawberry ice cream during childhood said they would be less likely to eat it at a party than before receiving the false suggestion. In another study, people who imagined drinking fewer caffeinated soft drinks later believed (and reported) having done just that. While it is unlikely that human beings will be unbiased at any point in the future, steps should be taken to review the background of any person offering eyewitness testimony in any trial, more especially a capital trial. Better knowledge of the results of guilty verdicts may help society better grasp the seriousness of this issue. According to Doyle (2018), making a false statement is a crime punishable under the United States law. A person convicted of perjury can face between one and five years in prison and pay hefty fines (Doyle, 2018). But how frequently are perjury charges charged and pursued? And perhaps most importantly, how often do witnesses lie or embellish their testimony? Any human is capable of offering a convincing testimony that is entirely, or in part, false. The case of Sandra Bland is one very public situation that demonstrates the fallibility of recall.

           In 2015, Sandra Bland was pulled over for a minor traffic violation. Following a heated conversation, the police officer arrested her, and she was jailed. She was found dead in her cell three days later; the official cause of death was suicide (Ventura Villasana, 2017). What made this case interesting was that the event was captured on dashcam. Yet, despite this, the arresting officer lied to investigators to justify his actions and was charged with perjury. Despite this, the most he could face would be one year in jail and a fine. Perjury, offering false witness, is often referred to as the forgotten offense as it is both widespread and seldom prosecuted (Crank & Curtis, 2020). And although perjury has been a crime since 1790 (Robbins, 2019), only 335 criminal cases have been brought for perjury from 1966 to 1970 (Crank & Curtis, 2020). It is a charge which is often discussed but rarely made. And indeed, this is not lost on the general public, particularly when viewing politicians who routinely offer perjured testimony and yet seem to avoid prosecution (Brown et al., n.d.). How then can the problem of bearing false witness or perjury be addressed? Perjury itself is challenging to prove. The prosecutor must show a material misstatement of fact and that it was made willfully, and that the witness knew it was false at the time.

           In closing, there may be hope that while some errors in the judicial process and criminal investigation remain unavoidable (Abzalbekova et al., 2018), proper precautions and applications of psychological science may significantly decrease false memory associated with eyewitness testimony and place less emphasis on acceptance by juries, resulting in the exploration of false memory recall. This research into the reality of false memory may have a positive impact on the amount of weight given to eyewitness testimony, particularly testimony offered over a significant amount of time since the event (Gallagher & Kalin, 2017; Kaplan et al., 217; Li et al., 2017; Shapira & Pansky, 2019). The causes that may be most strongly correlated with adverse trial outcomes due to false testimony, either intentional or inaccurate, are:

           1. Intentional false testimony as an aspect of bias based on learned prejudice, ignorance, or culture as described by Cutler (et al., 2020), Taylor (2021), Eisen (et al., 2018).

           2. Unintentional false testimony through imperfect recollection, chronology, mental defect, psychological stress, or environmental limitations (Bolitho, 2017; Kaplan et al., 2016).

           3. Suggested or coercion memories recollected as factual due to harsh questioning,        threats, appeals to patriotism, or other factors (Bang et al., 2018; Cole & Dioso-Villa, 2008; Eisen et al., 2018; Wang et al., 2018).

           4. Coerced confessions by innocent persons through manipulative questioning (Bernhard & Miller, 2018; Eisen et al., 2018; Wang et al., 2018).

Eyewitness testimony regarding these causes or main events can and does lead to these three outcomes:

           1. Guilty verdict of an innocent person based on biased testimony (Bernhard & Miller, 2018).

           2. Guilty verdict of an innocent person due to imperfect recollection (Bang et al., 2018; Cutler et al., 2020).

           3. Guilty verdict of an innocent person through memories created through bullying     (Bernhard & Miller, 2018; Cutler et al., 2020; Zaragoza et al., 2019).

           I believe the causes discussed in this brief commentary are at least in part preventable through a number of reasons and logical steps:

            A. Police and investigators should not be allowed to question witnesses without counsel.

Witnesses should be examined for mental capacity and personality dysfunction prior to testifying.

            B. The statutes could be changed so that criminal charges could be brought against witnesses who knowingly offer a false testimony even if that testimony does not negatively impact the court proceedings or the individual charged.

           C. There are also real-life consequences to real-life false memories. In many countries, false memories have landed innocent people in prison, divided families, drained our health care resources, and clogged our courts. It is these consequences that compel psychological scientists to continue their work.

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