Sins of Memory

Recently, I was retained as an expert witness in two different matters. In each, thousands of pages of documents were delivered to me for review, consisting of everything from technical reports to legal memoranda, e-mails and correspondence to deposition testimony. What I like to do is to obtain an overview of the case from the party retaining me, so that I at least understand their perspective on the matter. Then, I throw myself into all the documentation to make my own determination of what transpired, as it relates to the issues for which I will offer testimony.

I have long been a student of psychology and neuroscience. And, through my work as a hospice volunteer and, as the son of a mother who died of lewy body dementia and a father currently suffering from Alzheimer’s, I have had my reasons for learning of the brain’s processes. About a decade ago, I read Daniel Schacter’s book “The Seven Sins of Memory - How the Mind Forgets and Remembers,” which began to seriously erode my faith in how our judicial system handles witness testimony in its quest to arrive at “truth” of the matter. As I was engaged in these back-to-back expert engagements, my concern was reignited.

Schacter’s “seven sins” are transience, absent mindedness, blocking, misattribution, suggestibility, bias and persistence. Three are transgressions of omission. Transience refers to the weakening or loss of memory over time. We all suffer from it to varying degrees depending on our genetics, health and life experience. Absent mindedness concerns the breakdown between attention and memory. Absent mindedness occurs when we are distracted and don’t focus on what we need to remember. The information either never registers or, at the time, is so ephemeral that it never embeds. Unlike absent mindedness, which concerns past distraction, blocking arises from our inability to retrieve memories due to current distraction. This is one you probably know. For example, when at a party and a good friend approaches you, but you can not remember his or her name.

The remaining memory transgressions are the result of commission, i.e. some form of memory is present but either is incorrect or unwanted. Attribution involves assigning the memory to the wrong source, such as believing someone told you something that you actually read in the newspaper. Schacter notes “misattribution is far more common than most people realize and has potentially profound implications in legal settings.” But, that is true of all the sins of commission.

Suggestibility refers to memories that are implanted as a result of some form of manipulation, such as leading questions or suggestions when someone is trying to recall an event. Bias refers to the powerful influences of our current perceptions and knowledge on how we remember the past. Unfortunately, we are given to rewriting our memories - often unknowingly and unconsciously - to make them consistent with what we now believe. The final sin, persistence, entails the repeated recall of disturbing memories that one would prefer to banish, or remembering what we would prefer to forget.

One of the most disturbing elements of memory is that each time you bring one forward, you reinterpret it using your current perceptions and beliefs. When it is placed back, it is a new memory, having been so transformed. This iterative process, over time, can lead us to have memories significantly divergent from those that we originally possessed.

What I find so interesting, yet troubling, is to review the testimony of the same witness from two different time periods. One witness, whose depositions were separated by a period of years, appeared to have described two wholly different events, which presumably were the same. But his personal circumstances had so wildly changed that whether the dysfunction was attributable to transience, misattribution or bias, one would never know. But in both instances he was quite confident of the truthfulness of his testimony, even when confronted with prior inconsistent testimony. And to a certain extent, he was right. He didn’t know then what he would know later. That subsequent information changed the framework of his perception, leading to different conclusions from the same perceived experience. Was he a liar? Not at all. Was his first testimony more reliable than the second? Not necessarily. He likely was telling his separate truths in both occasions.

One of the disturbing elements for me concerned the behavior of the lawyer taking the second deposition. Because of the changes of the witness’ testimony, the lawyer, clearly with no fundamental understanding of memory and its processes, used his own bias to conclude that the witness was a fool or a liar. He began to badger him not with the intention of understanding the circumstances surrounding how his memory might have changed, but with the sole goal of impugning his integrity.

For those of you who consider yourselves “mature” in your practices, let me suggest a second book published this year entitled “The Secret Life of the Grown-Up Brain - The Surprising Talents of the Middle-aged Mind.” This volume, by Barbara Strauch, goes into the physiological changes that give rise to memory’s difficulties. Brain functions actually shift situs as we age. The formerly separated left and right brain functions begin to merge, to operate as a “whole brain” operation.

If you think about it, we have two systems concurrently morphing to influence what we remember. First, the external world operates to accelerate transience, cause absent mindedness, increase misattribution, occasion suggestibility and bias. Meanwhile, our precious brain organically morphs as we age.

As an expert, I carry into my review of the documents my understanding of how memory and the mind operate. It provides me considerably more room to understand the dynamics of the situation then and now. And allows me to see how failure to take our memory’s frailties into account may be exacerbating an existing conflict.

I have my own “secret curriculum” of courses that I believe should be mandated before anyone can graduate from law school. The list includes subjects such as deep listening, the fundamentals of communication and conflict resolution and, I would add, memory and the mind.

The judicial system in some respects is a crude instrument which we call into play when we don’t know what else to do. If we are forced to litigate, we should at least conduct ourselves in a manner that does not impugn our opponents for memory’s failings. Perhaps resolutions would become more available if we acknowledged our shortcomings, were less ready to judge and condemn, and softened our righteous indignation. It might better serve our profession and society.