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Overview

Memory is indispensable to the criminal justice system. Countless criminal cases are built around the things victims and eyewitnesses remember: details, faces, and circumstances of events that occurred weeks, months, and sometimes even years earlier. In an ideal world, a person’s memory would work something like a video camera – capturing details in high definition and saving them to a memory card so they can later be retrieved and trusted as reliable. As it turns out, memory is less like a video recording and more like an active reconstruction of the past. It can be altered by even the subtlest of influences, and in some cases, even memories held with great confidence can be completely wrong. Errors in people’s memories can be inconsequential, but they can also cause profound complications, particularly in the legal system where a defendant’s guilt or innocence can depend on the precise details of another person’s recollection. This research paper explores the small and large ways that memory can depart from reality – how people can misremember details about an event and how they can come to remember whole events that never occurred.

Misremembering Details

In early 2012, Florida resident George Zimmerman called 911 from his cell phone and reported that a young Black man (later identified as Trayvon Martin) was behaving suspiciously inside the gated community where Zimmerman lived. With police en route, Zimmerman confronted Martin. An altercation ensued and ended with Zimmerman fatally shooting Martin in the chest at close range. When the police arrived, Zimmerman appeared injured and claimed that Martin attacked him and that he, Zimmerman, shot in self-defense (Kovaleski 2012).

Numerous eyewitnesses came forward with their accounts, but strangely, several of their stories seemed to transform over time. For example, a few days after the shooting, a woman recounted to the police that she saw two men running and then brawling in the street. A few weeks later, she said she saw just one man running, but couldn’t identify him because she was not wearing her contact lenses. Another witness initially said she saw two men on the ground after the shooting, but could not tell which man was on top. Days later, after seeing Zimmerman on television and learning new details about the case, she said she remembered that Zimmerman was the one on top. Another witness said he saw Martin pinning down Zimmerman and punching him while Zimmerman called for help, only to later claim that he wasn’t sure he saw any punches or heard any calls for help. Finally, a man who saw Zimmerman after the shooting first described him as looking bloody and dazed and later said he seemed calm and collected.

The shooting of Trayvon Martin and Zimmerman’s subsequent arrest was covered incessantly by the American news media in the days and weeks following the event, so it is not surprising that witnesses to the incident were exposed to a bevy of reactions, opinions, imaginings, and speculations. But the question remains, how is it possible that two starkly different accounts can emerge from the same eyewitness? One possibility is that the eyewitness is not being truthful in one version of events. Another possibility is that some kind of post-event information changed the witness’ memory. Psychologists have now studied this phenomenon, known as the misinformation effect, for several decades (see Loftus (2005) for a review).

In trying to understand how people’s memories can become contaminated and distorted, researchers developed a simple experimental paradigm mimicking the sequence of events that could happen in an actual case involving eyewitnesses. First, research subjects are shown some type of stimulus (e.g., a video or a photo slideshow of a simulated crime). Next, they are exposed to some misleading information about what they saw, usually embedded in a lot of true information. Finally, their memories for the original source material are tested. In one study, subjects were shown a series of photographs depicting a man interacting with a woman on a city street, stealing her wallet, and hiding it in his jacket pocket (Zhu et al. 2010a). Later, subjects read narratives that described the photographs. For some of the subjects, however, the narrative contained bits of inaccurate information. These subjects were told, for instance, that the man hid the stolen wallet in his pants pocket. All subjects were then asked a series of questions about the original event they saw (e.g., Where did the man hide the wallet?). In hundreds, perhaps thousands of studies like this one, subjects who are exposed to inaccurate information frequently incorporate these inaccuracies into their memories of the original event, rendering them much less accurate than witnesses who were never exposed to misinformation.

When Is Misinformation Most Effective?

In any one specific instance, it can be very difficult to disentangle whether memories are based on true experiences and when they have been contaminated by erroneous information. However, knowing about factors that tend to promote or inhibit memory distortion might help to illuminate whether someone’s recollection has been altered by post-event information. With this in mind, psychologists have worked at identifying circumstances that appear to facilitate the distortion of people’s memories. For instance, studies have clearly shown that a person’s memory is more susceptible to misinformation effects when more time has passed since the original event occurred (e.g., Loftus et al. 1978). This may be because memories fade over time; following longer retention intervals, misleading information may be less recognizable as false and more easily incorporated into the original memory. Other research has shown that misleading information has a stronger influence on memory when people are in certain states (e.g., under hypnosis; Scoboria et al. 2002) or when people believe they are in certain states (e.g., when they think they are intoxicated; Assefi and Garry 2002).

Another factor that can influence the power of misleading information on memory is the source of the information. Studies have shown that people incorporate false information more readily into memory when they perceive the source of the information to be trustworthy. For example, in a series of experiments, Unkelbach and Stahl (2009) showed that people were more likely to identify false statements as true when they heard a trustworthy source make those statements earlier in the study. Misinformation is also more likely to change a person’s memory when they are exposed to it repeatedly. For instance, one study investigating the effects of hearing other witness statements (Foster et al. 2012) showed that people are more likely to incorporate other people’s errors into memory when they hear the errors repeated multiple times. Interestingly, the repetition effect occurred whether the misinformation came from multiple witnesses or from just one witness multiple times. Even our own actions with misinformation can affect its strength. For example, people are more misled when they elaborate on misinformation by considering what it looked like or how it contributed to the overall meaning of an event (Drivdahl and Zaragoza 2001; Zaragoza et al. 2011).

An Ounce Of Prevention

Can anything be done to prevent misleading information from invading memory? One approach has been to study the effects of warnings. That is, when people are made aware that they might be exposed to inaccurate information, are they better able to preserve the accuracy of their memories? Results from studies that have investigated this question have been mixed. If warnings are given before misinformation is presented, then they can help people detect errors in post-event information and ward off misleading details (e.g., Butler et al. 2009). But other research shows that warnings given after the misinformation have no effect at all (Greene et al. 1982). That is, after people have been exposed to misinformation, it is difficult for them to unwind the effects of post-event suggestion. Still other studies have shown that under some circumstances (e.g., when subjects are given a very specific warning straight after encountering misinformation), warnings following misinformation can help subjects maintain more accurate memories (Eakin et al. 2003).

Instead of alerting people to the presence of misinformation, other research has focused on developing interview procedures that would help preserve the integrity of a witness’ memory. The Cognitive Interview (CI) is one such procedure. In the CI, people participate in an initial free recall phase and make use of contextual cues, temporal reordering of events, and recounting events from the perspective of other people. Interviewers are encouraged to avoid suggestive questioning, to discourage guessing, and to develop rapport with the interviewee. One study found that compared to a free-response control interview, subjects who were given a CI produced more correct details about an event they had seen and were better able to maintain accurate memories in the face of suggestive questioning (Memon et al. 2009). However, the CI had an effect only when it came before the misinformation. Of course in the real world, it is hard to know when misinformation is going to invade memory. Thus, to best protect memory, both warnings and interview approaches like the CI should be delivered soon after the event in question.

Taken together, these studies demonstrate that some precautions can be taken to prevent the contamination of a person’s memory. However, it seems as though the timing of these interventions is crucial, and once a person has been exposed to misinformation (particularly without being aware that the information might be wrong), the damage may already be done. Also of note, even under conditions that were designed to protect people from misinformation – when people are warned that they might encounter inaccurate details – many subjects still showed evidence of memory distortion.

Are Some People Especially Susceptible To Memory Distortion?

Are certain types of people more vulnerable to misinformation effects than others? While misinformation effects have been shown in a wide variety of subject samples, there is evidence that some groups of people are especially susceptible. For example, young children and the elderly are more likely to have their memories contaminated by misleading information than adolescents and adults (see Davis and Loftus (2005) for a review). One explanation for this finding is that these groups are less skilled at tracking and making accurate judgments about various sources of information – for example, discriminating between details that were actually seen firsthand and those that were described by another witness.

Other studies (Zhu et al. 2010a, b) have shown that people who score higher on measures of intelligence, perceptual ability, working memory capacity, and facial recognition ability are especially resistant to misinformation effects. And certain personality factors, such as fear of negative evaluation and cooperativeness, are associated with susceptibility to false memories, particularly in individuals with low cognitive ability. An interpretation of these results is that when people are high in cognitive ability, personality variables are less useful in predicting whether misinformation is likely to creep in to memory. However, for a person who is low in cognitive ability, traits like fear of negative evaluation and cooperativeness may motivate them to pay closer attention to the post-event information in an effort to buttress the accuracy of their memories, only to fall victim to misleading details. While these studies imply that some individuals may be more suggestible than others, a broad survey of the literature reveals that no one is immune to memory distortion. That recollections can be molded and changed by suggestion and misinformation is simply a fact of human memory. This body of work demonstrates how true memories can be distorted and altered, but other research suggests that memory can be molded in more dramatic ways and people can come to remember entire events that never took place at all.

False Memory For Entire Events

During the 1980s, while seeking therapy for depression, Elizabeth Gale came to remember that she had experienced horrific acts of satanic ritual abuse. But years later, Gale realized that the memories she recovered in therapy were actually entirely false, and in 2004, she won a malpractice lawsuit against the mental health professionals who led her to recover the traumatic memories of horrific acts that never happened (Napolitano 2004).

Unfortunately, Gale’s case was just one among a number of other similar cases. During the 1980s and early 1990s, other cases emerged where patients had gone into therapy and come out with memories of traumatic events from their past, only to later learn that the memories they had recovered were in fact false. Cases like these often had devastating consequences. Family members were accused of horrific acts. In some instances people ended up in court and behind bars based on a memory recovered during therapy that turned out to be not only inaccurate but also completely false (see Loftus and Ketcham 1994).

How could people come to remember entire events that never actually occurred? A common thread in many of these cases was that the patients were participating in Recovered Memory Therapy (RMT). Clinicians practicing this therapy – popular during the 1980s – believed that their patients were harboring repressed memories of trauma (memories that had been hidden away from conscious awareness). The goal of RMT was to help patients uncover these buried memories. With the best intentions, therapists encouraged patients to pursue buried traumatic memories using repeated retrieval attempts, guided imagery, imagination, dream interpretation, and in some cases hypnosis. It was already well established in the cognitive psychological literature that some of these techniques such as repetition, imagination, and imagery could promote false memories. But in those studies people misremembered words, shapes, and stories, not entire autobiographical events. It wasn’t until the 1990s that researchers developed a paradigm to examine how the same techniques used in RMT could lead people to develop wholly false memories for an experience that never actually took place.

In this paradigm, subjects read four descriptions about childhood events and repeatedly try to recall them. Three of the descriptions are of true events provided by parents, but one of the descriptions is created by the researchers (e.g., getting lost in the mall) and documents an event that never occurred. The false event is altered for each subject so that it is filled with personal details and looks just like the real events provided by the parents. For example, in one study, a subject read that “You, your mom, Tien, and Tuan all went to the Bremerton K-Mart. You must have been 5-years old at the time.. .and somehow lost your way in the store. Tien found you crying to an elderly Chinese woman.. .” (Loftus and Pickrell 1995, p. 721). The key question is whether a false suggestion like the one described above combined with RMT techniques would lead people to remember an entire event that never occurred.

Over a number of studies, using a variety of RMT-like techniques that ranged from guided imagery, repeated retrieval attempts, and imagination, on average 36 % of people came to remember a false event that never happened (Newman and Garry 2013). Moreover, people falsely remembered all kinds of events; some were common, relatively benign experiences like getting lost in a mall. Others were less common but still relatively unemotional events like spilling a punch bowl at a wedding. Still others were traumatic and emotional, such as being saved by a lifeguard after nearly drowning or even being viciously attacked by an animal (for a review of these studies, see Garry and Hayne 2006). In other work, researchers have planted memories for events that are impossible like having a skin sample taken as a child – a national medical test that never took place.

Moreover, these memories were filled with details – people, places, and sensory and temporal information – that is, they contained many of the characteristics one would expect to see in a memory for an event that really did happen. In recalling the punch incident, one subject said, “.. .I definitely think it’s a friend of my mother’s for some reason, and the people I spilled punch on.. .I just picture him getting up and being kind of irritated or mad, then the woman, I see her in a light coloured dress that has like flowers on it, I think I see flowers on it and stuff, and I see like a big red punch thing down the front of them.. .” (Hyman and Billings 1998, p. 10). This subject’s false memory looks just like a true memory.

In experiments like these, researchers know which memories are true and which are false, but in the real world, it is much more difficult to decipher which memories represent a veridical record of the past (see Bernstein and Loftus (2009a) for a review). Even some biological measures reveal very few differences between true and false memories. In one study, people who believed they had been abducted by aliens had a similar physiological stress reaction to patients – who had current PTSD – when they recalled their (highly improbable) traumatic memories (McNally et al. 2004). Taken together, these studies fit with the earlier work using words, shapes, and stories and suggest that RMT techniques not only lead people to agree that an event might have happened, but they can lead people to develop memories layered with detail, emotion, and even physiological responses that make them feel true.

Routes To A False Memory

In these memory implantation studies, subjects typically read through narratives ostensibly provided by family members before engaging in certain RMT techniques. One might wonder whether that is the only route to a false memory.

Put another way, could other kinds of suggestion or therapeutic practices promote vividly detailed memories for events that never happened? The answer is yes. One does not need to read a description of a childhood event in order to develop a false memory. Reviewing family photos, receiving false feedback, and even imagining or paraphrasing how an event might have occurred can have similar consequences.

Photos. Sometimes clients are invited to review family photo albums to help cue their memory during therapy. But while this retrieval cue can help people remember real events, it can also help people build memories for events that never happened. For example, one group of researchers asked people to examine old family photos and try to recall events depicted in each photo (Wade et al. 2002). Just like the studies described above, one of the events was false and a photo was doctored so it looked like the subject experienced an event that they did not (e.g., it showed the subject as a child in a hot air balloon with their parents). After three interviews, and repeated recall attempts, 50 % of subjects remembered the false event. But people rarely encounter photos like these; family photos are usually a reliable record of events from our past, they are not doctored to mislead us. Would real undoctored childhood photos lead people to remember events that never happened? The answer is yes: simply reviewing an old class photo can lead people to remember doing things they never did in their childhood, such as hiding a slime toy in a teacher’s desk (Lindsay et al. 2004). Other work suggests that these effects extend to more recent events too. When researchers doctored video footage to make it look like someone was cheating in an experiment, subjects were more likely to sign a form corroborating that cheating behavior, even though they witnessed the event differently themselves only 5–7 h earlier (Wade et al. 2010). Together these findings suggest that photographs and videos – even old class photos that seem harmless – can facilitate the recall of events that never took place.

Feedback. One especially controversial source of feedback were self-help books that offered people advice about buried memories of trauma. Some of these books offered a list of symptoms that authors suggested would help people assess whether they were harboring a repressed memory. Readers were informed that they might have a buried traumatic memory if they displayed a certain set of these symptoms. What are the consequences of this kind of feedback? Could feedback like this from a trusted source lead people to develop fully fledged false memories? Subsequent research examining the power of feedback suggests that the answer is yes. In one line of work, researchers demonstrated the influence of feedback using a simple three-stage procedure. In initial session, people completed a food history survey. In session 2, people received a personalized food experiences profile that provided feedback on a critical childhood event, e.g., that the subject got sick eating strawberry ice cream – in fact there was no evidence that this event occurred. In the final session, the experimenters measured the subjects’ belief in having experienced the critical event by asking them to complete the food history survey for a second time. Receiving the false feedback led people to believe they had a bad experience as a child: over a number of studies, people remembered getting sick eating a variety of foods including strawberry ice cream, dill pickles, and egg salad sandwiches (for a review of these studies, see Bernstein and Loftus 2009b). Feedback like this can not only change people’s memories and beliefs about the past, but it can change their behavior too. Subjects who received the false feedback about getting sick eating egg salad sandwiches were more likely to avoid eating them when they encountered that food later on (Geraerts et al. 2008). Moreover, other kinds of feedback such as dream interpretation can have similar consequences. In one study, some subjects’ dreams were interpreted to mean that they experienced an upsetting event as a child (e.g., being lost in a public space), while others received no interpretation (Mazzoni et al. 1999). Those who received feedback via dream interpretation were more confident that the upsetting event happened to them. Taken together, this research suggests that feedback and interpretations offered by self-help books or even a well-intentioned therapist could be dangerous and unintentionally plant false memories.

Imagination. Even without a therapist, or photos, certain cognitive acts can lead people to build false memories. A range of studies show that spending time imagining a childhood event can lead people to become more confident that the event really did happen to them. Simply explaining or paraphrasing how a childhood event could have occurred can lead to a similar boost in confidence (see Garry and Polaschek (2000) for a review). All these behaviors likely lead subjects to generate a rich mental representation of the hypothetical event, adding sensory details and characteristics that make it feel like a real memory. Imagination can also lead people to falsely remember more recent events – even ones that are bizarre. In one study, subjects went on a campus walk and performed a series of actions. Later they imagined performing some actions, but not others. Imagination led people to misremember – only 2 weeks later – having performed actions they did not, even when the events were highly unusual (e.g., proposing marriage to a Pepsi machine) (Seamon et al. 2006).

Although generated as a consequence of suggestive retrieval techniques, false memories feel like true memories and they have real consequences. In cases similar to Elizabeth Gale, real patients pursued real criminal cases and real families were broken apart. That is, outside of the laboratory when it is more difficult for us to tell what is true and what is not, false memories wield similar power to true memories. So how do people confuse false memories that they generate themselves with ones that are the product of real experience?

How Do People Confuse False Memories With Real Experience?

People don’t walk around the world mystified about what is real and what is not. Indeed, people usually remember correctly that they drove a car to work, that they ate breakfast, and that they had a conversation with a friend on the phone. But as described earlier, memory does not work like a camera capturing and replaying everything in high definition. Instead, when people retrieve information, they make a decision using a variety of characteristics to decide whether a particular mental experience is a memory, something someone else told them (a suggestion or piece of misinformation) or something they simply imagined (see Lindsay 2008). Sometimes these memory classifications are easy and people can quickly and accurately determine the origin of mental events. But sometimes these decisions are hard; mental events come to mind with characteristics that make them seem like a real memory. And techniques that encourage elaboration about suggested false events like imagination and guided imagery can artificially boost the characteristics people rely on to accurately classify memories – leaving people especially vulnerable to errors.

Moreover, when making these memory classifications, people can be swayed by where information came from. Recall that people are more likely to be misled by details provided by someone who is trustworthy. One explanation for this effect is that people are less inclined to scrutinize information that comes to mind when it was suggested by a reliable source. Thus, when inaccurate suggestions come from someone trustworthy, it makes it easier for false information to invade memory.

Summary

Although many have probably marvelled at the information and detail that can be retrieved from memory, the research reviewed here suggests that it is not a perfect retelling of the past. In the context of the criminal justice system, the fallibility of human memory is especially worrisome. Errors – small and large – can influence the outcome of a case and inevitably an individual’s life. Indeed, people are especially swayed by an eyewitness or victim that describes their memory of an event in the courtroom.

In light of this, what tools are available to diagnose the accuracy of someone’s memory? Some researchers have examined the characteristics of true and false memories by comparing the content and detail in true and false memory reports from experiments. Others have considered individual difference variables that might help determine which people are more vulnerable to memory errors (see Bernstein and Loftus (2009a) for a review). But more recently, scientists have investigated whether measurements of brain activity can help distinguish true from false memories. For instance, in one recent study (Stark et al. 2010), subjects viewed a series of photographs and then heard an audio narrative about the photos that contained pieces of misleading information. Later, they were given a memory test while in an MRI scanner. Results indicated that true and false memories showed similar activation patterns, but that true memories (which came from visual information) were associated with more activation in the visual cortex, while false memories (which came from auditory information) were associated with more activation in the auditory cortex. The results suggest that when misinformation is delivered in a different sensory modality than the true memory information, there may be detectable differences in brain activation patterns. However, we are still a long way away from being able to take a single memory report and use some physiological measure to determine whether it reflects an authentic experience or a false one. The research on these tools for trying to accomplish this is still in its infancy.

A different approach to the problem of memory in the courtroom has been to implement procedures and policies that bring many of the issues described in this research paper to the attention of jurors when cases they are hearing involve eyewitness or victim memory. For example, in a 2011 ruling, the New Jersey Supreme Court issued new rules for dealing with cases that include eyewitness evidence. Moving forward in New Jersey, when defendants present evidence that an identification may have been corrupted, the judge must hold a special hearing to consider the evidence and must give detailed explanations to the jurors about the relevant factors that may have interfered with the accuracy of the eyewitness’ memory (Weiser 2011).

People’s memories will remain a crucial part of the criminal justice system for the foreseeable future. While the courts continue to find ways to ward off questionable memory evidence, researchers continue to develop new ways to study the factors and processes that lead to inaccurate memories.

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