I was perusing the internet recently and came upon an interesting study about our memory. When recalling events, we make things up and do not even realize it.

In “Eyewitness Imagination: How Our Minds Change Our Memories”, Matthew J. Sharps, Ph.D. discusses a common error in eyewitness testimony in criminal cases. It is that our imagination plays tricks on us, inserting false facts into the story the more times we tell it…. And we do not even realize it! (While this research involves criminal cases, no doubt it has applicability to civil matters.)

The reason has to do with the way our memories work. Contrary to popular believe, our memories are NOT immutable or some sort of accurate recording device. Rather, our memories “… are not static, but … they reconfigure in three specific ways: they become shorter, they coalesce around the gist of what actually happened, and they change in the direction of personal belief. This is the really scary one: we tend to remember what we believe happened, not what actually happened. “(Id.)

That is, what we THINK happened is remembered as actually happening. And… the more times we are asked to provide the eyewitness account (to the police, the District Attorney, to one’s own attorney, in a deposition and finally in court) the more inaccurate we become. This was shown in an experiment conducted by the author. In it, he showed “witnesses” a scene in which the “suspect” appears to be aiming a firearm at a “victim”. The viewing conditions, unlike real life, were ideal.  The author then asked each witness what he/she saw.

What the author found was that the first time the witness was asked to tell what he/she saw, the witness provided 3.5 true statements for every false statement. However, the second time the witness was asked to relay what he/she saw, the witness stated   1.39 correct facts for every false fact. (That is, a lot worse!).  The third time the witness was asked to relay what he/she saw, the witness provided more false statements than true ones! (Id.)

As the author concludes, “Repeating the story resulted in more and more errors exactly as we’d predict by seeing repetition not as a passive act, but as an active contributor to the inaccuracy. (Id.- emphasis original.):

 Memories are not static recordings; well and good. But it turns out that memories can actually change themselves, simply by the repeated act of being remembered! And as a result, memory itself can alter the later memories recounted by a given eyewitness; memories on which a completely erroneous conviction of an innocent person may be based. (Id.) (Emphasis original.) 

Again, while this article focuses on criminal matters, it has applicability to civil litigation; the more times a plaintiff or defendant is asked to retell her story (how the accident happened etc.), the greater the chance that bits and pieces of the story will be made up or imagined. The fourth or fifth retelling will be far different than what was told to the authorities at the time of the event. Perhaps this is why victims of accidents are often told to write down their story of what happened immediately after the event while it is fresh in their minds. This also means that this written version will be the most accurate and one in which imagined facts (or what the person “believed” happened) have not been unwittingly slipped into the story.

So, the takeaway: our memories indeed will play tricks on us, making up or imagining facts the more times we tell the story. Eyewitness testimony then should be taken with a grain of salt!

… Just something to think about.         

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