A British Library exhibition officer dusts a painting on loan from The Victoria and Albert Museum to Magna Carta- Law, Liberty, Legacy. Photography © Clare Kendall

A British Library exhibition officer dusts a painting on loan from The Victoria and Albert Museum to Magna Carta- Law, Liberty, Legacy. Photography © Clare Kendall

On Wednesday 25 March, Goldsmith’s College hosted an important lecture by a leading expert on the science of memory, Professor Elizabeth Loftus of the University of California, Irvine. Loftus is today one of the world’s pre-eminent experts in this field, having been involved in many significant research studies of memory since the 1970s. She has given expert witness testimony in several court cases. Her efforts have not always been welcomed. She has been accused of unethical conduct in her research, and has even received death threats.

Elizabeth F. Loftus UCI

Elizabeth Loftus

In 1990, she testified in support of a man who had been convicted of the murder of his daughter’s friend, solely on the basis of his daughter’s claim to have recovered a memory of that event. Loftus checked out the scientific literature and could find nothing to support a theory of ‘recovered memory’. This led to a bitter ideological battle between research psychologists and therapists, the latter fervently believing in the notion of recovered memory. Loftus was accused of damaging the feminist cause, but she has been awarded the American Psychological Foundation’s Gold Medal for Lifetime Achievement, which is an indication of her standing with professional colleagues.

Her research includes the famous ‘Lost in the Mall’ survey in which people were interviewed about their childhood experiences. The interview included a question about a fictitious event. A quarter of the interviewees claimed to recall this fictitious experience. What this line of research, which has been reflected in a range of similar experiments, demonstrates is that human memory is malleable and suggestible.

Loftus’ presentation began with a very recent scandal involving the American war journalist, Brian Williams. He has recently been pilloried for claiming that, whilst in Iraq in 2003, he rode in a helicopter that was grounded by anti-air missiles. Hillary Clinton had made a not dissimilar boast that she disembarked a helicopter in Bosnia under sniper fire during the civil war there.

Except neither Williams’ nor Clinton’s claims were true. Williams was not riding in the helicopter that was shot down. Clinton, far from racing from speeding bullets, had arrived with her daughter Chelsea, to be greeted by an official reception committee. A small schoolgirl presented Clinton with a bouquet.

So what were Williams’ and Clinton’s excuses? Williams, who was obviously embarrassed, claimed he just screwed something up in his mind. Clinton said that she was a human being, who had made a mistake. Williams’ ratings have tumbled. But Clinton is a serious contender to be the next President of the United States.

Some of Loftus’ more entertaining studies involve implanting false memories about food. Thus, her research teams have persuaded people that they hate hard-boiled eggs, as a result of misinformation. This research could even have the potential to affect people’s dietary habits!

Unfortunately, many people, including journalists and members of the public, do not appreciate just how imperfect human recollections can be. Consider the unreliability of eyewitness testimony. The Innocence Project in New York has helped overturn the convictions of 300 people, who were wrongly convicted of serious crimes. Of these cases, three-quarters involved inaccurate eyewitness testimony.

Loftus gave another famous example: the rape of Jennifer Thompson. In 1984, while a student, Thompson was raped in her apartment by a black man. She later wrongly identified a man named Ronald Cotton, who was innocent. The rapist was a man called Billy Poole. But Cotton was convicted on her testimony, and served 10 years in jail, before DNA evidence led to his release. When Cotton was finally exonerated, Thompson was dismayed that her mistake had resulted in his loss of liberty. They later met. In 2009, they co-wrote a book about the injustice that had ensued, called Picking Cotton.

So the inherent fragility of memory has serious implications for the administration of justice, and the rule of law. The key message from Loftus’ lecture is that new information can contaminate and distort memory. So false (i.e. inaccurate) memories can be generated as a result of many factors: exposure to media coverage of a dramatic event; an active imagination; being exposed to other people’s memories; doctored photographs, and other strong suggestive methods.

Memory, like liberty, is fragile
A person who has developed a false memory has had their sense of reality altered. They may testify in an extremely convincing manner, replete with detail and emotion. To date, researchers have not been able to come up with any convincing way of distinguishing between memories that are accurate, and those that are not. This is a serious forensic problem. The only solution, Loftus argues, is to insist on independent corroboration. She concluded: ‘Memory – like liberty – is fragile.’

The Commercial Court in England has woken up to the importance of memory science. In an important decision called Gestmin v Credit Suisse [2013] EWHC 3560 (Comm), Leggatt J. said:

‘I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are.’

After summarising the lessons of recent research, he concluded (here):

‘The best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.’

Unfortunately, the criminal courts seem less keen to learn the lessons of modern research on memory. This is a fault, as unless juries are properly informed about the pitfalls of eyewitness testimony, and the unreliability of human memory, the risks of wrongful convictions are very real.

 

Profile photo of Barbara Hewson About Barbara Hewson
Barbara is a barrister practising at 1 Gray's Inn Square. She specialises in public and administrative law; human rights & civil liberties; and professional discipline and regulatory law. Her practice includes mental capacity and court of protection work, judicial review, inquests, healthcare law, professional discipline and employment law.

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5 Comments

  • Eric Hardcastle March 31, 2015 10:59 am

    I had a recent twitter conversation where I was convinced a certain activist was elected as an MP in the UK the late 1970s and had to resign several weeks later because of his nationality.
    Some ‘followers’ tried to gently point out I was mistaken but I was firm in my belief that I had been this MP’s constituent for several weeks in South London.
    Only when he non-MP in question responded to me that I was mistaken and the event had never happened did I finally concede that I had a totally convincing false memory of a non-existent event.
    Trying to back track how this had happened is impossible but it shakes one to realise how easy their mind can create a memory of something that never happened.

  • George Gretton April 16, 2015 6:32 pm

    Hello Eric,

    Did you do any other checking with anybody else within your own circle of friends and family before blasting off in this issue?

    ” ….did I finally concede that I had a totally convincing false memory of a non-existent event.”

    How convenient for the author of this thread, Barbara Hewson… are you her in an alias?

    This may have been a little advance publicity for the do at Conway Hall on Saturday the 6th of June, where the speakers are Chris French, James Ost, Barbara Hewson, and Kevin Felstead.

    Many Survivors of Sexual Abuse in Childhood are incensed about this event, and a protest is being planned around it, outside.

    I, however, will be inside… listening … and, possibly, challenging … as ever on these occasions I will be in the middle of the front row….

    I have crystal clear memories from when I was 5, and of when I was 7, of two episodes of catastrophic abuse, in whose shadow I lived for over 50 years..

    I very carefully validated my memories by many cross-references and research … and I have a whole context and background for those memories, into which they fit like the last two pieces of a huge jig-saw puzzle…

    I’ll be back to address specific Barbara Hewson points above.

    I have personally received dozens of accounts from others of memories from infancy and thereafter.. and I know well that these memories, that were only prompted by my references to my own history, were spontaneous and truthful… it sometimes takes me a couple of days to recover from hearing them… they are that horrendous…. such as of a mother offering her sexual partner her 8 and 7 year old children to keep him interested in her.

    He accepted… and the child that was 8 much later challenged her mother.. and know that her memory was accurate..

    Yours, George Gretton

    • George Gretton April 21, 2015 9:49 am

      Thanks for publishing this, Jon..

      And please note, all, that the venue has been changed… it is no longer the Conway Hall…

      I was notified by email … but here is the web page for the event, that has been updated re the location… I’ll check it out again just before the event …. it is a logical possibility that the venue was changed on hearing that a protest might take place outside… or perhaps the interest is so great that a larger venue is needed..

      https://humanism.org.uk/events/cfi-memory/

      Yours, George

  • George Gretton June 8, 2015 9:13 pm

    Barbara Hewson EITHER has a defective memory, OR does not read the responses to her posts…

    I spent a short time at a Con-ference on “False Memories” last Saturday, at Goldsmiths College, held under the auspices of the British Humanist Society, before I walked out in disgust, even before Ms Hewson’s address, at the perversion of language being displayed.

    Before it started, I went up to Ms Hewson, introduced myself by name, and said that I had made some critical posts here, in response to HER posts…

    She smiled sweetly, and said “Thank you, how kind to come along today.”

    While I was flabbergasted, I held my composure, and said to her:

    “It may not seem so kind when I am challenging you later on.”

    She loves on another planet … but not on Venus…

  • Robert Forde July 22, 2015 10:34 pm

    The crucial fact is that memories can be affected by information received after the memory was first laid down – even long after. This is a demonstrated fact, and no amount of denial can change that. This is not to say that ALL memories of abuse (or anything else) are false, just that they CAN be. Provably false memories aften arise in therapy (or alleged “therapy”); it is not widely recognised that most memories of abduction by aliens also arise in “therapy”.

    Therapy and interrogation can both give rise to false memories. Both are emotionally intense, and both can be driven by a fixed belief on the part of the “professional” involved. Both occur in relatively isolated circumstances, where normal checks aren’t immediately available, and both can be facilitated by suggestibility on the part of the interviewee/patient.

    There are other problems with memories of long past events. Suffice to say that they are not always what they seem. Sometimes they are exactly what they seem, but no one (sadly including the person whose memory it is) can be quite certain which is which. This highlights the need for corroboration whenever possible. And it isn’t always, leaving genuine abuse victims in unresolved distress.

    I suggest the important thing is to give complainants the support they need, and not insist on chasing the perpetrators for something which is probably unprovable, and will also subject the complainants to more stress, especially if it is unsuccessful. Prosecuting perpetrators is fine with me, too, IF the evidence is there. Otherwise, all we do is repeat the trauma for genuine victims, and probably ingrain the memory all the more in those whose memories are false.

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