If you’ve spent any time interviewing jurors, you know that eyewitness testimony holds great weight. And if you’ve spent any time researching cognitive psychology, you know that eyewitness testimony can be very unreliable. I want to briefly discuss the research and then will talk about implications for your case.
Elizabeth Loftus is one of the leading minds in the field, along with Garry Wells and a few others. She ran an experiment in 1989 where she showed subjects a video of a car accident at an intersection where there was a stop sign. Half of the participants later received a suggestion that the traffic sign was a yield sign. When questioned about what traffic signal they remember seeing in the video, participants to whom the yield sign was suggested reported remembering the yield sign instead of the stop sign, suggesting that the suggestion of the yield sign altered their memory of the original event. I am certainly not suggesting that this happens every time – there are many factors that increase or decrease the chance that a memory gets altered, such as how focused the participant was on that particular item (if the subject found the stop sign to be particularly important, they are more likely to focus on it and be less vulnerable to the yield sign suggestion).
Perhaps the scariest part, however, is not that the memory was altered, but that a person’s confidence level in their memory is not correlated with accuracy. This means that you can get an extremely confident witness on the stand who will win over jurors but is inaccurate in their recollections.
Much of the studies on memory and testimony relate mostly to criminal cases where there can be police suggestions in lineups or interviews that alter the memory. But the problems can also appear in civil cases where people are questioned by police, attorneys, and put through numerous depositions.
So what can you do about it? You certainly cannot prevent the altered memory and you may not even have the ability to know when or how it happened (unless you have a criminal case where there are more clear factors such as suggestions that are implanted at the lineup). But consider informing your jurors of these psychological phenomenon. Experts like Elizabeth Loftus testify in cases and can point out to jurors the factors that make memory more or less accurate, giving them things to look at other than the confidence of the witness.