The Dirty Little Secret of Every Courtroom Is That Every Witness’s Memory is a Leaking Sieve or Shifting Sands or a Shaky Pastiche, the Scooter Libby Trial’s Included

“Scooter” Libby’s defense is that he forgot and thus did not intentionally commit perjury and obstruct justice.

Such a defense won’t look good on his corporate resume, but believe me, it’s high time somebody in high places confessed to just how unreliable human memory is and made it stick.

In fact, the more we learn about our memories, the more we realize just how little we can recall with any dependable accuracy.

So I’ll tell you about one of my most embarrassing “failure of memory” moments if you’ll tell me one of yours.

Unfortunately, mine occurred at the top of the ten o’clock news on Dallas’ leading TV station a few nights after the 2002 Presidential elections. (Now, that’s something neither of us is likely to forget!)

It happened a day or two after it became apparent that who was going to win would depend on a few votes (or hanging chads!) in Florida. And that when elections are this close, they can conceivably be stolen with “invention” of a few votes more. In fact, Texas politics had produced just such a scurrilous incident in 1948 when Lyndon Johnson needed only a few votes more to defeat Gov. Coke Stevenson and move on to the U.S. Senate.

The man who engineered the electioneering magic of inventing votes after the polls had closed in Texas in 1948 was widely believed to be notorious South Texas political boss, the late George B. Parr. Three weeks before a prison-bound Parr shot himself to death on his ranch in the mid 1970s, I had taped several hours of interviews with him for a book I was writing. And nearly 30 years later, when a TV reporter called to ask if Parr had revealed who came from Austin to arrange for the extra votes for LBJ, I had no hesitancy in replying, “He said it was John Connally.”

Now you may (or may not) recall that John Bowden Connally, Jr., a powerful Texas governor, himself would run for the Presidency (and win the vote of a single convention delegate after spending $10 million). What Connally didn’t do was travel 214 miles from Austin to San Diego, TX, in the infamous Box 13 incident and ask Parr to invent more votes.

But my memory was so sure that when I had asked who had come down from Austin, Parr had replied, in his cackling, raspy voice, “That was ol’ John Connally.”

Didn’t happen. Despite being trumpeted in 15-second promos on Dallas’s leading TV station all day long. Despite my eyewitness-to-history testimony at the top of the late news. It wasn’t John Connally. More than a few historians had confirmed this years earlier, and I’d not read their accounts. And because my tapes of the interview were locked up hundreds of miles away in a university’s archives, I couldn’t check my memory. So I relied on it. So did the reporter. We both made a mistake. Someone else in Johnson’s campaign made the trip to request that Parr stuff the ballot box long after the polls were closed.

In his new book, The Naked Brain: How the Emerging Neurosociety Is Changing How We Live, Work and Love, neuropsychologist Richard Restak calls what happened to me—and perhaps happened to “Scooter” Libby—memory morphing.

“Basically,” writes Restak, clinical professor of neurology at George Washington University’s Medical Center, “memory morphing takes advantage of the fluidity of our memories, which aren’t encoded like videotapes or DVDs that we play back whenever we want to reexperience something from the past….The more social neuroscientists delve into the bramble bush of human memory, the less secure we should feel about the reliability of our own memories. And we’re not talking Alzheimer’s disease here, just normal human memory—which, it’s turning out, is more malleable than most of us ever imagined.”

A few of Restak’s sobering observations:

• Encouraging people to imagine an experience increases their confidence that that experience actually occurred. (It’s called imagination inflation.)

• We remember different things when we’re feeling down than when we’re feeling good about ourselves or vice versa. (This is, in fact, a form of memory morphing.)

• Marketers can get us to change our memory (as opposed to merely our opinions) even after they are formed simply by providing us with new and different commentary or contexts. (This is called backward framing.)

No doubt, skilled lawyers use all of these memory manipulating techniques and more in the courtroom. No wonder juries often have a hard time making up their mind. And want testimony read back to them. And, or so DNA evidence has been confirming, get the verdict dead wrong so much more frequently than prosecutors and judges and law school professors have been willing to admit. Human memory is one of the most unreliable processes that ever attracted a following. “Scooter” Libby’s lawyers could do worse than put Dr. Restak on the stand and have him talk a little bit about how unreliable it really is.

Purchase Robert Restaks’s book here: The Naked Brain: How the Emerging Neurosociety Is Changing How We Live, Work and Love

Dr. Elizabeth Loftus of the University of California at Irving might be the world’s foremost expert on the unreliability of memory. For professional information about her and her research, go here: Elizabeth F. Loftus.

For insights into her findings, go here:
Creating False Memories
What Jennifer Saw

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