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The Science of Memory, and How It Can Affect Your Criminal Case

If you’ve been charged with any crime—whether the charge is Los Angeles DUI, domestic abuse or something else—neither the prosecutor nor your defense attorney will rely solely on physical evidence to prove your guilt or innocence. Much of the evidence presented comes in the form of verbal testimony from witnesses—people who saw what happened, people who can attest to your whereabouts, experts called to weigh in on certain matters, etc. The problem is this: Verbal testimony is based mostly on memory, and memory can be a fleeting thing.

And the result is that, many times, when different witnesses offer conflicting testimony, it doesn’t necessarily mean one of them is intentionally lying. Sometimes it’s simply that those people remember the events differently. The jury then has the unhappy task of figuring out the truth, by listening to these alternative versions.

The Science of Memory and the “Rashomon Effect”

Scientists have coined a term for why different people recall the same events differently: The “Rashomon effect,” named for the 1950 Japanese film Rashomon, in which four witnesses recall a murder in contradictory ways. The reasons for these contradictory memory patterns have eluded scientists until only recently. As Science Alert explains, researchers have discovered that as individuals, we develop unique “memory traits” based on how our brains receive and process information:

“For the first time, researchers have shown that the different ways people experience the past are associated with distinct brain connectivity patterns that may be inherent to each individual,” the article says. “These life-long ‘memory traits’ are the reason some people have richly detailed recollections (episodic memory) while others can recall facts but little detail (semantic memory).”

This difference between episodic and semantic memory may hold some keys to why certain witnesses can testify on the stand or in depositions more accurately than others. People who lean toward episodic memory are better at recalling events in sequence, and frequently make excellent witnesses. People who focus more on facts and figures—semantic memory—don’t always accurately remember events, and therefore may offer confusing testimony when asked.

Another factor to consider is the difference between implicit versus explicit memory. According to Spark Notes, implicit memory involves our thoughts and behaviors based on previous events: It causes us to respond instinctively to things, without remembering specific events that triggered that response. Explicit memory is more about consciously retaining certain information. Obviously, witnesses who lean more toward explicit memory will provide more accurate testimony, while those with implicit memory may cloud the details.

Writing and Rewriting: How Memories Get Cloudy

Have you ever listened to someone tell a story of something that happened to them, then noticed the story got more embellished every time he retold the story? There’s some science behind this tendency, too. If you think of our memory center as a sort of hard drive that stores data, you understand that when the data is rewritten time and again, it may eventually get corrupted. In a very real way, this can also happen when we attempt to recall events.

An interesting article in explains how this happens:

“Every time you remember something, you rewrite it in your brain. If that recollection contains errors, you’ll strengthen those errors until you’re positive they’re correct.”

Why We Forget

Many times, court testimony can get muddled not by what the witnesses remember differently, but by the details they forget. This article in VeryWell offers a succinct explanation for forgetfulness, boiling it down to four possible dynamics:

1. Retrieval Failure—We have trouble pulling a detail from memory, sometimes due to fading over time)
2. Interference—When similar memories compete in the mind and interfere with our recollection
3. Failure to Store—When a certain event simply doesn’t get encoded into our long-term memory banks
4. Motivated Forgetting—When we purposely or unconsciously attempt to block certain memories, usually due to some associated trauma

How Memory Affects Your Case

Taking the science into account, you can probably understand a little better why our imperfect human memories can complicate a case. In effect, memory can work either against you or in your favor. Let’s look at one example of each.

Your own memory can work against you.

When you are working with your attorney to prepare a defense, you must take into account the fact that your memory of the events can be imperfect. For all the reasons described above, you might rewrite the story in your mind or forget important details in such a way that your testimony doesn’t corroborate the evidence or the testimony of other witnesses.

One of the biggest reasons why some defense attorneys keep clients off the witness stand is when their client’s own memory lapses could be used against them. In cases like these, your best defense is to trust the testimony of other witnesses, as well as the physical evidence itself.

The faulty memory of others may work in your favor.

To illustrate, let’s assume the law enforcement officer who arrested you is called in to relate his version of the events leading to your arrest. The problem is that the officer has probably arrested a lot of people before and after you, and, for that reason alone, may not accurately remember the facts.

This is why cross-examination is such a powerful tool. Your attorney has the opportunity to ask questions from a different perspective, to test the memory of the witness and make sure the testimony holds up under robust questioning. If your attorney can show inconsistencies in the testimony due to memory lapses, your case may be strengthened.

If you have been charged with a crime, you need an experienced Los Angeles criminal defense attorney in your corner who can help you navigate the murky waters of conflicting memories, confusing evidence and a complicated court system. Our team is standing by to assist you! Give us a call today.

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