Memories Are Malleable: Should We Trust Witnesses? | Cohn Lifland Pearlman Herrmann & Knopf LLP
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Memories Are Malleable: Should We Trust Witnesses?

The "star witness" in a criminal case says that they saw the crime happen in person. Though it was a year ago, they swear that they remember it perfectly. They give compelling testimony and the person who was accused of the crime goes to jail.

Ten years later, a break in the case comes when new DNA evidence arrives. The authorities run tests, and they are shocked when they see that the man whom was convicted was not the one who committed the crime. The DNA evidence demonstrates very clearly that the perpetrator was another individual entirely.

They exonerate that first man, and release him, but there is no way to give him back the years of his life spent incarcerated. How could this happen? Was the witness lying?

Changing Memories

Certainly, witnesses have lied on the stand, but it may not always be anything so malicious and intentional. In fact, the witness was likely certain they remembered the event correctly and gave an accurate account of the details as they remembered them.

The problem is that memories change over time. Research during the past decade has shown that this does happen. It's may be impossible for someone to be aware of their faulty memory, since they see it so clearly in their mind, but what they remember will not always line up with other accounts or video footage of the event in question.

The issue, experts believe, is that memories turn malleable, and can be "rewritten," whenever you think about them. They can shift and mold into something else. Add in other information received from other sources -- watching TV, talking to other witnesses, etc. The memory alters itself and then, when the witness stops thinking about it and "puts it back," it's this new memory that the brain stores, like an unconscious game of "telephone."

Now imagine this happening repeatedly over the course of months and even years. With an event like a violent crime, it may come up often. The witness may dream about it, or think about it during their daily lives. They may discuss it with friends and family members, or tell the story to police officers, detectives, and journalists. A victim or a witness may engage in trauma therapy where the event is purposefully discussed and dissected.

Every time, there's a chance that the memory changes a little bit. Over time, the witness can completely warp it into something new. That's why, if two people witnessed the same event, they might sincerely remember and recount two completely different chains of events. Which is correct?

Know Your Rights

If you're facing allegations that hinge on witness testimony, it's important to understand that the testimony may not be accurate or trustworthy. You have to know your legal rights in New Jersey and what options you have to defend yourself.

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