Kubie, "Implications For Legal Procedure of The Fallibility of Human Memory"

Implications for Legal Procedure of the Fallibility of Human Memory Author(s): Lawrence S.
Kubie Source: University of Pennsylvania Law Review, Vol. 108, No. 1 (Nov., 1959), pp. 59-75 Published by: The University of Pennsylvania Law Review Stable URL: http://www.jstor.org/stable/3310331 . Accessed: 12/02/2014 12:52
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1959]
COMMENT
IMPLICATIONS
THE FALLIBILITY
FOR LEGAL PROCEDURE OF

OF HUMAN MEMORY
LAWRENCE S. KTJBIE, M.DTt

INTRODUCTION
Various aspectsof legalprocedure are based upona tacitassumptionthata "normal" mancan tellthetruth ifhe tries. By implication thisassumes thatthemajorsources oferror willbe either a mechanical failure of thebrainto record and reproduce pastevents, or else a deliberatedesireto deceiveor a reluctance to tellall. It will be mythesis thattheseassumptions are invalid:thatin spiteof everyeffort to be honest, theperceiving, recording, processing, reliviing and reproducing of the events one observes and of the events in whichone participates alwaysare selectively colored;thatthesesourcesof errorare ubiquitous; and thata relatively rareand minor roleis played bythoseerrors whichare introduced by deliberate deceit, by mechanical limitsof the brain as a recording apparatusor by organicbrain damage. The disconcerting questions whichthesefactsforceupon us are (1) what roleinlegaltestimony should be played and bydiscrepancies bymemory of different amongthememories and men, (2) how are courtsof law to proceed, sinceall testimony depends upon memory? It shouldnot cause dismayto discover thatpsychiatry can only raisethesequestions; it cannot answerthem. Everydoctor is familiar withthispredicament. For centuries, before he couldoffer a curehe has had to diagnosefatalillnesses as "incurable." Yet he knewall find a cureifhe had notfirst alongthathe wouldnever and recognized theexistence of thedisease. It is not strange acknowledged thenthat all social and behaviolral sciencessuch as the law must frequently of long-standing the existence acknowledge "diseases" psycho-social a remedy. This, however, withoutimmediately does -not offering over existing methods of dealiing witha situation justify complacency thattheyare "the best we've got." It shouldrather on the grounds are better. spurus on to find wayswhich
t Directorof Training, SheppardPratt Hospital,Towson,Maryland. Member, School of Medicine, Facultiesof Yale University and Surgeons Collegeof Physicians and New York Psychoanalytic of Columbia Institute.A.B., 1916,Harvard University, University; M.D., 1921,JohnsHopkinsUniversity.
(59)
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in importance waysis of particular to seekbetter The admonition since testimony of testimony, and evaluation to the eliciting relation his instruments, psychological restsupon one of man's most fallible I willlistsomeofmany to be exhaustive pretending memory.Without by citing however, is vulnerable.I willbegin, ways in whichmemory field. another drawnfrom example a comparable in psychoA recent study was madeof theprocessof supervision supervision forconducting therapy and of thevalue of tape recordings process. It was pointedout that the psychotherapeutic and studying abouttheprocesses we havelearned which to everything we runcounter to recall therapy conducting whenwe expecta student of thememory session and to with precisionwhat happenedduringa therapeutic with his meeting in a subsequent the session undistorted reprodluce bias both and to recallwithout supervisor.It is askinghimto record and in whichhe is a participant sides of a rapidand freeinterchange not merelyan observer,in which his own complexemotionsare to demonstrate involved, and in whichhe needsconstantly intricately to observebut also to guide that whichhe is his abilitynot merely words,he is thatwhichis to come. In other and to predict observing an a participant, pilot, a freereactor, disciplined askedto be a carefully screening all without recounter, a recorder, and an objective observer, of this demandwas the starting point or bias. The patentabsurdity which weremadewithtaperecordings.' forthestudies that in a previous reported In one seminar a youngpsychiatrist be machine had suddenly asked thatthe recording sessionhis patient whichwas offbecausehe was about to divulgesome material turned reasons thepossible groupdiscussed painful. The seminar particularly gained of thepatient knowledge on their basingthediscussion forthis, the of theirspeculations in previous meetings. To checkthe accuracy interof the therapeutic thatthe fiveor ten minutes groupsuggested be of therecording the interruption and following view just preceding and oftheyoungpsychiatrist iback. To theblankastonishment played himself make the of the groupas a whole,theyheardthepsychiatrist Of this be interrupted. thatthe recording to the patient suggestion from Yet the recollection. not the had slightest factthe psychiatrist it becameclear that the psythe interruption thatpreceded material had servedhimwell. He had sensedthepatient's intuition chiatrist's ofspecial theneedforsomegesture tension. He had realized mounting and withrelief had responded and privacy. The patient consideration be that the recording had apparently suggested aftera few minutes
PSYCHOANALYTIC
1 See Kubie, Research into the Process of Supervision in Psychoanalysis, 27
Q. 226 (1958).
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resumed. Nevertheless, the psychiatrist had feltanxious lest he be criticized forhis action; out of thisanxiety had comethe unconscious reversal of hilsmemory of eventsand of the roles whichhe and the patient had played. I shouldemphasize thattheseare friendly in whichthe seminars youngpsychiatrists do notfeelassaulted by criticism.They value the opportunity to see themselves at work. Nevertheless, thefactthathis ownmaneuver had beenspontaneous, impulsive and in a senseunusual had arousedenough fearto makethisearnest guiltand enough and able student unwittingly reverse his memory data. If thiscan happen under in an intimate circumstances such friendly then postgraduate seminar, surely we shall have to take accountof similarphenomena in a court of law. THE PSYCHOPATHOLOGY OF MEMORY Failure to Perceive, Recordand Recall of psychiatry in relation One function to otherdisciplines is reto warnus away from peatedly themistaken thatcomplex supposition in human elements nature are simple. Accordingly one purpose ofthis article is to discussthecomplexities of theprocesses of human memory and theimplications ofthesecomplexities forlegalprocedure.Another is to provide a starting pointfora searchformoreaccurate and,therefore, fairer methods of evaluating thememories of witness, of accuser and of accused. What we call "memory" consists of severalcomponents, actually eachofwhichis vulnerable to distortion. to remember (1) Beforethereis anything theremustfirst have been a perceptual process. But even elementary are not perceptions simple actsofautomatic registering. Perceptions themselves are selected under theinfluence ofmany processes ofwhich theperceiver is unaware. Without itwe pickand chooseamongthousands realizing ofconcurrent impressions.Moreover, in addition to theunawareselective influences which guideour perceptions a we actually do majoramount of perceivawareness thatwe are perceiving ingwithout at all. This is notan hy.pothesis. It is a factthathas beendemonstrated in experirepeatedly mental in work,and whichalso is manifested daily humanlife. The demonstration simplest experimental of the factthatwe can perceive and record without beingaware of it has beenconducted withtheuse ofa tachistoscope: a machine which a visualimageupona screenl flashes forsucha brief forthe individual span of timethatit is impossible to
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say whatit is thathe has seen; he can report onlythatit was "a flash of light withsomething on it." Subsequently however theinfluence of theimagewhich was flashed uponthescreen can be tracedin spontaneous doodlings and drawings, in dreams, in wordassociation testsand in suchphysiological components of emotional processes as changesin skin-temperature, color,sweat,resistance oftheskinto thepassageofa weakelectrical current, and respiratory and heartrates. Furthermore, innumerable examples can be adducedofpeoplewho have reproduced words, tunes and visual images which they have experienced without havingnotedat the timethe factthattheyhad experienced anything out of the ordinary. For example,a young seatedat his desk by an open windowhearsa friend medicalstudent to himfrom whistle the street. This was a prearranged signalto go his friend for a walk in the country. He approaches whistling; yet he is not thetunehe heardbut another. Moreover, whathe whistles is puzzledby thetunehe is whistling; he cannot remember its nameor thetuneto his friend, wherehe has heardit. He whistles askingifhe "I was whistling recognizes it. Thereupon thefriend thatfor answers, halfan hourand youpaid no attention.I thought youmusthavegone to try another out. Then I decided again; and thistimeI whistled t.une and youputyourheadoutofthewindow." In anotherinstancethe processof unaware selectivity operated influences. A young manencounters his moreobviousemotional under at a Saturdaynightdance. In the courseof the evening psychiatrist on thecrowded dancefloor. The young they pass eachother repeatedly his analystrepeatedly, man looks at and through givingno sign of thinks that manis embarrassed, theyoung The psychiatrist recognition. smilesin his direction refrains from and afterone or two tentative him. On Monday morning the young man comes to his greeting a dream of havingmethis psychiatrist at a dance; sessionand recounts had thattheevent occurred. he is unableto believe actually Again, towardsthe end of her analysisa patient who is a poet a riseon a lovely hillsidein spring dreamsof topping and of seeinga tallgreenflowers, their bellsopening to thesky. valleyfullof straight, "I haveneverseenanything She endsthedescription likethem." saying, and pointing at a lamp by the couch in the office Then stopping she has been that there? Those weretheflowers." The says,"How long new lamp,but it had beenthere forthree lampwas a relatively weeks. had walkedby it everyday of thosethreeweeksand had The patient thecouch, itand reproducing lookedat itfrom it in thedream recording oftheapproaching as thepoeticsymbol end of hertreatment. Yet she thatshehad seenit. had notknown
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are takenintoa strange roomand, What is more,if individuals that they are asked to writedown everything upon being removed, whileanother may items, downtwenty onemaywrite remember seeing, fewor many, trialone remembers on his first recallfifty.But whether trance and can thenbe put intoa lighthypnotic ifthesame individual he maybe thathe saw in theroom, be askedto write downeverything items. Clearlyhe had registered of additional able to recallhundreds but he is not able to reproduce them"preconsciously"; and recorded and waksleeping statebetween until them he is putintothathalf-way sleep"which is calledhypnosis. ing,thestate of"communicative through eyes,ears, impressions, ofsimultaneous In fact, thousands apertures, and also frominternal nose,tongue,skin,joints,muscles, areas,some againstinsensitive Some flick organspeltus continuously. concern. The stingof some of sensitive againstareas of emotionally with pain but with precision. Otherswhich thesewill be recorded be rememwill subsequently pleasantsensations touchoffparticularly bered with pleasureand with acuity. Still otherswhichtouch off was associatedwithguilt will be buriedbecausethe pleasure pleasure and recalled or withfear. Some whichcause pain will be recorded stingsare buriedand forstillotherpainful withangryindignation; in of fear,guiltand shame. Therefore, gotten becauseof theirsetting themereperceiving emotional factors ofsuchexperiences and recording of perception, thus selective roleat theverymoment playan automatic as a the degreeof awarenesswithwhichthe individual, determining Furthermore, in theprocess ofexperiencing. participates wholeperson, to Johnmay be of importance thingswhichare of major emotional themwith minorimportance to Tom. The one may record relatively fair precision, while the other may recordthemonly vaguelyand if at all. diffusely, From these reflections and from countlessdaily experiences controlled and carefully we must conclude laboratory experiments, of that all humanbeings are subject to an incessant bombardment and storethese, theywill perceive and thatoften sensory experiences below), them internally (and whatI meanbythatI willdescribe process and reproduce them that everknowing without them, buryor "forget" them. If theywere asked whether theyhad theyhave experienced everseen sucha lamp,had everheardsucha tune,had evermettheir at a dance,they wouldanswerquitehonestly, "No." This psychiatrist without means that one can be exposed repeatedly to an experience or awareness and without conscious theability to recallit to knowledge ifhe can recall some conscious awareness. Sucha manwillnotbe lying detailyetdenyhavingseen some largeand conspicuous inconspicuous
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object whichwas "rightunderhis nose," even when a dozen other of the sort are not rare or seeing it. Discrepancies men recollect indications exceptional. Yet the same man may give manyindirect on somelessand "processed" thatthe experience had been recorded or of plane; memory traces of the entireexperience than-conscious ofit couldbe elicited maneuvers. experimental byappropriate fragments thismayhold forlegal procedures, especially with What implications to testimony is a matter of graveconcern. and perjury, regard of exThe pointis thatthe recording, storing and reproducing it to conscious are onlyin smallpart memory) perience (i.e., recalling but are undertheconstant influence mediated processing, by conscious and unconsciousinfluences. Such of highlyselectivepreconscious makeup the major shareof the dailylifeof preconscious perceptions ofourlifeexperiences human being;infact, onlya smallfragment every are mediated by conscious processing. guidethe and preconscious mechanisms (2) Similarunconscious of of experience.By thiswe meanthelinking storing and processing to another, whichin its primary stepsdepends one unitof experience of morethanone perceptual processin any unit upontheconcurrence to experience at a time, just one thing oftime. If it wereeverpossible be like a to recall it. It would never be able we would subsequently in an empty it to station field withno railsleadingto or from railroad of the establishment linkit to any rail system. In thenervous system of simulinevitable concurrent linksbeginswiththe input connecting level. As Pavlov showed,a mere taneouseventson a preconscious linkswithout which in time establishes theseconnecting coincidence as memory. there couldbe no suchthing of experiences to theirrelationships But thisprocessing according in timeand our timesense. our orientation in timealso determines of experiences theconcurrence juxtaposesthemand makes Moreover, and which compares,contrasts possible that elementof processing to similarities, dissimilarities and contrasting groupsthemaccording we are enabled elements.By meansof suchinstantaneous comparisons in categories and thento represent thesecateto classify experiences It to make and is this abstractions capacity memory images. goriesby of a present imagewitha past tracewhichmakesit quickcomparisons places,and timevoices,gestures, faces,events, possibleto remember Here again,although there is a component or time-intervals. sequences of perceptual whichis carriedon conin thisprocessing experiences the major share is carried on preconsciously. And, as both sciously, emotional whether conscious processes Pavlov and Freudhave showed,
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or unconscious also influence linksand how theywill theseconnecting be used. (3) This processing of unitsof past experience and recombining makepossible there-experiencing or re-living ofthepast withvarying ofvividness. The re-experiencing, degrees down again,maybe broken into a battery of interacting components. One may re-experience merely the sensory fragments of thepast; a pain, an ache,a smell,a a color,a sceneor a facemay comevividly flavor, to mindalmostas thoughit were present. Such sensory of the past will components in varying combine proportions withmemory tracesof the sensations received from the external surfaces of thebodyand limbs (exteroceptive) and frommovements of musclesand joints (proprioceptive): sensations of heat and cold on the skin,and of moisture or dryness whether of the skin,eyes,mouthor otherapertures, of flushing and or theprickling blanching sensations ofthehairrising;also themoveof thefaceand of themuscles ments and jointsof thetrunk and limbs and the sounds of our own voices. In varyingcombinations these afferent elementscontribute vivid sensorycomponents to memory whichmakethepastwithall thefeelings it evokesas vividand real as it were"hereand now." though There are also the deepercomponents of sensation whichcome from within thebody (enteroceptive).These makefurther contributionsto theaffective or "gut" components of our memories of thepast. All oftheseenter intothere-experiencing of thepastas though it were in the present; occurring but again none of the contributing elements needbe conscious. These latent ingredients are ubiquitous in memory; in mostremembering, although wordsare a short-cutting devicewhich screens themout. (4) This bringsus to the usual re-experiencing of the past-as which is represented something largely byverbalsymbolic clues. Actually this is the least vivid element in the totalprocessof memory; it meansremembering thatsomething has happened to us, but almostas as though impersonally it had happened to someone else. Words here represent the past as from a safedistance, screening out all the more vivid sensorycomponents of memory. Thus memory of this usual typeactually involves a first stepin dissociation and depersonalization. Yet it is to just thistype thattheword"memory" is usually restricted: namely, thememories which we represent by words. And theseverbal clues to the past are themselves frequently experienced not accurately but withmanyunconscious distortions, as through the substitution of one memory foranother or through thecondensation of manysimilar to represent experiences them by one "memory."
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are themajor components theperceptual of memory: These,then, the components, therecording components, theprocessing components, reliving components and finally the components of representation by of meansof verbalsymbols. Each of theseis vulnerable to distortions severalkinds: (a) by deliberate consciousmisrepresentation; (b) as the resultof subtleor gross organicchangesin the centralnervous system(for example, the memory defects of senility, arteriosclerosis, brain-damage, chronic alcoholism, infection);(c) by acuteor chronic in the biochemistry disturbances of thebodyas a whole (as in toxic delirious states, hypoglycemic coma,drugeffects);(d) by theinfluence of affective processes whichmaybe represented by emotions of which somewe are fully conscious, but mayalso be sub-threshold processes on in theirinfluence timesevenmorepotent thanconscious emotions the total constellation which comprisesmemory; (e) throughthe influence of variations in levelsof participation (as in the difference in sleep, or whatwe can reliveor reproduce between whatwe perceive of or under in thewaking states or influence the hypnosis) (f) through conflicts which are theorigins ofneurotic thoseunconscious symptoms. falsifioferror are notdeliberate.Yet deliberate Most ofthesesources ofmemory, cations denialsofremembered ofaltered facts, substitutions factsare also possibleand can be superimposed upon those guileless whichare inherent sourcesof error in humanmemory.Consequently, of severalof these processes. errorsare usuallycomposite products effects Examplesof such composite may be foundin othertypes ofbehavior. A soldier in training of campwho is pathologically afraid his sergeant shootshimself in the foot. The act is deliberate but the are not. These are products fright and the lack of control of deep neurotic problems. The total constellation is a synthetic productof and neurotogenic conscious, preconscious unconscious processes. in manyways and valuableto his A man of highcaliber, creative is courageous, community, self-sacrificing, generousand meticulously in most human honest but is guiltyof destructive relationships, and in his intimate behavior lifewithwomen. In fact, damaging he is almost incapableof tellingwomenthe truth. His father died and his mother remarried at a timein his lifewhich was critical in his emotional in all otherareas he is honorable, in thisone development. Although area of deeplytraumatic early experiences with mother, step-father, sisterand nurse,he lies. Each such lie is deliberate and conscious. Yet his vulnerability to automatic lyingin thisone direction arisesout of unconscious conflicts whichhad theiroriginsin childhood fears and confusions.
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In spiteof suchcomplexities, each ofwhich individual variesfrom to individual, the legal fiction remains thatwhatone man remembers accurately another whohas shared theexperience must also rememberthat the one who claimsto forget or who, thinking he remembers, reproduces an erroneous version oftheincident experienced, is lying. I wishthattheproblem was as simple as this,butit is not. What thenare the facts? No one remembers all of any event. We do not remember the entire whichmakeup sequenceof incidents norall of thepeopleinvolved, theeventitself, theentire setting-time, place and duration-northe frequency nor the span of its repetition, oftimecovered by theserepetitions. are Yet in a courtof law ifthere the testimonies discrepancies between givenby two men about some which or ascertainable experience they haveshared, and ifit is assumed thatthetestimony ofone is morenearly accurate thanis thetestimony oftheother, is usedas a measuring themore"correct" setoftestimony rod to testnot merely of the other the accuracy but also the veracity man. This is an invalid test! What is worse,theman who claimsto remember mostis usually of as the more honest. He is "tellingall." The otheris thought "holding back." This again is an indefensible assumption.No single should become measure of the testimony whatboth"should"or "must" recall. The failureto recallall that anotherclaims to recallis not evidencethat the less complete or less accurateversionconstitutes In deliberate thata less misrepresentation. fact,insteadof assuming or less accurate complete report implies voluntary distortion, suppression,hiding, evadingor deliberate misleading, any claimsfortotalor recall precise should be regarded withequal suspicion, ifnotwithmore. Therefore when in courtanyoneis asked, "Do you remember Jones? How manytimes haveyou seenJones? Whenand wheredid you see Jones? Over how long a periodhave you knownJones?", between the answersof two or moremen cannotfairly discrepancies or safely be used as a basis forcharges of perjury. Anyone maygive answers are contrary which to factwithout deliberate lying. Of course he maybe lying. Here is therub. But he mayalso be answering the insofar as the truth is accessible to him,whenhe says thathe truth, does notknowwhether he knowsJones, if and whentheymet,where or over how long a periodthe contacts theymet,how often, between them werespread. To answer, "I do notknow,"or,"I cannot be sure,"' maybe a deliberate or it mayindicate deception a highdetermination to, tell only the truth. And this is the case even when anothermarn remembers or believes or pretends to recallfarmoreabouttheirjoint experiences.
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experiences can be fusedand then In one emotional statemultiple be represented in memory as thoughtheyhad been one event. This in childhood, as whena childmayrecallas a single happens constantly a hundred times. eventsomething thatmay have happened startling memory." Every a "screen This is oneform ofwhatis calledtechnically adultdoes thistoo. On theotherhand,thatsamechildor adultmay as though manytimes. This is recallone singleevent it had happened in juridical sourceofguileless testimony. another discrepancies potential and their There is a lesson to be learnedhere frommothers children. Yet livesoftheir livecloseto thegrowing children.Mothers written fewcan reproduce the accurately unlessthey dailydiaries, keep "firsts" occurred: dates and ages at whicheven the vitallyimportant standing,walking,talking,school, illnessesand even more highly suchas operations and accidents. Ask anypediatrican! events charged to be sure of thantheanswerto such retrospective Nothingis harder "whens." in a joint confrontation by another participant Finally,physical a flowof impulses along asstarting experience may act as a trigger, to a morecomplete or recollecleading reproduction sociative pathways them tionof events, fully. This need uncovering yetnevernecessarily it happensor not does not carryany notalwayshappen;but whether of deception. necessary implication and thetricks it These are onlya fewof thefactsaboutmemory are trying their playson all of us all thetime,even whenindividuals withaccuracyand even in the absenceof organic best to rememlber braindisease. Under such circumstances to ask, "Do you or do you of thetruthfulness or notremember ?", to taketheansweras indicative of the man who answers,and thento use an inaccurate dishonesty answeras a basis for an accusationof perjuryis, to say the least, thathas knowledge dangerous. It violatesclinicaland experimental of fact,the been gained in the last seventy-five years. As a matter of thisgoes back evenfurther.The greatCharlesDarwin knowledge thatifhe did notwrite thathe had discovered wrote downtheobservahe alwaysforgot tionswhich them. He was argued againsthis theories to foola court. But the conscious not trying components of memory underthe influence of profound were operating emotions. selectively it can If -this to Darwin man, and our legal happen to every happened mustlearnhow to take it intoaccount. procedures
False Memories
of only those distortions Up to this point we have considered whichmanifest in generalmemory losses or in themselves memory
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those false memories special gaps or lapses. We have not included of the processesof mentalillnessand whichcan arise as symptoms discrepwhosepotential influence mustalso be evaluated. Otherwise, to may be wholly misleading anciesbetween trueand falsememories judge and jury. A fewtypesand settings maybe notedas of suchfalsememories examples. First, thereare the storieswhich are made up out of fantasies by menwho romantic, tragic, heroicor sympathy-compelling ability to distinguish between are slowly and imperceptibly losingtheir byLord Dunsany their daydreams and reality.Sucha manis described in thestory entitled "The StrangeCase of Mr. Shad." This is a not phasesofa schizophrenic illness. infrequent phenomenon in theincipient In lessfantastic rolein human lifethanis forms it also playsa greater usually realized. Nor are all such romancesmade up consciously., and insidious reasons. Manyariseforsubtle In certain pseudological, carefully-thought-throughL situations these forms called in theirmoreextreme, and recurrent elaborate fantasies, forms. Theyneed can assumequiterealistic "pseudologia fantastica," not be so extravagant as to be easilyrecognized. They can be mere experiences.Sometimes extrapolations from factual to imaginary they of the millionaire; as is the kleptomania but they are as purposeless and vengeful can also servevicious, destructive purposes. to cover Thenthere which peopleintroduce are theconfabulations braindisease to happen whenorganic gaps in memory.This is likely but intowhiclh has causedmemory difficulties whichare embarrassing has insight and aboutwhich he is chagrined.He maythen thepatient fill in with made-updata which will sometimes consistof simple, for who has notbeenout of a hospital anecdotes. A patient plausible the months may give a detailedaccountof a walk down the street, friends he met,the mealshe ate, the moviehe attended. These conof any organic but fabulations can occurin thesetting deficit, memory of the conditionknown as Korsakow psychosis, are characteristic whicharisesnot exclusively butmostfrequently amongseverechronic areas ofthebrain. alcoholics withdamageto certain of some Or such falsememories may falsify onlythe frequency whereas in depressed moodsfive event. In expansive maybecome fifty, as five. This misuseof the moodsfifty and shrunken maybe recalled as it mayoccuras unconsciously decimal place neednotbe deliberate; it does in dreams. falsifications whichare one ofthe are theretrospective Thenthere condition.The manwho has ofthefully hallmarks paranoid developed thathe is beingpersecuted delusions mayfeedthosedelusions by false
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ofimaginary, memories yetpossible, experiences with which he attempts to proveto himself and to others thetruth ofhis suspicions. A gesture fifteen years ago bya stranger acrossthestreet, although notunderstood at thetime, suddenly becomes a signalfrom "them" thatthey are going to take over and control his thoughts. Then comesa seriesof ten, ofsimilar twenty, thirty examples all toldin minute imaginary episodes and precisedetail. Such accusations may have for the accuser the ofrealexperiences, as though he had dreamed whileawake quality them and without ability to distinguish his fantasies and reality. Or between and deliberate lies. and malicious they maybe conscious thedelusions of persecution Since in thissetting maygive rise to thehatemaycolortheretrospective intense falsifications so that hatred, theybecomecounter-accusations. Thus, falseaccusations may reston and be toldwith falsememories, yethave muchof thecolorof reality realism. Such false memories and apparent feed the intense feeling occurs in the paranoid need for vengeancewhich not infrequently or theparanoid oftherecent and personality psychosis.The testimony fromCommunism convert shouldbe regarded withspecial repentant suspicionalong theselines: he may be particularly eager to involve in an effort in his confessions to win favorand to clearhis own others or out oftheveryillness his original whichdetermined hatreds. skirts, from his soul; itjust changed didnoteliminate hatred The "conversion" the target. of those who need to make There are also the false memories rationalor irrational to expiateeither sacrifices guiltfeelings. Some of theseunhappy themselves peopleoffer up as sacrificial victims, as man laden the whois withdelusions forinstance, ofguiltand who; gives himself he couldnot possibly have comup to thepolicefora murder mitted. And some,in addition, mustmakesacrifices of otherhuman thosewho are mostheavily beings. Paradoxically sometimes enough, withguiltmaydevelop a pathological burdened needto makea human sacrifice of someone else,as though theycouldexpiatetheirown guilt someone elseuponthealtarofthegods. Theymaysacrifice byoffering are close,withwhomthey thoseto whomthey mayactually have been withwhomthey thatthey havebeenassociated associated, mayimagine or withwhomthey butbywhomthey mayhavelongedto be associated another wererejected. The needto sacrifice human beingat thealtar of one's guilt-laden is one of thedifficult conscience sourcesof memory distortion whichenterintoall cases in whichsomeonewho has conturns and accusesothers, fessed whether of private guiltof pastcrimes criminal acts or acts of treasonand subversion.This introoffenses,
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ducesa disturbing element of doubtas to thedependability of all such testimony. The Fallibility ofMemories ofJudge, Attorneys, and Jurors I haveso fardiscussed Although onlythememory ofthetestifying witness, we must notoverlook thefact thatthisis onlypartofthestory. We mustconsider also thememories of thejudge,of theattorneys for both the prosecution and the defense, and of the jurors: what they recallof everything thattranspires in thecourtroom is notto be taken forgranted. Yet we do takeit forgranted. We assumetheaccuracy of the courtstenographer's perceptions and of his recording of his percepts.We assumethatjudges,attorneys and jurorsas wellperceive and recordaccurately. Yet "accurately" impliesmore than a court and manner stenographer's transcript.It implies voiceand intonation and expression. It would be possibleto subjectall of theseassumptions to test. can We no longerneedto dependuponunaidedmemory. Testimony and the jury now be tapedand screened. The judge, the attorneys, of thetestimony, it. couldstudy thetapingand the screening studying to catchnuancesof voice,expression and. over and over if necessary gesture. It was not possibleto do this untilrecent years,but it is and without too greatexpense. One wonders howmuch. possible today, errorand how muchhonestdisagreement could be eliminated by the alone. One wonders also how mucherror of devices use ofsuchsimple if be the triers than a could eliminated had more interpretation single and listen to study, observe to a witness as he giveshis chance fleeting his voice and manner not once but repeatedly to study testimony: by forpossible tell-tale hintsoi replaying his recorded testimony, watching and confabulation. dissimulation falsification, confusion, we consider the processesof appeal,how And if for a moment would be an appeal based upon a re-examination of the illuminating record oftheoriginal tapedand screened proceedings!To demonstrate oftrialparticipants, and jurymight theactualbehavior judge,attorneys or slantedversionsof recordedl well revealmore than the tidied-up or ofmemory. percept I do not for a moment to offer solutions to any of the pretend I haveraised. I am suggesting are available problems onlythatdevices couldmakea court intoan instrument of todaywhich, properly applied, and whichmight freeit fromsome of the errorsof objectiveinquiry thepast. But thiswillnotbe doneso longas we are complacent about of honestmemory, formemory the dependability remainsimmensely
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and notheffort is madeto tellthewholetruth fallible evenwhenevery of endby givinga fewexamples ing butthetruth. Let me,therefore, of illuminate some whichmight research thekindsof inter-disciplinary issues. theseunsolved
EXPERIMENTAL APPROACH
I will not attempt all the possible here to reviewsystematically to a approaches to theseproblems. I will limitmyself experimental whichmightbe fruitful.In all of few illustrations of investigations to to attempt simple and constant: thesestudies thedesignis essentially in speech, expresstudythe unintended ingredients recordforminute of accuser, accused, witness,judge, sion, mannerand mannerism in artificial and jurors. This would be done preliminarily attorneys, oflegalprocesses in screenings and recordfacsimiles and subsequently objectiveof ascerwiththe first proceedings ingsof actualcourtroom indicesof deliberate thesewould providedependable tainingwhether as opposedto unconscious error. A second and involuntary deception and its reproduction wouldbe to testtheaccuracy of memory objective it wouldbe necesunderexperimental situations. For thesepurposes sary to collecta large and varied arrayof old cases with complete records. These would have to be of threekinds: (a) stenographic theaccuracy cases in whichjudge and juryhad madedefinite decisions over the by subsequent developments of whichhad been confirmed had been years; (b) cases in whichthe accuracyof the judgments over the courseof years; and (c) cases in whichfor one disproved to reach any decisionhad resultedin reason or another,inability fora of old cases would be used as scripts dismissal. These records wouldbe of witnesses number seriesof mocktrialsin whicha certain schooledto give honestand accurateanswersupon directand crossso thatthey instructed, wouldbe falsely examination.Otherwitnesses answers. A thirdgroupwould be would give honestbut misleading and speech to give consciously falseanswers. The behavior instructed and screened.2 ofall wouldbe recorded itshould and films, then be possible to study Fromtheserecordings of the behavior of of those the processes deception by comparison who are givinganswerswhichtheyknowto be truewiththe persons
2A similar experimental paradigm might be appropriate to an investigation of the role of the attorneyin the trial process. In an adversary systemit is the attorney's duty to present his case in a form which is as favorable as possible to his client. Inevitably,this produces a certain amount of slanting. If we are to test the assumption that an adversary system is the best system by which to approximate truth in legal procedures,then we should compare the results achieved in mock trials in which some attorneys"advocate," while others present their case in a non-partisanmanner.
1959]
THE FALLIBILITY
OF HUMAN MEMORY
73
behaviorof thosewhose answerstheyalone knowto be false,under of each is undersuspicion. It would wheretheveracity circumstances be possibleto creategreateremotionalimpactin this situationby in convincing who succeed to thosewitnesses sizablerewards promising judge and jury of theirtruthfulness: bothto thosewhose deliberate is and to those whose "true" testimony are not detected deceptions in slow sometimes studyof pictures, believed. Then,by the repeated posture, facialexpression., ofspeech, ofevery aspect an appraisal motion, be made. etc.,might breathing, eye-movements, hand-gesture, to the basis of the The basis of suchstudiesis in sharpcontrast of these latterconsistsin an so-calledlie detectors. The principle between any relationship is a specific there assumption:-that erroneous with whichare connected discharges one emotion and thoseautonomic can havethesameautonomic an individual emotional states. In reality as whenhe is telling whenhe is telling thetruth understress discharge common or thelie butthestress, a lie understress. It is notthetruth processes. On the otherhand, to both,whichis linkedto emotional by whichwe do communithanthoseof speech there are organsother cate meaning to the outsideworld,mainlypreconsciously-eyebrows, breathing. hands,fingers, mouths, nose, eyes,the skinof our cheeks, studied. have neverbeen adequately These organsof communication random of theapparently repetiThereare a fewslow-motion pictures in a at least shown that highi of children whichhave tivemovements buthas a is in factnot random, of instances themovement proportion onlyifthe becomes understandable meaning which clearandtransparent in so thatone can analyzethemovements is runslowly enough picture detail. a manwho is testifying, or jurorobserves Whena judge,attorney on the face and eyes. From the concentrates he normally primarily muclh onlya fewhints. As a result bodyhe receives restofthewitness' languageis unseenand unheard;it is like the four of the unspoken all circusthatgo unseenbecauseone is focussing ringsin a five-ring to all of us. It is this on the center attention ring. This is familiar whichthe stage magicianexploitsby drawingthe attention tendency whattheother to one handso thattheywillnotnotice of theaudience as we observe witnesses.But handis doing. This we do automatically are behavior and taperecordings of witness untilsystematic screenings tellto whatextent foranyoneto predict it will be impossible studied or ofdissimulation or of partial ofdeception truth may tale indications fromthis body languagewith statistically greateracbe discernible alone words than provide. curacy
74
UNIVERSITY
OF PENNSYLVANIA
LAW REVIEW
[Vol.108:59
in Afterstudiesare made of theseprocessesof communication suchfacsimile situations, it shouldbe possibleto makesimilarrecordin actualcourt ingsand similar screenings ofthebehavior of witnesses but proceedings, notforthepublicpressor forthepublicconsumption, film Withthehelpof infra-red forfurther experimental investigation. with the courtroom it shouldbe possibleto do this without flooding excessive lighting. A nextstepin suchan investigation therewouldbe to contrast in opencourtroom with sultsofdirect and cross-examination conducted in isolated, interand cross-examination theresults of direct tete-a-tete totalrecording viewsin which is made. In thepast it by tapeand film to preserve a fullrecordof an interview otherthanby was impossible on thefallible reliance percepts and memory of thecourtstenographer. an individual therewere good reasonsfor examining Therefore only or bribery in theopencourtroom: ofintimidation which thepossibilities occurin a closedinterview cast constant doubtas to thevalidity might is conof testimony elicited tete-a-tete. But whena closed interview a forscreening, ductedin a specialroomwiredforsoundand lighted that can be and it should totalrecord of everything transpires secured; be easyto makefurther provision to assureagainstsubsequent tamperand their ing, through procedures insulating the recording machines, product. I wouldemphasize again my earlierstatement thatthesesuggestionsare intended some of the typesof investigation onlyto illustrate team of lawyers, whichmightbe undertaken by a multi-disciplinary be expected clinical and psychiatrists and whichmight to psychologists of juridicaltestimony.We will throwlighton some of theproblems in psychiatry notattempt to describe herethekindof research institute and legalprocedure which wouldbe needed to staff, finance and conduct suchinvestigations. I cannotclose thissectionon the experimental approachwithout of studying theprocessof appealby emphasizing again theimportance similardevices. Appeals based on astute arguments fromthe cold recordby partisanadvocatesare one thing. Appeals based on the of recordings actualstudy of courtprocedures might be quiteanother. The devices in thissection whichI have described wouldmakepossible a direct study byappellate judges oftherelevant behavior of all parties to thetrial. A systematic oftheoutcome comparison ofsuchappealsas in thesetwowaysshouldnotbe postponed conducted indefinitely. research intotheprocedures Finally, bywhich testimony is elicited and evaluated mustinclude basic research on processes of speech. Yet wordsare onlyone ingredient in the communication and disguiseof
1959]
THE FALLIBILITY
OF HUMAN MEMORY
75
moduare subjectto subtle and feelings. Their implications thoughts in volume, intonation, pitch, by variations lationswhichare expressed such affecresonance, rhythm, voice placement, stress, pronunciation, and smiling, as hintsof moaning,groaning, whining, tive elements of words into word clusters or arhythmical grouping the rhythmical and unmodulated stream.For such withsilent gapsor intoa continuous oftime ofvolume, willbe neededof decibels registration studies precise in breathing and in of theair-volume and evenofthemotion intervals, so briefand followeach are themselves speech. These modulations the of manyof themapproximate thatthe duration otherso swiftly Consequently, used in tachistoscopic experiments. durations subliminal processes recognitive depends uponpreconscious ofthem theperception is a in there language of thefactthat example another and constitutes of which words provideonly a processing streamof preconscious to words, patternsof conscioussample. In addiition fragmentary comthepara-linguistic mimetic constitute facialand bodymovements exploredunder the term ponentsof language. These components, ascertainable analysis, are charged with potentially kinomorphic
meaning.
from the to isolateany oneof theseelements Becauseit is artificial analysisof language and of the total techniqueof communication, processas it operatesin of the communicative components multiple and cross-examination conducted bothin the courtroom and in direct on by any carried in thestudies element willbe an important isolation to teachwhathas beenpracticed in law schoolwhichwantsnotmerely newand better waysforthefuture. This will thepastbutalso to find to the studieswhichwill engrossinvestigators add new dimensions of law in thefuture.* theprocesses who explore
DIAGNOSTIC
Clinic MonographSeries Nos. 3 TESTING (Menninger PSYCHOLOGICAL appear and 4, 1945,1946) (the data on memory, retention, recall and reproduction in manyplaces throughout thesetwo volumes); RAPAPORT, EMOTIONS AND MEMORY to Kinesics,13 ETC.: A REVIEW OF Background GENCE (4th ed. 1958); Birdwhistell, Dept. of State, to Kinesics, Introduction GENERAL SEMANTICS 10 (1955); Birdwhistell, 1952. ForeignServiceInstitute,
(2d ed. 1950);
WECHSLER, THE MEASUREMENT AND APPRAISAL OF ADULT INTELLI-
will serve as leads into the literature:1 & 2 RAPAPORT, *Certain references

Kubie, "Implications For Legal Procedure of The Fallibility of Human Memory"

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Implications for Legal Procedure of the Fallibility of Human Memory Author(s): Lawrence S.

FOR LEGAL PROCEDURE OF

LAWRENCE S. KTJBIE, M.DTt

1 See Kubie, Research into the Process of Supervision in Psychoanalysis, 27

UNIVERSITY OF PENNSYLVANIA LAW REVIEW

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