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Opinion Review

Book review: Witness for the defense: the accused, the eyewitness, and the expert who puts memory on trial

Rating: 5 out of 5.

If you are a student of psychology, you might have already come across Professor Loftus’ work on eyewitness memory. She is the pop star and hollywood personality within the field of forensic psychology, and has served as an expert witness in high profile cases such as Ted Bundy and more recently Harvey Weinstein (Associated Press in New York, 2020). Furthermore, Professor Loftus’ work has become highly controversial, and has caused many reactions from victims due to her experiments on eyewitness memory, and how unreliable episodic memory actually is. Her book Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial (1991) narrates her experience working with defendants in the criminal justice system, whilst also delighting the reader with the theory of her experiments and findings.

“There is a generally accepted theory in our field that memory doesn’t work like a videotape recorder. We don’t record an event and then play it back later. The process is much more complex […] In such circumstances there is an increased risk that an innocent person will be convicted […] One of the most obvious reasons for forgetting is that the information was never stored in memory in the first place; even the most common, everyday items frequently fail to find a niche in our memory […] With the passage of time, with proper motivation, or with the introduction of interfering or contradictory facts, the memory traces change or become transformed, often without our conscious awareness”

Selected excerpts from Loftus and Ketcham (1991, pp. 4-17)

Recently The Guardian wrote a news report about Harvey Weinstein’s trial and described the situation as follows: “Lawyers for Harvey Weinstein turned on Friday to an expert known for studying false, repressed and unreliable memories who has worked on behalf of clients including the serial killer Ted Bundy” (Associated Press in New York, 2020). Needless to say there are many critiques of Professor Loftus due to her tendency to work for the defense instead of the prosecution, and this has led to journalists wondering why such is the case. For students of forensic psychology like me, there are a series of questions that only her books can answer. I truly recommend this book to those seeking to understand eyewitness memory better, and also those seeking to learn about the behind the scenes of the criminal justice system.

Relevant Questions & Answers

Why work for the defense instead of the prosecution?

Professor Loftus is highly concerned with justice, and prefers to prevent injustice by studying cases meticulously and scientifically. Having already been involved in cases where a potentially innocent person got a death sentence after biased procedures (e.g. Demjanjuk; Loftus and Ketcham, 1991), Dr. Loftus knows the importance of the presumption of innocence. Many studies conducted on eyewitness memory have demonstrated that memories are vulnerable to distortion and contamination. Hindsight bias and post-event information (misinformation effect) are particularly important concepts when trying to understand why miscarriages of justice have occurred in the history of the western societies and their criminal justice systems. In regards to this, her book states: “Although witnesses try hard to identify the true criminal, when they are uncertain- or when no one person in the lineup exactly matches their memory- they will often identify the person who best matches their recollection of the criminal. And often their choice is wrong” (p. 23). This has become a general rule of thumb and a system variable when investigating cases from a psychological perspective. “But in a stressed mind, under intense pressure to come up with someone who could be blamed for this horrible crime, those connections could have been created, welded together by fear and pain and a desire to be done with it all, to stop thinking, to find an answer, a solution” (p. 191)

Why did she defend Ted Bundy as he is not innocent?

According to her book, when Bundy’s lawyer contacted her, he described the case to her as relevant to her work, and as if the prosecution had an “extremely weak case” against his client. Back then she had not heard the name “Theodore Robert Bundy”, and did not know that the famous “Ted cases” were related to him, and it was in 1975 that John O’Connell (Bundy’s solicitor) consulted her in regards to the kidnapping charge against him. At the time, Bundy was a law student in Seattle, and his profile was surprisingly charismatic to the point where it was very difficult to imagine him committing such terrible acts. Dr. Loftus did not expect what came after that, and describes being surprised about this case and remembers having a conversation with O’Connell where she explained her theory: “First, the acquisition stage, in which the perception of the original event is put into the memory system; second, the retention stage, the period of time that passes between the event and the recollection of a particular piece of information; and third, the retrieval stage, in which a person recalls stored information” (p. 77). Furthermore, she describes her impression of Ted Bundy’s death as follows: “The scene switched to an interview with Ted Bundy the night before his electrocution. Prison had removed the arrogance from his smile, sharpening his features. The eyes seemed deeper set, the nose longer and straighter, the creases in his forehead permanently etched […] I felt lightheaded, slightly sick to my stomach” (pp. 90-91). Professor Loftus recalls wondering what would have happened if her expert contribution had led to an acquittal in Utah, and seemed to be distressed about the entire situation as more evidence accumulated about Bundy.

What common cognitive biases does Dr. Loftus study?

Professor Loftus conducts holistic investigations. There are many variables that she analyses, but all of them together are beyond the scope of this article. However, she does mention some of these in the book: “I hit the return key on my computer three times and typed in the words photo-biased identification […] Unconscious transference was the third item on my list […]Next on my list was time estimates. Jurors are aware that memory is better when you have a longer time to look at something, but they are often not aware that later, when a witness tries to estimate how long a particular event lasted, there is a strong tendency to overestimate its durations […] Confidence. Like most people, jurors tend to believe there is a strong relationship between how confident a witness is and how accurate he or she is” (pp. 169-170). In a nutshell, she is a memory expert. “

An example: “We’ve shown people a simulated bank robbery that lasts for half a minute and they will say it lasted for five minutes, eight minutes, even ten minutes. In one experiment people saw an event that lasted four minutes and they said it lasted ten minutes; some said twenty minutes. There is a very strong tendency in the memory to enlarge these complex and stressful events so that they appear to have occurred over a longer period of time than they really did […] Unconscious transference is the mistaken recollection or confusion of a person seen in one situation with a person who has been seen in a different situation. But what is happening here is the merging of an image of a person seen in one situation with a totally different incident. And that is an important phenomenon. Many people do not realise how easy it is for an ‘unconscious transference’ to occur, to take a person with your memory of an experience that happened at a different time” (pp. 200-201).

What is her view on penology and prisons?

Dr. Loftus’ position about penal punishment within the criminal justice system can be appreciated with her closing statement on the Ted Bundy chapter: “Bundy was guilty; there was no longer any doubt about the fact. But he was also a human being, and now he was dead. Where, I wondered, is the triumph, the glory in that” (p. 91). I interpret such statement in the context of human rights law (Equality & Human Rights Commission, 2018), with the right to life being relevant when it comes to capital punishment.

Were the deaths of Steve Titus and Detective Parker correlated?

Last year I emailed Professor Loftus to inquire about her chapter Dark Justice: Steve Titus, about one of the clients she defended, and who was wrongfully convicted of rape. It was a case of bureaucratic corruption. At the end of the chapter, Professor Loftus narrates the following events: “On February 8, 1985, eleven days before he would have faced his tormentors in court, Steve Titus died. He was thirty-five years old […] On June 8, 1987, six years to the day after Titus’ conviction was overturned, Detective Ronald Parker was found slumped next to his gym locker, dead of a heart attack. He was forty-three years old” (p. 60). I asked her whether she wanted to imply a potential correlation between these two deaths, or whether she just wanted to make a historical record. Thirteen days later I received a reply from her where she explained that Titus had died of a heart attack due to the stress he had gone through, and that she was not sure what happened in the case of the detective. Moreover, she said that both, Steve Titus and the detective are buried near each other in the Washington Memorial Cemetery in New York (Anderson, 1991), which is quite ironic.

Can you mention an experiment conducted by Professor Loftus on memory?

Yes, I can indeed. She actually summarises her experiment on semantics in the book: “I hesitated for a moment, trying to decide whether to tell Kurzman about an earlier experiment I’d conducted with adult subjects who watched a film clip of an automobile accident and then were interviewed and asked suggestive questions. By using the verb ‘smash’ instead of ‘hit’, we were able to change not only the subjects’ estimate of the speed of the cars when the accident occurred, but also the probability of reporting broken glass- even though there was no broken glass in our interviews. This particular experiment supported the theory that the subjects experienced an actual change in the original memory” (p. 137).

Irrelevant Questions & Answers

Why did she defend Harvey Weinstein as he is not innocent?

Even though this is not in the book, I see this is along the same lines of why she defended Ted Bundy. Professor Loftus’ work focuses mainly on how people absorb information (learn), store events, and retrieve such details later on. So her involvement in such high profile cases has to do with ruling out the common cognitive and procedural biases found in estimator and system variables of eyewitness accounts and processes; which for her is a fairly straightforward, algorithmic, and systematic, reliable procedure. From what I understand, Harvey was found guilty of 2/5 allegations. This means that Professor Loftus had to make sure that all processes regarding the accusations were put through rigorous scientific methods for mitigation, as well as the examination of potential contamination in the memories of both, accusers and the defendant. This process often involves a detailed episodic, chronological reconstruction of the crime and the parties involved. As an expert witness, Loftus has a duty to be impartial, professional and objective about human memory. This means that her defendant was found guilty of actually sexually assaulting two of the five victims, and only these two accounts were successful in proving consistency in episodic recall. In other words, having Loftus study the case means that it is undeniable to the jury that Weinstein did do those two things, but that it was not proven that he did do those other three things beyond reasonable doubt (Levenson, 2020).

Does all this mean that Professor Loftus does not support the #MeToo movement?

No, that is not what all this means. All this simply means that Professor Loftus had to mitigate human memory empirically in order to clarify to the best of her ability as a scientist what really happened in Hollywood. Expert witnesses tend to be demonised due to the controversial work they carry out. Nevertheless, nothing of the mentioned above is evidence that she is anti-feminist.

My personal favourite:

“It is a fine line I walk as a psychologist in a court of law. While the debate about guilt and innocence is waged with passion and partisan zeal, it is my task to deal with the facts. As an expert witness, the facts I must deal with extend beneath the surface, deeper than the newspaper headlines, deeper even than the confidential police reports and the court transcripts. I am privy to the defense lawyer’s strategy; I’ve read the victims’ descriptions of the accused; I know the sordid and intimate details of the crimes; I’ve viewed the lineups and listened to tape-recorded interviews. But still there are facts I will never hear, details that are beyond my expertise or concern. The defense attorneys tell me what they want me to know, selecting only the facts I will need in order to testify. I do not have access to the prosecutor’s files. I rarely have the opportunity to talk at length with the defendant. And I don’t venture into the jury room to hear their confidential and privileged conversations about guilt, innocence, and reasonable doubt” (p. 241).

References

Anderson, R. (1991) ‘Port Most Ingenious in Public Spending’, The Seattle Times, 6 July [Online]. Available at https://archive.seattletimes.com/archive/?date=19910706&slug=1292967 (Accessed 7 March 2020).

Associated Press in New York (2020) ‘Harvey Weinstein trial hears from expert on unreliable memory’, The Guardian, 7 February [Online]. Available at https://www.theguardian.com/film/2020/feb/07/harvey-weinstein-trial-unreliable-memories-elizabeth-loftus (Accessed 7 March 2020).

Equality and Human Rights Commission (2018) ‘The Human Rights Act’ [Online]. Available at https://www.equalityhumanrights.com/en/human-rights/human-rights-act (Accessed 7 March 2020).

Levenson, M. (2020) ‘Who’s Who in the Harvey Weinstein Trial’, The New York Times, 21 February [Online]. Available at https://www.nytimes.com/2020/02/19/nyregion/weinstein-trial.html (Accessed 7 March 2020).

Loftus, E. (2019) Email to Betshy P. Sanchez Marrugo, 22 October [unpublished]

Loftus, E. and Ketcham, K. (1991) Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial, New York, St. Martin’s Press.

Sanchez Marrugo, B. P. (2019) Email to Dr. Elizabeth Loftus, 9 October [unpublished].

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