SUMMARY: False Memory research is as applicable to civil litigation as to criminal proceedings. Recall of events is susceptible to fabrication and manipulation of which we are usually unaware. New research on the fallibility of memory has important practical implications for Personal Injury counsel.
False memory has achieved notoriety through a succession of high-profile criminal cases. However, this human foible is also highly relevant to civil litigation in general, and personal injury litigation in particular.
Recall of events is susceptible to fabrication and manipulation of which we are usually unaware. Psychological research during the last 3 decades indicates that the conventional model of human memory is flawed.
The widely-held belief that we register an accurate and sequential record of experiences is demonstrably incorrect. The vast majority of our sensory experiences are not stored in memory, and the tiny proportion that are recorded are fragmentary at best.
To make sense of the few pieces of the jigsaw that we recall, we construct a rational framework consistent with our beliefs. To do this, we confabulate - fill in the blanks.
These "filler" details can come from our imaginations or from the suggestions of others1 that are introduced when material is subsequently rehearsed.
PRACTICE POINTMemory is fragmentary, malleable and readily manipulated. |
The false material may be incorporated in the memory more strongly each time the material is "recalled", and whenever the content is reviewed our convictions are erroneously strengthened2.
We currently have no way of reliably distinguishing such filler material from true memory3. To paraphrase the Uruguayan novelist Eduardo Galeano, "memory is born anew every day."
Research following the destruction of the World Trade Centre4 provides a dramatic example of false memory to which most North Americans can relate. Of people who were asked about their memories of September 11 itself, 70% reported either seeing the plane hit the first tower, or feelings of intense anger towards Osama bin Laden. In fact, neither footage of the first plane strike nor the possible implication of Al-Qaeda was made public until September 12.
New research on the fallibility of memory has important practical implications for Personal Injury counsel.
Recall bias is one of the intrinsic weaknesses5 of retrospective research. Recall is determined by the significance of a detail, its impact on the person's life. Thus, if a child either has birth defects or develops early childhood cancer, the mother is more accurate than the mother of a normal child in recalling what illnesses occurred and what medications she took during her pregnancy. Such recall bias may invalidate research findings.
In assessing conflicting research findings, the hierarchy of research methods must be considered and more reliable research be given precedence.
We have previously alluded to the PI client's hindsight bias or recall bias as "revisionist memory." Because of his emotional investment in the claim, the client innocently "remembers" events and sequences that are consistent with his system of beliefs about the injury. The claimant's treating physicians and medical experts commonly attribute causation without reviewing the medical records from the time of the injury and before.
PRACTICE POINTThe claimant's recollection of the sequence of events should always be checked against contemporaneous documentation |
When a witness to fact gives a detailed description and speaks with confidence, jurors and judges tend to give credence. However, these features have been shown to be unreliable indicators of truth6. This research on False Memory can usefully be presented to the Court as evidence in cases in which the confident, detailed testimony of a witness may be given undue weight.
PRACTICE POINTJuries and some judges need to be educated that a witness's personal conviction and recall of detail are false indicators of reliability |
Copyright © 2008 Electronic Handbook of Legal Medicine