Faulty Memories, Misplaced Confidence, and Bad Outcomes

“I would not have chosen to make this mistake….  I don’t know what screwed up in my mind that caused me to conflate one aircraft with another.”

— Brian Williams in 2015 explaining earlier statements he had made claiming he was in a helicopter when it was hit by RPG fire in 2003.

“I made a mistake.  I had a different memory.  I made a mistake – that happens – that proves I’m human which for some people is a revelation.”

— Hillary Clinton in 2008 explaining misstatements she had made claiming she arrived in Bosnia in 1996 under sniper fire.

Brian Williams and Hillary Clinton said their aircraft were fired upon.  Their memories were convincing but wrong.  The same memory problems affect eyewitnesses who testify in civil cases seeking damages for discrimination, fraud, and other alleged wrongs.

When litigating civil cases that rely on eyewitness testimony, here are some tips to keep in mind:

  1. Courts historically limited eyewitness testimony, yet presumed that witnesses who did testify were telling the truth.
  2. Criminal courts have begun to understand that uncorroborated eyewitness testimony is not reliable and to allow expert testimony on the fallibilities of memory.
  3. At the same time, in civil litigation, courts have placed greater reliance on eyewitness testimony.
  4. Relying on eyewitness testimony is problematic because memory errors occur when events are perceived, while memories are retained, and whenever we are asked to recall events.
  5. Educating jurors about the risks of memory errors could change the outcome of your trial.

More information, including a review of the scientific research documenting the fallibility of human memory, can be found in my article, “What the Heck Happened?  The Eyes Don’t Have it!”

What the Heck Happened

–Tom Singer

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