Faulty Recollection and Confabulation in Legal Settings

Most of human awareness comes in the form of memories.  Perception in the present is a fleeting thing, quickly stored in long term memory or simply discarded by the mind as unimportant.  Research is constantly underway to better understand the way people perceive the world around them and how and why they remember certain things.  As much a mystery as why the mind clings to some details and not others is how it goes about forming cohesive sequences of events.  When a person thinks back to an event, he or she may only remember the most significant parts first, then go on to recall more detail with prompting and through cognitive exercises.  This forced recall is not as sound as it might seem, however.  When the mind struggles to populate the details of a past experience, it resorts to whatever means necessary, sometimes subconsciously incorporating details from similar but separate experiences and sometimes fabricating them entirely.  Once a cohesive memory has been recalled (either true to the event or not), the memory is updated to include all of these new components and the next recall will include them and the process will be repeated.  The process of recalling memories is extremely relevant within the use of eye witness testimony in legal proceedings. Often times, witnesses who might not accurately recall information are required to give testimony that may affect the outcome of a legal trial. 

Eyewitness testimony has long been a staple of the American judicial system, but the value of that form of evidence has come under fire in recent years.  Witness statements are only as good as that person’s memory of the event in question.  Moreover, recent studies revealing the prevalence of false memory syndrome suggests that this can have negative implications in a court room context.  Indeed, false memory is very distinct from intentional lying; intentional perjury in criminal cases is relatively rare.  In 1996 only 86 of 43,436 convicted criminal defendants were found guilty of perjury (Perjury, n.d.).  Intentional lies, however, are not the real threat to the veracity of eyewitness testimony.  Most witnesses generally want to provide an accurate retelling of the event in question, but most do not realize how unreliable they are.  In an opinion article for CNN’s website, Laura Wexler cited a study by the American Judicature Society that found only 27% of eyewitnesses can correctly identify a suspect by viewing photographs despite the inherent confidence of their choice; Wexler also cited the Innocence Project, which found that 76% of people exonerated by DNA evidence were convicted based on eyewitness reports (Wexler, 2011).  As this evidence does not support the validity of eye witness testimony, it is important to critically asses and evaluate the basis of these drawbacks and how they can be overcome. The inaccuracy of human memory with regard to recall supports the notion that eye witness testimony in a court setting must be carefully extracted and interpreted if it is going to be used as an integral component of legal proceedings.

There is mouthing evidence that can be used to demonstrate the legitimate concerns regarding false recall and the effects it has in a courtroom setting.  There has also been research done concerning how to effectively verify eyewitness accounts so they do not have to be entirely discounted.  Research by Peter Frost et al in 2003 details the process of confabulation, which is the phenomenon of the brain creating false memories to satisfy an expectation that certain details be remembered.  Confabulation is the primary issue in the case of unreliable testimony as the witness in question does not even realize their testimony is not factual.  In another study by Frost (2006) and other contributors demonstrated the correlation between personality and the inclination toward faulty recollection. Gail Goodman and Rebecca Reed (1986) also published studies that examined the effects of age on faulty cognition.  These two studies explored how it is possible to predict the likelihood of a witness suffering from faulty recollection and help dispel misconceptions about what makes a witness unreliable.  Further research by Elizabeth Loftus (1981), Kimberley Wade and Maryanne Garry (2005) explored the various effects of faulty recollection and confabulation in legal settings and how they can be identified and accommodated for. Together, their research suggests that there are many factors and circumstances that help analyze the reliability of witness testimony from a cognitive perspective.

Faulty recollection is an everyday occurrence that reflects the cognitive limitations of the human memory system.  Perceptions are recorded constantly and although plenty are remembered with great detail, most decay.  Research conducted by Peter Frost, Donna Lacroix, and Nicole Sanborn (2003)  in The American Journal of Psychology  described the phenomenon of confabulation, especially within the context of confirmatory versus neutral feedback.  When a person is asked to recount an event and there are absent events, as is natural, the brain fills these voids with approximate details from a different but similar memory, fabricates details that would be appropriate, or engages in cognitive exercises to recover the details it knows it is missing even though this may result in false recall (Frost, 2003).  On a cognitive level, confabulation is a prevalent phenomenon that ultimately influences how a witness recalls testimony. The role of the interviewer becomes integral in shaping the detailed recollection of the event. 

The specific findings of the experiment demonstrated that confirmatory feedback dramatically increased the likelihood that a witness would remember false events.  The study subjects were exposed to an event and afterward interviewed regarding what they saw.  During the interview, the interviewer intentionally confirmed events that did not actually happen and a week later the witness positively reported these events.  It was also shown that when this occurred, false memories were not created; instead, the facts presented during the interview helped shape the witnesses’ recollection.  However, this effect did not happen if acknowledgement, or neutral feedback, was given during the interview. Nonetheless, this poses problems for the courtroom setting where an aggressive cross examiner or attorney is present. A witnesses’ ‘genuine’ testimony can easily be mutated into a false recollection without the witness even knowing. 

Everyone is prone to this general effect, but there has been some research done to help determine what psychological and demographic factors might influence a person to be more or less susceptible to faulty recollection.  This information could help do away with incorrect assumptions about the reliability of witnesses as well as more accurately profile those who should be regarded with skepticism.  In “Age Differences in Eyewitness Testimony”, published in Law and Human Behavior Gail S. Goodman and Rebecca S. Reed (1986) described a study in which eyewitness validity of three and six year olds as well as adults were tested and compared.  Surprisingly, there was no statistically significant difference between the accuracy of the recollection based on age (except for the three year olds). 

The errors came in different forms: the six year olds were the more suggestible while the adults incorporated more intrusion errors, editing and filling their memory of the event to match their impression of what the scenario should have been like (Goodman, 1986).  The three year olds were found to be far less reliable and the likely reason given was that their perceptions and cognitive processes are still too rudimentary to provide a reliable memory of any event.  The conclusion of the report again suggested that manipulative questioning could be used to steer a witness toward faulty recollection, particularly younger subjects who were extremely prone to supply false memories in response to leading questions while providing much clearer, less cluttered recollections when allowed to freely recall (Goodman, 1986).  Again, it is clear that responsible, neutral questions are necessary to keep an eyewitness testimony as pure as possible. Consequently, within a courtroom setting, age is not a discriminative factor in terms of the overall accuracy of eye witness testimony. 

More generally applicable are the findings reported in “Personality Characteristics Associated with Susceptibility to False Memories,” which was published in The American Journal of Psychology by Peter Frost, Sarah Sparrow, and Jennifer Barry (2006).  Frost (2006) reported that there are a number of psychological disorders that incline a person toward confabulation.  He also found that certain personality characteristics as defined by the Myers-Briggs Type Indicator show a correlation to false memories under certain circumstances.  Among the disorders most commonly associated with a confabulation-prone witness are the fairly obvious culprits: schizophrenia, Post Traumatic Stress Disorder (PTSD), depression and dissociation (Frost, 2006).  These witnesses would naturally be regarded with suspicion, but in the past that has been based on a general distrust of those who have a loose grip on reality.  Scientific research into how and why these disorders incline people toward confabulation can help discern the truth they do know from the false memories.

The correlation Frost (2006) found between MBTI classifications could be put to even greater use among the general population.  He showed that extroverts were more inclined than introverts to recall false memories in response to confirmation. Frost further postulated that extroverts enjoyed the positive reinforcement of confirmatory responses enough that their brain manufactured the desired response just to receive the pleasure.  Frost also argued that feelers tended to suffer from false memories more than thinkers, citing confabulation as a means of populating the specific details of an event that their personality type inclined them to remember in terms of emotion.  Finally, Frost (2006) found that people who had predominantly visual memories were more inclined to faulty recollection than those who remember in other ways.  These findings indicated not only that more and less reliable witnesses can be loosely identified with the MBTI classification method, but also that false memories afflict many different types of people for different reasons. As a result, the only way to identify true memories is to better understand which parts of a recall might be fabricated and for what reason.

Such thorough analysis of faulty recollection is not yet achieved.  Most of what is known today is that eyewitnesses are unreliable for too many reasons to count and when it comes to legal situations, the more prepared judges and juries are to account for witness unreliability, the better off the legal system will be.  All that is certain is that eyewitness testimony has become a legal liability without expert testimony or factual corroboration to support it. In “Eyewitness Testimony: Psychological Research and Legal Thought” in Crime and Justice.  Elizabeth Loftus (1981) argued that the methodology to validate witness testimony was faulted.  First, Loftus (1981) described the “excited utterance” condition, which claims that a witness is speaking the truth because when under some kind of duress the mind has less time to fabricate lies and delivers the truth.  This is faulty for two reasons: ‘truth’ can contain false memories without the witness realizing it and the mind’s primitive response to duress is to escape it at any cost.

A lie, unintentional or otherwise, is just as likely to come from a stressed witness as the truth.  ‘Imminent death’ is a similar situation in which a near death testimony is assumed to be truer than not because the witness would have no reason to lie.  This assumption also suffers from the same flaw of confabulation.  The third condition for validating truth is a method known as ‘present recollection revived’ in which a physical item from the scene the witness is being questioned about is presented to the witness to prompt a more detailed memory.  This method is flawed because manipulative questions have been shown to create false memories in witnesses.  The propensity to recall false memories is only exacerbated by the usage of physical objects, which act as cues to enforce a memory that may not be true. In fact, the object may not even be relevant to the scene and may be ultimately counter-productive to valid recollection.  Loftus (1986) suggested that research psychologists can serve to comment on eyewitness testimony in order to help identify which parts are known and relevant and which parts are likely to be cognitively manufactured.  Further research can only help those psychologists to present their expert testimony and arm judges and juries against faulty eyewitness testimony and suggestive questions posed by lawyers to achieve a partisan outcome rather than the truth.

Research on validation methodology has been performed in recent years.  Kimberley A. Wade and Maryanne Garry (2005), in “Strategies for Verifying False Autobiographical Memories,” focused their research on how subjects recover memories. They argued that subjects during free recall, as opposed to structured methods, tend to fabricate their memories as well (Wade, 2005). These findings can help specifically pinpoint where a memory might become a false memory and for what reason.  Wade (2005) also identified the two preferred methods for recovering memories from childhood: consulting family members and using cognitive exercises to hopefully develop a factual, clear, coherent and chronological event or set of events.  These are the most prevalent methods because it is common for experiences to be shared within a group; consequently, it is reasonable to expect that someone else near the subject would have complementary memories of a particular incident.  It is also a common practice for the mind to apply cognitive strategies in discerning fantasy from reality, which is a necessary exercise when identify true memories from false ones. Their research also suggested that subjects very rarely resorted to physical proof to augment their memories. This represents a tendency toward faulty recollection because the above mentioned methods are extremely unreliable.

Relying on the group represents the same problem that has been continuously identified as a fundamental flaw in recall: suggestion and confirmatory responses significantly contribute to the generation of false memories.  A group is likely to propagate and reinforce a false memory throughout itself, making it a useless resource when it comes to recovering fragmented memories.  Applying reason to the distinction between reality and fantasy is also flawed because it is only effective in general and non-specific details, most of which are not relevant during typical court proceedings.  It is both possible and likely for the brain to form a false memory that fits the logical progression of the missing memory’s context rather than to recover the actual memory.  Wade (2005) also speculated that people tend to rely on methods like group consulting because it reflects the most minimal cognitive effort as a path of least resistance.  In the case of recovering memories, the brain simply pulls relevant events and data with the help of cues in order to portray a coherent event.  A person cannot be blamed for faulty recollection because it is simply a part of the human condition.  That is why psychological research is so instrumental in managing the drawbacks of human memory with various methods and aids.

In summary, research suggests that eyewitness testimony is unreliable at best and the perils of faulty recollection pose a particular threat to legal proceedings.  Confabulation is an entirely natural phenomenon in which the brain satisfies its need for a cohesive timeline by creating false memories to fill the voids of actual events and this is only enhanced by outside confirmation.  While this occurrence can be targeted and attributed to specific psychographic characteristics, it is nonetheless present with most people and tends to be overlooked. As faulty recollection poses little more than an inconvenience in everyday life, it is still a serious threat to the fairness of the legal system which has long relied on eyewitness testimony. Only recently within the last few decades, have researchers and legal authorities begun to realize how flawed that type of evidence is and the implications they have on fair legal proceedings.  Much research has been done to determine what leads witnesses to confabulate and what might be done to mitigate this concern in the court room.  Although the field is still in its early stages, the best way to manage faulty recollection in a legal setting is to ensure there is hard evidence to corroborate testimony and experts on hand that can help identify truthful statements from those that should be viewed with skepticism.  The word of an eyewitness should never be disregarded entirely and it will only help the process to better learn how and why false memories occur and how to best avoid their influence when property, reputations, and lives hang in the balance. Ultimately, the cognitive basis of eye witness testimony reflects that human memory and the recollection process must be interpreted with due diligence and appreciation for the inherent limitations of human beings.

References

Frost, P., Lacroix, D., & Sanborn, N. (2003). Increasing False Recognition Rates with Confirmatory Feedback: A Phenomenological Analysis. The American Journal of Psychology, 116(4), 515-525.

Frost, P., Sparrow, S., & Barry, J. (2006). Personality Characteristics Associated with Susceptibility to False Memories. The American Journal of Psychology, 119(2), 193-204.

Goodman, G. S., & Reed, R. S. (1986). Age Differences in Eyewitness Testimony. Law and Human Behavior, 10(4), 317-332.

Loftus, E. F. (1981). Eyewitness Testimony: Psychological Research and Legal Thought. Crime and Justice, 3, 105-151.

Perjury - Criminal Law Lawyer Source. (n.d.). Criminal Defense Attorneys, DUI Lawyers - Criminal Law Lawyer Source. Retrieved October 11, 2011, from http://www.criminal-law-lawyer-source.com/terms/perjury.html 

Wade, K. A., & Garry, M. (2005). Strategies for Verifying False Autobiographical Memories. The American Journal of Psychology, 118(4), 587-602.

Wexler, L. (2011). Eyewitness testimony often lies - CNN.com. CNN.com - Breaking News, U.S., World, Weather, Entertainment & Video News. Retrieved October 11, 2011, from http://www.cnn.com/2011/09/20/opinion/wexler-witness-memory-davis/index.html