On Reconsideration. Facts, Memory, Testimony: Person, Woman, Man, Camera, TV

• Author: Kenneth R. Berman
• Pages: 54-57

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 54

Events are input. Testimony is output. In

between is memory.

When we hear testimony, we’re not

hearing a precise depiction of the event.

At best, we’re hearing only the memory

of it. But what can happen to memory

between the event and the testimony is

troublesome. Memory has a central role

in resolving legal disputes, yet it can be so

invisibly unreliable.

It would be wonderful if memories

could store facts in pristine condition, so

that when a witness responds to “Tell us

what happened,” a fact finder would hear

exactly what happened. Testimony con-

fidently delivered, especially when rich

with details, impresses fact finders that

the witness’s words accurately reflect the

event. Listeners’ brains work that way.

Memory, though, does not.

Although some courts in criminal cases

have had some epiphanies about how to

deal with faulty memories, on the civil

side courts still seem in the dark ages.

Judges still instruct juries to give whatever

weight they may feel a witness’s memory-

based testimony deserves, using a kind of

gut-reaction standard.

In other spheres, we’re urged to set

aside our gut reactions and follow the sci-

ence. When we don’t do that, people get

exposed to toxins, millions of acres burn,

or hundreds of thousands die from COVID.

Ignoring science leads to bad outcomes.

That’s one reason judges serve as gate-

keepers over expert testimony: to keep

juries from considering quack opinions.

Why then do we give civil juries almost

unfettered freedom over how much to

credit testimony based on how they feel

about it, without telling them what sci-

ence has to say?

Well, what does science have to say?

Science teaches that memory is a three-

step process. One, encoding—we make

a mental imprint of our observations:

what was seen, what was said, what was

heard, what happened next. Two, storage—

those imprints sit in our mental file cabi-

nets, backrooms, or warehouses. Three,

recall—we bring the information out of

storage and disclose it or act on it.

None of those steps is secure. In each,

things can alter the state of the remem-

bered facts.

Encoding

Let’s look at encoding. Brains don’t encode

the entire observed experience. They en-

code only the parts that seem significant

or distinctive at the time or the ones easi-

est to remember or those that we’re con-

ditioned to observe. Encoding isn’t like

videotaping. We don’t capture everything.

Thoughts, stress, and other internal and

external distractions compete for our at-

tention and disrupt how much of an expe-

rience we encode.

Some people are better encoders than

others. Take facial recognition, for in-

stance. About 2 percent of the popula-

tion has a condition called prosopagnosia.

They have trouble recognizing faces—of

someone they’ve just met, of friends

they’ve long known, sometimes of their

family, at times even their own. At the

other end of the spectrum, about 2 per-

cent exhibit powerful facial recognition

skills. They are super-recognizers, never

forgetting a face, even years later.

But variability in encoding isn’t limited

to facial recognition. How well we encode

data varies, generally by how our brains

are wired. If we could plot the population

on a bell curve by how well people encode

what they see, hear, or do, some would be

at the high end, some at the low end, and

most would be somewhere in between.

But in a courtroom, most witnesses except

the very worst give the illusion that they

are just as capable as any other witness of

encoding whatever relevant information

needed to be encoded. They come across

as being in the top quintile of encoders.

That, of course, is impossible. Eighty per-

cent of all witnesses can’t be in the top 20

percent at encoding.

Nor can fact finders know where along

the distribution curve any witness sits,

On Reconsideration

FACTS, M EMORY,

T ESTI MON Y:

PERSON, WOMAN,

MAN, CAMERA, TV

KENNETH R. BERMAN

The author is a partner with Nutter McClennen & Fish LLP in Boston and the author of Reinventing Witness

Preparation: Unlocking the Secrets to Testimonial Success (ABA 2018).