Raise your right hand and repeat after me

  • Comments
  • Print

Memory is a funny thing.

I can remember exactly what I was doing when the space shuttle Challenger exploded and when the Twin Towers fell. I can tell you the name of every teacher I’ve ever had, all the way back to kindergarten, and what their voices sounded like.  I can recite the starting lineup of the 1995 Cleveland Indians. I can tell you the birthdays of all eight of my brothers and sisters. I can sing all bazillion verses of “American Pie,” and tell you the key signature of just about every Scott Joplin rag.

But I can’t remember my wife’s teaching schedule, no matter how many times she reminds me.  And if you ask me to list the U.S. presidents between Lincoln and FDR, I will give you a blank look, even though I had a huge presidential poster on my bedroom wall as a kid.

Some things stick with you. Some things don’t.

I thought about all this last week, when I was called to jury duty in Marion County Superior Court. I had never served on a jury before, and was curious about what really happens during a trial, compared to the movies.

After a few hours of filling out questionnaires and being interviewed by lawyers, I was seated on a jury in a criminal case. The defendant was charged with six counts of armed robbery and one count of criminal confinement (holding someone against their will).

The judge told us the trial would probably last three days. More than a dozen witnesses would testify.

I was prepared. I would listen carefully. I would take lots of notes. I would wait for the victims to take the stand, recite every last detail of the stickup. And when witness after witness said, “That’s him!” – well, it would pretty much be over for the defendant, right?

Because that’s what a jury is waiting to hear. There’s nothing as powerful as eyewitness testimony.

At least that’s how a lot of people see it. And when someone is robbed at gunpoint, who better than the victim to recount everything that was said and heard, and to lay it all out for the jury?

But what if the victim didn’t get a good look?

What if he wasn’t paying attention, or was distracted, or panicked?

What if he was looking more closely at the gun than at the robber?

What if he wasn’t wearing his glasses?

What if he saw the gunman from 10 feet away, instead of a few inches?

What if he didn’t speak English as a first language, and couldn’t remember exactly what was said?

What if it was dark, or the gunman was wearing bulky clothes and a hat that hid his face?

All of these issues came up in the trial. As I sat there, listening to testimony, I began to see that real life was more complicated than a movie.

Some of victims could identify the defendant, but at least three of them couldn’t. Some weren’t sure. My notebook began to fill up with “I don’t know,” “I didn’t get a good look,” and “It’s hard to say.”

One of the victims spoke Vietnamese as his native language. Through an interpreter, he recalled all the facts of the stickup in his garage. But when asked if he saw the gunman, he hesitated for at least a minute, and then said he couldn’t remember.

Even the prosecutor, in his opening argument, cautioned us that witnesses don’t always remember everything. He said we should expect to hear a few witnesses fail to identify the suspect. He said he would build a case with a mix of witness testimony, physical evidence and circumstantial evidence.

He used this analogy: If you went to a wedding a few months ago, would you remember today what everyone wore? Would you be able to recall every detail of the reception, and everyone’s name? Some details were more important than others, he said, and the overall body of evidence would be more important than any single piece.

The defense lawyer, too, told the jury to listen closely, because the trial would be complicated, and we would have to remember (that word again) what evidence supported or didn’t support which charge.

That fascinated me. Because for a few days, it made me reconsider whether a person’s memory is the best way to decide the fate of a person charged with a crime.

Is eyewitness testimony as convincing as physical evidence, such as fingerprints, DNA, video footage, cash register receipts, and stolen goods found in the suspect’s apartment?

Physical evidence often has scientific weight. How scientific is someone’s recollection? Is it enough to convict a person?

In my case, it became a dead issue. Halfway through the trial, after a half-dozen witnesses had testified, the defendant changed his mind and entered a guilty plea to five counts, agreeing to a 30-year sentence.

I don’t know what changed his mind. Maybe he saw how seriously the jury was listening to all the testimony. Maybe his lawyer decided the case was going against him, even though the witnesses were all over the board in terms of a positive identification.

I hadn’t made up my mind, because I believe a person is innocent until all the evidence is presented and the jury has a chance to sort through everything. But the prosecutor was building an interesting case, with a mix of witnesses and physical evidence.

So I went back to work the next day and got on with my life. But I couldn’t stop wondering about it.

I read a few magazine articles on memory. I scanned a few books, such as “Identifying the Culprit: Assessing Eyewitness Identification,” written by a group of psychologists and criminologists. One part of the book cautions: “The fidelity of our memories to actual events may be compromised by many factors at all stages of processing, from encoding to storage and retrieval. Unknown to the individual, memories are forgotten, reconstructed, updated, and distorted.”

Still curious, I decided to turn to a memory expert, Dr. Tracy Gunter, a clinical psychiatrist at the IU Health Neuroscience Center. She also teaches a course called “Neuroscience and the Law” as an adjunct professor at the IU Robert H. McKinney School of Law at IUPUI.

Dr. Gunter wasted no time slaying a few misconceptions about memory.

The most common one, she said, is that the human brain works like a video camera, recording everything it sees, hears, smells and feels.

“It doesn’t work that way at all,” she said. “When we sense things, the vast majority of what we sense is lost and forgotten, because we don’t pay any attention to it.”

So first, before we can remember something, we have to pay attention.

But often we don’t or can’t. Everyday life is filled with millions of details, and we can’t pay attention to everything. Even something unusual, like an armed robbery, can be filled with problems. Some crimes happen at night, when it’s hard to see. Lots of crimes are chaotic, and happen too fast to get a good look. Sometimes, the gunman had no remarkable features, or blended into the crowd.

But what if you saw and heard everything. Is that good enough?

Maybe and maybe not. Memories are complicated, Dr. Gunter said, and go through many steps to form, store and retrieve.

When we pay attention to something, we first store it as a short-term memory. We do this hundreds of times a day—reading a restaurant menu, listening to someone tell us a phone number, looking through a sock drawer for something to wear. We look and listen. A few minutes later, we usually forget.

To remember something for longer than a few minutes, we have to “encode” it as a long-term memory. That means we have to tie it so something important, familiar or similar, so we have a chance of recalling it later. So, maybe, something like, those are the socks I got for my birthday. That’s the cheeseburger platter I order every time. That’s the building that used to have a bowling alley upstairs. Then hours or days later, we can attempt to retrieve some of that information.

But even then it gets tricky. The act of retrieving and reconstructing information can get clouded by our current emotions, or by things we learned in the meantime. We can also remember wrong if someone is intimidating us, or if we are under duress, say, by sitting on the witness stand.

But despite all that, juries give a lot of weight to eyewitnesses.

“We say ‘seeing is believing,’” Dr. Gunter said. “Eyewitness testimony has been a major pillar of the criminal justice system for as long as we’ve had a criminal justice system.”

So my lesson: Memory counts for a lot. But it’s a tricky devil. And you need to weigh the evidence carefully, every time.

Please enable JavaScript to view this content.

Editor's note: IBJ is now using a new comment system. Your Disqus account will no longer work on the IBJ site. Instead, you can leave a comment on stories by signing in to your IBJ account. If you have not registered, please sign up for a free account now. Past comments are not currently showing up on stories, but they will be added in the coming weeks. Please note our updated comment policy that will govern how comments are moderated.