Making the case against memories as evidence

Elizabeth Loftus, famed for her pioneering work on the fallibility of memory, has kept some interesting company over the years: Ted Bundy, O.J. Simpson, Timothy McVeigh. When high-profile court cases hinge on memories, the defense often calls Loftus to the stand, and she embraces the chance to bring science into the courtroom, no matter who sits in the defendant’s chair. “I’ve consulted on a number of cases involving people who we now know were bad people,” says the UC Irvine psychologist.

Now, as she builds upon a research career spanning more than four decades, she and others are reflecting on a legacy that has shaped psychology, psychotherapy and criminal justice — most notably, changing the ways that judges, lawyers and juries interpret witnesses’ recollections. “She’s done an incredibly important service to show that eyewitness memory can go awry,” says Henry Roediger, a psychologist and memory expert at Washington University in St. Louis. “She’s had more impact than any other psychologist on the study of eyewitness memory.”

But this isn’t just a time for reminiscing. Loftus still runs an active program that studies the formation and reliability of memory; for her and others, the issue remains a critical concern. Certainly, her research has directly led to some reforms: In 2012, for example, guided partly by her work, the New Jersey Supreme Court advised judges that all juries should be instructed that eyewitness testimony isn’t always reliable. But Loftus warns that too many judges, juries and mental health professionals — not to mention the public — still cling to outdated views of memory, often with serious consequences. “People in general have misconceptions about how memory works,” she says. Through research, testimony and public outreach, she continues to promote a science-based approach, even if that means facing controversy — and more than a few unsavory characters — along the way.

Faded Memories

From the early 1970s to now, Loftus’s work has centered on a common theme: Memories aren’t reality. Instead, our recollections can be molded, contaminated and even created out of whole cloth, a phenomenon for which she coined the term the “misinformation effect.” Her early memory studies have become fixtures of psychology textbooks and lectures. One 1975 Loftus paper that Roediger discusses with his students shows that memories of fast-moving events can be easily manipulated. Subjects in the studies watched film clips of car accidents and then answered questions about what they saw, and Loftus showed that when misleading details were slipped into the questions, the subjects often later remembered things that weren’t there. For example, when asked, “Did you see the children getting on the school bus?” 26 percent of respondents said they had, in fact, seen a school bus in the film, even though there wasn’t one. Of those given no misleading prompt, only 6 percent remembered a bus.

In another classic experiment, students watching film clips of car accidents were asked to estimate the speed of the cars involved. Loftus showed that the wording of follow-up questions had a big effect on the answers. When asked how fast cars were going when they “smashed” each other, the average answer was more than 40 miles per hour. When asked about the cars’ speed when they “contacted” each other, the average answer was just over 30 mph.

In 1975, Loftus stepped to the witness stand for the first time to offer her insights into memory. Since then, she and other psychologists have testified in hundreds of cases, but were barred from many others. “Judges were very resistant to this testimony at first,” Loftus says. “They said it was common knowledge and not a proper subject of expert testimony.” Then, in a landmark case in 1983, the Arizona Supreme Court reversed a murder conviction because the judge had not allowed the defense to call an expert witness on memory. The California Supreme Court made a similar ruling a year later, and the momentum began to swing. “In 2017, we’ve seen a string of reversals of verdicts for excluding psychologists,” Loftus says. “We’ve come a long way since the 1970s.”

The science of memory literally carries life-or-death implications, says Karen Newirth, senior staff attorney with the Innocence Project, a group that helps free people wrongly convicted of crimes. Newirth notes that eyewitness testimony played a key role in the convictions of more than 70 percent of people later exonerated through DNA evidence. Somewhere along the line, witnesses had forgotten faces they had actually seen and created false memories of other perpetrators. When lawyers for the Innocence Project request a new trial for someone convicted of murder or push for reforms in police lineups or interrogations, they often refer directly to Loftus’s research. “Every aspect of what we do to try to prevent eyewitness misidentifications and wrongful convictions can be directly traced to the work that Dr. Loftus has done over the years,” Newirth says.

But even today, judges aren’t always willing to allow Loftus and other psychologists to testify in cases hinging on memories. In one recent example, Loftus joined the team defending comedian Bill Cosby, who had been accused of sexually assaulting multiple women in earlier decades. Cosby’s lawyers hired Loftus to cast doubt on the memories and eyewitness accounts at the center of the case, but a judge refused to hear her input at a preliminary hearing. The subsequent trial ended in a deadlock when jurors couldn’t agree on a verdict. (A retrial is set for November.)

Memory Wars

Misremembering details of an event is one thing; making up a memory completely is something else. Since 1990, Loftus has been a key figure in what some have termed the Memory Wars, a heated dispute that continues to roil the criminal justice system and the field of psychology. The debate centers on the meaning and legitimacy of “recovered memories” — accounts of often traumatic events claimed to have been forgotten for many years before returning to a person’s consciousness.

As Loftus described in the Annual Review of Clinical Psychology in 2006, these accounts often resurface during psychotherapy or hypnosis, a time when patients may be especially open to suggestion. Many people have remembered things that almost certainly didn’t happen, including being abducted by aliens or witnessing human sacrifices during satanic rituals. Others suddenly recall witnessing distant episodes of abuse or murder. Loftus and other psychologists argued that “recovered” memories of crimes were often just as fanciful as alien abductions, but testimony based on such recollections sent many people to prison.

Loftus first became entangled in the Memory Wars in 1990 when she was contacted by the lawyers of George Franklin, a California man who had been charged with the murder of an 8-year-old girl who disappeared in 1969. The only evidence: Franklin’s daughter had “recovered” a memory of him murdering and raping the missing girl. Franklin was convicted, but was released five years later after a judge overturned that ruling because the evidence was unreliable. Loftus testified in the Franklin case and many others, which rankled some members of her profession. In 1996, she resigned from the American Psychological Association partly because some prominent APA members strongly disagreed with her stance on recovered memories.

Loftus continues to testify in cases involving recovered memories, using her own studies to bolster her position. In one early test, subjects were presented with descriptions of three past events from their childhood and a made-up story about getting lost in a mall at age 5. Loftus and her co-author had consulted with relatives to get enough details to make the fake story somewhat plausible. In a follow-up interview, 25 percent of subjects said that they remembered getting lost in the mall. In some cases, the memory of that nonexistent event was even stronger than recollections of real happenings. The conclusion, as reported in Psychiatric Annals in 1995: “People can be led to remember their past in different ways, and they even can be led to remember entire events that never actually happened to them.”

Recovered memories are still used as evidence in trials. Notably, one of the accusers in the case against Jerry Sandusky, the Penn State football coach convicted in 2012 of 45 counts of child molestation, has said that counseling helped open up previously lost memories of abuse. In May 2017, Loftus testified, by telephone, on behalf of Sandusky during a hearing to see if he should be awarded a new trial. (The request was denied Oct 18.)

Still, attitudes are changing, as Loftus and colleagues documented in a 2014 report in Psychological Science. The researchers surveyed 53 PhD-level psychotherapists about recovered memories and compared the results to a similar survey in 1992. Just 11 percent of current-day psychotherapists agreed with the statement that traumatic memory recovered under hypnosis must be real, a sharp drop from the 23 percent of therapists who held that belief in 1992. Although she’s encouraged by that shift, Loftus says that misunderstandings and misconceptions about memory are still far too prevalent among mental health professionals. For example, nearly 10 percent of the 53 psychotherapists surveyed for the 2014 report said that hypnosis could revive accurate memories of birth, a claim that Loftus discounts as ridiculous and physiologically impossible. Even though the clear majority of psychologists and psychotherapists now accept her view that recovered memories should be treated with great skepticism, Loftus and others remain committed to reaching out to the few holdouts. “The Memory Wars are still going on,” she says.

On its website, the APA now maintains that some recovered memories could be accurate, but most are not. The bottom line: “Most leaders in the field agree that although it is a rare occurrence, a memory of early childhood abuse that has been forgotten can be remembered later. However, these leaders also agree that it is possible to construct convincing pseudomemories for events that never occurred.”

Loftus’s willingness — eagerness, even — to testify in controversial cases for notorious defendants has made her a target for vitriol. In a recent autobiographical article in the Annual Review of Psychology, she shared excerpts from a letter calling her a shameless “whore of the press” who discredited victims of sexual abuse while standing up for the abusers.

Loftus says she doesn’t enjoy those attacks, but is grateful to hear from those on the other side of the story: innocent people who have been falsely accused of crimes based on sketchy memory. “Their gratitude and relief compensates for everything else,” she says.

She can also count on the gratitude of Newirth and other lawyers who are dedicated to preventing false convictions. “We’re in a better place than we were five or 10 years ago, but there’s still a lot of work for us to do,” Newirth says. “The work of Dr. Loftus will continue to carry us forward.”

For the record: The text of this article was updated November 20 2017 to clarify certain events. The article originally stated that the daughter of George Franklin was under hypnosis when she recovered memories of her father raping and murdering a young girl. In fact, it’s unclear whether she was under hypnosis when she recovered the memories. She denied having undergone hypnosis, contradicting the account of her sister.