False Memory Could Redefine Justice



Justice is no longer a basic human entitlement but, rather, has become a unique perspective because its underlying framework includes eyewitness testimony. Such testimony is often a victim of false memory, which can be horribly exploited by the legal system.

False Memory Could Redefine Justice

To the average person, memories are treasures held dear, shared among loved ones, and are the fiber that connects family and friends in a history uniquely their own – a tie that binds in a manner of speaking. Sometimes memories reveal misjudgement and when we reflect on them we criticise choices made and paths pursued. Shakespeare acknowledged this type of reflection in a brilliant passage from Sonnet XXX. “When to the sessions of sweet, silent thought I summon up remembrance of things past, I sigh the lack of many a thing I sought, and with old woes new wail my dear time’s waste” (1609).

Whether memories bring us joy or perplex us, we must acknowledge that they can also evade us. Memory is not the recording device that we believe it to be, ready for instantaneous and perfect playback at our will. Memories are constructions and can, therefore, be reconstructed whether by our own efforts or external input (Loftus, 2013). They are little more than sensory and emotional impressions that can be distorted by beliefs, imagination, misinformation, suggestion, and time (Brynie, 2013).  This discussion presents the repercussions of false memory on the legal system and how what has been learned about false memory may be exploited.

Legal Repercussions

No matter how convincing testimony may be to a jury, a good prosecutor will seek to undermine recall, particularly in eyewitnesses, making memory the least reliable source of evidence. A Cornell study showed how attitudes and beliefs can affect memory. In this study 283 college students read a story about a man who left a restaurant without paying the bill. Half the participants were led to believe the man was a scoundrel and the rest read that he left the restaurant because he got an emergency call. Both groups knew the composition of the bill and the amount; yet a week later, those who were told the man was a scoundrel remembered a higher-than-actual amount for the bill and those who were told he received an emergency call remembered a lower-than-actual amount (Lang, 2006). Such studies show that all a prosecutor needs to do is create a bad impression of an individual through introducing auxiliary facts and information, and this can distort how that individual is perceived by the jury later in deliberations.

Visual images can also be used to distort memory and/or influence attitude. It was once the assumption of cognitive research that verbal stimulus was most effective in producing false memory. However MRI studies suggest that introducing visual imagery is a compelling dimension in this research. When visual imagery is presented during the time between a significant event and when memory might be probed, false memory is consistently the result (Gonsalves, Reber, Gitelman, Parrish, & Marsel Mesulam, 2004). Visual imagery produces stronger false memories than verbal stimuli because of the number of regions engaged in processing visual imagery. Visual representations both shown and imagined can be produced that may resemble those that would have been produced if the object had actually been perceived, rather than only seen in an image.

Exploitive Potential

How verbal and visual stimuli may be exploited in and out of the court room becomes clear. If false memory can be produced in a laboratory and intensified depending on the stimuli, it follows that the same can happen in the court room or in police investigations. Suspects often include those bearing likenesses to vague descriptions by people who think they saw or heard something relevant. Initially, those are the leads investigators must sift through in pursuit of truth. This is significant because, as Davidson (2004) quotes Paller, “vividly imagined events can leave a memory trace in the brain that’s very similar to that of an experienced event. When memories are stored for perceived or imagined objects, some of the same brain areas are involved” (para. 5).

Because false memories and genuine memories involve almost identical brain processes, it is difficult for the memory bearer to distinguish between them. We can be making associations between what is going on in our mind at any time and a positive or negative real-time event (Brynie, 2013). Later recall could be a confusion of the two, or even a false positive – when a person thinks they have recalled or recognized something that is not a genuine memory (Ciccarelli & White, 2012).

While good prosecutors and investigators know that memory is not a reliable source, they also know the power of suggestive information, whether in verbal or visual form. Regardless of what science is revealing in the prediction of accurate memory based on the coding of neural events, a single suggestive stimuli can influence a jury. In an attempt to chip away at the character of a defendant, introducing morally questionable information even a long while after the events in question may cause misremembering of previously ‘known’ facts in a case.


Some compelling research in this aspect of memory has been conducted by Elizabeth Loftus and associates. In a case (Loftus, 2013) she frequently includes in her lectures, that of Steve Titus, she moved the author to conclude that not nearly enough is being done to verify the truth of eyewitness testimony. Titus became a suspect in a rape case because his car “sort of” (2013, transcript para. 1) resembled the car of a man who raped a female hitchhiker. Titus himself “kind of” (2013, transcript para 1) resembled the rapist. When the victim was shown a photo lineup including Titus, she pointed him out as “the closest” (2013, transcript para. 1). In the subsequent rape trial, Titus was convicted after the victim’s recollection progressed to “I’m absolutely positive that’s the man” (2013, transcript para. 1). The impact of false memory in Titus’s case was life changing and the stress of the ordeal ultimately led to his death even though he was exonerated of the rape charge. When one ponders that, it becomes clear that justice will never be a basic human entitlement and there will be no truth as long as their underlying framework is eyewitness testimony.



Brynie, F. (2013). Remembering something that never happened. Retrieved from http://www.psychologytoday.com/blog/brain-sense/201307/remembering-something-never-happened

Ciccarelli, S. K., & White, J. N. (2012). Psychology (3rd ed.). Upper Saddle River, NJ: Prentice Hall.

Davidson, S. (2004). Some imagination! How memory fails us. Retrieved from http://www.livescience.com/23-imagination-memory-fails.html

Gonsalves, B., Reber, P. J., Gitelman, D. R., Parrish, T. B., Marsel Mesulam, M., & Paller, K. A. (2004). Neural evidence that vivid imaging can lead to false remembering. Psychological Science, (15)10, 655-660. Retrieved from http://www.jstor.org/stable/40064023.

Lang, S. (2006). Bad judgments about people can affect memories of them, Cornell study finds. Retrieved from http://news.cornell.edu/stories/2006/03/judgments-moral-blame-can-distort-memory-events-study-finds

Loftus, E. (2013). Elizabeth Loftus: The fiction of memory [Video File]. In TED Talks. Retrieved from http://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory.html


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