Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial

Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial

by Elizabeth Loftus, Katherine Ketcham

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Product Details

ISBN-13: 9780312084554
Publisher: St. Martin's Press
Publication date: 07/15/1992
Edition description: Reprint
Pages: 312
Sales rank: 525,426
Product dimensions: 5.50(w) x 8.50(h) x 0.69(d)

About the Author

Elizabeth Loftus is a professor of psychology and adjunct professor of law at the University of Washington in Seattle. She has published over 250 journal articles and 18 books, including The Myth of Repressed Memory; and Witness for the Defense. Loftus has served as president of the Western Psychological Association and has fulfilled leadership roles in numerous other organizations such as the American Psychological Association, Society of Experimental Psychologists, and American Psychological Society.

Katherine Ketcham is the co-author of Under the Influence, The Spirituality of Imperfection, Beyond the Influence, The Power of Empathy, and other books.

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Witness for the Defense

The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial


By Elizabeth Loftus

St. Martin's Press

Copyright © 1991 Elizabeth Loftus and Katherine Ketcham
All rights reserved.
ISBN: 978-1-250-08631-0



CHAPTER 1

TRIALS OF A PSYCHOLOGIST

"I don't think a lot of people realize how important innocence is to innocent people."

— From the movie A Cry in the Dark


I walk up the narrow wooden aisle, the silence amplified by the clicking of my heels on the slick polished floor. The court clerk, an ancient, grandmotherly type with pink rouge in perfect circles on her cheeks, is waiting for me. I raise my hand and listen to her recite by heart the litany: "Do you swear to tell the truth, the whole truth and nothing but the truth, so help you God?" Automatically I answer, "I do." The clerk retreats, and I walk the few steps to the wooden box, step up, sit down, facing the courtroom. All eyes are fixed on me.

The defense attorney approaches the witness box, nods his head at me. He is defending a twenty-three-year-old man accused of breaking into a home in the upper-middle-class community of Van Nuys, California, and shooting to death an elderly man.

"Would you state your name, please?"

"My name is Elizabeth Loftus." I know the routine by heart and spell out my last name for the court reporter. "L-O-F-T-U-S."

"Dr. Loftus," the defense attorney says, his deep voice resounding throughout the courtroom like a baritone solo in a church choir, "what, exactly, is your profession or occupation?"

"I'm currently a professor of psychology at the University of Washington in Seattle."

"Could you tell us a little bit about your educational background and teaching experience?"

For the next ten minutes I recite my credentials — the Ph.D. from Stanford, the honorary degrees, memberships in various professional societies, honors, awards, books and articles published. The twelve members of the jury look slightly bored — Okay, okay, she's an expert, let's get on with it.

"Have you ever qualified as an expert witness in eyewitness identification before?" the defense attorney asks me.

"Yes, many times; approximately a hundred times."

"In this state?"

"Yes, and in many other states also. Thirty-five states altogether."

"All right," the defense attorney says. He walks back to the defense table and shuffles some papers. I'm suddenly aware of the sounds of legs being crossed, feet scraping against the wooden floors, throats being cleared. A moment passes and the noise begins to die down.

"Dr. Loftus, let me ask you — is there a generally accepted theory of how memory works?"

"There is a generally accepted theory in our field that memory doesn't work like a videotape recorder. We don't record an event and then play it back later. The process is much more complex ..."

I talk, then, about the acquisition, retention, and retrieval stages of memory, reciting all the details that I have recited so many times in the past. The prosecutor rolls a pencil between his fingers and watches me, his skepticism evident in the frown creasing his face. He is hoping to find a little hole, a tiny rip in the fabric of my testimony where he can dig in and begin to tear me apart.

I talk for nearly two hours about the way memory works and the way it fails. At 11:00 A.M., the judge calls a fifteen-minute recess. I stand up, step down, and walk across the courtroom, headed out to the hallway for a drink of water and a change of scenery. When I pass the defense table, the defendant raises his eyes and looks directly at me. I see the tiny beads of perspiration on his upper lip and notice how his starched shirt cuts into the soft flesh of his neck. He is a mechanic, twenty-three years old, married, has two children, and is studying in night school to get his high school degree. I've read hundreds of pages in preparation for my testimony, and those are among the few personal facts I encountered about the defendant. Sometimes it is better not to know too much.

He is looking up at me with such hope, his fear palpable in the still air of this stark, windowless courtroom, that I am struck by the incongruity of this face-to-face meeting. What am I doing here? What business does a research psychologist have in a court of law, offering facts taken from countless scientific experiments, hoping to communicate that our memories are sometimes distortions of reality, inaccurate images of the past?

With that question, even as I continue walking down the courtroom aisle and out to the hallway, I think back in time to a polished wood table in a conference room in Ventura Hall at Stanford University.

It is 1969. A graduate student is droning on about "decay rates in picture perception" and I am writing a quick letter to my uncle Joe in Pittsburgh. I'm halfway through my doctoral dissertation — titled "An Analysis of the Structural Variables that Determine Problem-Solving Difficulty on a Computer-Based Teletype" — and to tell the truth, I'm a bit bored with the whole thing. Somewhere, at that very moment, in schools throughout the Santa Clara valley, twelve-and thirteen-year-old kids were sitting down at computers, trying to solve increasingly complex word problems. I'd take the data, tabulate the answers, and make tentative conclusions about how adolescents solve problems, which problems are more difficult to solve, and why.

It was tedious work, no doubt about it. The theoretical model had been set up years earlier by my Ph.D. advisor, and I was just one of several graduate students, each of us plugged into a specific slot, computing our statistical analyses, feeding our results into a common pot. It occurred to me that my particular job was a little like cutting up carrots to put in a soup. To the left and right of me were other students, equally frenzied and meticulous about cutting up their onions, celery, potatoes, chunks of beef, and then tossing them into the same huge pot. And I couldn't help thinking, All I've done is cut up the carrots.

My thesis was in the final draft stage, and I was five weeks into a social psychology course that I needed to fill my distribution requirements when my neat, tidy, slightly boring world began to tilt on its axis. The professor, Jon Freedman, a funny, fiercely intelligent social psychologist, was discussing the topic of attitude change, and during the lecture I asked a question about the role of memory in changing attitudes.

After class, Freedman stopped me and said, "So, you're interested in memory? Well, so am I. If you'd like to do some research, I could use your help on a project. The question I'd like to explore is this: How do people reach into their long-term memory storage vaults and produce appropriate responses to given questions? We know people can do it and that they do it all the time — but how, exactly, does our brain organize, store, and retrieve information from long-term memory?"

With that conversation, my life changed. Freedman and I designed an experiment in which we gave subjects two word cues and then measured how long it took them to search through their memories and come up with a response. I had an informal title for the study — "Give Me an Animal Beginning with the Letter Z." We presented one group of subjects with two cues: Animal/Z, for example, or Fruit/Small, and then we timed their responses. We presented another group of subjects with the two word cues transposed — Z/Animal, Small/Fruit — and timed their responses. When we compared the response times of the two groups, we discovered that the cues beginning with the concept — animal or fruit — elicited a faster response, approximately 250 milliseconds, or one-quarter of a second faster. This led us to hypothesize that the human brain organizes information according to concepts or categories, such as animals or fruits, rather than attributes, such as "small" or "words beginning with the letter Z."

In my last six months of graduate school, I spent every free moment in Freedman's lab, setting up the experimental design, running subjects, tabulating the data, and analyzing the results. As the project took shape and Freedman and his students realized that we were on to something, that we were actually discovering something new about how the brain works, I began to think of myself for the first time as a research psychologist. Oh, those were lovely words — I could design an experiment, set it up, and follow it through. I felt for the first time that I was a scientist, and I knew with ultimate clarity that it was exactly what I wanted to be doing with my life.

"Retrieval of Words from Long-term Memory" was published in 1971 in the Journal of Verbal Learning and Verbal Behavior. A year later Freedman and I published a second paper about long-term memory; this time my name appeared first, as senior author. The study of memory had become my specialty, my passion. In the next few years I wrote dozens of papers about how memory works and how it fails, but unlike most researchers studying memory, my work kept reaching out into the real world — to what extent, I wondered, could a persons's memory be shaped by suggestion? When people witness a serious automobile accident, how accurate is their recollection of the facts? If a witness is questioned by a police officer, will the manner of questioning alter the representation of the memory? Can memories be supplemented with additional, false information? I wanted substance, I needed to end up with more than theoretical hot air. I wanted my work to make a difference in people's lives.

In 1974 I wrote an article that would radically alter the direction of my life. "Reconstructing Memory: The Incredible Eyewitness" appeared in the December 1974 issue of Psychology Today. At the end of the article — in which I discussed experiments I'd conducted in my laboratory that showed how leading questions can introduce new information that actually alters a person's memory of an event — I mentioned a case I'd worked on with the Seattle public defender's office. A young woman and her boyfriend had gotten into a violent argument. The woman ran to the bedroom, grabbed a gun, and shot him six times. The prosecutor called it first-degree murder, but her lawyer claimed she acted in self-defense. At the trial, a dispute arose about the time that had elapsed between the grabbing of the gun and the first shot. The defendant and her sister said two seconds, while another witness said five minutes. The exact amount of elapsed time made all the difference in the world to the defense, which insisted that the killing had occurred suddenly, in fear, and without a moment's hesitation. In the end, the jury must have believed the defendant; it acquitted her.

Within days of publication of the Psychology Today article, my phone was ringing off the hook. Lawyers wanted my opinion about the eyewitness evidence against their clients, people who had been accused of all manner of heinous crimes, from armed robbery to rape to murder. I offered my advice, and I began to appear in courtrooms as an expert witness on the subject of the fallibility of memory.

In late December 1975, just before Christmas, I received a call from a Utah lawyer by the name of John O'Connell. O'Connell was representing a young law student from Seattle who was accused of kidnapping an eighteen-year-old woman in Salt Lake City. The kidnapping victim identified the man more than eleven months after the incident, after viewing hundreds of mug-shot pictures. The police transcript was replete with leading and suggestive questions by the interviewer and hesitations and uncertainties on the part of the victim.

I decided to take the case, and on February 25, 1976, I testified in Salt Lake City. The defendant was eventually found guilty of aggravated kidnapping and sentenced to one to five years in prison. His name was Ted Bundy.

Ted Bundy was not the last guilty man whose case I worked on. In 1982 I agreed to testify for Angelo Buono, who was eventually convicted of sexually assaulting and strangling nine women in Los Angeles; Buono and his cousin, Kenneth Bianchi, were popularly known as the Hillside Stranglers.

In 1984 I testified for Willie Mak, who was convicted of murdering thirteen people in Seattle's Wah Mee massacre. A cousin of sixty-one-year-old Wai Chin, the sole survivor of the massacre, told a newspaper reporter that he wanted to spit in my face after I discussed in court the impact of the extraordinary trauma of the killings on Wai Chin's memory.

Another unpopular case that I worked on intermittently for many years was the McMartin Preschool case. Raymond Buckey, and his mother, Peggy McMartin Buckey, were charged with sixty-five counts of child molestation at their Manhattan Beach, California, preschool. Children testified that Ray Buckey stuck pencils, silverware, and other stray objects into their vaginas and anuses, that he killed a horse with a baseball bat, and that he took them on field trips to cemeteries. As I reviewed the voluminous transcripts of the first trial, covering twenty-eight months of testimony, I found several fascinating quotes about memory. The judge proclaimed on February 25, 1988, on page 28,857 of the trial transcript:

"Knowledge can be conscious or subconscious. In other words, there's a concept, which I think is accurate, that you never forget, that is, lose from your memory anything you've ever seen or heard, but that your ability to call it into your consciousness is quite limited."

I've spent twenty years of my professional career trying to dispel the myth that human memory is infallibile and immune from distortion, and that's why I was consulted in the McMartin case. One child witness was four when the alleged abuse took place, seven when she first mentioned it to a social worker, eight when she told her story to a grand jury, and ten when she testified in court. What could have happened to her memory in those six years? That seemed to me a crucial question for the jury to consider in their weighing of guilt and innocence, and yet few people can regard my testimony in such sensational cases with dispassion. At a recent lunch with a friend who is a kindergarten teacher and the mother of preschool children, I mentioned my involvement in the McMartin case. She turned and looked at me as if I were a fly that had just landed in her soup. "How could you?" she exclaimed. "Do you have no morals, no conscience?"

Several years ago a prosecutor confronted me in the hallway outside the courtroom where I had testified for the defense in a rape case. He walked right up to me and, in a voice heavy with self-righteous fury, said, "You're nothing but a whore." The defense attorney quickly took my arm and led me away.

Judges often view me as an unnecessary complication and only reluctantly accept my testimony; they claim that such expert testimony invades the province of the jury, or that I offer jurors little more than commonsense information.

My fellow psychologists are in bitter disagreement about the appropriateness of expert psychological testimony. My opponents argue that my research is unproven in real-life situations and that my testimony is therefore premature and highly prejudicial.

Victims' rights groups accuse me of tampering with truth and justice by undermining a witness's credibility. They suggest that I should assume personal responsibility for allowing the guilty to go free.

I recently testified about the problematical nature of eyewitness testimony in a rape case. After the rapist was acquitted, I received a long, angry letter from the mother of the victim. By testifying for the defendant, she claimed, I had negated her daughter's testimony and contributed to her suffering. By accepting a fee for my testimony, she insinuated, I had joined hands with the murderers and rapists of the world and turned my back on the innocent victims.

How did that letter make me feel? Rotten, miserable, awful. For days I walked around wondering why I do what I do and thinking that maybe it was time to go back in my windowless lab and stay there for a decade or two. But life is very strange. A week after I received this mother's anguished letter, a call came through from a lawyer with whom I'd been working on an appeal for a juvenile convicted of sexual assault. "I just came back from a hearing," he told me. "We're trying to get the case dismissed because it turns out that the prosecution hid a witness, a woman who was apparently assaulted by the same man and who insisted that it couldn't have been my client who attacked her. The prosecution lied to us, distorted the evidence, and threw every obstacle he could find at us in an attempt to nail my client. An innocent man has been accused, convicted, and locked up in prison because the system has gone rotten. At this moment, to tell you the truth, I'm ashamed to call myself a lawyer."

This was not the first time a defense lawyer told me that the police and prosecutors had gone too far in trying to make a case against a defendant. The problem, in most cases, isn't malice; it isn't even incompetence. When police and prosecutors withhold evidence, twist the facts, or pressure their witnesses, they do so because they believe with full confidence and assurance that they have the right person in custody, and that it is their duty to see justice done. Once they say to themselves "we've got the right person, we have to get this person off the streets," they may not even perceive that withholding evidence or slightly distorting the facts is the wrong thing to do. But the problem doesn't end there, for misinformation can be communicated to the witnesses, who may ignore their doubts and misgivings, and testify confidently in court that they are absolutely convinced that the defendant is, indeed, the real criminal. In such circumstances, there is an increased risk that an innocent person will be convicted.


(Continues...)

Excerpted from Witness for the Defense by Elizabeth Loftus. Copyright © 1991 Elizabeth Loftus and Katherine Ketcham. Excerpted by permission of St. Martin's Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Contents

Title Page,
Copyright Notice,
Dedication,
Acknowledgments,
Authors' Note,
Part 1. Background,
Chapter 1. Trials of a Psychologist,
Chapter 2. The Magic of the Mind,
Part 2. The Cases,
Chapter 3. Dark Justice: Steve Titus,
Chapter 4. The All-American Boy: Ted Bundy,
Chapter 5. A Knock on the Door: Timothy Hennis,
Chapter 6. Out of the Mouths of Babes: Tony Herrerez,
Chapter 7. "I Couldn't Do This to a Child": Howard Haupt,
Chapter 8. "Sheer, Stark Terror": Clarence Von Williams,
Chapter 9. Ivan the Terrible: John Demjanjuk,
Chapter 10. A Mole and a Stutter: Tyrone Briggs,
Notes,
Selected References,
Books by Katherine Ketcham and Dr. Elizabeth Loftus,
Copyright,

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Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial 4 out of 5 based on 0 ratings. 1 reviews.
cal8769 on LibraryThing 11 months ago
Dr. Loftus is a psychologist who specializes in memory and the impact of trauma, stress and time on it. She travels around the country testifying in trials for the defense and explains how eye witness testimony can be 'altered' by many variables, such as whether there was a weapon present, suggestions planted by the police (accidentally or on purpose), etc.This book was very disturbing. Dr. Loftus talked about some of the cases that she took part in where the defendant was found guilty because of eye witness testimony, even though there was no supporting physical evidence and the defendants had alibi's! Many victims would actually change their descriptions of their attackers by unknowingly following the clues that the police would use while getting their statements. This book really makes you think