Every few weeks, I meet up with my closest friends for Christian fellowship. My buddies talk about their spouses and kids. I talk about the women with whom I have socialized since the last time we met. I am always sincere and honest in my descriptions of my dates. However, my friends sometimes prove that my memories (of my dates’ beauty, intelligence and personality) are unintentionally faulty.
The most mentally astute people can have very inaccurate memories of past events, even though the memories are vivid and clear. As a result, eyewitness testimony is sometimes unreliable.
People regularly come to my office to explain various facts. In those people’s minds, they saw what they saw, and that is the truth. However, sometimes, even though a person is 100 percent honest, other evidence such as photographs or other people’s recollections can contradict that person’s sincere memory. The person is not necessarily lying. The person’s memory is simply inaccurate.
The human brain’s ability to store and retrieve memories is more amazing than any computer’s most analytic capacity. However, likely because of its sophistication, the brain can sometimes inaccurately store or incorrectly retrieve memories. This is especially true in stressful situations or in situations that bring about clinical shock or short-term insomnia. Stress and a lack of sleep before or after an event often causes the human brain to mis-classify facts and either remember facts that are not true or create fictitious facts as to aspects of the memory that were not fully perceived.
Northwest and West Central Ohioans tend to take people at their word. If someone says something, particularly if that person is under oath, we almost always treat that statement as unassailable. However, science and history contradict the complete reliability of every person’s word, even if the person is as honest as the day is long.
Of course, our society’s stressful existence makes the possibility of unintentionally faulty memories even more likely. Therefore, even though many agreements do not necessarily need to be in writing, we attorneys try to get “everything in writing.” Further, many of my clients are assertive in taking pictures (often with their phones) to ensure that there is more than just someone’s memory upon which to rely in the event of a dispute.
In trials, attorneys will do their best to impeach (question the validity) of adverse eyewitness testimony. This is often done by cross-examining the eyewitness who is testifying by asking questions to uncover inconsistencies. Other times, attorneys will secure expert witnesses, such as doctors and psychiatrists, to explain why the circumstances surrounding the event being remembered make the memory more likely to be inaccurate. Many attorneys will also use other eyewitnesses’ testimonies that contradict the testimony being offered. Of course, other evidence such as photographs and written documents are used to contradict eyewitness testimony, too.
Eyewitness testimony is used to prove facts in court. Juries generally decide facts. Therefore, whether any particular eyewitness testimony is accurate or inaccurate is a matter for the jury to decide.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-523-5523. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.