Case of the fake court memories

Press, 4 May 1984, Page 14

Case of the fake court memories

From

KEN CREFFIELD

in New York

Psychologists are being used increasingly by defence lawyers in the United States to discredit the evidence of eye-witnesses in criminal trials. At fees of up to $l5O an hour, they will swear that seeing is not believing — or rather that witnesses may not have seen what they thought they saw. The psychological tools for exposing “false memories” have been developed over the past 10 years by two psychology professors, Dr Robert Buckhout of Brooklyn College and Dr Elizabeth Loftus of Washington University. There is no doubting the need for a methodical way of evaluating eye-witness evidence. In 1979, a Roman Catholic priest in Delaware was wrongly identified by several people as an armed robber. The real gunman confessed only after the priest had been put on trial. Last month, Lenell Geter, a 26-year-old black engineer, was freed after an accumulation of evidence proved he could not have carried out the armed robbery for which he had served 14 months of a life sentence. Five eye-witnesses had linked him to a robbery in a Dallas

suburb, even though it has since been established beyond doubt that he was at work 50 miles away from the scene. When Geter was set free, he was reported as saying: “People expect our judicial system to work in a 100 per cent efficient mode. I know it doesn’t, and there are other Lenell Geters out there.” A vigorous press and television campaign had been waged to clear Geter, and Dr Buckhout helped to demolish the eye-witness evidence. He says: “It is not a question of eye-witness credibility but of eyewitness reliability. A memory can be created by the way a witness is questioned and the witness will think his created memory is correct.” In one experiment, a mock road accident, witnesses were asked leading questions about a stop sign. No such sign existed but some of the witnesses nevertheless “re-

membered” it. Inefficient or overzealous detectives can create memories in their witnesses not just by the way they question them, but in the way photo files, records, and identification parades are used. There is no particular psychological type, Dr Buckhout says, whose memory is prone to distortion or manipulation. False memories can be created in any witness — policemen included. Courts do not allow witnesses to be interviewed by psychologists but Drs Buckhout and Loftus are given access to transcripts of evidence, including police tape recordings of interviews with witnesses. A typical case would probably require 10 hours’ work by the psychologist, including time spent in the witness box. At $l5O an hour that is a fee of $l5OO. Plenty of defendants have found the money well spent. Although exact statistics are not available, it is reckoned that in cases relying

heavily on eye-witness evidence, the conviction rate has dropped by a third where Drs Buckhout or Loftus have given evidence. However, Dr Buckhout complains that in half the cases where he has been retained to give evidence, judges have refused to allow him to be called. “It’s a matter of turf,” he says. “Judges are in a bind because reviewing eye-witness testimony has always been their job. They are reluctant to hand it over to experts from outside the bar.” Dr Buckhout (along with the 80-year-old child care expert, Dr

Benjamin Spock), has been retained as a defence witness in the approaching trial of 40-year-old Kathy Boudin, a one-time member of the Weather underground. Boudin is accused, with others, of the murder of two policemen and a security guard in a $1.6 million hold-up in New York in 1981. Two policemen who survived the attack are to give evidence obtained by the prosecution under hypnosis. Although a judge ruled their evidence admissible, it seems certain the defence will try once more to discredit it. — Copyright, London Observer Service.