Author (s): Elizabeth Loftus and Katherine Ketcham
APA Style Citation
Ketcham, K. & Loftus E. (1991). Witness for the Defense: the Accused, the Eyewitness, and the Expert who put Memory on Trial; New York, New York: St. Martin’s Press.
Elizabeth Loftus is well known for her research with the misinformation effect and the fallibility of eyewitness memory. She details her initial interest in memory as a graduate student and her many avenues into memory research over the past 40 years. In Witness for the Defense, Loftus focuses primarily on her work as an expert on memory in court cases. Her controversial work has led to hate mail, feuds with friends, and public ridicule for her decision to serve on the defense team for some notorious criminals. Loftus is clear to point out that although she often works for the defense, she believes in some cases that the accused are innocent and in others she is simply speaking to the errors which can be made in eyewitness’s memory, not to the innocence or guilt of the accused. The adventure of this book is in the details of the cases which Loftus has been a part of over the years. She reads all of the evidence and then consults with the attorneys to identify which parts of a given case may lead to errors in memory by witnesses and other who are involved.
Memory in trials can be a high stakes mistake. Prior to a trial, prosecutors or police interrogators can suggest that certain events took place in a crime. Witnesses may have holes in their memory for an event and these holes can be filled in with details provided by the interrogators. In addition, police sometimes believe that they have found the culprit and spend time in interrogations trying to prove they are correct rather than attempting to examine all potential possibilities (confirmation bias). Witnesses who are trying to be helpful in solving the case often take on subtle suggestions from interrogators without even knowing they are doing so (demand characteristics). Loftus cites cases such as Isadore Zimmerman who was accused of murdering a New York City patrolman. After serving 24 years in prison, new technologies were able to prove that Isadore was innocent as he had always claimed. Loftus’ goal is to prevent wrongful convictions such as this one by questioning the interrogation methods used and the reliability of the witnesses in a case. She also wants to inform the jury about the many failings of memory. Memory can be erroneous even under circumstances in which individuals have the best of intentions. The famous child psychologist Jean Piaget recounted a memory of an attempted kidnapping when he was a child with his nurse strolling down the Champs Elysees in Paris. His nurse later wrote Piaget’s parents confessing that the entire episode was made up, but Piaget swore he remembered everything about the event even the face of the purported kidnapper. When an eyewitness identifies the culprit in a courtroom, this can be incredibly convincing testimony. Jurors are easily swayed by what the individual claims to have seen, even when DNA evidence refutes the recalled memories.
Poor lineups can also lead to erroneous identification. For example, sometimes not all of the members of a lineup fit the description of the culprit, which can lead the witness to a particular individual that does fit the description but may not be the guilty party. Other times the culprit is not in the lineup, but the witness feels compelled to choose someone from the lineup. Mistaken identity can send innocent people to prison and allow the guilty to go free with no worries about being found out. Showing witnesses, the same photographs over and over again (mere-exposure effect) can also lead the witness to identify a person they have seen often in pictures as the culprit because they start to seem familiar. Arye Rattner conducted a study on false convictions based on erroneous eyewitness testimony and he found that in 200 cases 52 were based on eyewitness testimony. With over half of convictions based on what we know to be faulty evidence, it can be assumed that a number of these were false convictions. Defense attorney’s can ask judges to read a list of instructions to the jury about the dangers of eyewitness testimony but often this is not enough to override the power of eyewitness testimony in the courtroom. New evidence has demonstrated that of 7,000 people executed in the twentieth century at least 25 were innocent, this violates the basic ethos of the American judicial system.
Loftus has worked on many high profile cases and she details instances of innocent individuals accused and convicted of crimes they did not commit. In some cases, her testimony made a difference for an innocent person being exonerated, and other cases in which she at least suspected that the individual was guilty as charged. In one case, Steve Titus drove a light blue compact car that matched that of an accused rapist, he was identified after the victim looked at many pictures of potential culprits and said, “This one is the closest”. Despite having an alibi and no record, Titus was convicted of rape while the real rapist committed other similar acts. Even though he was eventually exonerated, his life had been ruined, his fiancé left him, he lost his job, and he became incredibly angry at the turn of events his life had taken. Six years after he was exonerated he was dead of a heart attack.
Ted Bundy the infamous serial killer with frat boy good looks and an academic pedigree that initially did not seem to fit that of a serial killer was on trial for a series of rapes and murders. While Loftus knew about the killings in the Washington area where Bundy had operated, she initially did not know if he was innocent or guilty. She was asked to testify about memory and the potential errors in memory that may have been made by the attempted kidnapping victim who claimed that Bundy was the one who tried to abduct her from a shopping mall parking lot. Even though Loftus had her doubts about his innocence as the trial continued, in the legal system, the burden of proof is on the prosecution. Ted Bundy was found guilty in Washington and sent to stand trial for disappearances in Colorado. Despite a brief escape, he was convicted and confessed to “two or three” dozen murders” while some believe he had killed as many a 50 young women.
Timothy Hennis was accused of the murder of Kathryn Eastburn and two of her three daughters in their Fayetteville, North Caroline home. Eastburn’s husband was away with the military and Hennis has just adopted a dog from the family. Since there was no sign of forced entry into the home, the police determined the victim must have known her attacker. Police, concerned about the welfare to the family, peeked into the window three days after her husband last spoke to her to and saw the baby crying in her crib, the only survivor of this brutal killing. Despite a lack of any physical evidence, Hennis was identified by a woman in a drive through bank lane months after the crime that Hennis looked like the person in line before her (the murderer had used Eastburn’s debit card at that bank). Eastburn was sentenced to death during his first trial but was eventually issued a retrial in which Loftus testified. He was found innocent on all counts based in large part on Loftus’ testimony. The crime remains unsolved but another case that has occurred under similar circumstances suggests that the real killer is still at bay.
Whether innocent or guilty, Loftus attempts to educate people on the dangers of believing our memories in their entirety. Even the most vivid memories can be influenced by post event suggestions. As a witness seeks to fill in the gaps of their missing memories to give a full description of the crime, they may actually be adding more false memories than improving the quality of the memory.
Police and law enforcement officers must also be cognizant of the dangers of eyewitness memory. Judges and juries should support the skepticism of courtroom identification in order to give the accused a fair trial.
TED Talk: How Reliable is your Memory?
June, 2013 TED Talk in which Psychologist Elizabeth Loftus describes her work researching false memories, when people either remember things that did not happen or remember them differently from the way they really were. Loftus shares some startling stories and statistics and raises some important ethical questions.
CNN: Trust your Memory? Maybe you Shouldn’t
Excellent 2013 CNN article about memory research and Elizabeth Loftus.
The Eyewitness Test: How do you Stack Up?
This video is a test of the ability to identify a suspect in a staged crime that can be used in class to demonstrate the problems with eyewitness testimony and lineups.
The Guardian: Falsifying Memories
Catalyst: Potential for False Memories
Short video on the problem of false memories
Nature: International weekly journal of Science: Evidence Based Justice
Slate: I could have Sworn, and Interview with Elizabeth Loftus
Frontline: What Jennifer Saw (interview transcript)
Elizabeth Loftus Website
The author’s website which includes links to various articles and information about her other books.
Psychological Figures and Concepts
Mere Exposure effect