Daf Ditty Pesachim 12: Witness Memory Flaws

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In the previous Daf the ‫ גמרא‬compares our ‫ משנה‬with a ‫ משנה‬in ‫ סנהדרין‬which discusses the issue
of two witnesses who contradict each other’s testimony about the timing of the event that they
witnessed.

Abaye said: When analyzing the matter, you will find that you can say that according to the
statement of Rabbi Meir a person does not err at all, as Rabbi Meir assumes that people know
the exact time of day. According to the statement of Rabbi Yehuda a person errs up to half an
hour. Abaye elaborates: According to the statement of Rabbi Meir, a person does not err at
all, and the reason that in the case where one says two hours and one says three the testimony is
valid is that the incident actually occurred as the second hour ended and the third hour began.
And when this witness said it happened in the second hour, he was referring to the end of the
second hour. When that witness said the third hour, he was referring to the beginning of the
third hour. It is possible that both witnesses spoke the truth.

Abaye continues his explanation: According to the statement of Rabbi Yehuda, a person errs
by half an hour, as when the incident occurred, it occurred at the midpoint of the fourth hour,
at three and a half hours of the day. And this witness, who says three hours, means the end of
the third hour, and he errs by saying that it occurred half an hour before the incident actually
occurred. And that witness, who says five hours, means the beginning of the fifth hour, i.e., the
end of the fourth hour, and he errs by saying that it occurred half an hour after the incident
actually occurred. Since it is possible that their testimonies do not conflict, their testimony is valid.

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Some say a different version of this statement. Abaye said: When analyzing the matter, you will
find that you can say that according to Rabbi Meir a person errs a bit, and according to Rabbi
Yehuda a person errs by an hour and a bit. Abaye elaborates: According to Rabbi Meir, a
person errs a bit, as when the incident occurred, it occurred either at the end of the second
hour or at the beginning of the third hour, and one of the two witnesses errs a bit. According
to Rabbi Yehuda, a person errs by an hour and a bit, as when the incident occurred, it
occurred either at the end of the third hour or at the beginning of the fifth hour,

and one of them errs by an hour and a bit.

Rav Huna, son of Rav Yehuda, went and said the halakha of Abaye before Rava. Rava said
to him that Abaye’s explanation must be rejected: And were we to closely examine the statements
of these witnesses and ask them when precisely the incident occurred, and find that the one who
says at three hours means that it occurred at the beginning of the third hour, and the one who
says at five hours means that it occurred at the end of the fifth hour, it would be contradictory
testimony and we would not kill the accused on the basis of this testimony; and will we arise
and kill based on uncertainty? Although their testimony could be valid, it could also be void.
Can the court execute the accused based on that uncertainty? And consider that the Merciful One
says in the Torah: “And the congregation shall judge…and the congregation shall deliver”

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(Numbers 35:24–25), from which it is derived that judges must do everything in their power to
save an accused from the death penalty.

Rather, Rava said: In fact, according to the statement of Rabbi Meir, a person errs by two
hours less a bit; according to the statement of Rabbi Yehuda, a person errs by three hours
less a bit. The Gemara elaborates: According to the statement of Rabbi Meir, a person errs by
two hours less a bit. How so? When the incident occurred, it was either at the beginning of
the second hour or at the end of the third hour and one of the witnesses erred by two hours
less a bit, as that is a reasonable discrepancy.

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Rava explains:

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According to the statement of Rabbi Yehuda, a person errs by three hours less a bit. How so?
When the incident occurred, it was either in the beginning of the third hour or at the end of
the fifth hour, and one of them errs by three hours less a bit. According to Rabbi Yehuda, that
is a reasonable discrepancy.

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After much argument Abaye concludes:

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Rather, Abaye said: There is a difference between the issues of testimony and leaven, as
testimony is entrusted to the vigilant. One comes to testify only if he thoroughly scrutinized the
subject of his testimony. Therefore, he will not err significantly with regard to the time in question.
However, the prohibition against eating leavened bread is a halakha entrusted to all, and not
everyone is able to correctly determine the time. Consequently, Rabbi Meir and Rabbi Yehuda
both extend the margin for error, so that people will not unwittingly eat leaven after the time that
it is prohibited to do so.

RASHI

…in capital cases a person testifying will be sure of the timeline since he knows he will be
subjected to cross examination, whereas with bedikas chametz we have people who are not expert
in such distinctions…

Summary

Rav Avrohom Adler writes:1

Rava maintains that the dispute between Rabbi Meir and Rabbi Yehudah is regarding a
miscalculation of slightly less than two hours or slightly less than three hours. Rava says that
according to Rabbi Meir, a person errs slightly less than two hours, whereas Rabbi Yehudah
maintains that a person errs slightly less than three hours. According to Rabbi Meir, then, even if
the incident that the witnesses are testifying about occurred either at the onset of the second hour
or at the end of the third hour, their testimony will be valid, because they have erred by less than
two hours, which Rabbi Meir maintains is a justified amount of time that one can err in his
calculations.

According to Rabbi Yehudah who maintains that a person errs slightly less than three hours, then
even if the incident occurred at the onset of the third hour or at the end of the fourth hour, their
testimony will be valid, because they will have erred in a time of slightly less than three hours,
which according to Rabbi Yehudah is a justifiable miscalculation in time.

1
http://dafnotes.com/wp-content/uploads/2015/11/Pesachim_12.pdf

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2. Seven questions were posed to the witnesses regarding a capital case.

When examining the witnesses regarding their testimony in a capital case, they would ask the
following seven questions: In which year of the seven-year shemittah cycle did you witness the
offense? The second question was in which year did the offense occur. The third question was on
which date of the month did the offense occur. The fourth question was on which date of the month
did the offense occur. The fifth question was on which day of the week did the offense occur. The
sixth question was in which hour did the offense occur. The seventh question was in which place
did the offense occur.

3. There is a distinction between chakiros and bedikos.

Chakiros are the seven standard questions that were posed to the witnesses, and bedikos were the
supplementary questions that were posed to the witnesses. Regarding the chakiros, if one of the
witnesses did not know the answer to one of the seven questions, the testimony would be invalid.
Regarding the bedikos, however, even if both witnesses say that they do not know the answer to
the question, the testimony is still valid. The reason is that if one of the witnesses does not know
an answer to one of the chakiros, the testimony is invalid, because then the testimony cannot be
negated through hazamah.

Hazamah means that the second pair of witnesses testifies that at the time that the first set of
witnesses’ claims that the incident occurred, the first pair of witnesses was actually somewhere
else, and they could not have possibly witnessed the incident. All the questions that were posed to
the witnesses as part of the chakiros were questions that if a witness could not answer, his
testimony was invalid, because his testimony can no longer be negated through hazamah. For
example, if a witness cannot answer correctly which hour the incident occurred, then it is
impossible for the second pair of witnesses to prove that his testimony is false by stating that he
was elsewhere at the time the incident occurred.

With regard to bedikos, however, even if a witness cannot answer satisfactorily one of the
questions, the testimony can still be negated by a second pair of witnesses. For example, if the
witness could not answer whether the accused was wearing black or white clothes at the time of
the incident, this detail has no ramifications regarding the time and place of the incident.

People do not err between day and night.

According to Rabbi Meir, who maintains that one can err by two hours, we give the witnesses
testifying regarding the incident from the onset of the first hour until the end of the fifth hour.
When the first witness says that the incident occurred in the second hour, it is possible that he erred
by two hours. Therefore, we give him the first and second hours, and the third and fourth hours.
For example, if he miscalculated two hours early, the incident may have occurred at the end of the
fourth hour. It is also possible that the witness miscalculated by two hours later.

The second pair of witnesses who are trying to refute the testimony of the first pair of witnesses
must therefore testify that he was with them from the onset of the first hour until the end of the
forth hour. Similarly, the other witness who said that the incident occurred during the third hour is

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given two hours in both directions. The second pair of witnesses must testify that he was with them
from the onset of the first hour (which is two hours prior to the onset of the third hour) until the
end of the fifth hour (which is two hours after the end of the third hour) in order to negate his
testimony by way of hazamah. In this fashion the testimony regarding the hour can be refuted
through hazamah.

We really would give the witnesses who said that the incident occurred in the second hour another
hour, which would be two hours before the onset of the second hour, but this would lead to an hour
before the onset of the day, and people do not err between day and night. The witness thus has his
testimony negated regarding his location from the first hour through the fourth hour.

4. There is a distinction between testimony and the prohibition of chametz.

We learned in our Mishnah that Rabbi Meir maintains that one can eat chametz during the fifth
hour and one must burn the chametz at the onset of the sixth hour. Rabbi Yehudah maintains that
one can eat chametz the entire forth hour, chametz is suspended in the fifth hour, and one must
burn the chametz at the onset of the sixth hour. According to Abaye who maintains that Rabbi
Meir is of the opinion that one does not err at all in calculating time, then one should be permitted
to eat chametz until the end of the sixth hour, which is the biblical law regarding when chametz
can be eaten. Even if we say that one errs slightly in calculating time, he should be permitted to
eat chametz until the end of the sixth hour, right before midday.

According to Abaye in the opinion of Rabbi Yehudah who maintains that one errs by a half an
hour, one should be permitted to eat chametz until the middle of the sixth hour, which is a half an
hour before chametz is biblically prohibited. Even if we say that one errs by an hour and a half and
a bit, one should be permitted to eat chametz until the end of the fifth hour.

The Gemara answers that Abaye said that testimony is given over to those who are diligent whereas
chametz is given over to everybody. This means that only one who is expert in keeping time will
come to testify regarding a capital case as he is aware that the court will interrogate him. Regarding
chametz, however, although everyone must stop eating chametz at the end of the sixth hour, not
everyone is an expert at determining the correct time

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Determining the Last Time for Eating Hametz

Steinzaltz (OBM) writes:2

As we have learned, hametz becomes forbidden even before Pesah begins. According to
the Gemara, starting at mid-day on erev Pesah, there is a Biblical prohibition against
eating hametz. The Mishna (11b) teaches that according to Rabbi Meir one can eat hametz until
the end of the fifth hour and should destroy the remaining hametz at the beginning of the sixth
hour. Rabbi Yehuda rules that one should finish eating hametz by the end of the fourth hour.
The hametz can remain for the duration of the fifth hour but needs to be destroyed at the beginning
of the sixth hour.

2
https://steinsaltz.org/daf/pesahim12/

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This diagram shows how the 24 hours of the day were understood by the Talmud, beginning at the
top with sunrise, and moving counter-clockwise to mid-day (the 6th hour) and to sunset (the 12th
hour). According to this system, the length of a daylight hour changes, with longer hours during
the summer months and shorter ones during the winter.

The discussion of the Gemara on our daf revolves around the likelihood that a mistake might be
made about the time, which might lead someone to continue eating hametz after its permitted time.
It is important to remember that people could not be exact in figuring times, since accurate clocks
did not yet exist. Therefore, the possibility of making a mistake – even of several hours – was a
distinct possibility. Rava concludes the discussion in the Gemara by saying that the positions of
Rabbi Meir and Rabbi Yehuda in the Mishna stem from the concern that erev Pesah will be
overcast, and people will not be able to use the sun to judge the time of day. In such a case, even
the rudimentary instruments that were used to measure the length of the day – like sun dials –
would not be operative.

Rav Pappa explains that even on a cloudy day we still can establish four hours as a permissible
time to eat hametz, since that is the normal time for most people to eat. Therefore, even if people
are not able to judge time based on observing the sun, they can do so based on their appetites.
When they are hungry they know that it is four hours into the day, when it is still a safe time to
eat hametz.

As a point of background, during the Talmudic period, the accepted custom was to eat two meals
a day – one in the morning and one in the evening. Some people would snack between meals, but
on normal days these were the only two times that people ate. (Shabbat was an exception, when
three meals were eaten.) The Gemara points out that workers, for example, who leave for work
very early in the morning, would postpone their meal until mid-day in order to break up their
workday. Most people, however, ate a little earlier at four hours.

THE MARGIN OF ERROR THAT IS ALLOWED WHEN ONE CALCULATES TIME

Rav Mordechai Kornfeld writes:3

Our Daf says that just as Rebbi Yehudah and Rebbi Meir argue about the margin of error allowed
for witnesses who testify about the time of an event, they argue about the margin of error allowed
to a person who destroys his Chametz on Erev Pesach. Rav Ashi explains that Rebbi Yehudah
allows witnesses to err by three hours, and Rebbi Meir allows witnesses to err by two hours.
Similarly, with regard to Chametz, Rebbi Yehudah prohibits Chametz two hours before the Torah
prohibition takes effect, because he maintains that a person might make a mistake about the time
at which Chametz becomes forbidden and err by two hours. Rebbi Meir prohibits Chametz one

3
https://www.dafyomi.co.il/pesachim/insites/ps-dt-012.htm

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hour before the Torah prohibition takes effect, because he maintains that a person might make a
mistake and think that Chametz becomes prohibited one hour later than it actually becomes
prohibited.

The Gemara says that Rav Ashi's intention is to teach that "what we said earlier was correct."

RASHI (DH Mishum Shinuya d'Shaninan) gives two explanations for this statement.

According to Rashi's first explanation, Rav Ashi means that although Rebbi Yehudah and Rebbi
Meir allow for a discrepancy of three or two hours, respectively, with regard to the testimony of
witnesses, they maintain that with regard to Chametz a person errs by only two hours or one hour.
The reason for this difference is that "Chametz la'Kol Masur" -- everyone is involved with the
Mitzvah to destroy Chametz, and therefore we are less concerned for large errors in time.

According to Rashi's second explanation, Rav Ashi means that although with regard to testimony,
there is never a concern that a person will err and confuse the fifth hour with the seventh hour of
the day (since in the fifth hour the sun is in the east, while in the seventh it is in the west), with
regard to Chametz there is a concern that one will err between the fifth and seventh hours,
according to Rebbi Yehudah who says that Chametz is forbidden even in the fifth hour. Rashi
explains that the reason one will err, with regard to Chametz, between the fifth and seventh hours
is either because "Chametz la'Kol Masur," or because one might become confused as a result of a
cloudy day.

Rashi's first explanation for Rav Ashi's statement is difficult to understand. First, Rashi says that
a lesser margin of error is granted with regard to calculating the time for the prohibition of
Chametz, because "Chametz la'Kol Masur." However, the fact that "Chametz la'Kol Masur" is
reason to allow a greater margin of error, as Rashi himself says earlier (DH Edus Mesurah
l'Zerizim). (MAHARSHAL)

Second, why does Rashi not give the Gemara's reason for the difference between the testimony of
witnesses and Bi'ur Chametz? The reason why a lesser margin of error is allowed for Chametz is
because the prohibition of Chametz begins at the seventh hour, and people do not confuse the
seventh hour with the fifth hour, and, likewise, they do not confuse the seventh hour with the sixth
hour.

Third, even if the reason why Rashi mentions the reason of "Chametz la'Kol Masur" is in order to
explain why people tend to make greater errors with regard to Chametz, Rashi also should mention
the second reason why people tend to make greater errors with regard to Chametz: clouds in the
sky confuse them. Why does Rashi mention this reason only in his second explanation and not in
his first explanation?

CHASAM SOFER (Perush ha'Sugyos) explains that Rashi does not need to explain why a lesser
margin of error is granted for Chametz than for the testimony of witnesses, because it goes without
saying that one does not confuse the fifth hour with the seventh hour. Since the prohibition of
Chametz starts in the seventh hour, there is less reason to be concerned for large errors. Rashi,

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though, was bothered by another question: Why did the Rabanan prohibit Chametz before the
seventh hour at all? Even in the fifth and sixth hours, Chametz should not be prohibited, because
people do not err between the pre-noon hours and the post-noon hours. To answer this question,
Rashi adds "Chametz la'Kol Masur" in order to explain why there is a concern for any error at all
with regard to Chametz (as TOSFOS asserts in DH b'Shis Chamah).

MAHARSHAL and ROSH YOSEF give similar answers. (They note, however, that this answer
is somewhat forced, and that it does not answer the third question.)

Perhaps there is a slight printer's error in the text of Rashi. When Rashi writes in his first
explanation that the reason why a lesser margin of error is given for Chametz is because "Chametz
la'Kol Masur," his words should instead read, "Chamesh Chulei" ("five etc."), meaning "Chamesh
Chamah b'Mizrach..." -- "during the first five hours of the day, the sun is in the east, and in the
seventh hour, the sun is in the west."

This is exactly what Rashi should have said here in order to explain why the margin of error for
Chametz is smaller than that for testimony, as we explained above in the second question. If this
is the correct reading of Rashi, then Rashi indeed is giving the proper explanation for why there
is less of a margin of error with regard to Chametz. This explains why Rashi could not have
mentioned the idea that a cloudy day might confuse people, because this is a reason to allow
a larger margin of error for Bi'ur Chametz and not a lesser one.

Our Minhag4
The minhag is to burn chametz (until it becomes coals or ashes) during the day, however, one
fulfills the mitzvah by destroying the Chametz in any fashion.

Orach Chayim 445:15

This is based on the Mishna in Pesachim 21a which records an argument regarding how to fulfill
the obligation in Ex 12:15 ‫ַתְּשִׁבּיתוּ ְשֹּׂאר ִמָבֵּתּיֶכם‬.

4
https://halachipedia.com/index.php?title=Biur_Chametz
5
Rama O.C. 445:1, Mishna Brurah 445:1-2, Chazon Ovadia part 1 page 64. Kaf Hachayim 445:3-4.

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 ‫ ַבּיּוֹם‬z‫ַא‬--‫ ַמצּוֹת תּ ֹאֵכלוּ‬,‫טו ִשְׁבַﬠת ָיִמים‬ 15 Seven days shall ye eat unleavened bread; howbeit the
-‫ ִכּי ָכּל‬:‫ ַתְּשִׁבּיתוּ ְשֹּׂאר ִמָבֵּתּיֶכם‬,‫ָה ִראשׁוֹן‬ first day ye shall put away leaven out of your houses; for
--‫ ְו ִנְכ ְרָתה ַהֶנֶּפשׁ ַהִהוא ִמ ִיְּשָׂרֵאל‬,‫ֹאֵכל ָחֵמץ‬ whosoever eateth leavened bread from the first day until
.‫יוֹם ַהְשִּׁבִﬠי‬-‫ ַﬠד‬,‫ִמיּוֹם ָה ִראֹשׁן‬ the seventh day, that soul shall be cut off from Israel.

Ex 12:15
Rabbi Yehuda says the only way is to burn while chachamim say you can burn it, crumble it, or
throw it into the river.

Rambam Chametz Umatza 3:11 and Baal Hameor rule like the rabbis. Furthermore, Rabbenu
Tam (Tosfot Pesachim 12b s.v. aymatay) holds that even Rabbi Yehuda holds that it is only after
midday that one needs to burn it, beforehand one can dispose of it in any way. Similarly, Baal
Hameor holds that it is only a mitzvah for Rabbi Yehuda to burn it from the sixth hour and on and
beforehand one can just dispose of it.

Nonetheless, the Tur 445:1 explains that it is proper to be strict for Rashi who holds like Rabbi
Yehuda and who also thinks that there is a mitzvah to burn the chametz even before midday. He
also notes that the Rosh Pesachim 2:3 thinks that even for Rashi it is only a mitzvah to burn it in
the sixth hour and not beforehand, but the Tur disagrees and thinks it is a mitzvah to burn it for
Rashi all morning.

Even though the Shulchan Arukh (445:1) rules that one may dispose of chametz in any fashion,
Rama 445:1 writes that the minhag is to specifically burn it in order to satisfy all opinions. The
Gra 445:1 says that even chachamim say that ideally one should burn it, as the Mishnah states one
can "even" (af) eliminate it in other ways. He adds that the only reason this is only a custom and
not obligatory is because according to Rabbi Yehuda you need to burn the chametz after its
prohibited time and since we do it before that we can really do it any way.

Kaf Hachayim 445:11 says that there is special kabbalistic importance to burning the chametz
because it symbolizes burning the evil inclination.

Magen Avraham 445:1 who wonders why it is permitted to burn chametz according to the rabbis
since it is forbidden from benefit and burning it would just create forbidden ashes that a person
might come to use.

Chok Yaakov 445:1 says that chametz is so serious to people that there's no concern that they're
not going to use the chametz ashes. Alternatively, since most people burn chametz when it is
permitted the rabbis didn't institute any prohibition upon the ashes when they are burned earlier.

Rabbi Akiva Eiger 445:1 answers that since it is a mitzvah to burn it or dispose of it that removes
the prohibition. Maharsham in Daat Torah 445:1 quotes others who agree.

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Margins of Error in Eyewitness testimony

Constitutional Rights Foundation writes:6

In a San Diego courtroom, a distraught young woman described her hour of terror at the hands
of a rapist. The victim pointed directly at defendant Frederick Daye and stated that he was the
offender. "There is no doubt in my mind," she insisted. A second eyewitness testified that he saw
Daye push the woman into a car and drive away. The San Diego barber was convicted of rape and
sent to prison.
Both men were wrongfully accused by eyewitnesses who were certain they had correctly identified
the defendant as the offender. Both men were later cleared of the charges against them and released
from prison after serving 16 and 10 years respectively. Their cases serve as vivid proof that
eyewitnesses can make horrible mistakes.
The Role of Eyewitness Testimony
Eyewitness testimony occupies a prominent place in the criminal justice system. According to a
1988 survey of court prosecutors, an estimated 77,000 suspects are arrested each year based on
eyewitness testimony. Beyond providing a strong basis for arrest, eyewitness testimony has great
impact in the courtroom.
"It's the most theatrical moment of the trial," says UCLA law professor John Wiley Jr. "Everybody
in the jury box looks at the witness, looks at the [eyewitness's] finger and follows the line right to
the defendant."
To determine what role eyewitness testimony played in the courtroom, psychologist and memory
expert Elizabeth Lofthus conducted an experiment in which subjects served as jurors in a mock
trial. First, all jurors heard the same description of the crime, a hypothetical robbery and murder.
In one version of the trial, the prosecutor presented only circumstantial evidence. Only 18 percent
of the jurors found the defendant guilty. In the second version of the trial the prosecutor presented
the same evidence with one addition—an eyewitness. Seventy-two percent of the jurors found the
defendant guilty. This led Lofthus to conclude that jurors place enormous value on eyewitness
testimony.
Studies have shown that mistaken eyewitness testimony accounts for about half of all wrongful
convictions. Researchers at Ohio State University examined hundreds of wrongful convictions and
determined that roughly 52 percent of the errors resulted from eyewitness mistakes. Legal scholar
Edwin Borchard studied 65 cases of "erroneous criminal convictions of innocent people."
Mistaken eyewitness identification was responsible for approximately 45 percent of Borchard's
case studies.
There is no way of telling how many innocent people go to jail due to mistaken eyewitnesses. Most
juries arrive at a conviction only after hearing a broad spectrum of evidence against the defendant.
Eyewitness testimony is usually only a part of that broad spectrum. San Diego criminologist Ebbe

6
https://www.crf-usa.org/bill-of-rights-in-action/bria-13-3-c-how-reliable-are-
eyewitnesses#:~:text=Studies%20have%20shown%20that%20mistaken,errors%20resulted%20from%20eyewitness%20mistakes.

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Ebbesen maintains that police and prosecutors "weed out" most unreliable witnesses while others
disqualify themselves by expressing doubt about their own perceptions. These factors help prevent
convictions of innocent defendants from mistaken eyewitnesses.
The Brain Is Not a VCR
Eyewitness testimony is powerful because most people believe that the human mind is able to
record and store every detail of the events we experience. They believe that these permanently
recorded memories, thoughts, and impressions can be retrieved, even from realms of the forgotten
and the subconscious. In fact, says psychologist Lofthus, "human memory is far from perfect or
permanent and forgetfulness is a fact of life."
Most scientists agree that memories are formed when neurons form connections between brain
cells. According to James McClelland, a Pittsburgh brain researcher, "Each neuron represents a
little bit of memory," just like a computer holds information in bytes of electronic coding. These
bits of information are channeled from the eyes, ears, and other senses to various parts of the brain.
Here, the connected neurons are stored in cerebral compartments that can hold as much as 1
quintillion separate memory bits.
These storage compartments are constantly being rearranged by a part of the brain called the limbic
system. Like a neurological file clerk, the limbic system tries to "make sense" out of our memories
by adding new data and tossing out old or confusing information. As Lofthus describes this
process, "Every time we recall an event, we must reconstruct the memory and with each
recollection the memory may be changed...Thus our representation of the past takes on a living,
shifting reality."
Our brains may hold on to certain peak memories. But between the peaks, our brains fill in the
gaps. Dr. Marcel Mesulam, professor of neurology and psychiatry at Northwestern University
observes that "your brain may be re-creating something very vivid. But that doesn't prove that
what was being re-created was true."
This neural recollection process takes on particular significance when eyewitnesses to crimes are
asked to recall their experience for police investigators, lawyers, or a judge and jury. Most
witnesses want to help. Both investigators and witnesses want to see justice served. No one wants
to held responsible for the wrongful conviction of an innocent person. In short, most witnesses and
criminal investigators have the same goals. In most cases, these common goals can create an
effective collaboration to identify a suspect. But these same goals, combined with the fallibility of
memory, can create an margin for error in the identification of a suspect.
Psychologist G.H. Wells, an expert in methods used to secure eyewitness testimony, describes the
process this way: "The investigator's knowledge of which person...is the suspect creates a dynamic
situation in which the investigator can influence the eyewitness to choose the suspect." For
example, if the eyewitness makes a tentative choice, the investigator can create a false sense of
confidence by confirming the choice. "The eyewitness then becomes convinced that the
identification was correct," contends Wells, "and a false certainty begins to take hold."
Elizabeth Lofthus explains the development of false certainty by claiming that "the more people
think about an event from the past, the more confident they become in their memories. The problem
is that they get more confident in their inaccurate memories as well as their accurate ones."

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Creating a Margin for Error
Regardless of the possibility for error, eyewitness testimony can be extremely helpful in
determining innocence or guilt in criminal cases. Despite assertions that traumatic events can
destroy memory, psychologists Ofshe and Watters from the University of California point to a
study done of children who witnessed the murder of a parent. "Many distorted the memory," they
say, "but not one [child] lost it entirely." Sometimes, a victim's eyewitness testimony is the only
evidence available.
G.H. Wells, suggests that "[a]lthough...people have faulty beliefs on how memory works and...tend
to over-believe eyewitness identifications, this does not mean that they assume that all such
identifications are valid."
Wells quotes the U.S. Supreme Court, who, in the 1972 case of Nell v. Biggers, ruled that not all
testimony is created equally valid or invalid. In contemporary justice settings, most instructions to
the jury include a warning that eyewitness testimony can be subject to error.
Wells goes on to suggest several methods that police, and prosecutors, judges, and lawyers can use
to "greatly reduce the justice system's role in contributing to false identifications." Wells' methods
attempt to limit the influence that the investigator has over the eyewitness.

To Err is Human:

Using Science to Reduce Mistaken Eyewitness Identifications

7
Maureen McGough writes:

In 1984, a Cook County, Ill., jury found 27-year-old Ronnie Bullock guilty of raping a 9-
year-old girl in Chicago's south side. He was sentenced to 60 years in prison. Crucial to
the prosecution's case was the victim's identification of Bullock in a police lineup. A second
rape victim — a 12-year-old girl — also viewed a police lineup and identified Bullock as
her attacker.[1]

Maintaining his innocence, Bullock sought relief from the courts. His conviction was
upheld on appeal in 1987, and two state postconviction petitions were unsuccessful.
Bullock's federal habeas petition was denied in 1991.[2]

7
This article appeared in NIJ Journal Issue 270, June 2012.

19
In June of 1993, he was granted a motion to have impounded evidence released for DNA
testing. Tests revealed that Bullock was not the source of the semen found on the victim's
clothing, and a judge dismissed the charges against him in 1994.[3]

Bullock spent 10 and a half years in prison for a crime he did not commit.[4]

Nationwide, mistaken eyewitness identifications have played a role in 75 percent of

convictions later overturned because of DNA evidence,[5] and criminal justice
practitioners and researchers have a pervasive interest in finding ways to improve the
methods used for eyewitness identifications. A good deal of research has focused on the
police lineup, in which victims and witnesses attempt to distinguish a suspect from other
individuals presented (known as "fillers").

A recent study from the American Judicature Society (AJS) is adding to the body of
research by investigating which lineup method results in fewer mistaken identifications:[6]

• Sequential, in which the witness views lineup members one at a time and makes a
decision on each individual member, or
• Simultaneous, in which the witness views the entire lineup at once

Past research using controlled laboratory experiments consistently showed that sequential
methods yielded fewer mistaken identifications. But in 2006, a field study in Illinois called
into question the superiority of the sequential method (and with it, the use of controlled
laboratory experiments as approximations for actual eyewitnesses to crimes).

Scientists, however, identified flaws in the Illinois study's design and implementation. As
a result, some experts have deemed the results "difficult or impossible to interpret."[7]

To produce more rigorous data using field techniques rather than laboratory techniques,
the AJS research team developed an improved research design for its study.

The initial report on the AJS study indicates that sequential lineups significantly reduce the
number of filler identifications without significantly reducing the number of accurate
positive identifications. Thus, the AJS findings support results from past laboratory
experiments.

Research from Laboratories to the Field

Given the vital role of eyewitness testimony in the administration of justice and the inherent
risks therein, extensive research has been dedicated to developing lineups that minimize
identification of fillers without significantly reducing accurate, positive identifications.

However, many of the variables that may affect the accuracy of eyewitness identification
are out of the control of the criminal justice system.[8] These include lighting of the crime

20
scene; length of time a witness was exposed to the perpetrator; severity of the crime; and
characteristics of the witness and perpetrator, such as race, age and sex. These variables
are helpful in estimating the likely accuracy of eyewitness identification, but they cannot
be controlled in actual criminal cases.[9]

Several renowned eyewitness researchers have focused studies on variables that the
criminal justice system could control, such as who administers the lineup, how the lineup
is administered, lineup compositions and instructions given to witnesses.[10]

By focusing on these controllable variables, researchers have produced findings from

laboratory experiments that shape investigative practices and procedures.[11] These
science-based practices include:

• Using fillers in lineups that match the verbal description of the perpetrator
• Informing the witness that the perpetrator may or may not be present in the lineup
• Using a double-blind administration in which the lineup administrator does not
know who the suspect is and therefore is unable to transmit inadvertent cues or
feedback to the identifying witness[12]

Laboratory tests also show that sequential lineups offer a better ratio of accurate to
mistaken identifications than simultaneous lineups. Sequential lineups require witnesses to
compare each individual they see to their recollection of the suspect.[13] This increases
accuracy and reduces the risk that witnesses will make a judgment based on a relative
comparison of who among the group looks most like the perpetrator relative to the other
lineup members. In fact, when a double-blind lineup was administered using the sequential
technique in laboratory testing, identifications were twice as reliable as those from
traditional lineups.[14]

The 2006 Illinois Report

Although laboratory results were promising, proposed changes in investigative practices

needed to be field tested before they could be used to support widespread procedural
overhauls. In 2003, the Illinois state legislature charged the Illinois State Police with
conducting a yearlong field test of the effectiveness of the sequential, double-blind lineup
compared with the traditional (non-blind, simultaneous) lineup.[15]

The results were surprising. In 2006, the Illinois State Police released a report (often
referred to as The Mecklenberg Report after its author, Sheri Mecklenberg) showing that,
in two of the three jurisdictions participating in the study, double-blind, sequential lineups
produced a higher rate of identification of innocent fillers and a lower rate of identification
of suspects.[16] In other words, this report contradicted what laboratory experiments had
shown for years, and it recommended against instituting changes based solely on laboratory
science.[17] The report, which was widely publicized, drew resolute support and severe
criticism, particularly regarding the design and implementation of the study.[18]

21
First and foremost, critics stressed that the study confounded the simultaneous/sequential
and non-blind/double-blind variables, rendering results largely uninterpretable. It was
impossible to determine whether the better outcome using the simultaneous lineups was
partly or entirely attributable to the influence of the non-blind administrator.[19] Notably,
some proponents of the study felt that confounding these variables did not color the results,
citing research that compared double-blind conditions to non-blind conditions and finding
no effects.[20]

Additionally, critics cited the fact that cases were not randomly assigned to either group,
and cases thought to be "tougher," such as cross-race identifications or those in which the
lineup took place after a delay, were more likely to be assigned to the sequential group,
thus negatively skewing the sequential results.[21] Critics also noted that some filler
identifications were not recorded in simultaneous lineups, thus positively skewing the
simultaneous results.[22]

The Greensboro Protocols

To address critiques of The Mecklenberg Report, the AJS convened scientists, lawyers,
prosecutors and police in Greensboro, N.C., to develop a set of guidelines for conducting
field experiments testing the simultaneous/sequential variable. The group was committed
to conducting field research that would gather reliable data on the administration of the
lineup and witness and event variables. Data determined to be essential for a scientifically
sound field experiment included time between crime and lineup, type of crime, whether a
weapon was present, viewing conditions, sobriety of the witness, certainty of the witness,
and whether it was a cross-race identification.[23]

The "Greensboro Protocols" emphasized the importance of true random assignment of

lineups into the sequential or simultaneous groups, and the consistent use of double-blind
lineups in both groups was also deemed essential for conducting a scientifically sound field
experiment.

The protocols also highlighted the importance of using computers — both for
administering the lineups and for recording witness responses — to ensure that procedures
were fairly conducted in accordance with best practices. Computers were deemed
especially important because they could ensure uniform administration of lineups
according to protocol, randomly assign lineups as either sequential or simultaneous, and
randomly order the photos within a lineup. Computers would also allow for uniform,
reliable and complete recordings of witness responses, including the time it took for
witnesses to make a determination.

The AJS Field Study

Relying on the Greensboro Protocols, the AJS developed a field experiment that
compensated for the deficiencies of the 2006 Illinois study. The field experiment was

22
conducted at four sites: the Austin Police Department (Texas), the Charlotte-Mecklenburg
Police Department (N.C.), the San Diego Police Department (Calif.) and the Tucson Police
Department (Ariz.).

The AJS research team excluded lineups that were not conducted using a double-blind
procedure, as well as lineups in which the eyewitness had prior knowledge of the suspect
through a previous acquaintance. This left researchers with 497 protocol-consistent lineups
for crimes, ranging from simple assault to murder.

Results

There were no significant differences in a witness's ability to identify the suspect between
the simultaneous and sequential techniques. Witnesses identified the suspect 25.5 percent
of the time in simultaneous lineups and 27.3 percent of the time in sequential lineups. This
small difference in identification rates falls within the margin of error and should not be
considered a meaningful difference.

However, simultaneous lineups resulted in 18.1 percent identification of fillers, whereas

sequential lineups resulted in 12.2 percent identification of fillers. This 5.9 percent
difference in filler identifications was found to be statistically significant.

The AJS study results are consistent with the results of decades of laboratory tests showing
that sequential lineups reduce mistaken identifications without significantly reducing
accurate identifications.

Next Steps

Researchers plan to conduct additional analyses of the data to determine:

• Whether witnesses are more certain about their mistaken identifications in

sequential or simultaneous lineups
• Whether accuracy changes with the witness's status as a victim or bystander
• Whether the identifications were same-race or cross-race

Additionally, although identifications of fillers are clearly erroneous, identifications of the

suspect are not necessarily accurate because the suspect is not always the perpetrator. The
Police Foundation is leading a second phase of research to follow up on this area.

The police lineup is an inherently human process, and therefore inherently flawed.
Although no single study can lead to the development of a procedure guaranteeing
consistently accurate identifications, a well-designed field study can be an important step
in developing best practices for lineups and other identification practices.

23
The Supreme Court and Eyewitness Testimony - Perry v. New Hampshire

Eyewitness testimony plays a crucial role in the American criminal justice system.
However, like any process relying on the integrity of human memory, eyewitness
testimony is imperfect. The American Judicature Society study found that even when
lineups were conducted using procedures shown to lead to fewer mistaken identifications,
witnesses identified a "filler" 12.2 percent of the time. The courts must therefore strike a
balance between allowing the introduction of eyewitness testimony that can be crucial to
the prosecution's case and protecting defendants from unreasonably unreliable evidence.

The Supreme Court has long held that it is up to jurors to evaluate eyewitness testimony
and make their own judgments as to its credibility. However, the Court has also held that
the Constitution's Due Process Clause requires preliminary judicial inquiry into the
reliability of eyewitness identification if law enforcement created unnecessarily suggestive
circumstances during the identification. In Perry v. New Hampshire, the petitioner asked
the Court to apply the same principle — that identifications made under suggestive
conditions require preliminary judicial inquiry — when happenstance renders the
identification setting suggestive.

In Perry, a New Hampshire police officer responded to a call that an African American
man was attempting to break into cars in a nearby lot. When the officer asked an eyewitness
to describe the man, she pointed to Perry — the only African American man standing in
the lot next to a police officer — and identified him as the man in question. Perry's arrest
followed. The out-of-court identification was introduced at trial and Perry was found guilty
of theft.

In its October 2011 opinion, the Court held that the introduction of this out-of-court
identification did not violate the Due Process Clause. The Court said that the determination
of the credibility of the testimony in question should be left to the jurors and declined to
put what it deemed new legal limits on the use of questionable eyewitness testimony at
trial. The Court also opined that Perry's argument would open the door to judicial preview
of most — if not all — eyewitness identifications.

Justice Sonia Sotomayor was the lone dissenter. Although the majority held that the crucial,
common factor in relevant Court precedent was that police arranged a suggestive interview,
Justice Sotomayor countered that the suggestive nature of the interview itself — not the
circumstances that led the suggestive nature — was the key. She believed that the majority
opinion did not adequately consider empirical evidence showing mistaken identifications
as the single greatest cause of wrongful convictions in this country. She also highlighted

24
studies showing that eyewitness recollections are highly susceptible to distortion and that
jurors overestimate the accuracy of eyewitness identifications.8

Notes
[note 1] Conners, Edward, Thomas Lundregan, Neal Miller and Tom McEwen, "Convicted by Juries, Exonerated by Science: Case
Studies in the Use of DNA Evidence to Establish Innocence After Trial" (pdf, 117 pages), Final report to the National Institute of
Justice, grant number OJP-95-215, June 1996, NCJ 161258.

[note 2] Garrett, Brandon L., "Judging Innocence", Columbia Law Review 108 (2008): 65.

[note 3] Conners, "Convicted by Juries, Exonerated by Science," 40.

[note 4] Ibid.

[note 5] The Innocence Project, "Eyewitness Misidentification".

[note 6] One of the four study sites, Tucson, Ariz., was initially funded as a standalone field study by NIJ. The results of that site
analysis were included in the AJS Field Study after the NIJ study received funding to use laptop computers.

[note 7] Schacter, Daniel L., Robin Dawes, Larry L. Jacoby, Daniel Kahneman, Richard Lempert, Henry L. Roediger and Robert
Rosenthal, "Policy Forum: Studying Eyewitness Investigations in the Field," Law and Human Behavior 32 (2008): 3–5; see
generally Conners, "Convicted by Juries, Exonerated by Science."

[note 8] Wells, Gary L., "Applied Eyewitness-Testimony Research: System Variables and Estimator Variables", Journal of
Personality and Social Psychology 36 (1978): 1546–1557.

[note 9] Ibid., 1548.

[note 10] See, for example, Doyle, James M., "Learning From Error in American Criminal Justice" (pdf, 40 pages), The Journal of
Criminal Law & Criminology 100 (2010): 109–148.

[note 11] Ibid., 116.

[note 12] Ibid., 17.

[note 13] Schacter, "Policy Forum."

[note 14] Steblay, Nancy, Jennifer Dysart, Solomon Fulero and R.C.L. Lindsay, "Eyewitness Accuracy Rates in Sequential and
Simultaneous Lineup Presentations: A Meta-Analytic Comparison,", aw and Human Behavior 25 (2001): 459–473.

[note 15] Mecklenberg, Sheri H., Report to the Legislature of the State of Illinois: The Illinois Pilot Program on Sequential Double-
Blind Identification Procedures, Springfield, IL: Illinois State Police, 2006.

[note 16] Ibid.

[note 17] Schacter, "Policy Forum."

8
Mecklenberg, Sheri H., Report to the Legislature of the State of Illinois: The Illinois Pilot Program on Sequential Double-Blind
Identification Procedures (pdf, 76 pages), Springfield, IL: Illinois State Police, 2006.Wells, Gary L., Nancy K. Steblay and Jennifer
E. Dysart, A Test of the Simultaneous vs. Sequential Lineup Methods: An Initial Report of the AJS National Eyewitness
Identification Field Studies , Des Moines, IA: American Judicature Society, 2011.

25
[note 18] Ibid., 2.

[note 19] Ibid.

[note 20] Malpass, Roy S., "Notes on the Illinois Pilot Program on Sequential Double-Blind Lineup Procedures," Public Interest
Law Reporter 2006: 5–8, 39–47; See also Ebbesen, Ebbe B., "Comments on IL Simultaneous v. Sequential Lineup Field Test,"
2006.

[note 21] Wells, Gary L., Nancy K. Steblay and Jennifer E. Dysart, A Test of the Simultaneous vs. Sequential Lineup Methods: An
Initial Report of the AJS National Eyewitness Identification Field Studies (pdf, 28 pages), Des Moines, IA: American Judicature
Society, 2011.

[note 22] Ibid.

[note 23] Ibid., ix.

AMNESIA

Amnesia is the loss of long-term memory that occurs as the result of disease, physical trauma, or
psychological trauma. Psychologist Tulving (2002) and his colleagues at the University of Toronto
studied K. C. for years. K. C. suffered a traumatic head injury in a motorcycle accident and then
had severe amnesia. Tulving writes,

the outstanding fact about K.C.’s mental make-up is his utter inability to remember any
events, circumstances, or situations from his own life. His episodic amnesia covers his
whole life, from birth to the present. The only exception is the experiences that, at any
time, he has had in the last minute or two. (Tulving, 2002, p. 14)

Anterograde Amnesia

There are two common types of amnesia: anterograde amnesia and retrograde amnesia.
Anterograde amnesia is commonly caused by brain trauma, such as a blow to the head.
With anterograde amnesia, you cannot remember new information, although you can remember
information and events that happened prior to your injury. The hippocampus is usually affected
(McLeod, 2011). This suggests that damage to the brain has resulted in the inability to transfer
information from short-term to long-term memory; that is, the inability to consolidate memories.

Many people with this form of amnesia are unable to form new episodic or semantic memories but
are still able to form new procedural memories (Bayley & Squire, 2002). This was true of H. M.,
which was discussed earlier. The brain damage caused by his surgery resulted in anterograde
amnesia. H. M. would read the same magazine over and over, having no memory of ever reading
it—it was always new to him. He also could not remember people he had met after his surgery. If
you were introduced to H. M. and then you left the room for a few minutes, he would not know

26
you upon your return and would introduce himself to you again. However, when presented the
same puzzle several days in a row, although he did not remember having seen the puzzle before,
his speed at solving it became faster each day (because of relearning) (Corkin, 1965, 1968).

This diagram illustrates the timeline of retrograde and anterograde amnesia.

Memory problems that extend back in time before the injury and prevent
retrieval of information previously stored in long-term memory are known as
retrograde amnesia. Conversely, memory problems that extend forward in time
from the point of injury and prevent the formation of new memories are called
anterograde amnesia.

Retrograde Amnesia

Retrograde amnesia is loss of memory for events that occurred prior to the trauma. People with
retrograde amnesia cannot remember some or even all of their past. They have difficulty
remembering episodic memories. What if you woke up in the hospital one day and there were
people surrounding your bed claiming to be your spouse, your children, and your parents? The
trouble is you don’t recognize any of them. You were in a car accident, suffered a head injury, and
now have retrograde amnesia. You don’t remember anything about your life prior to waking up in
the hospital.

This may sound like the stuff of Hollywood movies, and Hollywood has been fascinated with the
amnesia plot for nearly a century, going all the way back to the film Garden of Lies from 1915 to
more recent movies such as the Jason Bourne trilogy starring Matt Damon and 50 First Dates with
Drew Barrymore. However, for real-life sufferers of retrograde amnesia, like former NFL football
player Scott Bolzan, the story is not a Hollywood movie. Bolzan fell, hit his head, and deleted 46
years of his life in an instant. He is now living with one of the most extreme cases of retrograde
amnesia on record.

MEMORY CONSTRUCTION AND RECONSTRUCTION

The formulation of new memories is sometimes called construction, and the process of bringing
up old memories is called reconstruction. Yet as we retrieve our memories, we also tend to alter
and modify them.

27
A memory pulled from long-term storage into short-term memory is flexible. New events can be
added, and we can change what we think we remember about past events, resulting in inaccuracies
and distortions. People may not intend to distort facts, but it can happen in the process of retrieving
old memories and combining them with new memories (Roediger and DeSoto, in press).

Suggestibility

When someone witnesses a crime, that person’s memory of the details of the crime is very
important in catching the suspect. Because memory is so fragile, witnesses can be easily (and often
accidentally) misled due to the problem of suggestibility. Suggestibility describes the effects of
misinformation from external sources that leads to the creation of false memories. In the fall of
2002, a sniper in the DC area shot people at a gas station, leaving Home Depot, and walking down
the street. These attacks went on in a variety of places for over three weeks and resulted in the
deaths of ten people. During this time, as you can imagine, people were terrified to leave their
homes, go shopping, or even walk through their neighborhoods. Police officers and the FBI worked
frantically to solve the crimes, and a tip hotline was set up. Law enforcement received over 140,000
tips, which resulted in approximately 35,000 possible suspects (Newseum, n.d.).

Most of the tips were dead ends, until a white van was spotted at the site of one of the shootings.
The police chief went on national television with a picture of the white van. After the news
conference, several other eyewitnesses called to say that they too had seen a white van fleeing
from the scene of the shooting. At the time, there were more than 70,000 white vans in the area.
Police officers, as well as the general public, focused almost exclusively on white vans because
they believed the eyewitnesses. Other tips were ignored. When the suspects were finally caught,
they were driving a blue sedan.

As illustrated by this example, we are vulnerable to the power of suggestion, simply based on
something we see on the news. Or we can claim to remember something that in fact is only a
suggestion someone made. It is the suggestion that is the cause of the false memory.

Eyewitness Misidentification

Even though memory and the process of reconstruction can be fragile, police officers, prosecutors,
and the courts often rely on eyewitness identification and testimony in the prosecution of criminals.
However, faulty eyewitness identification and testimony can lead to wrongful convictions.

28
 In studying cases where DNA evidence has exonerated people from crimes,
the Innocence Project discovered that eyewitness misidentification is the
leading cause of wrongful convictions (Benjamin N. Cardozo School of Law,
Yeshiva University, 2009).

Dig Deeper: Preserving Eyewitness Memory: The Elizabeth Smart Case

Contrast the Cotton case with what happened in the Elizabeth Smart case. When Elizabeth was 14 years
old and fast asleep in her bed at home, she was abducted at knifepoint. Her nine-year-old sister, Mary
Katherine, was sleeping in the same bed and watched, terrified, as her beloved older sister was abducted.
Mary Katherine was the sole eyewitness to this crime and was very fearful. In the coming weeks, the Salt
Lake City police and the FBI proceeded with caution with Mary Katherine. They did not want to implant
any false memories or mislead her in any way.

They did not show her police line-ups or push her to do a composite sketch of the abductor. They knew if
they corrupted her memory, Elizabeth might never be found. For several months, there was little or no
progress on the case. Then, about 4 months after the kidnapping, Mary Katherine first recalled that she had
heard the abductor’s voice prior to that night (he had worked one time as a handyman at the family’s home)
and then she was able to name the person whose voice it was. The family contacted the press and others
recognized him—after a total of nine months, the suspect was caught, and Elizabeth Smart was returned to
her family.

29
The Misinformation Effect

Cognitive psychologist Elizabeth Loftus has conducted extensive research on memory. She has
studied false memories as well as recovered memories of childhood sexual abuse. Loftus also
developed the misinformation effect paradigm, which holds that after exposure to incorrect
information, a person may misremember the original event.

According to Loftus, an eyewitness’s memory of an event is very flexible due to the

misinformation effect. To test this theory, Loftus and John Palmer (1974) asked 45 U.S. college
students to estimate the speed of cars using different forms of questions. The participants were
shown films of car accidents and were asked to play the role of the eyewitness and describe what
happened. They were asked, “About how fast were the cars going when they (smashed, collided,
bumped, hit, contacted) each other?” The participants estimated the speed of the cars based on the
verb used.

Participants who heard the word “smashed” estimated that the cars were traveling at a much higher
speed than participants who heard the word “contacted.” The implied information about speed,
based on the verb they heard, had an effect on the participants’ memory of the accident. In a follow-
up one week later, participants were asked if they saw any broken glass (none was shown in the
accident pictures). Participants who had been in the “smashed” group were more than twice as
likely to indicate that they did remember seeing glass. Loftus and Palmer demonstrated that a
leading question encouraged them to not only remember the cars were going faster, but to also
falsely remember that they saw broken glass.

When people are asked leading questions about an event, their memory of the
event may be altered. (credit a: modification of work by Rob Young)

30
Controversies over Repressed and Recovered Memories

Other researchers have described how whole events, not just words, can be falsely recalled, even
when they did not happen. The idea that memories of traumatic events could be repressed has been
a theme in the field of psychology, beginning with Sigmund Freud, and the controversy
surrounding the idea continues today.

Recall of false autobiographical memories is called false memory syndrome. This syndrome has
received a lot of publicity, particularly as it relates to memories of events that do not have
independent witnesses—often the only witnesses to the abuse are the perpetrator and the victim
(e.g., sexual abuse).

On one side of the debate are those who have recovered memories of childhood abuse years after
it occurred. These researchers argue that some children’s experiences have been so traumatizing
and distressing that they must lock those memories away in order to lead some semblance of a
normal life. They believe that repressed memories can be locked away for decades and later
recalled intact through hypnosis and guided imagery techniques (Devilly, 2007).

Research suggests that having no memory of childhood sexual abuse is quite common in adults.
For instance, one large-scale study conducted by John Briere and Jon Conte (1993) revealed that
59% of 450 men and women who were receiving treatment for sexual abuse that had occurred
before age 18 had forgotten their experiences. Ross Cheit (2007) suggested that repressing these
memories created psychological distress in adulthood. The Recovered Memory Project was
created so that victims of childhood sexual abuse can recall these memories and allow the healing
process to begin (Cheit, 2007; Devilly, 2007).

On the other side, Loftus has challenged the idea that individuals can repress memories of
traumatic events from childhood, including sexual abuse, and then recover those memories years
later through therapeutic techniques such as hypnosis, guided visualization, and age regression.

Loftus is not saying that childhood sexual abuse doesn’t happen, but she does question whether or
not those memories are accurate, and she is skeptical of the questioning process used to access
these memories, given that even the slightest suggestion from the therapist can lead to
misinformation effects. For example, researchers Stephen Ceci and Maggie Brucks (1993, 1995)
asked three-year-old children to use an anatomically correct doll to show where their pediatricians
had touched them during an exam. Fifty-five percent of the children pointed to the genital/anal
area on the dolls, even when they had not received any form of genital exam.

Ever since Loftus published her first studies on the suggestibility of eyewitness testimony in the
1970s, social scientists, police officers, therapists, and legal practitioners have been aware of the
flaws in interview practices. Consequently, steps have been taken to decrease suggestibility of
witnesses. One way is to modify how witnesses are questioned. When interviewers use neutral and
less leading language, children more accurately recall what happened and who was involved
(Goodman, 2006; Pipe, 1996; Pipe, Lamb, Orbach, & Esplin, 2004). Another change is in how
police lineups are conducted. It’s recommended that a blind photo lineup be used. This way the
person administering the lineup doesn’t know which photo belongs to the suspect, minimizing the

31
possibility of giving leading cues. Additionally, judges in some states now inform jurors about the
possibility of misidentification. Judges can also suppress eyewitness testimony if they deem it
unreliable.

FORGETTING

“I’ve a grand memory for forgetting,” quipped Robert Louis Stevenson. Forgetting refers to loss
of information from long-term memory. We all forget things, like a loved one’s birthday,
someone’s name, or where we put our car keys. As you’ve come to see, memory is fragile, and
forgetting can be frustrating and even embarrassing. But why do we forget? To answer this
question, we will look at several perspectives on forgetting.

Encoding Failure

Sometimes memory loss happens before the actual memory process begins, which is encoding
failure. We can’t remember something if we never stored it in our memory in the first place. This
would be like trying to find a book on your e-reader that you never actually purchased and
downloaded. Often, in order to remember something, we must pay attention to the details and
actively work to process the information (effortful encoding). Lots of times we don’t do this. For
instance, think of how many times in your life you’ve seen a penny. Can you accurately recall
what the front of a U.S. penny looks like? When researchers Raymond Nickerson and Marilyn
Adams (1979) asked this question, they found that most Americans don’t know which one it is.
The reason is most likely encoding failure. Most of us never encode the details of the penny. We
only encode enough information to be able to distinguish it from other coins. If we don’t encode
the information, then it’s not in our long-term memory, so we will not be able to remember it.

Can you tell which coin, (a), (b), (c), or (d) is the accurate depiction of a US
nickel? The correct answer is (c).

Memory Errors

Psychologist Daniel Schacter (2001), a well-known memory researcher, offers seven ways our
memories fail us. He calls them the seven sins of memory and categorizes them into three groups:
forgetting, distortion, and intrusion.

32
 Sin Type Description Example

Transience Forgetting Accessibility of memory decreases over time Forget events that oc

absentmindedness Forgetting Forgetting caused by lapses in attention Forget where your p

Blocking Forgetting Accessibility of information is temporarily blocked Tip of the tongue

Misattribution Distortion Source of memory is confused Recalling a dream m

Suggestibility Distortion False memories Result from leading

Bias Distortion Memories distorted by current belief system Align memories to c

Persistence Intrusion Inability to forget undesirable memories Traumatic events

Schacter’s Seven Sins of Memory

Let’s look at the first sin of the forgetting errors: transience, which means that memories can fade
over time. Here’s an example of how this happens. Nathan’s English teacher has assigned his
students to read the novel To Kill a Mockingbird. Nathan comes home from school and tells his
mom he has to read this book for class. “Oh, I loved that book!” she says. Nathan asks her what
the book is about, and after some hesitation she says, “Well . . . I know I read the book in high
school, and I remember that one of the main characters is named Scout, and her father is an
attorney, but I honestly don’t remember anything else.” Nathan wonders if his mother actually
read the book, and his mother is surprised she can’t recall the plot. What is going on here is storage
decay: unused information tends to fade with the passage of time.

In 1885, German psychologist Hermann Ebbinghaus analyzed the process of memorization.

First, he memorized lists of nonsense syllables. Then he measured how much he learned (retained)
when he attempted to relearn each list. He tested himself over different periods of time from 20
minutes later to 30 days later. The result is his famous forgetting curve. Due to storage decay, an
average person will lose 50% of the memorized information after 20 minutes and 70% of the
information after 24 hours (Ebbinghaus, 1885/1964). Your memory for new information decays
quickly and then eventually levels out.

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The Ebbinghaus forgetting curve shows how quickly memory for new
information decays.

Are you constantly losing your cell phone? Have you ever driven back home to make sure you
turned off the stove? Have you ever walked into a room for something, but forgotten what it was?
You probably answered yes to at least one, if not all, of these examples—but don’t worry, you are
not alone. We are all prone to committing the memory error known as absentmindedness. These
lapses in memory are caused by breaks in attention or our focus being somewhere else.

Cynthia, a psychologist, recalls a time when she recently committed the memory error of
absentmindedness.

When I was completing court-ordered psychological evaluations, each time I went to the
court, I was issued a temporary identification card with a magnetic strip which would
open otherwise locked doors. As you can imagine, in a courtroom, this identification is
valuable and important, and no one wanted it to be lost or be picked up by a criminal. At
the end of the day, I would hand in my temporary identification. One day, when I was
almost done with an evaluation, my daughter’s day care called and said she was sick and
needed to be picked up. It was flu season, I didn’t know how sick she was, and I was
concerned. I finished up the evaluation in the next ten minutes, packed up my tools, and
rushed to drive to my daughter’s day care. After I picked up my daughter, I could not
remember if I had handed back my identification or if I had left it sitting out on a table. I
immediately called the court to check. It turned out that I had handed back my
identification. Why could I not remember that? (personal communication, September 5,
2013)

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When have you experienced absentmindedness?
“I just went and saw this movie called Oblivion, and it had that famous actor in it. Oh, what’s his
name? He’s been in all of those movies, like The Shawshank Redemption and The Dark
Knight trilogy. I think he’s even won an Oscar. Oh gosh, I can picture his face in my mind, and
hear his distinctive voice, but I just can’t think of his name! This is going to bug me until I can
remember it!” This particular error can be so frustrating because you have the information right
on the tip of your tongue. Have you ever experienced this?

Now let’s take a look at the three errors of distortion: misattribution, suggestibility, and
bias. Misattribution happens when you confuse the source of your information. Let’s say
Alejandro was dating Lucia and they saw the first Hobbit movie together. Then they broke up and
Alejandro saw the second Hobbit movie with someone else. Later that year, Alejandro and Lucia
get back together. One day, they are discussing how the Hobbit books and movies are different
and Alejandro says to Lucia, “I loved watching the second movie with you and seeing you jump
out of your seat during that super scary part.” When Lucia responded with a puzzled and then
angry look, Alejandro realized he’d committed the error of misattribution.

What if someone is a victim of rape shortly after watching a television program? Is it possible that
the victim could actually blame the rape on the person she saw on television because of
misattribution? This is exactly what happened to Donald Thomson.

Australian eyewitness expert Donald Thomson appeared on a live TV discussion about

the unreliability of eyewitness memory. He was later arrested, placed in a lineup and
identified by a victim as the man who had raped her. The police charged Thomson
although the rape had occurred at the time he was on TV. They dismissed his alibi that he
was in plain view of a TV audience and in the company of the other discussants, including
an assistant commissioner of police. . .. Eventually, the investigators discovered that the
rapist had attacked the woman as she was watching TV—the very program on which
Thomson had appeared. Authorities eventually cleared Thomson. The woman had
confused the rapist’s face with the face that she had seen on TV. (Baddeley, 2004, p. 133)

The second distortion error is suggestibility. Suggestibility is similar to misattribution, since it also
involves false memories, but it’s different. With misattribution you create the false memory
entirely on your own, which is what the victim did in the Donald Thomson case above. With
suggestibility, it comes from someone else, such as a therapist or police interviewer asking leading
questions of a witness during an interview.

Memories can also be affected by bias, which is the final distortion error. Schacter (2001) says that
your feelings and view of the world can actually distort your memory of past events. There are
several types of bias:

Stereotypical bias involves racial and gender biases. For example, when Asian American and
European American research participants were presented with a list of names, they more frequently

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incorrectly remembered typical African American names such as Jamal and Tyrone to be
associated with the occupation basketball player, and they more frequently incorrectly
remembered typical White names such as Greg and Howard to be associated with the occupation
of politician (Payne, Jacoby, & Lambert, 2004).

Egocentric bias involves enhancing our memories of the past (Payne et al., 2004). Did you really
score the winning goal in that big soccer match, or did you just assist?

Hindsight bias happens when we think an outcome was inevitable after the fact. This is the “I knew
it all along” phenomenon. The reconstructive nature of memory contributes to hindsight bias
(Carli, 1999). We remember untrue events that seem to confirm that we knew the outcome all
along.

Have you ever had a song play over and over in your head? How about a memory of a traumatic
event, something you really do not want to think about? When you keep remembering something,
to the point where you can’t “get it out of your head” and it interferes with your ability to
concentrate on other things, it is called persistence. It’s Schacter’s seventh and last memory error.
It’s actually a failure of our memory system because we involuntarily recall unwanted memories,
particularly unpleasant ones. For instance, you witness a horrific car accident on the way to work
one morning, and you can’t concentrate on work because you keep remembering the scene.

Many veterans of military conflicts involuntarily recall unwanted, unpleasant

memories. (credit: Department of Defense photo by U.S. Air Force Tech. Sgt.
Michael R. Holzworth)

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Interference

Sometimes information is stored in our memory, but for some reason it is inaccessible. This is
known as interference, and there are two types: proactive interference and retroactive interference.
Have you ever gotten a new phone number or moved to a new address, but right after you tell
people the old (and wrong) phone number or address? When the new year starts, do you find you
accidentally write the previous year? These are examples of proactive interference: when old
information hinders the recall of newly learned information. Retroactive interference happens
when information learned more recently hinders the recall of older information. For example, this
week you are studying about Freud’s Psychoanalytic Theory. Next week you study the humanistic
perspective of Maslow and Rogers. Thereafter, you have trouble remembering Freud’s
Psychosexual Stages of Development because you can only remember Maslow’s Hierarchy of
Needs.

Sometimes forgetting is caused by a failure to retrieve information. This can

be due to interference, either retroactive or proactive.

Summary

All of us at times have felt dismayed, frustrated, and even embarrassed when our memories have
failed us. Our memory is flexible and prone to many errors, which is why eyewitness testimony
has been found to be largely unreliable. There are several reasons why forgetting occurs. In cases
of brain trauma or disease, forgetting may be due to amnesia. Another reason we forget is due to
encoding failure. We can’t remember something if we never stored it in our memory in the first
place. Schacter presents seven memory errors that also contribute to forgetting. Sometimes,
information is actually stored in our memory, but we cannot access it due to interference. Proactive
interference happens when old information hinders the recall of newly learned information.
Retroactive interference happens when information learned more recently hinders the recall of
older information.

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