NBC suspended Brian Williams for six months for a bout of misremembering[1]. The electronic media hardly skipped a sine wave. David Brooks thinks that the public reaction was “barbaric” [sic][2], and counseled more empathy. Indeed, some commentators jumped on Williams’ apology as an admission of lying.[3] Science Times writer Parker-Pope more charitably asked whether Brian Williams was a victim of false memory[4]. The media fretted that Williams, their most trustworthy voice and face, had undermined the public’s trust in the major news services. Why worry though? There was little trust in the nightly news programs that serve up news as entertainment.
Memory is key to what trial lawyers do in presenting evidence in support of historical narrative about events that took place in the past. False memory, whether the innocent or guilty kind, is a major threat to the judicial system’s attempt to discern the truth based upon narrative testimony. Lawyers recognize that memories are fragile and subject to manipulation. The tenuous connection between past events and current recollection is an omnipresent challenge to the basic process of juridical fact finding. The most cynical members[5] of the bar, no doubt, exploit the amorphous quality of memory, but even at its best, memory can be a slender reed to support our judgments.
Consider the criminal prosecution against Adnan Syed, which turned on the dodgy testimony of Jay Wilds. As recounted in Sarah Koenig’s Serial podcasts, the State of Maryland tried Syed twice. The first trial ended in a mistrial before the case could be submitted to a jury. The murder charges turned on factual accounts of one witness, Jay Wilds, who gave a wildly different account each time he talked about his participation in the cover up of the murder of Hae Min Lee.
Koenig’s series not only breathed life into Syed’s efforts to obtain a hearing on his ineffective assistance challenge, but they demonstrated the power of hindsight and other cognitive bias in the criminal justice system, as well as in all human endeavors[6]. Witnesses, including Syed, struggled to give accurate accounts of past events, even a few weeks after the fact, whatever that was.
Every lawyer who has tried cases can recount instances in which witnesses failed to recall, or recalled erroneously, essential facts in the litigation. In one recent case I had in upstate New York, a witness, who appeared very honest to the defense counsel in the deposition room, testified that he had never seen or read any warnings concerning crystalline silica in the pottery factory, where had worked for several decades. When the employer produced documents from its safety program, the documentary record showed that the plaintiff sat on a safety committee, and that he had helped to prepare safety warning placards for the workplace. Memories are like that, especially when they are inconvenient.
In 2013, Mauro Costa-Mattioli and his research group showed that actin polymerization, fostered by the mTORC2 pathway, is essential for long-term memory in mice and flies. See Wei Huang,Ping Jun Zhu, Shixing Zhang, Hongyi Zhou, Loredana Stoica, Mauricio Galiano, Krešimir Krnjević, Gregg Roman & Mauro Costa-Mattioli, “mTORC2 controls actin polymerization required for consolidation of long term memory,” 16 Nature Neurosci. 441 (2013). Well, perhaps Brian Williams simply had a surfeit of actin polymerization working to remodel his memory in a false and misleading way? And perhaps my plaintiff had a deficit of actin remodeling of his neurons?
[2] David Brooks, “The Act of Rigorous Forgiving,” N.Y. Times (Feb. 10, 2015). Brooks would probably think this use of “sic” was barbaric rather than merely barbarous pedantry in pointing out a diction error.
[3] “NBC’S Brian Williams admits on air to lying: Apologizes for bogus story of his ‛personal heroics’.”
[4] Tara Parker-Pope, “Was Brian Williams a Victim of False Memory?” N.Y. Times (Feb. 9, 2015). (The print edition contained a different, more biting headline: “False Memory vs. Bald Faced Lie”).
[5] See “Preparing for your deposition” a.k.a. the Baron & Budd asbestos memo” Wikipedia; Walter Olson, “Thanks for the Memories: How lawyers get the testimony they want,” Reason (June 1998).
[6] Not everyone agrees. JaneAnne Murray, a lawyer with criminal defense experience, took a surprising approach in suggesting that Adnan Syed should have pleaded guilty, in part because the prosecution’s case against Syed was strong. See JaneAnne Murray, “Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty,” N.Y. Times (Jan. 22, 2015) (“In this case, the injustice may lie not in the conviction, but in the failure to negotiate the charges. The unstructured presentation of the facts in “Serial” obscured a strong case for the prosecution.”). Actually, Koenig’s Serial podcasts appeared to play down the strength of the defense, and what should and could have been done with the testimony of the chief prosecution witness, Jay Wilds. Koenig lauded Syed’s defense lawyer, Cristina Gutierrez, as having a reputation for brillance, which seemed conspicuously absent in the segments of trial tapes excerpted on Serial. In any event, the Maryland Special Court of Appeals has only recently granted Syed an appeal on his claim for post-conviction relief. Emma G. Fitzsimmons, “Appeal to Be Heard in ‘Serial’ Murder Case,” N.Y. Times (Feb. 7, 2015).
