2.5 Questioning and Memory Retrieval

Remember that memory involves at least three things:

1. Original information—that which was perceived and understood at the time that the event happened.

2. External information—that which the observer later learned or was told but didn’t observe themselves.

3. Inferences that a person makes from what he observed which they then come to know as part of their memory of the event.

As psychologist Elizabeth Loftus explains in her research on human memory, external factors can create distortions that affect a person’s memory of an event.² She shows how cross-racial identification can be affected, how photos can be biased, how weapon focus can mislead, how the witness often unconsciously transfers other information directed at another person altogether onto the person they say they saw. She also shows how the witness’s previous expectations about what would happen can interfere with memory. Finally, while a certain amount of strong motivation or emotional arousal can heighten accuracy, at some point stress or fear interferes with ability of the witness to accurately observe an event in the first place.

More importantly for our purposes, Loftus also show how questions (and therefore questioners) themselves can affect memory. For example:

The way a question is phrased can affect estimates people will give. The question “Do you get headaches frequently, and if so, how often?” produces an average response of 2.2 times per week.

The question “Do you get headaches occasionally, and if so, how often?” changes the average response to 0.7 times week.

“Did you see a broken headlight?” versus “Did you see the broken headlight?” produces a response to the second question that is more likely to say he saw a broken headlight, even when there was none.

The way an earlier question is asked can influence the way later questions are answered.

Loftus showed that 17.3 percent of subjects will say they saw a barn, where there was no barn, if earlier asked, “How fast was the car going on the country road when it passed the barn?” Only 2.7 percent will see the barn when asked only “How fast was the car going on the country road?”

Look what happens when you change the verb in the question “How fast was the car going when it (verb) into the other car?” The question was designed to illicit a witness’s estimate of speed. The following chart shows how varying the verb can effect estimates of speed.

Look at what happens when people are asked about seeing stop signs. In a video showing “A” involved in an auto accident, where “A” had a stop sign, subjects were asked the following two questions: “How fast was “A” going when he turned right?,” and “How fast was “A” going when he ran the stop sign?” Later in the questionnaire, when asked whether they saw a stop sign, 35 percent of the first group said they saw a stop sign, and 53 percent of the second group said they did. The second group’s ability to recall seemed to be improved by the earlier question.

Questioners seem to be able to create things in some people’s minds. Subjects were shown a film of eight people in a classroom. After the film, half were asked, “Was the leader of the twelve people male or female?” Half were asked, “Was the leader of the four people male or female?” One week later, the first group was asked how many people were in the class—they said nine. The second group was asked the same question—they said six. They seemed to be averaging in response to the earlier question.

When asked “Did the demonstrators say anything?,” versus “Did the militants say anything?” one week later, the groups were more likely to remember violence of some sort.

People were even seen to change the colors they see. They will change blue to bluish green. If the car was blue, and if they were earlier asked a question that assumes the car’s color was green, they will answer “bluish green.”

Once people change their impressions, it becomes harder and harder for them to change back. Advertisers know it. Aetna and St. Paul insurance ads prove it. If juries have seen Aetna and St. Paul ads, even briefly, their awards are likely to be lowered. They import what they see into their understanding and it interferes with their judgment, and their view of the facts. Of course this is nothing new, but Loftus places squarely before lawyers the ethical problems of manipulating witnesses into telling different stories about past events.

Loftus teaches us to look for ways the memory can be shaped. In his role as a fact-finder, the lawyer must be careful his witness’s memory hasn’t made them blind to the hard facts that may come back and contradict them later. 2.5.1 Fixes for Memory Inhibitors

One fix that Loftus herself suggests is to use memory flood. If the aim is to get the witness to accurately remember what occurred in the past, then he needs to be oriented to time and place before he reconstructs his memory about what happened. Your use of a time line or documents can greatly facilitate this process.

If, however, the lawyer does not want any recollection, he might reverse the inferences in his questions by first evoking the circumstances that might make it difficult for the witness to remember. For example, if it was dark, and things happened fast, or if it was along time ago, and a lot has happened since them, reminding the witness of these fact will suggest that the witness might not recall what happened and lead to a response that he doesn’t. From that, the witness might build an inference chain that he doesn’t know other more specific answers to what people said or heard or did.

Again, there is no magic here, and there is danger in trying to make a bad fact go away, when there are chances that it exists. Still, there are circumstances where the advocate in the lawyer with the borderline or hostile witness has an obligation to zealously represent the client. Where a witness remembers facts that run against the client’s memory, or seem to contradict other statements he has made, as a questioner, the lawyer must look hard for independent verification of the memory: other witnesses, whether the memory was recorded (and if so, where and when), and any other facts or circumstances that support the opposing witness’ view. (After all, we don’t want a witness to later say he saw the plaintiff drive the car to the side of the road, if our theory is that he died on impact.) But if there is no independent verification, and if the witness’s memory could have been affected by external information, it is the role of the advocate to discover that external information and to impeach the witness’s story. What the lawyer needs to be able to do is to move between roles; to be a rapport building, listening fact investigator, and a questioning, challenging, and creative advocate.