Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial

by Elizabeth F. Loftus, Katherine Ketcham

"The study of memory had become my specialty, my passion. In the next few years I wrote dozens of papers about how memory works and how it fails, but unlike most researchers studying memory, my work kept reaching out into the real world. To what extent, I wondered, could a person's memory be shaped by suggestion? When people witness a serious automobile accident, how accurate is their recollection of the facts? If a witness is questioned by a police officer, will the manner of questioning alter the representation of the memory? Can memories be supplemented with additional, false information?"

The "passion" Loftus describes in the lines above led her to a teaching career at the University of Washington and, perhaps more importantly, into hundreds of courtrooms as an expert witness on the fallibility of eyewitness accounts. As she has explained in numerous trials, and as she convincingly argues in this absorbing book, eyewitness accounts can be and often are so distorted that they no longer resemble the truth.

Genres: Psychology, Nonfiction, Science, Crime, True Crime, Law

312 pages, Paperback

First published January 1, 1991

About the author

Elizabeth F. Loftus is an American cognitive psychologist and expert on human memory. She has conducted extensive research on the malleability of human memory. As well as her prolific work inside the laboratory, Loftus has been heavily involved in applying her research to legal settings; she has consulted or provided expert witness testimony for hundreds of cases. Loftus has been recognized throughout the world for her work, receiving numerous awards and honorary degrees. In 2002, Loftus was ranked 58th in the Review of General Psychology’s list of the 100 most influential psychological researchers of the 20th century, and was the highest ranked woman on the list.

Appeared on TED in June 2013
http://www.ted.com/talks/elizabeth_lo...

Loftus received her Bachelor of Arts degree in mathematics and psychology with highest honors from the University of California, Los Angeles in 1966. She received her MA in 1967 and Ph.D in 1970 (both in mathematical psychology and both from Stanford University). She has taught at many universities, including the University of California at Irvine and the University of Washington. Loftus has been the president of the Association for Psychological Science (1998–99), the Western Psychological Association (1984, 2004-5), and the American Psychology-Law Society.

Reviews

[Bonsai]

I wanted straightforward non-fiction about how and WHY eyewitnesses' memories work or fail in a courtroom setting. This had too much dialog and description (which I suspect were invented to give a more fiction-y style) and not enough science for my purposes.

[Alaíde Ventura · Rating 4 out of 5]

Está bien narrado, sencillo y directo. Es como ver una serie documental light de Netflix, de esas que, como sí les entiendes, te hacen sentir inteligente.

[Amy · Rating 4 out of 5]

This was another good book from college. Loftus was my professor, and although she was an excellent professor, I was surprised to find that she is an excellent writer as well. This book tells of her experience testifying as an expert on how the mind works, addressing questions of supressed memories and the accuracy of a person's recollections.

[Katherine · Rating 4 out of 5]

A really good, but deeply depressing book on how memory and eyewitness testimony can ruin lives. Less a treatise on memory, this book is more an autobiography focusing on Dr. Loftus' work as an expert witness for defendants in criminal trials. I particularly appreciated the insight into why she did the work she did, how she chose the clients to testify for, and even her troubling refusal to participate in the Demjanjuk trial.

The depressing parts of this book are the descriptions of the absolute destruction of people's lives. And this damage isn't only inflicted on those who were falsely accused and/or convicted, but the victims themselves. In one case, children's mothers essentially convinced their children that they were sexually abused by a camp counselor. Now these children have to live their whole lives not only convinced that this horrible abuse happened, but the person they are sure committed the abuse got away with it. Another victim, this time of rape, was so convinced that her identification of her assailant was correct that when another man actually confessed to the crime she refused to believe him. This long-lasting victimization of those who were already victims is heart-breaking.

The other depressing part of this book is that, despite being written in 1991, it doesn't seem like much has changed. People are still falsely accused and convicted based solely on eyewitness accounts. Luckily, we now have DNA evidence that can help exonerate the falsely convicted, but the process is still insanely expensive both in dollars spent and lives ruined. Even with no active malfeasance on the part of police and prosecutors, people are sent to prison or, if found not guilty, must live the rest of their lives with that suspicion hanging over them. And the victims of the original crime never get the justice they deserve.

Because I read the paper edition of this book, I will include my highlights here:

That's the frightening part - the truly horrifying idea that our memories can be changed, inextricably altered, and that what we think we know, what we believe with all our hearts, is not necessarily the truth. p. 13

Truth and reality, when seen through the filter of our memories, are not objective facts but subjective, interpretative realities. p. 20

When the police have a suspect, they often show the witness a photo array and produce the actual lineup only if an identification is made. Almost invariable, only the person identified from the photo lineup also appears in the in-person lineup, and almost invariably the witness identifies the person he saw in the photos. This is called a "phot0-biased lineup," and the chances of a mistaken identification rise dramatically in such a situation. p. 26

"We are a society that, every fifty years or so, is afflicted by some paroxysm of virtue - an orgy of self-cleansing through which evil of one kind or another is cast out. From the witch-hunts of Salem to the communist hunts of the McCarthy era to the current shrill fixation on child abuse, there runs a common thread of moral hysteria." quote by Dorothy Rabinowitz p. 127

"Justice would less often miscarry if all who are to weigh evidence were more conscious of the treachery of human memory. Yes, it can be said that, while the court makes the fullest use of all the modern scientific methods when, for instance, a drop of dried blood is to be examined in a murder case, the same court is completely satisfied with the most unscientific and haphazard methods of common prejudice and ignorance when a mental product, especially the memory report of a witness, is to be examined." quote by Hugo Musterberg p. 156

Most people are unaware that new information can influence their original recollection of an event. They don't know that as we take new information in, it is gradually incorporated into our original memory. Believing that this metamorphosed memory is and always has been the real memory, the true, unalterable, indivisible copy of our primary experience all those months or years ago, we become fiercely committed to it. p. 168

What happened in those two months to change [the witness'] mind? He'd seen pictures of Mr. Haupt, he'd read descriptions of the suspect, and he knew that he was looking for a man with a pronounced bald spot. His original memory of a full head of hair was wiped out, erased, by this new information, and the bald spot nestled comfortably into his memory, becoming in his mind the real and original memory. p. 168

Like most people, jurors tend to believe there is a strong relationship between how confident a witness is and how accurate he or she is. p. 170

But if he was innocent. To sit there and feel the cold stares of people who immediately presume your guilt. To be forced to participate in the anguish of the victims, to know that your face is the face in their nightmares, the face they have come to hate. p. 202

Fear turns inward; it eats your soul. Anger can be directed outward, toward others. p. 204

[Greg · Rating 5 out of 5]

Fascinating enough that I read it in just a couple of days. I knew some of it, but parts, such as the fact that many line ups for identification are not only not blinded, but the witness will often have been shown a picture of the suspect before the line up, but won't have seen any of the others before, to be truly appalling.
It also emphasised the extent to which juries seem to ignore the "beyond reasonable doubt" part of their duty, and instead are content to go with "yeah, he probably did it" or even "well, the police arrested him and the defence haven't proved he didn't do it" as their criteria

[Reix · Rating 5 out of 5]

A must-read

[Jim · Rating 5 out of 5]

Both fascinating and terrifying at the same time, this is a memoir of sorts, from Dr. Elizabeth F. Loftus, who writes about her experiences as an expert witness for defendants in cases where eyewitness testimony ranged from sketchy to downright incorrect.

I’m pretty sure I added this book to my “To Read” list 7 years ago. I’m not sure why (as I usually don’t enjoy non-fiction) but I’m guessing that I either heard this mentioned on NPR on possibly referenced in another book. Whichever the case, I’m glad I finally got around to reading it.

When I said that this book is terrifying, it’s in two different ways. 1. The crimes themselves were all very horrific, and Loftus doesn’t sugar-coat any of it. But 2. In almost every case mentioned, the defendant was mistakenly identified and often had their lives ruined as a result. It’s a hard line to walk between acknowledging the severity of a crime as well as the victims, and realizing that (in America) we are innocent until proven guilty. Unfortunately, in many of these cases, it appears that the defendants were guilty until proven innocent.

Several of the trials which Loftus was called in for were very high profile (especially at the time). Ted Bundy is probably the most recognizable, but many of the other cases she discusses made national and international headlines. The writing felt a little clunky at times, but overall once I started a chapter, I couldn’t put the book down until I finished. I was instantly invested in these cases and needed to know the outcome.

This was definitely a captivating read, and something that will stick with me for a long time. I don’t think I could ever do what Loftus does, and I’m glad that there are people like her out there in the world. If you have any interest in the legal system, true-crime, or how the human mind works, you’ll probably love this book.

[Edgar Asatryan · Rating 3 out of 5]

Eventually, I read a book about the common myth according to which memory is treated as a durable, immutable snapshot. It's rather a simplistic view. The author shows the memorizing process is more about integration and creativity rather than exact snapshotting. This means that future information can affect (and actually it does) one's memory. We are told about these concepts mostly through the direct speech of the author serving as an expert witness in a court. Concurrently, we become familiar with sophisticated cases, but it’s not a classic detective unraveling; but a sight from a defense standpoint.

[Maria · Rating 4 out of 5]

4/5 stars:

Este es un libro que me he leído como lectura opcional para mi clase de Psicología Jurídica y me ha encantado. Esta escrito de una manera bastante narrativa para ser un libro "especializado" y "científico" así que lo recomendaría incluso en personas que no estudian Psicología o ciencias parecidas.

[Crystal Swenson · Rating 4 out of 5]

Elizabeth Loftus is an interesting person. This book was an eye opener as to the trials and struggles that one can encounter. Also that the mind is a tricky thing and must be viewed as a complex organ. Not all the time can we rely on something we believe has all the answers.

[Christy · Rating 5 out of 5]

The most essential book to my undergrad psychology degree.

[Fishface · Rating 3 out of 5]

A very good, interesting and disturbing read. Explains why eyewitness testimony, normally the most trusted type of courtroom evidence, is in fact the least reliable kind. Well worth reading.

[Ángela C. · Rating 2 out of 5]

El tema es interesante pero el libro es MUY repetitivo.

[Emg · Rating 3 out of 5]

Repetitious, depressing but interesting.

[Steven H · Rating 5 out of 5]

THE FAMED PSYCHOLOGIST OF MEMORY RECOUNTS COURT CASES

Elizabeth F. Loftus is an American psychologist and expert on human memory, and is currently a professor at UC Irvine. She has conducted extensive research on the misinformation effect and the nature of false memories (see her books, 'Memory' and 'The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse').

Coauthor Katherine Ketcham stated in the "Author's Note" of this 1991 book, "[This] is a collection of true stories based on Dr. Elizabeth Loftus's personal experiences as an expert witness. It is our goal to use these real-life courtroom dramas as a vehicle for conveying information about psychology in general and memory in particular... Although we have struggled to correct obvious biases and base our accounts on the known and undisputed facts, it is unavoidable that these retrospective interpretations contain memory flaws. We know all too well from the psychological research and the experience of writing this book that memory is not always the same thing as the truth." (Pg. xiii-xiv)

Loftus notes, "In my studies, a subject's reported confidence for suggested or imagined memories is often as great as that reported for memories based on actual perceptions... subtle differences do exist between perceived and suggested memories, but ... most people are unable to detect these differences. In other words, when people remember something, they tend to believe it's the truth. And when they describe their memories, their reports can be so realistic and detailed that someone listening (like a juror) tends to think that the memory is, in fact, real." (Pg. 117)

She states, "Should a psychologist in a court of law act as an advocate for the defense or as impartial educator? My answer to that question, if I am completely honest, is BOTH. If I believe a defendant is innocent, if I believe in his innocence with all my heart and soul, then I probably can't help but become an advocate of sorts." (Pg. 238)

They summarize about one case, "The State of Washington spend hundreds of thousands of dollars and thousands of man-hours in its attempt to prove that [the accused] was guilty, and in the end, after forty-one months, it failed. Theoretically, [he] is innocent, because the state failed in its attempt to prove guilt... But [his] reputation has been sullied in the three and a half years since he was first accused... there will always be people who believe that [he] got off on a technicality, that he slipped through the system because the system is too 'kind' to criminals." (Pg. 281)

This is an interesting book, that will be of particular value to anyone studying the "recovered memory" controversy.

[Mrs. Read · Rating 5 out of 5]

I first heard of Elizabeth Loftus in 1990 when she testified about repressed/recovered memory in a California murder trial in which the sole inculpatory evidence was a woman’s sudden “recovery” of a “memory” of watching her father rape and murder a child twenty years previously. Loftus’ research had convinced her that memory doesn’t work that way; it is never “retrieved,” but is inevitably an easily-influenced reconstruction of past events based on disconnected (and sometimes spurious) facts. Her now widely-accepted position was extremely controversial (this was a time when tens of thousands of families had been torn apart - many permanently - by the therapist-assisted recollection of long-submerged memories of sexual abuse. Those unfamiliar with that period have no idea how widespread and pernicious this hysteria was.) and it launched a career in which giving expert testimony on the subject was added to research and teaching (she was a tenured psychology professor at the University of Washington). This book, Witness for the Defense, is a fascinating account of some of the cases in which she testified. It raises some really important questions which she does not even address (for example, if a rape victim’s memory is not dispositive and there is no DNA available, how can society protect itself against rapists?). She touches on the problem of loosing the guilty* by highlighting genuine flaws in the eyewitness testimony. This is more philosophical than forensic a point, and certainly deserves consideration somewhere. Meanwhile Loftus’ book is highly recommended.

*at one point in the book she cites the truth that “confidence and accuracy aren’t always associated”. What she writes about Timothy Henning’s retrial (chapter 5) is interesting in light of that.

[Mike Lund · Rating 4 out of 5]

Interesting, informative and well written.

I was originally looking for something more technical but still understandable to the lay reader. Elisabeth Loftus is a cognitive psychologist and expert on memory, including malleability of memory, the misinformation effect, false memories, and recovered memories. This is more Dateline or 20-20. Each chapter detailing a crime with little physical evidence and primarily relying on eye witness testimony. Its hard to believe prosecutors would have brought some of these cases to trial let alone get a conviction. Dr Loftus primarily testified for the defense and used to add balance to the eye witness’s testimony. Memory is malleable. Many things effect what and how we remember. Although the bulk of the book is about the criminal cases she testified in, she details the research used to base her testimonies on. In many ways this was more effective because it gave an example of how information derived in research and laboratory studies can be applied to real life cases.

[Paul · Rating 5 out of 5]

An excellent series of narratives showing the imprecision and sometimes wrongness of witness identifications through various legal anecdotes that show people who were mostly exonerated after being railroaded into guilty verdicts by eyewitnesses whose testimony was interfered with by subsequent events in their lives, by police coaching, or by refusing to change their testimony even after another person has confessed to the crime.

An absorbing psychological study of eyewitness error. The author even admits that the first time she saw Ted Bundy, he seemed just adorable--and she's the psychologist.

The work is a 1991 publication, so the references are quite outdated, but this version was reprinted in 2015.

[Jarred · Rating 3 out of 5]

Good case study/application of how memory and the misinformation effect works. Probably best for niche audiences already interested in the subject. Like many collections of case studies, some are more interesting than others. Overall good for looking at application of memory research on the legal eyewitness scenario.

[Paul Hunter · Rating 5 out of 5]

Excellent presentation on memory from a person who has provided expert testimony at many criminal trials and has conducted years of research on memory. You'll never look at eyewitness testimony the same after you read this.

[Peejay(Pamela) · Rating 4 out of 5]

A very interesting look at the process and consequences of distorted memories (not through our own fault). Not the best written book ever, but interesting in spite of occasional awkward phrases and lack,p of better editing.

[Joseph Schifilliti · Rating 5 out of 5]

good critique of how memories can alter

Spoke is a nice combination of memoir and an explanation of psychological theories about memory. Basically, it seems that memories, like photographs, can undergo alteration, and a Photoshop sort of manner.

[Beatriz · Rating 5 out of 5]

Muy bueno en el ámbito pericial

[Matthew Tszen · Rating 5 out of 5]

Обязательна к прочтению всеми, кто связан с уголовным судопроизводством: судьям, адвокатам, прокурорам, следователям.

[J G · Rating 5 out of 5]

Muy buena lectura sobre la memoria.
Repaso de casos en los que ha intervenido uns gran especialista.

Muy recomendable 👌

[Al Johnson · Rating 4 out of 5]

Dr. Loftus of the University of Seattle has been a pioneer since the 70s of researching and understanding how memory actually works. From breaking commonly held myths to exploring in her later book (The Myth of Repressed Memory), how memories can actually be shaped to appear real, her understanding of this is critical to the Justice System and how we prosecute and defend. Witness for the Defense is an excellent collection of cases Dr. Loftus has been called in to testify on. The scale of innocent persons that are prosecuted and jailed based upon witness testimony, sometimes only from tenuous or improbable memory is indeed frightening. Having worked a form of investigations (post blast bombings), even at the scene of incidents many times it became clear that memories are the least dependable form of evidence available, yet many times the most relied upon in court proceedings and the court of public opinion.

The books layout was easy to read with a short introduction and overview to the research, methodology, and findings followed by very readable chapters highlighting individual cases. A must read for anyone interested in this fascinating field.

[Tia · Rating 5 out of 5]

It's a tough job but somebody's got to do it.

[Kate · Rating 3 out of 5]

I read this for the honors program. It was actually interesting, and made me rethink the whole idea of witness testimony.

[riley · Rating 4 out of 5]

Great overview of the courts from an expert witnesses POV. Very defense minded. Really enjoyed the individual court cases that were talked about whether or not the author was allowed to testify.