Trial lawyers spend much of their professional existence trying to prove that a witness’ or party’s testimony is not truthful – that the party or witness is lying. We seek out and use documents, photos and ESI that are contrary to the witness’s current testimony to call the witness’ credibility into question. We depose witnesses to get their story “under oath” in case they change their testimony at trial. When a party testifies differently from his deposition testimony or other previous statement on a material point, we go on the attack! “Do you recall giving deposition testimony in this case? And, you gave that testimony under oath, right? You swore to tell the truth at that deposition just like you did in front of this jury today, right?” Then, we point out the inconsistencies between the deposition testimony and the trial testimony, and stride triumphantly back to our counsel table having decimated the opponent. Come on, admit it, don’t we all just love catching the opposing party in a bald-faced lie in front of a jury entranced by the real-life conflict playing out in front of them. “Ladies and gentlemen of the jury, he’s a liar – he says one thing one time and another thing another time – and all under oath – don’t believe him!”
But, what if the witness’ current testimony, while materially different from her previous testimony, is no less “truthful” than the previous impeaching testimony was when given? What if a witness testifying differently at different times about a past event was still telling the “truth” each time? Wouldn’t that undercut the whole premise of what trial attorneys spend much of their time doing – using the contrast between a witness’s testimony at trial and her testimony or statements at prior times to suggest the witness is a liar? It appears that may just be the case. In fact, it may be worse than you think. According to neuroscientists at Northwestern University Feinberg School of Medicine in a study recently published in the Journal of Neurosceince (Hippocampal Binding of Novel Information with Dominant Memory Traces Can Support Both Memory Stability and Change by Donna J. Bridge and Joel L. Voss, Journal of Neuroscience, February 5, 2014), your memory regularly rewrites the past with current information, updating your recollections with new experiences. When a memory is recalled, the brain updates that memory in light of current salient facts – “… all memory is adaptively tuned to information that is currently salient.”
In a layman’s discussion of the study (“How Your Memory Rewrites Your Past.” by Marla Paul, Northwestern University News, February 4, 2014), Donna Jo Bridge, one of its co-authors, states that “Our memory is not like a video camera. Your memory reframes and edits events to create a story to fit your current world. Its built to be current.” The co-author notes the study’s implications for eyewitness court testimony – “our memory is built to change, not regurgitate facts, so we are not very reliable witnesses”. The other study co-author, Joel Voss, says the notion of perfect memory is a myth. “Everyone likes to think of memory as this thing that lets us vividly remember our childhoods or what we did last week. But, memory is designed to help us make good decisions in the moment and, therefore, memory has to stay up-to-date. The information that is relevant right now can overwrite what was there to begin with.”
If this study, and these findings, are correct and generally applicable to everybody, it is profoundly disturbing. If this is correct, can a witness or party recollection of a past event or discussion ever be deemed reliable and credible, or, more pointedly, can we even lay a foundation of personal knowledge for a witness’ testimony about past events if that witness’ personal knowledge and memory of those events has been “updated” multiple times since the event she is recalling? Look at it this way, if an agreement was altered to reflect current facts and circumstances every time somebody read it, would such an agreement ever be admitted into evidence as reflective of the parties’ actual agreement at the time it was signed? Surely not. But it seems that may be exactly how the brain alters memories!
If this is true, are not contemporaneous-to-the-event-in-question agreements and writings perhaps the only credible evidence of the event in question; that is, unless the author’s memory of the event wasn’t recalled and “updated” between the event and the writing?
Is a party’s memory of a critical event “updated” to reflect current circumstances every time that party recalls and discusses those events with his attorney?
If a witness recalls an event at trial differently than she did in deposition a year earlier, is she really lying and simply giving truthful testimony both times based her then-current and -updated memory of those events?
If this is true, shouldn’t we have jury instructions that advise a jury to view testimony based upon memories of past events with much skepticism in that such memories are subject to change and not likely accurate evidence of the events recalled?
If you have a case which pits testimony about past events against contemporaneous documents memorializing those events, shouldn’t the documents always win. And, shouldn’t you be able to call one of these neuroscientists to give an expert opinion that, based upon their study, witness recollection of past events should never be believed over contemporaneous documents memorializing those events because the memories have likely been “rewritten” any number of times since the events and the documents presumably have not?
Given these findings, shouldn’t all integration clauses in all contracts be fully and strictly enforced, because current witness testimony about prior contractual intent is always suspect and likely incorrect?
I could go on and on. If these findings are correct and generally applicable to everybody, the permutations are endless and disturbing to the point that perhaps witnesses should never be allowed to testify based upon memories of past events because those memories could never actually reflect the event. Wow! Sure shakes things up a bit, doesn’t it?
This is all pretty troublesome and, frankly, warrants a great deal of serious thought about the quality and reliability of the evidence upon which triers of fact regularly decide cases – cases which bear profound significance not only to the litigants involved, but to us all.
All I can say now is – take a lot of pictures!