A problem for the legal system - False memory

Many investigations have been conducted to determine the accuracy and malleability of memory. Encoding information may be tampered with, resulting in false memory. Legal systems rely largely on eyewitness recall, which may or may not be reliable. Legal systems rely heavily on information provided by witnesses to make decisions without confirming the source of the information. Witnesses made fraudulent claims and provided misleading evidence, resulting in an incorrect verdict and sentence. Witnesses' misleading memories have resulted in people being condemned to prison. Loftus and other academics recognized a number of issues linked to false memory in the legal system, as well as the implications for victims. Human memory is so dynamic and constructive in its operation. The brain is capable of altering the stored information without any conscious awareness. Similarly, memory storage and the process of retrieval depend on numerous factors. Consequently, reliance by the legal systems on eyewitnesses has brought endless controversies on the authenticity and accuracy of the information before the court. This paper will analyze how human mind operates and the consequences of false memory in the legal system

False memory: A problem for the legal system

The brain is part of the nervous system and mostly found in all vertebrates and majority of invertebrates. Memory has been defined as the ability of a person to encode, store the encoded information and retain it before recalling the information. The brain is the central organ of the nervous system is located in the head close to sensory organs and used for sense and vision. Memory is part of the mind which is responsible for encoding, storing and retrieving information (Bjork, 2014). Memory is essential and associated with the limbic systems and can be defined as the process of retaining information for a specific duration for future purpose. Memory is categorized into explicit and implicit. There are threemajor forms of memory explicitly; sensory memory, the short-term and long-term memory (Bjork, 2014). False memory has led to misleading information which affects the original memory through displacing the actual data. False memory in the legal system has serious consequences and has contributed to the sentencing of innocent victims. The practice of relying on eyewitness's information by courts requires proper investigation to verify the source of information. Eyewitnesses have presented misleading information due to false memory, and many people are in jails due to the presentation of unverified information from the eyewitness which relies majorly on consciousness (Loftus & Pickrell, 1995).

False memory is the psychological phenomenon that involves recalling things that did happen. According to Loftus, it is essential to inform jurors and make them aware of the imperfect nature of human memory and fallibility of eyewitnesses giving false testimony as a result of poor memory (Loftus & Palmer, 1996). The human, the cerebral cortex plays a very critical role and contains about 15-34 billions of neutrons that are connected to synapses. Neurons communicate with each other through the long protoplasmic fibers known as axons. The principal function of the brain controls all the organs in the body including human memory. It is one of the most complex organs in the body system and has over 100 billion of nerves which are responsible for communication with the synapses (Loftus, 1975).

Psychologist and biological scientist have tried to understand the complexity of the brain and more studies are still being done to explore the context. Human beings may recall information from sensory memory, short-term and long-term memory depending on their ability to remember (Loftus, 1975). Information is recorded and stored in various parts of the brain. The process of memory starts from encoding, storage and retrieving the information. The ability to recall the previous experiences and retrieve the data for imminent purpose depends on several factors such as age, gender and the situation during the encoding process.

Types of memories

Human beings operate in daily activities and the brain is ever working throughout without rest. There different types of memory with a specific mode of operation. The process of memory begins from encoding information, storage and retrieving the data. After encoding information, it is stored in sensory for a few seconds before moving to short-term memory and then to long-term memory(Loftus, 1975). There are different models used to shows the process of memory. Memorization of information depends on mental processing (Branerd & Mojadin, 2012).

Sensory memory takes place less than one second after perceiving an object. Sensory memory holds the acoustic data for less than one second immediately after an object has been perceived. An individual is likely to look at the object or item in less than a second. Sensory memory is associated with immediate observation and memorization. It occurs under cognitive control and is an automatic response.

Short-term memory is the working memory and individuals can recall different events for several seconds to one minute. The size of the short-term memory is always limited and depends on acoustic codes to store information (Branerd & Mojadin, 2012). Long-term memory stores information for a more extended period or until death. Long-term memory, unlike short-term and sensory memories, has a larger capacity. The capacity of long-term memory is not limited unlike sensory and short-term (Brainerd & Reyna, 2005). Memories are also categorized into episodic and semantic as shown below.

Source: Bjork, R. A. (2014). Human Memory: Types of memories, 185.

False Memory

False memory can be defined as a phenomenon whereby individuals can recall memories that do not take place (De Rivira, 2014). According to Elizabeth Loftus, false memory has led to the presentation of misleading information especially when the witnesses cannot remember totally (Loftus, 1975). False memories are typically associated with Child Sexual Abuse (CSA) and distortion relocation of the event (Loftus & Palmer, 1996). Besides, false memories have also led to the prosecution of other offenders such accident witnesses, robbery, rape cases and other criminal activities. The false memory could be triggered by the misinformation and as well as the misattribution of the information source. Different research designs can be used to ascertain false memory in Child Sexual Abuse (CSA) (Loftus & Pickrell, 1995).

False memories are semantic or autobiographic memories that did not happen. The presence of false memories is a test not just of our self-saw capacity to record truth and reports it as indicated by some goal standard, additionally brings up issues of non-conscious inspirations. The comprehension of false memories is not just essential as a window to the non-conscious however can likewise prompt first bits of knowledge into the instruments of mind. Sexual abuse is a terrible thing, and the victims are frequently exposed to depression, trauma, and helplessness (Loftus, 1975). Consequently, such cases happen to persuade the victims to looks for assistance from a psychotherapist help them from the anxiety caused depression and lack of self-esteem. At this stage, the victim has no cognizant memories of steadily being the casualty of childhood sexual abuse and is probably going to dismiss any proposal of such abuse immovably. To a particular kind of good-natured psychotherapist, in any case, such dissent is itself proving that the injury indeed occurred.

Some neuroscientists and psychologist asserts that memories encoded during terrifying events such as murder or rapes are accurate. They ascertained their findings by arguing that information encoded during stressful moments or violence are well-encoded and are retrieved with accuracy (Branerd & Mojadin, 2012). Memories are encoded during through the patterns of the synopsis in the synaptic connectivity within the neurons. Loftus and other scientist disagree with the idea that memories information encoded during stress or terrible moments are indelible and confidentially retrieved as an argument by some neuroscientist (Loftus, 1975). Lawyers, judges, and jurors should not use the perception to make verdict but verify the authenticity of the information presented by witnesses. There is probability the witnesses are presenting information or evidence retrieved as false memories.

Loftus further asserts that juries and lawyers make mistakes by relying on the information presented to them by eyewitnesses. The juries are not aware of false memories, and more studies should be done in the legal systems to establish the accuracy of information presented by eyewitnesses to avoid wrong judgment which may lead to the prosecution of innocent people. Many people are sentenced and have spent years in jail due to information provided by eyewitnesses that are not accurate, verifiable and considered false memory (Loftus & Pickrell, 1995).

To conclude, the judicial systems should find the best way of differentiating between false memories and actual memory. Courts continue to rely on the information provided by eyewitnesses without considering false memories. The reliance of the courts on witnesses should be placed in check by the judicial system and attorney generals. Loftus findings and assertions should be highly considered by the legal systems to avoid prosecuting innocent people due to false memory. Loftus believes that memory of the eyewitnesses could have been tampered with and the accuracy of the information before the court cannot be verified as authentic. The false memory remains a more significant problem in the legal system, and more research should be done to ascertain the accuracy of any information presented before the court as evidence.


Source: Bjork, R. A. (2014). Human Memory: Types of memories in human beings, 185.

Brainerd, C. J., & Reyna, V. F. (2005). The science of false memory. Oxford University Press.

Brainerd, C. J., Reyna, V. F., & Ceci, S. J. (2008). Developmental reversals in false memory: A review of data and theory. Psychological bulletin, 134(3), 343.

Branerd, D,J. & Mojadin, A.G. (2012). False Memory in Children: Long duration persistence and testing effects. Child Development, 69(5), 1361-1377.

De Rivira, P. (2014). The effects of false memory syndrome: The experience of false accusation 8(4), 271-292.

Loftus, E. F. (1975). Leading questions and the eyewitness report. Cognitive psychology, 7(4), 560-572.

Loftus, E. F., & Palmer, J. C. (1996). Eyewitness testimony. In Introducing Psychological Research (pp. 305-309). Macmillan Education UK.

Loftus, E. F., & Pickrell, J. E. (1995). The formation of false memories. Psychiatric annals, 25(12), 720-725.

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