“Do you swear to tell the truth…or whatever it is you think you remember?”

The idea that memory is reconstructive and not reproductive – which dates back at least to the 1930s, when Frederic Bartlett published his classic book Remembering – has profound implications for the criminal justice system, as it raises questions about the reliability of eyewitness testimonies.

The BBC now reports that cognitive psychologist Martin Conway of the University of Leeds has called for “a major rethink of memory and the law” in a report written for the British Psychological Society and the Law Society.

The article also quotes prominent memory researcher Elizabeth Loftus of the University of California, Irvine as saying that courts of law should adopt a new oath for witnesses: “Do you swear to tell the truth, the whole truth, or whatever it is you think you remember?”

It goes on to provide examples of the innaccuracies in the statements made by those who witnessed the shooting of terrorist suspect Jean Charles de Menezes and then suggests the possibility that neuroimaging could one day be used to determine whether or not a suspect was ever present at a crime scene.



2 thoughts on ““Do you swear to tell the truth…or whatever it is you think you remember?”

  1. For some reason this reminds me on the (U.S.) laws on digital signatures, which let you legally “sign” things with a button click and what not, i.e. without a pen and paper. The law defines, for legal purposes, a valid digital signature as, basically, anything that you intended to be a signture.
    You want a button click to mean signature? Fine. How about selecting something from a menu? Fine. How about putting an “X” at the bottom of an email message? Fine too.
    Oddly enough the law got it exactly right: a signature in the end only means what you intend it to mean, so you might as well just define it that way. If memory is just what we imagine happened, there is really no point in courts pretending otherwise.

  2. Man, what a weird coincidence…I happened to read the quoted Loftus essay just last night in an anthology of the best American science and nature writing from 2002 (yeah, it’s taken a few years to rise to the top of the stack). Anyway, it’s excellent and recommended, and available in PDF here.

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