Verified by 
Key points
- Repeated leading questions can alter young children’s testimony.
- The memory of all individuals, including adults, is often inaccurate.
- Our minds can mix various experiences into a single memory.
The closest I came to serving on a jury was 20 years ago. When I was summoned for jury duty, my initial reaction was that it would be incredibly difficult, as it would require me to take time off from seeing patients. However, recognizing that jury duty is a privilege in our free society, I decided to fulfill my obligation and report. Fortunately, my employer at the time continued to pay me during my absence for jury service.
I was permitted to defer my jury duty for a couple of months, giving me the opportunity to block off a week of my schedule in case I was selected to serve. On the appointed day, I arrived at the courthouse to find that I was one of several dozen people who were summoned that day. We received a very slow and deliberate orientation before being directed to the jury selection room.
I was one of the first 12 people to be seated in the jury box. At that point, the voir dire began. In this phase of the trial, prospective jurors are questioned to help decide whether they can be fair and impartial. Both the prosecution and the defense have a certain number of jurors they can dismiss without giving a reason and can request the dismissal of any number of jurors for cause. For example, they may argue to the judge that a juror is likely to be biased or knows one of the attorneys involved in the case.
The case in which I was seated involved a 5-year-old girl who allegedly had been abused. As a pediatrician who counsels abused children, I was particularly interested in this case, hoping to learn from hearing details of abuse in a legal setting. The prosecutor's first question asked to all the jurors was, “Do you think you can believe a 5-year-old if she is the sole witness of a crime?”
Seven jurors before me answered affirmatively. However, when the question was presented to me, I said,
“Before deciding whether to believe a 5-year-old, I would want to be given details of how she was questioned beforehand. As a pediatrician, I have reviewed studies showing that when young children are asked leading questions repeatedly, they may change their answers based on what they think the questioner wants to hear. Also, I know that some children, upon changing their answers, may come to believe that their answers are true and even 'recollect' details of events that never took place.”
After my response, the attorneys huddled with the judge, and not only was I dismissed, but everyone in the jury room was dismissed as well. I suspected that I had “contaminated” the jury pool by providing valuable information as an expert in the care of children. I wondered if someone in the court wanted to prevent prospective jurors from hearing the important and relevant information I had presented. I suppose if I were an expert who had been called to testify in a trial, I could have been discredited as an unreliable expert, but that cannot be done with a prospective juror.
Since then, after learning more about how memories are formed, I think I would have added to my answer in the jury box. I would have said,
“Additionally, I have learned that the memory of all individuals, including adults, is often inaccurate. Our minds tend to remember only some aspects of events and then fill in the rest of the memory with plausible details. This explains why two people who witness the same event might form quite different memories. This is also the reason I believe that no one should ever be convicted beyond a reasonable doubt (the standard for criminal trials) based on the memory of a single eyewitness.”
Unfortunately, there have been many confirmed cases in which eyewitnesses erroneously identified defendants as having committed a crime, which led to convictions in a court of law.
Why Do We Have Flawed Memories?
One reason our brains may insert educated guesses into our memories is that recalling every detail accurately would take up too much brain space. In day-to-day life, the accuracy of memory is not that important, especially if the inaccurate memory is nonetheless helpful to us. For instance, it does not matter if we remember being burned by putting our hands in a candle flame or by touching a stove, as long as we remember to avoid touching very hot objects.
I have experienced how my own memory has been affected in this fashion. In writing my book, Changing Children’s Lives with Hypnosis, I reviewed notes about patients I had treated over a period of 20 years. I recalled some of these patients distinctly because I have told some of their specific stories repeatedly (without identifying the patients) as part of instructing other patients. However, upon reviewing my notes, I discovered that these stories were inaccurate.
A hilarious version of this memory trick involved another story in Changing Children’s Lives with Hypnosis. I told of an incident involving my friend Lois from Boston, who visited me in California. In the book, I mentioned planning to take Lois to a restaurant in La Jolla but forewarned her that it would be difficult to find parking there. Lois told me that she never experiences difficulties in finding parking. I thought that was a strange statement, but it turned out to be true. When I took her to La Jolla, there was parking everywhere, including right in front of the restaurant.
When the book was published, I was excited to tell Lois about how I included her story. Lois responded, “But I’ve never been to visit you in La Jolla.” I said, “Of course you did; I have a distinct memory of your visit.” Lois responded, “I’m sure I never visited you.” I was so unconvinced that I searched through old emails from the time of the supposed visit, and indeed, Lois was correct.
How did I form an erroneous memory? It turns out that I had seen Lois in Arizona and invited her to La Jolla. During our conversation, I mentioned parking difficulty, and she told me that she never has trouble finding parking. However, her trip to California was then canceled, a detail I did not recall. This event was then juxtaposed with another memory of a trip to La Jolla, during which I was looking for parking. My youngest child exclaimed, “If only Aunt Lois were here, we would find parking.” That statement was enough to create my erroneous memory of Lois’ “visit.”
This memory confabulation is yet another example of how our minds can mix various experiences into a single memory. In the cases of young children who are questioned repeatedly, their memories can become influenced by the questions posed. Similarly, eyewitnesses might confuse their memories of the crime scene with the faces they saw in a police lineup.
Lois was gracious enough to offer, “Even though I never visited you, the gist of the story remains true. When you believe you can find parking, you will.”
Takeaway
When arguments arise over the accuracy of memory in court or between individuals regarding important subject matters, an intellectually honest position is that in the absence of clear video evidence, no one can be certain whether a memory is a true representation of what has occurred.
I believe it is essential for all prospective jurors to be made aware of this lesson so they can make fair and just decisions.
