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Chapter 3
“TRIALS” ARE IN THE BRAINS OF THE BEHOLDERS
The guarantees of jury trial in the Federal and State Constitutions reflect a profound
judgment about the way in which law should be enforced and justice administered. . . .
If the defendant preferred the common-sense judgment of a jury to the more tutored
but perhaps less sympathetic reaction of the single judge, he was to have it.
Duncan v. Louisiana, 391 U.S. 145, 155-156 (1968)
Conscious Trial Experiences of Jurors
Emerge from the Brain’s Perceptions
Red is the first color to disappear from a child’s crayon box and the last color emitted
by a dying star. It is the color of fire, blood, roses for lovers, and the ruby slippers that
returned Dorothy to the warmth of home.
Recio (1996) Red
“Sans le Rouge rien ne va plus.”
Advertising slogan with a strong visual subtext, appearing under a picture in which
Little Red Riding Hood’s scarlet cloak has been bleached white.
(The wolf walks away, disinterested.)
Sunwolf (2003) The Truth About Red
§ 3-1. The Influence of Color Perception.
While color affects every aspect of our lives today, it is one of the most under-attended to
factors in trial. Color surrounds us, clothes us, affects our food choices, and warns us of dangers.
We rely upon color at traffic intersections, we use color to tell us which substances are poison,
and we buy products based upon the color-appeal they have, both consciously and unconsciously.
Since color is a persuasion tool, but its perception is biologically based, it is worth considering as
we explore a juror’s brain.
Notwithstanding the vital communication role of color, lawyers generally have only a vague
awareness of what color is, how it is perceived, and what the physiological and socialized
reactions of a juror are to colors in the courtroom. What an attorney, a witness, or a client wears
will include choices of color; charts, tables, and power point presentations are full of color
choices; information about a juror’s mood and culture can be embedded in the colors the juror
chooses. In a practical sense, what is important to know about color?
•
Color is actually an illusion, since the world is completely colorless. Color is a small
part of the electromagnetic spectrum band that connects all things, each color only
differing by vibrations and wave length.i The appearance of color is the result of an
interactive visual process and exists only in the observer’s brain. The sensation of color
depends solely on the brain’s interpretation of signals coming from the eyes.
•
Color experience and color interpretation of each person are light dependent. Lighting
conditions will change the colors witnesses see and remember. Color constantly changes
because light constantly changes (which might explain witness confusions about color).
•
Jurors, like all of us, are color conditioned. This is a subtle effect, but it produces color
biases, based upon what we were taught as children and within our original cultures.ii A
strong color-bias is related to food; add a little blue food coloring to potatoes and it
becomes inedible to most people, while adding red coloring to tofu produces the
opposite effect. One of the strongest Western biases is the consistent use of white to
design good and black to designate evil. (Courtroom clothing choices ought to take into
account cultural and regional color taboos and biases, because they may influence jurors
subliminally.)
•
Color not only affects our eyes but has the ability to penetrate our bodies, with a
marked effect on biological systems. Certain light waves are needed for Vitamin D
(ultraviolet radiation) and some people are photosensitive, breaking out in rashes in
sunlight. In one intriguing experiment, men were found to loose physical strength when
looking at the color pink.iii In one famous color experiment, the commander of the Santa
Clara County Jail in San Jose, California painted one of the holding cells pink.
Detainees (15 to a cell) were described as humorous and restful in the pink room. The
study was much publicized until someone was inadvertently left in a pink cell for four
hours and went berserk (consistent, however, with animal studies). It turns out that the
soothing pink effect only lasts about thirty minutes (enough, perhaps to calm young
children who need time outs).
•
Color has persuasive power and helps sell products. Color is considered part of the
message in advertising and advertisers have invested heavily in color studies. Red
symbolizes eroticism or power, lilac is used to portray sentimental sensuality, and pink
to express tenderness and motherly love. When the product marketer wants people to
feel important or prestigious, violet, golden yellow, or black may be used. Since
consumers are exposed to thousands of advertising messages, for a product to be
noticed, color is essential. Orange and red draw the most attention. Colors seem to trick
a consumer’s perceptions. When consumers were asked to judge the quality of coffee in
four colors of containers (red, blue, brown, yellow), 75% reported the coffee from the
brown container was too strong, 85% found the coffee in the red container to be rich
and full-bodied, and the coffee in the blue container was ranked too mild, with the
yellow too weak. All containers held the same coffee, so this is a robust finding. When
women were asked to test identical face creams, they consistently ranked the pink cream
milder and kinder to sensitive skins, as well as more efficient than the white cream. One
of the most startling studies pre-tested laundry detergent packages. The same detergent,
but different colored packages: women ranked the yellow package as too strong
(claiming it even destroyed some clothing), the blue package not strong enough to get
things clean, but the third box, blue and yellow, was considered marvelous (hence, the
number of laundry detergents using these colors). Yellow signified strength for
customers and blue gentleness; together, they were just right.iv
•
Color can enhance the perceived characteristics of a product or object. It is a wellknown marketing fact that people buy psychological and social satisfaction, rather than
products. We have a lot to learn from these findings. Avoiding triggering unwanted
negative reactions may be the primary lesson. We can accomplish this by reading more
and paying attention.
•
People have idiosyncratic emotional memories associated with some colors, which they
are usually aware of and can describe.
•
In 1995 in a landmark decision, the Supreme Court deemed color such a potent brand
identifier that a particular shade alone could serve as a legally defensible trademark.
A summary of findings on general color associations in mainstream United States follows, to
encourage reading more rather than end the search, since there are shading and hue differences
that are important:v
Red
Orange
Yellow
Green
Blue
Violet
Strength, vivacity, virility, dynamism, warmth, fortifying. Associated
with blood and fire, love and courage, lust, murder, rage, and joy. A
significant color in every culture.
Radiation, communication, action, generosity, fire burning in the
hearth. Often the color that is loved or hated.
Most luminous of all colors, first noticed, loudest, brightest. So readily
seen that yellow cars are involved in fewer accidents than cars of any
other color.
Growth, hope, quiet color with a sunny character. Negatively
associated with queasiness and poisoning; extraterrestrials are often
portrayed as green, so it is connected with supernatural. When asked to
create something creepy, children select green or purple.
Relaxation, most favored color in Western culture, inner spiritual life,
dreamlike quality. Brings in sky and sea, therefore infinity, serenity.
Blue ribbons are first place winners. The favorite color of American
men
Meditative, mystical, mysterious, dignity. Sensuality, decadence,
sorrow. The shortest wavelength of the spectrum with the highest
energy level.
Gray
Symbolic of indecision and inertia, associated with monotony and
depression.
White
Lightness, truce, healing, coolness, moonlight, medical profession,
cleanliness. The best selling paint.
The colors a person chooses to wear are probably the product of two things: color conditioning
and self-image. The colors jurors wear can give you a lot of information about them, if you
consider more than one court day. We are socialized to believe we look better in certain colors
and that we should not wear others. The variety of colors a juror does (or does not) wear, the
comparison of one juror’s colors with those of the other jurors, or the color connections between
jurors (color-cliquing, particularly women who are socialized to notice such things) can be useful
information.
Color-busyness can be distracting to jurors, as they try to make sense of both color, content,
and underlying meaning of evidence. While we tend to prepare charts, for example, based on
colors we like, studies indicate that the most-remembered/retained information was on yellowblack or black-yellow charts (that is, the lettering was one color, the background the other). State
license plates were once frequently in these two colors as it was considered that police could read
them best. (On that same note, yellow cars get more tickets than other colors.) The brain’s
capacity to store or lose information is, in fact, our next consideration.
§ 3-2. Remembering and Forgetting.
If any one faculty of our nature may be called more wonderful than the rest, I do think
it is memory. There seems to be something more speakingly incomprehensible in the
powers, the failures, the inequalities of memory, than in any other of our intelligences.
The memory is sometimes so retentive, so serviceable, so obedient: at others, so
bewildered and so weak; and at others again, so tyrannic, so beyond control. We are, to
be sure, a miracle in every way; but our powers of recollecting and of forgetting do
seem peculiarly past finding out.
Austen, Mansfield Parkvi
Memory is a critical part of thinking, both amazing and flawed. Memory influences every part
of a juror’s decision-making task. Memory involves maintaining information over time. While a
complete review of the multiple models and theories of memory that currently influence
researchers is beyond the scope of this book, memory is such a major and overlooked aspects of a
juror’s task that I draw upon key findings to change the way we understand the task we ask of
jurors and what they are actually capable of doing.vii Cognitive psychologists have made progress
in understanding memory, yielding some interesting results for the courtroom (other chapters
address specific factors affecting a juror’s memory, including the discussion of emotional
memory, Chapter 5, schemas, Chapter 7, and group memory, Chapter 10).
Perhaps the best known of the research findings is the division of memory into basic long-term
and short-term storage facilities.viii Memory storage and retrieval are not, in fact, simple, even
though we have long marginalized or simplified them in our consideration of a juror’s trial task.
More recently, however, it is clear that there are at least three aspects to human memory storage:
•
Sensory memory holds information in a raw, unprocessed form for only a short time
after the physical stimulus. The information in sensory memory is highly accurate.
[Items remain in sensory memory for about 2 seconds, or less.]
•
Short-term memory is where immediate information a person is thinking about now is
held and processed, temporarily. The information in short-term memory has already
been distorted. [Items remain in short-term memory for as long as 30 seconds.]
•
Long-term memory is the vast store of information a person can potentially bring to
mind. Information has been distorted, rearranged, and reassembled for storage in
various mental folders. [Length of retention depends upon a variety of factors, including
medications, age, and illness.]
Scholars are still in disagreement about where, precisely sensory, short-, and long-term memory
resides in the brain, and it is not clear that they reside in different parts of the brain, at all. There
are actually many separate types of sensory memory that can be made vivid, and, therefore more
real, for practitioners and jurors.
Practice Point:
Jurors can be made aware of their own fragile memories and motivated to increase mental
efforts during trial. Jurors can be educated about the fragile memories of witnesses. Most
importantly, however, is that judges and lawyers can be made aware of the overwhelming
memory task that burdens each juror (who also have memory tasks from their private
lives). For yourself or your jurors, here’s an example of sensory memory, the one about
which most of us have had less education (the concept is that you cannot effectively
explain to jurors what you have not personally experienced):
EXPERIENCE [BRIEF] SENSORY MEMORY
TOUCH MEMORY. Quickly rub your palm along the edge of a table, so the heel of your
palm touches first, then end with your fingertips. You can feel the sharp edge, for a
moment, after your hand is off the desk.
SOUND MEMORY. Use your hands to beat a rhythm on your chair or desk. You can hear a
fading echo after the beating stops.
SIGHT MEMORY. Hold your hand in front of your eyes and wave it back and forth
quickly. If you do it fast enough, an afterimage of your hand lingers for a fraction of a
second.
§ 3-2(a).
Raw Sensory Memory.
Humans need sensory memory only briefly, hence it lasts only seconds. We need sensory
memory to be brief or we would be overwhelmed by all the senses constantly and rapidly
changing around us. Imagine being aware of the squeak of your marker as you highlight a page,
the pressure of your chair against your back, the pain from an injury yesterday, the temperature in
the room, a distant aroma of coffee or cleanser, the taste of a sandwich from an hour ago in your
mouth, music on someone else’s radio, the feel of your socks on your feet, a distant laugh, the
sensation of your eyes blinking, and the sensations tumble over one another. However,
temporarily, sensory memories help us integrate an event into a single perception.ix Pain is rarely
remembered accurately after the event.
§ 3-2(b).
Short-term Memory.
Short-term memory is quite limited, and, therefore, rarely the goal at trial. If you look up a
phone number because you need to call someone immediately, your short-term memory will hold
the number. If you are distracted before making the call, the seven digits may vanish from
consciousness; you may remember parts of the number only. Characteristics of short-term
memory that help us understand a juror’s courtroom world include:x
•
Short-term memory seems to be able to hold only five to nine (more commonly seven)
items of information. Once those slots are filled, a new incoming item will displace one
of the earlier items.
•
Short-term memory can be increased by the technique of chunking, or grouping items
together.
•
Short-term memory can be lost over time: it fades.
•
Much of short-term memory is held in acoustic form (how something sounds).
Short-term memory has a limited capacity to handle incoming data. Short term, working memory,
can synthesize eight to fourteen items of self-talk (juror thinking) and other-talk (attorney
speaking). Probably, for this reason, a theme sentence in trial should always boil down to a
simple sentence of fourteen words or less.xi
§ 3-2(c).
Long-term Retrievable Memory.
For long-term memory, the issue is not capacity (Does one know it?), but retrieval (Can one
find it?). Retrieval is influenced by a variety of social factors, such as schemas, discussed later.
Long-term memory differs from short-term memory in that long-term memories are usually
remembered semantically, by their meaning, rather than by their sound. Long-term memory is
enhanced by:
•
Rehearsal (repeating a thing): saying it, thinking it, writing it.
•
Mnemonic devices (memory aiding), that rely upon making a meaningful connection
between otherwise unconnected information. Acronyms, rhythms, raps (“If the glove
doesn’t fit, you must acquit”) are mnemonic devices.
•
Multimodal approaches, that allow for the storage of a memory into several mental
folders, drawing upon several potential triggers (color, picture, sound, topic).
Important characteristics of long-term memory in thinking about a juror’s trial task include the
following:
HUMAN MEMORY IS ALWAYS RECONSTRUCTIVE.xii
HUMAN MEMORY IS ALWAYS ASSOCIATIVE.xiii
Memories are reconstructive because the brain is not a camera. The brain is more like a shortorder cook, summarizing. First, people remember some information that really was there. Second,
people also remember other information that was never there, but the brain added.
Practice Point:
Bring it home to jurors quickly, then get out. No one wants a lecture (see Chapter 6 on
Information Overload).
•
Was anyone a Star Trek fan, especially the original series? Does anyone remember
that famous line, “Beam me up, Scotty”? How about old movies? Does anyone
remember Casablanca? What’s the most famous line associated with that movie (agree
to everything suggested, “yes, and—“ but patiently wait until someone says, “Play it
again, Sam.” I remember those lines, too. The thing is, neither one was ever said! We
all remember information that was never there.
•
Does anyone have a family like mine—we have big family dinners on special
occasions and relatives start telling old stories. And someone will tell about a funny
time, when YOU WERE PRESENT, but they got it wrong? And sometimes everyone
who was there originally knows they are telling something that never happened and
they are the only one who thinks it did?
The practical point is that jurors enjoy these two examples and learn about witness
memory (and their own), without being lectured at. We explore together how our lives are
full of examples of mis-remembering, even when we’re sure we’re right. Certainty doesn’t
equal accuracy.
Memories are also associative, because they are always linked to other memories and
knowledge. This means we recall related facts together. Associations in the mind are created by
labels. This means that when the proper word-label is used in a prompt, the appropriate links will
be stimulated and the memory retrieved.
Practice Point:
During voir dire, an attorney who is paying attention can collect the word-labels that jurors
use in talking about issues, experiences, values, and events. By adopting those words in
opening, direct and cross examinations, and closing, the attorney is more likely to directly
trip vivid memories and associations for the jurors than when the attorney uses personallyfavored language.
The more links and associations, the more likely is memory retrieval. This means that trial
lawyers who provide a number of linkages (for example, memories, analogies, metaphors,
sounds, colors) for an idea/fact are increasing the chance that a juror will be able to retrieve that
particular idea/fact during deliberations.
In addition to being linked and labeled, memories are strengthened each time they are
activated.xiv The practical implications of this activation process are that for some jurors painful
or joyful memories will become more vivid during trial, as the result of voir dire, jury
questionnaires, in chambers questioning, and testimony. The task of “setting aside” painfully
activated memories may be overwhelming. (See Chapter 9, “The Dilemma of a Juror’s UnThinking Task.”)
§ 3-2(d).
Homo narrans.
HUMAN MEMORY IS STORY-BASED.
Schankxv
One communication scholar was at the forefront of arguing that humans are homo narrans.
Professor Fisher has argued that, as homo narrans, people evaluate persuasive reasons they are
given based upon a natural narrative assessments of the stories behind the argument.xvi
The study of artificial memory had led to an increased understanding of the unique qualities of
human memory. Dr. Schank, an expert in artificial intelligence, has concluded that we can offer
people abstract rules of thumb that we have derived from prior experiences, but it is very difficult
for other people to learn from these. We have difficulty remembering such abstractions, but we
can more easily remember a good story.
He reminds us that all thinking involves some form of indexing. In order to assimilate a fact,
people must attach it someplace in memory. Information without access to that information is
not information at all.
Thus story-format and story-fragments are useful to audiences, because any story comes with
many indices. These indices may be locations, attitudes, quandaries, decisions, conclusions,
characters, plots, choices, to name a few. The more indices we have for a story that is being told,
the more places it can reside in memory.
§ 3-2(e).
Person Memory.
How do people remember people? People are, in fact, incredibly rich stimuli to be
absorbed and categorized. Seven witnesses identified a Catholic priest as “The Gentleman
Bandit” and, as trial proceeded many witnesses identified the priest as the robber, under oath and
with certainty, describing the robber’s polite manners and elegant clothes. The trial was halted
only when another man confessed to the robberies.xvii Some estimates put the wrongful
convictions each year in the United States due to faulty eyewitness testimony at between 2,000
and 10,000.xviii
While the topic has obvious relevancy for witness identification issues, when turned around
from a juror’s perspective, person memory becomes more problematic, still. Drawing upon the
principles of chunking, linking, and repetition it appears that:
•
A person’s memory of another person’s behavior is influenced by expectations.
•
People quickly make overall judgments of others, such as likeable or not likeable,
friendly or unfriendly.
•
People remember other people using memory short-cuts, such as roles (store clerk,
librarian, doctor, bus driver, construction worker) that fill factual gaps.
•
Earliest information has the greatest influence on the evaluation formed.
•
There is a recall advantage for impression-inconsistent behaviors, since people pay
more attention and create more linkages for inconsistent data.xix
Jurors need to talk about and understand how person memory works, so that they will
understand how a witness (at trial) or a juror (in deliberations) might reconstruct events consistent
with their person schemas, rather than the facts. One of the best studies to illustrate this point
(which I share with jurors), is one in which participants watched the same videotape containing
people at a bar.xx Viewers of the video were told what sort of jobs people in the scene had; half
were told that the woman in the scene was a librarian, others were told that she was a waitress.
Later, when asked to recall what the woman in the scene had been drinking, people filled their
memory gaps with information from the stereotypes (schemas) they had for “librarian” or
“waitress” (the librarian was “remembered” to be drinking wine, even though she had been
drinking beer; beer didn’t fit what a librarian would drink).
People may remember a person more prominently along one of the following dimensions:
• Memory of traits/attitude
• Memory of behavior
• Memory of appearancexxi
Finally, there appears to be an own-race bias such that people are more accurate in identifying
members of their own ethnic group than members of another ethnic group.xxii Studies show that
both African-American and Caucasian individuals were substantially more accurate in
recognizing faces of people of their own ethnic group.xxiii The effect has been found for White
and Asian people,xxiv as well. As might be expected, this own-race bias is somewhat decreased
when someone has had greater contact with members of the other ethnic group.xxv We might
expect, as a result, that a White juror with many black friends would develop expertise in
recognizing the facial features of Black individuals; the problem becomes whether such a juror
recognizes that other White witnesses might not share that familiarity. The number, type, and
frequency of contacts a juror has with the races or ethnicities that will be involved in a contested
cross-race identification are critical voir dire questions.
While real-world witness memories of people are often flawed, a juror will come to court with
a working theory about how people remember people. Left unexplored in voir dire, this theory
may emerge and be shared later, damaging an attorney’s case during deliberations (when the
lawyer cannot cross-examine the thinking).
Practice Point:
Voir dire is not the appropriate venue to talk jurors out of their theories about eyewitness
identification. Voir dire is the appropriate place to find out what they are, since these
theories are highly influential, whether or not you think a juror is misinformed. If a juror
has a working theory about how reliable eyewitness testimony is (important for both civil
and criminal cases, relating not only to “who the robber was” but who was present, who
gave an order, who was missing), that theory may influence the juror’s ultimate vote on the
verdict.
• Some folks think eyewitness testimony is reliable if the witness is certain. Other people
think it is unreliable. What do you think? Why? Can you give an example?
• How good do you think people are at remembering strangers?
• How often do you believe a witness is wrong about an identification?
• How often do you believe an innocent person is convicted in court based upon the
flawed memory of a witness who thought they were right?xxvi
As pointed out above, a memory of a person may be contaminated by evaluation of the
“remembered” person (friendly-unfriendly). From a juror’s point of view, an identification is
being made. If the attorney disputes the identification its various parts and contaminations must
be illuminated.
§ 3-2(f).
The Generation Effect.
According to the generation effect, people remember items better if they generate or make
them up ourselves.xxvii Relying upon this, studies have shown that students who rephrase material,
for example, are better able to retain it.
The generation effect is a tidy little concept with profound effects for a juror’s world. A juror
will recall information better when they are involved in processing it, either through elaborate
thinking, dialogue, or debate.
Practice Point:
Any point you want to make to jurors on voir dire (including judicial points on the rules to
follow as a juror) that you wish them to remember has the best chance of being
remembered if jurors are given an opportunity to: ask questions about it, rephrase it, write
it down, give an example, imagine it, or talk with another juror about it.
§ 3-2(g).
The Self-Reference Effect.
According to the self-reference effect, if we relate new information to ourselves we can recall
it more frequently.xxviii The self-reference effect has been demonstrated repeatedly with many
types of information, with children, and with elderly adults.
The second more surprising aspect of the effect is that our brains handle positive
instances more effectively than negative instances. People are more likely to recall a word that
does apply to them than a word that does not. The linking is easier. Further, it is harder to imagine
a negative. Parents know this about children; the command, “No messing around when we get
inside,” is not nearly as effective as the admonition, “Only whispering now,” when entering a
church.
Practice Point:
Provide opportunities, through dialogue or rhetorical references, for jurors to link new
information in the trial to their own lives.
• Do you know someone like that?
• Has that ever happened to you?
• Have you ever met someone who was always right?
• Think about the time you were most afraid.
• What would you say in deliberations to a juror who won’t listen to someone else?
• Did a doctor ever say that to you?
• Remember the last time you walked down a dark alley, alone.
• When someone yells at you, do you think more clearly, or less?
§ 3-2(h).
Memory Stress.
Some of us suffer from memory stress, even now. For others of us, memory stress is a regular
visitor. Have you ever looked up a phone number, carefully repeated it to yourself, then started
dialing and forgotten the last three digits? That ten-second delay was already too much for your
short-term memory storage system. Some memories, even when we want them, are so fragile that
they evaporate before you can use them.
Practice Point:
Ask jurors to share a memory evaporation moment. How do they explain it to
themselves? Are they amused by it or frustrated? Is it frequent or rare? Do they believe it
happens more frequently or less frequently to others? To experts? To police officers? To
doctors?
§ 3-2(i).
Flashbulb Memory.
When a person has a vivid memory for the situation they were in when they first learned a
surprising and emotionally arousing event, it is known as a flashbulb memory.xxix Usually
flashbulb memories are connected with the occurrence of horrifying events. This is wonderful to
discuss with jurors because they each have flashbulb memories and they feel connections with other
jurors who share the same ones. Many people have flashbulb memories of learning that President
John Kennedy had been shot; under a true flashbulb memory the vividness of where you were, what
you were doing, what others were doing, sun or shadow, what people said — all these immediately
and effortlessly come to mind. The Kennedy news is an excellent example because it happened
many decades ago, yet so many people still share a vivid memory of it; for litigators attempting to
bolster a witness’ memory of a trauma, this example resonates. A juror may have a flashbulb
memory of receiving news of the death of a loved one, a terrible medical diagnosis, receiving an
award—but only if they were truly unexpected and extremely arousing will the flashbulb memory
phenomenon happen.
The event may be high positive or tragic. Typically, six types of information are usually listed
in a true flashbulb memory (in case you want to argue against the existence of this memory for a
particular event): place, ongoing event interrupted by the news, person who gave them the news,
their own feelings, the emotions of others, and various aspects of the aftermath (what happened
next). The two primary triggers appear to be a high level of surprise and high emotional arousal
because the event is perceived to be importantxxx (generally, surprise parties do not have that
effect). As a result, a flashbulb memory has longer endurance than other memories.
There is now some research that cautions us to look for the phantom flashbulb memory.xxxi It
seems like the event should qualify as flashbulb memory, but instead many people experienced it
and are making many mistakes in recalling it. The prime example is the Challenger disaster;
memories for this event do not seem as strong or as accurate. Even when the phantom flashbulb
memory is wrong, however, people claim that their memories for these events are vivid and
accurate.xxxii
§ 3-2(j).
Never-Happened Memory.
Some people recall events that never really happened, but they remember them. Repisodic
memoriesxxxiii refer to the recalling of a supposed event that is really the blending of details, over
repeated and related episodes. It is a form of creative memory-writing. The false memory comes
from taking events similar to the false memory and blending them into a memory.
Errors in memories can often be traced to mistakenly recalling an event similar to one that had
actually happened. People who routinely experience similar events are more vulnerable to the neverhappened memory creation, which indicates the importance of schemas in helping us form memories.
A lawyer, police officer, doctor, or teacher might easily blend memories into something that really
seems like it happened, because events like that frequently did happen — on other occasions.
Jurors who are allowed to talk about these events generally laugh a lot in describing family
members who insist they were present for things that never happened. This primes a juror for
either accepting or scrutinizing a flashbulb type memory in trial.
§ 3-2(k).
Memory After Forty.
The change in memory after age forty is an avoided topic among trial practitioners, probably
because so many of us are, in fact, over forty. However, having an informed working knowledge
of the physiological changes in the aging brain is critical for understanding the juror’s world. All
of us past the age of forty begin to recognize certain changes in our mental lives: one moment it is
more difficult to remember the name of something new, later we cannot recall the name of
something familiar. Aging memory is a critical topic for intelligently exercising peremptory
challenges, for making solid challenges for cause, and, finally, for helping create acceptable trial
conditions for jurors over forty. So, this book puts the Aging Brain back on the practical thinking
table.
The first taboo phrase we will embrace is memory degeneration. Memory degeneration
involves the inevitable brain changes that begin to emerge in force, after forty.
The most noticeable physiological changes of the aging brain (the more we say it, the less
painful it becomes) are found in the cerebral cortex. The cerebral cortex supports our ability to
think and serves as the repository for memories. Among the changes noticed in forty- to sixtyyear olds are a decrease of 15 to 20 percent in the number of cells throughout the cortex.xxxiv This
drops even further by the age of seventy-five to over 40 percent of our cortical cells. Interestingly,
the densest loss is seen in brain regions that are widely believed critical to support storage of
memory. These are the temporal lobes.
Aging Brain Processes
1.
Individual neurons change, from atrophy of a cell’s parts to loss of the cell’s capacity
to respond to neurotransmitters. In normal aging, dendrite elements are lost so it is
harder to transmit information.
2.
Plaques appear and further disrupt neural activity. When plaques appear in large
numbers, it can lead to Alzheimer’s, but, to some extent, all aging brains possess new
plaques (where they come from and what causes them is not agreed on).
3.
The neurotransmitter (rich in noradrenaline) that affects arousal and attention span
(locus ceruleus) is impacted in the aging brain since neurons are lost. From age 50 to
70 there can be a drop of 35 percent in the neurons in this section of the brain, which
explains the lower attention span in some elderly.
4.
The size of the brain shrinks. The change in brain size is marked and easily
observable with the CT scan (computer-based technology that provides pictures of the
brain). The brain of a seventy year old can be nearly 11 percent smaller than that of the
brain of forty-year-olds. Correlated with this shrinkage is the loss in overall brain
weight.
5.
The brain’s changes slow physical movement. By age forty there can be a 20 percent
decrease in an athlete’s speed. In tasks like copying words, there can be a 30 percent
increase in the time it takes a sixty-year-old to do the task, compared to a twenty-yearold.xxxv Reduction in ability to move quickly is thought to relate to loss of cells in those
brain areas rich in the neurotransmitter dopamine.
6.
The brain’s sense of balance is lost. The elderly become, at some point, unable to
stand on one leg with eyes closed. There is a neuron that sends information about the
body’s position from the legs up through the spinal cord into the brain’s base. This is a
single cell, the longest in the body, and some believe that this cell cannot be kept alive
over a very long lifetime.
7.
Memory for new information is impaired. The banner cry of middle age, for many of
us, is, “Let me write that down or I’ll forget it.” Recalling names becomes harder.
Memory starts to malfunction at about the same time we need reading glasses, that is,
in partnership with the loss of visual acuity (generally after age forty). Established
memories remain real and easy to access. More recently acquired memories (trial
evidence) are more easily lost in the aging brain.
All the jogging in the world cannot stop these changes, but the changes vary with each
individual.
Practice Points:
•
Include specific inquiries in jury questionnaires that tap into aging symptoms.
•
Determine if aging explains the behaviors or decisions of any of the witnesses in your
trial.
•
Dialogue with jurors about their own experiences with aging, uncovering myths, what
they are open to understanding, what they may need as over-forty jurors, and how they
would evaluate the memory of a witness (if aging memory is an issue).
•
Create more compassionate courtroom conditions for over-forty jurors. Studies show
that if enough extra time is given to an elderly person to learn a new task at the same
level as a twenty-year-old, the older person will rise to that level. The mechanism for
learning and remembering, on less complex cases, can be facilitated.
•
When new information is meaningful to aging jurors, they retain it better. Take the
time to offer multiple connections for aging jurors that demonstrate why it matters to
them.
Notwithstanding the above, it is clear from research that the task of learning totally new
information results in severe problems with the elderly.
•
Collect recent studies that demonstrate this normal deterioration and become familiar
with the symptoms. Make clearer records for jurors over seventy.
We want equal access of citizens to our juries, and our elderly citizens are often the most
willing to serve. This must be balanced, however, with the right to have jurors that are competent.
Memory and learning are central to a juror’s task. A juror’s own assurance that she is up to the
task is not dispositive; we experience our aging defensively and with a certain amount of
ignorance. A trial cannot have some jurors relying on the memories of others because their own is
faulty for the tremendous task of fast-appearing novel information day after day in trial.
§ 3-2(l ).
Memory Talk.
While much of our processing and recovery of events through memory generation is
unconscious and rapid, occasionally we recognize memory recovery events and have language for
talking about them.
The tip-of-the-tongue phenomenon is one that all jurors are aware of and can describe. This
is the sensation we have when we are sure we know the word for which we are searching, yet we
cannot recall it. It is achingly frustrating. While our long-term memories for words are like a
dictionary, our mental dictionaries are much more flexible than the ones on our bookshelves.
Our minds may recover a word from memory, by meaning, or by sound or by association with
something else. Alphabetical order is rarely used. How often do people find the elusive word on
the tip of their tongue? In general, we find it about 70% of the timexxxvi Tip-of-the-tongue
phenomena are a type of metamemory, because we have the feeling of “knowing” what is
happening in our mind as we mentally search.
Metamemory is a juror’s knowledge and awareness of their own memory. When we talk to a
juror about how they assess, complain about, or make sense of their own memory experiences, we
are gaining access to their metamemory. To listen effectively in trial and later to be able to
retrieve trial testimony during jury deliberations, a juror must know what works for them and
what does not.
Practice Point:
Qualify jurors for the memory job. Have them set their own limits. What accommodations
will they reasonably need in order to do the task? Each juror is entitled to those
accommodations (by law if not a sense of justice).
•
Remember when you were studying something. Perhaps for a test. How long can you
study before your attention wanders?
•
What time of day do you find you learn the most?
•
What are your own memory strengths and weaknesses? Would you share an example?
Without such a discussion on the table, how can a juror, a lawyer, or a trial judge assist in
making the task one that can be accomplished by each juror? We need to know how to plan the
trial day, how to regulate a juror’s attention, and how to monitor whether a juror is understanding
the evidence in the moment (what is not understood cannot be accurately remembered). Where
does a juror need more time, when do breaks need to occur, and what physical constraints (chairs,
windows, distance, water, coffee, chocolate, stretching) could be adjusted to help? Metamemory
may be the most important underdiscussed component of voir dire, which is, after all, the place in
which we prepare jurors for their trial task, while asking them if they believe they can accomplish
that task. “Will you listen?” is woefully inadequate.
Another characteristic of short-term memory is that this type of memory has clear
boundaries.xxxvii People feel those boundaries. Recall the strain you feel when you try to keep a
mental shopping list that keeps getting longer, and now you are in the store trying to retrieve that
list. Recall learning a new job and meeting new co-workers, and the moment when you felt that if
one more new person or fact were trotted out, you would lose one of the original ones. Memory
stress is experienced as painful.
When we ask jurors to quickly store trial information in their short-term memory, we ask the
impossible. This is one of those points where Practical Jury Dynamics suggests that thinking
differently about the whole structure of trials is needed.
Short-term memory is 30 seconds. For long-term memory to kick in, many connections, as well
as opportunities to engage and to trigger those connections are needed. Your opponent can
question a witness for an hour (or two), but you are wise to change that entirely if you want the
testimony to be retrievable. All possible tools to link and associate, as well as the time to do is,
are critica
i
. Fehrman, K. R., & Fehrman, C. (2004). Color: The secret influence (pp. 2-3). Upper Saddle River, NJ:
Prentice Hall.
ii
. The Yezidi, a people who live in the Caucasus and Armenia despise blue. They curse their enemies by
saying, “May you die in blue garments.” Many indigenous tribal people believe that turquoise has powerful
healing effects, and one tale says that if you die wearing turquoise, there will always be a friend with you at
the time. We insult someone by calling him “yellow,” sad moods are called the “blues,” we are “green”
with envy, and we see “red” when we are angry. In Imperial Rome and China, white, not black, was
appropriate for mourning, and red, not white was appropriate for brides. In Buddhism, yellow is the color
of death, and in the United States black is so associated with heaviness that workers who were studied
lifting weights reported black boxes far heavier than same-weight yellow boxes.
iii
. Fehrman, K. R., & Fehrman, C. (2004). Color: The secret influence (pp. 13-14). Upper Saddle River,
NJ: Prentice Hall.
iv
. All of these studies and MORE in an excellent and readable resource, by two of the top color
researchers, Fehrman, K. R., & Fehrman, C. (2004). Color: The secret influence (pp. 13-14). Upper Saddle
River, NJ: Prentice Hall.
v
. Adapted and expanded from Fehrman & Fehrman.
vi
. Austen, J. (1922). Mansfield Park (p. 172). New York: Dutton.
vii
. One of the major researchers in the area of sensory memory is Nelson Cowan, who offers a readable
and informed overview. Cowan, N. (1995). Attention and memory: An integrated framework. New York:
Oxford University Press.
Two respected researchers who are proponents of the working-memory model provide a very readable
summary, with special applications to reading and language comprehension. Gathercole, S. E., & Baddeley,
A. D. (1993). Working memory and language. Hove, Great Britain: Erlbaum.
viii
. Some psychologists do not believe that short-term memory and long-term memory are different
processes, requiring different kinds of mental storage systems.
ix
. Cowan, N. (1995). Attention and memory: An integrated framework. New York: Oxford University
Press.
Cowan, N. (1988). Evolving conceptions of memory storage, selective attention, and their mutual
constraints within the human information-processing system. Psychological Bulletin, 104, 163-191.
x
. Cohen, D. (1996). The secret language of the mind: A visual inquiry into the mysteries of
consciousness. San Francisco, CA: Chronicle Books.
xi
. Harris, J. E. (1998). How the brain talks to itself: A clinical primer of psychotherapeutic neuroscience
(p. 37). New York: Haworth Press.
xii. Agreement on this point by memory scholars, but an excellent discussion in, Aronson, E., Wilson, T.
D., & Akert, R. M. (1999). Social psychology (3rd ed.). New York: Longman/Addison-Wesley Educational
Publishers.
xiii
. Fiske, S. T., & Taylor, S. E. (1991). Social cognition (2nd ed.). New York: McGraw-Hill.
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. Collins, A. M., & Loftus, E. F. (1975). A spreading-activation theory of semantic processing.
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xv
. Schank, R. C. (1990). Tell me a story: A new look at real and artificial memory. New York: Charles
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xvi
. Fisher, W. R. (1985). The narrative paradigm: In the beginning. Journal of Communication, 35, 74-
89.
Fisher, W. R. (1987). Human communication as narration: Toward a philosophy of reason, value, and
action. Columbia: University of South Carolina Press.
xvii
. Loftus, E. F., & Ketcham, K. (1994). The myth of repressed memory. New York: St. Martin’s Press.
xviii
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law. New York: Cambridge University Press.
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role of system and estimator variables. Law and Human Behavior, 11, 233-258.
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xx
. Cohen, C. E. (1981). Person categories and social perception: Testing some boundary conditions of
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xxi
. A review of research on witness identification science is beyond the scope of this text. This is a good
place to note, however, that laboratory studies, at least, suggest that people’s ability to recognize faces may
be just short of phenomenal over long periods of time. This does not mean people are always right, since
real world research shows people often do little better than guess when attempting to identify someone in a
lineup. Excellent review in Loftus, E. F. (1979). Eyewitness testimony. Cambridge, MA: Harvard
University Press. See also, Loftus, E. F., & Hoffman, H. G. (1989). Misinformation and memory: The
creation of new memories. Journal of Experimental Psychology: General, 118, 100-104.
xxii
. Brigham, T. C., & Malpass, R. S. (1985). The role of experience and context in the recognition of
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xxiii
. Anthony, T., Cooper, C., & Mullen, B. (1992). Cross-racial facial identification: A social cognitive
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xxiv
. Ng, W. K., & Lindsay, R. C. L. (1994). Cross-race facial recognition: Failure of the contact
hypothesis. Journal of Cross-Cultural Psychology, 25, 217-232.
xxv
. Brigham, T. C., & Malpass, R. S. (1985). The role of experience and context in the recognition of
faces of own- and other-race. Journal of Social Issues, 41, 139-155.
xxvi
. A juror’s belief that juries filter out wrongful convictions, that if a witness is certain it should be
accepted by the jury, or that wrongful convictions rarely, if ever, occur based upon faulty witness memory
will be affected in deliberations. These beliefs facilitate a corresponding belief that the risk of error is low,
so the standard of proof is not raised to its highest point. A juror’s belief that the witness oath, the
prosecutor, or the judge have already eliminated the faulty memory cases is operating under a potentially
fatal misunderstanding.
xxvii
. Matlin, M. W. (1998). Cognition (4th ed.). Orlando, FL: Harcourt Brace.
xxviii
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xxxi
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xxxii
. McCloskey, M. (1992). Special versus ordinary memory mechanisms in the genesis of flashbulb
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. Neisser, U., & Harsch, N. (1992). Phantom flashbulbs: False recollections of hearing the news
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. Gazzaniga, M. S. (1988). Mind matters: How mind and brain interact to create our conscious lives.
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. Brown, A. S. (1991). A review of the tip-of-the-tongue experience. Psychological Bulletin, 109,
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