An article in the March 9, 2007 issue of the New York Law Journal (no free link, I'm afraid) discusses failed efforts to admit evidence of memory fallibility in the trial of I. Lewis "Scooter" Libby, suggesting that the failure to admit the evidence may be argued in appellate briefs. The article focuses on comments by Elizabeth Loftus from a recent conference at John Jay College entitled, "Off the Witness Stand: Using Psychology in the Practice of Justice." In this excerpt, Loftus describes her testimony in a pretrial hearing in United States v. Libby, Cr. 05-394:
Mr. Libby's lawyers, she said, wanted to bring expert testimony for the defense, in
the person of Professor Robert A. Bjork, chairman of the psychology department at
the University of California, Los Angeles, a fellow memory expert. Ms. Loftus was
called to explain her work, and that of other psychologists in the memory field, to
Judge Reggie B. Walton.
"The judge was very predisposed against this testimony," said Ms. Loftus. "You can
see that from the transcript of the hearing where I testified. Who knows? This may be
one of those cases where a conviction is overturned. It happens."
Ms. Loftus maintained that the Libby jury should at least have been informed that
numerous scientific studies show that human memory is highly malleable.
Mr. Libby, convicted of lying to FBI agents and a grand jury as to his memory of
conversations with journalists about a former CIA analyst who figured into the larger
political context of motives for the U.S. invasion of Iraq, might indeed have lied.
Ms. Loftus said it was equally plausible that Mr. Libby falls into the subject of her
three decades of scholarship.
"People can have very elaborate recollections about events that never took place,"
she said. "There is an alternative to the [prosecution's] explanation that he lied
about events of July 10, 2003. Now, the FBI questioned him about these things twice,
once on Oct. 14, then again on Nov. 26.
"During that space of time," Ms. Loftus said, "Libby may have merged all kinds of
things into what seemed to him a coherent recollection. We see very rich false
memories in much shorter time spans."
Even journalists' memories are faulty, Ms. Loftus said of former New York Times
reporter Judy Miller, with whom Mr. Libby famously had discussions on the hot topic of
Valerie Plame Wilson, the ex-CIA operative in question.
"Several months after their last encounter," said Ms. Loftus, "Libby bumped into
Judy Miller in New York. She didn't recognize the guy."
(Hat tip: Ivy Lapides).
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