The Plasticity of Memory, Indeed: Some quick reflections of the call to charge Ferguson eyewitnesses with perjury

Witness_stand_in_a_courtroom

Driving about town this week, I was somewhat startled to hear what seems to have been the conservative wingnut Talking Point D’Jour: That charges of perjury or criminal fraud should be brought against witnesses whose testimony did not corroborate Officer Darren Wilson’s version of the events that lead to the death of Michael Brown in Ferguson last August.

I first heard this on the Robbins and Markley Show, one of the seemingly countless entries into that radio oeuvre where guys who had cut their teeth in the wacky Morning Zoo-esque formats have reinvented themselves into uncompromising conservative talking heads to maintain a steady paycheck.  Going the route of perjury and fraud charges weren’t just something that Robbins and Markley were advocating; they seemed genuinely confused as to why such charges were not already being issued. And sure enough, since then I have heard this same talking point being repeated over and over, by shock-jock pundits local, regional and national alike.

As best I can tell through Google-fu, the ground zero of this new talking point seems to be none other than Rudy Giuliani — a former prosecuting attorney and Associate Attorney General who absolutely knows better.

On November 25 on Fox News (natch), Giuliani stated the following:

I disagree with the prosecutor on only one thing. I would prosecute all those people [whose testimony did not corroborate Wilson] for perjury… To testify falsely in a case in which you can put a man in jail for the rest of his life is an extremely serious crime. [Witnesses who would not corroborate Wilson’s testimony] are people who have an axe to grind.

As I said, given his resume Giuliani absolutely knew this was ratings-trolling garbage when he said it.

We tend to believe that eyewitness testimony is the most reliable of evidence, but in fact it is among the worst.  There are many reasons for this, but the primary one is that memories are not in fact “recorded” in our brains as they occur so much as they are reconstructed afterwards.  What’s more, there are a huge number of elements that go into our memory reconstruction without our being aware: confirmation bias, confabulation, even the way a particular question about what we remember is phrased will shape what we truly believe we witnessed. We even remember aspects and actions of people of different races differently than we do people of our own race.

Memory, in other words, is far less reliable than we often suppose. This is the case with the memories of our childhood, with the memories of who-said-what when we’re having a tiff with our significant others, and the memories of what happened at the scene of a crime.  The “plasticity of memory,” to steal the words of a man far wiser than I, can be affected both by “principles of charity” and “pugilistic punditry” — and a hell of a lot of other things as well.

What happened in Ferguson is no exception.

One of the interesting things that has occurred since the release of the grand jury’s findings is how everyone on all sides seems cling to eyewitness testimony as confirmation of what they previously believed happened on August 9.  In fact, however, the actual testimony was all over the map.  And when I say “all over the map,” I mean that literally because PBS actually mapped it out:

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[Note: You can see a bigger version at PBS’s site here.]

As you will note, the PBS map doesn’t even show witnesses in two different camps; out of the thirty witnesses who gave testimony, pretty much no one agrees with anyone else on exactly what happened. Our belief that witnesses corroborated our own narrative about what Officer Wilson did or didn’t do is highly dubious; indeed, the reported details that we believe are true probably has more to do with where and how we first saw or heard this story reported than any other factor.

A book that I have mentioned here often is Dave Cullen’s Columbine, and if you have never read it you really should.  It’s fascinating on a number of levels, but to me the part that has stood out over time is how Cullen is able to dissect the timelines wherein the various “facts” we all know about the tragic shooting are created almost out of thin air due to a number of disparate factors.  Almost every “fact” that is common knowledge about the massacre and its villains is in fact a fiction erroneously reconstructed in the memories of the people who were the actual first-hand eye witnesses.  These eyewitnesses weren’t lying; they had no political agenda or public policy “axe to grind.” That’s just the way memory works.  And later, when showed definitive evidence that their memories were pretty far off the reservations, some recanted their original testimony and said they must have been affected by outside influences, while others dug in their heels and to this day have never accepted the definitive (sometimes video taped!) evidence.

This, as we now know, is what happens at almost any sudden and random event where there are witnesses — and it’s what happened in the case of those who had the ill luck to be nearby the shooting of Michael Brown.  It isn’t proof of blatant perjury,  a news media conspiracy, or even the “extremely serious crime” Giuliani proffers; it’s proof that the eyewitnesses in Ferguson were human.

All of which brings us to a rather important and uncomfortable truth: None of us really knows exactly what happened in Ferguson, MO, the day Michael Brown was shot, and none of us ever really will.

But we should also note that wrapped up in that truth are other truths about the disparity that stems from race in the United States, and we ignore those truths at our own peril.

I’ll take a look at those truths in my next post.

 

[Picture: They Stand Accused, public domain; Witness stand, via Wiki Commons]

 

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23 thoughts on “The Plasticity of Memory, Indeed: Some quick reflections of the call to charge Ferguson eyewitnesses with perjury

  1. Perhaps the post-modernists are right in a certain sense. There is an objective truth but it is seemingly unknowable because of what we know (ironic I know) about memory and cognition and ideology and bias.

    I don’t mean the above to be glib but there is a huge divide on how people see the Ferguson grand jury decision. Only slightly over a third of white Americans thinks that the Ferguson decision was incorrect.

    http://abcnews.go.com/blogs/politics/2014/12/racial-generational-political-divisions-mark-americans-attitudes-on-ferguson/

    Interesting enough millennials might be an exception here or maybe millennials are just more diverse.

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  2. The idea of charging every witness whose testimony doesn’t agree with the outcome of a trial is pretty dumb. The statement, “It is beyond a reasonable doubt that you were lying,” doesn’t follow from, “We couldn’t prove what you said to be true beyond a reasonable doubt.” A policy like that would just make witnesses reluctant to come forward for fear of ending up on the wrong side of a verdict.

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    • Which is precisely why perjury is not simply lying under both. There are additional elements to the crime. You must not only prove that someone said something untrue under oath, but that she knew it was untrue when she said it, that she intended for the court to rely upon their statement, and in some jurisdictions, that the court actually did rely upon that false statement.

      If those things cannot be proven, then in almost every jurisdiction statements made in an official preceding are privileged. That means that they are beyond the reach of civil or criminal reprisal.

      Rudy! is far, far, far too smart and too experienced a lawyer to not know this. That, of course, slowed him down not at all. It’s almost as if he wants to be in the mix for something happening in, oh, two years or so.

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  3. Suggesting that witnesses should be charged with perjury is ridiculous.

    *****

    I’d say that the people’s actions went down pretty much like Wilson said. He yelled at Brown and his friend from the car and they told him to get stuffed. He pulled up in front of them and said “RESPECK MAH AUTHORITAH”, and Brown (who was walking around with a pocket full of boosted cigars) panicked and started trying to beat him up in an attempt to avoid capture. Wilson, being suddenly pounded on by a huge black guy, panicked too and interpreted a vague brush against his holster as “he’s goin’ for my gun!” Wilson started shooting and Brown ran away; Wilson got out of the car and started running after Brown. Brown changed his mind about trying to outrun a bullet, and turned around and started raising his hands; a panicked Wilson interpreted this as an attack and started shooting again, hitting Brown one or more times. Brown, having just been shot, was probably very confused and started staggering around; Wilson figured that this was futher attempts to attack him, and kept shooting until Brown fell over dead.

    “So there’s a bunch of ways we can say that Wilson screwed up, why didn’t he go to trial?” It depends on the specifics of the state laws regarding murder, manslaughter, and what defenses are available against those charges. I could see the people deciding that the law bound Wilson to engage in the situation and to stay engaged, to make a reasonable effort to pursue a fleeing suspect, and to defend himself with deadly force when in reasonable fear for life and limb.

    I guess we could say that Wilson shouldn’t have yelled at the kids in the first place. And we might suggest that Wilson wouldn’t have done if the kids were white. But I dunno, I’ve had a security guard drive over a curb and pursue me through a parking lot to tell me off for crossing a road without going to the crosswalk, so I kind of think that there is a type of person who gets involved in law enforcement and security work, and that race might have been entirely incidental.

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    • I’m willing to believe that a lot of escalation happened the way you describe, but I’m still trying to get my head around why a person who is afraid of being picked up by the police would reach through the window of a police car and start attacking the officer in the car when what he really wants is to get away. Don’t you normally turn and run when you’re on foot and the cop is still in his car? I’m trying to think like a panicked suspect here and I can think of only a couple of reasons to attack an officer:

      1) He has his hands on me and if I let him, he’s going to handcuff me and then I’m never going to escape.
      2) He has me somewhat cornered and my odds of knocking him over or incapacitating him are better than my odds of getting away if I run.

      If he’s in a car and I’m on foot, he’s nowhere near catching me. Why attack? I don’t think Brown was high on anything that would cause that type of behavior. I get that people do nutty things when they panic, but this story just doesn’t smell right. I’m putting it in the same category as the theory that Trayvon Martin came out of the darkness and with no provocation tried to beat a stranger to death. Something like that may have happened, but some other details need to be added in order for it to make sense.

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    • I respectfully dissent from the ‘pounded on’ bit. The officer had at best a very minor injury to the right side of his face, and no bruising on the left (the bit facing the window). That injury could easily have come from being back-handed by the decedent as he was trying to pull out of the car. Also, the officer and the dead guy are both 6′,4″ and the officer looks pretty fit to me compared to an apparently chubby dead guy.

      I can easily imagine a scenario where the cop and the dead guy are barking at each other across the open door and the dead guy reaches into / slips / is pulled into the compartment, at which point things went badly out of control.

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      • Ah, but if we ask enough witnesses whether they saw Brown “pounding on” Wilson, soon enough that pounding will become a historical fact. And those who suggest that something less felonious than pounding occurred will be called perjurers by Rudy! Giuliani.

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      • It seems to be common knowledge these days that Trayvon Martin pounded George Zimmerman and repeatedly slammed his head into the concrete, the medical examiner’s finding of “insignificant” and “minor” injuries notwithstanding.

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    • Jim’s assessment of the combined witness accounts makes pretty good sense to me.

      Essentially, when you’re interpreting first-person reports, you have to attempt to construct a narrative in your head that plausibly explains the superset of the most common traits of the combined stories and rejects only the least plausible traits that conflicts with the narrative.

      That is, everybody is going to get some details wrong. You just don’t store memories in your head like that (this is where Chris could lay in some science).

      The things that people get *right* are still going to be affected by their perceptions and by the way the questions are asked. So “did Brown reach into the car” said to one witness who thought Brown was trying to attack Wilson can push them slightly into the direction of “he just reached” vs. “he was punching”, and “did Brown attack Wilson in the car” and do the reverse.

      Basically, it seems pretty likely that Brown and Wilson were engaged in the car in the way that some folks would think Brown was attacking Wilson. That doesn’t tell us much about the severity of the attack, and given the forensic evidence of Wilson it seems pretty mild, but two guys tussling can feel a lot different when you’re in the middle of it, especially if someone shoots a gun right next to their heads and messes up their ability to hear and whatnot.

      This is basically completely the opposite of what people do.

      Instead, they have their own preconceived notion of what happened, and then they choose which witnesses to believe, and by how much, based upon how well the traits of their testimony fit the preconceived notion the listener has. So they can listen to a witness who says things half of which support their preconceived notion, and they choose to *really* believe that half, and the other half, well, “that’s the part this person is misremembering”, and so on.

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  4. In my earlier ruminations on the subject, I have suggested that it is possible for one to change one’s own construction of memory, in a way that favors one self. Of course, it is easily possible to reconstruct another’s memory, especially when aided by substantial amounts of repetition. It may help to have a willing and friendly subject, but even that may not be necessary.

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  5. This post changed my mind about something important in the Wilson case. Maybe he should have been indicted, but he should not have been convicted. The diversity of witness testimony strongly suggests that reasonable doubt of his guilt exists.

    “Not guilty” does not mean “innocent,” my liberal friends. Nor does it mean “exonerated” or “vindicated,” my conservative friends. It means there is reason to doubt. And if the prosecutor saw that much divergence on so many critical issues of eyewitness testimony, I cannot fault him for being reluctant to open a case.

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    • “And if the prosecutor saw that much divergence on so many critical issues of eyewitness testimony, I cannot fault him for being reluctant to open a case.”

      If only this happened on cases other than when police officers are the defendants!

      Also, if eyewitness testimony is so frequently unreliable, then the divergence of the testimony shouldn’t bother a prosecutor unless the only thing he has is such eyewitness testimony. This is why prosecutors (and detectives) look for things like physical evidence and motive.

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    • It would boggle my mind if Wilson was found guilty. By the varied and contradictory public statements of the police chief alone, the multiple versions of the story that came out of the police structure would be enough to inject doubt in at least one juror’s head, in a criminal trial.

      This speaks to a different part of the problem.

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    • Yeah, I can easily believe that the evidence would have eventually led me to the conclusion that Wilson should not have been found guilty under our system.

      What troubles me is that that should have been demonstrated in a court of law.

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    • And if the prosecutor saw that much divergence on so many critical issues of eyewitness testimony, I cannot fault him for being reluctant to open a case.

      Then at least let him have the courage to decisively decline to open a case, rather than hide behind a grand jury’s non-indictment.

      Another acceptable solution, in my opinion, is to require prosecutors to put as much potentially exculpatory evidence and nuance into <b?EVERY suspected criminal’s grand jury proceeding, instead of only those proceedings in which a cop did the deed.

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