Memory in Question and in the Law

Photo Credit: Mike Castillo

Photo Credit: Mike Castillo

Late one night in July 1984, college student Jennifer Thompson awoke with a start. She heard sounds coming from the back door of her apartment. As her eyes adjusted to the dark bedroom, she saw a man holding a knife to her throat. Thompson began frantically offering him her credit card and her car. According to Thompson, “He looked at me and said, 'I don't want your money.' … I knew what was about to happen."

During the assault, Thompson vowed to memorize every detail about the perpetrator. She wanted to commit to memory any distinguishing feature that would help police catch her rapist. When she was able to leave the apartment, Thompson went to the hospital, where she met with Detective Mike Gauldin. As they reviewed the sequence of events and began making a composite sketch of the suspect, Gauldin says Thompson was very clear in her memory. He remembers Thompson saying, “I'm gonna get this guy that did this to me… I will be able to identify him if I'm given an opportunity.”

Her opportunity came three days later, when Gauldin called her in to look at a photo lineup. One of the men, 22-year-old Ronald Cotton, had been named in an anonymous tip as resembling the composite sketch of Thompson’s attacker. Thompson studied the photographs for over five minutes before finally pointing to the photo of Ronald Cotton. According to Detective Gauldin, there was no doubt in Thompson’s mind that he was the man who had raped her.

A few days later, Thompson was called to do a physical lineup. Again, she identified Cotton. Thompson was told she had picked out the same man as in the photo.  She remembers, “I thought, 'Bingo. I did it right.' I did it right.”

During the trial, Thompson pointed to Ronald Cotton, sitting in the courtroom, as the perpetrator. The jury found Cotton guilty on all counts, and he was sentenced subsequently to life and fifty years.

***

For Ronald Cotton, the whole experience was surreal. When he first heard that the police were looking for him, Cotton did not feel scared. "I didn't panic,” said Cotton, “I tried to figure out, you know, why." Sure there had been some mistake, Cotton arrived at the police station to do the physical lineup feeling relatively calm. He assumed he would be sent home immediately, once they realized he wasn’t the man that they were looking for.

But when it became clear that Thompson was deliberating between Cotton and just one other man, he began to get nervous. By the end of the process, Cotton was terrified. “I was trembling. I felt my body just shaking," he remembers. Then, Thompson pointed to Cotton and said she was absolutely certain he was the one who had assaulted her.

The trial itself lasted only forty minutes. "She called my name, pointed a finger,” Cotton recalls, “and that's all, that's all it takes, it seemed like." After the jury read the guilty verdict, Cotton began to weep. He felt like he was trapped inside a nightmare.

Thompson, however, was feeling jubilant. She was sure Cotton was the right man. “It was for me that moment that you know the justice system works,” she says. “Because I am the victim, and he's a horrible person, and he will never, ever be free again.”

***

Eyewitness testimonies are an integral part of the criminal justice system. In many cases like the case of Jennifer Thompson, there is little physical evidence left behind by the perpetrator, forcing jury members to rely primarily on testimonial evidence. There is simply something compelling about a first-hand account: I was there, I saw it, and now I’m giving you a picture of what really happened.

Unfortunately, this is not always the case. The Innocence Project was established in 1992, after a study conducted by the United States Department of Justice revealed that incorrect identifications by eyewitnesses were responsible for 73% of wrongful convictions across the United States. Considering that over 80,000 cases every year are based primarily on eyewitness testimony, this is an alarming statistic. Since DNA testing was introduced in the 1990’s, 289 cases have been overturned using DNA evidence – including those of 17 men serving time on death row.

The legal system is designed to detect liars on the witness stand. The crucial shortcoming of the system, however, is its inability to distinguish between those who remember events accurately and those who merely thinkthey remember accurately.

***

Four years after Ronald Cotton was originally sentenced, a new inmate arrived in the prison where Cotton was serving time. The new inmate’s name was Bobby Poole. "The stewards were calling me Poole instead of Cotton," Cotton remembers. The two men looked eerily similar, and prison staff and other inmates often confused the men. The more Cotton thought about it, the more he realized that Bobby Poole also looked similar to the composite sketch Thompson made of her attacker.

Bobby Poole & Ronald Cotton

Bobby Poole & Ronald Cotton

One day, another inmate told Cotton that Poole had admitted to raping Jennifer Thompson and to committing the crime Cotton had been imprisoned for. Cotton wrote to his lawyer and asked to appeal his case, and a few weeks later he was back in court. During the trial, Cotton’s lawyer called Bobby Poole to the stand. Jennifer Thompson, face-to-face with her actual rapist for the first time since the incident, was asked which of the two men had assaulted her.

She pointed to Cotton. “The strongest emotion I felt was anger at the defense,” she remembers. “I thought, 'How dare you. How dare you question me? How dare you try to paint me as someone who could possibly have forgotten what my rapist looked like, I mean, the one person you would never forget. How dare you.'"

Cotton was sent back to prison, this time with two life sentences.

***

How is it possible that Thompson was able to sit in the same room as the man who had raped her, and still point to Cotton as the perpetrator? After making a concerted effort to memorize everything about her attacker, it seems unfathomable that she could fail to recognize him.

In the past two decades, researchers have begun to realize that memory isn’t nearly as straightforward as was once thought. According to Jonah Lehrer, psychology and neuroscience journalist, “Even though every memory feels like an honest representation, that sense of authenticity is the biggest lie of all.” For a long time, memory was thought of as being analogous to a video recorder or a filing cabinet. Individual memories were thought to be stored deep within the brain, where they could later be retrieved and accessed, retaining the same content as when they were initially stored.

But according to memory researcher and psychologist Elizabeth F. Loftus of the University of California, Irvine, memory is “more akin to putting puzzle pieces together than retrieving a video recording.” In 2010, writers Hal Arkowitz and Scott Lilienfield commented, “Even questioning by a lawyer can alter the witness’s testimony because fragments of the memory may unknowingly be combined with information provided by the questioner, leading to inaccurate recall.”

In fact, the act of remembering is a creative process. “Every time we recall an event,” says Lehrer, “the structure of that memory in the brain is altered in light of the present moment, warped by our current feelings and knowledge.” The term for this is memory reconsolidation, or the process through which previously stored memories become distorted over time. According to Lehrer, this is especially true of memories that elicit strong emotional responses. After the September 11 attacks, psychologists William Hirst and Elizabeth Phelps began a study to determine how closely witnesses’ memories of the tragedy aligned with actual events – and to what degree those memories would change as time passed. Lehrer summarizes:

At one year out, 37 percent of the details had changed. By 2004 that number was approaching 50 percent. Some changes were innocuous – the stories got tighter and the narratives more coherent – but other adjustments involved a wholesale retrofit… Over and over, the act of repeating the narrative seemed to corrupt its content.

This idea is corroborated by Elizabeth Loftus, who has conducted a series of studies in which she has successfully implanted “false memories” in subjects. Loftus begins the study by talking to participants’ family members, and collecting stories from each participant’s childhood. She then hands the subjects a series of short narratives: most are stories they would remember from their own childhood – a family vacation, etc. – but one of them is made-up. The subjects are then asked to provide further details about the events from memory. Loftus found that roughly 1/3 of the participants adopted the false memory as their own, claiming to remember an event that had never happened.

One of the false “memories” Loftus often uses is a story of getting lost at an amusement park as a child, and crying for hours until being reunited with his or her family.  These imaginary memories are not simple, mundane stories; they are emotional childhood narratives, events you would expect an individual to remember – if they had, in fact, happened. “The larger lesson,” remarks Jonah Lehrer, “is that because our memories are formed by the act of remembering them, controlling the conditions under which they are recalled can actually change their content.”

***

In 1994, Ronald Cotton was listening to the radio in prison when he heard DNA evidence was being used to determine guilt or innocence in criminal cases. The use of DNA evidence was relatively new in the 1990s, but Cotton wrote to his lawyer and asked if they could appeal the case once again.

Inside the rape kit from July 1984 there was a single sperm sample viable for DNA testing. The result was indisputable; it showed that Poole, not Cotton, was responsible for raping Jennifer Thompson. On June 30, 1995, Cotton was officially cleared of all charges and released from prison.

Upon hearing the news, Thompson was in shock. According to Detective Gauldin,"Her reaction was, 'No, that can't be true. It's not possible… I know Ronald Cotton raped me. There's no question in my mind.'" Thompson started frantically replaying the events of that night in 1984 over and over again in her mind – but every time it was Cotton, not Poole that she saw. "It was like someone had just taken my life and, like, turned it upside down," she said.

***

The use of eyewitness testimony in criminal cases is unlikely to change. Understanding the limitations of the legal system in this respect can help prevent individuals from being falsely accused like Ronald Cotton. The government awarded Cotton $10,000 in reparations for every year he spent behind bars. Any amount of money, however, seems trivial in comparison with the eleven years of life Cotton will never get back.

Jennifer Thompson & Ronald Cotton

Jennifer Thompson & Ronald Cotton

Jennifer Thompson is now a vocal advocate of procedural reform for eyewitness testimony. One of the most significant of these reforms is controlling who administers physical lineups to eyewitnesses. Most importantly, the individual overseeing the lineup should not know who the suspect is. When Thompson was told she had identified the same man as in the photo, this positive reinforcement helped to crystalize a false memory. Other reforms suggested by the Innocence Project include: having individuals in the lineup that resemble the witness’s description of the perpetrator, assuring the witness that the suspect may or may not be in the lineup they are viewing, and videotaping the witness identification so that the legitimacy of the procedure can be verified later.

In addition, it is important that jury members are aware of their own preconceived notions of eyewitness testimony – and how those notions may be incorrect. For instance, jury members tend to be more convinced by witnesses who remember a great deal of peripheral detail, in addition to details of the crime. However, according to a study featured n the Journal of Applied Psychology,those who could accurately identify a thief in a staged trial scored lower on questions that test their memory of peripheral details; meanwhile, those who misidentified the perpetrator had a stronger memory of peripheral detail. Jury members should be careful not to fall under the assumption that witnesses with a clear memory of the context of the crime are necessarily just as clear-minded about the crime itself.

The widespread use of DNA evidence in criminal cases has done much to offset the reliance on eyewitness testimonies. However, with over 80,000 cases every year still relying largely on eyewitnesses, it is important to keep in mind just how impressionable memory can be. Ronald Cotton will never get back the eleven years he spent in prison; but if a few simple reforms are made to the witness identification system, perhaps other innocent individuals can avoid losing years – or even their lives – based on a false accusation.

Margaret Sivit is a second year in the College.