Trials of an Expert Witness
- Research into memory shows that people often remember things differently from the way they were
This past January  I was contacted by a lawyer who said he needed my help. He represented a man accused of murder attested to by five eyewitnesses. He went on to say, “I know my client is innocent.”
What made this call unlike the hundreds of others I have received over the years is that this lawyer represents John Demjanjuk — the man accused of being “Ivan the Terrible,” the operator of gas chambers that killed perhaps as many as a million people at the Treblinka concentration camp in Poland during World War II.
Ivan the Terrible acquired his name and notorious reputation because of the sadistic pleasure he took in splitting the skulls of his prisoners with an iron pipe and otherwise mutilating them. Given my own Jewish heritage and strong feelings about the crime, could I possibly testify on Demjanjuk’s behalf?
I spent two months thinking about it. What of the presumption of innocence? And what of my obligations to my science, and of my science to the community at large?
As a psychologist who specializes in memory, I know that the human mind is subject to distortion. People often remember things differently from the way they really were. And contrary to the popular belief that traumatic events tend to create an indelible “fixation” in the mind, such traumas are often associated with memory problems. There is, in fact, a body of research challenging the value of eyewitness memory.
This specialized area has put me in contact with an unusual class of people — those accused of crimes they did not commit. I met Lenell Geter, the black engineer from Texas who spent 16 months in prison after being wrongly convicted of robbing a Kentucky Fried Chicken restaurant. The only evidence against him was eyewitness testimony. I met Father Bernard Pagano, the Roman Catholic priest falsely identified by seven eyewitnesses in a series of holdups in the Delaware/Pennsylvania area. And I worked on the tragic case of Steven Titus, a 31-year-old man from Washington state falsely convicted of rape. The rape victim went into hysterics when she identified Titus in court, and that helped convince everyone that he was guilty. But Titus was innocent, too — and later died, at 35, from a stress-caused heart attack.
Geter, Pagano and Titus discovered an important psychological truth that hard way: people are impressed by confident eyewitness testimony. Yet research has shown little or no relationship between a witness’s confidence and his or her accuracy of recall.
One of the first reactions to the idea that I might testify at the Ivan trial in Israel came from Jeremy, the 11-year-old son of my closest friend. Jeremy instructed his mother to “tell Beth that if she helps Ivan, we won’t be her friends anymore.” Jeremy’s mother, a sensible and usually serene psychologist, made her own views clear at lunch one day when she screamed at me: “How could you? Don’t you believe in anything?…He’s probably guilty!”
Moral judgments: Even more wrenching were the conversations with my 85-year-old Uncle Joe. Uncle Joe, who is like a father to me, was a victim of anti-Semitic treatment in Russia early in this century. He pleaded with me not to touch the Ivan case. “He’s probably guilty,” friends and family said.
But what if he’s not?
Uncle Joe and Jeremy’s mother provided grist for a lesson about the relativity of moral judgments. In the world of principle, we believe in the presumption of innocence. We believe, as the great jurist Sir William Blackstone once said, that it is better to let 10 guilty people go free than to convict one innocent person. Yet when we enter the world of Ivan, we realize that it matters very much what these 10 guilty people are guilty of.
Ivan’s trial resumes this week in Jerusalem after a brief recess. He is accused of crimes so unspeakable it stands apart from all others, a crime that makes people not yet born when it happened feel as if they, too, were its victims. No one knows precisely how many people died — maybe 850,000, maybe 1.2 million — but only 50 or so are known to have lived to tell about Treblinka. If there had been 50 more deaths, no one would really know the true horror. What value shall we place on the memories of these survivors, especially the five who have testified in court? Their memories are not just valuable — they are precious. It is a triumph of the human spirit that they survived at all, let alone with minds intact.
But the critical issue in the Ivan case is whether the face identified by these survivors out of that sea of sadism is the right face. As a psychologist, I believe, in principle, that if there is a scientific answer to a question, it must be provided no matter who is asking the question. I have testified in hundreds of cases where eyewitness testimony is crucial, but when I imagine myself giving similar testimony in the Ivan case, my discomfort is especially great. In the eyes of many it would be seen as an attack on the handful of people who miraculously survived Treblinbka and now wish to be believed. They would never understand that a questioning of one part of memory does not necessarily mean a denial of all memory. Thus such testimony would be seen as an unmitigated assault on the only memories we have of Treblinka.
My struggle over whether to testify was finally resolved when I described my dilemma to a friend who had dropped by for tea. “Consistency,” I said, “seems to propel me toward testifying. Not to act consistently feels intellectually dishonest. But what about Uncle Joe and Jeremy’s mother and the five survivors who would feel so deeply betrayed? It’s as if I were being being asked to testify for the man accused of killing my brother.” My friend, quoting Emerson, reminded me that “A foolish consistency is the hobgoblin of little minds.”
Emerson was comforting. I decided to leave this case to my colleagues. The cost of testifying as a defense witness would have been too great for the people I love most.
Loftus is professor of psychology and adjunct professor of law at the University of Washington in Seattle.
MY TURN | Newsweek | June 29, 1987