Trials are our method of "getting at the truth." They don't really do that, but they make us feel better as a society. Next Sunday on 60 minutes, Leslie Stahl will be airing a two-part piece on why eyewitness testimony is not reliable. I encourage all to watch it.
Most lawyers who have litigated cases know that honest people differ in how they report what they see, and honest people are convinced of the accuracy of their memories even in the face of contradictory evidence. Then there's the problem that people look like other people. When we see someone for a brief glance during a crime, we don't focus on all the distinctive features that make them different from one another. If I watch a crime committed by someone I know well, it is pretty easy for me to identify him - I might recognize the way he walks or moves, and know who it is even if I don't see his face. If I've never seen the person before, I don't have a benchmark to go by - I just can't remember all the details.
Several years ago, I watched a local university professor discuss memory studies that help explain why these honest people get it wrong when asked days, months, or years later what happened.
Our clients often describe transactions that have occurred in the past, confident that things happened in a particular way. Even when faced with documents they signed which don't match their recollection, they can't believe they are wrong. According to the memory expert, our minds mix memories, yet we are confident that we are accurate. Aside from the fact that people lie to suit their benefit, confused memories are why trials don't always work out the way lawyers and clients expect.
