Last month, Dobbs v. Jackson Women's Health Organization was announced one business-day before my monthly submission was due to be delivered into Editor Dailey's hands. Reeling from the gut-punch of the decision and reacting emotionally, I made arguments that appeal to common sense, but which may not align with the analysis of experts who study substantive due process law on a regular basis. The analysis utilized by the Colorado courts in evaluating the reliability of an eyewitness identification, which is a memory, before admitting it into evidence, similarly relies on erroneous "common-sense" beliefs, rather than on what experts have concluded about the accuracy of emotional memories.

The test for determining whether an eyewitness identification violates a defendant's due process rights is whether "under the totality of the circumstances, the identification was unreliable because the confrontation was unnecessarily and irreparably suggestive." People v. Theus-Roberts, 378 P.3d 750, 754 (Colo.App. 2015). One of the five factors utilized by the courts in determining whether an identification is reliable is "the level of certainty" demonstrated by the eyewitness at the time the identification was made. In making this reliability determination in Theus-Roberts, the court found that the witness's "level of certainty was very certain," further stating that the eyewitness making the identification "was absolutely positive it was the same person and that, I think, is significant." Id. at 755.

The Colorado criminal jury instruction titled "Credibility of Witnesses" contains a "strength of memory" reference similar to the "level of certainty" factor used in the due process reliability determinations. This instruction states, in part, that:

You are the sole judges of the credibility of each witness and the weight to be given to the witness's testimony. You should carefully consider all of the testimony given and the circumstances under which each witness has testified.

For each witness, consider that person's knowledge, motive, state of mind, demeanor, and manner while testifying. Consider the witness's ability to observe, the strength of that person's memory, and how that person obtained his or her knowledge. (Emphasis added.)

Courts have concluded, and jurors are instructed, that an eyewitness's confidence in the accuracy of a memory is a strong indicator of the actual accuracy of the memory. Scientists and experts in the area of memory do not support this correlation between confidence and the accuracy of all aspects of an emotional memory.

I have recently read a slew of articles about memory formation and retrieval, and two of those articles were particularly helpful in explaining why there is not a proven correlation between confidence and the accuracy of emotional memories. See Lacy, J.W. and Stark, C.E.L. (2013, September) The Neuroscience of Memory: Implications for the Courtroom. Nat Rev Neurosci 14(9):649-658. doi: 10.1038/nrn3563; see also Konnikova, M (2015, February 4) You Have No Idea What Happened. The New Yorker https://newyorker.com/science/maria-konnikova/idea-happened-memory recollection. Both articles pay tribute to Ulric Neisser, a cognitive psychologist and pioneer in the area of memories, who focused on the concept of "flashbulb memories - the times when a shocking, emotional event seems to leave a particularly vivid imprint on the mind." These are the type of memories, such as eyewitness identifications, which are oftentimes the central focus in a courtroom.

At moments of heightened emotion, the amygdala, which has a direct line of communication with the visual cortex, tells our eyes to pay close attention. The amygdala may also signal to the hippocampus that it needs to pay special attention to encoding this particular moment. The coordination of these three parts of the brain allows us to firmly encode "emotional memories" which are different from regular memories. With regard to the central details of an emotional or particularly stressful event, emotional memories are clearer and more accurate than memories of a regular event. However, the peripheral details of this emotional event are less clear and less accurate than the peripheral details we typically recall in connection with regular events. Problems occur because the strength, clarity and accuracy of the central emotional memories makes us confident about the peripheral details as well. We feel confident about all of the details, "when we should only be confident of a few." (Konnikova, 2015)

The science behind emotional memories is directly at odds with the public perception of memory. The general public believes memory, like a video recorder, is highly accurate and resistant to change, especially in the case of "strong memories." This inaccurate perception is also shared and perpetuated by the courts, through the premise that witness confidence in a memory equates with accuracy. Additionally, courts oftentimes refuse to admit expert testimony, and instruct juries, on the biases inherent in eyewitness testimony.

Because new information gets blended with older memories or new information is used to fill in the gaps in memory, there is a tendency for memories to be heavily influenced by things that happened after the actual event itself. For instance, simply asking a question about an event can change someone's memories of what happened. Watching television coverage may change how people remember an event, and hearing other people talk about a memory from their own perspective may change the listener's memory of what transpired. These are cognitive biases based on the science of how memories are stored and retrieved. "If people expect certain things to occur during a crime or expect a particular group of people to be more or less involved in crime, it should perhaps not come as a surprise that their memories reflect these biases." (Lacy and Stark, 2013) Neisser "famously likened memory retrieval to paleontology by saying 'out of a few stored bone chips, we remember a dinosaur.'"

Expert witness testimony regarding the inaccuracies inherent in emotional memories, notwithstanding a witness's expressed confidence in those memories, should be routinely admitted by courts. Juries should also be instructed on the fallibility of eyewitness testimony. See Perry v. New Hampshire, 565 U.S. 228, 232-233 (2012). Problematically, the Colorado Supreme Court has consistently found the pattern jury instruction on witness credibility sufficient. The Court's "common sense" approach clearly needs quite a few sprinkles of science.