I’ve been thinking a lot – again – about memory. We make lots of jokes about memory. As we age, the ability to form or recall memories changes, usually for the worse. There are many misconceptions about memory that permeate daily lives and have serious implications in the courtroom.

One of my favorite sources for information about memory is the book Mistakes Were Made, But Not By Me, by Carol Tavris and Elliott Aronson. Much of what follows is my understanding of Tavris’ and Aronson’s writings.

Contrary to popular belief, memory is an extraordinarily flexible phenomenon. The authors of Mistakes Were Made use the phrase “memory is reconstructive,” which means memory is something that is reconstructed every time you experience it. There is a growing body of neuroscientific brain function data that supports this notion.

A memory isn’t something that you put into a computer in digital form and it comes back up the same every time. A memory is reconstructive and a memory is going to be affected by everything that has happened in between the time of the event and the recall of the event. A memory will also be affected by the reasons we are calling the memory up again.

Because memory is reconstructive, it is subject to confabulation. An example of confabulation is wholly or partly confusing an event that happened to someone else with one that happened to you. Another example is combining two separate events in your past into a single memory. When reconstructing a memory you draw on many sources, and they can be mixed up together.

A reconstructed memory can be at odds with physical facts or other peoples’ memories. A confabulated memory may be felt as the truth, though it is not. There is a tendency to call inaccurate or confabulated memories “lies.” It is true that some people just don’t tell the truth. But reconstructed memories may not be blatant falsehoods. They may be felt as true and may be necessary to our own emotional survival.

False or inaccurate memories may allow us to forgive ourselves and justify our mistakes. This phenomenon can be at work with both sides in a trial. But the notion that memories are always accurate is another pervasive, invasive all encompassing belief or illusion that most of us hold to strongly.

This is further complicated because people tend to believe that a memory of a really shocking incident is going to be more accurately recalled in the future than the memories of every day events. We believe that human beings create memories of a traumatic event like an accident leading to an injury much more accurately than memories of trivial, day to day events. Research shows this is not true. We do not create, nor recall, memories of traumatic events better than others. All memories are malleable and all memories are subject to change, generated from trauma or not.

Historically, I’ve focused on how the shortcomings of memory affects testimony from witnesses who are adverse to my client’s interests. Lately, I’ve grown increasingly interested in how the process, entirely human and understandable, can adversely affect my client. If a client’s reprocessed memories are at odds with physical facts or other credible sources, a client’s credibility can be challenged. I continue to give substantial thought to mechanisms to protect the people I value from this phenomenon.