They’re huge!  They feel like the real thing.  The shape and detail is perfect.  But they are fake.  What are we talking about?  Memory Implants of course!

Gestalt Psychology says that people will make a whole when they only have pieces.  To demonstrate this concept, Gestalt psychologists would give incomplete geometric figures or leave letters out of words, and people would fill in missing lines or letters.  In the experience of this writer on the sites of major catastrophes and criminal acts, this happened all the time.  When given some details of an event they would fill in the rest so that it made sense.  Making wholes is human nature!  The research on “False Memory” takes it even further.

Researchers have been able to show that people will say they shook hands with Bugs at Disney World when shown a picture of Bugs and Mickey Mouse together.  Bugs Bunny is a Warner Brothers Character and not at Disney World.  Okay, maybe that one is not going to convince you.  Researchers have also shown that they can create a false memory in adults of being lost in a shopping mall when they were children by simply suggesting it.  Not too many law suits come from being lost in a shopping mall, but still interesting.  How about by simply asking a four year old child a couple of times about being bit by a mouse, over 30% of the children gave a very in depth story about going to the hospital and getting treatment.  This is a situation that their parents say never happened.  And it can be done to kids from age four to age 17.  Now we are getting closer to the edge.

The applications are obvious in matrimonial cases.  Simply by a parent asking, a memory can be implanted in a child about anything from a bad time on a visit with the other parent, to sexual abuse.  Not to say that all memories of abuse are planted, but there is reason to be concerned about it happening.  Researchers also show that it doesn’t stop with parents; in fact, the worst people for implanting false memories are the less scientific psychotherapists who get it in their mind early that a person might be repressing memories of abuse when they were younger and create that memory in a person through supposed therapy.  Imagine the power a therapist feels by bringing out a repressed memory.  Power yes, reality, not likely.

Emotional/physical abuse and sexual abuse are the most obvious application and the most publicized for lawyers, but not by any stretch of imagination the only application of the false memory problem (called a syndrome in psychological parlance, but that doesn’t sit right with this author).  Eyewitness testimony is of great concern as it is highly susceptible to false memory.  The car accidents or even witnesses to a crime can be brought into question if the circumstances are right to create a false memory.  Traumatic memories in lawsuits are in question as the development of PTSD (post-traumatic stress syndrome) is highly susceptible to suggestion from false memory.  In tort law, false memory is a major issue to consider as the conditions are perfect for developing a false memory when one person sues another or an institution.    Long interrogations by the police are known to create false memory and evened wrongly signed confessions (confirmed by DNA evidence later).  And what a help to cross-examination and summation techniques to know that 30% of your audience can have a memory created of even what happened in testimony a few hours before.  Lawyers used it in the OJ trial, at least from the accounts of the jury afterwards.  It really is a powerful concept that can be applied to the practice of law in many different situations.

How do you handle a case where false memory might be a problem?  Three quick tips:

Read some:  A little knowledge is a dangerous thing, but no knowledge is like walking through the Port Authority bus station in New York with $100 bills hanging out of your pockets.  In ten minutes on the internet you can understand the concept of false memory, the applications in a couple of legal cases and the controversy surrounding it.  That will likely be more than your opposition.

Know your probabilities:  Sexual offenders confess 89% of the time.  Most of the rest of the 11% have plenty of rationalizations and justifications for the event occurring.   Women are as likely to be child abusers as men, but the child will perceive their father as the abuser more often when they receive abuse from both, even when the mother is more aggressive.  PTSD claims were ten times more likely when managed care came into being because they were one of the diagnoses paid for by the insurance company.  Know the probabilities and you can structure a defense or offense around them. Or…

Consult with a scientific based expert:  There are tests that can be used to determine susceptibility which correlates highly with false memory.  Also tests for personality disorders and for the problem that you are going to court with in the first place (i.e., abuses, injury, criminal intent, eyewitness memory).  In addition to testing, there are a myriad of experiments a psychologist can run in his office to check for false memory.  This person must have a strong basis in science, not just counseling or social work.  He can help you define a case or do an unbiased assessment if you are a law guardian.

Competitive advantage is something that concerns all attorneys.  Knowing a little about the real science of forensic psychology will give you a great advantage in the courtroom or negotiating room.  After all, since most of your clients talk to you like you’re their psychologist anyway, you might as well know something about it!

Dr. Aumiller is the executive director of the   Society for Police and Criminal Psychology, an international network of police and forensic scientists, therapist and researchers.  He consults in the court systems of Long Island and lectures throughout America and Europe.