Memory Enhancing Technology and Witness Testimony
Recently, scientists at USC implanted a memory enhancing chip into rats1. By recording the transfer of signals between hippocampal regions (CA3 to CA1), scientists were able to bypass the normal neural connections mice use to encode long term memory. The chip, when activated, allowed the rats to remember how to perform a task despite being drugged to forget how to perform that task. Although the technology is still very early in it testing phase, the scientists hope to apply the same principle to individuals with Alzheimer’s disease or stroke, where memory is often affected. Further, by implanting the chip and associated electrodes into brains that function normally, these scientists say that normal memory functioning will be enhanced.
Memory enhancing technology, when properly functioning in humans, will no doubt find many applications. One application with serious consequences, and considerations not present in other uses of memory enhancing technology, is eyewitness testimony. Although eyewitness testimony seems reliable, it is, in fact, highly fallible2. The Innocence Project, a group whose goal is to get wrongful convictions overturned, estimates that 75% of their overturned convictions stem from eyewitnesses who are mistaken about who they saw commit the crime3. Even when victims make a concerted effort to memorize the details of an attackers face, their memories can fail them during police lineups and other identification procedures, sometimes sending innocent people to prison4. Memory is also subject to distortion and fading after the fact, even if the initial memory was very accurate. The form of the question asked, too, can affect recall; for instance subjects shown an identical car wreck recalled one car travelling faster when they were asked about that car “”smashing” into the other than they recalled when they were asked about the first car “hitting” the second5. Trials are often delayed by the defense in hopes that witnesses’ memories will fade over time. This suggests two problems. First, people are often very bad at remembering what they’ve seen. Second, juries aren’t very good at determining true memories from false memories, even in light of all the other evidence presented. Despite these problems, many convictions turn on eyewitness testimony. Memory enhancing technologies could solve (or at least mitigate) the first problem.
If the eyewitness (whether victim or bystander) has memory enhancing technology implanted before becoming a witness or victim, then the technology should allow better recollection and reduce the number of wrongful convictions. This sort of recall would likely be treated just the same as normal memory by the courts, although the witness would probably have to disclose that they have memory assisting technology implanted and, depending on how mainstream the technology has become, an expert witness might need to explain how the technology works. Once the witness discloses their implant, however, the jury might weigh their testimony more heavily than they otherwise would, particularly if the attorney lays the groundwork to show how much more reliable enhanced memory is than standard memory. Assuming that the witness’s testimony is indeed more accurate, the jury ought to return more correct verdicts, even though the juries wouldn’t actually be any better at determining true memories from false memories.
If, however, the victim or witness has memory enhancing technology implanted after they have become a victim or witness new technical and legal issues arise. Although the USC research didn’t explicitly say that the technology would restore memories after-the-fact, I’ll assume that to be much help to individuals with Alzheimer’s disease the technology must be at least somewhat effective in restoring memories of events that occurred before implantation. Currently, witnesses are allowed to refresh their memory in many ways, including reading from a document the witness prepared when they did remember, even if the witness now has amnesia or some other condition that causes them to not remember6. Sometimes, witnesses may be hypnotized before trial to help them remember past events7. Because hypnosis aids witnesses in recalling memories that they don’t recall prior to hypnosis through methods that might introduce errors in recall, I think that jurisdictions considering whether or not to allow testimony from witnesses with memory enhancing technology implanted after the witnessed event will analogize to current laws about hypnosis-induced testimony.
Whether hypnotically induced witness testimony is admissible varies by jurisdiction8. Some jurisdictions take the position that hypnosis-induced testimony is always allowed; other jurisdictions go to the opposite extreme and never allow hypnosis-induced testimony9. In other jurisdictions, licensed psychologists are allowed to hypnotize witnesses to help them recall forgotten memories, but the witness must disclose that their memory has been hypnotically enhanced10. This is why I think that people implanted with memory enhancing technology before becoming witnesses will have to disclose their implant before testifying at trial.
Procedurally, jurisdictions that allow testimony aided by hypnosis generally require that, in addition to disclosure, the parties establish that the witness is otherwise competent to testify, that their testimony is relevant, that the testimony is more probative than prejudicial, that the hypnosis was performed by a neutral, licensed party, that the procedure was performed in accordance with the usual and accepted standards in the field, and that appropriate substantive and procedural safeguards were employed in conducting the hypnosis11. Additionally, there must be other collaborating evidence that tends to prove the recalled memory is accurate, existed before the hypnosis, and is reliable12. These last requirements are usually determined by the jury (or judge, during a non-jury trial) which, as stated above, is not necessarily very good at determining reliable memories from unreliable ones.
Substantively, I suspect that whether testimony from witnesses with memory enhancing implants is allowed will depend in large part on how secure the implants are. If the implant can only aid a person in recalling their own memories, and does so flawlessly (or nearly so), then the courts are more likely to allow the testimony. However, it seems to me that where memories can be recalled, they can also be implanted; this is certainly so with hypnosis, leading one attorney to write that “[a]ttorneys are forced to defend against [repressed] memories that cannot be proven true or false and are only now being “remembered” long after the alleged abuse.”13 Further, isn’t it likely that people getting implants are more likely to want to introduce information that they never knew, particularly if that information can lead to new knowledge and skills a la The Matrix? Additionally, new technology rarely works flawlessly, or even nearly so. The first implants are likely to have the same sort of bugs that plague other technology. These considerations could affect the validity of recalled memories and therefore the admissibility of the witnesses’ testimony.
Because hypnosis suffers from similar problems and is, at least in most jurisdictions, admissible in some degree I don’t see this sort of memory enhancing technology being barred from the court room, even if it can be tampered with or doesn’t work perfectly. If the technology works even moderately well, and if the implant is moderately difficult to tamper with (on par with computer hard drives, say, which can easily enough be hacked but are nonetheless admissible) then they have the potential to help witnesses more accurately recall witnessed events. The enhanced accuracy ought to lead to more weight being placed on the testimony, putting away more criminals and keeping more innocent defendants out of prison. And that, we can all agree, is a good thing.
John Niman is a second year law student at the William S. Boyd School of Law at the University of Nevada, Las Vegas. He blogs at boydfuturist.wordpress.com.
1 Berger, Theodore W. et al 2011 J. Neural Eng. 8 046017 A cortical neural prosthesis for restoring and enhancing memory
II, F. Robert and Simonson, Julie Anne Repressed Memory, Real or Fantasy?
3 The Innocence Project Eyewitness Misidentification
4 Thompson, Jennifer, New York Times June 18, 2000 ‘I Was Certain, but I Was Wrong,’ (Archived here)
5 Radel, supra.
6 88 Am. Jur. Proof of Facts 3d 395, §16 (Originally published in 2006)
7 Id. at §28 – §36
9 Id. at § 32
11 Id. at § 39
13 Radel, supra.