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Ferguson protest in downtown St. Louis. Credit velo_city, via Flickr (CC BY-NC-ND 2.0), no changes

About this week’s eSkeptic

Psychologists have known for decades that memory does not operate like a video camera, with our senses recording in high definition what really happens in the world, accurately stored in memory awaiting high fidelity playback on the viewing screen of our mind. In this week’s eSkeptic, Michael Shermer discusses how the fallibility of memory can cause eyewitness testimony to contradict the evidence.

Dr. Michael Shermer is the Founding Publisher of Skeptic magazine, a monthly columnist for Scientific American, a regular contributor to Time.com, and Presidential Fellow at Chapman University. His new book is The Moral Arc: How Science and Reason Lead Humanity Toward Truth, Justice, and Freedom. He is also the author of The Believing Brain: From Ghosts and Gods to Politics and Conspiracies—How We Construct Beliefs and Reinforce Them as Truths; The Mind of the Market, on evolutionary economics, Why Darwin Matters: Evolution and the Case Against Intelligent Design, and The Science of Good and Evil.

What Really Happened in Ferguson?
When eyewitness testimony collides with contradictory evidence

by Michael Shermer

Psychologists have known for decades that memory does not operate like a video camera, with our senses recording in high definition what really happens in the world, accurately stored in memory awaiting high fidelity playback on the viewing screen of our mind. Instead, fragments of scenes are processed by our senses, filtered through our emotions, biases, and prejudices, and put into context created by earlier memories, subsequent events, and the interpretations of our social group and culture. The world-renowned memory expert Elizabeth Loftus, in her 1991 book Witness for the Defense—a critical analysis of eyewitness testimony—explained the process this way:

As new bits and pieces of information are added into long-term memory, the old memories are removed, replaced, crumpled up, or shoved into corners. Memories don’t just fade…they also grow. What fades is the initial perception, the actual experience of the events. But every time we recall an event, we must reconstruct the memory, and with each recollection the memory may be changed. Truth and reality, when seen through the filter of our memories, are not objective facts but subjective, interpretative realities.

Loftus turned her research acumen to this problem when, in 1987, she was asked to testify for the defense of John Demjanjuk, a Ukrainian-born Cleveland autoworker who was on trial as “Ivan the Terrible,” the Nazi who murdered tens of thousands of Jews at Treblinka during the Second World War. But was Demjanjuk really Ivan? A witness named Abraham Goldfarb initially recalled that Ivan was killed in a 1943 uprising, but when he saw Demjanjuk he changed his story, now identifying him as the mass murderer. On the heels of Goldfarb’s testimony another witness named Eugen Turowski changed his original story of not recognizing Demjanjuk, now fingering him as the killer. The prosecution presented five witnesses who positively identified Demjanjuk as the man they had seen at Treblinka, but the defense countered with 23 other survivors of the concentration camp who could not positively ID Demjanjuk as Ivan the Terrible. An initial guilty verdict was overturned when another man was found guilty of the crimes.

In the 1990s there were two eyewitness-driven moral panics—the Recovered Memory Movement and the Satanic Panic—both of which involved court cases that turned entirely on the memories of eyewitnesses to satanic ritual abuse and sexual abuse claims, all of which unraveled before the facts (or the lack thereof), but not before destroying the lives of countless innocently accused. The Innocence Project, founded in 1992, uses DNA evidence to exonerate people on death row who were wrongfully convicted, the vast majority of which based on faulty eyewitness testimony—a total of 321 so far.

This process of mixing fantasy with reality to such an extent that it is impossible to sort them out is called confabulation, and Loftus has conducted numerous experiments showing how easy it is to plant false memories in people’s minds through simple suggestion and repetition, until the fantasy becomes a memory of reality. She famously concocted a story for little children about how they were once lost in a mall but rescued and returned to their parents—an event that never happened to any of her child subjects—and by merely asking them to recall details of the incident her child charges were able to recollect rich details. It was a chilling reminder of the frailty of human memory.

These historical examples should be kept in mind when assessing current events, most notably what really happened between 12:01pm and 12:03pm on August 9, 2014 in Ferguson, Missouri when police officer Darren Wilson shot and killed teenager Michael Brown during a physical altercation after Wilson confronted Brown who had shoplifted cigarillos from a local market. When a grand jury failed to indict Wilson for murder, moral outrage trumped rational analysis and rioting ensued. When the documents reviewed by the grand jury were made public, however, it became clear why an indictment was dropped. The eyewitness accounts that would have indicated criminal wrong-doing on the part of the police officer were inconsistent, unreliable, provably wrong, changed over time, and even fabricated.

One woman, for example, reported that there was a second police officer in the passenger seat next to Wilson, a white “middle age or young” man in uniform. Wilson was alone. A number of bystanders said Wilson shot Brown in the back, including Brown’s friend standing next to him, Dorian Johnson. Johnson’s initial story that Wilson’s shot “struck my friend in the back” contradicted his grand jury testimony that the shot caused Brown’s body to “do like a jerking movement, not to where it looked like he got hit in his back, but I knew, it maybe could have grazed him.”

Another eyewitness said Wilson shot Brown in the back and then “stood over him and finished him off.” Under oath in front of the grand jury, however, he admitted that he made it up “based on me being where I’m from, and that can be the only assumption that I have.” His recantation was classic memory redaction based on new information. “So it was after you learned that the things you said you saw couldn’t have happened that way,” a prosecutor pressed him, “then you changed your story about what you seen?” The witness responded, “Yeah, to coincide with what really happened.” Whatever really happened we know what didn’t happen: the autopsy report concluded that Brown was not shot in the back.

More memory confabulation was apparent in another eyewitness who told a federal investigator that when he heard the first shot fired he looked out the window to see a police officer with his gun drawn and Brown “on his knees with his hands in the air. I seen him shoot him in the head.” When later told by the investigator, “What you are saying you saw isn’t forensically possible based on the evidence,” the man admitted that he based his account on what someone else told him because he was in a stairwell at the time and didn’t see it.

The moral outrage is understandable if Brown had his hands up or was face down in surrender, which would imply that Wilson executed him in cold blood. Knowing that is not what happened, however, should give us all pause before we dial up our moral modules to 11 and seek self-help justice in the form of rioting and looting, rather than the criminal justice system that, flawed as it is, still insists that indictments be based on facts instead of emotions, which are fed by long-simmering prejudices and all the cognitive biases and memory distortions that come packaged in the human mind. END


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25 Comments »

25 Comments

  1. Val Zampedro says:

    Shermer gave the case for Wilson’s defense, and ignored the evidence for his guilt. Yes, there was contradictory testimony. That’s why it needed to be sorted out in a trial.

    • Bryan Schear says:

      What Shermer did was show that eyewitness testimony is unreliable and that forensic evidence was enough to arrive at a logical conclusion. If you have evidence that the rest of us missed then I suggest you share it.

      • jibjab says:

        Yes eyewitness testimony doesn’t hold up, memory is something that can be easily manipulated, when you read the transcripts from the trial there are things that come up that should make you question the outcome, 1 if the shooting happened out of self defense why where there no burns on the wounds from the bullet? 2 why where the events of the day presented in a scattered fashion? 3 what was a da who has links to previous police abuse cases (in the sense that he had a bias view point contrary to the basic principle innocent until proven guilty) 4 in the photographs of the wounds why was a healed scar shown as an injury?

      • ronnarb says:

        The testimony that helped exonerate Wilson was also eyewitness by some people who admitted having biases that could influence their perspective. The evidence accusing Brown of shoplifting was also eyewitness testimony, but he never got a chance to counter it. It seems to be turtles all the way down.

    • Kelly says:

      The purpose of a grand jury is to decide if there is enough evidence to go to trial. They decided there wasn’t. People are innocent until proven guilty. We do not have trials for every possible case.

  2. Steven McMacken says:

    After reading the Ferguson article I’ve come to the conclusion that if the prosecutor’s office was predisposed not to charge officer Wilson, all it would have to do is make certain that plenty of eyewitnesses were presented to the grand jury—knowing full well that they would offer up so much conflicting testimony that there would be no way an indictment could be handed down.

  3. Roy Niles says:

    “The eyewitness accounts that would have indicated criminal wrong-doing on the part of the police officer were inconsistent, unreliable, provably wrong, changed over time, and even fabricated.”
    They were wrong because they were fabricated to begin with, not “and even fabricated.”

    And why should someone have to go through a career ending trial to have a jury sort out who was lying when there was no evidence that the liars had a reason not to lie. Best example, Brown’s accomplice at the store robbery who was about to get arrested along with Brown, and because of his original lying about who did what, never has been.

  4. jimntempe says:

    Wow. Once again Shermer exposes himself as the shallow thinker. He basically has reproduced the prosecutors cover story as if it’s true. There is NOTHING in the forensics that disputes the claims of FIFTEEN witnesses who say Wilson shot AT Brown while he was fleeing. Shermer, like the other police apologists, seems to think that if the shots didn’t hit Brown it somehow means they weren’t fired AT brown. In addition, the autopsy could not determine the direction of one of the shots, it could have hit Brown from behind and could have been the cause of the witnesses who say it looked like Brown was hit by a shot fired AT his back. FIFTEEN witnesses say Wilson attempted to shoot Brown in the back. Only 5 witnesses say they didn’t think Wilson fired at him while he was fleeing. Yet Shermer discounts the FIFTEEN in favor of the 5.

    As to the “where Browns hands raised”, we again have the same essential breakdown in witness statements, FIFTEEN say he did, only 5 say he didn’t. We even have people we can see on video reacting to the shots within seconds after they were fired who are throwing their hands up mimicking Brown final surrender before Wilson killed him.

    Then there is this…The DA told the grand jury a LIE when he cited the LAW on whether cops could shoot fleeing suspects. The state law cited by the DA was struck down by the US Supreme court 29 years ago. It is not always legal to shoot at a fleeing felony suspect. Yet the DA was still peddling that lie when taking cops to a Grand Jury.

    Go to the bottom of this article for a table showing what the witnesses said and you see the 15 to 5 ratio. http://www.motherjones.com/politics/2014/11/inconsistencies-what-happened-during-michael-brown-shooting

    It’s funny how Shermer promotes skepticism when it suits his purposes yet becomes as gullible as any Fair Goer thinking he can beat the arcade games on subjects he knows little about. The DA in the Ferguson case has reeled Shermer in, hook, line, and sinker.

    • Chase says:

      Agreed. This is as biased as the prosecutor’s presentation to the Grand Jury. And, of course, since the article came out it turns out the key “witness” in favor of Wilson’s/Shermer’s version was a fraud — and even the prosecutor claims he knew she was lying before he let her testify! Talk about confabulation and manufactured reality and memories…

  5. Sharon Hill says:

    EXTREMELY glad Shermer wrote about this topic. It really bothered me to see the reaction of some I thought knew to be cautious with such judgments. I also wrote about it on Randi.org. This was such a complicated case, who are we as outsiders to make snap judgements especially those who didn’t even evaluate the evidence?

  6. Jim Lippard says:

    Shermer’s point about the reliability of eyewitness testimony is valid, but the grand jury proceeding in this case was a sham. The prosecutor’s job is not to hold the trial before the grand jury, but to present the best case for the guilt of the defendant in order to obtain an indictment. In this proceeding, the prosecutor read the grand jury a law under which Wilson would seem to be vindicated in using deadly force–a law which had been declared unconstitutional. This was only later communicated to the grand jury, in a way which didn’t make it clear what part of the law was unconstitutional. The jury also was given incorrect information about how far away from Wilson’s vehicle Brown was killed–told it was about 35 feet, when in fact it was about 170 feet away. There are also problems with Wilson’s testimony about hearing the dispatcher talk about a robbery suspect in a black shirt, which didn’t happen–the dispatcher said “black man in a white shirt,” which Brown was wearing; Wilson testified that he heard “black shirt,” and that he identified Dorian Johnson as the individual matching that part of the description.

    Radley Balko’s reporting on the towns of St. Louis County makes it clear that there is a serious problem in how law enforcement and the courts work in the area: http://www.washingtonpost.com/news/the-watch/wp/2014/09/03/how-st-louis-county-missouri-profits-from-poverty/

    There should have been a trial.

  7. Bad Boy Scientist says:

    I am sad. Very sad.

    Officer Wilson’s GJ testimony did not perfectly fit the evidence but Schermer did not comment on those discrepancies. If he had given examples from both sides his piece would have been impartial and not have distracted form his point that eye-witness accounts are imperfect. That would have had much more impact and his call for restraint may have been heeded.

    What he wrote has probably alienated many African Americans from Skeptic.com

    • Chase says:

      Not just African Americans! This is a biased hit piece cloaked in faux scientific empiricism. Deplorable, and I will never read Shermer the same way again, speaking of skepticism. A tribute to the fact that emotion plays an enormous role in “rational” thought, and that even purported advocates are subject to cognitive dissonance. Yuck.

  8. Lance Finney says:

    Why is the unreliability of witness testimony only mentioned (both by the DA and by Shermer in this article) when the testimony would incriminate Wilson? It seems there’s an assumption that a statement that exonerates Wilson didn’t need to be scrutinized further, but a statement that was bad for Wilson needed to be examined until some reason could be found to discredit it.

    That’s not a fair process.

    I don’t doubt that Wilson would have been likely to have been acquitted by a Jury trial given the laws in Missouri, but that doesn’t mean that the role of the Grand Jury was observed in the case. The Prosecutor is not supposed to act as the defense attorney, and the Grand Jury is only supposed to determine whether there was enough evidence to go to trial. A Grand Jury is not supposed to put itself in the shoes of the Petit Jury and decide.

    A friend of mine used to be a Public Defender in St. Louis, and she saw McCulloch prosecute many cases, and she never saw an approach anything like this case. Perhaps it would be more fair overall to all accused to use this process, but it is inherently not fair when a process more likely to result in no indictment is reserved only for select cases.

    As Jim Lippard points out, there was over 100 feet separating Wilson and Brown at the time of the lethal shots. Because Brown had no weapon, Wilson was under no imminent threat (it would have taken at least 10 second for Brown to close that distance, and probably much longer since Brown was not a world-class sprinter). Wilson did not need to kill Brown. Whether Brown had his arms up or not is really a red herring, in my opinion – the important question should have been “was this use of lethal force necessary”, and it clearly wasn’t. That 10+ seconds would have been plenty of time for Wilson to get into his car for safety or to get out his pepper spray. Lethal force at that distance was unnecessary.

    McCulloch gave the Grand Jury the wrong question to answer, asked them to play the incorrect role, and instructed them with an unconstitutional law.

    Unfortunately, Shermer buys into the intentionally unfair practice and approach that McCulloch and focuses solely on minor issues like the position of Brown’s hands without considering the bigger picture of why the entire process was mishandled.

    • Chase says:

      Especially since one of the most prominent “contradictors” is now a proven liar. Makes Shermer look foolish, at best, in light of his one-sided, logically fallacious essay cloaked in the authority of a “rationalist.” Shameful.

  9. Jim Lippard says:

    It looks like one of the witnesses to the grand jury, Witness 40, a self-admitted racist and Wilson supporter, fabricated testimony and should never have been brought as a witness:

    http://www.dailykos.com/story/2014/12/02/1348854/-Please-read-Witness-40-s-FBI-interview-and-grand-jury-testimony-Just-read-it

  10. HD says:

    I certainly hope that Shermer had a look at the comment section and is seriously reviewing comments made by the following individuals because they are bang on:

    Jim Lippard says:
    December 17, 2014 at 1:14 pm

    Lance Finney says:
    December 17, 2014 at 1:48 pm

    “When the documents reviewed by the grand jury were made public, however, it became clear why an indictment was dropped. The eyewitness accounts that would have indicated criminal wrong-doing on the part of the police officer were inconsistent, unreliable, provably wrong, changed over time, and even fabricated.”

    That statement leads me to believe that either Shermer doesn’t understand due/fair process or he is purposely trying to confuse the reader. I hope the former is true.

    Failure to indict is the cause of the outrage. There should have been a trial.

    The court should have decided what to make of the eyewitness accounts.

    Dumbfounded that Shermer doesn’t seem to be able to see that.

    • John says:

      That’s funny. Here I was watching CCTV of him stealing cigarillos and then shaping up to the storekeeper, thinking I was watching CCTV footage of him doing that. And now it turns out I must have imagined that non existent evidence. Shermer is right; how silly of me. Thanks for helping.

      • Lance Finney says:

        Could you fill in the logical step(s) between “I’ve seen footage of the dead man engaged in petty theft” and “Therefore, complaints about improper procedure in how the Grand Jury was run are invalid”?

        I’m missing something.

        • Jeff B says:

          Lance, I’d say that what you are missing is that strong-armed robbery is not shoplifting. What Brown did is a violent felony, not a misdemeanor. He committed a second violent felony when he assaulted officer Wilson. The only misdemeanors he committed were walking in the middle of the street and ignoring the initial lawful commands of the officer.

          I’m all for having this debate about eyewitness testimony versus evidence, and even the larger debate about use of force and race relations; but minimizing Brown’s behavior does not contribute to such useful debate. It belies the very biases to which Dr. Shermer is referencing. This selective ignorance of both the gravity of the offences committed by Brown, coupled with the agenda-fueled rhetoric from some elements has tainted what could be an opportunity to see some real reform. Just a thought.

          • Lance Finney says:

            My point still stands with this:

            Could you fill in the logical step(s) between “I’ve seen footage of the dead man engaged in felony assault” and “Therefore, complaints about improper procedure in how the Grand Jury was run are invalid”?

            It doesn’t matter what Brown did before the altercation or even in possibly causing the altercation when the question regards the mechanics of the Grand Jury.

  11. Darren says:

    eyewitness accounts, even under ideal conditions, are un-reliable, exacerbated with the high emotions that come with a death, it is no surprise so many testimonies were recanted and shown to be inaccurate. Furthermore, you have to take into account the already high mistrust of police in urban areas, the people who are just looking for their moment of fame and the ones who just like to stir trouble. on the other hand, someone facing criminal charges will probably say anything to avoid it, as would his co-workers and friends.
    the job of an investigator is to wade through this swamp of misinformation, both intentional and not, to find the few nuggets of fact. Sometimes that is all they have to go on since, unlike what TV would like you think, the physical evidence does not always paint a second by second account of events.
    the problem with situations, like Officer involved shootings, is that the people doing the investigating are the same that are having drinks with subject after work. If an investigator has to decide who is telling the truth, the civilian or the guy he has to work with, who do you think he is siding with?
    I don’t think any rational, unbiased person that has heard the evidence thinks that Mike Brown was a sainted teenager just minding his own business. chances are he, at the very least, had a attitude with the officers and possibly even resisted arrest. but was Officer Wilsons life in danger? Did Browns actions warrant his killing? I’m not suggesting that Wilson acted improperly, but I would like those question ask by someone outside the sphere of influence of the accused.

    I have many friends in Law enforcement, they are all good people. But even they are sickened by events like this, and more so by situation like the shooting of 12 year old Tamir Rice in Ohio. One of them made a comment that there are 2 types of cops, those who will only fire their weapon when needed and those who are looking for an excuse to fire theirs.
    Law enforcement, just like any other group, has good, bad, angry, racist, open-minded and helpful people. I don’t discount the Law Enforcement profession because of bad apples, but neither do I defend them blindly. there needs to be steps taken to quell the bad apples in Law enforcement. I think the good cops would be just as glad to see them go and we are.

  12. Chris Meisenheimer says:

    Having read the comments I’m amazed that people think the article was in support of Wilson. The article was focusing on the unreliable nature of eyewitness accounts and the nature of memories. It does not make a judgement ether way. The question not being explored is what causes a young man to act in such a reckless nature, if he is the salt of the earth like everyone says he is? Any time you attack an armed officer you have to know it’s going to end badly. Did he have a previous head injury, take bad drugs. My guess is a break-up with a girl, as nothing can make an 18 yr. old man act reckless than an 18 yr. old girl.
    The comments from people indicate a lot of people don’t like the police the same way they dislike teachers. Maybe this is because it’s where they encountered the discipline they didn’t get at home. Teachers tell them to sit down and shut-up and police are experts at seeing through the BS. they successfully sell to their parents. I don’t trust the police ether, they have bad apples like any profession but l recognize the need for them.
    I believe that accessiablity to mental health services is more of an hidden issue than racism.

  13. nevernine says:

    I am amazed that people still say (including Shermer in this article) that Brown “shoplifted” cigars. He, in fact, committed a robbery. The video tape clearly showed he physically threatened the man. The man then called the police to report the “robbery” not shoplifting.

  14. seajones says:

    There is possibly 1000 other ways that officer could have handled that situation without firing as many shots as he did and without ending a human life. So please get your “god of the gaps”/”he was just doing his job” bullshit out of here it does not belong

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