Memory v. The United States Legal System

Shoot everything that moves or leave no witnesses are common criteria of the criminal community, but that may not be a necessary bargain. Witnesses can only conclude as much as they see and even that is often charged with emotional, cultural interpretations. Domestic abuse may not seem wrong to someone who’s religion condones physical punishment for a spouse. So in this instance, a witness would do no more damage than they would do good. Just as well, chunking, the length of short term memory, and the serial position effect, may all impose incorrect recall of what happened.

A prominent case involving an eyewitness account includes the trial and prosecution of Clarence Elkins. On June 7, 1998, Clarence Elkins’s mother-in-law and niece were raped, strangled, stabbed, and beaten. Elkins’s niece survived the attack and went on to claim the attacker “looked like Uncle Clarence”. Police took this to mean Elkins had committed the attacks, which was also corroborated by Tonia Brasiel, a neighbor that drove Elkins’s niece home right after the attack, thus giving basis for his arrest. The case was built on circumstantial evidence, mostly the eyewitness accounts of the niece and neighbor, and did not include DNA testing. Solely based on his niece’s testimony of him as the attacker, Clarence Elkins was sentenced to 55 years in prison. Tonia Brasiel’s common law husband was a convicted sex offender who had just been released from prison two days before the murder. It was also found suspicious that Tonia left Elkins’s niece on the porch, bloodied and beaten, for over 30 minutes before calling 911. Brasiel’s husband was in prison during Elkins attempts to appeal; coincedentally, the very same prison as Elkins. Elkins collected DNA from Brasiel’s husband through use of a cigarette butt and sent it to his attorney for lab testing. The results were inclusive! It was also found that Brasiel’s husband drunkenly admitted to the murders to an officer four months prior to  Elkin’s trial. Despite the DNA evidence connecting Brasiel’s husband, the district attorney refused to release Elkins and the prosecutor declined to revisit the case. Public pressure prompted the prosecution to conduct DNA testing, which finally resulted in the charges being dropped and Elkins release from prison. Following his release, Elkins helped pass Ohio’s Senate Bill 77 which required DNA preservation in homicide and sexual assault cases.  This case and many others helped promote the increasing necessity of DNA testing and the devaluation of eyewitness testimonies.

This case illustrates the fault in memory.  Memory is not a perfect video recording. It is often emotionally-charged and edited. Memories are hard to interpret because they are constructed based on personal experience. Retrieving and discussing our memories can also distort them in small ways, such as slight exaggeration or purposeful omission. Only small amounts of information are held actively available for a short period of time. Couple this by the chunking effect that can take place with witness interrogation, where one may remember and recall only grouped facts and omit others, and they may forget processes or occurrences that occurred between what they first saw and what they last assessed due to the serial positioning effect.

Daniel L. Schacter  in the Department of Psychology at Harvard University set out to discover the correlates and underlying cognitive neuroscience behind how memory can be represented in eye witness accounts. Prompted  by a recent change in New Jersey legal proceedings, which now require jurors to consider the different factors that affect eyewitness testimonies, Daniel Schacter states, “…cognitive neuroscience research could help jurors and other participants in the legal system to better understand why it is that memory does not operate like a video recorder, and why it is sometimes prone to error and distortion.”  These new instructions educate the reader on how to interpret eyewitness testimonies, unlike before. Daniel Schacter identifies neuroscience research “regarding false and imagined memories, misinformation effects and reconsolidation phenomena that may enhance understanding of why memory does not operate like a video recording”. This information can be applied in jury duty protocol to help achieve a more accurate ruling or at least a more accurate interpretation of the facts presented.



(2013). Our Falliable Memories in the CourtRoom: A Q&A with Daniel Schacter. CNS, Cognitive Neuroscience Society, retrieved from:

Prime, Richard. 2007, Nov. The Impact of DNA on Policing:Past, Present, and Future. The Police Chief,
James, Sarah. 2007, Mar. 11. Killer Instinct. NBC News,
2012, Aug. 9. DNA Evidence: Basics of Identifying, Gathering and Transporting. National Institute of Justice.

Schacter, Daniel; Loftus, Elizabeth. 2013, January 28. Memory and law: what can cognitive neuroscience contribute? Nature Neuroscience16,119–123 (2013) doi:10.1038/nn.3294 retrieved from:

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