The Plasticity of Memory, Indeed: Some quick reflections of the call to charge Ferguson eyewitnesses with perjury

Driving about town this week, I was somewhat startled to hear what seems to have been the conservative wingnut Talking Point D’Jour: That charges of perjury or criminal fraud should be brought against witnesses whose testimony did not corroborate Officer Darren Wilson’s version of the events that lead to the death of Michael Brown in Ferguson last August.

I first heard this on the Robbins and Markley Show, one of the seemingly countless entries into that radio oeuvre where guys who had cut their teeth in the wacky Morning Zoo-esque formats have reinvented themselves into uncompromising conservative talking heads to maintain a steady paycheck.  Going the route of perjury and fraud charges weren’t just something that Robbins and Markley were advocating; they seemed genuinely confused as to why such charges were not already being issued. And sure enough, since then I have heard this same talking point being repeated over and over, by shock-jock pundits local, regional and national alike.

As best I can tell through Google-fu, the ground zero of this new talking point seems to be none other than Rudy Giuliani — a former prosecuting attorney and Associate Attorney General who absolutely knows better.

On November 25 on Fox News (natch), Giuliani stated the following:

I disagree with the prosecutor on only one thing. I would prosecute all those people [whose testimony did not corroborate Wilson] for perjury… To testify falsely in a case in which you can put a man in jail for the rest of his life is an extremely serious crime. [Witnesses who would not corroborate Wilson’s testimony] are people who have an axe to grind.

As I said, given his resume Giuliani absolutely knew this was ratings-trolling garbage when he said it.

We tend to believe that eyewitness testimony is the most reliable of evidence, but in fact it is among the worst.  There are many reasons for this, but the primary one is that memories are not in fact “recorded” in our brains as they occur so much as they are reconstructed afterwards.  What’s more, there are a huge number of elements that go into our memory reconstruction without our being aware: confirmation bias, confabulation, even the way a particular question about what we remember is phrased will shape what we truly believe we witnessed. We even remember aspects and actions of people of different races differently than we do people of our own race.

Memory, in other words, is far less reliable than we often suppose. This is the case with the memories of our childhood, with the memories of who-said-what when we’re having a tiff with our significant others, and the memories of what happened at the scene of a crime.  The “plasticity of memory,” to steal the words of a man far wiser than I, can be affected both by “principles of charity” and “pugilistic punditry” — and a hell of a lot of other things as well.

What happened in Ferguson is no exception.

One of the interesting things that has occurred since the release of the grand jury’s findings is how everyone on all sides seems cling to eyewitness testimony as confirmation of what they previously believed happened on August 9.  In fact, however, the actual testimony was all over the map.  And when I say “all over the map,” I mean that literally because PBS actually mapped it out:

[Note: You can see a bigger version at PBS’s site here.]

As you will note, the PBS map doesn’t even show witnesses in two different camps; out of the thirty witnesses who gave testimony, pretty much no one agrees with anyone else on exactly what happened. Our belief that witnesses corroborated our own narrative about what Officer Wilson did or didn’t do is highly dubious; indeed, the reported details that we believe are true probably has more to do with where and how we first saw or heard this story reported than any other factor.

A book that I have mentioned here often is Dave Cullen’s Columbine, and if you have never read it you really should.  It’s fascinating on a number of levels, but to me the part that has stood out over time is how Cullen is able to dissect the timelines wherein the various “facts” we all know about the tragic shooting are created almost out of thin air due to a number of disparate factors.  Almost every “fact” that is common knowledge about the massacre and its villains is in fact a fiction erroneously reconstructed in the memories of the people who were the actual first-hand eye witnesses.  These eyewitnesses weren’t lying; they had no political agenda or public policy “axe to grind.” That’s just the way memory works.  And later, when showed definitive evidence that their memories were pretty far off the reservations, some recanted their original testimony and said they must have been affected by outside influences, while others dug in their heels and to this day have never accepted the definitive (sometimes video taped!) evidence.

This, as we now know, is what happens at almost any sudden and random event where there are witnesses — and it’s what happened in the case of those who had the ill luck to be nearby the shooting of Michael Brown.  It isn’t proof of blatant perjury,  a news media conspiracy, or even the “extremely serious crime” Giuliani proffers; it’s proof that the eyewitnesses in Ferguson were human.

All of which brings us to a rather important and uncomfortable truth: None of us really knows exactly what happened in Ferguson, MO, the day Michael Brown was shot, and none of us ever really will.

But we should also note that wrapped up in that truth are other truths about the disparity that stems from race in the United States, and we ignore those truths at our own peril.

I’ll take a look at those truths in my next post.

[Picture: They Stand Accused, public domain; Witness stand, via Wiki Commons]

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