Scooter Libby, his memory defense and psychologist Elizabeth Loftus

Elizabeth Loftus is a well-known psychologist specializing in research on human memory.

She's in the news today for having been a defense witness for Scooter Libby, more specifically for having her defense testimony memorably demolished by prosecutor Patrick Fitzgerald: In the Libby Case, A Grilling to Remember by Carol Leonnig Washington Post 10/27/06.

Based on what I know about the Valerie Plame leak case, part of which is the Libby prosecution, I'm definitely sympathetic toward the prosecution on this one. But Elizabeth Loftus has done some important and constructively influential work in her field. So it's worth focusing specifically on exactly in what way her testimony for the Libby defense was discredited, or at least seriously challenged.

Former prosecutor Christy Hardin Smith discusses the cross-examination with background from her own experience in Memories FireDogLake blog 10/27/06. Steve Gilliard also spotlights it.

The bottom line that I want to stress here is that Fitzgerald didn't expose Loftus as a fraud or anything approaching that. Nor did he discredit her scientific findings. What he did was to show that her research about how juries regard memory-based testimony did not show that jurors were incapable of correctly evaluating such testimony, only that the deliberative process among jurors is needed to bring the necessary amount of critical evaluation to bear on the testimony.

Smith's post explains the legal context in much more detail and in accessible language. My own more modest summary is this. Libby's defending himself against charges of obstruction of justice and for lying to federal investigators about his actions in the leak of Valerie Plame's status as an undercover CIA officer. His defense is predicated on the argument that he wasn't intentionally lying, but that he remembered incorrectly due to the many important issues in which he was involved as Vice President Dick Cheney's chief of staff.


The topic of Loftus' testimony Thursday was whether the jury should be permitted to hear testimony from a defense witness on the lack of precision in memory. Loftus' was testifying specifically on her work concerning how juries perceive testimony based on memory. Loftus' work has documented what most of us (I assume) realize at some level from our own experience, that memories can be imprecise.

The point that the Libby defense wanted her to make was that juries are likely to have a false understanding that memories provide documentary-like accounts of past events. What Fitzgerald got her to admit in cross-examination was that her own research on juries showed that in the process of jury deliberations, individuals' over-valueing of memory-based testimony generally becomes a more realistic assessment.

This experience of her cross-examination is likely to be misused by some of her critics. And some of her critics are not nice people. In particular, Loftus played an important role in discredited the notion of "recovered memories", as they were applied by crackpot therapists in a number of cases in the late 1980s and early 1990s that became notorious. The worst abuse probably came from Christian fundamentalist therapists who promoted the vague diagnosis of "multiple personality disorder", using hypnotism to "recover" memories of childhood sexual abuse that the patients had supposedly forgotten completely.

Such cases resulted in lawsuits and, as one might imagine, more than a little family discord.

In the even more sensational category, the lurid tales of Satanic cults, complete with massive sexual abuse of minors and even the occasional human sacrifice, largely were based on this kind of "recovered memory" testimony. If we were to say that "virtually all" of those Satanic-cult tales turned out to be false or at least completely lacking in verifiable evidence, it would suggest that the stories were more credible than they were. The only reason to qualify it is that there is the occasional violent felony case in which the perpetrator is found to have some kind of fascination with Satanic imagery.

Somewhat less sensational but more influential in popular folklore were tales of UFO abductions, often based on the same sort of "recovered-memory" therapy using hypnosis. It's not an exaggerating to say that all of the UFO abduction claims remain unverified. They're bogus, in other words.

Where Loftus' work came in was that she showed through various experiments how memories of past events could be manufactured. And one of the problems of hypnotism in therapy is that patients are particularly susceptable to suggestion from the therapist when under hypnotism. That's the reason that testimony in court based on hypnosis is normally not allowed, although the "recovered memory" movement in its heyday opened a backdoor to it in courts.

Because the topic is high in the "ick" factor but also a highly emotional one, crackpots can use child-abuse to promote all sorts of wild notions and fake cures, knowing that sensible people aren't eager to rush in with opposing simple slogans when it comes to child sexual abuse, in particular. It will suffice here to say that childhood sexual abuse is not normally something people completely forget. In the many cases that have been vetted in court over priests sexually abusing minors and even young children, all the ones I've heard about that were proven in court were based on credible testimony, often with multiple witnesses and even formal documentation of contemporary complaints. Not on improbable memories conjured up under hypnosis by fundamentalist therapists obsessed with sex and the Devil.

I'm sure the UFO abduction fans will use the story of the Fitzpatrick cross-examination of Loftus to say she had been "totally discredited" or "exposed" or something along those lines. But that is not what happened. Smith explains in her blog post cited above from a prosecutor's viewpoint:

It was a glorious Perry Mason moment, and one so rare that we all just sat around afterward, stunned, because you almost never get an opening like that unless you (a) do all of your homework and check it five times over and (b) the stars align just right and your opposing counsel screws up.

Her summary of the Loftus cross-examination:

So, let me see if I understand this: Team Libby hired an expert to bolster the credibility of the memory expert they want to use at trial. Instead, she succeeded in solidifying the judges perception that juries usually end up getting it right most of the time, if they are given good information and time to talk amongst themselves about all of the evidence — thereby showing that the memory expert really isn't needed so much, because the jury can make up their minds themselves whether Scooter's hard job made him forget to follow the law or whether he's just a liar trying to cover his behind (and perhaps others as well).

Is that about it?

Several article by and about Loftus are linked this faculty page, including:

Make-Believe Memories American Psychologist Nov 2003

The High Cost of Skepticism by Carol Tavris Skeptical Inquirer July/Aug 2002

The Price of Bad Memories Skeptical Inquirer 22/1998

Tags: elizabeth loftus, patrick fitzgerald, recovered memory, ufo abduction, valerie plame

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