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My Turn: In Furst case, troubling argument from prosecution

The recent mistrial in the Deborah Furst case suggests that a majority of jurors can conform their thinking and decisions to the findings of eyewitness and memory research while prosecutors maintain a disturbing ignorance.

Many of these cases seem to be devoted to the issue of who is lying and who is telling the truth. A more valuable point might be who remembers what, and is that memory accurate?

Few children can remember events that occur before their fourth birthday. So when a child recounts events that occurred that early in life, those events clearly came from another source, not from that child’s memory.

Sometimes that source is valid, for instance, a videotape of the event the child views later. Sometimes the source is questionable, such as the account of a divorcing parent. When a child recounts a series of events over time that began with an event that cannot be recalled, one might accurately question the entire series.

Children, like the rest of us, have difficulty recalling events accurately. This has been well established in psychology beginning in the 1980s. In a series of experiments, often called the “Lost in the Mall” studies, subjects were read both true and made-up events from their childhood. (The true events came from family members who verified that the individual had never been lost in a shopping mall.) In one of the original studies, many of these people who had never been “lost in the mall” recalled this false memory. Some actually embellished this false memory of being lost, adding details to an event that never happened. These findings were replicated in other studies involving a punch bowl disaster at a wedding and getting one’s picture taken with Bugs Bunny at Disneyland. (A Warner Brothers cartoon character is unlikely to be admitted to Disneyland.)

For a child who is asked to recall or verify real events, along with events that did not happen, the danger of false memories is very real. A child who can easily recall true memories of interactions with a parent can be easily induced to “misremember” events that never happened, without any intention to lie.

In the Furst case, in which a Bradford woman was accused of molesting her stepson, there were a series of events as improbable as Bugs Bunny getting into Disneyland. First, child molestation is almost entirely the providence of heterosexual males, not females, gay or straight, and many of the recalled events were highly improbable. Second, much of the “recalled” molestation was not reported at or near the time that it occurred, but after the parents separated and one parent filed for custody. The courts and the psychological literature are full of questionable claims used to support the self-serving motives of litigants.

Overall, the majority of the jurors behaved as if they were well-versed in the easily available memory research of the past 25 years, and one might dismiss the minority of jurors who were sympathetic to “a cute and likable little boy.”

What is troubling and dangerous is a prosecution that appears to be both ignorant and dismissive of applied research that might prevent a miscarriage of justice.

(Maurice Regan is a psychologist and a professor of criminal justice.)

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