Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

During Christine Blasey Ford’s testimony last Thursday to the Senate Judiciary Committee, at one point I imagined that millions of Americans were doing a double take at her use of the word “hippocampus.” When the witness was asked, as part of Supreme Court nominee Brett Kavanaugh’s confirmation hearings, what she remembers most about the assault she is claiming, she replied, “Indelible in the hippocampus is the laughter, the uproarious laughter between the two.” The statement is powerful, but the technical language may have been surprising — until, that is, one remembers that Dr. Ford is a research psychologist. The question has come up, 36 years later, why does she clearly remember some details more than others? President Trump, in fact, harped on that question at a political rally on Tuesday night: “How did you get home? I don’t remember. How’d you get there? I don’t remember. Where is the place? I don’t remember. How many years ago was it? I don’t know.” Trump continued as his audience laughed and applauded. “What neighborhood was it in? I don’t know. Where’s the house? I don’t know. Upstairs, downstairs — where was it? I don’t know — but I had one beer. That’s the only thing I remember.” Actually, she remembers much more than that: The year, the neighborhood, that it happened upstairs, and of course, many details of the assault itself.

Still, Trump is playing to a familiar suspicion attached to distinctions in memory. But is it actually odd that a witness would remember some things very clearly while other details are recalled only dimly or not at all? Maybe to many average Americans it is odd, but to psychologists who understand memory and to counselors of those who have dealt with traumatic events, it isn’t odd at all. That understanding might actually end up being the silver lining to come out of this controversy: By raising the issue in such a public fashion, there is a good chance that more Americans will have a better understanding of the selective nature of memories surrounding highly-emotional events. In this post, I will take a look at what that might mean for future witnesses and jurors.

The Connection: Intensity Equals Encoding

A recent Forbes article provides some perspective on the controversy. The title is, “The Kavanaugh Hearing Is Not ‘He Said, She Said.’ It’s ‘She Remembers What He Did, He Doesn’t,’” and it makes clear that the author, clinical psychologist Todd Essig, is taking a side on the credibility question. But the useful takeaways for litigators and witnesses have to do with the nature of memory. “How people understand, or fail to distinguish, between two very different kinds of memories,” he notes, “will determine the outcome of the Kavanaugh nomination.”

The two kinds of memory he writes about are incidental or familiar memories (to Essig, that would be Kavanaugh’s memories) and traumatic memories (to Essig, that would be Blasey Ford’s memories). He notes that she remembers all of the details of the attack (the loud music, groping, attempted removal of her clothes, the hand over her mouth), but really nothing else of substance (exactly where, or when, how she arrived, how she left). That makes sense due to the heightened levels of memory encoding during highly- traumatic moments. That is why, when thinking about the car crash afterward, it seems to have happened in slow motion. In drawing the distinction between what Blasey Ford remembers and doesn’t remember, he summarizes, “In other words, she remembers what happened during the attack but not details from before or after. This is not surprising. In fact, this is how traumatic memory works.” That, of course, is no guarantee of accuracy. Even intense memories are susceptible to the natural “structuring” process of the brain’s recollection over time. But it does explain the inconsistent levels of recall that President Trump lampoons at his rally.

The Relevance: Defending Memory Inconsistency in Testimony

This takeaway applies not just to victims — crime victims and some civil plaintiffs — but also to any witness who is recalling events that were formed during an emotionally-heightened period of time. For example, consider the emergency room physician who sees scores of patients per day, and is remembering a particular patient from four years ago. They don’t remember whether it was morning or afternoon, they don’t remember the patients before or after, they don’t remember if family members were there, but they remember the moment the patient coded, including details that were not documented in the chart. How can that be? It can be because that particular memory was formed during a moment of intense physiological arousal, with the sympathetic nervous system — heart rate, respiration, blood oxygen, adrenaline, etc. — all kicking into higher gear and ensuring that the memories formed in those moments are treated by the brain as ‘indelible in the hippocampus’ and particularly important to survival.

So that physician, in responding to questions, can explain that difference:

I understand that it might seem odd that I recall these details, but not other details about the day or the patient. But it is important to understand: This was not something you see every day, even in an emergency room. We were all doing our jobs and staying professional and focused, but at the same time, this was a very unusual crisis situation. Physically our minds and bodies were on high alert. That is what I think caused my memories to lock in on some of these details, but not on the events before or after. 

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Other Posts on Memory: 

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