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The frailties of memory and the conviction of Scooter Libby

- May 21, 2009


Remember Scooter Libby? He was then-Vice President Dick Cheney’s top aide, who, when charged with “outing” the identity of CIA operative Valerie Plame, claimed not to remember having done so. (Years earlier, Ronald Reagan had disclaimed any memory of authorizing an arms-for-hostages swap, saying that even though the evidence did suggest that he had indeed done it, he just didn’t recall it.)

At trial, Libby’s attorney sought to introduce expert testimony from psychologists about the foibles of memory. That motion was denied on grounds that such testimony would simply tell jurors what they already knew:

bq. Everyone in their daily lives is called upon to store, encode, and retrieve information he or she has been subjected to. Although the average juror may not understand the scientific basis and labels attached to causes for memory errors, jurors inevitably encounter the frailities of memory as a commonplace matter of course (U.S. v. Libby, 2006).

But do ordinary people really understand the ways that memory lapses work? In a new study of the “motivation to remember,” Karim Kassam, Daniel Gilbert, Jillian Swencionis, and Timothy Wilson establish that (a) people who are highly motivated to remember something at the time when they encode it in memory are more likely to remember it than are those who become highly motivated to remember it after encoding it, and (b) that difference is typically overlooked by ordinary people (a category that presumably would include jurors, in whose decision-making the distinction could have played a role if they had known about it).

More specifically: In the experiment, participants recalled more facts about a stimulus person they read about when they were motivated to remember before reading than when they were motivated afterwards. (Having been motivated after reading was no more effective than not having been motivated at all.) But what stands out was that when other groups of participants in the experiment were asked to predict how accurate these recollections would be, they predicted that those who had been motivated after reading would remember just as accurately as those who had been motivated beforehand. Wrong, wrong, wrong.

As the researchers conclude, “People do indeed encounter the frailties of memory as a matter of course, but this does not mean that they understand the nature or power of these frailities.”

My conclusion: You may or may not think that Scooter Libby really didn’t remember (I have no particular insight about this matter) or that he deserved to be found guilty (about which I have an opinion, but an ill-informed one), but it does appear that he might have had a better chance of walking if the court hadn’t stepped beyond its social scientific expertise by disallowing the type of testimony that the defense sought to introduce.