NEUROSCIENCE & THE LAW JAAN RANNIK

1

ADDRESSING THE SHORTCOMINGS OF EYEWITNESS MEMORY AT TRIAL
If you wish to forget anything on the spot, make a note that this thing
is to be remembered. Edgar Allen Poe
I. INTRODUCTION
The unreliability of human memory has often been remarked upon, in media ranging
from scholarly and scientific studies to jokes and pithy quotations. And, being relevant to all
walks of life, the fallibility of memory has been discussed with regard to a hugely broad
selection of subjects, from musicians having memory slips on stage to eyewitnesses
misremembering and identifying the wrong person as the perpetrator of a crime.
Naturally then, some failures of memory are more significant than others. Those
impacting our legal system can have varied and potentially momentous implications, particularly
in criminal cases where a defendants liberty is at stake. A witness can forget what is really a
relatively minor detail, but thereby lose credibility in the eyes of the jury. A jury can forget a
significant detail buried in the midst of a multi-week trial and render an erroneous verdict. An
eyewitness can, with utter sincerity and confidence that he is correct, point the finger at the
wrong person.
As our understanding of the human brain advances, so too does our understanding of how
human memory functions.
1
With this greater understanding of memory comes a responsibility to
reexamine the role of memory in our legal system. This paper will attempt to do so in small part,
exploring two separate issues regarding the role of memory in the courtroom: (1) how most
effectively to alert juries to the fallibility of human memory (so they can more accurately weigh
eyewitness testimony relative to other types of evidence)
2
; and (2) how to make a case to the jury

1
See, e.g., John M. Barry, The Cognitive Neuroscience of Memory,
http://www.inference.phy.cam.ac.uk/jmb86/memory.pdf (last accessed May 2, 2014).
2
See infra Part III.
Rannik
2

in such a way that, once the jurors begin deliberations, they remember the key components of
your case.
3
While there may be no truly effective individual strategies to combat the impact of
eyewitness testimony, a combination of several of the strategies discussed below with techniques
for making a memorable case could go a long way in preventing undue weight being attached to
erroneous eyewitness evidence.
4

II. BRIEF OVERVIEW OF THE FALLIBILITY OF EYEWITNESS MEMORY
Many things can go wrong when an eyewitness translates visual, auditory, sensory,
and/or emotional stimuli into a memory.
5
But broadly speaking, errors in memory can be
separated into two groups: defects in memory formation and defects in memory recall. This
section will provide a very brief overview of some of the errors that can occur and how they
affect the accuracy of eyewitness memory.
A. Errors at the Time of Memory Formation
Defects in memory formation can result from either insufficient perception of an event or
insufficient coding of the memory. Because the latter would be very difficult or impossible to
prove at trial, we will focus only on the former here.
Memories of traumatic events are often linked to powerful emotions that can result in
vivid, lasting memories. Such vivid memories often lead to compelling eyewitness testimony, in
which the witness has sincere confidence in the accuracy of her memory. However, such

3
See infra Part IV.
4
See infra Part V.
5
A detailed discussion of this rich subject matter is beyond the scope of this paper. For such a discussion,
see Barry, supra note 1, at 36 (addressing various cognitive theories of memory); Derek Simmonsen, Teach Your
Jurors Well: Using Jury Instructions to Educate Jurors About Factors Affecting The Accuracy of Eyewitness
Testimony, 70 MD. L. REV. 1044, 1049 (2011) (discussing how memory works in a broad sense); Justin S. Teff,
Human Memory Is Far More Fallible and Malleable than Most Recognize, 76 N.Y. ST. B.J. 38 (June 2004)
(discussing concepts of misattribution, the power of suggestion, bias, memory decay, and blurring of details).
Rannik
3

memories (which are coded under stress) have been shown to be among the least reliable.
6

Additionally, confidence as to a memorys accuracy tends to be inversely proportional to the
actual accuracy of that memory.
7
In other words, the emotion and stress inherent in witnessing a
traumatic event have deleterious effects on memory without our being aware of it. Even more
unnerving is the fact that our imaginations often fill in gaps in our perception of an event,
frequently without any knowledge on our part that a portion of the memory is a complete
fabrication.
8

As a crude demonstration of the potential effects of each of these errors in memory
formation, imagine the following fictitious scenario. A witness to a fatal hit and run accident has
a very clear memory of the scene: the screeching of tires, then the scream followed by a
sickening thud, the black Ford Explorer swerving all over the road as it sped away from a
motionless body, and the feeling of rising terror as realization of what just happened begins to
dawn. A second witness on the other side of the street, though, is similarly positive that the
screeching of tires only happened after the accident as the driver peeled away from the scene,
that the car was a dark-green Mercury Mariner, and that he will never forget how the victim
screamed and covered her head with her arms before the impact. Meanwhile, video evidence
from a well-placed surveillance camera shows that there were no screeching tires (the driver was
posting a photo to Instagram (#nofilter) at the time and did not see the victim), that the car was a
dark blue Ford Escape, that the victim never saw the car coming because her back was turned,

6
See, e.g., Barry, supra note 1, at 17; Aviva Orenstein, My God!: A Feminist Critique of the Excited
Utterance Exception to the Hearsay Rule, 85 CAL. L. REV. 159 181 & n. 78 (1997) (citing ELIZABETH F. LOFTUS &
JAMES M. DOYLE, EYEWITNESS TESTIMONY: CIVIL AND CRIMINAL 4751 (1987)).
7
See, e.g., Steven Wallace, The Puzzle of Memory, 79 FLA. B.J. 24, 26 (Oct. 2004) (discussing the effects of
repetition of false memories).
8
See MARY WARNOCK, IMAGINATION 24 (1976) (noting that the imagination is apt to disregard the gaps in
our perception); see also Maryanne Garry & Devon L.L. Polaschek, Imagination and Memory, 9 CURRENT
DIRECTIONS IN PSYCHOL. SCI. 6 (Feb. 2000) (discussing imagination inflation, where imagining an event can
increase ones confidence in their memory of the event, even if the event never actually took place).
Rannik
4

that the scream came from another observer, and that witness #2 could not have seen what he
claimed because a bus briefly blocked the view from where he stood at the crucial moments.
Additionally, of the myriad impairments to memory, perhaps the problems associated
with cross-racial identification are the most widely recognized by lay-persons. In short, we are
better at recognizing the faces of people of our own race than those of different races.
9

Somewhat related is the phenomenon known as shooter bias, in which witnesses more readily
identify weapons (and fail to recognize harmless object) in another persons hands if the holder
is black.
10
By coupling problems regarding cross-racial identification with defects in perception,
one can clearly see the tremendous scope for erroneous eyewitness identifications under certain
circumstances.
B. Errors at the Time of Memory Recall
Events occurring long after the original encoding of the memory can also cause
inaccuracies in ones memory. For example, subsequent experiences or misinformation can
interfere with earlier memories;
11
memories decay over time and are supplemented by details we
construct in our imaginations;
12
or, disease or trauma can damage part of the brain involved in
recalling a particular memory.
13

Additionally, the stimulus or cue that evokes a particular memory, such as a question
from an investigator or attorney, can have a significant impact on the memories themselves (the

9
Sherri Lynn Johnson, Cross-Racial Identification Errors in Criminal Cases, 69 CORNELL L. Rev 934, 939
40 (1984); John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial Identifications, 28 AM. J. CRIM.
L. 207 (2011).
10
Adam Benforado, Quick on the Draw: Implicit Bias and the Second Amendment, 89 OR. L. REV. 1, 42
(2010) (noting that the bias also extends to targets wearing Islamic clothing) ; Cynthia Lee, Making Race Salient:
Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society, 91 N.C. L. REV. 1555, 1582 (2013).
11
See, e.g., Elizabeth F. Loftus, When a Lie Becomes Memorys Truth: Memory Distortion After Exposure to
Misinformation, 1 CURRENT DIRECTIONS IN PHYSCOL. SCI. 121, 121 (Aug. 1992).
12
Teff, supra note 5, at 3839.
13
E.g. Kristina M. Gerardi, Tackles that Rattle the Brain, 18 SPORTS L.J. 181, 18489 (discussing
concussions and Alzheimers disease).
Rannik
5

power of suggestion). For example, if a witness to the above hit and run accident was asked how
fast the car was going when it plowed into the victim, he or she will likely remember it
travelling at a faster speed than if asked how fast it was going when it drove into the victim.
14

As another example, witnesses are more likely to report seeing something that they did not when
asked a question like did you notice the broken headlight after the accident? rather than did
you notice a broken headlight after the accident?
15
And, once such a suggestion has been
accepted into a witnesss memory, other details of the memory may also change to corroborate
and integrate that erroneous piece of information into the memory,
16
such as the presence of
broken glass against the curb near the victims body. All of this can, and frequently does,
happen without the witness being at all aware of it.
Finally, rehearsing testimony can have a powerful effect on the underlying memories on
which the testimony is based. In a phenomenon known as freezing, the retelling of a story
tends to cement the details as told as opposed to as initially remembered, overwriting any
discrepant details from the initial perception.
17

III. ALERTING JURIES TO THE FALLIBILITY OF HUMAN MEMORY
Unfortunately for our justice system, jurors tend to be unaware of the factors involved in
erroneous eyewitness memories
18
and tend to place great weight on eyewitness testimony.
19


14
Teff, supra note 5, at 4142; Wallace, supra note 7, at 26.
15
Simmonsen, supra note 5, at 1051 (citing ELIZABETH LOFTUS ET AL., EYEWITNESS TESTIMONY: CIVIL &
CRIMINAL 2-2, at 12 (4th ed. 2007)) (emphasis added).
16
Id. at 40 (citing HUGO MUSTENBERG, ON THE WITNESS STAND: ESSAYS ON PSYCHOLOGY AND CRIME 198
(1913) (referring to the involuntary elaboration of a suggestion)).
17
Id. at 41.
18
See supra Part II; Simmonsen, supra note 5, at 1054..
19
See, e.g., Bennett L. Gershman, The Eyewitness Conundrum, 81 N.Y. ST. B.J. 24, 24 (Jan. 2009)
(suggesting that eyewitness misidentification is responsible for more wrongful convictions than all other causes
combined); Christopher B. Hopkins & Allison S. Miller-Bernstein, Eyewitness Reliability: The JFK Assassination
and Simmons v. State of Florida, 26 TRIAL ADVOC. Q. 32, 36 (2007); Donald L. Schacter & Elizabeth F. Loftus,
Memory and Law: What Can Cognitive Neuroscience Contribute?, 16 NATURE NEUROSCI. 119, 120 (2013) (noting
that false eyewitness testimony was involved in over three-quarters of convictions overturned on DNA evidence).
Rannik
6

Indeed, one study has shown that jurors will believe eyewitness testimony 79.8% of the time,
regardless of its indicia of accuracy or its actual accuracy.
20

If one could alert the jury to the unreliability of eyewitness testimony, however, perhaps
the impact of such testimony could be reduced to more appropriate levels. This section will
address various strategies for alerting jurors to the possible unreliability of eyewitness testimony,
but conclude that none is particularly effective on its own.
A. Highlighting Flaws in Memory on Cross Examination
Cross-examination is the traditional avenue for calling the accuracy of a witnesss
memory and testimony into doubt. On cross, a witnesss testimony can be challenged based on a
slew of factors, including: (1) the witnesss capacity to observe the event (perhaps restricted by
deficiency of eyesight or by environmental factors such as light quality or obstructed views); (2)
the degree of stress under which the witness observed the event (impacting the witnesss ability
to encode the memory); (3) the duration of the event (perhaps limiting the witnesss opportunity
to perceive); (4) the role of suggestive elements before or during a lineup (perhaps leading the
witness to identify a party whose description differs from the witnesss initial description); (5)
the cross-racial nature of a particular identification; and (6) the amount of time that has passed
since the event (causing details to blur and allowing imagined elements to replace perceived
elements).
21

This sounds great. You can make your points in a clear, logical manner, and juries are
bound to respond, right? In short, no. It has been noted that jurors struggle to differentiate

20
Gary L. Wells et al., Effects of Expert Psychological Advice on Human Performance in Judging the
Validity of Eyewitness Testimony, 4 L. HUM. BEHAV. 275, 278 (1980).
21
See Hon. D. Duff Mckee, Challenge to Eyewitness Identification Through Expert Testimony, 35 AM. JUR.
PROOF OF FACTS 3d 1, 2129 (1996).
Rannik
7

between accurate and inaccurate eyewitness testimony, even after cross examination.
22
And, a
particularly illuminating study showed that, when given a particular set of facts with no reference
to eyewitness testimony, 18% of the test jurors voted to convict; the number rose to 72% with
the addition of eyewitness testimony.
23
Significantly though, even when it was shown that the
eyewitness was legally blind and that he could not have seen what he claimed, the votes for
conviction dropped by only four percent, to 68%.
24
As such, even a very effective cross-
examination might be insufficient to mitigate the impact of inaccurate eyewitness testimony on
the outcome of a trial.
B. Expert Testimony Regarding Eye-Witness Memory and Identification
Before 1983, no trial judge had been reversed with regard to the exclusion of expert
testimony regarding the reliability of eyewitness testimony.
25
Many trial judges, both state and
federal, tended to exclude such testimony, feeling that it invaded the province of the jury to
determine what weight to give the evidence, and appellate courts agreed.
26
Additionally, many
judges considered the reliability of eyewitness testimony to be within the understanding of the
common juror and thus not a proper subject for expert testimony.
27

In 1983, though, the Arizona Supreme Court was the first to hold that a trial court had
abused his discretion in excluding expert testimony about the reliability of an eyewitness

22
See, e.g., Johnson, supra note 9, at 946; Note, Did Your Eyes Deceive You? Expert Psychological
Testimony on the Unreliability of Eyewitnesses Identification, 29 STAN. L. REV. 969, 99495 (1979).
23
Cindy OHagan, When Seeing Is Not Believing: The Case for Eyewitness Expert Testimony, 81 GEO. L.J.
741, 749 (1993).
24
Id. at 74950.
25
Mckee, supra note 21, at 4.
26
See, e.g., United States v. Amaral, 488 F.2d 1148, 1153 (9th Cir. 1973) (upholding the trial courts decision
to exclude expert testimony on witness reliability because on the basis that such testimony invaded the jurys
exclusive province to determine what weight to give to the evidence); State v. Kemp, 507 A.2d 1387, 1389 (Conn.
1986) (same); State v. Poland, 698 P.2d 183, 193 (Ariz. 1985) (same).
27
Amaral, 488 F.2d at 155253.
Rannik
8

identification.
28
Since then, there seems to be a trend to hold the exclusion of such testimony to
be error (sometimes harmless, sometimes reversible, depending on circumstances).
29
In so
holding, at least one court has noted that the factors affecting eyewitness reliability are probably
contrary to common assumptions about human memory, or are at the very least beyond the
knowledge of the average juror.
30

There are several reasons for this trend. First, courts have recognized that testimony
about eyewitness reliability does not impinge on the jurys role in weighing the evidence but
rather it gives appreciable help to the jurys performance of that function.
31
Second, studies
have alerted courts to the fact that erroneous eyewitness identifications are responsible for more
wrongful convictions than all other causes combined.
32
Third, the scientific considerations with
regard to reliability of eyewitness memory have achieved general acceptance among
psychologists
33
and thus satisfy that particular Daubert factor, negating exclusions on that
basis.
34

However, once admitted, does expert testimony on eyewitness reliability change the way
jurors respond to eyewitness testimony? To a very limited extent, yes. In two studies in 1989,

28
State v. Chapple, 660 P.2d 1208, 1218 (Ariz. 1983) (en banc), superseded by statute, ARIZ. REV. STAT.
ANN. 13-756 (2009), as recognized in State v. Benson, 307 P.3d 19, 34 (Ariz. 2013).
29
E.g. Echevarria v. State, 839 P.2d 589 (Nev. 1992); State v. Hill, 463 N.W.2d 674 (S.D. 1990); State v.
Buell, 489 N.E.2d 795 (Ohio 1986); People v. McDonald, 690 P.2d 709 (Cal. 1984) (en banc), overruled (on other
grounds) by People v. Mendoza 9 4 P.3d 265 (2000); State v. Bell, 788 P.2d 1109 (Wash. App. 1990).
30
State v. Gilbert, 49 A.3d 705, 73132 (Conn. 2012) (overruling the courts prior holding in State v. Kemp
that expert testimony on the reliability of eyewitnesses invades the jurys province in determining the weight to be
given to particular evidence).
31
Kathy Pezdek, Expert Testimony on Eyewitness Memory and Identification, in EXPERT PSYCHOLOGICAL
TESTIMONY FOR THE COURTS 99, 100 (Mark Costanzo et al. eds., 2006).
32
Gershman, supra note 19, at 24.
33
Pezdek, supra note 31, at 101.
34
Daubert v. Merrel Dow Pharms., Inc., 509 U.S. 579, 594 (1993). The remaining Daubert factors query
whether a hypothesis is falsifiable, whether techniques have been subjected to peer review, whether there is a known
rate of potential error connected with a technique, whether there is a clear relationship between the theory, methods,
application, and conclusion, and any other factors a court believes to be relevant. Id. at 59394.
Rannik
9

test jurors heard eyewitness testimony regarding a bank robbery.
35
Some jurors heard strong
eyewitness evidence; others, weak.
36
Some heard the witness say she was 100% sure of her
testimony; others, 80%.
37
Some heard expert testimony on eyewitness reliability; others did
not.
38
The studies found that the verdicts and ratings of the eyewitness testimonys accuracy by
the jurors who did not hear the expert testimony were insensitive to correlates of eyewitness
accuracy.
39
The verdicts and ratings of the testimonys accuracy from jurors who did hear the
testimony showed some correlation with the reliability of the testimony, however the effect was
not significant and had little or no effect on the ratings and verdicts rendered.
40

In sum (according to these studies), without the expert testimony, the conditions affecting
eyewitness accuracy are irrelevant with regard to whether a jury will believe the eyewitness.
With the testimony, the same conditions are not irrelevant, but they will have little (if any) effect
on whether a jury actually believes the eyewitness.
C. Jury Instructions
Jury instructions have long played a critical role in our legal system as the mechanism
through which the judge explains (or attempts to explain) to the jury what the law is and how the
jury should process the facts and arguments they have heard in light thereof. Courts have
frequently used jury instructions in an attempt to educate jurors about the potential unreliability
of eyewitness testimony, either as an alternative to expert testimony or in conjunction therewith.
One example of such an instruction, the California Pattern Jury Instruction 2.92, reads as
follows:

35
Pezdek, supra note 31, at 112.
36
Id. Im afraid I have been unable to learn more about what qualified the testimony as either strong or
weak.
37
Id.
38
Id.
39
Id.
40
Id.
Rannik
10

Eyewitness testimony has been received in this trial for the purpose of
identifying the defendant as the perpetrator of the crime[s] charged. In
determining the weight to be given eye witness identification testimony,
you should consider the believability of the eye witness as well as other
factors which bear upon the accuracy of the witness's identification of the
defendant, including but not limited to, the following: (1) The opportunity
of the witness to observe the alleged criminal act and the perpetrator of the
act; (2) The stress, if any, to which the witness was subjected at the time
of the observation; (3) The witness' ability, following the observation, to
provide a description of the perpetrator of the act; (4) The extent to which
the defendant either fits or does not fit the description of the perpetrator
previously given by the witness; (5) The cross-racial or ethnic nature of
the identification; (6) The witness' capacity to make an identification; (7)
Evidence relating to the witness' ability to identify other alleged
perpetrators of the criminal act; (8) Whether the witness was able to
identify the alleged perpetrator in a photographic or physical lineup; (9)
The period of time between the alleged criminal act and the witness'
identification; (10) Whether the witness had prior contacts with the alleged
perpetrator; (11) The extent to which the witness is either certain or
uncertain of the identification; (12) Whether the identification is in fact the
product of his/her own recollection; and (13) Any other evidence relating
to the witness' ability to make an identification.
41

At first blush, this seems like a well constructed instruction that goes some way in
correcting the disproportionate weight jurors generally place on eyewitness testimony. However,
without expert testimony or further instructions explaining how these factors bear on the
formation and recalling of memories, telling jurors to consider the factors is next to useless. It
can even be misleading. For example, the eleventh factor, the extent to which the witness is
either certain or uncertain of the identification,
42
implies that jurors should give more weight to
testimony when the witness seems very certain, even though studies have shown that confidence
in and reliability of memories tend to be inversely proportional.
43


41
CA CALJIC 2.92 (West 2014).
42
Id.
43
See supra note 7 and accompanying text.
Rannik
11

More broadly, much like a layman reading a contract, jurors receiving instructions are not
acquainted with the relevant terms or concerns that shape them and thus often cannot understand
what they are supposed to take away from particular instructions.
44
And, even if the jury
completely misunderstands an instruction, trial courts will rarely order a retrial or overturn a jury
verdict rendered based on the jurors misunderstanding, even if it directly determines the
outcome of the case.
45

So, what practical effect does such a jury instruction about eyewitness reliability have?
In all probability, not much. At the best of times, jury instructions can seem like a legal
formality as they are read from the bench, rather than like the imparting of vital information
without which a jury cannot reach a just verdict. As such, the contents of instructions, even
when clear and well-written, are often not absorbed by jurors. Moreover, some jurors lack the
cognitive control to ignore their reaction to eyewitness testimony even when made aware of its
unreliability.
46
Perhaps where the instruction follows expert testimony on the subject, jurors
might recognize the factors and take greater notice of them. But, lawyers would be wise not to
pin their hopes of negating the impact of eyewitness testimony on such jury instructions.
47

A recent decision from the New Jersey Supreme Court, though, adopted a somewhat
novel approach to eyewitness identifications.
48
If defendants can make a showing of suggestive
pretrial identification procedures, they are entitled to a hearing in which the factors influencing

44
See Walter W. Steele, Jr. & Elizabeth G. Thornburg, Jury Instructions: A Persistent Failure to
Communicate, 67 N.C. L. REV.77, 7996 (1988) (noting examples of significant juror confusion, evidenced by
questions posed to judges by deliberating juries, transcripts of juror deliberations from jurisdictions where testimony
about jury deliberation is allowed, and social science research); see also Geoffrey P. Kramer & Dorean M. Koenig,
Do Jurors Understand Criminal Jury Instructions? Analyzing the Results of the Michigan Juror Comprehension
Project, 23 U. MUCH. J. L. REF 401, 42930 (1990) (finding that jury instructions often have no appreciable effect,
and sometimes have a negative effect, on juror understanding).
45
Steele & Thornburg, supra note 44, at 8082.
46
Kramer & Koenig, supra note 44, at 432.
47
But see Simmonsen, supra note 5, at 108586 (suggesting improvements to jury instructions that could
render them the most effective way of educating jurors about eyewitness reliability).
48
State v. Henderson, 27 A.3d 872 (N.J. 2011).
Rannik
12

the evidence are explored.
49
If the court finds a very substantial likelihood of irreparable
misidentification, the identification will be suppressed.
50
If, however, the judge decides to
admit the testimony, the judge must provide a tailored jury instruction to guide the jurors on how
to evaluate the evidence, either during trial or at the close of evidence.
51

This rule certainly has appeal. Stemming from the idea that reliability of evidence is the
touchstone of its admissibility, it compels the court to determine whether eyewitness testimony
shows sufficient indicia of reliability before being presented to and having a large impact on the
jury, reliable or not. As a general matter, between judges and juries, judges seem better able to
distinguish between reliable and unreliable eyewitness evidence.
However, a Henderson review of the evidence will only occur after a showing of
suggestive conduct by law enforcement. Because there are myriad causes for false
identifications beyond suggestive tactics of law enforcement,
52
the practical impact of this rule is
less than one might hope. Perhaps a better approach would be to subject all eyewitness
testimony to such scrutiny, but this would almost certainly overextend the available judicial
resources. As an attorney confronted with a potentially unreliable eyewitness, though, one
would do well to request such a hearing.
IV. MAKING MESSAGES MORE MEMORABLE
Perhaps though, if you cant beat em, join em. Juries will most likely continue to put
significant weight on eyewitness testimony no matter how aware they are that such testimony
tends to be unreliable. Perhaps this is because jurors begin to construct a narrative of the case
early on and remember, and thus rely more heavily on, testimony that comports with their

49
Id. at 91920.
50
Id. at 920.
51
Id. at 924. These tailored instructions are, despite the name, standardized instructions. Nonetheless, they
seem to be a significant improvement on prior instructions. See Schacter & Loftus, supra note 19, at 119.
52
See supra Part II.
Rannik
13

narrative.
53
Perhaps human interaction is just incredibly compelling, and eyewitness accounts
represent the most effective way to convey information to a jury in a manner that jurors will
remember and respond to. So, when faced with compelling but mistaken eyewitness testimony,
the best strategy may be to offer another witnesss correct but equally compelling testimony.
Of course, there are significant and numerous difficulties here: For one, some witnesses
are more engaging and compelling than others; for another, there may not be a second
eyewitness able to give a more accurate account. But, whether or not a rebuttal eyewitness can
be found, there are strategies for making ones message more memorable.
54
Hopefully, together
with successfully alerting the jury to the fallibility of eyewitness testimony, these strategies can
counterbalance (to some degree) the effect of erroneous eyewitness testimony on a jury.
A. Telling A Story
The first piece of advice I ever received with regard to trial strategy is to be sure your
case tells a story.
55
Indeed, there are numerous advantages to treating ones case as a chance to
tell a story.
First and most importantly, jurors are more likely to remember, relate to, and be
persuaded by a story than by a mere recitation of the facts, especially if the story includes enough
detail that the jurors can imagine themselves in the same situation.
56
Decision-making is often
an emotional, rather than a rational, process.
57
So, engaging the jury on an emotional level is an

53
See Lisa Kern Griffin, Narrative, Truth & Trial, 101 GEO. L.J. 281, 285 (2012) (Many social scientists
who study juries have concluded that they interpret information not by considering and weighing each relevant piece
of evidence in turn, but by constructing competing narratives and then deciding which story is more persuasive.).
54
The same strategies apply to lawyers messages in opening and closing statements.
55
The advice came from the Hon. Marcus Shar during his class on Trial Advocacy.
56
Cathleen L. Bennett, Trial Advocacy, in MASSACHUSETTS DISTRICT COURT CRIMINAL DEFENSE MANUAL
14.3(c) (2013).
57
See generally Nasir Naqvi et al., The Role of Emotion in Decision Making: A Cognitive Neuroscience
Perspective, 15 CURRENT DIRECTIONS IN PSYCHOL. SCI. 260 (Oct. 2006); Michael H. Rosenbloom et al, The
Functional Neuroanatomy of Decision-Making, 24 J. NEUROPSYCHIATRY & CLIN. NEUROSCI. 266 (2012).
Rannik
14

essential component of persuading them of your point of view. Perhaps the most obvious and
effective way to do this is by presenting your case as a story.
Second, to the extent that jurors construct a narrative framework by which they
understand the case (rather than weigh each fact in turn), ones success in conveying a story to
the jury is vital to ones success in persuading the jury.
58
Third, from the lawyers perspective, a
story is easier to remember and to present with vocal variation, facial expressions, and gestures
than an outline.
59
Fourth, presenting your case as a story makes it easier to speak like a normal
human being and avoid slipping into legalese, thereby boring or alienating your jury.
60

So, what distinguishes a story from a mere recitation of facts or events? What makes for
a successful story? I think the main distinctions and characteristics of successful stories are thus:
(1) stories are really about people, even when theyre about events; (2) stories must, on some
level, entertain as well as educate; (3) stories seek to place the listener on the scene, through use
of extensive imagery and relatable characters (the protagonist, anyway); (4) stories create a sense
of anticipation through foreshadowing and uncertainty, thus keeping the audience engaged; (5)
stories lead to a some sort of central message; and (6) the storyteller makes artistic decisions
about pacing, inflection, volume, timing, word choice, etc. that respond to and enhance the
contours of the story, rather than just relating a sequence of events in monotone.
The essence of being an effective advocate is making the jury care about your client and
your clients case. To the extent that one can successfully incorporate these six elements into
ones case, the jury is likely to respond.


58
See Griffin, supra note 53, at 285.
59
Bennett, supra note 56, at 14.3(c).; see also How to Create Memorable Lectures, STANFORD UNIV.
(2005), http://cgi.stanford.edu/~dept-ctl/tomprof/posting.php?ID=790 (last visited May 5, 2014).
60
See infra Part IV.C.
Rannik
15

B. Use of Sensory Information/Imagery
People tend to remember (and vigorously defend) conclusions they reach themselves far
more than those presented to them. Thus, in order for a jury to remember and relate to the story
you present to them, their imaginations must be engaged in creating at least part of that narrative
for themselves. The goal, then, is to place the jurors on the scene and merely guide them toward
the conclusion you want them to reach. This strategy depends on engaging the jurors
imaginations, and success in engaging the jurors imagination rests in large part on the use of
sensory imagery.
Cognitive neuroscience might offer an explanation of why sensory imagery makes stories
more memorable. When being told a story, for example, imagining how the scene looks engages
the visual cortex and that activity becomes part of the listeners memory of that story.
61

Similarly, imagining particular sounds or smells will engage the auditory cortex or limbic
system, again linking those elements to the memory created.
62
It seems to make intuitive sense
(though I cannot find a source that says so) that, the greater the number of areas of the brain
involved in encoding a particular memory, the greater the likelihood that the memory can be
recalled.
Also, some people are visual learners, others auditory. The use, then, of various sensory
details is important in order to keep every type of learner engaged and able to imagine your story
and experience it for themselves. Props can certainly help as well, especially those that the jury
can take back to the jury room while they deliberate.

61
Alexander Schlegel et al., Network Structure and Dynamics of the Mental Workspace, 110 PROC. NATL
ACAD. SCI 16277, 16277 (2013) (noting contents of visual imagery and dreams can be decoded from activity in the
visual cortex).
62
Lucien M. Levy et al., Odor Memory Induces Brain Activation as Measured by Functional MRI, 23 J.
COMPUTER ASSISTED TOMOGRAPHY 487 (1999) (noting that imagined odors activate similar brain regions as actual
odors).
Rannik
16

C. Use of Rhetorical Devices
The words we use have a powerful effect on how memorable our message is. Compare,
for example, the impact of: But that the dread of something after death, the undiscovered
country, from whose bourn no traveler returns, puzzles the will and makes us bear those ills we
have than fly to others that we know not of; with that of we do not commit suicide because we
do not know if there is life after death.
While speaking to the jury in Shakespearian verse is probably best avoided (though how
cool would that be. . .), awareness of the impact of rhetorical devices, and their sparing use, can
greatly increase the impact and memorability of your words. In very simple terms, we tend to
find groups of three very satisfying and easier to retain, as well as alliterative phrases.
63

Combining the two and saying, if arguing self-defense in a criminal case for example, that the
ultimate victim was armed, angry, and aggressive when he approached the defendant, will
create a more lasting image in the jurors mind than simply saying he had a weapon, was mad,
and acted threateningly.
64

Additionally, once choice of tense can have a significant impact on the effect of ones
words. Use of the present tense, for example, tends to engage the audience more than use of the
past tense because it (1) is less formal/more colloquial and (2) suggests a recreation of the scene
for the audience rather than a private reliving of the scene, thus activating the audiences
imagination to a greater extent.
Finally, as mentioned previously, avoiding legalese is essential. Frequently saying things
like the defendant exited the vehicle instead of got out of the car will sound overly formal
and can cost you the attention of the jury.

63
Bennett, supra note 56, at 14.3(c) (noting that political speeches and advertisements use both of these
techniques with great frequency).
64
Id.
Rannik
17

D. Repetition
Here be dragons. It is obviously important to emphasize the central points of your case
enough that they will not be overlooked or forgotten, but overdo it at your peril. Belaboring a
point can be nearly as detrimental as failing to flag it sufficiently because it will seem
condescending and irritating in the eyes of the jury. However, there are ways to highlight the
significant points in a way that will not offend or irritate.
Closing argument offers an excellent opportunity to recap the most salient points, though
simply rehashing all of the facts will likely be counterproductive. However, because we tend to
pay more attention to what we are told when we feel it relates directly to us, one strategy might
be to say something like this:
In a few minutes, you are going to leave the courtroom, walk to the
jury room, and begin your deliberations. As you deliberate, if
someone says But witness #2 saw the defendant texting right before
he hit the victim, remind them that witness #2s view was blocked by
the bus and that he could not have seen what he said he saw.
65

This approach accomplishes several things. First, it allows you to reinforce jurors
memories of the facts helpful to your case. Second, it recaps those facts in a way that directly
relates to the jurors and their imminent task, helping overcome some of the boredom that has
usually set in by closing arguments. Third, and perhaps most importantly, it assists the jurors
who agree with you in convincing the other members of the jury. In most cases, a jury will not
be either entirely with you or against you by the end of trial. However, you are not in a position
to convince those who disagree with you at this point because, as an advocate for one side, you
lack objectivity in their eyes. The jurors who agree with you, though, do seem objective to the

65
See supra Part II.A.
Rannik
18

other jurors (or more objective, at least) and they can succeed where you cannot. Arming them
with these rebuttals gives them greater confidence in expressing their point of view.
V. CONCLUSION
Overcoming the impact that eyewitness testimony, even if erroneous, has on a jury is a
very tall order, and no single strategy is likely to do so. Thus, when confronted with an honest
but mistaken eyewitness, the best plan would be to do everything discussed in this paper: (1)
request a pre-trial hearing on the reliability and admissibility of the evidence;
66
(2) highlight the
defects in the witnesss perception or recall of the event in question on cross-examination;
67
(3)
introduce expert testimony on the factors effecting the reliability of eyewitness memory;
68
(4)
craft comprehensive and easily comprehensible jury instructions regarding eyewitness
memory;
69
and (5) present an alternate theory of the case that is both memorable and
compelling.
70
Failing all of that, I recommend consolation gin.

66
See supra Part III.C.
67
See supra Part III.A.
68
See supra Part III.B.
69
See supra Part III.C.
70
See supra Part IV.