THE MUTABILITY OF MEMORY
It is important that every investigator or lawyer preparing a case for trial must understand how memory influences the information obtained. Very few people have a perfect eidetic (photographic) memory. Memory is a fluid and often unreliable human function.
During my time as a trainee investigator at the Army Intelligence School at Fort Holabird, Maryland, a classroom lecture on interviewing was interrupted by a man dressed in a clown mask, a tuxedo, swim fins, a cowboy hat, and a purple cummerbund. He ran into the room, screamed epithets, fired a weapon into the ceiling, and ran out. The teacher instructed each member of the class to write down a description of the intruder. None of our descriptions was accurate, and we were all shocked when the shooter was brought back into the class. The noise he made, the firing of a weapon, and the fear the incident engendered made it almost impossible to recall him accurately. Some even described him as having been female.
The professional recognizes that some interview techniques can cause honest subjects—those who are innocent but “just trying to be helpful”—to “misremember” and provide unreliable, even false, information. It has long been known that false memories can be implanted by a process of suggestion, especially when used by skillful but unscrupulous attorneys or interviewers.
Leading questions—where a desired answer is suggested by the way the question is phrased—are a dangerous impediment to fact finding. The true professional, impartial and seeking only the truth, must guard against even inadvertently leading a subject to creating false memories.
The Professional should never rely solely on the testimony of an eye-witness. They are usually not totally reliable. Every witness statement must be backed up with corroborating witnesses, documents, and physical evidence before it can be relied upon.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as a
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts