We released a preprint of our paper, “The Scientific Principles of Memory versus the Federal Rules of Evidence,” on Open Science Framework. The manuscript was submitted for publication about a week ago.

Preprints, although citable, have neither been accepted/denied for publication nor have they undergone the peer-review process. It is expected that published manuscripts will differ from the original preprint—sometimes even in major ways (although that is never the hope). We decided to make our submitted manuscript available in this modality due to the expressed interest from those outside of our field.

This paper explains how memory contaminates, when memory is reliable, and how the current interpretation of the Federal Rules of Evidence (as it relates to eyewitness identification) may actually exacerbate the problem of irreparably contaminated evidence being used in the courtroom.

Abstract of the preprint, which is subject to change by the time of the final printing:

Eyewitness misidentifications have contributed to many wrongful convictions. However, despite expressing high confidence at trial, eyewitnesses often make inconclusive misidentifications on the first test conducted early in a police investigation. According to a new scientific consensus, it is important to focus on the results of the first test because, if the perpetrator is not in the lineup, the test itself leaves a memory trace of the innocent suspect in the witness’s brain. Thus, all subsequent tests of the witness’s memory for that suspect constitute tests of contaminated memory. Unfortunately, when an initial inconclusive identification comes up at trial, the Federal Rules of Evidence require that the witness be given an opportunity to explain the inconsistency. In response, witnesses often provide a believable story about why they did not confidently identify the suspect on the initial test despite doing so now (e.g., “I was nervous on the first test”). However, witnesses lack expertise in—and have no awareness of—the subconscious mechanisms that underlie memory contamination. Therefore, the explanations they provide at trial have minimal information value. The combination of a sincerely held (false) memory and a believable (but erroneous) explanation for a prior inconsistent statement is often persuasive to jurors. This is a recipe for a wrongful conviction, one that has been followed many times. The Federal Rules of Evidence were enacted almost a half-century ago, and it may be time to revisit them in light of the principles of memory that have been established since that time.

If you have questions/comments about the paper, you can contact me or any of the other authors. Link to the preprint on OSF: https://osf.io/hv6bs