INTRODUCTION

Did you ever stop to contemplate who might be remembered from the field of law and social sciences 100 years from now? Sometimes it is easier to think backward rather than forward. One scholar from the past who was influential for me was Hugo Munsterberg. He published his groundbreaking book, On the Witness Stand, in 1908 (Munsterberg 1908). Seventy years later I read this book, as a young experimental psychologist, while preparing to write my first book on eyewitness testimony (Loftus 1979).

Munsterberg was a colorful character. When he wrote his famous book, he was a professor of psychology at Harvard and was a leading figure, if not the founder, of the discipline of psychology and law. Among his other activities, Munsterberg used to stage unexpected intrusions in his classroom and then question the students about what they had seen. He wrote about these observations in his classic book, where he argued that the psychological methods for testing the accuracy of eyewitness memory were far superior to those being used by the legal system. Munsterberg would soon find himself criticized by an eminent legal scholar, John Henry Wigmore (1909). Wigmore's satirical attack came in the form of a wonderfully witty imaginary trial in which members of the Bar sued Munsterberg for defamation. Despite Wigmore's savage slaughter of psychology, I, for one, appreciated that Munsterberg did much to introduce the public to many ideas that are still central to the field of eyewitness testimony—a field that I would devote myself to for four decades.

STUDIES OF MEMORY

My foray into Law and Social Sciences occurred some years after I had been studying human memory. In graduate school I did studies of memory that had little immediate relevance to the legal system. But once I secured an academic position, I decided I wanted to do some research that had more obvious practical applicability. I had always had an interest in legal matters, including a concern for people who were wrongly accused. So it seemed like a good idea for me to study the memory of people for crimes and accidents and other legally relevant events. Most other memory scientists were studying memory for rather pallid materials, like lists of words, where you could get a lot of control over what the subjects were experiencing. But I began showing films of accidents, and later, crimes, and exploring how the questioning process affected what people remembered. In one study, research witnesses who had seen films of auto accidents were asked about the speed of the vehicles using one of several question formats. “About how fast were the cars going when they smashed into each other?” led to higher estimates of speed than the same question asked with the verb “hit.” Moreover, witnesses who had been asked the “smashed” question were later more likely to report that they had seen broken glass at the accident scene, broken glass that did not exist. These and other findings led me to propose that the questions were changing the witness's memory for the accident. But questions are only one form of postevent activity that can alter what a witness remembers. Talking with other witnesses, reading or watching media coverage about an event, and other postevent activities have the potential to contaminate, transform, or even simply supplement memory. The phenomenon became known as the misinformation effect. [Much of this early work is reviewed in my aforementioned book on eyewitness testimony (Loftus 1979)]. Many later studies of misinformation would follow (e.g., Loftus & Hoffman 1989), but I do not describe the scientific work more fully because I did so in a recent autobiographical piece (Loftus 2017). Instead, here I focus more on how the work intersected with the law.

After I published several experimental papers describing the behavior of laboratory witnesses, I volunteered to work on a murder case so I could see the behavior of real-world witnesses up close. It just so happened that the defendant in that case was acquitted, and I wrote about the experience (the science, the case) for Psychology Today magazine (Loftus 1974). At the time, Psychology Today had a huge circulation and was read not only by psychology aficionados but by many members of the legal profession. After publication of that article, entitled “The Incredible Eyewitness,” lawyers began asking me to work on their cases, to lecture to their legal groups, and to write for their publications, and this is how one ordinary experimental psychologist became entangled with the legal world.

INTO THE COURTROOM

At the time that I first started consulting with lawyers, a few psychologists were being asked to testify on the science of eyewitness memory, with mixed success. Robert Buckhout was able to testify in the highly publicized case of People of California v. Angela Davis in 1972 (see Caldwell 1972). Readers old enough might recall that the trial arose out of allegations that Davis, described in Wikipedia as an American political activist/academic/author, was involved in a shoot-out in the early 1970s. The key prosecution evidence involved questionable eyewitness testimony. Buckhout testified about the badly biased test that had been used to secure an identification of Davis. Davis was acquitted. Defense attorneys began to appreciate the usefulness of eyewitness experts in educating jurors about the factors that can negatively affect eyewitness memory.

But the legal profession was not exactly whole-heartedly embracing this new type of expert testimony. It was mostly defense lawyers in criminal cases who attempted to introduce eyewitness expert testimony, and judges in the early days frequently excluded it. One common reason given for excluding the proffered testimony was that the material was within the common knowledge of the jury and was therefore not a proper subject matter for expert testimony. One court wrote, “It is something everyone knows about, the problems of identification… Everyone knows these things happen” [ People v. Guzman (1975), pp. 384, 72]. Other courts worried that the eyewitness expert would invade the province of the jury. The argument here is that it is up to the jury to decide whether a particular witness did or did not see what is being reported. Somewhat less frequently, the court would express concern that the eyewitness expert would have a prejudicial effect on the jury, or that the testimony was not generally accepted in the relevant scientific community.

Given these concerns, it is unsurprising that the higher courts would routinely uphold the convictions of defendants who had appealed their cases because of the exclusion by the trial judge of the expert. For the most part, the higher courts ruled that trial judges had the broad discretion to refuse expert testimony, and doing so was not an abuse of discretion. If you looked only at published appeals at that time, you would get the impression that courts were almost uniformly against this type of expert, but there is an obvious reason for this apparent one-sidedness. Criminal defendants appealed their cases on this issue only when the expert was excluded and the defendant was convicted. If the trial judge admitted the expert, and the defendant was acquitted, there was no appeal.There things stood until 1983. That was the year that the Supreme Court of Arizona reached a ground-breaking decision [ State v. Chapple (1983)]. Dolan Chapple had been convicted of murder and drug trafficking, primarily on the basis of two eyewitnesses who identified him at trial. The eyewitness testimonies were, shall we say, fishy: The first identification of Chapple had been from photos shown to the witnesses more than a year after the crime. Chapple's lawyer had tried to introduce my testimony, but the trial judge refused, on the grounds that the subject matter was common knowledge. The Arizona Supreme Court reversed the conviction, holding that the expert testimony would have provided useful scientific data on such matters as the accuracy of delayed identifications and the effects of stress on memory.

A year after Chapple, the California Supreme Court reversed a conviction in a murder case [ People v. McDonald (1984)]. The defendant had been convicted of murdering a restaurant worker in a trial that included multiple eyewitnesses who claimed he was the shooter. The jury believed them over myriad alibi witnesses who said he was visiting his grandfather in Alabama on the day of the shooting. This was the beginning of a string of state supreme court and appellate decisions reversing convictions after eyewitness experts had been excluded. I covered a lot of this early background in my Presidential Address for the American Psychology-Law Society (Loftus 1986) and took a deep dive into some of the early cases in a book entitled Witness for the Defense (Loftus & Ketcham 1991).

EXPERT OUT, EXPERT IN

Because it was common in the early days for judges to exclude expert testimony on the grounds that the material was all common knowledge, several scientists began to ask, just what is common knowledge? My first foray into answering this question involved a pilot study that I wrote about in my first eyewitness book (Loftus 1979, p. 172). It showed that many jury-eligible individuals held beliefs that were contradicted by the scientific literature. Subsequently, I collaborated on more extensive efforts that revealed the misconceptions that jurors have about the workings of eyewitness memory (Deffenbacher & Loftus 1982, Schmechel et al. 2006). To give one example, Schmechel et al. (2006) explored whether respondents were aware of the cross-race identification problem, namely, that people have more difficulty identifying strangers of a different race compared with their own race. Almost two-thirds of potential jurors surveyed answered in a way that revealed they were ill-informed about the cross-race issue. Most of those in error (48%) believed that cross-race and same-race identifications were equally reliable, with some even suggesting that cross-race identifications might be more reliable (11%). In reviewing the results of a large number of survey studies, Semmler et al. (2012) concluded that they show a general lack of knowledge among potential jurors about the effects of interviewing techniques and other procedures for handling witness evidence.

The number of other scientists from around the world who contributed to the literature regarding common knowledge about eyewitness memory is too large to comprehensively list here. They have used not only the survey methods just mentioned but also other procedures, such as mock-trial simulations, to understand how jurors think about the factors that affect witness memory (see Semmler et al. 2012). The point I want to make about this entire body of research is that the effort reveals a nice example of how what is happening in the legal world can influence what science is done, and what is happening in the science world can influence what is happening in the legal world. Today, in contrast to the world of the 1970s, there have been many reversals of convictions for excluding expert testimony—some of which express an explicit appreciation of the research showing that jurors do have misconceptions and can probably benefit from some education. The Illinois case of People v. Lerma (2016) provides an example. The case arose out of the shooting death of Jason Gill—shot in front of his home in Chicago back in 2008. The prosecution's case rested on two eyewitness identifications. The defense tried to introduce the expert testimony of Dr. Fulero. Midway through trial, the defense attempted to introduce a report by a different expert because Dr. Fulero had since passed away. That new expert was Dr. Geoffrey Loftus (my Wasband), who was described in the court opinion as a “widely-published and globally-recognized expert in the field of human perception and memory.” G. Loftus's report covered such factors as the effects of a weapon, time duration, cross-race identification, and more. The jury convicted Lerma, and he was sentenced to 45 years in prison. Lerma appealed, and the appellate court reversed the conviction. That court concluded that the trial judge had abused his discretion in not carefully considering the expert evidence and explicitly noted that the trial court ruling amounted to “little more than a series of conclusions based on personal belief.” The state supreme court went further and noted that “expert testimony concerning the reliability of eyewitness testimony has moved from novel and uncertain to settled and widely accepted.” It further asserted that there is now “a clear trend among state and federal courts permitting the admission of eyewitness expert testimony.”

THE WRONGFUL CONVICTION REVELATION

Scholars since Munsterberg's day have taken an interest in wrongful convictions, and the fact that many involved faulty eyewitness memory certainly helped fuel interest in studying the topic. But what really made a difference in this area was the development of DNA testing on semen and biological materials that proved the convicted defendants were actually innocent. The lawyer/author James Doyle (2005) provides a terrific account of why this mattered. After a highly publicized DNA exoneration, the National Institute of Justice (the research arm of the US Department of Justice) began collecting other cases. They came up with 28 and wrote about them in the late 1990s (Connors et al. 1998). As Doyle (2005, p. 129) put it, the 28 cases were “an amazing catalogue of underserved punishment and shattered lives.” The major cause of those tragedies: faulty eyewitness testimony. Today, the Innocence Project has used DNA testing to exonerate more than 350 people who were wrongly convicted of murder, rape, or other serious crimes. When these cases have been thoroughly analyzed, the major cause has been faulty eyewitness memory (Garrett 2011, Scheck et al. 2000).

Other scientists have contributed majorly to our collective effort to learn what causes eyewitnesses to make these types of mistakes. Whereas I was mostly concentrating on how postevent activity could affect memory (Frenda et al. 2011; Loftus 2003, 2005), other scientists focused on different parts of the elephant. They studied how to design eyewitness procedures that would maximize accuracy, and many of them came together to produce an excellent edited volume entitled Reform of Eyewitness Identification Procedures (Cutler 2013). But it was almost certainly the DNA cases that helped bring attention to the problems and created a legal culture that would pay at least a modicum of attention to the kinds of reforms that the scientists were suggesting.

MEMORY SCIENCE AND SOCIETY TODAY

A huge development in this area occurred in 2013. That was the year that the Arnold Foundation asked the National Academy of Sciences to conduct a thorough study of scientific research relating to eyewitness testimony. In response, the National Research Council formed a committee, cochaired by a prominent federal judge (Jed Rakoff) and a prominent cognitive scientist (Thomas Albright of the Salk Institute for Biological Studies). After a couple of years of work, the committee published its report: Identifying the Culprit: Assessing Eyewitness Identification (Natl. Res. Counc. 2014). A press release about the report quotes Albright, who makes clear the problem: “Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard—and any of these limitations can produce mistaken identifications with serious consequences” (Natl. Acad. Sci. 2014). It included myriad suggestions for the handling of eyewitnesses in legal cases, such as recommending training of law enforcement officers in eyewitness issues and use of standardized instructions and double-blind methods for conducting lineups or other identification tests. It also included suggestions for better education of jurors about eyewitness memory. The committee recommended that judges be able to admit expert testimony as a way of educating or, alternatively, that they deliver carefully crafted jury instructions that could accomplish this same educational goal.

Expert witnesses can be expensive, in terms of their cost and the additional cost in time spent by judges, their staff, lawyers, and others whose time is compensated as they listen to what might be several hours of court testimony. Jury instructions delivered by a judge would seem more efficient in that they might add a mere fraction of an hour. But devising the right instructions is easier said than done, as I argued in a recent essay written with Judge Rakoff (Rakoff & Loftus 2018).

Before presenting the new findings on jury instructions, a bit of background is required. In State v. Henderson (2011), a new legal standard for assessing eyewitness evidence was established. The defendant in that case had been implicated in a murder that had occurred years earlier and was convicted based largely on eyewitness testimony. He appealed, and when the case reached the state supreme court, it issued a rather bold ruling that established that new legal standard. Namely, if a defendant can show evidence of suggestive issues surrounding the eyewitness, the court must hold a hearing in which all relevant factors are explored. Then, if the judge decides to admit the eyewitness, he or she must provide specially tailored jury instructions that guide the jury on how to evaluate the eyewitness account. The special instructions were drafted over the next year, and they convey important scientific findings, such as telling the jury that human memory does not work like a video recording, or that cross-race identifications of strangers are more difficult for people.

The Henderson instructions were now in place, but it was not clear what effect they actually were having. So several scientists decided to take a close look. One of those studies used a mock jury procedure to present individuals with trial testimony about a murder case in which the evidence was either strong or weak (Papalliou et al. 2015). One finding from this study is that the mock jurors were far less likely to convict the defendant of murder when they had been given the New Jersey Henderson instructions (versus some pallid standard instruction). But the reduction in the conviction rate occurred for both the strong and the weak case. Ideally, an instruction should help jurors discriminate good eyewitness testimony from bad, producing a reduction for the bad case but less so for the good. A similar finding occurred in another mock jury case (Dillon et al. 2017). These initial efforts suggest that scholars need to keep working to find new ways to improve the jury instructions so that they do not merely induce general skepticism but also improve sensitivity.

As we strive for more and better, it is worth noting that many scholars have applauded the progress that eyewitness science has made, in the science and in getting the attention of the legal field (e.g., Wells et al. 2006). Based explicitly on the eyewitness literature, many recommendations have been adopted for conducting identification tests in many jurisdictions. As one group noted, “Eyewitness scientists have played a central role in explaining the literature and helping translate the findings into practical reforms” (Wells et al. 2006, p. 68).

THE MEMORY WARS

At the present time, I have testified as an eyewitness expert in nearly 300 trials. But I want to step back a few decades to describe another development pertaining to memory and the law. By 1990, I had testified as an eyewitness expert in more that l50 trials. Typically, that testimony involved discussing how memory works and identifying various factors that could contribute to possible mistakes in memory that were present in the case at bar. Often I described some of my own studies showing how postevent misinformation can contaminate a witness's memory and lead to false reporting.

In 1990, I was asked to work on a highly unusual murder case. The defendant, George Franklin, was charged with murdering an 8-year-old girl (Susie) 20 years earlier. The only evidence against Franklin was the testimony of his daughter Eileen, who claimed she witnessed the murder and repressed it, as well as repressing years of sexual abuse by her father. I took a deep dive into the purported evidence for such massive repression and discovered no credible scientific support for what McNally (2003) would call the repression folklore. Despite this, Franklin was convicted, becoming virtually the first American to be convicted of murder based on claims of repressed memory (see Loftus & Ketcham 1994 for a description of the Franklin case).

After the Franklin case, thousands more claims would emerge in which people were accused of horrific abuse that had allegedly been repressed. Although I had considerable experience with people (in experiments and in cases) misremembering the details of past events that had occurred, this was an altogether more extreme kind of memory issue. If these memories were not real (and many of them were contradicted by geographical, biological, or psychological evidence), where could they come from? Most, it appeared, had come to light after certain kinds of therapy. But could suggestive therapy lead people to have such rich memories, and what would the process of developing rich false memories look like? My initial study involved an attempt to plant memories of something that would have been at least mildly traumatic if the event had actually happened. The subjects were led through suggestion to believe that they were, at age five or six, lost in a shopping mall, frightened, crying, and ultimately rescued by an elderly person and reunited with their family [more can be learned about the initial work by reading Loftus & Ketcham (1994, chapter 7) or the initial publication reporting complete or partial false memories in 25% of our sample, Loftus & Pickrell (1995)]. Soon thereafter, other researchers used similar suggestive techniques and planted false memories of events that were more unusual, bizarre, or traumatic, such as nearly drowning or being attacked by a vicious animal. More recently a group of researchers used a common coding scheme to analyze the false memory reports of more than 400 subjects who had previously participated in studies of rich false memories. Overall, more than approximately 30% of the reports were classified as indicative of false memories and an additional 20% plus accepted the event to some degree (Scoboria et al. 2017). So it could be said that the Franklin case, and its wild claims of massive repression, not only influenced the legal landscape but also spawned a whole series of studies that showed just how far you can go with people in terms of planting false information into their memory banks.

These rich false memories have been studied extensively by many research groups around the world. In my own laboratory, we have shown that such false memories have repercussions for people, influencing their subsequent thoughts, intentions, and behaviors (e.g., Bernstein et al. 2005a,b). We have shown that it is virtually impossible without independent corroboration to tell the difference between a real memory and one that is a product of some other process (Bernstein & Loftus 2009).

In the years since the Franklin case, there have been hundreds of cases, both criminal and civil, involving claims of massive repression. In one early case, 32-year-old Sharon Keene sued her former neighbor, Ronald Edie (age 57), claiming that he had molested her over several years some two decades earlier (Seven 1993). Keene claimed that she had repressed her memories until she recovered them in therapy that she attended to deal with marital problems. She had even previously denied the abuse under oath. But now, a jury awarded Keene more than $300,000. In cases like this, opposing experts frequently appear disagreeing about whether there is any credible scientific support for the existence of such massive repression. Experts for the accusers claim there is, and those for the accused disagree.

A massive published literature emerged, and dueling experts have fought the battle in that arena as well (for a review, see Davis & Loftus 2009, Loftus & Davis 2006). Today, the memory wars persist. This can be seen in part in surveys of mental health professionals, memory experts, and other groups of professionals. In one study (Patihis et al. 2014), research-oriented psychologists and memory experts expressed far more skepticism about repression than practitioners from other groups. For just one example, respondents were asked if they agreed with the statement “Traumatic memories are often repressed.” Some groups agreed (either slightly or strongly), such as hypnotherapists at 82% and psychoanalysts at 69%. Other groups rarely agreed, such as experimental psychologists at 27% and clinical psychologists/researchers at 19%.

Despite the controversy in the field, hundreds of cases emerged in the 1990s and continue to this day. Sometimes they involve an accuser like Keene suing an accused like Edie. Other times they involve former accusers who have realized their memories are false suing their former therapists for planting false memories. Sometimes they involve third-party litigation, in which, say, an accused parent sues the daughter's therapist for planting false memories in the mind of their grown child, even when the grown child still believes in the memories. A large legal literature has emerged from the appearance of these memory wars in the legal arena (see Finer 1996 for one of the most comprehensive examples of legal scholarship). Interestingly, experts on memory and suggestibility have routinely testified in these cases, and they rarely confront the huge struggle and controversy that met the earlier eyewitness experts when they initially were sought out for trial testimony.

CONCLUDING REMARKS

On the hundredth anniversary of Munsterberg's On the Witness Stand, a new publisher planned to reissue the book and asked me to write a forward for it (Munsterberg 2009). “I'm envious of Hugo Munsterberg” was the sentence that began my forward. Having seen one book that I published go out of print fewer than 10 years after it appeared, I knew that the life span of books can be tenuous. I could only fantasize about publishing a book that might be reprinted a century later. Other reasons to envy Munsterberg might be for his stellar career and his sensational ability to write for a broad audience.

But those warm fuzzy feelings would change for me about a decade later. Here is why: Have you ever played the party game where friends tell one another the person in history with whom they would most like to have dinner? For years, one of my top choices would have been Hugo Munsterberg. Recent events have made it clear, however, that Munsterberg would probably not be interested in having dinner with me. As I was writing this article, a colleague gave me a copy of Jill Lepore's fabulous biography of Wonder Woman and her creator, the psychologist William Marston. Munsterberg featured in this biography in several places, as he was Marston's academic advisor at Harvard. And from Lepore, whose writing I greatly admire, I learned how infamous Munsterberg was for his opposition to the education of women. Apparently Munsterberg felt that the main reason any woman should be educated is to become a more interesting wife. Moreover, women, he felt, should not serve on juries because, as Lepore (2014, p. 29) quoted him saying, “they are unwilling to listen to argument and cannot be brought to change their opinion on any subject.” This new-found information changed my view of Hugo. I still imagine having that dinner, but it would go a bit differently from the way I imagined it before. After letting Hugo talk about himself for the first couple of hours, I would slip in some information about me. Remember that organization that you were president of? The American Psychological Association? Well, in 2013, the American Psychological Foundation gave me their Gold Medal Award for Life Achievement in the Science of Psychology. The citation says it was awarded for “extraordinary contributions to our understanding of memory during the past 40 years that are remarkable for their creativity and impact.” And, as for your views on women and jury duty, while writing this article, I was summoned to report for jury duty. When the clerk read the names of those called to the box, he included mine. As I walked toward the jury box, the judge said out loud, “Professor Elizabeth Loftus?” Me: “Yes, your honor.’”Judge: “Uh…I took a class from you years ago…. This may be a conflict.”And so I was excused from jury duty, which was slightly disappointing, because I would have loved, at least once in life, to be in the trenches on the other side of the box.

INTRODUCTION

Experts sometimes consider who might be remembered in the legal and social sciences in the future. It can be easier to look back to influential figures from the past. One such scholar was Hugo Munsterberg, who published his significant work, On the Witness Stand, in 1908. Decades later, a young experimental psychologist found this book valuable while preparing to write their first book on eyewitness testimony.

Munsterberg was a prominent figure, serving as a professor of psychology at Harvard and a leading founder of psychology and law. He conducted classroom experiments where he would stage events and then question students about what they observed. In his classic book, he argued that psychological methods for assessing eyewitness memory accuracy were superior to legal system practices. However, this view led to criticism from legal scholar John Henry Wigmore in 1909. Wigmore's satirical attack, in the form of an imaginary trial, challenged psychology's claims. Despite this, Munsterberg significantly introduced the public to ideas that remain central to the field of eyewitness testimony.

STUDIES OF MEMORY

The journey into Law and Social Sciences began after years of studying human memory. Initial graduate studies focused on memory research with limited direct relevance to the legal system. However, upon securing an academic position, the focus shifted to research with more practical applications, particularly a long-standing interest in legal matters and concerns for the wrongly accused. This led to studying how people remember crimes, accidents, and other legally relevant events.

While many memory scientists studied memory using controlled, simple materials like word lists, the new approach involved showing films of accidents and crimes. The goal was to explore how the questioning process influenced memory. For example, in one study, research participants who viewed accident films were asked about vehicle speed using different verb forms. Questions using "smashed" resulted in higher speed estimates than those using "hit." Furthermore, participants questioned with "smashed" were more likely to falsely report seeing broken glass at the accident scene. These findings suggested that questions could alter a witness's memory of an event.

This phenomenon, known as the misinformation effect, highlighted that post-event activities beyond questioning, such as discussing events with other witnesses, or consuming media coverage, can contaminate, transform, or supplement memory. Much of this foundational work was summarized in an early book on eyewitness testimony. Subsequent studies further explored misinformation, though these scientific details have been extensively documented elsewhere. The current focus is on how this research intersected with the legal system.

After publishing several experimental papers on laboratory witnesses, a volunteer opportunity arose to observe real-world witnesses in a murder case. The defendant in that case was acquitted. This experience, encompassing both the science and the case, was documented in Psychology Today magazine. The article, "The Incredible Eyewitness," reached a broad audience, including many legal professionals. Following its publication, lawyers began seeking consultation, lectures, and articles, thus initiating an ordinary experimental psychologist's involvement with the legal world.

INTO THE COURTROOM

When legal consultation began, a few psychologists were already providing expert testimony on eyewitness memory, with varying success. For instance, Robert Buckhout testified in the prominent 1972 People of California v. Angela Davis case. This trial involved allegations against Davis, an American political activist, in a shoot-out, with the prosecution's case heavily relying on questionable eyewitness testimony. Buckhout testified about the biased identification procedures used, and Davis was acquitted. This outcome helped defense attorneys recognize the value of eyewitness experts in educating jurors about factors that negatively impact eyewitness memory.

However, the legal profession did not uniformly embrace this new type of expert testimony. Primarily, defense lawyers in criminal cases attempted to introduce eyewitness expert testimony, but judges frequently excluded it in the early stages. A common justification for exclusion was that the subject matter was within a jury's common knowledge, and therefore not suitable for expert opinion. One court stated, "It is something everyone knows about, the problems of identification... Everyone knows these things happen." Other courts expressed concerns that experts would intrude upon the jury's role in determining witness credibility. Less often, courts worried about the testimony's prejudicial effect or its acceptance within the scientific community.

Given these concerns, it was not surprising that higher courts consistently upheld convictions when trial judges excluded expert testimony, often citing broad judicial discretion. Appeals on this issue were typically filed by convicted defendants when experts were excluded. If an expert was admitted and the defendant acquitted, there was no appeal, leading to an impression of uniform judicial opposition. This situation persisted until 1983.

That year, the Supreme Court of Arizona delivered a landmark decision in State v. Chapple (1983). Dolan Chapple's conviction for murder and drug trafficking largely relied on two eyewitness identifications, which were questionable. The initial identification of Chapple occurred from photos more than a year after the crime. The defense attempted to introduce expert testimony, but the trial judge denied it, stating the information was common knowledge. The Arizona Supreme Court overturned the conviction, ruling that expert testimony would have provided valuable scientific data on factors like the accuracy of delayed identifications and the impact of stress on memory.

A year after Chapple, the California Supreme Court reversed a murder conviction in People v. McDonald (1984). The defendant had been convicted based on multiple eyewitnesses, despite numerous alibi witnesses. These cases marked the beginning of a series of state supreme court and appellate decisions overturning convictions due to the exclusion of eyewitness experts. Much of this early context was detailed in a Presidential Address for the American Psychology-Law Society and further explored in the book Witness for the Defense.

EXPERT OUT, EXPERT IN

Early judicial exclusions of expert testimony often cited the material as common knowledge. This prompted scientists to investigate what constitutes common knowledge. Initial pilot studies, discussed in an early eyewitness book, indicated that many jury-eligible individuals held beliefs contradicted by scientific literature. Subsequent, more extensive efforts revealed jurors' misconceptions about eyewitness memory. For instance, research explored awareness of the cross-race identification problem—the difficulty in identifying strangers of a different race compared to one's own. Nearly two-thirds of potential jurors surveyed demonstrated a lack of understanding regarding this issue, with many believing cross-race and same-race identifications were equally reliable, or even that cross-race identifications might be more reliable. A review of numerous survey studies concluded a general lack of knowledge among potential jurors regarding interview techniques and procedures for handling witness evidence.

Many scientists worldwide have contributed to the literature on common knowledge regarding eyewitness memory, employing survey methods and mock-trial simulations to understand juror perceptions. This body of research illustrates how legal issues influence scientific inquiry, and scientific findings, in turn, influence legal practices. Today, unlike the 1970s, many convictions have been reversed due to the exclusion of expert testimony. Some of these reversals explicitly acknowledge research demonstrating juror misconceptions and the potential benefit of education. The Illinois case of People v. Lerma (2016) provides an example. The case involved a shooting, with the prosecution relying on two eyewitness identifications. The defense attempted to introduce expert testimony regarding factors such as weapon effects, duration, and cross-race identification. Despite the expert's report, the jury convicted Lerma. On appeal, the conviction was reversed, with the appellate court concluding the trial judge abused discretion by not carefully considering the expert evidence. The state supreme court further asserted that expert testimony on eyewitness reliability has transitioned from novel to widely accepted, noting a clear trend among courts to permit its admission.

THE WRONGFUL CONVICTION REVELATION

Scholars have long been interested in wrongful convictions, and the significant role of faulty eyewitness memory fueled further study. However, the advent of DNA testing on biological materials proved pivotal, unequivocally demonstrating the innocence of convicted defendants. One legal author provided a powerful account of this impact. Following a highly publicized DNA exoneration, the National Institute of Justice began collecting other cases, identifying 28 in the late 1990s. These cases represented a tragic catalog of undeserved punishment, primarily caused by faulty eyewitness testimony. Currently, the Innocence Project has used DNA testing to exonerate over 350 individuals wrongly convicted of serious crimes, with faulty eyewitness memory identified as the leading cause.

Other scientists have made significant contributions to understanding the causes of eyewitness errors. While some research focused on how post-event activities influence memory, other scientists examined how to design eyewitness procedures to maximize accuracy. Their collaborative efforts resulted in the edited volume, Reform of Eyewitness Identification Procedures. However, the DNA exoneration cases undoubtedly drew attention to these problems and fostered a legal environment more receptive to scientific reform suggestions.

MEMORY SCIENCE AND SOCIETY TODAY

A major development occurred in 2013 when the Arnold Foundation requested the National Academy of Sciences to conduct a comprehensive study on scientific research related to eyewitness testimony. In response, the National Research Council formed a committee, co-chaired by a prominent federal judge and a cognitive scientist. After several years of work, the committee published its report, Identifying the Culprit: Assessing Eyewitness Identification. A press release quoted a co-chair, who articulated the problem: "Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard—and any of these limitations can produce mistaken identifications with serious consequences." The report offered numerous suggestions for handling eyewitnesses in legal cases, including training law enforcement officers on eyewitness issues and using standardized instructions and double-blind methods for lineups or other identification tests. It also suggested better juror education on eyewitness memory, recommending that judges admit expert testimony or deliver carefully crafted jury instructions to achieve this educational goal.

Expert witnesses can be costly, both in fees and in the additional time spent by judges, staff, and lawyers during lengthy court testimony. Jury instructions delivered by a judge appear more efficient, potentially adding only a fraction of an hour. However, crafting effective instructions is challenging.

Before presenting new findings on jury instructions, some background is necessary. In State v. Henderson (2011), a new legal standard for evaluating eyewitness evidence was established. The defendant in that case was convicted of murder based largely on eyewitness testimony from an incident years prior. Upon appeal, the state supreme court issued a bold ruling creating this new standard: if a defendant can present evidence of suggestive issues surrounding an eyewitness, the court must hold a hearing to explore all relevant factors. If the judge then decides to admit the eyewitness, specific jury instructions tailored to guide the jury on how to evaluate the eyewitness account must be provided. These special instructions, drafted over the subsequent year, communicate important scientific findings, such as explaining that human memory does not function like a video recording and that cross-race identifications of strangers are more difficult.

The Henderson instructions were implemented, but their actual effect was unclear. Several scientists therefore began to investigate. One study utilized a mock jury procedure, presenting individuals with trial testimony for a murder case with either strong or weak evidence. A key finding was that mock jurors were significantly less likely to convict the defendant when provided with the New Jersey Henderson instructions, compared to standard instructions. However, this reduction in conviction rates occurred for both strong and weak cases. Ideally, instructions should help jurors differentiate reliable from unreliable eyewitness testimony, leading to a reduction in convictions for unreliable cases but less so for reliable ones. A similar finding emerged in another mock jury study. These initial efforts suggest that further research is needed to improve jury instructions so they enhance sensitivity without merely inducing general skepticism.

As efforts continue for improvement, it is important to acknowledge the progress eyewitness science has made, both within the scientific community and in gaining attention from the legal field. Based explicitly on eyewitness literature, many recommendations for conducting identification tests have been adopted across various jurisdictions. As one group noted, "Eyewitness scientists have played a central role in explaining the literature and helping translate the findings into practical reforms."

THE MEMORY WARS

An expert on eyewitness testimony has provided testimony in nearly 300 trials. Earlier, another development pertaining to memory and the law unfolded. By 1990, testimony was provided in over 150 trials, typically discussing memory function and factors contributing to potential memory errors in specific cases. This often included explaining studies demonstrating how post-event misinformation can contaminate a witness's memory and lead to false reporting.

In 1990, an unusual murder case was encountered. The defendant, George Franklin, was accused of murdering an 8-year-old girl 20 years earlier. The sole evidence against Franklin was the testimony of his daughter, Eileen, who claimed she witnessed the murder and repressed the memory, along with years of alleged sexual abuse by her father. A deep investigation into the evidence for such extensive repression revealed no credible scientific support for what has been termed "repression folklore." Despite this, Franklin was convicted, becoming one of the first Americans convicted of murder based on claims of repressed memory.

Following the Franklin case, thousands of claims emerged, accusing individuals of horrific abuse allegedly repressed. While experience with individuals misremembering details of past events in experiments and cases was extensive, this presented a more extreme memory issue. If these memories were not real (and many were contradicted by geographical, biological, or psychological evidence), their origin needed to be understood. Most appeared to surface after specific types of therapy. The question arose: could suggestive therapy lead to such vivid, false memories, and what would the process of developing them look like? Initial studies aimed to implant memories of a mildly traumatic event. Subjects were led through suggestion to believe that, at age five or six, they were lost in a shopping mall, frightened, crying, and eventually rescued by an elderly person and reunited with their family. Subsequent research used similar suggestive techniques to implant false memories of more unusual, bizarre, or traumatic events, such as nearly drowning or an animal attack. More recently, a common coding scheme analyzed false memory reports from over 400 subjects in rich false memory studies. Approximately 30% of reports indicated false memories, with an additional 20% partially accepting the event. Thus, the Franklin case and its claims of massive repression not only influenced the legal landscape but also spurred numerous studies demonstrating the extent to which false information can be planted into individuals' memory.

These detailed false memories have been extensively studied globally. In one laboratory, it was shown that such false memories impact subsequent thoughts, intentions, and behaviors. It was also demonstrated that, without independent corroboration, it is nearly impossible to distinguish between a real memory and one produced by another process.

In the years since the Franklin case, hundreds of criminal and civil cases have involved claims of massive repression. In an early case, Sharon Keene sued her former neighbor, Ronald Edie, alleging molestation decades earlier that she claimed to have repressed until therapy for marital problems. Despite previously denying the abuse under oath, a jury awarded Keene over $300,000. In such cases, opposing experts frequently disagree on the scientific support for massive repression, with accusers' experts claiming it exists and accused parties' experts disagreeing.

An extensive published literature emerged, with experts engaging in debates within that arena as well. Today, the memory wars persist, as evidenced by surveys of mental health professionals, memory experts, and other professional groups. One study revealed that research-oriented psychologists and memory experts expressed significantly more skepticism about repression than practitioners from other groups. For example, 82% of hypnotherapists and 69% of psychoanalysts agreed that "Traumatic memories are often repressed," compared to 27% of experimental psychologists and 19% of clinical psychologists/researchers.

Despite ongoing controversy, hundreds of cases from the 1990s to the present have involved these claims. Sometimes these cases involve accusers suing accused individuals. Other times, former accusers, realizing their memories are false, sue their former therapists for planting them. Third-party litigation also occurs, such as an accused parent suing a therapist for planting false memories in their adult child, even if the child still believes the memories. A large legal literature has developed from the appearance of these memory wars in the legal system. Interestingly, experts on memory and suggestibility have routinely testified in these cases, often without facing the significant struggle and controversy encountered by early eyewitness experts when they first sought to provide trial testimony.

CONCLUDING REMARKS

For the hundredth anniversary of Munsterberg's On the Witness Stand, a new publisher reissued the book, and an expert was asked to write a foreword. The foreword began with a statement of envy for Hugo Munsterberg, acknowledging the tenuous lifespan of books and fantasizing about publishing a book that might be reprinted a century later. Munsterberg was also envied for his distinguished career and ability to write for a broad audience.

However, these positive feelings shifted approximately a decade later. For years, Hugo Munsterberg would have been a top choice for a dinner guest. Recent events, however, made it clear that Munsterberg would likely not be interested in dining with a female colleague. While writing this article, a biography of Wonder Woman and her creator, the psychologist William Marston, was read. Munsterberg was featured in this biography as Marston's academic advisor at Harvard. The biography revealed Munsterberg's infamous opposition to women's education, believing their primary reason for education was to become more interesting wives. Furthermore, he believed women should not serve on juries because, as quoted, "they are unwilling to listen to argument and cannot be brought to change their opinion on any subject." This new information changed the perception of Hugo. The imaginary dinner remains, but it would proceed differently. After allowing Hugo to speak for the initial hours, some personal information would be shared. It would be mentioned that the American Psychological Foundation, an organization Munsterberg once presided over, awarded the speaker their Gold Medal Award for Life Achievement in the Science of Psychology in 2013. The citation noted "extraordinary contributions to our understanding of memory during the past 40 years that are remarkable for their creativity and impact." Regarding Munsterberg's views on women and jury duty, it would be shared that while writing this article, the speaker was summoned for jury duty. Upon names being called, the judge recognized the speaker as "Professor Elizabeth Loftus," and a prior classroom connection led to excusal. This was slightly disappointing, as experiencing jury duty from "the other side of the box" would have been fulfilling.

Introduction

When considering influential figures in law and social sciences from the past, Hugo Munsterberg stands out. His book, On the Witness Stand, published in 1908, was groundbreaking. Seventy years later, an experimental psychologist read this book while preparing to write a first book on eyewitness testimony.

Munsterberg, a psychology professor at Harvard, was a key figure in the field of psychology and law. He conducted classroom experiments where he staged events and then questioned students about what they saw. He argued that psychological methods for assessing eyewitness memory were superior to those used by the legal system. His work was criticized by legal scholar John Henry Wigmore, but Munsterberg's contributions introduced many concepts still central to eyewitness testimony.

Studies of Memory

Early work in law and social sciences followed studies of human memory. Initially, research focused on memory without direct legal relevance. Later, the focus shifted to practical applications, particularly concerning wrongful accusations. This led to studying how people remember crimes, accidents, and other legally significant events.

While many memory scientists studied simple materials, a different approach involved showing films of accidents and crimes to explore how questioning affects memory. For example, using the verb "smashed" when asking about car accident speed led to higher speed estimates and false reports of broken glass compared to using "hit." These findings suggested that questions could change a witness's memory. This phenomenon, where post-event information like questions, discussions with others, or media coverage alters memory, became known as the misinformation effect.

After publishing experimental papers on laboratory witnesses, a psychologist volunteered for a murder case to observe real-world witnesses. The defendant was acquitted, and the experience was detailed in Psychology Today magazine in an article titled “The Incredible Eyewitness.” This publication led to lawyers seeking assistance with cases, lectures, and articles, connecting an experimental psychologist with the legal world.

Into the Courtroom

In the early days, a few psychologists were asked to testify about eyewitness memory science in court, with varying success. For example, in the 1972 case of People of California v. Angela Davis, a psychologist testified about a biased identification test. Davis was acquitted, which highlighted the value of eyewitness experts in educating jurors about factors affecting memory accuracy.

However, the legal profession did not fully embrace this new expert testimony. Defense lawyers typically tried to introduce it, but judges often excluded it. A common reason for exclusion was that the information was considered common knowledge for jurors, making expert testimony unnecessary. Some courts also worried that experts would infringe upon the jury's role in deciding witness credibility or have a prejudicial effect. Less frequently, concerns were raised about the scientific acceptance of the testimony.

Higher courts often upheld convictions where expert testimony was excluded, citing judges' broad discretion. Published appeals at the time suggested widespread opposition to this type of expert. This was due to the fact that appeals only occurred when experts were excluded and defendants were convicted. This situation continued until a significant decision in 1983 by the Arizona Supreme Court in State v. Chapple. The court reversed a murder and drug trafficking conviction, holding that expert testimony on delayed identifications and stress effects would have been useful, despite the trial judge's earlier exclusion based on "common knowledge."

Following Chapple, the California Supreme Court also reversed a murder conviction in People v. McDonald (1984), where multiple eyewitnesses identified the defendant despite numerous alibi witnesses. These cases marked the beginning of a series of state supreme court and appellate decisions that reversed convictions after eyewitness experts had been excluded, indicating a shift in judicial acceptance.

Expert Out, Expert In

The initial exclusion of expert testimony due to judges believing the information was "common knowledge" prompted scientists to investigate what the public actually understood about memory. Early studies revealed that many individuals eligible for jury duty held beliefs about memory that contradicted scientific findings. More extensive research further confirmed jurors' misconceptions about eyewitness memory.

For instance, a study explored knowledge of the cross-race identification problem, where individuals find it harder to identify strangers of a different race. Nearly two-thirds of potential jurors surveyed showed a lack of awareness, with many believing cross-race identifications were equally or even more reliable than same-race identifications. A review of numerous survey studies concluded that potential jurors generally lack knowledge about how interviewing techniques and other procedures affect witness evidence.

This body of research, using surveys and mock-trial simulations, demonstrates how legal needs can drive scientific inquiry, and how scientific findings can, in turn, influence legal practices. Unlike the 1970s, many convictions are now reversed due to the exclusion of expert testimony, often with explicit recognition that jurors may hold misconceptions and benefit from education. An example is the Illinois case of People v. Lerma (2016), where the state supreme court noted that expert testimony on eyewitness reliability has become "settled and widely accepted," acknowledging a trend toward its admission in courts.

The Wrongful Conviction Revelation

Interest in wrongful convictions and faulty eyewitness memory has existed since Munsterberg's time, but the advent of DNA testing brought a major change. DNA evidence in semen and biological materials definitively proved the innocence of convicted individuals. A lawyer and author, James Doyle, documented the impact of these cases.

Following highly publicized DNA exonerations, the National Institute of Justice identified 28 cases of wrongful conviction in the late 1990s, with faulty eyewitness testimony being the primary cause. Today, the Innocence Project has used DNA testing to exonerate over 350 people, with faulty eyewitness memory remaining the leading factor in these cases.

Other scientists have contributed significantly to understanding the causes of eyewitness errors. While some focused on how post-event activity affects memory, others explored designing eyewitness procedures to maximize accuracy. These efforts culminated in edited volumes on reforming eyewitness identification procedures. The DNA exoneration cases were instrumental in drawing attention to these problems and fostering a legal environment more open to scientific reforms.

Memory Science and Society Today

In 2013, a significant development occurred when the Arnold Foundation asked the National Academy of Sciences to study scientific research on eyewitness testimony. A committee, co-chaired by a federal judge and a cognitive scientist, published its report, Identifying the Culprit: Assessing Eyewitness Identification. The report highlighted that human perception and memory are fallible, and inconsistent law enforcement procedures can lead to mistaken identifications with serious consequences.

The report offered numerous suggestions for handling eyewitnesses in legal cases, including training for law enforcement, standardized instructions, and double-blind methods for identification tests. It also recommended better education for jurors about eyewitness memory, suggesting that judges either admit expert testimony or deliver carefully crafted jury instructions to achieve this goal.

While expert witnesses can be costly and time-consuming, jury instructions from a judge could be more efficient. However, creating effective instructions is challenging. Background on the State v. Henderson (2011) case is important. This case established a new legal standard: if a defendant shows evidence of suggestive issues with eyewitness identification, a court hearing must be held. If the eyewitness is admitted, the judge must provide tailored jury instructions to guide the jury on evaluating the account. These instructions incorporate scientific findings, explaining that memory is not like a video recording and that cross-racial identifications can be more difficult.

Despite the implementation of Henderson instructions, their actual effect was unclear. Studies using mock juries found that these instructions reduced conviction rates for murder, but this reduction occurred for both strong and weak cases. Ideally, instructions should help jurors differentiate reliable from unreliable eyewitness testimony, leading to fewer convictions in weak cases but not unnecessarily in strong ones. These initial findings suggest a need for continued research to improve jury instructions, aiming for increased sensitivity rather than just general skepticism.

Many scholars acknowledge the progress in eyewitness science and its impact on the legal field. Recommendations based on eyewitness research have led to changes in identification test procedures across many jurisdictions, with scientists playing a key role in translating findings into practical reforms.

The Memory Wars

A development in memory and law involved testimony as an eyewitness expert in hundreds of trials, discussing memory function and factors leading to errors. This often included research on how post-event misinformation can contaminate memory and lead to false reporting.

In 1990, a highly unusual murder case emerged. George Franklin was charged with a murder from 20 years prior, based solely on his daughter Eileen's testimony. She claimed to have witnessed the murder and repressed it, along with years of sexual abuse. A deep dive into the evidence found no credible scientific support for such massive repression. Despite this, Franklin was convicted, becoming one of the first Americans convicted based on repressed memory claims.

Following the Franklin case, thousands of claims of repressed abuse surfaced. Many of these memories appeared after certain types of therapy. This raised questions about whether suggestive therapy could create vivid false memories. Initial studies attempted to plant memories of a mildly traumatic event, such as being lost in a shopping mall as a child. A significant percentage of participants developed complete or partial false memories. Other researchers used similar techniques to plant false memories of more unusual or traumatic events. Recent analysis of over 400 subjects showed that about 30% of reports were indicative of false memories, with an additional 20% accepting the event to some degree. The Franklin case influenced the legal landscape and sparked research demonstrating the extent to which false information can be incorporated into memory.

Many research groups worldwide have extensively studied these rich false memories. Studies have shown that false memories can impact subsequent thoughts, intentions, and behaviors. It is also nearly impossible to distinguish a real memory from a false one without independent evidence.

Since the Franklin case, hundreds of criminal and civil cases have involved claims of massive repression. These cases often feature opposing experts disagreeing on the scientific validity of such repression. A substantial published literature has emerged, with experts debating in academic arenas as well. Surveys of mental health professionals show varying levels of skepticism about repression, with research-oriented psychologists and memory experts being far more skeptical than hypnotherapists or psychoanalysts.

Despite ongoing controversy, these cases persist. They involve accusers suing alleged perpetrators, former accusers suing therapists for planting false memories, and third parties, like parents, suing therapists who they believe created false memories in their adult children. A large body of legal scholarship addresses these "memory wars" in the legal system. Experts on memory and suggestibility routinely testify in these cases, often without the significant struggle faced by earlier eyewitness experts.

Concluding Remarks

On the hundredth anniversary of Munsterberg's On the Witness Stand, a new edition was published, and a forward was written for it. The author expressed envy for Munsterberg's book enduring for a century and his ability to write for a wide audience.

However, views on Munsterberg changed about a decade later. Learning from a biography of William Marston that Munsterberg, Marston's academic advisor, was notably opposed to women's education and their service on juries altered the perception. He believed women should primarily be educated to be more interesting wives and were unwilling to change their opinions. This new information changed the imagined dinner conversation with Munsterberg.

The author then described a personal experience that contrasted sharply with Munsterberg's views. In 2013, the American Psychological Foundation awarded the author their Gold Medal Award for Life Achievement in the Science of Psychology for "extraordinary contributions to our understanding of memory during the past 40 years that are remarkable for their creativity and impact." Furthermore, while writing this article, the author was summoned for jury duty. Upon being called, the judge recognized the author and excused them due to a conflict of interest, an experience that would have offered a unique perspective from "the other side of the box."

INTRODUCTION

It is interesting to consider which legal and social science figures might be remembered in a hundred years. Looking back in time can often be easier than looking forward. One influential scholar from the past was Hugo Munsterberg. He published an important book called On the Witness Stand in 1908. Decades later, a young experimental psychologist read this book while preparing to write a first book on eyewitness testimony.

Munsterberg was a notable individual. As a psychology professor at Harvard, he was a key figure, perhaps even the founder, of psychology and law. He often created unexpected events in his classroom and then questioned students about what they observed. He wrote about these observations in his classic book, arguing that psychological methods for testing eyewitness memory were much better than those used by the legal system. Munsterberg soon faced criticism from a respected legal scholar, John Henry Wigmore. Wigmore’s satirical attack involved an imaginary trial where lawyers sued Munsterberg for false statements. Despite this strong criticism of psychology, Munsterberg introduced many ideas that are still central to the study of eyewitness testimony.

STUDIES OF MEMORY

Early studies of human memory did not directly relate to the legal system. However, once an academic position was secured, research began to focus on practical applications. There was a long-standing interest in legal matters, including concerns about wrongly accused individuals. This led to studying how people remember crimes, accidents, and other legally relevant events. While other memory scientists studied simpler materials like word lists, a different approach involved showing films of accidents and crimes to explore how questioning affected what people remembered. For example, in one study, witnesses who saw accident films were asked about vehicle speed using different wording. Questions with "smashed" resulted in higher speed estimates than those with "hit." Witnesses asked the "smashed" question were also more likely to falsely report seeing broken glass. These findings suggested that questions could change a witness's memory. This phenomenon, where post-event information like conversations or media coverage can alter memory, became known as the misinformation effect.

After publishing several experimental papers on laboratory witnesses, a volunteer opportunity arose to work on a murder case to observe real-world witnesses. The defendant in that case was acquitted, and the experience was written about for Psychology Today magazine in an article titled “The Incredible Eyewitness.” The magazine had a large readership, including many legal professionals. Following its publication, lawyers began requesting assistance with cases, invitations to speak at legal groups, and requests to write for legal publications, thus connecting an experimental psychologist with the legal world.

INTO THE COURTROOM

When consulting with lawyers first began, a few psychologists were testifying about eyewitness memory, with varying success. Robert Buckhout, for instance, testified in the well-known 1972 case of People of California v. Angela Davis. This trial involved allegations against Davis, a political activist, in a shootout where key evidence came from questionable eyewitness testimony. Buckhout testified about the flawed identification test used, and Davis was acquitted. This helped defense attorneys recognize the value of eyewitness experts in explaining to jurors the factors that can negatively affect memory.

However, the legal profession did not fully embrace this new type of expert testimony. Primarily defense lawyers in criminal cases sought to introduce eyewitness expert testimony, but judges often rejected it in the early days. A common reason for rejection was that the information was considered common knowledge to jurors and therefore not suitable for expert testimony. One court stated that "Everyone knows these things happen." Other courts worried that an eyewitness expert would overstep the jury's role, arguing that it is the jury's job to decide a witness's credibility. Less often, courts expressed concern about experts prejudicing the jury or that the testimony was not widely accepted in the scientific community.

Given these concerns, it was not surprising that higher courts often upheld convictions in cases where trial judges had excluded expert testimony. Generally, higher courts ruled that trial judges had broad discretion to refuse expert testimony, and doing so was not considered an abuse of power. Published appeals at the time mainly showed courts opposing this type of expert because criminal defendants only appealed when the expert was excluded and they were convicted. If an expert was admitted and the defendant was acquitted, there was no appeal. This situation continued until 1983 when the Arizona Supreme Court made a significant decision in State v. Chapple. Dolan Chapple was convicted of murder and drug trafficking largely based on two eyewitnesses. The identifications were questionable, as the first identification of Chapple occurred from photos shown to witnesses over a year after the crime. Chapple's lawyer attempted to introduce expert testimony, but the trial judge refused, stating the subject was common knowledge. The Arizona Supreme Court overturned the conviction, ruling that expert testimony would have provided valuable scientific data on issues like delayed identifications and the effects of stress on memory.

A year after Chapple, the California Supreme Court overturned a murder conviction in People v. McDonald (1984). The defendant was convicted of murdering a restaurant worker, with multiple eyewitnesses identifying him as the shooter. The jury believed these witnesses over many alibi witnesses who stated he was visiting his grandfather. This marked the beginning of several state supreme court and appellate decisions overturning convictions after eyewitness experts had been excluded. Much of this early history was discussed in a Presidential Address for the American Psychology-Law Society and further explored in the book Witness for the Defense.

EXPERT OUT, EXPERT IN

Because judges often excluded expert testimony by arguing it was common knowledge, scientists began to investigate what "common knowledge" truly meant. Early research, described in a first eyewitness book, involved a pilot study that showed many potential jurors held beliefs contradicted by scientific literature. Later, more extensive studies revealed jurors' misunderstandings about eyewitness memory. For example, one study found that almost two-thirds of surveyed potential jurors were uninformed about the cross-race identification problem—the difficulty people have identifying strangers of a different race. Most of those who were wrong (48%) believed cross-race and same-race identifications were equally reliable, with some even suggesting cross-race identifications might be more reliable (11%). Reviewing numerous survey studies confirmed a general lack of knowledge among potential jurors regarding how interviewing techniques and other procedures affect witness evidence.

Many scientists globally have contributed to the research on common knowledge about eyewitness memory. They have used surveys and mock-trial simulations to understand how jurors think about factors influencing witness memory. This body of research demonstrates how legal developments can influence scientific inquiry, and scientific findings can, in turn, influence the legal world. Today, unlike the 1970s, many convictions have been reversed due to the exclusion of expert testimony. Some of these reversals specifically acknowledge research showing that jurors have misconceptions and can benefit from education. The Illinois case of People v. Lerma (2016) provides an example. The case involved the shooting death of Jason Gill, where the prosecution relied on two eyewitness identifications. The defense attempted to introduce expert testimony, first from Dr. Fulero and then, after his passing, from Dr. Geoffrey Loftus, a recognized expert in human perception and memory. Dr. Loftus's report covered factors like the impact of weapons, duration of events, and cross-race identification. The jury convicted Lerma, who was sentenced to 45 years. Lerma appealed, and the appellate court reversed the conviction, finding that the trial judge had not carefully considered the expert evidence and had based the ruling on "personal belief." The state supreme court went further, stating that "expert testimony concerning the reliability of eyewitness testimony has moved from novel and uncertain to settled and widely accepted," and noted a "clear trend among state and federal courts permitting the admission of eyewitness expert testimony."

THE WRONGFUL CONVICTION REVELATION

Scholars have been interested in wrongful convictions since Munsterberg's time, and the frequent role of faulty eyewitness memory in these cases fueled further study. However, the development of DNA testing on biological materials truly transformed this area by proving the innocence of convicted defendants. Attorney James Doyle provides an excellent account of its significance. Following a highly publicized DNA exoneration, the National Institute of Justice began collecting other cases, identifying 28 and publishing about them in the late 1990s. As Doyle stated, these cases formed "an amazing catalogue of underserved punishment and shattered lives," with faulty eyewitness testimony being the main cause of these tragedies. Today, the Innocence Project has used DNA testing to clear over 350 individuals wrongly convicted of serious crimes. Analysis of these cases consistently shows faulty eyewitness memory as the primary factor.

Other scientists have greatly helped understand why eyewitnesses make mistakes. While some research focused on how post-event information can affect memory, others concentrated on designing eyewitness procedures to maximize accuracy. Many collaborated to produce an edited volume titled Reform of Eyewitness Identification Procedures. The DNA cases undoubtedly brought significant attention to these problems and fostered a legal environment willing to consider the reforms suggested by scientists.

MEMORY SCIENCE AND SOCIETY TODAY

A major development occurred in 2013 when the Arnold Foundation asked the National Academy of Sciences to conduct a comprehensive study of scientific research related to eyewitness testimony. In response, the National Research Council formed a committee co-chaired by a prominent federal judge and a leading cognitive scientist. After several years, the committee published its report, Identifying the Culprit: Assessing Eyewitness Identification. A press release quoted a co-chair who emphasized the problem: "Human visual perception and memory are changeable, the ability to recognize individuals is imperfect, and policies governing law enforcement procedures are not standard—and any of these limitations can produce mistaken identifications with serious consequences." The report offered numerous recommendations for handling eyewitnesses in legal cases, including training law enforcement officers on eyewitness issues and using standardized instructions and double-blind methods for lineups or other identification tests. It also suggested better education for jurors about eyewitness memory, recommending that judges either allow expert testimony or deliver carefully crafted jury instructions to achieve this educational goal.

Expert witnesses can be costly, both in their fees and the time spent by judges, staff, lawyers, and others listening to potentially hours of court testimony. Jury instructions delivered by a judge appear more efficient, potentially adding only a fraction of an hour. However, developing the right instructions is challenging, as argued in a recent essay co-authored with Judge Rakoff.

Some background on jury instructions is necessary. In State v. Henderson (2011), a new legal standard for evaluating eyewitness evidence was established. The defendant in that case was convicted of a murder that occurred years earlier, largely based on eyewitness testimony. When the case reached the state supreme court, it issued a bold ruling creating this new standard: if a defendant can show evidence of suggestive issues surrounding the eyewitness, the court must hold a hearing to explore all relevant factors. If the judge then decides to admit the eyewitness, the judge must provide specially tailored jury instructions to guide the jury on how to evaluate the eyewitness account. These special instructions, developed over the next year, communicate important scientific findings, such as explaining that human memory does not function like a video recording and that cross-race identifications of strangers are more difficult.

The Henderson instructions were implemented, but their actual effect was unclear. Several scientists therefore examined their impact. One study used a mock jury procedure, presenting participants with trial testimony about a murder case with either strong or weak evidence. This study found that mock jurors were significantly less likely to convict the defendant when given the New Jersey Henderson instructions compared to standard instructions. However, the reduction in conviction rates occurred for both strong and weak cases. Ideally, instructions should help jurors distinguish reliable eyewitness testimony from unreliable testimony, leading to a greater reduction for weak cases. A similar finding emerged in another mock jury case. These initial efforts suggest that further work is needed to improve jury instructions so they not only raise general skepticism but also enhance jurors' ability to discriminate.

While striving for improvement, it is important to acknowledge the significant progress made in eyewitness science and its impact on the legal field. Many recommendations based on eyewitness research have been adopted for conducting identification tests in various jurisdictions. As one group noted, "Eyewitness scientists have played a central role in explaining the literature and helping translate the findings into practical reforms."

THE MEMORY WARS

Currently, testimony has been provided as an eyewitness expert in nearly 300 trials. However, it is important to describe another development regarding memory and the law from decades past. By 1990, testimony as an eyewitness expert had been given in over 150 trials. This testimony typically involved explaining how memory works and identifying factors in a particular case that could contribute to memory mistakes. Often, some personal studies were described, showing how misinformation after an event can contaminate a witness's memory and lead to false reports.

In 1990, assistance was requested for a highly unusual murder case. The defendant, George Franklin, was accused of murdering an 8-year-old girl 20 years earlier. The sole evidence against Franklin was the testimony of his daughter, Eileen, who claimed she witnessed the murder and had repressed the memory, along with years of alleged sexual abuse by her father. A deep investigation into the supposed evidence for such extensive repression found no credible scientific support for what one scholar would later call "repression folklore." Despite this, Franklin was convicted, becoming one of the first Americans convicted of murder based on claims of repressed memory.

After the Franklin case, thousands more claims emerged where people were accused of horrific, allegedly repressed abuse. While there was considerable experience with individuals misremembering details of past events in experiments and cases, this represented a far more extreme memory issue. If these memories were not real (and many were contradicted by other evidence), where did they come from? Most, it seemed, surfaced after certain types of therapy. The question arose whether suggestive therapy could lead people to form such vivid false memories and what that process would look like. Initial research attempted to implant memories of a mildly traumatic event. Subjects were led to believe that, at age five or six, they had been lost in a shopping mall, frightened, crying, and eventually rescued by an elderly person and reunited with their family. This initial work resulted in 25% of the sample reporting complete or partial false memories. Soon after, other researchers used similar suggestive techniques to plant false memories of more unusual, bizarre, or traumatic events, such as nearly drowning or being attacked by an animal. More recently, researchers analyzed false memory reports from over 400 subjects who participated in studies of vivid false memories. Overall, approximately 30% of reports were classified as false memories, and an additional 20% partially accepted the event. Thus, the Franklin case and its claims of massive repression not only impacted the legal landscape but also generated a series of studies demonstrating how easily false information can be implanted into people's memories.

Many research groups worldwide have extensively studied these vivid false memories. In a personal laboratory, it has been shown that such false memories have consequences for individuals, affecting their thoughts, intentions, and behaviors. It has also been demonstrated that, without independent confirmation, it is virtually impossible to distinguish between a real memory and one produced by another process.

In the years following the Franklin case, hundreds of criminal and civil cases have involved claims of extensive repression. In an early case, Sharon Keene, aged 32, sued her former neighbor, Ronald Edie, aged 57, alleging he molested her over several years two decades prior. Keene claimed she repressed these memories until recovering them in therapy she attended for marital problems. She had previously denied the abuse under oath. A jury awarded Keene over $300,000. In such cases, opposing experts frequently disagree about the scientific validity of extensive repression. Experts for accusers often claim support for it, while those for the accused disagree.

A vast published literature emerged, and experts have also debated in this arena. Today, the "memory wars" continue, reflected in surveys of mental health professionals, memory experts, and other professional groups. One study found that research-oriented psychologists and memory experts expressed much greater skepticism about repression than practitioners from other groups. For instance, when asked if they agreed with the statement "Traumatic memories are often repressed," hypnotherapists (82%) and psychoanalysts (69%) largely agreed, while experimental psychologists (27%) and clinical psychologists/researchers (19%) rarely did.

Despite the ongoing controversy, hundreds of cases emerged in the 1990s and continue today. These cases sometimes involve an accuser suing an accused, or former accusers suing their therapists for implanting false memories after realizing the memories are untrue. Other cases involve third-party litigation, where, for example, an accused parent sues a daughter's therapist for implanting false memories in their adult child, even if the child still believes the memories. A large body of legal scholarship has developed from the appearance of these memory wars in the legal system. Interestingly, experts on memory and suggestibility have routinely testified in these cases, often facing less struggle and controversy than eyewitness experts encountered when they first sought to testify in trials.

CONCLUDING REMARKS

On the hundredth anniversary of Munsterberg's On the Witness Stand, a new publisher reissued the book and requested a foreword. The foreword began with the sentence, "I'm envious of Hugo Munsterberg." Having seen a personal book go out of print in under ten years, the tenuous lifespan of books was understood, and the idea of a book being reprinted a century later was a fantasy. Munsterberg's stellar career and remarkable ability to write for a wide audience were other reasons for admiration.

However, these positive feelings changed about a decade later. For years, Hugo Munsterberg would have been a top choice for a dinner guest when playing a game where friends name the historical figure they would most like to dine with. Recent events have made it clear, however, that Munsterberg would likely not be interested in dining together. While writing this article, a colleague provided a copy of Jill Lepore's biography of Wonder Woman and her creator, psychologist William Marston. Munsterberg appeared in this biography in several places as Marston's academic advisor at Harvard. From Lepore's writing, it was learned how infamous Munsterberg was for his opposition to the education of women. Apparently, Munsterberg believed the primary reason for a woman's education was to become a more interesting wife. Furthermore, he felt women should not serve on juries because, as Lepore quoted him, "they are unwilling to listen to argument and cannot be brought to change their opinion on any subject." This new information changed the view of Hugo. The imaginary dinner is still pictured, but it would proceed differently. After letting Hugo speak about himself for the first couple of hours, some personal information would be shared. The organization he once presided over, the American Psychological Association, awarded a Gold Medal Award for Life Achievement in the Science of Psychology in 2013. The citation recognized "extraordinary contributions to our understanding of memory during the past 40 years that are remarkable for their creativity and impact." And regarding his views on women and jury duty, while writing this article, a summons for jury duty was received. When the clerk called the names, mine was included. As the jury box was approached, the judge said, "Professor Elizabeth Loftus?" The response was, "Yes, your honor." The judge then said, "Uh...I took a class from you years ago.... This may be a conflict." And so, jury duty was excused, which was slightly disappointing, as there was a desire to be in the trenches on the other side of the box at least once in life.

Summary

Someone might wonder who people will remember in law and social sciences 100 years from now. One important person from the past was Hugo Munsterberg. In 1908, he wrote a famous book called On the Witness Stand. A person studying psychology read this book much later, in the 1970s, when preparing to write their own book about people remembering things they saw.

Mr. Munsterberg was a professor at Harvard. He helped start the study of psychology and law. He would sometimes act out surprises in his classroom and then ask students what they saw. He wrote that the ways psychologists tested memory were better than what the law used. A lawyer named John Henry Wigmore did not like this. Mr. Wigmore made fun of psychology in a made-up trial. Still, Mr. Munsterberg helped teach people many ideas about how people remember things, which are still important today. The writer of this piece worked in this field for 40 years.

Studies of Memory

The author's work in law and social sciences started after studying how people remember things. In school, the author studied memory in ways that did not seem to help the law much. But later, the author wanted to do research that could be used in real life. The author cared about people wrongly accused of crimes. So, it seemed like a good idea to study how people remember crimes and accidents.

Other scientists mostly studied memory for simple things, like lists of words. But the author started showing videos of accidents and crimes. The author looked at how questions changed what people remembered. In one study, people watched videos of car crashes. When asked, "How fast were the cars going when they smashed into each other?" people guessed a higher speed than when asked, "How fast were the cars going when they hit each other?" Also, people asked the "smashed" question later said they saw broken glass, even though there was no glass. These findings showed that questions could change what a person remembered about an accident. But questions are not the only thing that can change memory. Talking with others, reading news, or watching TV about an event can also change or add to what a person remembers. This was called the misinformation effect.

After writing about these studies, the author offered to help with a murder case to see how real witnesses behaved. The person accused in that case was found not guilty. The author wrote about this experience for a magazine. Many lawyers read the article. After that, lawyers started asking the author for help with cases, to speak to groups of lawyers, and to write for their papers. This is how a normal psychologist started working with the legal world.

Into the Courtroom

When the author first started helping lawyers, a few psychologists were asked to speak in court about eyewitness memory, with different results. One psychologist, Robert Buckhout, spoke in a big case in 1972. The person accused was Angela Davis, who was said to be involved in a shooting. The main evidence was witness statements that were not clear. Mr. Buckhout said that the way the police found someone who looked like Ms. Davis was unfair. Ms. Davis was found not guilty. Lawyers on the defense side started to see how experts on eyewitnesses could help juries understand what can make witness memory wrong.

But the law field was not quick to accept these new experts. Mostly, defense lawyers tried to bring in eyewitness experts in criminal cases. But judges often said no in the beginning. They often said that everyone already knew about memory problems, so an expert was not needed. One court said, "Everyone knows about the problems of identification... Everyone knows these things happen." Other courts worried that the expert would take over the jury's job. This means the court felt it was the jury's job to decide if a witness was telling the truth. Sometimes, courts worried the expert would make the jury think unfairly, or that the expert's ideas were not widely accepted by other scientists.

Because of these worries, it was not a surprise that higher courts often agreed with the judges who did not allow experts. These higher courts usually said that trial judges could choose whether to allow expert talks. If courts only looked at published appeals back then, it seemed like they were all against these experts. But this was because people only appealed when the expert was not allowed and the accused person was found guilty. If the judge allowed the expert and the accused person was found not guilty, there was no appeal. This continued until 1983. In that year, the highest court in Arizona made a big decision. Dolan Chapple was found guilty of murder and selling drugs, mostly because two witnesses said they saw him. But the witness statements were not very strong. The first time someone said it was Mr. Chapple was from photos shown more than a year after the crime. Mr. Chapple's lawyer tried to bring in the author to speak, but the judge said no, saying it was common knowledge. The Arizona Supreme Court said Mr. Chapple's conviction was wrong. They said that the expert's talk would have given useful science information about things like how accurate memory is after a long time, and how stress affects memory.

One year after the Chapple case, the California Supreme Court also changed a murder conviction. The accused person was found guilty of killing a restaurant worker. Many witnesses said he was the shooter. But many other witnesses said he was visiting his grandfather far away on the day of the shooting. The jury believed the witnesses who said he was the shooter. This started a series of decisions from state supreme courts that changed convictions when eyewitness experts had not been allowed to speak. The author wrote about these early events in a speech and in a book.

Expert Out, Expert In

Since judges often said that expert talks were not needed because everyone already knew the information, some scientists started to ask, "What is common knowledge?" The author first tried to answer this question in an early study. This study showed that many people who could be on a jury believed things about memory that science showed were wrong. Later, the author worked with others to show more ways that jurors misunderstand how eyewitness memory works. For example, a study in 2006 asked if people knew that it's harder to identify someone of a different race than someone of their own race. Almost two-thirds of possible jurors did not know this. Most of them (48%) thought it was just as easy, and some (11%) even thought it was easier to identify someone of a different race. After looking at many studies, a group of scientists said that possible jurors generally do not know enough about how talking to witnesses and other police methods affect memory.

Many scientists from all over the world have helped study what people know about eyewitness memory. They used surveys and pretend trials to learn how jurors think about things that change witness memory. The important point about all this research is that it shows how legal matters can lead to scientific study, and how science can then change what happens in the law. Today, things are different from the 1970s. Many convictions have been overturned because expert testimony was not allowed. Some courts now openly say they understand the research showing that jurors have wrong ideas and can learn from experts. For example, a case in Illinois in 2016 involved a shooting. The main evidence was two witnesses who said they saw the accused person. The defense tried to bring in an expert. The expert for the defense, Dr. Geoffrey Loftus, was known for studying how people see and remember things. His report talked about how things like a weapon, the amount of time, and seeing someone of a different race can affect memory. The jury found the accused guilty and he was sent to prison. But the court above them said the judge made a mistake by not carefully looking at the expert's evidence. The highest court in the state went further and said that expert talks about how good eyewitness memory is are now "settled and widely accepted." It also said that more and more courts are allowing eyewitness expert talks.

The Wrongful Conviction Revelation

Even before Munsterberg's time, smart people were interested in wrong convictions. The fact that many of these mistakes came from faulty eyewitness memory made people want to study it more. But what really made a big difference was when DNA testing could prove that people who were in prison were actually innocent. A lawyer named James Doyle wrote a great book about why this was important. After a well-known DNA case showed someone was innocent, a group that studies crime for the US government started collecting other similar cases. They found 28 cases and wrote about them in the late 1990s. Mr. Doyle said these 28 cases were "an amazing list of unfair punishment and ruined lives." The main reason for these sad events was faulty eyewitness testimony. Today, a group called the Innocence Project has used DNA tests to show that over 350 people who were wrongly found guilty of serious crimes like murder or rape were innocent. When these cases are carefully studied, the main reason for the mistake is often bad eyewitness memory.

Other scientists have greatly helped us learn what causes eyewitnesses to make these errors. While the author mainly focused on how things that happen after an event can change memory, other scientists looked at different parts of the problem. They studied how to create police line-ups or other ways of identifying people that would be as accurate as possible. Many of these scientists worked together to write a good book called Reform of Eyewitness Identification Procedures. But it was almost certainly the DNA cases that brought attention to these problems. They created a legal world that would at least listen to the changes that scientists were suggesting.

Memory Science and Society Today

A big change happened in this area in 2013. A group called the Arnold Foundation asked the National Academy of Sciences to study all the science about eyewitness testimony. A group was formed, led by a judge and a scientist. After a few years, they released a report called Identifying the Culprit: Assessing Eyewitness Identification. A press release about the report quoted one of the leaders, who said the problem is clear: "How people see and remember things can change, it's not perfect to recognize people, and police rules are not all the same. Any of these problems can lead to wrong identifications with serious results." The report gave many suggestions for how to handle eyewitnesses in legal cases. This included telling police officers about eyewitness issues and using fair methods for line-ups where the officer does not know who the suspect is. It also suggested better ways to teach jurors about eyewitness memory. The group said judges should allow experts to speak to teach jurors, or judges could give special instructions to juries to teach them the same things.

Expert witnesses can cost a lot of money and time for judges, lawyers, and others. Jury instructions from a judge would be quicker, only adding a little bit of time. But making the right instructions is harder than it seems, as the author wrote with a judge.

Before talking about new findings on jury instructions, some background is needed. In a case from 2011, a new way to look at eyewitness evidence was made. The person accused in that case was linked to a murder years earlier and found guilty mostly because of what a witness said. He appealed, and the highest court in the state made a bold decision. It said that if a person accused can show that there were problems with how the eyewitness was handled, the court must hold a meeting to look at everything. Then, if the judge decides to let the eyewitness speak, the judge must give special instructions to the jury. These instructions would help the jury know how to decide if the eyewitness account is true. These special instructions were written in the next year. They share important science findings, like telling the jury that human memory is not like a video recording, and that it's harder for people to identify strangers of a different race.

These new instructions were in place, but no one knew if they actually worked. So, some scientists looked closely. One study used a pretend jury. People heard about a murder case where the evidence was either strong or weak. One finding was that the pretend jurors were much less likely to find the accused guilty of murder when they heard the new jury instructions. But the number of guilty verdicts went down for both the strong and weak cases. Ideally, instructions should help jurors tell good eyewitness stories from bad ones, making fewer guilty verdicts only for the bad cases. Another pretend jury study found similar results. These early studies show that scientists need to keep trying to find better ways to give jury instructions. They need to make sure the instructions don't just make jurors doubt everything, but also help them know what to trust.

As people work for better ways, it's important to remember that many scientists have praised the progress that eyewitness science has made. It has helped both science and the legal field. Many ideas from eyewitness studies have been used to improve how people identify others in many places. One group said, "Eyewitness scientists have been key in explaining the science and helping to turn these findings into real changes."

The Memory Wars

The author has spoken as an eyewitness expert in almost 300 trials. But a look back a few decades shows another important change in how memory and law work together. By 1990, the author had spoken in over 150 trials about how memory works and what can cause memory mistakes in a case. Often, the author talked about their own studies showing how wrong information given after an event can change a witness's memory and lead to false statements.

In 1990, the author was asked to work on a very unusual murder case. The accused, George Franklin, was charged with killing an 8-year-old girl 20 years earlier. The only evidence against Mr. Franklin was his daughter Eileen's story. She said she saw the murder and forgot it for a long time, along with years of abuse by her father. The author looked deeply into the science behind such forgotten memories and found no real science to support it. Even so, Mr. Franklin was found guilty. He was one of the first people in America found guilty of murder based on claims of forgotten memories.

After the Franklin case, thousands more claims came out where people were accused of terrible abuse they had supposedly forgotten. While the author had much experience with people remembering wrong details of past events in experiments and cases, this was a much more extreme memory problem. If these memories were not real (and many were proven wrong by facts about places, bodies, or minds), where did they come from? Most, it seemed, came out after certain kinds of therapy. But could therapy lead people to have such clear, but false, memories? What would it look like when someone developed detailed false memories? The author's first study tried to plant memories of something that would have been a little scary if it had really happened. People were led to believe that when they were five or six, they got lost in a shopping mall, were scared and crying, and then an old person helped them and brought them back to their family. More than 25% of the people in the study said they remembered this false event, either fully or partly. Soon after, other researchers used similar ways to plant false memories of stranger, more unusual, or more upsetting events, like almost drowning or being attacked by an animal. More recently, a group of researchers looked at over 400 reports of detailed false memories. About 30% of these reports were seen as false memories, and another 20% believed the event happened to some degree. So, the Franklin case not only changed the law but also led to many studies that showed how easy it can be to put false information into people's minds.

Many research groups around the world have studied these detailed false memories. In the author's own lab, they showed that such false memories affect people's thoughts, plans, and actions later on. They also showed that it is almost impossible to tell the difference between a real memory and a made-up one without other proof.

In the years since the Franklin case, there have been hundreds of cases, both criminal and civil, about claims of forgotten memories. In one early case, a 32-year-old woman sued her 57-year-old former neighbor. She claimed he abused her for several years two decades earlier. The woman said she had forgotten these memories until she remembered them in therapy for marriage problems. She had even said under oath before that the abuse did not happen. But now, a jury gave her over $300,000. In cases like this, experts on opposite sides often disagree about whether there is any real science to support such deeply forgotten memories. Experts for the accusers say there is, and experts for the accused say there isn't.

Many books and papers have been written about this, and experts have argued about it in these writings as well. Today, these "memory wars" continue. This can be seen in surveys of mental health workers, memory experts, and other professional groups. In one study, psychologists who do research and memory experts showed much more doubt about forgotten memories than other groups. For example, when asked if they agreed that "Traumatic memories are often repressed," some groups, like hypnotherapists (82%) and psychoanalysts (69%), agreed. But other groups rarely agreed, like experimental psychologists (27%) and clinical psychologists/researchers (19%).

Even with this disagreement, hundreds of cases came up in the 1990s and continue today. Sometimes a person who claims abuse sues the accused. Other times, people who once claimed abuse realize their memories are false and sue their former therapists for putting false memories in their heads. Sometimes, other people sue, like a parent who was accused suing their daughter's therapist for planting false memories in their grown child's mind, even if the child still believes the memories. Many legal writings have come from these memory wars in the law. It's interesting that experts on memory and how easily people can be led have often spoken in these cases. They usually do not face the big fight and disagreement that early eyewitness experts did when they first started speaking in trials.

Concluding Remarks

For the 100th birthday of Munsterberg's book On the Witness Stand, a publisher asked the author to write an introduction for it. The author started by saying, "I'm envious of Hugo Munsterberg." The author had seen one of their own books go out of print quickly, knowing that books often do not last long. They could only dream of writing a book that would still be printed a century later. The author also admired Mr. Munsterberg's great career and his ability to write for many different people.

But those good feelings changed about ten years later. The author had always wanted to have dinner with Hugo Munsterberg if they could pick someone from history. Recent events showed that Mr. Munsterberg would probably not want to have dinner with the author. While writing this article, a friend gave the author a book about Wonder Woman and her creator, a psychologist named William Marston. Mr. Munsterberg was mentioned in this book because he was Mr. Marston's teacher at Harvard. The author learned from the book that Mr. Munsterberg was known for being against women getting an education. It seems he believed women should only be educated to be more interesting wives. Also, he felt women should not be on juries because, as the book quoted him, "they are unwilling to listen to argument and cannot be brought to change their opinion on any subject." This new information changed the author's view of Hugo. The author still imagines that dinner, but it would go differently now. After letting Hugo talk about himself for a couple of hours, the author would share some facts about themselves. The author might say, "Remember that group you were president of? The American Psychological Association? Well, in 2013, they gave me their Gold Medal Award for Life Achievement in the Science of Psychology." The award said it was for "amazing work in helping us understand memory over the past 40 years, which is remarkable for its new ideas and impact." And as for his thoughts on women and jury duty, while writing this article, the author was called for jury duty. When the names were read, the author's was included. As the author walked to the jury box, the judge said, "Professor Elizabeth Loftus?" The author said, "Yes, your honor." The judge said, "Uh...I took a class from you years ago... This might be a problem." So the author was excused from jury duty. This was a little sad, because the author would have liked, just once, to be on the other side of the courtroom.