Yesterday in the trial of Thomas Fast , a woman testified for the defense about a memory she has of seeing the murder victim speaking to an employee in the Publix Supermarket near where the body was later found.

In a statement to police, the witness at first said she thought the incident occurred about two weeks before the body was found but after Thomas Fast was jailed (I believe this is what she said—TruTV’s spotty coverage of the trial yesterday prevented me from hearing the testimony). If credible, her testimony would have introduced considerable reasonable doubt into the trial. However, on the stand, I think the witness said the incident was two weeks or two days before she saw the first TV reports that Mrs. Fast was missing, which would instead have been before the crime occurred.

Memories in Court

There ought to be a category of forensics for memory experts, and such experts ought to testify both for the prosecution and the defense in trials such as the Fast trial. Science is rapidly learning what memory really is—and it isn’t at all what most of us were taught as children. I suspect that testimony about memories that doesn’t take into account this new knowledge serves only to confuse juries.

The old way of thinking is that memories are imprinted on the brain rather the way images are caught on celluloid film (“photographic memory”). In past trials, hypnotists have sometimes been employed to regress witnesses to the time of a crime in an attempt to retrieve lost memories. In the Scott Peterson case, for example, the police employed an inept hypnotist to retrieve a witness’s memory of a pregnant woman walking a dog in a park. Instead of retrieving an accurate memory, the hypnotist suggested things that altered the witness’s memories. As a result, the witness was not permitted to testify—and the Peterson defense lost a critical source of reasonable doubt.

(This sort of memory-tampering should be explored. Science is showing how easily this is accomplished. In fact, neurologists now believe that every time a person thinks about a memory it changes. The potential for police investigators to plant false memories in witnesses is very substantial.)

In the Trooper Robert Higbee trial, Prof. Geoffrey Loftus of the University of Washington explained many phenomena that create memories and how the mind constructs and reconstructs memories. In that trial, an issue was whether or not the defendant lied about trying to stop at an intersection or simply misremembered what happened.

The July/August issue of Discover Magazine contains a clear explanation of the current state of the art of memory, “Out of the Past,” by Kathleen McGowan. In short, memory is highly subjective and ever-changing. Memory is perhaps a human being’s most important learning tool. Without memory we wouldn’t be able to survive, because we’d be helpless in each disjointed moment. If memory weren’t the product of an individual’s interpretation of events, it wouldn’t help us learn. If memory weren’t ever-changing, it would mean we weren’t learning by reinterpreting the past.

• Sidebar: One recent discovery is that it is rather easy to alter specific memories by administering drugs and then suggesting alternatives to the subject of the alteration. Again, it raises some frightening possibilities for law enforcement and the justice system.

The implications of this neuroscience for trial testimony are tremendous. It means that jurors must view all eye-witness testimony skeptically and with great wisdom. To understand a witness’s memories, a juror needs to understand who the witness really is and how he or she is likely to interpret events. For example, a white witness is very likely to remember an incident involving an African-American very differently from the way another African-American would. It has nothing to do with racial prejudice—and everything to do with the process of formulating memories.

In the trial in which I served as a juror, the victim was a thirteen-year-old African-American girl and the defendant was a Hispanic in his twenties. All the eye-witnesses were African-American. I hesitate to mention this, but it’s my impression that Chicagoan African-Americans do not take kindly to Hispanics and vice versa. So, in retrospect I wonder if I ought to have taken the witnesses’ testimony with a grain of salt. Instead, I took it as literal truth.

In the Thomas Fast trial, the eye-witness to the victim’s presence in the Publix is actually very important. Yet the defense is going to be hard put (IMHO) to use the testimony in closing arguments, because the defense presented no expert memory witness. On the other hand, had the witness been more definitive about when she saw the victim, the prosecution might have been the side that needed an expert memory witness.

My point is—as I’ve said before—I believe judges ought to take greater care when admitting certain evidence into a trial. I’m not a lawyer, and I imagine what I’m going to suggest is far outside the scope of law. But, what if the Fast trial judge had asked neurologists and memory experts for both prosecution and defense to examine/interview this witness and then explain to the jury how the woman’s memory was constructed and why it changed?

In my debut novel, Verdict Déjà Vu, I explore the idea of an eidetic (photographic) memory. My juror/heroine thinks she has a perfect memory. It comes in handy during deliberations when she can repeat the coroner’s testimony to her fellow jurors verbatim. Of course, they don’t believe her and demand a read-back by the court reporter. Then—to my heroine’s great surprise—she discovers her memory is far, far from perfect. Worse yet, she realizes how many of her values have been shaped by a misunderstanding of her own past.

• Sidebar: On the issue of Fast’s mortician skills, perhaps it was wise to keep his biography from the jury. Apparently morticians do commit murder from time to time. In Lancaster, PA, right now a funeral director (Michael Roseboro) is being tried for killing his wife. Perhaps a familiarity with death makes killing easier. Even if that’s true, I don’t think funeral directors make good villains for fiction. They are interesting characters, but not entirely unsympathetic. I suppose Fast’s lawyers are less concerned about their client’s homicide potential and more concerned the jury might believe a mortician would be capable of dismembering his victim. Occasionally, people inured to dead bodies give them little respect: witness the fiasco at Alsip, IL, Burr Oak Cemetery where grave diggers dumped buried bodies to make room for new ones, and don’t forget the Tri-State Crematory case in 2000.