In May, a researcher at Radboud University Nijmegen reported yet another link between language and the body: people who literally take a step back are more focused and clear thinking as they “approach” problems.

The“ear-witness” testimony yesterday in the Florida trial of Juan Mendez, Jr., “gave me pause,” and I decided to step back.

• The case: A young woman and her mother were discovered slashed and stabbed to death. A child in a highchair was found just outside their home, dehydrated after apparently having been left on the porch overnight by the killer. The young mother’s estranged husband was arrested (he was under a restraining order at the time of the murder), but a grand jury refused to indict him because physical evidence tying him to the crime was missing, in particular, DNA evidence. Several months later, after a witness came forward who claimed to have been on the phone with the young woman when someone broke into the house, the state’s attorney charged the estranged husband (Mendez) with 2nd-degree murder.

My “knee-jerk” reaction to this abusive husband was that he must be guilty. I’m always ready to throw an abuser in the slammer. (So even if Mendez didn’t do it this time, I won’t be too upset if he’s convicted and put away for life.)

But having heard some of the ear-witness testimony, I’m now stepping back and rethinking my bias. And once again I’m glad I’m not on this jury. As much as I dislike admitting it, I don’t think the witness was credible. Now, I’m going to be “keeping my fingers crossed” that powerful, definitive DNA evidence will be put before the Mendez jury.

Ear-witness Testimony

The witness in the Mendez trial was a waitress-supervisor at a local Denny’s. On the evening the crime is believed to have occurred, she was at work and claims to have received three phone calls from the victim, who worked at the Denny’s. (However, no phone records exist to prove this.) In the final call, she claims the victim said something about a restraining order and that she heard a man’s voice say something about the boy being his and he had the right to take him for the weekend. She claims she heard a scream and then the phone went dead. Shaken, she approached a table of cops and told them what she had heard; they told her to call a police station and gave her the number to call (not 911). The station has no record that she called them. Even after Mendez was arrested the first time, she did not come forward; instead she claims she was afraid and suffered from vivid nightmares of the call—each of which, I believe she said, helped her to recall more and more details of the calls. By the time she contacted the prosecutors, of course, the local news had been full of details about the crime and about Mendez.

This is very sad. She may have received phone calls from the victim. But she didn’t convince me, and I wonder if the jury feels the same. Can you imagine what it would be like to sit on that jury and feel in your gut that he did it—but not be able to point to specific, credible evidence of his guilt?

Real science, as opposed to forensic science, is teaching us that memory is slippery. If the defense brings on a credible neuroscientist, they can easily debunk this woman’s testimony.

Researchers have shown that memory is far from photographic, even in people trained to remember things. Memory is a product not only of immediate experience, but also all one’s past experiences. Memories can and are re-recorded and recorded over all the time. Hypnosis and drugs can change memories permanently.

And—relevant to the Mendez witness—dreaming is the brain’s means of dealing with experience; recurring dreams do not retrieve more-and-more-accurate memories, but instead less-accurate memories that fulfill a psychological need of the dreamer. (I refer you to the following popular science magazines for summaries of memory research: Discover, “Out of the Past,” and Science News, “The Mesmerized Mind” and the Oct. 24, 2009 issue on “Slumber Science.”)

My guess: if the witness did receive several phone calls that night in which the victim asked for help, but she ignored her, the witness’s sense of guilt produced the nightmares, which became so vivid that she finally called the police.