Tuesday, July 19, 2011

Thou Shalt Not Lie, but You May Remember Differently.

After 34 years of law practice, much of it centered on witness testimony, the nagging question recurs:  Who is lying?  Often this question arises when two parties to the same event testify quite differently to what occurred.  The sharper and more divergent the difference, the more lying appears to be in play for one or both. 

I have heard of “listening” and “communication” that there are multiple versions of the “truth” in human perception: 

a)       What happened;

b)      What I think happened;

c)       What you think happened;

d)      What I think about what you state happened;

e)      What you think about what I stated happened.

Consider for a moment that a witness’s personal experience and “way of seeing the world” is so strong (and you could be the witness) that you quite literally do not see some things occurring in an event, while seeing other things that did not occur at all.  We all know of the pop psychology tests that confirm this tendency.  Years ago in Business School I recall the test of the person who suddenly bursts into a class room; commits some act, and quickly leaves.  The students are asked to report exactly what they saw.  The versions are different depending on multiple factors, including race and age.  We see and we remember what we expect to see.  We are pre-biased to see certain features of an event, and we filter out or filter in what we see and remember to conform to the bias.  Everyone does that of course, except you (and me). 

As a discrimination lawyer, I have the bold and awesome responsibility of proving that someone was motivated by prejudice based on race, age, disability, use of medical leave, pregnancy, religion, national origin or race.  I ask you:  who thinks of themselves that way?  Who, other than a skin head, goes to work proudly proclaiming to himself or others that he is biased?  The fact is that we view ourselves as open minded and fair to all people.  The fact also is that not one of us is completely free of bias.  To confirm that truth for yourself, take some free bias disclosure tests at https://implicit.harvard.edu/implicit/.

My daughter, age 24, and I were discussing a workplace conflict of her own this morning.  The conflict, as all conflicts, was based on an event differently perceived and differently remembered by each of the participants.  The question we addressed was whether the “other party” was lying.  Our conversation led to my daughter to point out that memory is shaped by the emotional charge present at the time the event is perceived.  We are “imprinted” not just by a visual or auditory signal to the brain, but also by the electro-chemical firings that are occurring in our brain at the same time.  We tend to remember differently when we are extremely angry or extremely happy.  In my own experience, in the heat of a workplace argument, the parties often understate their own level of agitation and reactivity, and to overstate the other party’s. 

One of my friends reminded me the other day that we tend to judge ourselves by our intentions (i.e., we meant well, however we acted) while judging others by their actions (we show no mercy for good intentions).  That standard is especially true of the workplace, with its emphasis on performance evaluations, and the struggle of employers and employees to reach a “fair” appraisal.  Wikipedia offers an extensive list of “memory biases” but my favorite is: 

Egocentric bias: recalling the past in a self-serving manner, e.g., remembering one's exam grades as being better than they were, or remembering a caught fish as bigger than it really was. 

Of this bias, it might be said, I remember the good about myself, but about you I remember the evil.  For the list of the 30 or so particular biases, briefly summarized, visit:  http://en.wikipedia.org/wiki/List_of_memory_biases

Shall we ever forget those immortal words of self-perseveration:  “I did not have sex with that woman.”  President Clinton, who recently gave his legal opinion on the scope of the 14th Amendment authority of the President to unilaterally appropriate funds already approved by Congress, was stripped of his law license by the Arkansas Supreme Court for committing perjury.  Did he lie?  The State Supreme Court found that he did, but there was undoubtedly a strong set of psychological forces setting that “lie” into motion:  fear, self-image, denial, and grandiosity.  The possibility is that Mr. Clinton was able to lie so boldly because he discounted reality in favor of self-deception. 

This article is not meant to be either a philosophical or psychological treatise on the “nature of truth.”  It is a practicing attorney’s practical assessment that most of the time (but not always) people remember selectively more than they engage in outright lying.  It serves no good purpose to accuse people of lying.  The art of good lawyering is to cast overwhelming doubt on the testimony of a witness by showing reason for the witness to remember matters inaccurately. 

And then there are the cases of damn lies, and the liars who tell them, but that is another article.   




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