The Worst Evidence (Until It Serves Your Cause)

But for the fact that DNA evidence has proven, conclusively, that things too obvious for dispute are false, the testimony of an eyewitness would remain the gold standard. The witness would get misty-eyed, turn to the defense table as the jurors watched with bated breath, point her finger and exclaim, “I can never forget that face. It was him!” There would be gasps. Conviction was certain.

Except we’ve learned from voluminous empirical studies, from post-conviction DNA tests, from sad meeting of putative crime victims and the innocent guy who sat in prison for decades because she was certain he was the one when he wasn’t, that eyewitnesses are so very certain of their beliefs, and so very wrong. There is no evidence more damaging, because of its strength and unreliability, as eyewitness identifications.

And now, in this freakish moment when it serves the cause to rehabilitate eyewitness IDs after years, decades of effort to end our adoration of bad evidence, the evidence responsible for so many wrongful convictions is once again beloved. The New York Times brings us the new darling of evidence, the memories of the sexual assault victim.

As a psychiatrist I know something about how memory works. Neuroscience research tells us that memories formed under the influence of intense emotion — such as the feelings that accompany a sexual assault — are indelible in the way that memories of a routine day are not.

There are literally hundreds of studies, tens of thousand of psychiatrists (see why appeals to authority, as begins this argument, are a logical fallacy?) that empirically and conclusively demonstrate that this assertion isn’t merely simplistic, but absolutely false.

So why, why in the world, would the New York Times now take the position that some of the worst, most damning, most dangerous, most unreliable evidence is essentially irrefutable?

That’s why it’s credible that Christine Blasey Ford, who has accused Judge Brett Kavanaugh, President Trump’s Supreme Court nominee, of sexually assaulting her when they were both teenagers, has a vivid recollection of the alleged long-ago event.

The memories of a purported victim are the worst evidence ever, until we want them to believe them, and then they’re back to being the best evidence ever, because reasons. Bear in mind, if Ford has a “vivid recollection” and her memories, “formed under the influence of intense emotion,” are now scientifically valid, so too does that apply to all the other victims who accuse all the other defendants who committed no crime, and over whom we kvell for their decades in prison for crimes they didn’t commit.

Ford doesn’t have magic memories, somehow different from every other person who claims to be a victim. Did Elizabeth Loftus, the seminal researcher in the failure of eyewitness memories, waste her life proving the point when, at this peculiar moment in time, the woke will do anything to rehabilitate the lie?

This is part of an ongoing scheme to recreate history to achieve outcomes people desperately desire to obtain, at the expense of processes that are factually accurate and substantively critical to achieving correct outcomes.

The virtue of due process, for example, has been a hallmark of efforts to prevent wrongful convictions, and yet it’s now being vilified as promoting rape on campus by making it harder to guarantee that every person accused of rape will be “convicted.” The “believe the victim” mantra, rather than believe the facts and give the accused a full and fair opportunity to defend himself, has been adopted by women who proclaim themselves to be progressive. Their only caveat is that they demand hegemony, and refuse to tolerate any outcome that doesn’t conform to their will.

In the name of woke outcomes, we are watching the unduly passionate resurrect the lies that we not only know to be false, but have spent decades trying to correct. Yet, the same people who were passionately, but obviously ignorantly, in support of finding the truth and eradicating the flawed “common sense” errors that permeated the legal system, have gleefully abandoned all of it for this one opportunity to crush their enemy.  And here is the New York Times, yet again, cheering on the lie if it will produce the outcome its editors so passionately desire.

Are they really prepared to sacrifice the entirety of empirical reality, that eyewitness memories are unreliable garbage, because they so desperately want to stop Brett Kavanaugh’s confirmation that they will do anything, absolutely anything, to achieve their goal? The irony is that it would seem to be all about their concern for Christine Blasey Ford, but she’s merely the mechanism of last resort to accomplish the real goal.

Nobody gave a damn about her before, though she will become a progressive hero regardless of outcome (and earn, accordingly, when her book comes out). Even Ford didn’t care enough to do anything about her alleged sexual assault in the 35 years since it allegedly happened. And she still doesn’t, really, as she could make a complaint to Maryland police if this was about vindicating her victimhood. But she hasn’t.

And it appears she’s not going to testify, having won the support of the woke for her rationalizations for not doing the one thing she could do, she wanted to do until she was offered the opportunity, whereupon she immediately flipped, give her testimony. Yet, in the name of extolling her claims in the absence of her testimony, we are willing to forfeit the reality, the decades of effort, the fact that eyewitness testimony, eyewitness memory, is inherently unreliable all for the sake of derailing the Kavanaugh confirmation.

Granted, the fragile women on campus are willing to admit that they don’t give a damn how many innocent men are held responsibility for offense that aren’t offenses, that never happened, that are lies, if it means they can accomplish the accusatory hegemony they have long sought. They knowingly sacrifice due process, fundamental fairness, because they want to seize control by any means necessary.

And in this peculiar moment of time, this deranged hatred of the fantasy image of this man who was totally fine when he was confirmed for the District of Columbia Circuit Court of Appeals, but is now the most horrible, despicable, evil man every that he must be stopped at all costs, are we prepared to sacrifice every innocent defendant whose conviction was based on what we know to be grossly unreliable evidence?

At least be honest and admit that this is an absurd lie, and its only purpose is to find anything, no matter how false, how intellectually dishonest, how utterly full of shit, to rid the Supreme Court of Brett Kavanaugh. At least then you can attack the beast without destroying the legal system for everyone else.

34 thoughts on “The Worst Evidence (Until It Serves Your Cause)

  1. Hunting Guy

    John Adams.

    “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

  2. Chavez

    DNA is reliable, according to the Times, except when it isn’t. In the Duke lacrosse case, the entire team voluntarily took DNA tests (twice, by two separate labs), and the entire team was cleared of any contact with their accuser. That should have ended the case.
    But the Times then secured a statement from Peter Neufeld, of the Innocence Project, that the absence of DNA wasn’t indicative of anything. And that by itself saved the prosecution’s (Nifong’s) case from ending before it got started. (Nifong had claimed the DNA tests would immediately rule out the innocent.)
    I’ve never known why Neufeld felt the need to repudiate everything he had worked for years to establish: the reliability of DNA testing. But I can guess why the Times wanted to get such a statement.

    “And here is the New York Times, yet again, cheering on the lie if it will produce the outcome its editors so passionately desire.”

    1. SHG Post author

      If you want to comment here, stay on topic. This isn’t a post about the Duke lacrosse case or a deep dive into DNA. Focus.

  3. Richard Kopf


    For those who wish to pursue the subject of your post further, I strongly recommend Judge Mark Bennett’s article on memory and credibility. Bennett, Mark W., Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility (January 29, 2015). American University Law Review, 2015. Available at SSRN:

    Here is an especially important portion of the abstract of the article pertinent to your post and consistent with the work of Dr Loftus:

    “Most jurors believe that memory works like a video camera that can perfectly recall the details of past events. Rather, memory is more like a Wikipedia page where you can go in and change it, but so can everyone else. Memories are so malleable, numerous, diverse, and innocuous that post-event information alters them, at times in very dramatic ways. Memories can be distorted, contaminated, and even, with modest cues, falsely imagined. For example, an extremely small universe of people have highly superior autobiographical memory (“HSAM”). They can recall past details (like the color of the shirt they were wearing on August 1, 1995) from memory almost as well as a video camera.

    HSAM individuals’ memories are not infallible, however. In one study, HSAM participants falsely remembered seeing news film clips of United Flight 93 crashing in a field in Pennsylvania on September 11, 2001. No such film exists. Thus, no group that is free from memory distortions has ever been discovered. In one interesting study, students on a college campus were asked to either perform or imagine certain normal and bizarre actions: (1) check the Pepsi machine for change; and (2) propose marriage to the Pepsi machine. Two weeks later, the students were tested and demonstrated substantial imagination inflation leading to false recognition of whether they performed or imagined the actions.”

    All the best.


  4. Sonetka

    I’ve had a gun pointed in my direction twice in my life, both times by men I had never seen before (to my knowledge) and would never see again. I can tell you absolutely nothing about how they looked except that they were both white and had short hair. I guess I wasn’t really that terrified by those two incidents at all — thanks, NYT!

    1. Brenda Rossini

      ditto. Two attacks in my younger years, by strangers from out of the dark. Both arrested immediatement and hauled off to court. i wouldn’t have the slightest idea today what they looked like or who they were. Nor would I want to.

  5. Fubar

    This is part of an ongoing scheme to recreate history to achieve outcomes people desperately desire to obtain, at the expense of processes that are factually accurate and substantively critical to achieving correct outcomes.

    There is a simple solution.¹ The key, you see, lies with the nominee:

    On these matters of paramount gravity,
    We’ve engaged our whole cranial cavity.
    Our studies have shown,
    Judges born fully grown,²
    Are not tainted by youthful depravity!

    FN 1: Yeah, I Know. I know.

    FN 2: eg: Athena (the Judge whose vote acquitted Orestes) or Minerva.

        1. Guitardave

          Trying again….”after Edit line 2″ it said, ” After searching all bodily cavity” as an alternate…in fubars poem.

    1. Jay Raskin

      So you’re saying we should seek help from the Gods to determine innocence or guilt? You mean we should go back to Hammurabi’s justice? He felt that accused people should swim across the Euphrates river to determine if they are innocent or guilty. If the gods thought the accused was guilty, they would cause a strong current to drown the sinner. If innocent, the river would remain calm and safety was guaranteed. Oh, wise Hammurabi.

  6. Bali Borodin

    Similar experience here. Two assaults during college. But…I didn’t know they were assaults at the time. In one case, I was furious but in shock, and couldn’t react. In the other case, I was in some sort of trance, but felt gross and upset later. Both were disturbing enough that I remember the room and setting exactly. The lighting, the floor covering, who was around… But I don’t remember the name of either man. And I can’t picture either of their faces. No way would I be able to ID either one of them today.

  7. B. McLeod

    Ah, that indelible memory that helps her to know who was in the room, and all the details of the event, even though she can’t remember where the house was, who owned it, how the party came to be going on, how she got there, how she got home, who else was at the party (apparently) or other insignificant, wee details. Thank God for the “expert” psychiatrists (who might, if they were ordinary beings, consider whether her extensive absence of recall and their “indelible memory” precept actually gets them to where they want to be). In the course of my decades of practice, I’ve seen a lot of esoteric, pseudo-scientific dreck from “psychiatrists” and “psychologists,” most of whom struck me as out of touch and really lacking any sense of how common people live and function.

  8. Lee

    So, the Memory Wars continue! For some reason the McMartin daycare abuse hoax and its progeny spring to mind.

    Memory is malleable and a patient is especially susceptible to suggestions from his/her therapist that , for instance, abuse occurred and was repressed by the patient. While recovered memories may have a place in therapy, they have no place in a court of law or in the confirmation hearings of a Supreme Court Justice.

  9. Total

    You overstate your case drastically. Yes, eyewitness testimony is unreliable, but we would not want (I would hope) a police department to dismiss someone who came in and said a crime had been committed because we know their testimony to be unreliable. We would (I would hope) want the police to investigate this.

    I note that the eyewitness in this case is asking for that — an investigation — and that it’s not the “woke” people who are stopping that from happening.

    1. SHG Post author

      People who are so warped by their blind passion easily miss the point of this post entirely. It’s sad to see a mind so completely wasted.

        1. Miles

          How weird that some people, those blinded by their partisan myopia, read this post one way while everyone else read it entirely different. It must be Scott. It obviously can’t be the blind partisans.

  10. Kathleen Casey

    I remember. April 15, 1987 about 10:45 p.m. on West Utica Street in Buffalo. I got away and reported it. It was a menacing with a handgun. He was never apprehended. Life went on.

  11. Lisa Simeone

    Well, by the logic of this column, none of us can ever be trusted to remember anything. Let’s throw the baby out with the bathwater — that’s the ticket!

    1. David

      If the choice actually was pretend eyewitness memory is totally reliable and falsely convict the innocent, or recognize that it’s not totally reliable and let a guilty person go free, guess which one the law chooses?

      Blackstone’s Ratio, for the win.

      1. Lisa Simeone

        A Supreme Court nomination hearing isn’t a court of law. The burden of proof isn’t the same. Kavanaugh doesn’t have a god-given or Constitution-given right to a seat on the SC.

Comments are closed.