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Libby Files Support of Request to Use Memory Expert at Trial

A few weeks ago Lewis "Scooter" Libby notified the court it would seek to introduce the testimony of a memory expert at trial. In March, Harvard psychology professor Daniel L. Schacter told NBC News he was Libby's expert, which a member of Team Libby confirmed.

Yesterday, Libby filed his "Rule 702" advisement of the proposed expert's testimony and the bases and reasons for it. The expert is not Dr. Schacter but Robert Bjork from UCLA. The New York Sun has more.

"Mr. Libby will show that the snippets of conversation at issue in this case took place amid a rush of pressing national security matters that commanded his attention throughout his long and stressful work day," the attorneys wrote. They plan to buttress their claims of inadvertent error by turning to a memory expert from the University of California at Los Angeles, Robert Bjork.

A summary of Mr. Bjork's proposed testimony said his conclusions are based on a range of memory research, including two papers with political overtones. One is a study of testimony from a Nixon White House aide, John Dean, about his conversations with President Nixon. Another is a review of Mr. Bush's claims to have learned of the first plane to hit the World Trade Center on September 11, 2001 from video he saw before the second plane struck.

I've uploaded Libby's motion and letter to Fitzgerald so you can read them. My initial take, as someone who has litigated and lectured extensively on the issue of memory in the context of eye-witness evidence: The testimony should be admitted and the conclusions the expert makes are correct. [Part of my brief requesting the admission of memory expert testimony at trial for Timothy McVeigh is here.]

The expert only should be allowed to explain the principles of memory and memory failure to the jury. He should not be allowed to render an opinion as to whether Libby's memory failed since that's the ultimate question for the jury to decide.

Good move by Team Libby. I hope it advances the public's knowledge about the fallibility of human memory. More wrongful convictions are caused by faulty eye-witness testimony than any other factor, and it's not because the witnesses are lying, it's because they are mistaken and too often the police don't use proper procedures when interviewing them.

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  • Re: Libby Files Support of Request to Use Memory E (none / 0) (#1)
    by scribe on Tue Aug 01, 2006 at 11:32:09 AM EST
    There's little doubt in my mind he'll get past Daubert, etc. Whether the jury will buy that Busy Scooter's got scrambled memories or not - different story. He was hired for his brains, and all the stories of his brilliance that Deadeye has and might have spun would then be available to come back to haunt him. It also seems, on a cursory review, that the proposed expert gets the functionality of memory down. (Duh.) It's problems like he talks about that lead me to counsel clients to not go over their accidents and pains in their minds, but rather to write it down when it happens (I call it a "pain diary") and move on with their lives. People try to rationalize what happened - even when it's irrational - and wind up altering their recollection or reweighting things to make them make sense. People tend to forget inconvenience, pain and suffering, particularly when it's more or less a regular event (who wants to remember all that), and then wind up shorting themselves of the damages they might have gotten....

    Sorry Scooteer, not in the real world.

    Re: Libby Files Support of Request to Use Memory E (none / 0) (#3)
    by desertswine on Tue Aug 01, 2006 at 01:57:28 PM EST
    What am I holding now, Swami?

    Re: Libby Files Support of Request to Use Memory E (none / 0) (#4)
    by Repack Rider on Tue Aug 01, 2006 at 02:07:52 PM EST
    If this fails, he plans to intoduce a "Dog ate my homework" expert, followed by the "Stupidity really IS a defense in a treason case" expert.

    Re: Libby Files Support of Request to Use Memory E (none / 0) (#5)
    by Repack Rider on Tue Aug 01, 2006 at 02:12:28 PM EST
    Okay, it's not a treason case, it's a lying under oath case. And this is only a crime if the president does it in a deposition that was thrown away as soon as the case was settled out of court and if it's not about anything important to the nation. So the liberals have nothing to complain about, right?

    My angle is slightly different, working in mental health and brain science, with only occasional forays into the forensic side. But I concur with the general principle you articulate. It is true that memory is unreliable - my son and I had a humorous argument tonight about which of us had made a witty remark three weeks ago - and this general principle should be made known to investigators or juries. However, making claims about the reliability of any individual's memory is beyond the scope of what an expert can divine. The mind seeks to make a coherent narrative of events, even if there is not enough information or enough good information to do so. This is why paranoids develop elaborate and bizarre explanations for voices or odd impressions. The unlikelihood that the TV is talking to you personally is overwhelmed by the impression that it is too talking to you, and what would explain that? In a situation more common to most people, if you are depressed, your brain will not rest until it has found some coherent narrative: "I'm upset about the elections...I had an argument with a client...the car repair is going to be expensive..." whatever. Your feeling of depression may actually be due to poor sleep or a hangover, but your brain will stick with its narrative, once constructed. So, while I don't know that Scooter did misremember because noise and conflicting information changed his narrative, I do know that such things are quite possible. Lying remains possible. That one of his contradictors is lying or created a false narrative is also possible. It is curious that several commenters here are quite sure that they know what really happened, just because it fits their narrative. Anyway, thanks for the attempt at getting good information about memory and testimony out.

    Bwaaaaaahaaaaaaaaaahaaaaaaaaa.... Go Scootes, Go baby! I can just see the jury's faces... 'The dog ate your brain you say?' Guilty.

    I was really hoping he'd get that Harvard memory expert who works with alien abduction "victims," that would make for a fun trial!

    Re: Libby Files Support of Request to Use Memory E (none / 0) (#9)
    by cpinva on Tue Aug 01, 2006 at 09:30:48 PM EST
    More wrongful convictions are caused by faulty eye-witness testimony than any other factor, and it's not because the witnesses are lying, it's because they are mistaken and too often the police don't use proper procedures when interviewing them.
    no, it isn't because they are lying, they've convinced themselves they are correct. however, you left out the other half of the equation, dealing with both the (understandable) desire for justice/revenge, and the equal desire to please those in authority (DA, Police), by picking someone from a lineup. i think this probably plays an equal part in false eyewitness identifications.