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Of Witnesses and Memory

Closing arguments today in the trial of I. Lewis "Scooter" Libby were expected to focus on one key question: "What did he forget and when did he forget it?" The interplay of testimony and memory is something that vexes every lawyer who has ever set foot in a courtroom or a deposition. How can a witness be so certain -- or so uncertain?

The Washington Post last week explored the art and science of memory in an article, Where'd We Leave That Darn Fact? Writer Linton Weeks walks us through the malleability and the murkiness of memory, reminding us, as psychology professor Elizabeth F. Loftus tells Weeks, "Human memory does not work like a video camera."

In the Libby courtroom, memory aids abound, both in the notes put into evidence and in the Blackberrys clutched by observers. But the larger question, says Weeks, is whether Washington has a memory. Watching Libby's trial, he writes, brought back foggy recollections of other famous Washington cases that turned on remembering:

"That of Dwight L. Chapin, for instance. Appointments secretary to President Nixon, Chapin was also the godfather of Nixon's 'dirty tricks' campaign against other 1972 presidential contenders. Chapin hired Donald Segretti to oversee the foul deeds. Segretti was called before the Watergate grand jury and ratted out Chapin. When Chapin appeared before the grand jury in 1975, he was asked if he had ever given Segretti 'any directions or instructions with respect to any single or particular candidate?'

"'Not that I recall,' Chapin replied. For that -- and another similar -- response, Chapin was found guilty of lying to the grand jury. The 'faulty memory' defense did not work for him; he went to jail.

"Then there was Edwin Meese III. In 1984, a special prosecutor investigated the financial dealings of Meese, counsel to President Reagan at the time. The prosecutor determined that Meese was lousy at keeping records and at remembering things, but that bad memory was not a crime. Meese was cleared of the allegations. He went on to become attorney general."

As I read Weeks' piece, a thought came to mind. Unfortunately, I forgot it. But before you next examine a witness, read the piece for yourself.

Posted by Robert J. Ambrogi on February 20, 2007 at 06:04 PM | Permalink | Comments (0)


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