Barry Fagin

Let me get this straight. I must believe one of two things: Either Christine Ford is a liar, or our newest Supreme Court justice is.

I’ve got no problem with picking sides when I think one is right. But as far as I can tell, that’s not what’s going on here. It’s entirely possible both parties are being completely honest. I believe this because that’s what the science says.

We’d like to think that memory works like a tape recorder. Science says otherwise. Memories are stored, retrieved, and reconstructed over time, influenced by our experiences and emotions. That’s part of what distinguishes human beings from machines, including tape recorders. It’s also what makes eyewitness testimony less reliable than we think.

One way to check the validity of eyewitness testimony is to look at victims who were wrongfully convicted and later exonerated by DNA evidence. The Innocence Project has done just that. Of the 362 exonerees they have found, 70 percent were put in prison by sworn eyewitness testimony.

What about multiple witnesses? That only drops the percentage by about half. Thirty-two percent of the victims were imprisoned by multiple eyewitnesses misidentifying them as the perpetrator.

Does it make any difference if the crime was rape and the victim was the only witness? Yes. It gets worse. According to a 2013 study by the Department of Justice, 92 percent of individuals wrongly convicted of rape were misidentified under oath by either their accuser or their accuser and a corroborating third party.

Let’s be clear here: Eyewitness testimony is sometimes all you have. And in the vast majority of cases, eyewitness testimony has been right. We know it was right because it matched other evidence, dramatically increasing the possibility that justice was done. This is particularly true when eyewitness testimony is not affected by drugs, alcohol, trauma, or time.

But we must also accept that a credible, honest, respectable person can be absolutely convinced of the truth of a memory and at the same time be mistaken, particularly when trauma, alcohol and time are involved. Unfortunately, once an incorrect memory becomes established in your brain, there’s no way for you to distinguish it from a correct one.

That applies both to Dr. Ford and to Judge Brett Kavanaugh. It is entirely possible that Kavanaugh committed the actions Ford described, and that he genuinely has no memory of them. It is also entirely possible that Kavanaugh never did any of the things he is accused of. In both cases, he is telling the truth as he remembers it. Based on the evidence so far (or more accurately, the lack thereof), we’ll never know the truth.

Let me ask liberals: If eyewitness testimony is so believable, why aren’t you all Christians? As best we can tell, the Gospels were written by eyewitnesses to the life of Jesus, albeit a few decades after the events they describe. For that matter, why aren’t you all LDS? The truth of the Golden Plates was sworn to by eyewitnesses, all of whom were credible, upstanding citizens. Are religious people not believable by definition?

To me, the answer is simple. The sincere testimony of good, credible people can still be deeply and profoundly wrong.

Let me ask conservatives: If good churchgoers should be believed, should I have believed Ted Haggard? He swore that angels regularly visited New Life Church. If that were happening now, wouldn’t we have hundreds of angel videos uploaded to YouTube? After evidence emerged he was homosexual, did that mean he was no longer credible? Are gay men not believable by definition? To me, the answer is simple.

The sincere testimony of good, credible people can be wrong. It happens all the time.

It is obvious from the emotional proceedings that Kavanaugh and Ford, like all of us, are not machines.

We would do well to remember that it is precisely because we are not machines that we cannot always accurately remember things, particularly through fogs of time, trauma and alcohol. If we want the truth, passionate but contradictory testimony from highly credible individuals will not get us very far. We need evidence.

Without it, we don’t know very much.

As painful as it is to admit it, we should stop pretending we do.

Dr Fagin is a Senior Fellow at the Independence Institute in Denver, and a longtime promoter of skepticism and critical thinking. He is a contributing writer for the Skeptical Inquirer, a member of the Committee for the Scientific Investigation of Claims of the Paranormal, and has represented the skeptical perspective at panels and public debates in Colorado Springs for more than two decades. His views are his alone. Readers can contact Dr. Fagin at barry@faginfamily.net.

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Dr Fagin is a Senior Fellow at the Independence Institute in Denver, and a longtime promoter of skepticism and critical thinking.  He is a contributing writer for the Skeptical Inquirer, a member of the Committee for the Scientific Investigation of Claims of the Paranormal, and has represented the skeptical perspective at panels and public debates in Colorado Springs for more than two decades.  His views are his alone.  Readers can contact Dr. Fagin at barry@faginfamily.net.

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