Elizabeth Loftus — Direct/Cross/Redirect and Evidentiary Hearing
879 linesDIRECT EXAMINATION BY MS. STERNHEIM:
MS. STERNHEIM: Good afternoon, Professor Loftus.
ELIZABETH LOFTUS: Good afternoon.
MS. STERNHEIM: Please tell the jury why you are here today.
ELIZABETH LOFTUS: I am here as a professor and a scientist who studies human memory to talk about the nature of memory, the workings of memory, how people can develop memories for things that didn't happen or remember things differently from the way they actually were, to talk about the work that I and other scientists have done on false memories.
MS. STERNHEIM: Thank you, Professor Loftus. Please tell the jury what your present occupation is.
ELIZABETH LOFTUS: I'm currently a professor at the University of California-Irvine, the Irvine campus. My title is distinguished professor. And I have appointments in a department called psychological science, that's a psychology department; I have an appointment in criminology, law, and society, that's kind of a criminology department; and I'm also a faculty member in the law school.
MS. STERNHEIM: How long have you been at UC-Irvine?
ELIZABETH LOFTUS: I joined the faculty in 2002, so it's coming on 20 years.
MS. STERNHEIM: And prior to joining the faculty at Irvine, had you been on the faculty of any other university?
ELIZABETH LOFTUS: Yes. Prior to UC-Irvine, I was a professor at the University of Washington in Seattle for something like 29 years. Prior to that, I spent a few years on the faculty at the graduate faculty at the New School for Social Research here in the city. And prior to that I was in graduate school.
MS. STERNHEIM: Focusing on graduate school, please tell the members of the jury what degrees you have academically.
ELIZABETH LOFTUS: Well, starting with college, I went to UCLA as an undergraduate. I majored in mathematics and psychology and received my bachelor's degree in 1966. After UCLA, I went to Stanford for graduate school and received a master's degree in psychology, followed by a Ph.D. in psychology in 1970.
MS. STERNHEIM: Dr. Loftus, are you familiar with the term "curriculum vitae"?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And is the abbreviation for that a CV?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And please tell the members of the jury what a curriculum vitae is.
ELIZABETH LOFTUS: Well, typically, it's a document that expresses your educational background, career, publications, awards, honors, your professional life.
MS. STERNHEIM: And Dr. Loftus, do you, in fact, have a CV?
ELIZABETH LOFTUS: I do, yes.
MS. STERNHEIM: And for what period of time does your CV cover?
ELIZABETH LOFTUS: Well, I think I have mentioned in there where I went to college, so it goes back to the 1960s. And then just about everything that's happened professionally since that time.
MS. STERNHEIM: Professor Loftus, I'm going to ask you questions about your background, research, education, etc. Would you benefit from being able to look at your CV?
ELIZABETH LOFTUS: That would be helpful, yes.
MS. STERNHEIM: With the Court's permission, I would ask that Dr. Loftus be permitted to look at her CV, which is Defendant's Exhibit EL-1, a copy of which has been provided to the government and the Court.
JUDGE NATHAN: Marked for identification?
MS. STERNHEIM: Yes.
MS. POMERANTZ: No objection, your Honor.
JUDGE NATHAN: She may.
MS. STERNHEIM: Thank you.
BY MS. STERNHEIM:
MS. STERNHEIM: In addition to the degrees that you've just discussed, have you ever received any honorary degrees?
ELIZABETH LOFTUS: I have received a number of honorary doctorates from universities other than the ones I officially attended.
MS. STERNHEIM: Of those universities, are they all in the United States or elsewhere as well?
ELIZABETH LOFTUS: Some of them are in the United States, like John Jay College of Criminal Justice, which is one of the honorary doctorates. But I also have an honorary doctorate from a British university, from -- actually, I think a couple of British universities, from the University of Oslo, from Haifa University in Israel. And I was supposed to be awarded an honorary doctorate by an Australian university, Australian National University, where I was supposed to go to the commencement and receive it, but because of COVID, that hasn't yet happened.
MS. STERNHEIM: Let's talk for a moment about any honors that you may have received in connection with your professional capacities. Could you please summarize them for the jury or highlight those that you think are most significant.
ELIZABETH LOFTUS: Well, I don't know. That's kind of hard. It's like which --
MS. STERNHEIM: Well --
ELIZABETH LOFTUS: -- which baby is more important.
MS. STERNHEIM: Let me stop you for a second.
ELIZABETH LOFTUS: Okay.
MS. STERNHEIM: You are referring to your CV?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Approximately how many pages is your CV?
ELIZABETH LOFTUS: Well, the CV is 47 pages single-spaced.
MS. STERNHEIM: Single-spaced. So it's rather dense; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Well, I'm just going to ask you to highlight some of the awards that you are most proud of for the jury.
ELIZABETH LOFTUS: Okay. Well, that would be page 2 or 3. Probably the most prestigious of those awards is election to the National Academy of Sciences. I was elected to the United States National Academy of Sciences approximately 2004. And that is one of the most prestigious things that can happen to an American scientist in a field that doesn't have a Nobel Prize.
MS. STERNHEIM: What are some of the other honors that you are especially proud of?
ELIZABETH LOFTUS: I've received the two highest honors from the Association for Psychological Science, an organization of primarily academic scientific psychologists. I've received some lifetime awards even from the American Psychological Association, which is an organization that has many clinical psychologists as members. Those are some of them.
MS. STERNHEIM: Is it fair to say you've received numerous awards, in excess of dozens of awards?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And honors as well, correct?
ELIZABETH LOFTUS: I sort of lump them together, yes, sometimes.
MS. STERNHEIM: Okay. With regard to your academic experience, do you perform research?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And what kind of research do you perform?
ELIZABETH LOFTUS: Over the course of my career, I've done many hundreds of experiments. And when I say "experiments," these are experiments that are conducted in my laboratory with my graduate students or post-docs or sometimes undergraduate research assistants, or they might be experiments that are done outside in the field. And primarily these are studies of the human memory; what happens after people have had some experience, maybe recorded a little bit of information about the experience into their memory, and are then exposed to some new information that can potentially contaminate or distort that memory.
MS. STERNHEIM: In addition to the support that you received from the universities of which you have been on the faculty and supporting your research, have you received any fellowships or grants that support your research?
ELIZABETH LOFTUS: Over the years, yes. My laboratory scientific experiments have been supported by the National Science Foundation or the National Institute of Mental Health or sometimes other organizations or foundations that have provided the funds to, excuse me, support that research.
MS. STERNHEIM: In addition to research that you've conducted, have you had occasion to consult with any government agencies?
ELIZABETH LOFTUS: I've consulted with many government agencies, yes.
MS. STERNHEIM: Could you please share with the jury some of those agencies that you've consulted with?
ELIZABETH LOFTUS: Well, I've consulted with the Department of Justice, the Secret Service, the Central Intelligence Agency, the Federal Bureau of Investigation, the Internal Revenue Service at different points in my career.
MS. STERNHEIM: With regard to the research that you conduct, are the findings or your analysis of the experiments put into a report generally?
ELIZABETH LOFTUS: Generally, when we do an experiment or a set of experiments, we will write up a scientific publication, submit it hopefully to a peer-reviewed journal where it will undergo peer review and then be published and be part of the scientific literature so that it's available for other people to have access to.
MS. STERNHEIM: Please, in a very simple fashion, describe to the jury what the peer review process is.
ELIZABETH LOFTUS: Journals that are peer-reviewed journals generally have an editorial board. Members of the scientific community that will review a manuscript that has been submitted for publication, will review that manuscript and will make recommendations to the editor about whether this manuscript is worthy of being published. Is it scientifically sound, is it sufficiently interesting, is it appropriate for the journal, helping the editor to make that -- or should it be rejected, because it's none of those things.
MS. STERNHEIM: In addition to your submission of your own reports to peer-reviewed journals, have you had the occasion to serve on the editorial boards of any peer-reviewed journals?
ELIZABETH LOFTUS: Well, over these years I've served on the editorial board of many journals. And even today I am still on the editorial board of a few journals. But over the years, many of the major journals in the field of psychology.
MS. STERNHEIM: In the course of your career, have you been a member of any professional organizations?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And give the jury just a sampling of what kind of organizations those are.
ELIZABETH LOFTUS: Well, one of my primary organizations with which I affiliate is the Association for Psychological Science. This is an organization primarily of academic university research psychologists, although there are many clinical researchers who also belong to the organization. I was president of that organization in 1998-ish. I'm a member of the Western Psychological Association. This is the organization in psychology that covers the western region of the United States; so it's California, Oregon, Washington, maybe Hawaii, and possibly some other states on the west coast. And I was twice president of the Western Psychological Association. So those are just a couple of the organizations that I affiliate with. I've been president of a couple of the divisions of the American Psychological Association in the past, like the American Psychology Law Society, and have served in other roles for other organizations, not president.
MS. STERNHEIM: Moving on to publications. During the course of your career, have you published articles and journals?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Can you approximate over the span of your career -- and let me stop you for a minute. How many years would you say you have been a psychologist in the field of memory science?
ELIZABETH LOFTUS: Well, at least since I got my Ph.D. in 1970. But I actually published a few articles while I was still a graduate student with my professors as coauthors.
MS. STERNHEIM: Well, let's begin at 1970. From 1970 to this year, 2021, approximately how many articles, if you could estimate, have you published?
ELIZABETH LOFTUS: Well, I've published over 20 books and probably over 600 scientific articles and chapters.
MS. STERNHEIM: And are all of them in your CV?
ELIZABETH LOFTUS: I believe just about everything I've published is listed in the CV, and that's why it takes so many pages.
MS. STERNHEIM: In addition to the publications that you have discussed in the books that you have written, have you also coauthored in other people's books, such as chapters and textbooks and otherwise?
ELIZABETH LOFTUS: Yes, I've coauthored a number of chapters, but that would have been included in the 600 estimate that I've given you already.
MS. STERNHEIM: Okay. Now, I'd like to speak to you briefly about the research that you've conducted. Is it possible for you to approximate how many research experiments you've conducted at least from 1970 to the present?
ELIZABETH LOFTUS: I would just estimate hundreds of experiments involving maybe 50,000 participants or more, but it's just a -- it's just kind of an estimate.
MS. STERNHEIM: Well, let's just focus on a few of those, if we might. What stands out in your mind with regard to experiments that you have done that have impacted the science of memory?
ELIZABETH LOFTUS: I would say that one of the major contributions is the work that I and my collaborators have done on the misinformation effect on showing that after people see, say, a simulated crime or a simulated accident, and they are exposed to some misinformation about the accident or the crime that they saw, that many people will incorporate that misinformation into their memory and it causes an impairment in memory. False swayed of the misinformation. It becomes their memory and their memory becomes inaccurate. One -- I guess you could call it a classic study, because it's in many of the textbooks in psychology today is one in which we show people a simulated accident, maybe a car goes through a stop sign that's controlling the intersection. And later on we expose our witnesses to misinformation that it was a yield sign. Many people will now claim that they saw a yield sign instead of a stop sign. So they have succumbed to the misinformation in that new information that was presented to them and adopted it as their own memory. And that study was published in 1978.
MS. STERNHEIM: Have you conducted any studies that have to do with language and how language might affect memory?
ELIZABETH LOFTUS: Yes. An example of that would be -- again, this is also a fairly widely cited study. We showed people a simulated accident. Afterwards, we asked people about the speed of the vehicles involved in the accident. But different witnesses are questioned in different ways. So some witnesses are asked a question like, How fast were the cars going when they smashed into each other? And others are asked, How fast were the cars going when they hit each other? And we found that people estimated the speed as greater if you used the word "smashed" than if you used the word "hit." Also we had found that if we use the smash word, this leading kind of biased word, it affected what other things that people remembered. Our witnesses were more likely to remember, for example, broken glass that didn't exist if we had used that word smashed in questioning them. So that's an example of what you're asking about, the connection between language and memory.
MS. STERNHEIM: In the course of your research and experience, are you aware of any experiments that have actually measured emotion and its impact on memory?
ELIZABETH LOFTUS: Yes, there is -- well, one study that's coming to mind is -- this is a study that we published somewhat later in the 2000s, maybe around 2008 or so, along with my former Ph.D. student who is now professor of psychology, Dr. Laney. This was a study where we -- we didn't just change memory for turning a stop sign into a yield sign, but we planted entire events into the minds of research witnesses, events that did not happen. And then we measured people's emotional reactions to these false memories. So we planted false memories, for example, that you witnessed your parents having a physically violent fight when you were a kid or that you accidentally caught your parents, you know, having sex when you were a kid. And once we succeeded in planting these false memories and measured people's emotional reactions, they were just as emotional about these created memories as other individuals were who truly had had those experiences. So the bottom line there was that emotion is no guarantee that you're dealing with an authentic memory.
MS. STERNHEIM: Professor Loftus, in devising a research project, do you need to gain approval from any organization or from your university to permit you to engage in that experiment?
ELIZABETH LOFTUS: Yes, we do. Colleges and universities have human subjects, review committees. And when we want to propose to do a study with humans, there are separate groups that review studies with animals, but I am proposing studies with humans. It goes through a process of review on the campus. And sometimes they ask you to make modifications in your procedure; other times they just outright give you the blessing to go ahead and do the study.
MS. STERNHEIM: Is there a standard requirement that the experiment that you're engaging in cause no harm to the participant?
ELIZABETH LOFTUS: Well, we certainly -- we certainly hope for -- yes, that the -- when we're experimenting with human beings, that we are not going to create any -- any harm in those participants.
MS. STERNHEIM: And does that requirement in and of itself limit the types of experiments that you might otherwise choose to engage in?
ELIZABETH LOFTUS: Yes, it does. It does. So it might dictate what kind -- in the case of my work on false memories, what kind of false memory I would propose to plant in the minds of a research participant. So I might want to plant a false memory that something horrible happened that would have been traumatic if it actually had happened, like you were, you know, attacked by a vicious animal. And the human subjects review committee, well, has been known to approve that kind of proposal. But other kinds of studies that might be a little bit more sensitive, the human subjects committee might feel a little uncomfortable about approving, like a deliberate attempt to -- to plant a memory, for example, that your father, you know, forced you to sacrifice animals or breed babies and kill those babies, something that you see in these claims of satanic rituals, for example.
MS. STERNHEIM: Dr. Loftus, this is not your first time testifying, is it?
ELIZABETH LOFTUS: No, it's not.
MS. STERNHEIM: Approximately how many times have you testified in a court of law over the time that you have been a research scientist?
ELIZABETH LOFTUS: I've testified in approximately 300 trials since June 3rd, 1975.
MS. STERNHEIM: And in addition to giving testimony at trial, have you also provided testimony at depositions?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Have you testified in civil cases?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Have you testified for both the plaintiff and the defense?
ELIZABETH LOFTUS: Many times, yes.
MS. STERNHEIM: In connection with criminal cases, is it fair to say that the majority, if not most, of your testimony is for the defense; correct?
ELIZABETH LOFTUS: Well, I've only been asked to consult with the prosecution maybe five or six times. But of those five or six times I've consulted, only one time did the prosecution actually request my testimony at trial; and I did testify for the prosecution in that one case in Wisconsin.
MS. STERNHEIM: I apologize. Do you have any knowledge of why you have not testified more often for the prosecution?
ELIZABETH LOFTUS: The prosecution is frequently the one that has -- is putting on memory testimony and maybe wants to bolster that testimony. And the testimony about memory distortion or the potential for false memories is not something that typically fits in their agenda.
MS. STERNHEIM: With regard to the many hundreds of times that you've testified, have you been declared as an expert in the science of memory?
ELIZABETH LOFTUS: The vast majority of those 300 cases are testimony about memory. Every now and then I have testified as an expert witness on a slightly different issue, usually having to do with human comprehension, but not necessarily memory, like how people would understand warning labels, for example.
MS. STERNHEIM: And is part of your expertise related to the impact of memory on the brain?
ELIZABETH LOFTUS: I talk about memory and the processes of memory. It's the neuroscientist who might be the ones who want to tell you about the hippocampus and the amygdala and how it connects to the parts of the brain. I know a little bit about that and I've included material in some of my introductory psychology textbooks about that; but I would defer to a different expert, if you're talking about matters of neuroscience.
MS. STERNHEIM: Well, with regard to memory though, have you testified about these stages of memory as known in your field?
ELIZABETH LOFTUS: Oh, yes. Yes.
MS. STERNHEIM: Have you testified with regard to the impact of post-event information on memory?
ELIZABETH LOFTUS: Many times, yes.
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BY MS. STERNHEIM:
MS. STERNHEIM: And have you testified with regard to the construction or reconstruction of memory?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Judge, at this time, I would proffer Professor Elizabeth Loftus as an expert in the field of memory science, the nature of memory reconstruction, and the impact of events upon memory.
MS. POMERANTZ: Subject to our earlier objections, your Honor.
JUDGE NATHAN: Consistent with my prior ruling, I indicate Professor Loftus as an expert in the fields you've indicated. Go ahead.
MS. STERNHEIM: Thank you very much.
BY MS. STERNHEIM:
MS. STERNHEIM: Professor Loftus, I just mentioned stages of memory. Can you please explain to the jury what those stages are in the study of memory science.
ELIZABETH LOFTUS: Yes. One of the things we know about memory is it doesn't work like a recording device. You don't just record the event and play it back later. The process is much more complex. And we study the processes of memory, tend to divide that process into three major stages.
ELIZABETH LOFTUS: And, your Honor, I don't know if it's possible in this enclosure for me to illustrate this for the jury, but it might help if I could use the equipment to identify the three stages and --
MS. STERNHEIM: Judge, the monitors have the capacity to be used as a whiteboard and I would request that, for demonstrative purposes, Professor Loftus be permitted to demonstrate what she is discussing concerning the stages of memory.
JUDGE NATHAN: Ms. Pomerantz.
MS. POMERANTZ: No objection, your Honor.
JUDGE NATHAN: All right. If you can do it technologically, go ahead.
MS. STERNHEIM: May I just go over and show professor Loftus what we need to do to turn it on. I think we have our able tech person to help us. Thank you. Your Honor, I would ask the screen be visible for the jury, the parties, and the public.
JUDGE NATHAN: You may.
BY MS. STERNHEIM:
MS. STERNHEIM: Professor Loftus, you may use the screen if it aids in your testimony concerning the stages of memory.
ELIZABETH LOFTUS: So, typically, we start with the first stage, which is called the acquisition stage. This is kind of -- and this is a period where some event or events occur. That's the first stage of the process. But after that event or those events are over, now time is passing and we enter the second stage, and this is called the retention stage. After some time has passed, a person might be asked to remember the event or the events, to answer questions, to subject himself to an interview, to testify. These are acts of retrieval where somebody is trying to retrieve information about the event. And so now we enter that third stage, which is the retrieval stage. So our job as researches in this field is to identify the psychological factors that come into play at each of these three stages that can affect the accuracy of what somebody is telling you.
MS. STERNHEIM: Let me stop you for a second. When you were referring to the acquisition stage, you mentioned an event. In the category of event, is it just something that one sees or can it be that something that one actually personally experiences or hears?
ELIZABETH LOFTUS: Well, first of all, it could be just -- it could be what somebody sees and hears. It can be a robbery, for example, which somebody is seeing something and maybe hearing some conversation, but it might just be memory from a conversation or memory for some other experience that ends up being critical where you would like to know what happened.
MS. STERNHEIM: So one could actually be an observer or an actual participant or a hearer, someone who hears something in that acquisition stage?
ELIZABETH LOFTUS: Yes. Sometimes people, for example, are crime victims and sometimes they're witnesses, and they're not the victim themselves, but --
MS. STERNHEIM: Now, after the acquisition stage, is anything that happens after the event, whichever constitutes the event occurs, considered retention stage?
ELIZABETH LOFTUS: Typically, yes. It's after the event is over, so we say, well, that's the retention stage. I don't mean to complicate things too much, but I think you can appreciate that actually there can be many acts of retrieval. So there can be a long retention interval peppered with different acts of retrieval. But I used a simple diagram here to illustrate the three major stages.
MS. STERNHEIM: Can you simply identify what separate acts of retrieval would be.
ELIZABETH LOFTUS: So after some event, say, you know, a robbery, sometimes people might have a conversation with each other about what they saw and then sometimes the police might come to the scene and start asking questions about what did you see or what did you hear, and then the person might go to a police station and maybe try to make an identification of somebody who might have been seen at the event, and then somebody may be interviewed many more times, may then testify at trial. That would be a standard situation in a legally relevant event.
MS. STERNHEIM: Now, in each of those retrieval examples you just gave, that is coming from an external source; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Is there the possibility of retrieval from an internal source, meaning within the individual who is trying to recreate the memory?
ELIZABETH LOFTUS: Well, in the example that I gave earlier with the stop sign and the yield sign, we do suggest the misinformation externally, we supply them with the misinformation. But sometimes what happens with individuals is they draw inferences about what might have happened or what could have happened or what possibly happened and they can suggest things to themselves. That's called autosuggestion where there is not somebody deliberately suggesting something to you, not deliberately trying to tell you, you know, I saw the thief and he was wearing a brown jacket instead of a green jacket, but you, the witness, are drawing inferences that then start to feel as if they're memories.
MS. STERNHEIM: Going back to the acquisition stage, what would affect the quality of one's acquisition of an event?
ELIZABETH LOFTUS: At the time of acquisition, the event itself, well, some obvious thing, how good is the lighting, how far away are you, how distracted are you, are you preoccupied thinking about something else. Sometimes, if you're under the influence of certain drugs. Marijuana is one that has been studied a lot, for example, and we've studied it in a recent paper. That could affect the formation of the memory in the first place.
MS. STERNHEIM: So in connection with the acquisition stage, there could be external factors that can affect acquisition?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And there could also be personal or internal factors that could affect one's acquisition of information?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Now, going to the retrieval stage --
ELIZABETH LOFTUS: Retention.
MS. STERNHEIM: Well, retention would be --
ELIZABETH LOFTUS: What would be next.
MS. STERNHEIM: What you hold from the experience; correct?
ELIZABETH LOFTUS: Well -- so, time is passing. I mean, the event is getting older and older, and some other things are important in this retention stage, and one of those things is whether or not a person is exposed to post-event suggestion. If there is post-event suggestion, maybe a little misinformation, it can enter a witness's memory and cause a contamination, an alteration, a distortion, or even a supplementation of memory, and the longer that retention interval, the older -- the older the event is, the more susceptible people are to having post-event suggestion potentially contaminate their memory.
MS. STERNHEIM: It's fair to say that one does not need any degree whatsoever to know that memory can fade over time; correct?
ELIZABETH LOFTUS: Correct -- I think, yeah, that's kind of a matter of common sense. But what's less a matter of common sense is that, as it's faded and weakened, it becomes more vulnerable to contamination.
MS. STERNHEIM: Now, you spoke about post-event suggestion. Stepping back for a moment and just using the term post-event information, please tell the jury what that would be and what could constitute such information.
ELIZABETH LOFTUS: Post-event information can happen when two people are having a conversation with each other about the past and they can influence each other. Post-event information can be supplied when somebody is being interrogated, particularly, if they're being interrogated with somebody who's got an agenda or a hypothesis about what might have happened and communicates that to the person they're interviewing, even inadvertently. The media is a source of post-event suggestion that we've actually studied where people are sometimes interviewed on the media or media personalities will supply some suggestive information that can contaminate memory. Those are just examples of out there in the real world, what are the opportunities for post-event suggestion to become available to a person and potentially contaminate a memory.
MS. STERNHEIM: Have you conducted any studies or given any workshops with regards to interviewing techniques and the effect on memory?
ELIZABETH LOFTUS: Well, that is typically what -- when I would be consulting, for example, with the FBI or the Secret Service or even the CIA, I would be talking about interviewing techniques and other sources of potential post-event information that can contaminate memory. That's part of what those lectures and consulting is about.
MS. STERNHEIM: And in connection with an interviewing process, would there be a difference between asking what would be an open-ended question where the person being questioned provides the information as opposed to, as we all know, what a leading question is where the information may be provided and the recipient of the question just answers yes or no?
ELIZABETH LOFTUS: Well, it's certainly open-ended questions give you, in some sense, more accurate information. It might not be fully complete, so you might need to follow it up with some specific, more specific information or the closed-ended questions, and you would like to have them be as neutral as possible so that you don't contaminate the witness. But to get a little bit more complete a version of what you're looking for -- but when you ask leading questions like how fast were the cars going when they smashed into each other, that's probably not a good way to follow up an open-ended question.
MS. STERNHEIM: Now, with regard to the process of questioning someone, have you conducted any studies that show the impact of stress in the interviewing environment?
ELIZABETH LOFTUS: I have -- no. Usually, when you talk about stress, it's usually at the time of the event itself. It can be a very -- you've seen a horrible traffic accident or something particularly stressful happens to you. In terms of the stress at the time of retrieval when you're answering questions, I'm not sure, you know, to what extent that has been manipulated. I'd have to think about that a little to see if I can think of a study that might help you out there, but --
MS. STERNHEIM: Well, in addition to questioning someone, are there other situations in which there can be the exchange of information that can be suggestive to an individual?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Can you please give us some examples of that.
ELIZABETH LOFTUS: Sometimes when people are trying to retrieve information, there is pressure to provide more, more details, more details about some particular subject. I've seen that not only in law enforcement interviews, but more often even in certain kinds of psychotherapy.
MS. STERNHEIM: Now, talking about psychotherapy for a moment, you told the jury that you have a doctorate in psychology, but are you a practicing therapist?
ELIZABETH LOFTUS: No. No.
MS. STERNHEIM: Do you consult with patients in a therapeutic environment?
ELIZABETH LOFTUS: I don't do therapy, but I sometimes study patients. I don't do therapy, though.
MS. STERNHEIM: So you're not a psychologist who has a therapeutic practice?
ELIZABETH LOFTUS: Correct.
MS. STERNHEIM: You just mentioned the suggestiveness at times of psychotherapy. Could you please explain to the jury what you mean with regard to that.
ELIZABETH LOFTUS: Well, there are certain -- of course therapy can be wonderful for many people, but there are some practices in some psychotherapy where the therapist tells the patient that the current problems are due to some buried memories of childhood trauma and that they need to be recovered or retrieved in order to heal the patient. Some of these patients -- some of these psychotherapists have engaged in practices that have led their patients to have false memories.
MS. STERNHEIM: But that certainly is not in every therapeutic environment?
ELIZABETH LOFTUS: No, absolutely not.
MS. STERNHEIM: Now, with regard to suggestiveness, are you familiar with a concept called labeling?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Could you please explain to the jury what that means with regard to memory.
ELIZABETH LOFTUS: There is a lot of classic work on labeling, which is if you -- if a person sees something ambiguous and, later on, it gets labeled with a particular label, that the individuals will start to remember this ambiguous stimulus as something a little closer to that label. In one of the old classic studies, people saw a -- something that could vaguely look like it might be eyeglasses or whatever, very ambiguous. If it got labeled as eyeglasses, people remembered it as more like eyeglasses. If it got labeled as dumbbells, people later remembered it as looking more like dumbbells. That's just an example of how you can label something ambiguous and it will affect people's memory for what they saw.
MS. STERNHEIM: So if two people, let's say, are having a conversation concerning an event, and one of the individuals characterizes it in some colorful fashion that the other one may not have considered, would that be a situation where the memory might become labeled?
ELIZABETH LOFTUS: Yes, absolutely. In one of our older studies, we found that labeling something as an incident, which is really fairly neutral, has a different affect than when you label the thing that happened as a fight. People are more likely to construct an image of a fight, probably because of that label.
MS. STERNHEIM: Are you familiar with the term memory traces?
ELIZABETH LOFTUS: Memory traces?
MS. STERNHEIM: Yes. Or memory fragments?
ELIZABETH LOFTUS: Well, I suppose that every now and then somebody might talk about memory fragments. Just, you would have a bit or a piece of information in your memory.
MS. STERNHEIM: And are you familiar with situations where someone might take that bit of a memory and enhance it in some way?
MS. POMERANTZ: Objection, your Honor.
JUDGE NATHAN: Grounds.
MS. POMERANTZ: Leading.
JUDGE NATHAN: Sustained.
MS. STERNHEIM: Okay. I'll move on.
BY MS. STERNHEIM:
MS. STERNHEIM: Are you familiar with the term forgetting curve?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Could you please explain to the jury what that means.
ELIZABETH LOFTUS: Yes. I hope in talking about the forgetting curve I'm not violating any judge's order, but I will --
JUDGE NATHAN: Jury will disregard the witness's last comment. The witness will just direct her answers to the questions posed. Thank you.
ELIZABETH LOFTUS: Okay. Sorry, your Honor.
MS. STERNHEIM: So the forgetting --
ELIZABETH LOFTUS: So the forgetting curve. If I were to plot how good is memory as a function of how much time has passed --
MS. POMERANTZ: Objection, your Honor.
JUDGE NATHAN: Sustained.
MS. STERNHEIM: We'll move on.
MS. STERNHEIM: Going back again to the concept of post-event information, you spoke before about post-event suggestion. What would that be?
ELIZABETH LOFTUS: Well, post-event information is sort of an umbrella term. Post-event -- somebody could supply post-event information that is accurate and that might cause somebody to supplement their memory with accurate information. Post-event suggestion typically refers to a situation where you're supplying people with new information that is not particularly accurate.
MS. STERNHEIM: Memory has been termed a constructive process; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Could you explain what that means to the jury.
ELIZABETH LOFTUS: What we mean by that is, as I testified earlier, we don't just record events and play it back later like a recording device would work, like a video machine, but rather, we are actually constructing our memories when we retrieve memories. We often take bits and pieces of experience sometimes that occurred at different times and places, bring it together, and construct what feels like a recollection.
MS. STERNHEIM: With regard to the experiments that you have conducted, by virtue of the experiment itself, you have proof of what would form the basis of a memory; correct?
MS. POMERANTZ: Objection.
JUDGE NATHAN: Just a moment. Grounds.
MS. POMERANTZ: Leading.
JUDGE NATHAN: Sustained.
BY MS. STERNHEIM:
MS. STERNHEIM: When you do memory research, is there a process in your experiment that sets up a basis for a memory?
ELIZABETH LOFTUS: In some of the experiments, yes. So, for example, in the study that I've testified about already, we show people a simulated accident, so we know exactly what the event was, we know what they saw and that way we can see how the post-event information changes what they remember.
MS. STERNHEIM: And in contrasting that, which you just said you could see, that would be different than somebody who just reports a memory with no visual proof or documentation of it; correct?
ELIZABETH LOFTUS: Yes, then you don't have a record of what actually happened.
MS. STERNHEIM: And somebody who might report a memory may give very vivid detail; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And does the fact that someone reports a memory with vivid detail mean that the memory is accurate?
ELIZABETH LOFTUS: No, because of false memories. Once they're constructed in somebody's mind, either by external suggestion or by autosuggestion, could be very vivid, detailed. People can be confident about them, people can be emotional about them, even though they're false.
MS. STERNHEIM: So if somebody believes that they had an experience and describes that experience, there is no way of proving that that actually occurred?
MS. POMERANTZ: Objection.
JUDGE NATHAN: Sustained.
MS. STERNHEIM: Outside of the laboratory, is there any way of proving that someone has an actual memory?
MS. POMERANTZ: Objection.
JUDGE NATHAN: Sustained.
MS. STERNHEIM: Does an experience that may contain some trauma make a memory more reliable than one that does not?
ELIZABETH LOFTUS: Traumatic experiences compared to maybe more neutral ones might be associated with certainly remembering, you know, the core of what happened. You know that what you saw was a plane crash and not a warehouse fire and maybe some core details, but even traumatic experiences can be subjected to post-event suggestion that can exaggerate or distort or change the memory.
MS. STERNHEIM: In the course of your research and experience, have you done any experiments that have studied the confidence of memory?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Can you please explain that to the jury.
ELIZABETH LOFTUS: Oftentimes, at retrieval, when somebody is answering a question or reporting on what they remember from an event, they might be asked to express the level of confidence, you know, I'm pretty sure it happened, I'm very sure or what have you. And one of the things we know is if the conditions are very pristine, not a lot of -- not a lot of suggestion, not a long period of time, they're a fair test, people are more accurate when they're confident than when they're not confident. But the problem is when you have post-event suggestion or intervention, people get very confident about their wrong answers, and you can see that even wrong answers or false information, false memories can be expressed with a high degree of confidence.
MS. STERNHEIM: In connection with your experience and research, have you ever come across the term, rich false memories?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Could you please explain to the jury what that means.
ELIZABETH LOFTUS: So going back, actually, to the typical eyewitness study, witnesses see an accident, they really saw the car go through a stop sign. Later on, you suggest it was a yield sign and many people will succumb to the suggestion. You have changed a detail in memory for an event that actually happened. But somewhere around the 1990s, researchers from around the world started to look at, could you plant an entire event into the minds of people for something that didn't happen, could you use enough suggestion that you would get people to construct whole events, and we and others have accomplished that, meaning other scientific laboratories, planting false memories that -- well, as I mentioned, you witnessed your parents have a physically violent fight or you were attacked by a vicious animal, or you had a serious indoor or outdoor accident, or you nearly drowned and had to be rescued by a lifeguard, or you committed a crime as a teenager and it was serious enough that the police came to investigate — all of these rich false memories have been planted in the minds of otherwise healthy individuals.
JUDGE NATHAN: Ms. Sternheim, we're going to break for the lunch hour.
MS. STERNHEIM: That's great. Thank you.
JUDGE NATHAN: Members of the jury, you'll have about an hour for lunch. Thank you so much. Enjoy your lunch.
(Continued on next page)
(Jury not present)
JUDGE NATHAN: The witness may step down and out for the break. Thank you. Everyone may be seated. Are there matters to take up before the break or just after the break?
MS. POMERANTZ: Not from the government.
MS. STERNHEIM: Not at this time, Judge.
JUDGE NATHAN: Okay. You could step out, thank you.
ELIZABETH LOFTUS: Okay.
(Witness excused)
JUDGE NATHAN: I just want to make sure we have clarity on what needs to be resolved following the break. On the prior inconsistent statements, I'm going to spend my lunch looking through them, but I'm hoping there will be consultation and stipulation in narrowing so that we can really get down to where there is genuine disagreement after you've had some discussion. Is that everybody's understanding?
MR. ROHRBACH: That's fine with the government, your Honor.
MR. EVERDELL: We will try to confer, see if we can narrow the issues.
JUDGE NATHAN: Okay. I don't know when you need resolution of the un-narrowed issue, but my understanding is we might hit that point today.
MR. EVERDELL: Your Honor, yes. This does create a bit of a timing problem because it's possible we would get to the witnesses where these issues would come up, so --
JUDGE NATHAN: All the more reason to work it out.
MR. EVERDELL: Very true. And if -- well, I guess we'll address if we can't work it out with the Court when we come back.
JUDGE NATHAN: Okay. Were you going to offer something there, Ms. Pomerantz?
MS. POMERANTZ: No, your Honor. I saw something pop up on the screen.
JUDGE NATHAN: All right. We'll come back. We're going to need to come back early I think to get to some resolution if we need to. And Mr. Hamilton, you're going to confer on that so that we can have that testimony ready when it's time?
MR. ROHRBACH: We'll confer on the details about how to make that testimony happen. My understanding is the Court hasn't resolved the pending motion to preclude the testimony in full.
JUDGE NATHAN: Right. I wanted to know what timing we were talking about for that so that I can look at the papers.
MR. ROHRBACH: We'll confer with defense counsel about that.
JUDGE NATHAN: My quick skim of the papers this morning was that there had been some narrowing there, as well; right?
MR. ROHRBACH: That's the government's understanding of the defense response, yes, is that it's narrowed to a few paragraphs of the affidavit.
JUDGE NATHAN: A few paragraphs of the affidavit. Okay. So I will focus my attention on those few paragraphs of the affidavit and try to come back with resolution after lunch if I can. If not, end of the day -- is it fair to assume we're not going to get to that today?
MS. STERNHEIM: That is correct, Judge. If we were to get there, we would have to do all the logistics about the Webex and I also would need to see if Mr. Hamilton is up to it, physically.
JUDGE NATHAN: Well, you should make that call --
MS. STERNHEIM: I am doing that --
JUDGE NATHAN: Because it will either be today or tomorrow; right?
MS. STERNHEIM: Yes.
JUDGE NATHAN: Okay. And then what else do I need to consider? Anything else?
MS. POMERANTZ: Not from the government.
JUDGE NATHAN: About how much longer on Professor Loftus?
MS. STERNHEIM: With the lunch break, much shorter. I don't expect to be very long and I would like to trim it so that we can move on.
JUDGE NATHAN: And then who's next?
MS. STERNHEIM: I think we need to have a conferral about that.
MR. EVERDELL: It will either be Richard Barnett or Michael Aznaran from Customs and Border Protection.
JUDGE NATHAN: Okay. It's 1:03, we'll meet in 45 minutes, so that's 1:50. See you then.
(Recess) AFTERNOON SESSION 2:05 p.m.
JUDGE NATHAN: Okay, where are we?
MS. MENNINGER: Your Honor, the government and I spoke over the break. We appreciate how lengthy two of the witness's prior inconsistent statement contentions are. We were unable, in this amount of time, to try to reach agreement on all of them. The witnesses that pertain to those two would be testifying tomorrow. The one that pertains to Carolyn is here from out of state and would be testifying this afternoon. So our joint proposal, I think, would be to address right now the Carolyn prior inconsistent statement so that witness could testify or be released this afternoon and then, at the close of court this afternoon, for us to sit down with the testimony and try to reach agreement on the two related to Jane and Annie.
MS. COMEY: That's correct, your Honor. I believe there are only three statements at this point in dispute regarding Carolyn, so I think we can resolve that pretty quickly. Mr. Pagliuca, I believe, has the list of the three that I believe are in dispute.
MR. PAGLIUCA: Yes, your Honor. The two that are agreed to are at transcript 3610, 9 through 15 -- I'm sorry. Not 36. I have 35 numbers in my head. 1610, lines 9 through 15; 1611, lines 1 through 5. Those correspond to the following statements in the 302.
JUDGE NATHAN: I have them. And have you agreed on how they come in?
MS. COMEY: Your Honor, we've offered to stipulate to what the 302 says. My understanding is that the defense prefers a live witness, but we have offered to stipulate to exactly what the witness would testify to if they wish.
MR. PAGLIUCA: The witness is here, your Honor. It will be quicker just to put on the testimony than to draft up a stipulation and read it into the record. So I think that's what makes sense to me.
JUDGE NATHAN: I mean, I can't force a stip. I can strongly encourage when it makes sense. All right. And then what's next?
MR. PAGLIUCA: The ones that are in contention, your Honor, are transcript trial testimony 1564, lines 4 through 7, and page 1565, 18 through 23.
JUDGE NATHAN: Let me just get my eyes on it. Okay. Go ahead.
MR. PAGLIUCA: That corresponds to 3505, 005, page 1, second paragraph, the inconsistent statement is, "Virginia approached Carolyn at a party and asked her if she would like to make $300."
JUDGE NATHAN: So what's in dispute is whether it was at a party or at the Virginia house?
MR. PAGLIUCA: Correct.
MS. COMEY: Your Honor, we believe that's collateral, and extrinsic evidence isn't appropriate on a collateral matter.
JUDGE NATHAN: And also, the quote was read in court, wasn't it?
MS. COMEY: Yes, your Honor.
JUDGE NATHAN: I'll sustain the objection to that one.
MR. PAGLIUCA: The next is 1567, lines 7 through 19.
JUDGE NATHAN: Okay. Just give me one moment.
MR. PAGLIUCA: Sure.
JUDGE NATHAN: Okay.
MR. PAGLIUCA: And the prior inconsistent statement is at 3505, 005, page 1, second paragraph. Virginia explained Carolyn could make $300 by providing a man in Palm Beach with a massage.
MS. COMEY: Your Honor, our view is that the relevant portion was read into the record and then, at lines 23 of 1567 through 2 of 1568, she was asked specifically whether she made that statement to the FBI and she responded, yes, she told me that. So I don't see how extrinsic evidence would be appropriate.
MR. PAGLIUCA: I think it's inconsistent, your Honor. There is a denial and then there is a yes, she told me that, and I think with that inconsistency, we should be allowed to impeach it.
JUDGE NATHAN: Yes, she told me that, and that's what you told the FBI, yes, I told you that. Sustained.
MR. PAGLIUCA: The next one that's on the chart, your Honor, is not at issue.
JUDGE NATHAN: Okay.
MR. PAGLIUCA: So I think that resolves it with the Court's rulings. We're down to the two that have been agreed to.
JUDGE NATHAN: Okay. So that gets us what we need for now and you'll keep working with respect to the other two witnesses; correct?
MS. COMEY: Yes, your Honor.
JUDGE NATHAN: Great. What else?
MR. PAGLIUCA: I don't know if the Court -- well, the Court does not need to address this, but I conferred briefly with the government about the government's proposed rebuttal expert. I'm prepared to file something related to that, but they may not be calling the rebuttal expert, so we'll deal with that later.
JUDGE NATHAN: Let's do what we need to do in the immediate and then it sounds like we could do that by written submission if we need to. So the Hamilton issue, I'm trying to get my head around. So let me just ask, make sure I understand. I'm looking at the affidavit of Mr. Hamilton. This is you, Mr. Everdell?
MR. EVERDELL: I have an update on his availability. I think the substance is Ms. Sternheim.
JUDGE NATHAN: Okay.
MR. EVERDELL: But as to his availability, we were able to make contact with him and he can do a Webex today or tomorrow, we just have to let him know when. I don't think we'll be able to get the technology set up today, but he is available tomorrow.
MS. STERNHEIM: Judge, I would just say that because of his condition, I have not been able to speak with him and I would like an opportunity to at least talk to him before we put him on. So my preference would be to make him the first witness tomorrow morning because of the time difference.
JUDGE NATHAN: Okay. I think that's fine. Now let's figure out if we're going to hear from him. So I'm looking at the declaration. And you've narrowed to paragraphs -- tell me, Ms. Sternheim. I think it's 17.
MS. STERNHEIM: Let me just confirm with my colleagues. Judge, I need to access the letter that was filed earlier this morning.
JUDGE NATHAN: I guess since perhaps we take this at the end of the day. I don't want to have the jury --
MS. STERNHEIM: I'd appreciate that so that I can have all of the documents in front of me.
JUDGE NATHAN: Okay.
MS. STERNHEIM: Thank you very much.
JUDGE NATHAN: Just so I can marinate on it. So the basic idea is that you want this witness to testify about one or two conversations that he had with this witness, who we're calling Kate, the one or two conversations that he had with Kate in which -- and his proffered testimony is that, at one point, Kate said, regarding the subject of Jeffrey Epstein, that it, quote, fell right into my lap.
MS. STERNHEIM: That's correct.
JUDGE NATHAN: Let's start with that one. What is the purpose for which it is being offered?
MS. STERNHEIM: It certainly shows motive and bias on the part of Kate. There is a monetary issue here. That is not the statement of someone who feels that they are a victim as much as they feel -- it suggests that it's an opportunity that is anything but placing her in the category of victim. It sounds more like someone who is interested in a windfall.
JUDGE NATHAN: So broadly stated, the purpose for which it's being offered?
MS. STERNHEIM: Is her bias and motive.
JUDGE NATHAN: And the government's objection?
MR. ROHRBACH: The government's objection is that this is a collateral matter. It doesn't go to bias or impeachment. That --
JUDGE NATHAN: Is that a 401 objection?
MR. ROHRBACH: Well, it's not a form of impeachment of Kate's testimony. So I guess it's 401 or it's not within the common law motion to show bias or motive. It is not probative on the question of any monetary incentive by Kate whatsoever. There is no mention of money, no suggestion of her motive for doing anything in that sentence. It's very difficult to parse, without the witness's speculation, about what he thought Kate might be referring to, which is it's certainly objectionable and irrelevant testimony.
JUDGE NATHAN: I wouldn't permit that. I guess the question is just the recounting of what he said, she said, it fell into my lap.
MR. ROHRBACH: Right.
JUDGE NATHAN: So I think you mean that's -- I think it's a 401 objection.
MR. ROHRBACH: It's a 401 objection, your Honor, and we think it's extrinsic evidence on a collateral matter because it's not impeachment about any of the core subjects. She was asked about that on cross, she denied the statement. Her denial can't be impeached with extrinsic evidence.
MS. STERNHEIM: Judge, it's my understanding that motive and bias can be attacked in this manner. The witness said no and we have a witness who says otherwise. To let it just stand is only her statement, which we have the ability to contest.
MR. ROHRBACH: That would only be true if it went to bias and motive, which it doesn't for the reasons I've explained. As the Court is aware, I think we had this conversation at a sidebar during Kate's testimony when Ms. Sternheim had this declaration and we all agreed this is a collateral matter at that time.
MS. STERNHEIM: Judge, collateral during the testimony of that witness. Having another witness to counter what that witness says elevates it to another category.
MR. ROHRBACH: It's impeachment with extrinsic evidence, whether that extrinsic evidence is a declaration or live testimony by a witness.
JUDGE NATHAN: It's not just the impeachment, it's not just the question of did she say it or not. Although, there is that impeachment embedded in it. But there is just the testimony itself and the question is whether that's relevant evidence of bias or motive; right? Isn't that the analysis?
MR. ROHRBACH: I didn't understand the defense to be offering this as affirmative evidence of bias or motive, just as impeachment for those reasons. The defense has never turned this over in Rule 16 discovery, for example, which they would do if it was part of their case in chief because they were making an argument about witness bias, which is just, you know, we're not raising a Rule 16 objection, it's just to show the purpose for which this testimony is being used is extrinsic evidence to impeach Kate's testimony.
MS. STERNHEIM: The papers that we filed last night specifically state the basis upon which we are seeking to introduce this. I made this available at the time of the testimony. It is dated at a time that occurred during the course of the trial related to the testimony of their witness. I don't see why it is a Rule 16 violation --
JUDGE NATHAN: Well, I think they're not actually arguing that. So, Mr. Rohrbach, for the proposition that the denial can't be impeached by extrinsic evidence, cited Second Circuit case, United States v. Harvey, 547 F.2d 720, "...that a cross examiner is not required to, quote, take the answer, end quote, of a witness concerning possible bias, but may proffer extrinsic evidence, including the testimony of other witnesses to prove the facts showing a bias in favor of or against a party. You agree that's the law, you're just saying that there is not an available inference to the jury of bias from the "it fell into my lap."
MR. ROHRBACH: That's right, your Honor. That inference only becomes available when that statement is surrounded by the speculative mental impressions of the witness, which are not admissible evidence. And the statement on its own says almost nothing is an out of context statement from which, on its face, doesn't say anything about Kate's motives or financial interests in anything.
MS. STERNHEIM: Judge, can the government really, with a straight face, say that a victim would say, "It fell into my lap." I think it goes to the weight that the jury wants to give to it and I think that it is appropriate affirmative testimony to be put on in a defense case. They can make whatever arguments they want, they can cross examine Mr. Hamilton, but to exclude it on that basis I think is just wrong.
JUDGE NATHAN: I mean, I think we've settled on the analytical framework, which is we agree, following Harvey, if it is extrinsic evidence, to show bias in favor of or against a party, it's permissible; right?
MR. ROHRBACH: Yes, we agree.
JUDGE NATHAN: So it's really a 401 question. Is there an available inference to the jury, if they believe Mr. Hamilton, that the witness said that Kate said, "It fell into my lap," if that goes to bias. I think there is an available inference to the jury. I won't let Mr. Hamilton go beyond and speculate as to meaning.
MS. STERNHEIM: Understood.
JUDGE NATHAN: So what else beyond that?
MS. STERNHEIM: There is the statement that Kate told him that the case against Ms. Maxwell was getting stronger because the women were strengthening their stories.
JUDGE NATHAN: Okay. Mr. Rohrbach.
MR. ROHRBACH: So a few concerns about this one, your Honor. This one sort of doesn't attempt to be a quotation from Kate, so we don't know the sense in which it's going to be viewed with mental impressions from. Mr. Hamilton is not a statement that Kate was asked about on cross examination.
JUDGE NATHAN: Pause on that point. Tell me the legal basis for the pertinence of that.
MR. ROHRBACH: Well, to the extent that they are -- I guess if they're offering it solely to show bias or motive, then that wouldn't be necessary. If they're offering it as an inconsistent statement with her other statements that she did give on direct, that would not be available since they didn't challenge her with a statement.
JUDGE NATHAN: This is why I keep asking what's the framework, because --
MR. ROHRBACH: If this is the bias framework again, it wouldn't matter --
JUDGE NATHAN: Is that the same contention?
MS. STERNHEIM: Yes, Judge.
JUDGE NATHAN: So then we have the 401 question.
MR. ROHRBACH: It's the same 401 question, although this one is even more attenuated from any notion of bias or motive since it says nothing about her incentives or why she is testifying. She could be testifying for literally or cooperating with the government for literally any reason and make the same statement. It sheds no light on her motives or biases.
MS. STERNHEIM: It sheds light on her knowledge that she knows what the other accusers are doing.
MR. ROHRBACH: That is not a motive or bias objection.
JUDGE NATHAN: I think that's right. I'm inclined to sustain on that one on the 401 ground. Okay. So I think we're limited to the first question. So you'll work out --
MR. ROHRBACH: We've been conferring and will work out a way for Mr. Hamilton to testify on that point.
JUDGE NATHAN: All right. We can bring in the jury?
MR. ROHRBACH: Nothing else from the government.
JUDGE NATHAN: Ms. Sternheim.
MS. STERNHEIM: Ready to proceed.
JUDGE NATHAN: We'll get the witness and Ms. Williams will get the jury.
(Witness present) You may take off your mask. Thank you.
(Jury present)
JUDGE NATHAN: Thank you, everyone. I hope you had a pleasant lunch. We're going to continue with the direct examination of professor Loftus. Professor Loftus, I remind you, you are under oath. Ms. Sternheim you may inquire.
MS. STERNHEIM: Thank you.
BY MS. STERNHEIM:
MS. STERNHEIM: Professor Loftus, before we broke for lunch, I was asking you, had you been involved in any research that dealt with the correlation between the certainty of confidence that one has and whether the memory itself is accurate. Do you recall that?
ELIZABETH LOFTUS: Yes, I believe I answered the question. Yes.
MS. STERNHEIM: And are you familiar with the concept that confidence is malleable?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Can you please explain what that means to the jury.
ELIZABETH LOFTUS: People can express a level of confidence and if they then get some new information, for example, confirming information, something that confirms their recollection, it can increase -- sort of artificially increase their confidence in what they're saying. So, for example, in some research, primarily research done by one of the most prominent people in this field, Professor Wells from Iowa State, individuals would make an identification at a lineup and then be told -- and express some confidence like, I am pretty sure that's the guy. They get some new information, that's our suspect, or some other confirming information and it increases their confidence in their recollection. And that's confidence malleability.
MS. STERNHEIM: Are you familiar with the concept of prestige enhancing memory distortion?
ELIZABETH LOFTUS: Yes, I am.
MS. STERNHEIM: Could you please explain to the jury what that means.
ELIZABETH LOFTUS: So one of the things that memory scientists have discovered about memory distortion is that we humans frequently remember ourselves in a better light than perhaps is accurate. So there are studies showing that people remember their grades were better than they really were, that they voted in elections they didn't vote in, that they gave more to cater than they really gave, that their kids walked and talked at an earlier age than they really did. These are prestige enhancing memory distortions that people routinely make when they're not deliberately lying, but maybe it makes them feel a little better about themselves.
(Continued on next page)
BY MS. STERNHEIM:
MS. STERNHEIM: Earlier today I asked you various questions concerning the context of your curriculum vitae, you remember that?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Fair to say that we didn't go into great detail about it; correct?
ELIZABETH LOFTUS: Well, no, not great detail.
MS. STERNHEIM: And there was much more that you could have told the jury about it, but it would be time-consuming, wouldn't it?
ELIZABETH LOFTUS: It would, yes.
MS. STERNHEIM: Judge, at this time I would move into evidence Judge Loftus's CV, which is EF-1.
MS. POMERANTZ: Objection, your Honor.
JUDGE NATHAN: I'm sorry?
MS. POMERANTZ: The government objects.
JUDGE NATHAN: Overruled. EF-1 is admitted.
MS. STERNHEIM: Thank you.
(Defendant's Exhibit EF-1 received in evidence)
BY MS. STERNHEIM:
MS. STERNHEIM: Professor Loftus, just to be clear, you are being compensated for your time; correct?
ELIZABETH LOFTUS: I am, or I hope so, yes.
MS. STERNHEIM: I hope so, too. You don't have any stake in the outcome of this trial, do you?
ELIZABETH LOFTUS: No, I don't.
MS. STERNHEIM: The testimony that you give on memory science would be the same regardless of what party called you; correct?
ELIZABETH LOFTUS: That's correct. It would depend on the facts of the case and where it was appropriate; but whatever party wouldn't matter.
MS. STERNHEIM: And what is the hourly rate that you're charging for your time?
ELIZABETH LOFTUS: Well, I'm currently charging in this case $600 an hour for my time, which was the rate that I quoted when I was retained back in January.
MS. STERNHEIM: Thank you. Just a few more questions. You testified earlier this afternoon about media being a post-event information source; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: Now, media isn't just limited to the printed page; correct?
ELIZABETH LOFTUS: No. It's television, social media, newspapers, podcasts.
MS. STERNHEIM: And dramatic portrayals would be a source of post-event information, would it not?
ELIZABETH LOFTUS: Books and movies, yes.
MS. STERNHEIM: Okay. Thank you. Now, we've talked earlier about suggestion. And you've talked about studies in which memories have been implanted in your subjects. The implanting of information either in your laboratory or outside of your laboratory in the form of post-event information can be intentional or inadvertent; correct?
ELIZABETH LOFTUS: Correct. Of course, in my studies or the studies of other scientists, we do it deliberately in order to study what happens, what changes it leads to. But out there in the real world, it doesn't necessarily happen deliberately that people are deliberately trying to mislead other people. It can happen inadvertently.
MS. STERNHEIM: Have you conducted any research or are you aware of any research that has indicated that secondary gain or motive may impact the retelling of an event?
ELIZABETH LOFTUS: Well, there is some work on motivated false memories. People do seem to be more willing to accept suggestions when it's going to fit with their -- with their prior beliefs or fit with some motives. I'm not sure I know any specific study that sort of shows if people are offered money for a particular memory, that they are more likely to give it to you, but it certainly seems plausible.
MS. STERNHEIM: In any of the studies that you've conducted, has there been an analysis of who provides the post-event information, meaning someone who you trust as opposed to someone you don't trust?
ELIZABETH LOFTUS: Yes. There are several studies that are in the literature on the source of the post-event information. And just in brief, what people find is -- what researchers find is that people are more likely to accept suggestive post-event information if it comes from somebody they trust or if it comes from somebody who seems knowledgeable rather than somebody who seems like they're trying to bias you for nefarious reasons. So the source of the post-event information does matter. There's even one study with children that shows that young children are more likely to accept suggestions from adults than from other children.
MS. STERNHEIM: And in looking at memory, is there any way for you to tell, based upon your training, experience, and research, whether a memory is real or the product of post-event information?
MS. POMERANTZ: Objection.
JUDGE NATHAN: Sustained.
MS. STERNHEIM: Just going back for a moment, you spoke about post-event information and post-event suggestion. What is post-event contamination?
ELIZABETH LOFTUS: Post-event contamination would be a situation where there was suggestive information that maybe led to a contamination. You could have post-event suggestion and have people resist the suggestion. But I think if I were going to use the term "post-event contamination," it would mean that somebody was exposed to the suggestive information and it actually contaminated them.
MS. STERNHEIM: May I have a moment, Judge?
JUDGE NATHAN: You may.
(Counsel conferred)
MS. STERNHEIM: Thank you, Professor Loftus.
JUDGE NATHAN: All right. Thank you, Ms. Sternheim. Ms. Pomerantz.
MS. POMERANTZ: Thank you, your Honor.
CROSS-EXAMINATION BY MS. POMERANTZ:
MS. POMERANTZ: Good afternoon.
ELIZABETH LOFTUS: Good afternoon.
MS. POMERANTZ: I believe you testified that in addition to being a researcher, you often serve as a consultant, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And that entails consulting with lawyers about cases, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And sometimes it involves testifying at trials?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: So let's first talk about consulting. You consult with attorneys in criminal cases, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And you've consulted with attorneys hundreds and hundreds of times, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: You've consulted with defense attorneys in criminal cases hundreds of times, right?
ELIZABETH LOFTUS: Probably, yes.
MS. POMERANTZ: About 1,000 times?
ELIZABETH LOFTUS: Well, I don't know about 1,000, but hundreds of times.
MS. POMERANTZ: Okay. And of those hundreds of times, you've consulted with the prosecution about five or six times, right?
ELIZABETH LOFTUS: That's approximately the number of times I've been called by prosecutors to consult, yes.
MS. POMERANTZ: I want to talk about your trial testimony. You testified earlier that you have testified in about 300 trials, right?
ELIZABETH LOFTUS: Approximately, yes.
MS. POMERANTZ: About half of those trials are criminal trials, right?
ELIZABETH LOFTUS: It's an estimate, but let's say roughly half, yes.
MS. POMERANTZ: Okay. So you've testified in about 150 criminal trials, right?
ELIZABETH LOFTUS: Approximately, yes.
MS. POMERANTZ: And of the 150 times that you've testified at trial, you've testified for the defense every single time but once, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: And that one time that you didn't testify for the defense was in the 1990s, right?
ELIZABETH LOFTUS: It was a case in Wisconsin is what I remember. I think it might have been the '90s, yes.
MS. POMERANTZ: So it's fair to say that you've made a career out of being a witness for the defense, right?
ELIZABETH LOFTUS: In criminal cases it's predominantly been testimony for the defense, yes.
MS. POMERANTZ: You wrote a book about some of your experiences testifying at trial, right?
ELIZABETH LOFTUS: Yes, I did, 1991.
MS. POMERANTZ: You wrote a book called Witness for the Defense, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: You haven't written a book called Impartial Witness, right?
MS. STERNHEIM: Objection.
JUDGE NATHAN: Overruled.
ELIZABETH LOFTUS: I don't have a book by that title, no.
MS. POMERANTZ: I'm holding up what's been marked for identification, Professor Loftus. Can you see that?
ELIZABETH LOFTUS: I had eye surgery about six weeks ago and I can sort of see it.
JUDGE NATHAN: You may approach.
MS. POMERANTZ: Thank you, your Honor.
JUDGE NATHAN: After showing it to the defense.
MS. STERNHEIM: No need to see it.
JUDGE NATHAN: When you return to the podium, Ms. Pomerantz, you'll give an identification mark please.
MS. POMERANTZ: Yes, your Honor. It's been marked for identification as Government Exhibit 1500.
JUDGE NATHAN: Okay.
MS. POMERANTZ: That is your book, Witness for the Defense, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: That's a photo of you on the cover, right?
ELIZABETH LOFTUS: Very old photo, yes.
MS. POMERANTZ: Okay. And in your book, Witness for the Defense, isn't it true that you wrote: Should psychologists in a court of law act as an advocate for the defense or an impartial educator? My answer to that question, if I am completely honest, is both.
ELIZABETH LOFTUS: Could you refer me to the page number?
MS. POMERANTZ: Sure. It's on page 238, I believe it's Government Exhibit 1518.
MS. POMERANTZ: Your Honor, I have a binder with materials that I'm happy to provide at this time if that would be helpful.
JUDGE NATHAN: Okay.
ELIZABETH LOFTUS: I've turned to page 238.
JUDGE NATHAN: Do you have for the defense?
MS. POMERANTZ: Yes.
JUDGE NATHAN: Okay.
MS. POMERANTZ: Dr. Loftus, I believe there is a binder now that you have. The book works as well, but it is marked as Government Exhibit 1518. And the question I had asked was in your book Witness for the Defense, isn't it true that you wrote: Should psychologists in a court of law act as an advocate for the defense or an impartial educator? My answer to that question, if I'm completely honest, is both. It's just a yes or no, is that what you wrote?
ELIZABETH LOFTUS: That is a quote, but it leaves out the context of -- in which that quote is quoted.
MS. POMERANTZ: Professor Loftus, when you testify at a trial, you don't sit in the courtroom when you're not testifying, right?
ELIZABETH LOFTUS: I don't usually. Occasionally I do.
MS. POMERANTZ: You were not present for any of the testimony in this case, right?
ELIZABETH LOFTUS: Well, I was not in the courtroom.
MS. POMERANTZ: Right. You were not present in the courtroom for any of the testimony in this case, right?
ELIZABETH LOFTUS: I was not present in the courtroom; correct.
MS. POMERANTZ: Okay. I want to talk about your compensation. You are being paid or you will be paid for your work in this case, right?
ELIZABETH LOFTUS: I'm being compensated for my time, yes.
MS. POMERANTZ: And as you sit here, you're billing for your services, right?
ELIZABETH LOFTUS: I'm sorry, could you repeat that?
MS. POMERANTZ: Sure. As you sit here, you're billing for your services, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And you're charging the defendant $600 an hour, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: And you said earlier that you've testified at over 300 trials, right?
ELIZABETH LOFTUS: In 50 years, yes.
MS. POMERANTZ: The first one was in about 1975, I believe you said?
ELIZABETH LOFTUS: June 3rd, yes.
MS. POMERANTZ: And you've also consulted on hundreds and hundreds of cases, right?
ELIZABETH LOFTUS: I have, yes.
MS. POMERANTZ: And in most of those cases or many of those cases, you were compensated for your work, right?
ELIZABETH LOFTUS: In many of them, yes.
MS. POMERANTZ: You've served as a paid expert for the defense many times, right?
ELIZABETH LOFTUS: I have, yes.
MS. POMERANTZ: You served as a paid expert for some high-profile or famous defendants, right?
ELIZABETH LOFTUS: I have.
MS. POMERANTZ: It's fair to say that over the years, criminal defendants have paid you millions of dollars for your services, right?
ELIZABETH LOFTUS: I don't know if it's millions of dollars, no.
MS. POMERANTZ: When you started testifying as an expert witness back in 1975, you didn't charge $600 an hour, right?
ELIZABETH LOFTUS: I started by charging nothing because I wanted to learn.
MS. POMERANTZ: Right. You charged much less than that, if anything at all?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: Right. And over time, your hourly rate has increased, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: And in the years since 1975, you've testified in some high-profile trials, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: In some instances your testimony has drawn media attention, right?
ELIZABETH LOFTUS: Sometimes, yes.
MS. POMERANTZ: There's been news articles about you and the testimony that you've given, right?
ELIZABETH LOFTUS: Sometimes, yes.
MS. POMERANTZ: And that's helped raise your public profile, right?
MS. STERNHEIM: I would object, your Honor.
JUDGE NATHAN: Just a moment. The pending question is has this helped raise your public profile. Overruled. You may answer.
ELIZABETH LOFTUS: Overruled. Open my mouth and speak. Okay. I wouldn't put it that way. I think my profile is -- I'm not sure what it means, my public profile. What do you mean by that?
MS. POMERANTZ: Well, your testimony has helped you get hired by other defense attorneys, right?
ELIZABETH LOFTUS: It's certainly possible that somebody has heard of my testimony in one case and thought that maybe they would hire me in their case, yes. I would think that might be true.
MS. POMERANTZ: Your testimony -- you've used your testimony from high-profile cases to market yourself, right?
MS. STERNHEIM: Objection.
JUDGE NATHAN: One-word grounds.
MS. STERNHEIM: Relevance.
JUDGE NATHAN: Overruled.
ELIZABETH LOFTUS: I don't market myself at all.
MS. POMERANTZ: Well, you've used your testimony from high-profile cases to attempt to earn more money, isn't that right?
ELIZABETH LOFTUS: That's false.
MS. POMERANTZ: Okay. So you have provided defense attorneys with the names of cases at which you've testified, right?
ELIZABETH LOFTUS: Well, I have provided the names of cases when -- to show that the testimony has been admitted in those cases.
MS. POMERANTZ: But you've provided the list of the names of cases at which you've testified for defense attorneys, right?
ELIZABETH LOFTUS: When asked to do that, I've done that, yes. Only when asked.
MS. POMERANTZ: You've testified on behalf of many famous and high-profile defendants, right?
ELIZABETH LOFTUS: A few, yes.
MS. POMERANTZ: People who can afford to pay your hourly rate, right?
ELIZABETH LOFTUS: And many who -- who -- in the past who couldn't.
MS. POMERANTZ: You testified for Harvey Weinstein in his criminal trial, right?
MS. STERNHEIM: Objection.
ELIZABETH LOFTUS: I testified --
JUDGE NATHAN: Just a moment. I'll hear from you.
(Continued on next page)
(At sidebar)
JUDGE NATHAN: Is her testimony on her CV?
MS. STERNHEIM: Judge --
JUDGE NATHAN: Is her testimony on her CV?
JUDGE NATHAN: I just wanted to know that.
MS. STERNHEIM: I don't believe it has testimony. It's a CV of her academic pursuits, her awards, her publications.
JUDGE NATHAN: Not the cases she's testified.
JUDGE NATHAN: Okay. Go ahead.
MS. STERNHEIM: Your Honor, I certainly understand the desire on the part of the government to do some character assassination. But the fact of the matter, testifying in a high-profile case is being used in a way that is very insidious here. I don't understand what the purpose is. Are they getting into her testimony in that case?
MS. POMERANTZ: Your Honor, I'm happy to respond. So the witness has financial incentive to testify on behalf of the defense. It's not a question of just getting paid by the defendant in this case. Over her career she has used her testimony as a defense -- as an expert for the defense to testify at trials. In her book she has a chapter, the book that she has right up there, there's a chapter in that book -- multiple chapters dedicated to high-profile cases in which she's testified.
JUDGE NATHAN: Wait. So I allowed it because it goes to motive, an ironic objection, but it goes -- if she has a motive to testify in high-profile cases, that's monetary. I suppose the inference is available as to her motive and credibility, so that's why I allowed it. Why are we going into specific cases in which she testified?
MS. POMERANTZ: Your Honor, it's not an accident. She's testifying here on the heels of her testimony at the Harvey Weinstein trial. I would note that in multiple instances, for instance, when Jane was testifying, the defense insisted on a need to name a particular name of a pageant. It wasn't enough to just say national pageant. Here we are, it's the same issue that's coming up, your Honor, is that the relevance of this detail. It is relevant, your Honor, that this is after she did that. She testified in the Harvey Weinstein trial. There is a New Yorker Magazine article that's published on her in which she participates in the interview and she --
JUDGE NATHAN: You're just trying to associate her with other people who have bad reputations. And frankly, Ms. Pomerantz, to suggest otherwise is to show a lack of respect for the Court. You could, Ask after a trial, did you have a profile done about you? It's obvious what you're trying to do. It's impermissible on 403 grounds, 401/403 grounds. There's lots of ways of asking it without trying to just draw associations in the jurors' minds with other defendants for whom she's testified. So you won't do that. Sustained. You can ask general questions that go to incentive to testify in high-profile, I'll allow it. But don't do what you're doing.
MS. POMERANTZ: Yes, your Honor.
(Continued on next page)
(In open court)
BY MS. POMERANTZ:
MS. POMERANTZ: After your testimony at certain high-profile trials, you've had articles written about you; isn't that right?
ELIZABETH LOFTUS: I've had articles written about me or my work for decades.
MS. POMERANTZ: The question was -- and let me ask it a little differently. After your testimony at certain trials, you've participated in interviews with the press about your testimony as a defense witness; isn't that right?
ELIZABETH LOFTUS: I have. If somebody asks me questions about it, yes.
JUDGE NATHAN: Could you pull up a little closer to the microphone, please. Thank you.
ELIZABETH LOFTUS: Sorry, your Honor.
JUDGE NATHAN: That's okay. Thank you.
MS. POMERANTZ: And in your book, Witness for the Defense, you have -- you devote multiple chapters to different individuals on whose behalf you testified as a defense witness; isn't that right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And each time you've done -- you've testified on behalf of famous high-profile defendants, it's brought you more business, right?
ELIZABETH LOFTUS: I don't know if -- maybe.
MS. POMERANTZ: Your work focuses on research and experiments, right?
ELIZABETH LOFTUS: The scientific work, yes, primarily.
MS. POMERANTZ: You're not a clinician, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: You're not licensed as a psychologist, right?
ELIZABETH LOFTUS: No, we don't get licensed as experimental psychologists.
MS. POMERANTZ: You don't see patients, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: You've never treated a single patient, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: You've never seen a patient or client for therapy, right?
ELIZABETH LOFTUS: No, not for therapy, no.
MS. POMERANTZ: You do not treat victims of traumatic events, right?
ELIZABETH LOFTUS: I don't officially treat anyone.
MS. POMERANTZ: Now, the opinions that you've given today about memory are based in significant part on your research and experiments, right?
ELIZABETH LOFTUS: Not only my work, the work of many other scientists who work in this field.
MS. POMERANTZ: They are based in part on your -- based in significant part on your research and experiments, right?
ELIZABETH LOFTUS: Well, many of the experiments on -- particularly on misinformation are my experiments, yes.
MS. POMERANTZ: You've conducted many experiments over the years, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: I want to talk about some of those experiments now. One of your experiments involves Bugs Bunny, right?
ELIZABETH LOFTUS: A bunny.
MS. POMERANTZ: Bugs Bunny?
ELIZABETH LOFTUS: Bugs Bunny, yes.
MS. POMERANTZ: And in that experiment, you tried to get people to think that they met Bugs Bunny at Disneyland, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: That experiment involved an advertisement for Disneyland that includes a picture of Bugs Bunny, right?
ELIZABETH LOFTUS: That was involved in that study, yes.
MS. POMERANTZ: And that would be impossible because Bugs Bunny is Warner Brothers, right?
ELIZABETH LOFTUS: That's exactly why we did the study, yes.
MS. POMERANTZ: Okay. So that experiment involved the use of fake photographs, right?
ELIZABETH LOFTUS: Fake drawings, yes.
MS. POMERANTZ: And then you ask people in this experiment whether they had met Bugs Bunny at Disney, right?
ELIZABETH LOFTUS: On a childhood trip to Disney, yes.
MS. POMERANTZ: And in that experiment, about 16 percent of people went along with the suggestion, right?
ELIZABETH LOFTUS: Well, I don't -- it's been a while since I've looked at the actual data. I don't remember the exact number, but some percentage claim that they met Bugs Bunny at a Disney resort.
MS. POMERANTZ: We can pull up that study if that would be helpful for you to see the percentage. It's Government Exhibit 1511.
MS. STERNHEIM: Judge, I'm going to object. And I will give my reasons at sidebar, if you like.
JUDGE NATHAN: Let me look at 1511. Can we get the background erased, Ms. Williams. You can come up. Thank you.
(Continued on next page)
(At sidebar)
MR. PAGLIUCA: Your Honor, the objection is that this is far afield from her expert testimony. We're picking one study out of hundreds and then going into it. When I attempted to cross-examine Dr. Rocchio on a study that she relied on, I was precluded from doing that and I think the objection was similar. And the Court sustained the objection saying, you know, we're not going to go into all of the studies that she may or may not have relied on in support of her testimony. This is similar to that. Dr. Loftus is testifying about a broad range of studies; and to single one out is, you know, overly prejudicial, not very helpful to the jury, doesn't go to any of the opinions that she's offered in this case.
JUDGE NATHAN: I'm sorry, can you remind me of the parallel objection.
MR. PAGLIUCA: Yes. There was a study that was given to the prosecution by Dr. Rocchio on hindsight bias and -- basically hindsight bias and what went into hindsight bias.
JUDGE NATHAN: You were trying to introduce affirmative evidence through that study and not using it to impeach her reliance on it; correct?
MR. PAGLIUCA: I disagree. I was trying to impeach her and using some of the words from that study to impeach her on what her opinions were during trial. That was the purpose of doing it. And I think this is analogous to that, if not exactly the same.
MS. POMERANTZ: Your Honor, this witness has testified about her extensive findings on memory that are based on multiple experiments. This is one of the experiments, so they asked her about certain experiments on direct examination. This is one of the studies that she herself conducted, and so I don't see how this is a parallel question. It's presented for the Court. This is part of the experiments that she used and that she conducted that forms the basis of her opinions.
MR. PAGLIUCA: I think part of the analysis -- I'm sorry, I didn't mean to cut you off, if you were finished.
MS. POMERANTZ: It's quite distinct from Dr. Rocchio, who wasn't testifying. That was something, as your Honor pointed out, that the defense is trying to introduce for cross-examination, and it wasn't an article that she had written. It's quite distinct.
JUDGE NATHAN: Overruled.
(Continued on next page)
(In open court)
BY MS. POMERANTZ:
MS. POMERANTZ: I'm going to direct you on Government Exhibit 1511 to page 17.
MS. POMERANTZ: If we can pull that up.
ELIZABETH LOFTUS: How do you pull it up?
MS. POMERANTZ: Is that not on the witness's screen? A. Oh, okay. Yes.
MS. POMERANTZ: Okay. Great. The lines are now removed. Thank you very much.
MS. POMERANTZ: And I want to just direct your attention to the first paragraph under "Discussion." You see it says: For example, 16 percent of people claim that they shook hands with Bugs after receiving the false Bugs ad. Do you see that?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: Okay. We can pull that down.
MS. POMERANTZ: So in this experiment, about 16 percent of people went along with the suggestion that they had met Bugs Bunny at Disney, right?
ELIZABETH LOFTUS: You'll have to put that back up because --
MS. POMERANTZ: We can pull that back up.
JUDGE NATHAN: Is it in her binder as well, the full study, Ms. Pomerantz? Is it in the binder?
MS. POMERANTZ: Yes. Your Honor, I'm happy to move on from this.
JUDGE NATHAN: Okay.
MS. POMERANTZ: The thing that the subjects got wrong was that they saw Bugs Bunny at Disneyland, right?
JUDGE NATHAN: You said you were going to move on. But I just want to direct her. She wants to look at the study to refresh, if you're going to ask her questions about it, if it's in the binder.
MS. POMERANTZ: Your Honor, I meant, sorry, I was going to move on from the percentage.
JUDGE NATHAN: Oh, okay. Let me look at the question. All right. Go ahead. You may ask.
BY MS. POMERANTZ:
MS. POMERANTZ: The thing that the subjects got wrong was that they saw Bugs Bunny at Disneyland, right?
ELIZABETH LOFTUS: The study is 20 years old. But according to what you just showed me, 16 percent claim that they shook his hand. Others claim they touched his tail or touched his ear or heard him say What's up, Doc? And Bugs Bunny would not be at a Disney resort because it's a Warner Brothers character. And that was the whole point of this study.
MS. POMERANTZ: All right. I'm going to turn to a different experiment. You testified on direct about an experiment involving a simulated car accident, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And the misinformation was that the car accident involved a yield sign, not a stop sign, right?
ELIZABETH LOFTUS: It was the critical item, yes.
MS. POMERANTZ: Okay. But to be clear, the research subjects still remembered the simulated accident, right?
ELIZABETH LOFTUS: Presumably, yes.
MS. POMERANTZ: Okay. In that experiment, did any of the experiment subjects face the possibility of getting charged with a crime if they lied to you?
MS. POMERANTZ: Now, in that experiment, you changed one fact, that's the yield sign stop sign, right?
ELIZABETH LOFTUS: Or vice-versa.
MS. POMERANTZ: You've done other experiments where you've changed more than one fact, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: There is, I think, a science museum experiment?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And in that study you tried to change two facts, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: People went to a museum and they watched a short video, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And in that video, a blue car rushed towards a person for eight seconds, right?
ELIZABETH LOFTUS: I don't -- the car was blue, the offending car, yes.
MS. POMERANTZ: Okay. And then folks, after watching the video, they walked through the museum and then they are asked some questions, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: And during that questioning, certain details were distorted, right?
ELIZABETH LOFTUS: I believe that we had deliberately tried to change the color of the car in their memory.
MS. POMERANTZ: The color of the car was changed in the questions from blue to white, right?
ELIZABETH LOFTUS: Something like that, yes.
MS. POMERANTZ: And there was a color of a jacket that was changed in questions from, I believe, blue to black, right?
ELIZABETH LOFTUS: Well, I mostly remember the blue car, so --
MS. POMERANTZ: And in that study, some of the research subjects were fooled by one changed fact about the color of the car, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: But the research subjects were not fooled by the attempt to change the second fact, right?
ELIZABETH LOFTUS: I believe that's what happened in that study, yes.
MS. POMERANTZ: Okay. You've also conducted an experiment about planting a false memory of someone being lost in a mall, right?
ELIZABETH LOFTUS: That's a study that we did in the mid '90s, yes.
MS. POMERANTZ: And that study involved about 24 participants, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And the participants were between the ages of 18 to 53, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And you tried to implant a false memory, right?
ELIZABETH LOFTUS: We tried to suggest to them that they, as a child, have been lost in a shopping mall for an extended period of time and then rescued by an elderly person and reunited with their family.
MS. POMERANTZ: So research subjects were -- they were shown one-paragraph stories describing four events, right?
ELIZABETH LOFTUS: Well, again, that was a 1995 paper; but the fine details of the method, that sounds close, yes, but --
MS. POMERANTZ: So but there were three true stories and one false one, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: Okay. And you told the subjects that you talked to their parents, right?
ELIZABETH LOFTUS: Yeah, or an older sibling.
MS. POMERANTZ: So a parent or older sibling, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And you found out from the parents experiences that had happened to the subjects when they were children, right?
ELIZABETH LOFTUS: Yes, some true experiences.
MS. POMERANTZ: Right. For the three true ones, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: Okay. And then you presented the subjects with the three true memories that their parents had told you about, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And then you presented the subjects with the false memory that the subject was lost in the mall when the subject was five or six years old, right?
ELIZABETH LOFTUS: With more specifics, yes, but that's basically correct.
MS. POMERANTZ: And the subject was told that the false memory of being lost in the mall was something that their family members said had happened, right?
ELIZABETH LOFTUS: That was strongly suggested in the study, yes.
MS. POMERANTZ: And sometime later, you conducted an interview of the 24 participants in that study, right?
ELIZABETH LOFTUS: Yeah, we tested them, I guess, a few times.
MS. POMERANTZ: And 25 percent -- about 25 percent remembered some of the false event, which means 75 percent did not, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: Okay. Isn't it true that studies have shown that in the extreme case where participants are given blatantly contradictory suggestions, they are sometimes not susceptible to suggestion or misinformation at all?
ELIZABETH LOFTUS: We did a study where we tried to give a blatantly false suggestion and people resisted it, yes.
MS. POMERANTZ: You, yourself, you published a paper called Reactions to Blatantly Contradictory Information, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: In other words, if something contradicts the true events so blatantly, the memory is not as susceptible to suggestion, right?
ELIZABETH LOFTUS: In that particular study, yes, that was -- that was a wallet-snatching crime. And we were not able to mislead people about the color of the wallet, which was a very obvious, obvious, strong detail.
MS. POMERANTZ: You're familiar with a study conducted by Kathy Pezdek in which Pezdek presented 20 subjects with one true memory and two false memories, right?
ELIZABETH LOFTUS: Well, I know about that study, yes.
MS. POMERANTZ: And one of the false memories was being lost in the mall, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: And the other false memory was receiving something called a rectal enema, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: And I'm not going to ask you to describe a rectal enema, but it's fair to say that that's an intrusive bodily procedure, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: Three of the 20 subjects remembered having been lost in the mall, right?
ELIZABETH LOFTUS: Something like that in her study, yes.
MS. POMERANTZ: And none of the 20 subjects remembered the rectal enema, right?
ELIZABETH LOFTUS: None of the 20 remembered the scenario that they were presented with involving a rectal enema. But they weren't told they even saw it.
MS. POMERANTZ: Pezdek tried to instill a false memory of subjects of having a rectal enema, but she did not succeed in doing that, right?
ELIZABETH LOFTUS: She did not; correct.
MS. POMERANTZ: You testified on direct examination about post-event contamination, right?
ELIZABETH LOFTUS: Yes.
MS. POMERANTZ: Young children are more susceptible to post-event contamination than adults, right?
ELIZABETH LOFTUS: Typically, very young children, yes.
MS. POMERANTZ: And we're talking about children under the age of six, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: Not all memory is retained equally, right?
ELIZABETH LOFTUS: Right.
MS. POMERANTZ: Not all memory is retrieved equally, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: If there was an event like the birth of your first child, it would be very rare to forget that over time, right?
ELIZABETH LOFTUS: I would think that would be hard to forget.
MS. POMERANTZ: I want to talk about memories of trauma. The core memory of trauma is stronger than other types of memory, right?
ELIZABETH LOFTUS: There are studies that show typically people can remember a core event and some core details, support for that proposition, yes.
MS. POMERANTZ: People tend to remember the core or essence of trauma events, right?
ELIZABETH LOFTUS: They can, yes.
MS. POMERANTZ: People may forget some of the peripheral details of a trauma event, right?
ELIZABETH LOFTUS: That can happen, yes.
MS. POMERANTZ: But the core memories of a trauma event remain stronger, right?
ELIZABETH LOFTUS: I probably agree with that.
MS. POMERANTZ: And people who are involved in the trauma event tend to remember the core or gist of the event better than those who are nonparticipants, right?
ELIZABETH LOFTUS: There are at least one or two studies that show that if you participate, your memory is somewhat better than if you're just observing.
MS. POMERANTZ: And if a person is involved in repetitive traumatic experiences, they are more likely to remember it, right?
ELIZABETH LOFTUS: Generally, the more times something happens to you, the better your memory; or the more times you're exposed to something, the better your memory.
MS. POMERANTZ: That's a fundamental principle of human memory, right?
ELIZABETH LOFTUS: Yes, frequency, yes.
MS. POMERANTZ: Now, we've talked today about some of the experiments you have done. And you talked about experiments you've done that involved videos of car crashes, people being lost in the malls, things like that, right?
ELIZABETH LOFTUS: Among other things, yes.
MS. POMERANTZ: Now, obviously you've never done a study where you arranged for teenage girls to be sexually abused, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: You've never done a study of how well those girls remember that sexual abuse years later, right?
ELIZABETH LOFTUS: Well, I've done studies where we interview people who were sexually abused about what they remember.
MS. POMERANTZ: The question I'm asking you is have you conducted a study where you arranged for girls to be sexually abused?
ELIZABETH LOFTUS: No, absolutely not.
MS. POMERANTZ: You haven't conducted a study where you saw girls being sexually abused, right?
ELIZABETH LOFTUS: Correct.
MS. POMERANTZ: You've never conducted a study in which you attempted to implant a false memory of childhood sexual abuse?
ELIZABETH LOFTUS: We have not.
MS. POMERANTZ: May I have one moment, your Honor?
JUDGE NATHAN: Okay.
(Counsel conferred)
MS. POMERANTZ: Nothing further, your Honor.
JUDGE NATHAN: All right.
MS. STERNHEIM: Briefly.
JUDGE NATHAN: Yes.
REDIRECT EXAMINATION BY MS. STERNHEIM:
MS. STERNHEIM: Professor Loftus, you've been conducting experimental psychology research for over 50 years; correct?
ELIZABETH LOFTUS: Correct.
MS. STERNHEIM: You have received numerous awards for lifetime achievement for the work that you have done?
MS. POMERANTZ: Objection.
JUDGE NATHAN: Sustained.
MS. STERNHEIM: You were asked a number of questions about studies here; correct?
ELIZABETH LOFTUS: Correct.
MS. STERNHEIM: Some that you actually conducted and some that were conducted by others; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: You were asked questions about studies that would involve sexual abuse; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And earlier I had asked you whether there were certain restrictions placed upon the type of experiments that a psychologist is allowed to perform?
MS. POMERANTZ: Objection.
JUDGE NATHAN: Overruled.
ELIZABETH LOFTUS: Yes, you did.
MS. STERNHEIM: And please explain to the jury why that is.
MS. POMERANTZ: Objection. Asked and answered, your Honor.
JUDGE NATHAN: I'll allow it.
ELIZABETH LOFTUS: The human subjects review committees at universities and colleges are in place to try to protect human beings from being involved in experiments that might be harmful to them. And so that is why these committees will review your proposal for a piece of research and either allow you to go forward with your proposal or not allow you to go forward or suggest modifications that would allow you to go forward. But their interest is in making sure -- or trying to ensure that you're not doing something to harm the research -- that might harm the research participants. That's why we would, as I thought I indicated earlier in my testimony, would not be probably, you know, allowed to deliberately plant memories of sexual abuse.
MS. STERNHEIM: On cross-examination, the government had suggested that you are a profiteer when you testify for the defense. Do you remember that?
MS. POMERANTZ: Objection.
ELIZABETH LOFTUS: Yes, I do.
JUDGE NATHAN: I'm going to sustain.
MS. STERNHEIM: They took issue with the fact that you have testified in criminal cases predominantly for the defense?
MS. POMERANTZ: Objection.
JUDGE NATHAN: Grounds.
MS. POMERANTZ: Mischaracterization, your Honor.
JUDGE NATHAN: Overruled.
MS. STERNHEIM: You have worked as a consultant for the federal government, have you not?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: For the Secret Service; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: For the Department of Justice; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: For the FBI; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: For the Internal Revenue Service; correct?
ELIZABETH LOFTUS: Yes.
MS. STERNHEIM: And those entities were aware that you have provided testimony for defendants in criminal matters; correct?
MS. POMERANTZ: Objection.
JUDGE NATHAN: Grounds.
MS. POMERANTZ: Foundation.
JUDGE NATHAN: Sustained.
MS. STERNHEIM: The testimony that you gave here today, would it have been any different if you had been called to the stand by the government?
ELIZABETH LOFTUS: I don't think -- I don't see how it would have been any different. I think in the case where I did testify for the prosecution, it was similar testimony.
MS. STERNHEIM: And if the prosecution had called you, you would have been available to be a witness for them, wouldn't you?
ELIZABETH LOFTUS: I might have been.
MS. STERNHEIM: No further questions. Thank you.
JUDGE NATHAN: Ms. Pomerantz?
MS. POMERANTZ: No, nothing further from the government. Thank you, your Honor.
JUDGE NATHAN: Thank you. All right. Professor Loftus, you may step down. You are excused.
(Witness excused)
JUDGE NATHAN: Defense may call their next witness.
MS. STERNHEIM: I'm just going to move please.
JUDGE NATHAN: Sure. Mr. Everdell?
MR. EVERDELL: Yes, your Honor. The defense calls Michael Aznaran.
JUDGE NATHAN: Okay. He may come forward. MICHAEL WILLIAM AZNARAN, called as a witness by the Defendant, having been duly sworn, testified as follows:
JUDGE NATHAN: You may inquire, Mr. Everdell.
MR. EVERDELL: Yes, your Honor. I believe the government may have an objection to the exhibit we plan to admit through this witness, so we may need to be heard at sidebar before we begin the examination.
JUDGE NATHAN: Can we start and then we can take it at the break?
MR. EVERDELL: There's some questioning before we get to the exhibit, your Honor, so yes.
JUDGE NATHAN: Okay.
MR. EVERDELL: Thank you.
JUDGE NATHAN: Is that okay, Ms. Pomerantz?
MS. POMERANTZ: Yes. Thank you, your Honor.
JUDGE NATHAN: All right. Thank you. You may inquire.
MR. EVERDELL: Thank you, your Honor.