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Various aspects of legal procedure are based upon a tacit assumption that a "normal" man can tell the truth if he tries. By implication this assumes that the major sources of error will be either a mechanical failure of the brain -to record and reproduce past events, or else a deliberate desire to deceive or a reluctance to tell all. It will be my thesis that these assumptions are invalid: that in spite of every effort to be honest, the perceiving, recording, processing, reliving and reproducing of the events one observes and of the events in which one participates always are selectively colored; that these sources of error are ubiquitous; and that a relatively rare and minor role is played by those errors which are introduced by deliberate deceit, by mechanical limits of the brain as a recording apparatus or by organic brain damage. The disconcerting questions which these facts force upon us are (1) what role in legal testimony should be played by memory and by discrepancies -among the memories of different men, and (2) how are courts of law to proceed, since all testimony depends upon memory? It should not cause dismay to discover that psychiatry can only raise these questions; it cannot answer them. Every doctor is familiar with this predicament. For centuries, before he could offer a cure he has had to diagnose fatal illnesses as "incurable." Yet he knew all along that he would never find a cure if he had not first recognized and acknowledged the existence of the disease. It is not strange then that all social and behavioral sciences such as the law must frequently acknowledge the existence of long-standing psycho-social "diseases" without immediately offering a remedy. This, however, does not justify complacency over existing methods of dealing with a situation on the grounds that they are "the best we've got." It should rather spur us on to find ways which are better.

Implications for Legal Procedure of the Fallibility of Human Memory