change blindness and courtroom testimony

A friend referred me to a wonderful case of a lawyer taking advantage of the limits of memory to try to get his client out of a traffic violation. It’s almost hard to believe this actually happened — it’s easier to imagine it happening on a television show as a critical plot twist. After all, such shows use a lot of “creative” license and regularly depart from what happens in actual court cases.

The lawyer, Roger Christianson, was representing his client, Jerry Bordeaux, who had been accused of a traffic violation. Traffic courts often are a madhouse, with large numbers of defendants appearing the same day, and trials proceeding one after the other. In many cases, the police officer who made the arrest takes the stand to identify the accused and to describe the violation. Mr. Christianson apparently realized that cops might sometimes think they can identify the accused even if they don’t actually remember what happened. That is, he was aware of the illusion of memory.

When the judge called Jerry Bordreaux’s name to start the trial, Mr. Christianson approached the bench instead. The judge thought that he was Bordreaux and treated him as if he were the accused rather than the lawyer. When the case started, the sole witness was Officer Coronado, who had ticketed Bordreaux. While Officer Coronado was on the stand, Mr. Christianson asked him:

“And what was I wearing?”
“Had I cut off my beard that day?”
“Was I wearing a beard that day?”
“I am the driver?”

After Officer Coronado identified Mr. Christianson as the person he had ticketed that day, Mr. Christianson revealed that he was actually the lawyer! What a brilliant ploy — if Officer Coronado couldn’t even remember which person he had ticketed, how could he be certain of what Mr. Bordreaux had done. By switching places with his client, Mr. Christianson impeached the reliability of Officer Coronado’s memory.

Unfortunately for Mr. Christianson, lawyers are not permitted to mislead the court. For pulling this stunt, Mr. Christianson eventually lost his license to practice law in California. It’s too bad that his stunt, however inappropriate in an actual case, didn’t have the effect of inspiring a reform to the court system. His approach might have been wrong, but he gave one of the most dramatic demonstrations I’ve seen of how easily people can be convicted based on flawed testimony. Just visit The Innocence Project to read many other cases in which people have been falsely convicted and occasionally given a death sentence on the basis of flawed eyewitness testimony.

Some of my own research with Daniel Levin shows that people often fail to notice when we switched the person they were talking to in the middle of a conversation, and they often have poor memory for the changed person just moments later. If we can’t remember who we were talking to a moment ago, how accurate are we likely to be when we try to remember something that happened days, weeks, months, or even years earlier.

Sources:
The details of the case are drawn from the publicly posted opinion in Mr. Christianson’s disciplinary hearing and from the final decision in his disciplinary case. The information was available at http://members.calbar.ca.gov/search/member_detail.aspx?x=54993.

Levin DT, Simons DJ, Angelone BL, & Chabris CF (2002). Memory for centrally attended changing objects in an incidental real-world change detection paradigm. British journal of psychology (London, England : 1953), 93 (Pt 3), 289-302 PMID: 12230832

Simons, D. J., & Levin, D. T. (1998). Failure to detect changes to people during a real-world interaction Psychonomic Bulletin & Review, 5, 644-649

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