Weinstein Defense Takes Ill-fated Run at Impugning Memory

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Friday, 2/7/2020- In an effort to impugn the memories of terror and  outrageous attack, sworn to by Harvey Weinstein’s victims, his defense trotted out a highly established expert on memory and cognitive perception.  Distinguished UC Irvine Professor and Psychologist Elizabeth Loftus, testified to how memory can become “distorted.”

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Distinguished Professor and Psychologist Elizabeth Loftus

Even before her testimony began, a battle ensued between the defense and prosecution without the presence of the jury. Judge James Burke set ground rules for the testimony he’d allow.  The concept of “gist memory” and specifics of memory related directly to the sexual assault of victims in this case were ruled off limits.

Loftus supplied the typical perceptions of memory fading with time.  The prosecution reminded the jury that Loftus was  not a medical doctor. In fact, when shown a diagram of brain sectors, she declined knowledge of how memory was stored, and the diagram was  removed.

Manhattan Assistant District Attorney Joan Illusi=Osborn

Countless times, she used the word “can,” not “shall,” or “will,” to describe possible impacts of Post Event Information (PEI) . She could not supply data on the likelihood of memory becoming tainted by any specific circumstance except the use of Valium. Her statement drew Assistant District Attorney Joan Illuzzi-Osborn’s intense ire.

While “expert witness” testimony was allowed in order to provide overall knowledge of how memory works, inclusion of “Valium” seemed coached and specific to a victim who had testified.  Loftus acknowledged she was aware of the use of Valium by one of the victims and that she shaped her remark because of that knowledge. She also readily admitted she was being paid $600 per hour for her expert testimony.

When Loftus referred to military testing on soldiers who were being trained to endure the harshness of captivity, and how the researchers conducting the experiment were able to distort their memories, Illuzi-Osborn was able to secure her admission that these subjects knew their lives and their safety were not actually in eminent danger. She pointed to the difference between real trauma and staged events in which the actual danger did not exist.

Ultimately, Loftus had to admit that core memory for trauma could be stronger than for other types of non-traumatic events.

If weighed on the scales of courtroom justice, it seemed that the prosecution made the stronger argument.