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Dec 3, 2009

An Expert on 'Eyewitness' Testimony Faces a Dilemma in the Demjanjuk Case

 

Review

An Expert on 'Eyewitness' Testimony Faces a Dilemma in the Demjanjuk Case

  • WITNESS FOR THE DEFENSE by Elizabeth Loftus and Katherine Ketcham. New York: St. Martin's Press, 1991. Hardbound. 288 pages. Illustrations. $ 19.95. ISBN: 0-312-05537-4.
Reviewed by John Cobden
Winter 1993

http://www.ihr.org/jhr/v11/v11p238_Cobden.html

Eyewitness testimony is the cornerstone of the Holocaust story. Much more than physical or documentary evidence, the accounts of "Holocaust survivors" have been crucial in convincing people that millions of European Jews were systematically exterminated in gas chambers during the Second World War.

What few realize is that such "eyewitness" testimony is notoriously inaccurate, biased and, in many cases, blatantly and demonstrably wrong. Jewish historian Samuel Gringauz, for example, once pointed out that:

... most of the memoirs and report [of "Holocaust survivors"] are full of preposterous verbosity, graphomanic exaggeration, dramatic effects, overestimated self-inflation, dilettante philosophizing, would-be lyricism, unchecked rumors, bias, partisan attacks and apologies.

The inaccuracy of Holocaust testimony is not unique, of course. Defective memory and false testimony occur in all aspects of life. It is to this fascinating subject that Dr. Elizabeth Loftus has dedicated her career. As she relates inWitness for the Defense, what began as a research project at Stanford University became her life-long calling:

The study of memory has become my specialty, my passion. In the next few years I wrote dozens of papers about how memory works and how it fails, but unlike most researchers studying memory, my work kept reaching out into the real world. To what extent, I wondered, could a person's memory be shaped by suggestion? When people witness a serious automobile accident, how accurate is their recollection of the facts? If a witness is questioned by a police officer, will the manner of questioning alter the representation of the memory? Can memories be supplemented with additional, false information? (p. 7)

This passion led Loftus to a teaching career at the University of Washington and, perhaps more importantly, into hundreds of courtrooms as an expert witness on the fallibility of eyewitness accounts. As she has explained in numerous trials, and as she convincingly argues in this absorbing book, eyewitness accounts can be and often are so distorted that they no longer resemble the truth.

An understanding of human memory, and how it works, is obviously of crucial importance in comprehending the Holocaust issue. In this regard, Loftus' treatment of how human memory works is relevant in two important ways.

First, she explains how memory works and how it fails. After presenting her general views, she shows how they apply in specific criminal cases. While this treatment does not deal directly with the Holocaust issue, she makes general points and draws relevant lessons that are crucially relevant.

Second, Loftus tells of her personal involvement in the well- known case of John Demjanjuk, the Ukrainian-born Cleveland auto worker who was tried in Israel and sentenced to death for allegedly helping to kill hundreds of thousands of Jews during the Second World War in the Treblinka camp. In her analysis of the trial, Loftus presents compelling reasons to doubt Demjanjuk's guilt. And even though, as she explains, she felt a professional obligation to come to the aid of the defendant, she ultimately decided not to do so.

As Loftus shows, innocent persons are regularly convicted of crimes they did not commit on the basis of faulty eyewitness testimony. In these cases, the eyewitnesses do not commit perjury. They do not willfully lie, but rather they tell the truth as they have come to believe it. She explains:

Why, after all, would they lie? Ah, there's the word -- lie. That's the word that gets us off track. You see, eyewitnesses who point their finger at innocent defendants are not liars, for they genuinely believe in the truth of their testimony. The face that they see before them is the face of the attacker. The face of innocence has become the face of guilt. That's the frightening part -- the truly horrifying idea that our memories can be changed, inextricably altered, and that what we think we know, what we believe with all our hearts, is not necessarily the truth. (p. 13)

Loftus provides a striking example of how memories can be distorted. Jean Piaget, the famed child psychologist, tells in his book Plays, Dreams and Imitation in Childhood of his vivid memory of a violent attempt to kidnap him as a child. Piaget's nurse saved the boy by fighting off the attacker. Throughout his childhood and early teen years, Piaget had explicit memories of this traumatic event. But when he was fifteen years old, the nurse confessed in a letter to the family that she had created the entire story out of thin air, and that no such kidnapping attempt had ever taken place. Because Piaget had grown up hearing the kidnapping story told to him so vividly, he came to believe it with such certainty that he actually remembered witnessing it himself.

Memory, Loftus tell us, is not a video camera that records events and then later plays them back exactly as originally recorded. Instead, it is an "evolutionary" or evolving process. Memories are lost and replaced with new memories, Some memories, while retained, change over time and become a pale imitation of the original. As Loftus points out:

As new bits and pieces of information are added into long- term memory, the old memories are removed, replaced, crumpled up, or shoved into corners. Little details are added, confusing or extraneous elements are deleted, and a coherent construction of the facts is gradually created that may bear little resemblance to the original event.

Memories don't just fade, as the old saying would have us believe; they also grow. What fades is the initial perception, the actual experience of the events. But every time we recall an event, we must reconstruct the memory, and with each recollection the memory may be changed -- colored by succeeding events, other people's recollections or suggestions, increased understanding, or a new context.

Truth and reality, when seen through the filter of our memories, are not objective facts but subjective, interpretative realities. We interpret the past, correcting ourselves, adding bits and pieces, deleting uncomplementary or disturbing recollections, sweeping, dusting, tidying things up. Thus our represenation of the past takes on a living, shifting reality; it is not fixed and immutable, not a place way back there that is preserved in stone, but a living thing that changes shape, expands, shrinks, and expands again, an ameobalike creature with powers to make us laugh, and cry, and clench our fists. Enormous powers -- powers even to make us believe in something that never happened. (p. 20)

Loftus describes some of the subtle ways in which human memory can be transformed. For instance, an individual's memory can be distorted by information received after the event in question. New information acquired after the event can be fused with the original memory. A person eventually remembers the "new" information so vividly that he cannot distinguish it from the original recollection. The new information, Loftus tell us, may "not only enhance the existing memory, but actually change their memory, even causing non-existent memory to become incorporated into the previously acquired memory (p. 85)." In one study, Loftus showed a cartoon to a group of children, and then asked them about the bear that appeared in it. Even though no bear had appeared in the cartoon, many children had "memories" of it once they were asked about it.

Adult memories operate in fundamentally the same way. While an adult may not suddenly come to "remember" a non-existent experience that never happened, adults can and do come to "remember" non-events over time, and in a more subtle way.

Loftus gives numerous examples from criminal cases of how eyewitness testimony has changed. In one case, a rape victim distinctly remembers that her attacker had no distinguishing mark on his face. The police then arrest a suspect with a scare on his cheek that would hardly have gone unnoticed. Except for this important difference, the suspect fits the description given by the victim. After the victim is called in for further questioning and is asked about a scar, she continues to maintain quite confidently that her attacker had no scar. A few minutes later, she is shown a photo line-up that includes the suspect. In this way, the police have unintentionally planted the idea in the victim's mind that the rapist may have had a scar. Unless every person in the line-up has a scar, the victim will naturally pay greater attention to the man with the scar. After all, the police would not have asked about the scar if they had not been pretty sure that this man was the rapist.

The victim might still not be sure. A few days later, the police ask her to come in again to view another line-up, which includes the suspect with the scar. This time, as she carefully looks over the line-up, her stomach tightens and she becomes fearful when she sees the scar-faced suspect. He seems so familiar. She begins to doubt her own story, and considers the possibility that the rapist did have a scar after all. Soon she is telling the police that he might be the suspect after all. By the time of the trial, she has completely forgotten her initial disavowal of a scar. On the witness stand, she points with considerable confidence to the suspect as the man who raped her, and now even remembers the scar.

The level of confidence with which a witness tells his or her story is a powerful persuader. The actual factuality of a story is practically irrelevant, Loftus explains.

"Like most people," she points out, "jurors tend to believe [that] there is a strong relationship between how confident a witness is and how accurate he or she is. A witness who says 'Yes, that is absolutely, positively the man I saw' would clearly be more convincing than someone who says 'Well, yeah, I think that's the guy (p. 170)."'

Loftus relates the case of a young woman who positively identified an innocent man as her rapist. It was only after he was convicted, and the real rapist was found, that she suddenly realized that she had helped convict an innocent man. She had firmly believed her own false testimony, and so had the jury.

As Loftus explains, we are so willing to accept unreliable eyewitness accounts because we do not understand how memory actually works. Most people believe the "video camera" scenario instead of the "evolutionary" scenario. Because of this misconception we are very strongly inclined to believe eyewitness accounts. In general, our memory serves us well. In most cases, it is not crucially important that we remember specific details with a high level of accuracy.

Generalized memories, even if distorted, tend not to matter a great deal except, as Loftus points out, in a court of law where someone's life or liberty may be at stake. The danger of eyewitness testimony is clear:

Anyone in the world can be convicted of a crime he or she did not commit, or deprived of an award that is due, based solely on the evidence of a witness who convinces the jury that his memory about what he saw is correct. Why is eyewitness testimony so powerful and convincing? Becasue people in general and jurors in particular believe that our memories stamp the facts of our experiences on a permanent, nonerasable tape, like a computer disk or videotape that is write-protected. For the most part, of course, our memories serve us reasonably well. But how often is precise memory demanded of us? When a friend describes a vacation, we don't ask, "Are you sure your hotel room had two chairs, not three?" ... But precise memory suddenly becomes crucial in the event of a crime or an accident. Small details assume enormous importance. (p. 21)

In Witness for the Defense, Loftus recounts her personal involvement in numerous criminal cases, including the trial of serial killer Ted Bundy. She has testified in cases of murder, rape, and child abuse. In each criminal case dealt with here, she tells the story of her trial testimony. That is, with one notable exception: In the case of John Demjanjuk, she tells why she ultimately refused to testify.

Demjanjuk had been deported from the United States to Israel, where he was on trial for his life. He was accused (and eventually found guilty) of being a "Nazi war criminal" who helped murder hundreds of thousands of Jews in the German wartime camp of Treblinka. In 1987 Loftus received a phone call from Mark O'Conner, Demjanjuk's attorney, asking her to testify for the defense. If anyone could authoritatively explain just how unreliable an "eyewitness" can be, especially after 35 years, it was Dr. Loftus. Nevertheless, she didn't hesitate to reject O'Conner's plea: "I have three other cases right now. I have classes to teach. And I'm Jewish (p. 211)."

O'Conner refused to accept this answer. He flew across the country to meet Loftus in person, and spent two days going over the evidence of the case with her. Loftus recounts the evidence he presented to her, and in doing so makes a persuasive case for Demjanjuk's innocence. The prosecution's only piece of documentary evidence, a photocopy of an identification card supplied by the Soviets, may well have been a forgery, she relates. For one thing, vital bits of information were missing from the document.

She also tells how Israeli authorities found the "eyewitnesses" who were so important in their case. Israeli officials had placed advertisements in newspapers "asking Treblinka and Sobibor survivors to contact them. O'Conner pulled a sheet of paper from a file and read the advertisement to me: 'The Nazi Crime Investigation Division is conducting an investigation against the Ukrainians Ivan Demjanjuk and Fedor Fedorenko (p. 216)."' Already the testimony of potential witnesses was corrupted by this advertisement. By giving the names of the suspects, it naturally encouraged prospective "eyewitnesses" to modify their memories to incorporate this new information.

It wasn't long before "eyewitnesses" began lining up to help convict these two Ukrainians. At first, their memories were faulty, and some were not at all sure of themselves. Abraham Goldfarb, for example, first testified that Demjanjuk looked "familiar." But after further questioning by Israeli authorities, he suddenly "remembered" that Ivan Demjanjuk was the Treblinka guard known as "Ivan the Terrible."

Goldfarb's testimony was the first to place Demjanjuk at Treblinka. But, as Loftus notes:

"Mr. Goldfarb must have been shocked by his tentative identification of Ivan, O'Conner explained, because in a memoir published right after the war he'd written that Ivan ["the Terrible"] was killed in the 1943 uprising. Goldfarb's identification must have shocked the Israeli investigators too, because they had been told by the U.S. government that Ivan was at Sobibor, not Treblinka (p. 217)."

When another "eyewitness," Eugen Turowski, was first questioned, he recognized Fedorenko but not Demjanjuk. However, when Turowski returned the next day for further questioning, and was again shown the photos, he announced that the picture of Demjanjuk was that of "Ivan the Terrible," the Treblinka sadist.

Why, O'Conner asked me, did Turowski recognize Ivan immediately and with full assurance, when the day before he didn't recognize him at all? Isn't it reasonable to assume that because Goldfarb and Turowski knew each other, and because they testified within hours of each other, they talked about this astonishing discovery: Ivan is still alive! (p. 218)

Loftus goes on to relate:

The next positive identifications were obtained in September and October 1976 -- at least four months after Turowski, Goldfarb and Rosenberg testified, and only a month or two after the August reunion of Treblinka survivors held every year in Tel Aviv on the anniversary of the uprising. All the witnesses who identified Demjanjuk lived in Israel and attended that reunion. (p. 219)

In all, just five witnesses identified Demjanjuk as "Ivan the Terrible." At least 23 former Treblinka inmates failed to identify him.

Loftus was confronted with a dilemma. She was one of the world's leading authorities on the crucial aspect of human memory and eyewitness accounts. She knew from her own research and experience that Israeli methods were corrupting the testimony of their witnesses, and that the evidence presented by the Israelis was emphatically not enough to convict Demjanjuk beyond a "reasonable doubt." An innocent man's life was a stake. She had been willing to testify on behalf of accused murderers, rapists and child molesters. Was the case of this Ukrainian immigrant and retired auto worker really any different?

On the outside, assessing the facts, taking notes, asking detailed questions, was Dr. Elizabeth Loftus, professor at the University of Washington and expert witness in hundreds of court cases. She wanted to say, "Yes, of course I'll take the case." The Israeli police interrogation practices were, indeed, questionable, and the prosecution was depending on memories that were thirty-five years old. If these memories were to be believed, and John Demjanjuk was found guilty, he would be sentenced to death. It was a case that cried out for expert testimony. (p. 222)

Recalling her feelings as she grappled with this dilemma, Loftus confesses:

The file should have convinced me. A case that relied on thirty-five-year-old memories should have been enough by itself. Add to those decaying memories the fact that the witnesses knew before they looked at the photographs that the police had a suspect, and they were even given the suspect's first and last name -- Ivan Demjanjuk. Add to that scenario the fact that the Israeli investigators asked the witnesses if they could identify John Demjanjuk, a clearly prejudicial and leading question. Add to that the fact that the witnesses almost certainly talked about their identification afterward, possibly contaminating subsequent identifications. Add to that the repeated showing of John Demjanjuk's photograph so that with each exposure, his face became more and more familiar and the witnesses became more and more confident and convincing.

Then factor into all of the above the intensely emotional nature of this particular case, for the man these people were identifying was more than a tool of the Nazis, more, even, than the dreaded Ivan who ran the diesel engines and tortured and mutilated prisoners. This man, if he was Ivan the Terrible, was personally responsible for murdering their mothers, fathers, brothers, sisters, wives, children.

Dr. Loftus would have stopped with the file. She would have added up all the factors, assessed the problems, calculated the numerous possibilities for error and responded, "Yes, of course, I'll testify about the general workings of memory, and discuss how and why it can fail."

But Beth Fishman [Loftus' maiden name] couldn't stop with the file. (p.224)

In the end, Loftus decided not to testify on behalf of a man she believed was very possibly innocent because she didn't want to offend her relatives, her friends, Jewish survivors and Jews everywhere. In short, as she acknowledges, Loftus put her Jewishness ahead of her regard for truth and justice.

"If I take the case," I explained, having talked this out with myself hundreds of times, "I would turn my back on my Jewish heritage. If I don't take the case, I would turn my back on everything I've worked for in the last fifteen years. To be true to my work, I must judge the case as I have judged every case before it. If there are problems with the eyewitness identifications I must testify. It's the consistent thing to do." p. 232)

Loftus recounts an exchange with one of her closest friends, who is also Jewish:

"Ilene, I need your advice," I said when we were seated at a booth in a back corner of the restaurant. "A lawyer called a few weeks ago and asked me to testify in the John Demjanjuk trial in Israel."

"Demjanjuk," she said, looking at me. Her voice changed, becoming flat, emotionless. "You mean Ivan the Terrible."

"He is accused of being Ivan the Terrible," I said.

"Beth, please. Tell me you said no. Tell me you will not take this case."

"This lawyer came to see me. He flew out from New York and spent two days with me, trying to convince me that this is a case of mistaken indietification. He believes Demjanjuk is innocent."

"He's being paid by the man, is he not?"

"I told him I'd review the file."

"How could you?" I felt the words, so heavy with contempt, settle like a stone in my heart.

"Ilene, please try to understand. This is my work. I have to look beyond the emotions, to the issues here. I can't just automatically assume he's guilty."

"He is guilty. People who were at the death camp, people who watched him, who knew him have pointed their fingers at him and said positively and with no hesitation -- That's Ivan."'

"You've made up your mind that he's guilty before he's even had a trial," I said.

"Are you telling me that you would do that, Beth?"

We argued through lunch, and when we walked into the psychology building for our 1:30 p.m. classes, Ilene wasn't speaking to me. I watched her walk down the hallway, her back straight and stiff, and I knew that in her heart she believed I had betrayed her. Worse than that, much worse, I had betrayed my people, my heritage, my race. I had betrayed them all for thinking that there might be a possibility that John Demjanjuk was innocent.(p. 228-229)

Loftus struggled with her dilemma. Would she betray her sense of honor and integrity out of loyalty to her "heritage" and "race"? She sought advice from a close relative:

"Uncle Joe tried to be reasonable. He cautioned that I must think about Israel, for 'what is good for Israel is paramount (p. 229)."'

Loftus went to Israel to sit in on the Demjanjuk trial and see the defendant for herself. She recalls how, when one eyewitness "pointed out Demjanjuk, many of the five hundred spectators stood up and applauded," as if watching some great play (p. 230). She heard "eyewitness" Gustave Boraks identify Demjanjuk, but then have trouble remembering the name of his own child. Boraks, who had come to Israel from Florida, was asked if he could remember how he had made the journey. He told the stunned audience that he had come "by train (p. 230)."

Instead of feeling sympathy for the hapless defendant, Loftus empathized with the eyewitnesses, who were doing everything in their power to send Demjanjuk to the gallows:

I could picture O'Conner stalking Gustave Boraks' aging memory, pouncing, holding it up like a deflated rubber ball and declaring with a victor's smile, "See this old thing? It's no good anymore!" And I could picture Mr. Boraks sitting there defeated and devastated as he watched his mind being held up to ridicule, as he endured the shame of forgetting the name of his youngest son. (p. 231)

As Loftus sat in the courtroom watching the trial, a friend asked her, "Why aren't you up on the stand?" She paused a moment before replying:

It took me a few seconds to pull my answer together. As I looked around the audience filled with four generations of Jews -- little children, their parents, grandparents, and great-grandparents -- I tried to explain to Margreet that it was as if these were my relatives, and I, too, had lost someone I loved in the Treblinka death camp. With those kinds of feelings inside me, I couldn't suddenly switch roles and become a professional, an expert - I could not have taken the stand and talked about the fallibility of memory without every person in that audience believing that I was indicting the specific memories of the survivors. I would have been perceived as attacking their memories. I couldn't do it. It was as simple and agonizing as that. (p. 237)

In other words, Loftus put her sense of Jewishness above considerations of truth and justice, and above John Demjanjuk's right to a fair trial. In the end, she heeded her uncle's advice and put "Israel" first.

In American trials of murderers and child abusers, Loftus had been quite willing to call into question the memories of the many victims, and to put her sense of professional duty above any concern she might have for their feelings. But she could not bring herself to similarly challenge the dubious memories of Jewish witnesses -- because they were Jewish.

By refusing to testify, and thereby passively helping to sentence a man to death whom she herself believed was very possibly innocent, Loftus is perhaps more culpable than the elderly persons who bore false witness against the defendant. For unlike the aging witnesses who were no longer able to distinguish truth from falsehood, and who had come to believe their own false testimony, Loftus knew better.

Many readers of this book will doubtless sympathize with or even approve of Loftus's decision not to testify in the Demjanjuk trial. But how many of these "understanding" readers would be as tolerant of Ukrainians, Poles or other non-Jews who might make similarly ethnically-motivated decisions?

This is a valuable and eye-opening book, not just for the revealing story of one persons's crisis of conscience, but for what it teaches about the fallibility of supposedly solid "eyewitness" testimony -- a lesson with important social import.

Source: Reprinted from The Journal of Historical Review, vol. 11, no. 2, pp. 238-249.


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