A long anticipated video of Dzhokhar Tsarnaev placing a backpack at the marathon finish line was finally revealed in court this week.
You may think you’ve already seen it. Lots of people have. Most notably, appeals court Judge Juan Torruella did just that. In a pretrial hearing, Torruella questioned if the public release of the video might infringe on Tsarnaev’s right to due process.
Before she was selected for the panel a prospective juror told Judge George O’Toole Jr. that “The image of him putting the backpack behind that little boy” was the one thing she couldn’t shake from her mind.
As the The Washington Post first noted, at that point, nether the judge nor the juror had seen that video. Though a video of Tsarnaev walking down Boylston Street had been released, and the indictment stated there was a video showing him placing the backpack down, the video had not been released.
The image that the juror couldn’t shake out of her head was actually a false memory, a product of her own creation.
When the prosecution finally revealed the video in court it was not a nail in the coffin as advertised.
The footage of Tsarnaev walking down Boylston Street is clear. On the witness stand, FBI Agent Anthony Imil clearly described what he believed was happening in the video. And prosecutor William Weinreb made his instructions to the jury clear, too. “Keep your eyes on the individual in the white hat,” he told them as if he where performing a magic trick.
But the video itself is grainy and inconclusive. Tsarnaev is shown at the far end of a large crowd visible only by the top of his head. His head bobs for a second, and he leans right, but he is never seen actually placing the backpack down.
The government then released a still image taken at another angle showing what appeared to be backpack somewhere near his feet.
Chances are that—like the people who never saw this video at all—many of the jurors will remember this incident with much more clarity than it was presented.
The way the government is presenting the information, with credible witnesses explaining what they are seeing before they actually see it, paired with video and still images of the moments surrounding the event, is creating a feeding ground for false recollections.
“You can bias people by priming people and get them to see an ambiguous stimuli in a certain way when without that prime they wouldn’t see it that way,” explains Elizabeth Loftus, a professor at the University of Washington and an expert in false memories.
Her famous study, “Crashing Memories in Legal Cases,” published in 2000 with George Castelle, shows that people who witness a crime or an event are especially likely to change their memory if they are exposed to new information afterwards, or told by an authority figure that they saw something when they didn’t.
Loftus took results from witnesses who saw an El Al Boeing 747 crash into an apartment building in Amsterdam in 1992.
Video crews captured the aftermath of the explosion, but not the crash itself. Still, 10 months, later 55 percent of people who were asked the leading question, “Did you see the television film of the moment the plane hit the apartment building?” replied that they had, 82 percent of whom then began to provide details of the event. In a second study 66 percent of the people answered that they had seen the crash.
Professor Mark Reinitz conducted a similar study where students were shown a video of a woman shopping and a scene of knocked over oranges. Later when students were shown a still image of the woman picking up the oranges, 70 percent of the participants believed they saw the woman picking up oranges in the video.
The phenomenon, Reinitz explains, is called an “effect flood.” The mind naturally jumps to “what would be the most natural cause that would produce that effect.”
Reinitz says this occurrence is especially prevalent when paired with a still image, like how the prosecutors presented the surveillance footage of Tsarnaev.
Reintzs calls the Tsarnaev incident a “classic example” of how false memories are induced.
But the induction of a false memories in a juror and a judge in the Tsarnaev case is not only classic, it’s totally transparent. We know what the judge and the juror had actually been exposed to, and with a great certainty, we now know the basics about what actually happened that day.
Tsarnaev set off the explosives. Even his own attorney says so. Other controversies surrounding false memories are not so cut and dry.
For example, the Department of Justice report on the shooting death of 18-year old Michael Brown cleared Officer Darren Wilson of wrongdoing. The report concluded this in part because of eyewitness accounts that Brown may not have had his hands raised in self-defense at the time of the fatal shooting—a sharp contrast to the most prevalent narrative.
Instead, the report found that many of the memories of Brown raising his hands are not “materially inconsistent with that witness’ own prior statements with no explanation, credible for otherwise, as to why those accounts changed over time.”
The witnesses that said Brown did have “his hands up at shoulder level with his palms facing outward for a brief moment, these same witnesses describe Brown then dropping his hands and ‘charging’ at Wilson.”
But “Witness 101” had another story: This witness has been with Brown when Wilson first approached and remembered that “Brown put his hands up above his head, in the air, and turned around to face Wilson.”
According to Witness 101, Brown then said, “‘I don’t have a gun’ or ‘I’m unarmed.’ Brown started to say it again, but Wilson, while walking toward Brown, fired one volley of at least four shots and Brown fell to his death.”
This witness then spoke to Brown’s family, then the media, and then only after that, investigators from the DOJ.
Loftus says, “If the family said this is what he would have done, this is what we trained him to do, this is what we taught him to do, [or] this is what he would have done,” it may have influenced his memory.
Then again, another rule of false memories may have come into play, not only in Witness 101’s recollection but in the collective memories of those who may have only seen part of the incident—including, potentially, those who gave accounts absolving Wilson.
“One of the basic processes of memory is to try to have a simple coherent story. We fill in missing gaps to make everything make sense,” explains Reinitz.
Sometimes, even those who see traumatic events do not know what they believe they know. It doesn’t mean these witnesses are lying, are intentionally telling tall tales, or are purposefully misleading investigators. Often, witnesses and decent citizens with a desire to help are accessing a memory that has been accidentally rewired to deceive—in a flawed effort to make sense of—themselves.