FLAWS OF MEMORY

It would be convenient if we did not need documents, if we could depend instead on our memory to tell us what happened. Unfortunately, memory is far from perfect, as we are reminded every time we misplace our keys. We not only forget things that did happen, but we also remember things that never occurred, such as erroneously thinking we put those keys right there on that shelf. Mark Twain once quipped, “When I was younger I could remember anything, whether it happened or not; but my faculties are decaying now, and soon I shall be so [old] I cannot remember any but the things that never happened.”

Twain’s witticism points to another important property of memory: It changes over time. Every good trial lawyer knows that memory is fragile, volatile, and subject to manipulation by our desires, intentions, and fears. Our memory is constantly reshaped to serve the needs of the present. Compounding the unreliability of memory are two stubborn realities: Most of the people who might remember something about what happened are dead, their memories erased forever; and no person, no single memory, ever knew all there is to know about what happened.