Memory detection is one of the cutting-edge areas of cognitive neuroscience research. So much so that at Stanford Law School, in conjunction with the Stanford Interdisciplinary Group on Neuroscience and Society (SIGNS) and with support from Stanford Law School, NeuroVentures, and the Stanford Institute for Neuroinnovation and Translational Neuroscience, we’re hosting a conference on Law & Memory on April 1, 2011, bringing together some of the leading scientists, practitioners and scholars in the area.

One of the speakers, Elizabeth Loftus will present her research on the reliability of eyewitness testimony and the problem of false testimony using neuroscience techniques. Bill Smoler, who is one of the leading litigators on false memory cases, will also speak, likely about the recent case he just won against a therapist for “planting” false adolescent memories of abuse, in addition to his other cases in the area.

False memory cases, and other challenges to witness testimony using research from neuroscience are showing up with increasing frequency in legal opinions. Much of the emerging neuroscience research in this area presents a general assault on the reliability of eyewitness testimony. The case today narrows the focus to the reliability of eyewitness testimony when the witness has a prior brain injury.

Brain Injury and Eyewitness Testimony
Valentin v. Mazzuca, 2011 WL 65759 (W.D.N.Y. 2011)
The petitioner, acting pro se, filed a petition for a writ of habeas corpus challenging the constitutionality of his detention in state custody as a result of a conviction on charges of robbery in the first degree. The petition was granted in part, and denied in part. The primary eyewitness in this case was an “innocent bystander” whom the trial court had ruled in related proceedings was so “unreliable due to lack of recall and a brain injury that he had suffered, that he should not be allowed to testify at any subsequent proceedings.” The eyewitness had suffered an eight-year-old brain injury that caused him to suffer blackouts because of stress. When questioned about his brain injury, the eyewitness testified that it was not severe and that although he had not taken his medication on the day of the robbery, he had no seizure and did not black out. On appeal, the petitioner raises a Brady violation that the prior criminal history of the eyewitness should have been disclosed. The appellate court found that because the eyewitness testimony was already on such shaky grounds because of his brain injury, that failure to disclose his prior criminal history to the accused constituted a Brady violation that could have been the straw that broke the camel’s back in his credibility to the jury.