by Teri Ames
“The witness is qualified,” the judge said.
“Dr. Lapitas, did you review any materials in connection with case?”
“I did.”
“What did you review?”
“I reviewed recorded interviews of Greta Paraiso, Jenna Davidson, and Heather Perkins.”
“To be clear, which interviews were those?”
“There were at least two interviews of each witness. Officer Shores did the first interviews of Ms. Paraiso and Ms. Davidson by phone in December.” Lapitas went on to describe the timing of the interviews before adding, “Both of Ms. Perkins’ interviews were in person a few days apart.”
“And what did you observe?”
“During the initial phone interviews, neither Ms. Paraiso nor Ms. Davidson described an assault. Subsequently, they did.”
“Can you explain to the jury why this is relevant?”
“Oh, yes. It’s actually fascinating. You see, contrary to popular belief, the human memory is not like computer memory. It’s a very malleable thing.”
“By malleable you mean?”
“Suggestible.”
“You mean a person’s memory can be changed?”
“It’s been proven by several studies.”
“Can you tell us about them?”
Lapitas grinned broadly and nodded. Fred thought he seemed too eager. “One of the first ones was in 1974. Researchers showed film clips of car accidents to test subjects. The subjects were later asked to estimate the speed of the vehicles. Subjects who were asked the speed when the cars smashed into each other gave higher estimates than those who were asked the speed when the cars hit, and both groups gave higher estimates than those asked about the speed when the cars contacted each other. The study raised the issue of question bias.
“It was followed by another study. This time one hundred fifty students watched a one-minute film that featured a car driving through the countryside followed by four seconds of a multiple-car traffic accident. Afterwards the students were questioned about the film. The independent variable was the type of question asked. Fifty of the students were asked ‘how fast were the cars going when they hit each other?’. Another fifty were asked ‘how fast were the cars going when they smashed each other?’ The remaining fifty participants were not asked a question at all because they were the control group.
“One week later the students were brought back. Without seeing the film again they answered ten questions, one of which was a critical one randomly placed in the list: ‘Did you see any broken glass? Yes or no?’ There was no broken glass on the original film.
“The results are surprising. Overall, twenty-nine students or nineteen percent remembered the broken glass. Forty-seven percent of those asked the ‘smashed’ question as compared with approximately sixteen percent for the other groups.”
“So what do these studies prove?”
“That the types of questions asked of a witness can affect how they remember an event to the point of witnesses remembering things that didn’t happen, such as broken glass.”
“Any other notable studies in this field?”
“There are many of them, but I’ll only talk about a few more.” Lapitas described in detail a study in which twenty-four people were told by a relative about several events relating to their childhood, including one that was fictitious. They were later asked to recall as much as possible. Twenty-five percent of the people remembered the false event, either partially or fully.
“So, what do these studies tell us?” Barry asked.
“That people’s memories can be altered to include false events, and that they will remember those events with almost as much confidence and clarity as a true memory.”
“So, in the study you just mentioned, twenty-five percent of the people remembered false events. Are the results on that consistent?”
“Actually, other studies have had higher numbers. Let me tell you about one more. A group of seventy-nine college students were told that they were participating in a study on reaction time during a computer typing exercise. They were told that under no circumstances should they touch the Escape key. In the middle of their tests the screen went blank. A highly distressed experimenter then accused the students of hitting the forbidden Escape key. At first, all the subjects denied touching the key, at which point the experimenter fiddled with the keyboard and announced that all the data had been lost and asked, ‘Did you hit the Escape key?’
“Some of the subjects were also informed by a witness that they had done it; some were not. Overall, sixty-nine percent of the subjects confessed to having done something they did not do. Nearly all who believed there was a witness confessed.”
“So what does the study tell us about memory?” Barry said.
“This study and others have shown us that social pressure and stress can decrease the reliability of someone’s memory. Also, the belief that there is corroboration can affect the implanting of a false memory.”
“So, can you apply what we learned from the studies to the case against Keenan Brody?”
“Of course. It’s extremely telling that, in the first round of interviews, none of the witnesses described an assault on the night that Shannon disappeared. It would have been highly relevant, yet nobody reported it. Then, if you look at the transcripts of Officer Shores’ interviews with the witnesses to the alleged assault, you can see that he planted the idea with his questions. In the second round of interviews, the students were again asked leading questions implying that there had been a physical altercation. In that round, two of the witnesses had vague recollections of Keenan grabbing Shannon. By the third interview, the witnesses were reporting more detail about the alleged assault than they had during either of the previous interviews.”
“Okay, can you break this down for us, starting with the type of questions that would have planted the idea?”
“Yes. In the first round of phone interviews, Officer Shores asked questions like whether the witnesses had seen Shannon and Keenan fighting or arguing or if anything seemed wrong between them. Those questions would have planted the idea of a fight, even though nobody reported seeing one.”
“Then what?”
“Then, in the second round, Officer Shores asked questions like, ‘Did he get physical with her?’ and ‘Did you see them struggle?’ At that point, the same witnesses who had not reported any sort of fight had vague recollections of an incident involving grabbing.”
“But they testified in this courtroom that they remember an incident whereby Keenan grabbed Shannon hard enough to hurt her. How can you explain that?”
“After they reported their recollections of the grabbing incident, Officer Shores typed up statements for them to sign. He made the grabbing incident into a concrete event. The witnesses signed the statements, which would have further served to lock in their memories.”
“But what about the detail they provided when they testified for the jury? Can you explain that?”
“Absolutely. After the witnesses reported their vague recollections, Officer Shores went back to them a third time. This time, he was looking for specific detail. He wanted to know if the grabbing incident was forceful enough to constitute an assault under the law. He again asked leading questions and again got more detailed statements.”
“But there were multiple witnesses. Can more than one witness have had their memory altered to contain the same details?”
Lapitas nodded his head vigorously. “That’s exactly what happens when witnesses talk to each other. Or when they read the same accounts, say, in media, such as Facebook. Their memories assimilate the details they learn from other sources.”
“What about Heather Perkins? She was only interviewed twice.”
“It’s harder to pinpoint where she got her misinformation. She may be highly suggestible. It could have also easily come from listening to other people talk about what they saw or reading Facebook speculation about Shannon’s disappearance.”
; “Can you explain it more?”
“Yes. First of all, Shannon’s disappearance would have been highly stressful for her friends, acquaintances, and even the student population in general. Shannon was missing, presumed dead. The police were interviewing people. Second, there was a lot of pressure on everyone to find out what happened to Shannon. As I said before, social pressure and stress have been shown to have an impact on memory formation.”
“Are these true memories that form under these circumstances?”
“I don’t doubt that the witnesses believe them, if that’s what you mean. They weren’t intentionally lying if they swore to the truth of them under oath.”
“Thank you, doctor. That’s all I have for now.” Barry sat down.
Fred rose for cross-examination. He didn’t have any great ideas for debunking the science. He would have to try an attack on the man.
“You’re a paid expert witness, correct?”
“Yes. I was retained by the defense.”
“In fact, you have a business testifying as an expert witness, don’t you?”
“I do. It’s a part-time business that I do in conjunction with my part-time clinical work.”
“How many hours per week do you devote to your clinical work?”
“Less than ten. About one day per week.”
“And how many days do you devote to your expert witness business? Four?”
“It’s usually less.”
“So, when you testified earlier that you have a part-time clinical practice, you weren’t telling us the whole truth, were you?”
Lapitas rocked side to side, sliding forward in his seat. “I wasn’t trying to mislead anybody.”
“Okay. In the interest of full disclosure, what percentage of your income do you derive from your business as an expert witness?”
“It’s probably ninety percent.”
“Because it’s lucrative to be an expert witness, isn’t it?”
“It can be.”
“How much is the defense paying you for your testimony today?”
“Three hundred dollars per hour.”
“And they also paid your travel expenses, correct?”
“Yes.”
“So, what do you expect the total bill for your participation in this case to be all said and done?”
“About ten thousand dollars, maybe more.”
“For about thirty hours of work?”
“It’s likely more time than that. My billing rate is lower for review and preparation time.”
“But, for that amount of money, you had better support the defense theory, hadn’t you?”
“I’m just here to educate the jury.”
“Okay. Let’s talk about that. How many times have you testified in the past ten years?”
“I don’t know. More than a hundred.”
“Have you ever been retained by the prosecution?”
“No, but I have been retained by plaintiffs in civil suits.”
“But, most of your cases are criminal cases, aren’t they?”
“That’s true.”
“And, again, you always testify for the defense?”
“Yes.”
“Because they pay you to take their side, right?”
“No. Well, yes, but––“
“Thank you, doctor. That’s all I have.”
Barry rose for redirect.
“Dr. Lapitas, if you were asked by the prosecution to testify about memory in a criminal case, would you?”
“Yes, I would. I see my role as educating the court and the jury. Most of the research on memory runs counter to what people generally believe about how the human memory works. And our entire legal system was founded on the premise that the human memory is reliable. It’s not.”
“Why did you decide to become an expert witness?”
Fred knew Barry had recovered ground with his cross-examination. He wasn’t going to let the defense win any more of it back. He stood. “Objection, beyond the scope of cross.”
“Sustained,” the judge said.
“Thank you, doctor,” Barry said.
The court called a recess. Fred hoped the jurors had seen Lapitas for what he was––smoke and mirrors, a paid propagandist, nothing more.
CASSIE WAS glad for the opportunity to speak with Dr. Lapitas when he came into the conference room to introduce himself.
“Thank you for testifying,” she said.
“I hope it was enough to help your son.”
Keenan interrupted. “Doctor, why did you leave your job as a professor and become an expert witness?”
“Because I kept getting more and more requests from defense attorneys to testify. I realized that there was a need to educate the system. I couldn’t maintain a full-time professorship and be gone all the time testifying, so I decided that it was time to turn the research over to the younger, more enthusiastic researchers. I feel good about what I do.”
“Do you ever worry that you’ll help get someone off who’s actually guilty?” Keenan said.
“Never. It’s ultimately up to the jury to decide whether there’s enough evidence to convict. I only offer them a perspective on the eyewitness testimony. Besides, DNA has already proven that we’ve convicted far too many innocent people based on mistaken eyewitness testimony. I hate to think how many innocent people were probably executed. If one guilty person goes free here and there, it’s still better than the alternative.”
“Well, your testimony was an eye-opener for me,” Cassie said. “I have to confess that when I first heard there were witnesses to an assault, I was upset with Keenan. I hoped it was a misunderstanding, that maybe he was unintentionally rough with Shannon. He kept denying that he ever laid a hand on her, and it would have been so out of character. I wanted to believe him, but it was hard. Now, I’m mad at myself for ever doubting him.” She hoped Keenan would forgive her honesty.
“Most people don’t realize that our justice system is outdated. It was created in a time when information spread more slowly. The internet and social media have taken over the way most people acquire information, so misinformation now spreads with lightning speed. We were convicting innocent people before Facebook and Twitter. Now, it’s virtually impossible to tell what’s true, that is, what people actually experienced, from what they believe they remember. Unless they’re off the grid.”
“It’s like an invasive species,” Cassie said. Dr. Lapitas looked puzzled, so she explained. “A single purple loosestrife seed can turn a marsh into a meadow of loosestrife. It spreads aggresively and chokes out competing plants. Before long the habitat changes and the wetland creatures migrate or die-off. What’s left is a sea of purple flowers. It doesn’t matter that it was once a marsh because it never will be again.”
Lapitas’ expression became a half-smile before he nodded. “I like that––misinformation invading the truth. All from a single seed.” Lapitas wished them luck before he excused himself.
The break was only fifteen minutes, so they were soon back in their seats. Cassie felt the best she had felt since the trial had started. Dr Lapitas had been a great witness. She hoped the rest of the defense witnesses would have a cumulative effect and they would get to the end of the defense evidence feeling confident.
Next, Barry called Ken Brayton to the stand, and he was sworn.
“Good afternoon,” Barry said. “Where are you from?”
“Chapel Hill, North Carolina.”
“Where do you go to school?”
“Masterson College.”
“What year are you in?
“I’m a sophomore.”
“Do you know Keenan Brody?”
“Only because of what I read in the papers and on the internet.”
“So, you’re not friends?”
“Nope.”
“Ever even met him?”
“I don’t think so.”
“Did you know Shannon Dawson?”
“Yes, I did.”
“How did y
ou know her?”
“She sat with me and my girlfriend in cell biology freshman year. She was April’s lab partner.”
“Who is April?”
“Sorry. I’m nervous. April was my girlfriend last year.”
“Where were you on the evening of Friday, December 20, 2013?”
“I went to a party on Maple Street.”
“What was the party like?”
“It was a keg party.”
“How many people were there?”
“It’s hard to say. When I was there, there were at least sixty or seventy. But, people were coming and going all night.”
“What time were you there?”
“I got there around ten o’clock and left around eleven o’clock.”
“Did you see Shannon Dawson at that party?”
“I did.”
“How did she appear?”
“She was drunk.”
Fred jumped up. “Objection, Your Honor, there’s no foundation.”
“I’ll lay a foundation,” Barry responded.
“As long as you do, Mr. Densmore.” The judge sounded impatient.
“What makes you say that?” Barry asked the witness.
“I know what drunk people look like. I’ve been around plenty of them. She was acting drunk. Loud, sloppy, having a good time.”
“Did you talk to her?”
“Yeah. I remember she was ranting about how hard the cell biology final was. I remember because I was also worried about my grade, and I realized the next week that I was probably one of the last people to talk to her.”
“Were you drinking that night?”
“No, sir. I don’t drink.”
“Do you ever drink?”
“I can’t. I have diabetes. I was born with it. I’ve always had to be careful about what I eat and drink.”
“On a scale of one to ten, where ten is unconscious, how drunk was Shannon Dawson?”
“She was at least an eight.”
“At approximately what time?”
“At around ten thirty.”
“What about the rest of the party-goers?”
“Objection, calls for speculation. He’s already said there were a lot of people there.”
“Sustained.”
“Did you notice who Shannon was with?”