Mimi Haley remembers repeatedly resisting Harvey Weinstein’s sexual advances in his Manhattan apartment in 2006, when she was a young production assistant.
She remembers Weinstein ignoring her protests and backing her into a bedroom, where children’s drawings decorated the walls.
And she remembers Weinstein pinning her to a bed and forcibly performing oral sex on her.
It has been the job of Weinstein’s legal team to cast doubt upon the veracity of those memories, and the memories of five other accusers, during the movie mogul’s rape trial in New York. In service of this effort, the defense is expected to call to the stand Elizabeth Loftus, a renowned cognitive psychologist who for decades has studied the malleability of human memory.
Prosecutors rested their case Thursday. Loftus is expected to testify as early as Friday.
Loftus has appeared as an expert witness in more than 300 trials and has testified in a number of high-profile sexual misconduct and murder cases, including those of O.J. Simpson, Ted Bundy and the officers accused in the Rodney King beating. Drawing on her own research, she has routinely testified that memories can be distorted and contaminated — and, in some cases, altogether false.
The psychologist’s involvement in the Weinstein case underscores the ways in which memory itself is tested in the court of law, especially in the absence of forensic evidence or independent witnesses. Jurors will need to sift through what Weinstein’s accusers say they remember, what they may not remember, and how those memories conflict with Weinstein’s assertion that each of these encounters was consensual.
Loftus contends that her testimonies educate juries about the ways in which memory can be unreliable. She believes her voice is needed to balance the scales of justice.
“The world is full of people who support accusers,” Loftus said in a recent interview with the Los Angeles Times. “I think people who are accused deserve some modicum of support as well.”
Her critics, however, say that although Loftus’ efforts to prevent wrongful convictions based on inaccurate eyewitness accounts are commendable, her testimony in cases of alleged sexual misconduct tends to be one-sided and incomplete and has the potential to mislead jurors.
Loftus, 75, has been a psychology professor at UC Irvine since 2002 and is one of the most influential researchers in her field. (She was on the faculty at the University of Washington from 1973 to 2001.) She began studying memory in the 1970s; her early work showed that exposure to inaccurate information and leading questions could corrupt eyewitness testimony.
Those studies led to a critical understanding in the world of law: Even if eyewitnesses to a crime are certain of what or who they saw, their memories of an event are not necessarily reliable, especially when white people are identifying people of color in a lineup. Mistaken identifications are the leading factor in wrongful convictions.
Loftus’ later research was more controversial. In the 1990s, she became intrigued by an upsurge in allegations of sexual abuse, and the increasingly popular idea that memories could be repressed and then recovered.
She wanted to find out whether therapy and hypnosis could plant false memories of events that had never taken place. Perhaps her most well-known study, “Lost in the Shopping Mall,” showed that, through a series of interviews, children could be induced to remember that they had once gotten lost in a shopping mall and were rescued by a stranger, even though that never happened.
Loftus’ research has been used to discredit abuse survivors’ testimony in court, and it also has led to stricter requirements for the use of recovered memories in trials. Therapists and academics who believe memory repression is a natural survival technique continue to contest her stance on the phenomenon.
Loftus told an L.A. Times reporter in 2005 that her confrontations with believers in repressed memory grew so heated that she sought firearms training in the face of threats on her life. At the time, a bullet-riddled paper target hung in her UC Irvine office.
Loftus has testified or consulted about the fallibility of memory in trials involving Michael Jackson and Bill Cosby, and the allegations of sex abuse and satanic rituals at the McMartin Preschool in Manhattan Beach (these convictions were overturned in 1990 after it was judged — with the help of Loftus — that therapists had unintentionally implanted false memories in the minds of nine preschoolers).
With the exception of a few cases, Loftus told The Los Angeles Times, she has always worked for defense teams. She says she may be paid up to $500 an hour for her legal work.
In Weinstein’s trial, Loftus will be limited to testifying on the “general functions of memory,” according to court filings, and will not be allowed to speak on issues of memory tied to sexual interactions. Weinstein’s team also has enlisted as a potential expert witness Deborah Davis, a psychologist and memory expert at the University of Nevada, Reno.
The prosecution already has called its own psychiatric expert, Barbara Ziv, to testify about why victims would continue communicating with their perpetrator or delay reporting the assault.
Davis and Loftus wrote a paper together in 2006 on recovered memories and another in 2015 on disputed sexual encounters.
“Just because a ‘memory’ report is detailed, just because a person expresses it with confidence and emotion, does not mean that the event actually happened,” they wrote in 2006.
Loftus has made this point in past trials. She also has said that memories of those who have experienced a traumatic incident are more likely to be contaminated by the suggestions of other witnesses, police investigators and the media.
If Loftus is called to the stand in Weinstein’s trial, her testimony will follow those of Haley, a former employee of Weinstein’s production company, and Jessica Mann, an aspiring actress who alleges the producer raped her in 2013. Those women’s allegations prompted the charges for which he now stands trial.
As part of the prosecution’s effort to establish a pattern of predatory behavior, four other women have testified that Weinstein sexually assaulted them. One of them, Lauren Young, is at the center of a criminal case against him in Los Angeles.
Weinstein, 67, faces five counts of sexual assault and life in prison if convicted.
When asked if she must believe in the innocence of a defendant to testify on their behalf, Loftus answered the question indirectly.
“I believe that science belongs to all of us. So my decisions on whether to work on a case are sometimes based on scheduling, or whether it seems interesting, or whether it’s a death-penalty case where the outcome could be very severe,” she said. “Most of the time, I don’t know if they did it or not.”
In her 1992 book “Witness for the Defense,” Loftus writes that she is not defending the clients whose cases she takes on. She is “detached and disassociated” on the stand, she says, “simply presenting the research on memory.”
She writes: “In order to convict, the jury must believe that the defendant is guilty beyond a reasonable doubt. If my testimony causes members of the jury to doubt the defendant’s guilt, then according to the most basic, indispensable principles of our justice system, the defendant should be acquitted.”
Nita Farahany, a legal scholar at Duke University, noted that “even people who have been accused of many different acts of sexual assault are entitled to put up a vigorous defense.”
“Testimony like hers can only help us find the truth,” she said, “which is ultimately what we should be trying to find.”
But critics say Loftus’ pattern of testifying for alleged offenders, and not their accusers, shows an inherent bias.
Prosecution teams rarely hire memory experts, according to Wendy Murphy, a professor of sexual violence law at New England Law in Boston and a former sex-crimes prosecutor. That’s because the prosecution is usually the side calling witnesses, so defense teams are more likely to utilize a memory expert who could undermine the credibility of those witnesses, she said. And prosecutors tend to have tighter budgets than wealthy defendants.
“If this tactic is being disproportionately applied to discredit women and children reporting abuse, it’s just a convenient prop that looks like a legitimate legal device,” Murphy said.
Some psychologists who study memory and trauma disagree with how Loftus frames her award-winning research in court.
All memories are fragmentary and incomplete, and they tend to fade over time. A trauma victim may incorrectly recall certain details of the event, such as the color of an attacker’s eyes, or how he or she got home that night.
But people almost always remember the general outline, or the “gist” of what happened, said Jennifer Freyd, a researcher at the University of Oregon who studies the psychology of sexual violence.
“You’re going to forget a lot of things about a person,” Freyd said. “But you’re not going to forget how they made you feel.”
Gail S. Goodman, a professor of psychology at UC Davis, has observed that Loftus often makes “broad statements about memory” when testifying in sex-crime cases, and focuses on how memory fails, without sufficient emphasis on how it can be reliable. In her own research, Goodman has found that, for most people, the more distressing an event is, the more accurate the memory of it will be in the future.
“She could broaden her scope to gain more balance,” Goodman said, “but she chooses not to do so.”
A review of research finds that 2% to 10% of sexual-assault accusations are false, according to the National Sexual Violence Resource Center. Many such studies are unreliable, though, because of inconsistencies in methods used to evaluate data.
For Loftus, Goodman said, it’s as if those statistics were flipped. “Whenever I have heard her speak, she always strongly suggests that reports are easily false,” she said. “It’s as if the message is ‘everything is false,’ but we know reality doesn’t work that way.”
Loftus’ eloquence and charisma lend to her persuasiveness on the stand, as does the accessibility of her research, legal experts say. And most jurors will lack the training or experience needed to dissect generalizations she may make.
But prosecutors could point out in their cross-examination of Loftus that her research could just as well apply to the unreliability of Harvey Weinstein’s memory, experts say.
And if the prosecution establishes that the accused has engaged in a pattern of predatory behavior — which is expected to happen in Weinstein’s trial — it “cuts against how valuable this kind of memory research is,” Farahany said.
“When you have a very convicted witness with very specific testimony,” she said, “juries tend to believe a witness more than they believe the science.”
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