Prosecution Undermines Weinstein’s False Memory Witness

Written on Tuesday, February 11th, 2020 by Kimberly DelMonico
Filed under: ExpertWitness, In the News

The prosecutors in Harvey Weinstein’s criminal trial got the defense “false memory” witness to admit she was not an expert in brain regions, potentially undermining the testimony that she offered in Weinstein’s defense.

The Criminal Charges Against Weinstein

In May 2018, Manhattan District Attorney Cyrus Vance Jr. charged Weinstein with “Rape in the First and Third Degrees, as well as Criminal Sexual Act in the First Degree, for forcible sexual acts against two women in 2013 and 2004, respectively.”  In July 2018, the charges were amended to include “one count of criminal sexual act in the first degree and two counts of predatory sexual assault.”

Weinstein pleaded not guilty to all charges.  If convicted, he could face life in prison.

Weinstein is charged with four similar sex crimes in Los Angeles County.  That case is on hold until his New York case is resolved.

The False Memory Witness

Weinstein’s defense team retained Professor Elizabeth Loftus to testify in his defense.  Professor Loftus is a Distinguished Professor of Psychological Science; Criminology, Law and Society; Cognitive Science; and Law at University of California Irvine (UCI).  She has her Ph.D. from Stanford University.

Professor Loftus concentrates her studies on human memory.  According to her UCI faculty profile, Loftus conducts experiments that “reveal how memories can be changed by things that we are told.”

Loftus has worked as an expert witness on numerous high-profile cases, including those of Michael Jackson, the Menendez brothers, and Ted Bundy.

Weinstein’s defense team is arguing that his accusers are misconstruing consensual sexual encounters as assault and rape.  They contend that these accusations are particularly suspect in light of the constant negative media coverage surrounding him.  They retained Loftus to strengthen these arguments.

Under the questioning of Weinstein attorney Diana Fabi Samson, Loftus testified that media exposure can weaken memories.  She said, “it doesn’t take a Ph.D. to know a memory fades over time. … As time is passing and the memory is getting weaker and weaker … it becomes more vulnerable to post-event information.”

Loftus continued, “By exposing a witness to media … post-event information can cause a contamination in memory.”

The Cross-Examination

Prosecutor Joan Illuzzi took the lead on cross-examining Loftus. Illuzzi questioned Loftus as to whether “all memory is wired and retained and retrieved equally?” Illuzzi then brought out a diagram of the brain to question Loftus about it. lluzzi asked Loftus whether the diagram fell within her area of expertise. Loftus replied, “I would defer to the neuroscientists who study the brain.”

Illuzzi pressed further, “Doctor, does that fall within your area of expertise?” Loftus replied, “I know a little bit, but I am not an expert. That’s a more complete answer.”

Justice James Burke, who is presiding over the case, then repeated the question, “Field of expertise?” Loftus replied, “I will say, no.”

Illuzzi also got Professor Loftus to admit that she had previously written a book entitled Witness for the Defense and asked whether her prior testimony that Valuim can impact memory had been tailored to the case.

 

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

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