Weinstein defense expert testifies memory weakens over time, susceptible to 'distortion'

Patrick Ryan and Maria Puente, USA TODAY 2 days ago

NEW YORK — Harvey Weinstein's defense team was in full swing on Friday as his sex-crimes trial resumed with an expert witness on human memory, memory "distortion" and "false memories."

The defense called Elizabeth Loftus, a psychologist and professor at the University of California at Irvine whose specialty is research on the fallibility of human memory. She said she's been involved in hundreds of trials and has consulted for the Secret Service, FBI, IRS and others on memory matters.

More recently, Loftus was an expert consultant on the defense team for Bill Cosby, who was convicted of sex crimes in 2018 after two trials in Pennsylvania.

Loftus testified that human memory weakens over time - even as little as five years - and becomes more susceptible to "rich false memories" that feel as strong as "true" memories.

Loftus said one of the areas of her research focuses on how memories change over time with the addition of new and misleading "misinformation." When people are exposed to an event and then later they're exposed to new and potentially biased information about that event, that can become part of a new memory, she said.

© Richard Drew, AP Psychologist Elizabeth Loftus arrives to testify for the defense in the Harvey Weinstein sex-crimes trial, Feb. 7, 2020 in New York.

"Five years is quite a long time, where it’d be significant memory decay," Loftus said. What about 27 years, she was asked. "That's an extraordinarily long time, where there could be a substantial fading of memory....This would apply to virtually all of us. "

One of Weinstein's accusers, "Sopranos" actress Annabella Sciorra, says Weinstein raped her in the winter of 1993-94. Other accusers say he assaulted them as recently as 2013.

Under questioning from defense lawyer Diana Fabi Sampson, Loftus said human memory does not work "like a video recorder" that just plays back an event.

She said the acquisition of a memory can be affected by such factors as alcohol or other substances, lighting, how near or far something is, media coverage or leading questions. She drew what she called a “forgetting curve.”

"As time is passing and memory is getting weaker and weaker, it becomes more vulnerable to post-event information," she said.

"If someone has been exposed to enormous media coverage of an event that’s in their memory, does that increase the possibility of (memory distortion)?" asked Sampson.

"Repeated post-event information can have an even stronger effect," Loftus said, as can repeated efforts to recollect something at the behest of investigators. "Some people are motivated to try and remember more and that has led to filling in the gaps with details that start to feel like memories," Loftus said.

That could lead to the creation of "rich false memories," which can be hard to distinguish from "true" memories.

"False memories, once created, they can be experienced with a great deal of emotion, confidence and a lot of detail, even if they’re false," Loftus said. "And, of course, true memories have those same characteristics."

If someone characterizes an event one way at one time, and then later in a different way, is it possible their memory has been distorted, she was asked.

"When you see a change in someone’s memory, they might simply be forgetting," Loftus said. "...One thing we look for is if there’s some post-event information that might be responsible for that change." Manhattan Assistant District Attorney Joan Illuzzi questioned her on whether she is a doctor who treats trauma victims.

"Is it true that you’re not a memory doctor? And is it true that you don’t treat victims of traumatic events?," she asked.

"I don’t treat them, I may study them, but I don’t treat anyone," Loftus replied.

Friday's proceeding started out with Judge James Burke ruling that Weinstein would be allowed to present expert testimony on human memory but barred testimony on such topics as "distortion" in sexual consent communication.

"The court will permit expert testimony on the following subjects," Burke said. "Memory, memory distortion, whether memories can be enhanced over time, etc.

"On the other hand, the defendant has failed to cite any authority or cases where an expert has been permitted to testify in a sexual assault case.… Therefore, the court will not allow testimony on the following subjects: sexual consent communication, causes of distortion in sexual interactions, responses to sexual assault (such as failure to report, false reporting, etc.)."

That set off a back-and-forth between Burke and Sampson over what types of sexual assault-related memory questions she could ask Loftus.

© Richard Drew, AP Harvey Weinstein arrives at court in his rape trial, in New York, Feb. 7, 2020.

On Thursday, first up for the defense was Paul Feldsher, a longtime friend of Weinstein's and of accuser Annabella Sciorra of "Sopranos" fame, who says Weinstein raped her in New York apartment in the winter of 1993-94.

In the early 1990s, Feldsher testified, he had a conversation with Sciorra during a walk and she told him she had done "a crazy thing with Harvey."

Feldsher said, "My understanding was that she fooled around with him.” Defense attorney Donna Rotunno asked if she ever said anything about being forced to do anything.

"No," Feldsher said.

On Friday morning, when reporters in the court hallway asked Weinstein if Feldsher was "still a friend," Weinstein replied, "He did a great job."

Earlier that day, the prosecution rested its case against the 67-year-old who is charged with five sex crimes, including rape and assault. He has pleaded not guilty and denies all allegations of nonconsensual sex. Judge James Burke said Thursday Weinstein's defense team "has a number of witnesses to call and we will hear them over the next three to four days. Maybe more, maybe less."

The prosecution concluded after bringing forth a final accuser, Lauren Young, who told the courtroom Weinstein groped her after trapping her in a Los Angeles hotel room bathroom in 2013 and masturbating in front of her. Young faced cross-examination on Thursday and was grilled about what the defense viewed as discrepancies between her testimony on the stand and what she told prosecutors during interviews over the last two years.

Weinstein has not been charged with assaulting Young because the alleged encounter did not occur in New York. She is one of three accusers known as Molineux witnesses who were called by prosecutors to help establish that Weinstein had a pattern of alleged prior bad acts.

If you or someone you know experienced sexual assault and is seeking resources, call the National Sexual Assault Hotline at 1-800-656-HOPE (4673).

See photos from Harvey Weinstein's New York sex-crimes trial:

Slide 1 of 20: Actress/model Lauren Young departs after testifying as an accuser in the sex-crimes trial of Harvey Weinstein, Feb. 5, 2020, in New York. She will continue her testimony on Feb. 6.