Elizabeth Loftus is an expert on false memories, and known for testifying in the trials of Ted Bundy, Robert Durst, and Harvey Weinstein. On Thursday she took the stand in the defense of Ghislaine Maxwell, the British socialite, accused of helping her ex-boyfriend and former employer Jeffrey Epstein procure underage girls to abuse.
Loftus is something of a go-to witness for defense attorneys looking to discredit witnesses in sexual abuse cases, according to attorney Lisa Bloom, who has represented several Epstein accusers (and also advised Weinstein, who now is serving a 23-year prison sentence for a rape and sexual assault.)
“Child sexual abuse victims, in her view, never have a clear memory, never have a good memory, should never be believed,” said Bloom, who encountered Loftus on the opposing side of child abuse cases she worked in the 1990s.
Loftus’s turn on the witness stand follows two weeks anchored by the testimony of four women who say they were abused by Maxwell and Epstein. The witnesses recalled meeting the pair in their teens and three of the four testified to being asked to massage Epstein, encounters that turned sexual. Some recounted Maxwell coaching them on how to rub Epstein’s feet and body. One witness, who went by the pseudonym Jane, said Maxwell coached her to twist his nipples. The defense is, of course, seeking to discredit these accusers.
One of Maxwell’s lawyers, Bobbi Sternheim, spent 30 minutes on questions highlighting Loftus’ many qualifications, touching on her hundreds of publications, 47-page CV, dozens of awards, and several honorary doctorates along with her PhD in psychology. She’s testified hundreds of times for the defense in trials, but only once for the prosecution, whom Loftus said is “frequently the one putting on memory testimony,” which they want to bolster rather than question.
Our brains don’t work like video recordings, Loftus explained. The process of creating memories is more complex than that. She spoke about her research, which shows memories can be manipulated, corrupted, impaired, altered, or even constructed whole-cloth by suggested misinformation. In laboratories, she’s demonstrated that people who watched a simulation of a car accident can be convinced a stop sign was a yield sign if that idea is suggested to them after the fact.
She described three stages of memory as acquisition, retention, and recall, and explained that during the retention period, people are susceptible to what she called “post-event suggestion,” which might corrupt a person’s memory. This possibility increases as more time passes. “As [the memory has] faded and weakened, it becomes more vulnerable to contamination,” Loftus said. Suggestions can come from someone asking questions with an agenda, or from media interviews, she said. Leading questions are more likely to mess with memories than open-ended questions, she added.
She said memories of traumatic events – like seeing your parents involved in a violent fight or having a near-death drowning experience and needing to be rescued by a lifeguard – that never happened have also been implanted in laboratory settings. She also pointed to certain kinds of psychotherapy that focus on unearthing supposedly repressed memories as having aided in the construction of false memories, like people believing they’d witnessed satanic rituals or had been forced to sacrifice animals as children – the kind of ideas that spurred the Satanic Panic of the 1980s and nineties.
Sternheim asked Loftus about the power of labeling, and Loftus said that if a researcher describes an object as looking like eyeglasses the viewer will be more likely to remember it as eyeglasses, but if they say it was actually dumbbells, they’ll be just as likely to remember the image that way. Sternheim asked if the same can be true for events – like if something happens and then someone labels it in a “colorful fashion.” Loftus agreed this was possible. When Loftus began drawing something called the “forgetting curve” with memory on the y axis and time on the x, a prosecutor objected, and the judge sustained it.
Loftus reiterated that since we don’t actually record memories, we can’t just play them back but rather we construct the memory, possibly drawing on things that happened at different times to form “what feels like a memory.” She added that vividness of detail and confidence in the memory were no indication it was accurate. By the end, you have to wonder if anything we think we know is real. Clearly, that’s what the defense wants the jury to wonder about the accusers’ testimony.
But not every detail has to be perfect for the basic nature of the accusations to remain solid. “Memory is malleable; it’s not a snapshot,” Bloom says. “It’s not perfect. But it doesn’t have to be. It only has to be that the essence of what the accusers are saying is true. They may get a date wrong. They may get a detail wrong. But if the essence is true and can be believed, then the prosecution can get a conviction.”
During cross-examination, the prosecution zeroed in on Loftus’ $600 hourly rate of pay for her testimony in Maxwell’s case. Assistant U.S. Attorney Lara Pomerantz said Loftus had made a career out of testifying for the defense. She pointed to Loftus’ book called Witness for the Defense. “You haven’t written a book called Impartial Witness, have you?” Pomerantz said. “I don’t have a book by that title, no,” Loftus responded.
Pomerantz also suggested Loftus has used her testimony in high-profile cases like Weinstein’s to get paid to testify at more trials. Loftus said she has provided lists of defendants she’s testified for, but only when asked by a defense team.
In more technical questioning, Pomerantz pointed out that significant minority of test subjects in experiments conducted by Loftus and other researchers in the field had been susceptible to having their memories manipulated. Young children were most susceptible, and no matter what, people tended to accurately remember the essence of an event they experienced, especially if it happened to them. “Studies show if you participate, you’re more likely to remember than if you’re observing,” Loftus said.