Abstract: Although many people think that forgetting is a problem in life, and it often is, they would do well to appreciate the benefits of forgetting. Fawcett and Hulbert (2020) have marshaled a powerful argument for the adaptive value of forgetting, highlighting the many ways that forgetting is both a common and essential feature of cognition. Their arguments have implications for memory as it plays out in real life, but here we focus on implications in the legal realm. We make two major points. First, within the legal system, forgetting on the part of criminal defendants can transcend mere embarrassment or inconvenience, and can actually implicate defendants in criminal acts. Second, forgetting in relation to trauma and victimhood can be complicated and controversial, with some victims preferring to retain their painful memories, even at a personal cost.
Defendant Alibis: When Forgetting is a Crime
Fawcett and Hulbert (2020) aptly rebuke the notion of forgetting as nothing more than a cognitive “sin,” but the notion of forgetting as bad or blameworthy thrives in the legal system. The courts frequently rely on the sworn testimony of witnesses, who pledge to relay information accurately—“the truth, the whole truth, and nothing but the truth.” In this domain, accurate memory can be the difference between compensation or liability, freedom or captivity, and even life or death.
One particularly challenging memory-related task within the legal system is providing an alibi. When people are considered potential suspects in a crime, they may be asked to account for their whereabouts at the time of the crime. For innocent suspects, this task may require them to recall mundane details from an earlier time—sometimes days, weeks, or months prior. Inaccuracies that are later discovered have been used against suspects, with suggestions that they were deliberately lying.
It is hard to overstate how challenging the task of providing a flawless alibi can be for the average person. Multiple research studies have examined memory in this setting and found that innocent people struggle to give accurate, consistent alibis. In one study, participants were asked to describe their location and activities during a specific afternoon three weeks prior (Strange, Dysart, & Loftus, 2015). Participants were then asked to come back a week later, repeat their “alibi,” and provide supporting evidence for their account. Nearly half were inconsistent between their first and second account; many were completely unable to provide any supporting evidence at all. Another study of alibi accuracy found that, when given two days to check their own alibi, 36% of participants had to amend their initial accounts, changing factual details or adjusting the supporting evidence (Olson & Charman, 2012). These studies show that on-the-spot recollections about one's whereabouts at a specific time in the past—in other words, providing an accurate alibi—can be riddled with error.
But why is it hard for many people to provide accurate alibis the first time? Fawcett and Hulbert (2020) provide a helpful explanation through their discussion of the “Clarity” virtue of forgetting. The argument goes like this: When an activity is rather ordinary, like biking to work each day, it is not particularly useful to remember in detail. Unless something occurs to prompt memory retention, it may be most efficient for the memory to be effectively erased (Davis & Zhong, 2017, cited within Fawcett & Hulbert, 2020). In the context of alibi recollection, if the activity that a person is called to account for is ordinary, it may be more likely to be forgotten and subsequently misreported. Moreover, the task of alibi reporting is made even more difficult by the nature of the prompt that produces the alibi (e.g., Leins & Charman, 2016). Many memories are not stored in ways specific to a particular date or time, but this is often what investigators are seeking an account of when they request an alibi.
Unfortunately, the tendency for people to incorrectly recount their own past activities, while harmless in ordinary life, can be disastrous for suspects who need to provide alibis.
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Dampening Traumatic Memories
The “Serenity” virtue of forgetting, as described by Fawcett and Hulbert (2020) illustrates how forgetting can help people overcome the burdens of negative memories and enable people to forgive transgressions. Notably, these benefits can occur with or without conscious intent on the part of the person experiencing troubling memories. But what if a person seeking to forget did not need to actively seek distraction, or wait passively for forgetting to occur, but could instead willfully choose to delete a traumatic experience from memory?
This possibility is not (total) science fiction. Medical researchers have been testing drugs such as propranolol which have the potential to dramatically reduce the formation of traumatic, emotionally-charged long-term memories (and PTSD) when consumed close to the time of a stressful event (Brunet et al., 2008, Pitman et al., 2002; see also Kolber, 2006, Kolber, 2008). Such drugs may eventually become a regular part of post-trauma medical care, and their potential applications for reducing memory of trauma are fascinating and controversial.
Advocates of the use of memory-dampening drugs assert that this is a method of reducing human suffering and an option that victims deserve to have available to them. However, critics argue that victims of crime may have a duty to hold on to these memories for the sake of justice; successful prosecution of perpetrators could be made difficult if victims chose to forget criminal acts committed against them (see Kolber, 2008), potentially leaving those perpetrators free to harm others.
Interestingly, the limited research that has been done on perceptions of these memory-dampening drugs suggests that the public is reluctant to consider using them. For example, one study by Newman, Berkowitz, Nelson, Garry, and Loftus (2011) provided Americans and New Zealanders with a series of hypothetical scenarios where a memory-dampening drug could be used. Participants were asked to imagine they were either a restaurant manager or a soldier on a peace-keeping mission and were the victim of a violent assault. Overwhelmingly, a large majority of participants in both countries and across all scenarios indicated they would not want to take the memory-dampening drug. This was true even when participants were warned that they had a 40% chance of developing PTSD, and it was true even for participants who reported past experience with traumatic events. In fact, participants who reported past traumatic experiences were significantly less likely to want the drug then those who did not report prior traumatic experiences.
This study suggests that victims may be unwilling to dampen their own traumatic memories when given the opportunity to do so, even when warned there is a sizable risk of lasting psychological harm (i.e., developing PTSD). When given the choice to forget a trauma, extending and deliberately controlling the “Guardian” role of forgetting through drugs, it appears many people would prefer not to forget.
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