The 30 in 30 Briefing Series focuses on a new cognitive bias, fallacy or heuristic in every single publication. Through this Briefing we want to provide you with a rough overview of the cognitive phenomena most likely to occur in the legal profession. Today’s content: Cue-dependent forgetting, or retrieval failure.
There are two main concepts about how forgetting occurs. The concept we will concentrate on is the cue-dependent forgetting, in other words, the inability to recall something now that could be recalled on an earlier occasion, because the cue that activates the memory trace is not available. This means that forgetting does not occur because of a defect memory trace, as the information is still available but not accessible.
The well-known tip of the tongue phenomenon, where we know that we know something but cannot retrieve it, is a good example to understand this concept.
This concept is important to understand how memories are retrieved: Our brains do not work like Google for example, where you just type in the information which you are looking for and directly get the answer. We cannot just “type in” the information we are looking for in our brain. Some memories cannot be retrieved by simply thinking about them and so we need to have particular cues to get access to the information.
It is, for example, difficult to remember something from your school days, but if you try to retrieve the memory while in the school building, it is a lot easier. Another example is that if you are angry you tend to remember more things which are related to the topic you are angry about, but you will have difficulties to access this information while you are in a good mood. As we can see, there are different types of retrieval cues that can help retrieval.
Understanding this concept we can use it to remember information a lot easier. Students for example should always study in the same room so they can use this context dependant cue to remember information easier. You might be familiar with the concept of a “mind palace” where you can store information easily by using the imagination of rooms and objects. Or if we think we forgot something we should trace back and try to find some cues, which can lead us to the needed information. We can also try to reconstruct the scene in order to trigger cues in memories, for example if we want a witness to remember how a crime happened.
Many jurisdictions are having the concept of location inspection. In most cases it is argued that this enables the judges to have a better overview over a situation, such as fatal car accidents. The legislators and trial parties might not be realizing, that they incidentally foster their witnesses accuracy of memory on how the events actually took place.
The theory of cue-dependent forgetting might likewise be interesting to state’s attorneys and the police inestigating in a very complex construct of crime events, or a crime that was commited at a place cluttered with pedestrians. Eye witnesses might remember the incident livelier when going through the situation again at the crime scene. However, serious implications like retraumatisation might be triggered.
In civil law the enhanced memory coming from a location inspection can be useful in tort law. Imagine a tort process regarding an accident during the undocking of a huge freighter from the shipyard. Tort claims can easily go into billions – you might want to consider an accurate memory of your witness.
To sum up, the use of cue-dependant memory is helpful in many different cases. However, litigators, state’s attorneys and investigation autorities should be very aware of the behavioural impacts of these concepts.
ADAM FRIEDMANN
