7 Alb. Govt. L. Rev. 57 (2014)
Maggie McNeill
Ever since the very earliest judicial trials, eyewitness
testimony has been the central and most highly-respected form of
evidence; as the renowned memory expert, Dr. Elizabeth Loftus,
once said, “there is almost nothing more convincing than a live
human being who takes the stand, points a finger at the
defendant, and says ‘That’s the one!’” But as an increasing body
of data shows, this instinct to trust the statements of “live human
beings” over all other forms of evidence is at best misguided, and
at worst completely counter to the discovery of truth. Nowhere is
this more clearly demonstrated than in the statistics of the
Innocence Project, which found that seventy-two percent of the
311 people so far exonerated by DNA evidence were convicted by
eyewitness testimony.
The longer the amount of time between the event to be recalled
and the occasion on which the witness is asked to recall it, the
greater the distortion tends to be: events that fit the schema are
embellished or even fabricated, and those that do not fit are
downplayed and eventually forgotten. But this is only the
simplest mechanism by which memory is distorted, and not the
one of greatest interest for the specific topic of this paper. While
some fraction of the firsthand accounts, related by those who
represent themselves as victims of “sex trafficking,” are almost
certainly true as related (subject to the usual distortion of time),
and another probably larger fraction have been altered by the
process of stereotypical conformation described above, it is likely
that the majority of reported narratives are not factually correct
in any way, however real they may seem to the self-identified
victim. This paper will present three types of evidence to support it: first, that “sex trafficking” is neither as common as the public has been led to believe, nor as consistently and stereotypically exploitative; second, that there is extremely strong evidence for a mechanism for the formation of absolutely false memories, and that the narratives reported by self-identified “trafficking victims” bear a striking resemblance to past examples that experts and the legal system alike now agree are undoubtedly false; and third, that there are strong sociological, political, and economic reasons for certain parties to encourage the development, dissemination, and public acceptance of these narratives.