CaliforniaEyewitness testimony in products liability claims often creates challenges for defendants attempting to question the testimony, especially when the alleged use of the product occurred years or decades ago. Often adult children of injured or deceased parents will testify to having seen their parent work with a particular product when they were small children. It is also not uncommon for plaintiffs to identify various brands of products by reading from a list they claim to have created before their deposition. Although defendants object to such a reading as improper refreshment of recollection, many courts give plaintiffs the benefit of the doubt and allow the jury to consider the testimony. Sometimes, these cases involve the identification of products that plaintiffs did not personally work with, but rather involve products that were used by others in the presences of the plaintiff at some point during their lives.
 
A majority of people believe that human memory works like a video recorder and that it accurately records memories that can be reviewed and replayed. This common misconception is important because it demonstrates how juries may evaluate testimony. One of the ways that defendants attempt to educate the jury and discount eyewitness testimony is through the use of a memory expert.  video_recorderMemory experts testify about how memory works, the process of memory decoding, storage, and retrieval. They discuss mechanisms of memory that effect accuracy and factors known to influence the reliability of memory over intervals.
memory-brain
A memory expert helps the jury determine whether a witness' memory is accurate by providing a scientific analysis of certain factors that influence memory. Some of these factors include memory loss, distortion, suggestibility and bias.

Experts believe that memory is a reconstructive process and the act of retrieval is creative. Memories can change based on the information present at the time of the retrieval and can therefore be influenced. Educating the jury about factors which influence memory helps jurors understand and evaluate the accuracy, or inaccuracy, of testimony.

Things an expert will typically consider are the number of years that have transpired, the manner in which one interacted with the product, and whether the recalled detail was significant at the time the event transpired. Memory experts also look at information gained after the event but before testimony, i.e., post-event information, to determine whether the memory is a specific recollection involving a product or a general recollection or familiarity with a specific product. People generally have a strong bias towards picking brand names of products that are familiar to them, even when those familiar products were not the actual products at issue.

A memory expert cannot determine whether or not a witness' testimony is accurate because they do not know what really transpired. Rather, they assist the jury to make such a determination by providing them information on the procedures used to elicit testimony and the reliability of those methods. Although the expert discusses factors that may affect reliability, the ultimate determination regarding credibility remains the sole province of the jury. 

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