INTRODUCTION
On July 29, 1984, Jennifer Thomson was brutally raped at knife point. She somehow survived by memorising every detail about the attacker’s face. She confidently testified against Ronald Cotton, which led to his conviction and an eleven-year prison sentence. Years later, a DNA test proved Ronald’s innocence.[1] Bobby Poole was found to be the real culprit, with his DNA matching the blood at the crime scene. He pleaded guilty on July 11, 1995, and received a seventy-year sentence, to be added to his life sentence.[2] The victim’s memory had not lied to her consciously; it lied completely.
For a long time, eyewitness testimony has been seen as a crucial part of evidence in criminal trials. A witness claiming that “I saw him do it” carries immense weight in any courtroom. Yet in much psychological research, scholars have consistently demonstrated that human memory is not a reliable recording device. It is a reconstructive process, vulnerable to manipulation, suggestion, and distortion. The main objective of this blog is to examine the psychological mechanism behind this unreliability and its implications for Indian criminal law.
MECHANISM OF HUMAN MEMORY
Memory is commonly understood as a form of video recording that is fixed, accurate, and retrievable on demand. Contemporary psychological research tells a different story: memory is reconstructive, not reproductive. While recalling an event, a person is not playing back a stored recording; they are actively reconstructing it from fragments, filling gaps with assumptions, and incorporating information received after the fact.[3]
This reconstructive nature of one’s memory makes it inherently mouldable. Various factors like stress, fear, poor lighting, cross-racial identification, and passage of time all play a significant role in compromising eyewitness recall. A witness, while facing acute stress during a crime, is particularly vulnerable to memory distortion, as the brain under stress prioritises survival over accurate observation.[4]
THE MISINFORMATION EFFECT
In the path to understanding the unreliability of eyewitnesses, the most significant landmark research is by Dr Elizabeth Loftus, a cognitive psychologist whose work challenges the legal system’s reliance on eyewitness testimony. In her studies done in the 1970s, she demonstrated that post-event information can alter a witness’s memory of the event.[5]
In one of her most famous experiments, the subjects were shown a video of a car accident and later asked questions like “how fast were the cars going before they smashed into each other?” or “how fast were the cars going when they hit each other?” Because of the use of simple words like “smashed,” the participants were forced to assume significantly higher speeds and even falsify the reports, seeing broken glass which was never present in the footage[6]. The phrasing of a single question had distorted their memory.
The implications of Loftus‘s research can be understood even beyond the laboratory experiments. In another landmark experiment, Loftus and her colleagues demonstrated that entirely new memories can be implanted in a person’s mind by providing false suggestions alone. For this study, the participants were told that once in childhood they got lost in a shopping mall and were rescued by a stranger-an event which never really occurred. It was remarkable to believe that the participants not only believed it, but they started elaborating on it, adding details and emotions to something that only happened in a suggestion.[7] This phenomenon is commonly termed memory implantation. It has profound implications during criminal investigations, where factors like leading questions during police interviews, exposure to media coverage, or conversation with other witnesses can plant false memories in an eyewitness’ mind, which may feel completely genuine to the person experiencing them.
Indian courts have also acknowledged the limitations of eyewitness accounts. In the landmark case of State of Rajasthan v. Darshan Singh, the Supreme Court upheld an acquittal, noting the unreliability of relying solely on eyewitness testimony, particularly in cases involving vulnerable witnesses (deaf or dumb), and pointing to procedural lapses and lack of corroboration[8]. This is consistent with the Court’s broader approach to sole eyewitness testimony: in Vadivelu Thevar v State of Madras, it held that a conviction can rest on a single witness only where that testimony is found to be “wholly reliable,” placing the burden of assessing quality, not counting numbers, on the court[9]. The Law Commission of India in its earlier reports on evidence law acknowledged the inherent risk of errors arising from factors such as prior acquaintance with the accused, poor lighting conditions, or prolonged delay between the incident and identification.[10] Yet this recognition has not translated into practice: there exists no formal psychological screening to assess eyewitness reliability before such testimony is placed before a court, and no binding procedural safeguard currently mandates such screening or corroborative scrutiny before conviction. This gap is significant. A peculiar situation may arise where two witnesses, both equally confident in their testimony, differ- one accurate, the other distorted by the misinformation effect- leaving the court with no structured tool to distinguish between them.
To bridge the gap, it is essential to refine how courts engage with eyewitness testimony. Three essential reforms can be made: sole witness testimony, particularly in the absence of corroborating evidence, should trigger heightened judicial scrutiny rather than automatic reliance, consistent with the quality–over–quantity standard discussed above. Second, courts should benefit from structured guidance on judicial training modules, particularly on dealing with factors like stress, delay, and suggestive questioning during investigation. And finally, investigators must be trained in non-leading interview techniques to minimise the risk of inadvertently introducing the misinformation effect during witness questioning. These reforms do not undermine the value of eyewitness testimony; rather, they align its use with what psychological science has established about its limits.
CONCLUSION
Confidence does not equal accuracy. A victim who genuinely believes they are telling the truth may still be reporting a false memory that has been reconstructed, distorted, and corrupted by post-event information. The misinformation effect is not some rare anomaly – it is a documented and consistent psychological phenomenon, silently present in every courtroom that relies on eyewitness evidence during a criminal trial.
Indian criminal law has taken important steps towards modernising the evidentiary framework through the Bharatiya Sakshya Adhiniyam, 2023 (BSA). One concrete example is Section 125 of the BSA, which allows a witness unable to testify through writing or signs-deemed oral evidence-with the assistance of an interpreter or special educator, and requires the statement to be videographed. This directly addresses the kind of witness at issue in Darshan Singh, where testimony had to be interpreted through a third party without such safeguards, but it stops short of the broader concern this piece raises: even a fully verbal, competent eyewitness can give confident, well-communicated testimony that is nonetheless a corrupted memory. Procedural accommodation for communication is not the same as an assessment of psychological reliability. However, incorporating a structured psychological assessment of eyewitness reliability into judicial proceedings is the necessary next step. A justice system built on memory must also be built on an understanding of how that memory works and what its limits are.
Author(s) Name: Aafreen Kamil
References:
[1] ‘WHAT JENNIFER SAW’ (PBS Frontline) <https://www.pbs.org/wgbh/pages/frontline/shows/dna/interviews/thompson.html> accessed 11 June 2026
[2] ‘The Case of Ronald Cotton’ (Innocence Project) <https://innocenceproject.org/cases/ronald-cotton/> accessed 11 June 2026
[3] ‘Reconstructive Memory’ (Science Direct) <https://www.sciencedirect.com/topics/psychology/reconstructive-memory> accessed 13 June 2026
[4] Md Imran Wahab, ‘Eyewitness Testimony: How Reliable is it?’ (Legal Service India) <https://www.legalserviceindia.com/legal/article-18462-eyewitnwss-testimony-how-reliable-is-it-.html> accessed 13 June 2026
[5] Amelia Sinclair, ‘Deceptiveness of Memory: Exploration of the False Memory Experiment by Elizabeth Loftus’ (Achology, 27 June 2024) <https://achology.com/psychology/exploration-of-the-false-memory-experiment-by-elizabeth-loftus> accessed 14 June 2026
[6] Ibid
[7] Elizabeth F Loftus and Jacqueline E Pickrell, ‘The Formation of False Memories’ (1995) 25(12) Psychiatric Annals 720 <https://journals.healio.com/doi/abs/10.3928/0048-5713-19951201-07> accessed 16 June 2026
[8] State of Rajasthan v Darshan Singh (2012) 5 SCC 789
[9] Vadivelu Thevar v State of Madras AIR 1957 SC 614
[10] Riya Sharma, ‘The Eyewitness Enigma: A Paradox in the Law of Evidence’ (The Criminal Law Blog NLUJ, 07 March 2019) <https://thecriminallawblog.in/2019/03/07/the-eyewitness-enigma-a-paradox-in-the-law-of-evidence/> accessed 18 June 2026