On November 17, 2020, Circuit Judge Stacy McCormack ruled that Darius Devon Mackell was not guilty of murder, robbery, and firearms charges stemming from the death of Dontae Simmons in 2018. Judge McCormack absolved Mackell of those charges in part because she did not find the prosecution’s witness credible. Per The Baltimore Sun, Judge McCormack thought that witness “Esteban Uribe-Rojas could not be taken for his word and there was no evidence to corroborate his account of the shooting.” She said, “It could not have possibly happened the way that Esteban said it happened.”

Witness testimony has always been flawed because people are flawed. Unless a witness is one of the handful people who has been diagnosed with perfect recall, the chances are better-than-good that the witness cannot be 100% credible.

Memories are subject to revision over time

While some memories are etched indelibly in our brains, most change over time. In a study published in the journal Memory, researchers asked a group of college graduates to recall five specific events about their relationships: a first meeting, a first date, a first fight, the most embarrassing event, and their favorite memory. They asked the same couples about the same events three months later, to see how their memories had changed. They found:

The participants demonstrated low consistency in their descriptions, particularly at more detailed levels of analysis. Consistency depended somewhat on the events being recalled, with participants being more consistent for commonly retrieved relationship memories such as first dates….  When considered with research on flashbulb memories, our findings indicate that updating and revisions may be general features of autobiographical memory.

This effect – the updating and revision of memories – is based on the brain’s need to update information to make it relevant. It occurs with traumatic events, too, not just everyday events. Liz Phelps, professor of psychology and neural science at New York University, says that people’s memories of September 11, 2001 are only about 50% correct. This is because the process of consolidation – the process by which a memory is “cemented” – is renewed every time we review those memories, which makes them susceptible to change. It would make sense that someone who claims to have been witness to a crime would have a hard time remembering exactly what happened, given that the memories are overlayed with emotions like fear, anxiety, or other negative responses.

Time heals all wounds – and affects how we remember

If memories change every time we recall them, and our ability to recall correct information diminishes significantly in only three months, what happens over the course of two years? In the case we discuss here, Darius Mackell sat in jail for two years before his trial. It is no wonder, then, that Esteban Uribe-Rojas’s recounting of the events would not match the initial description: scientifically, it would be virtually impossible for him to remember all of the exact details of what happened.

Further, Mr. Uribe-Rojas was likely asked to recall that event multiple times: by friends or family, by the defense attorney, by law enforcement, by the prosecution. If his memories were altered every time, it would affect the details of his claim.

Falsehoods are easier to remember than truths

We will not make assumptions about this specific case, but it is important to note that sometimes, witnesses just lie. They may do so to make themselves look better or more heroic, or because they are scared they will be found partially responsible for the events. Some lie out of fealty to the defendant; some lie because they want to insert themselves in the narrative. False descriptions – “details and descriptions that we invent for something that didn’t happen” – are easier for people to remember than truths because we must work harder to create them. It is one of the few things that television and film get right: when you see the “bad guy” (or the super spy) practicing his story over and over again so his answers to questions never deviate, it is not just rote memorization at play. Creating falsehoods is hard, and as such, we tend to remember the lies in better detail than we do the truth.

Not all witnesses are uncredible because of their memory or a devious plot, of course. Some only see part of the event; some have smudged glasses. Some simply get flustered when talking to lawyers or law enforcement. There are, in the end, a lot of reasons why a judge or jury would not find a witness credible. Firm founder Joseph Carey has been fighting on behalf of defendants for years and knows how to show a judge and jury why the prosecution’s witnesses should not be believed.

At Cary Law Office, we know that an uncredible witness can sink a case. If you or someone you love is facing criminal charges, you need a criminal defense lawyer you can trust. Call 301-464-2500 or fill out the contact form to schedule a consultation. The firm maintains offices in Bowie and Crofton.