The Manhattan courtroom where Harvey Weinstein is being tried for rape and sexual misconduct took on the aura of a college psychology classroom today as a high-profile cognitive psychologist and defense witness Dr. Elizabeth Loftus testified about false memories and the ways in which misinformation, media coverage and leading questions from police investigators can warp how people recall — and mis-recall — even the most traumatic events.
Loftus is an acknowledged memory expert who has testified — mostly for defense attorneys — in a roster of celebrity trials and litigation including those of O.J. Simpson, the Menendez Brothers, Ted Bundy, Oliver North, Bosnian war criminals, the Oklahoma City bomber and the Duke University lacrosse team. She testified today about the malleability of memory and about how susceptible the human brain is to misremembering events, particularly as time passes. Researchers, she said, have successfully implanted false memories “in the minds of otherwise healthy people” merely by suggestion and “post-event information.”
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In short, the human brain, she suggested, is no video recorder.
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The brains of Weinstein’s rape accusers Miriam Haley and Jessica Mann, the accusers in this New York Supreme Court trial, were pointedly not mentioned today. Judge James Burke had previously issued orders strictly limiting the scope of Loftus’ testimony (the psychologist has not examined any of the accusers).
Weinstein’s lawyers — who began presenting their case Thursday after the prosecution rested — appear to be laying the groundwork for an argument that the rape accusations are based at least in part on memories contaminated by outside information such as investigators’ questions, media coverage and even similar rape accounts against Weinstein from other women.
The closest Loftus’ testimony came to the details of the Weinstein case was when she was asked a question by the defense about the impact of drugs or alcohol on memory. She answered with a specific reference to the memory-altering effects of the sedative Valium.
Under cross-examination by lead prosecutor Joan Illuzzi, Loftus conceded that she’d read media accounts of the Weinstein trial in which one of the participants was said to have used Valium in the past. On Thursday, former film producer and Miramax consultant Paul Feldsher — testifying under subpoena from Weinstein’s attorneys — said that both he and actress, former friend and Weinstein accuser Annabella Sciorra had used Valium back in the early 1990s, prior to the incident around the same time that Sciorra claims she was raped by Weinstein. (Sciorra was one of four women who testified in the trial to bolster the cases of Mann and Haley).
Illuzzi — emphatically and loudly pointing out that Loftus was, in fact, customizing her testimony, at least in part, for the Weinstein case — said the psychologist mentioned “Valium versus Xanax versus heroin versus cocaine; you chose Valium because you were tailoring your response for this case?”
Loftus said she chose to use Valium as an example because she had read a scientific paper on the medication’s effect on memory and because she had, in fact, read a news account that mentioned the drug in relation to the Weinstein case.
New York Supreme Court Judge James Burke occasionally instructed Loftus to limit her answers to, essentially, yes, no or I don’t know. After the jury had been dismissed for the day, Weinstein attorney Arthur Aidala told the judge he “took umbrage” at the judge’s demeanor toward the “75-year-old” psychologist. Prosecutor Illuzzi disagreed with Aidala’s assessment, noting how “stoic” the judge has been even as one witness — accuser Mann — broke down in sobs on the witness stand.
Burke told Aidala his characterization of the judge’s demeanor was “inaccurate.”
Also today, the defense called forensic document examiner Jeffrey Luber to testify about several crossed-out entries in a 2006 diary belonging to Haley, one of two women whose rape and sexual misconduct allegations against Weinstein are the subject of this trial. Luber, in a brief appearance on the witness stand, testified about the crossed-out sentences, at least one of which indicated an appointment or phone call with a Weinstein associate following the summer 2006 alleged rape.
The defense repeatedly has pointed out the continued contact maintained by the accusers with the accused following alleged attacks.
The trial broke for the weekend without the defense calling film and TV writer-director Warren Leight, who is expected to testify about his experience directing Sciorra in the 1993 film The Night We Never Met and address Sciorra’s alcohol and/or drug use prior to her alleged rape by Weinstein. The trial will resume Monday, in what the defense said today would be a full day of witness testimony.
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