Anyone who thinks about the law of evidence knows that there are gaps between cognitive psychology and the rules we try cases by. Excitement may distort or inhibit perception, but we permit and rely upon excited utterances as statements valued for their sincerity and truth. The dangers of limiting instructions are clear—they sometimes exacerbate the impact of the problematic proof, yet we teach Rule 105 as a fix to almost all risky evidence and then proceed under the myth that jurors will follow them to the “t.”

Yet nowhere may the gap between what science teaches and what the law allows be greater than on the subject of memory. We regularly see lawyers refreshing memory as if it really works and generates accurate recall. Science suggests otherwise.

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