* J. D. Candidate, Stanford Law School, 2000; B. A. Hamilton College (Theater; German), 1995.

1See generally George Fisher, The Jury’s Rise as a Lie Detector, 107 Yale L.J. 575 (1997).

2See 18 USC 1623(a) (1998):

Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.

The statute then goes on to list an affirmative defense: "It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true." Id., 1623(c).

3See FED. R. EVID. 606(b) (preventing usage of juror testimony to impeach a jury’s verdict); Act of Aug. 2,1956, ch. 879, 1, 70 Stat. 935 (18 U.S.C. 1508 (1984 & Supp. 1996)) (criminalizing the recording of jury deliberations in federal court).

4See Elizabeth F. Loftus & J.C. Palmer, Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory, 13 J. of VERBAL LEARNING & VERBAL BEHAVIOR 585 (1974); Elizabeth F. Loftus, D.G. Miller, & H.J. Burns, Semantic Integration of Verbal Information into a Visual Memory, 4 J. of Experimental Psych, 19 (1978).

5See Krist v. Eli Lilly and Co., 897 F.2d 293, 297 (7th Cir. 1990), (listing the findings of various psychological studies):

Accuracy of recollection decreases at a geometric rather than arithmetic rate (so passage of time has a highly distorting effect on recollection); accuracy of recollection is not highly correlated with the recollector's confidence; and memory is highly suggestible – people are easily ‘reminded’ of events that never happened, and having been ‘reminded’ may thereafter hold the false recollection as tenaciously as they would a true one.

See also DAVID FRANK ROSS, J. DON READ & MICHAEL P. TOGLIA, EDS., ADULT EYEWITNESS TESTIMONY (1994); Elizabeth F. Loftus, Eyewitness Testimony: Psychological Research and Legal Thought, 3 Crime and Justice 105 (1981). Cf. Lea Brilmayer & Lewis Kornhauser, Quantitative Methods and Legal Decisions, 46 U. Chi. L. Rev. 116, 135–48 (1978).

6See e.g. James Marshall, Evidence, Psychology, and the Trial: Some Challenges to the Law, 63 Colum. L. Rev. 197, 197 (1963) ("For the law, the basic problem of ascertaining truth does not arise so much from the villainy of perjurers and suborners of perjury as from the unreliability of personal observation.").

7See Barbara Tversky & Elizabeth J. Marsh, Biased Retellings of Events Yield Biased Memories (forthcoming). [Hereinafter Tversky-Marsh study].

8. See Tversky, supra note 7 at 22–28.

9.  Fisher, supra note 1, at 708. See generally Symposium, Is the Jury Competent?, 52 L. & CONTEMP. PROB., Autumn 1989; Symposium: The Selection and Function of the Modern Jury, 40 AM. U. L. REM. 547 (1991).