Harvey Weinstein’s defense team on Friday called a false-memory expert — who has worked on the Michael Jackson, O.J. Simpson, Menendez brothers, and Ted Bundy cases — in his Manhattan rape and sexual-assault trial to testify that media exposure can weaken memories. About 90 minutes into Professor Elizabeth Loftus’s testimony, however, she said she’s “not an expert in brain regions” when presented with a diagram of the brain.
Loftus testified during questioning by Weinstein attorney Diana Fabi Samson that “it doesn’t take a Ph.D. to know a memory fades over time.”
“As time is passing and the memory is getting weaker and weaker,” she said, “it becomes more vulnerable to post-event information.”
“By exposing a witness to media … these are all ways that post-event information can cause a contamination in memory.”
Weinstein’s lawyers contend that his accusers are now misconstruing consensual sexual encounters as assault and rape — especially in light of the negative media coverage surrounding him. So they were using Loftus’s testimony to try to undermine his accusers’ allegations.
About an hour into Loftus’s testimony, Weinstein took off his jacket. He was wearing suspenders.
After Samson questioned Loftus, prosecutor Joan Illuzzi had her chance.
“Now, um, you indicate that there is a great deal of studies on memory. Is that correct?” Illuzzi asked some minutes into her cross-examination of Loftus.
“Yes,” Loftus answered.
“But not all memory is wired and retained and retrieved equally. Is that right?” Illuzzi asked. “In fact, Doctor, I have a very small diagram. Judge, I am going to ask the doctor to look at it.”
“I will object to this,” Samson said. “This is a biological cross-examination of a witness who is a psychologist. I mean, are we going to do gross anatomy?”
Justice James Burke, who is presiding over the case, said, “Let’s see where it goes.”
A small diagram of the human brain was projected onto a screen in the courtroom.
And so it went.
“Doctor, you see the diagram there? Does that fall within your field of expertise?” Burke asked.
“I would defer to the neuroscientists who study the brain.”
“Doctor, listen to my question: Does that fall within your area of expertise?” Burke pressed.
“Not particularly, no,” she said.
“What do you mean, particularly?” the judge asked.
“Well, I — I am not an expert in brain regions.”
“So let me just ask the same question a third time: Doctor, does that fall within your area of expertise?”
“I know a little bit, but I am not an expert. That’s a more complete answer,” she responded.
“Field of expertise?” the judge asked once more.
“I will say, no.”
Prior to that, Illuzzi had asked Loftus how and when she was contacted to serve as an expert on Weinstein’s case.
“At the time, were you merely asked to consult on the case at first?” Illuzzi asked.
“I don’t remember what I was asked, exactly.”
“Was that due to post-event information, doctor?” Illuzzi quipped, prompting chuckles throughout the courtroom.
Illuzzi also pressed Loftus on whether her prior testimony that Valium can impact memory had been tailored to the case; Weinstein accuser Annabella Sciorra claimed in her testimony that Weinstein provided her with the sedative months before the alleged 1993 rape.
“And of all the prescription medications in all the world, why would you choose Valium as an example that you gave?” Illuzzi asked, her tone incredulous.
“And isn’t it true, in 1991, that the name of your book was Witness for the Defense?” Illuzzi asked at another point.
“I — one of my books is called Witness for the Defense,” she answered.
“Do you have a book called Witness for the Prosecution?,” Illuzzi asked, prompting low laughter in the courtroom gallery.
“No,” Loftus said.
After court ended for the day, another Weinstein lawyer, Arthur Aidala, told Burke: “We do take umbrage to the way the court treated 75-year-old Dr. Loftus, who has the highest award in her field.”
“I was assisting her,” Burke said dryly.
After court, Weinstein was asked, “How’s your memory on consent?”