Witness: Memories can be inaccurate, still sincere
STAMFORD — An expert testifying on behalf of the defense offered an “alternative theory” Thursday to explain Michelle Troconis’ inconsistent statements to police regarding the death and disappearance of Jennifer Dulos.
Troconis, 49, is charged with conspiracy to commit murder, tampering with evidence and hindering prosecution. She is accused of trying to create an alibi for her former boyfriend, Fotis Dulos, the morning his estranged wife went missing in May 2019 and helping to clean a pickup truck that police believe was used in the crime.
Fotis Dulos died while facing murder and other charges in the case. Jennifer Dulos has never been found, but she has been declared legally dead.
Elizabeth Loftus, a professor at the University of California Irvine School of Law, was the first witness to take the stand Thursday. She specializes in human memory, eyewitness testimony and false memories.
In her research, Loftus particularly focuses on factors that affect the accuracy of memory, and has conducted studies on post-event suggestion. This is when someone is exposed to new information after an event, whether it be through conversations, interviews, news articles or other sources. Through her research, Loftus has discovered that information that comes in after an event — particularly if it’s misleading — can contaminate, distort or transform someone’s memory, she testified.
Loftus also said, as time passes and that memory fades, the memory becomes more susceptible to contamination.
And, once false memories are planted, it’s impossible to tell whether that memory is accurate, she said. Loftus testified that people can become confident, detailed and emotional in these memories without knowing they’re inaccurate.
Loftus emphasized how malleable one’s memory could be while talking to the media during the lunch break Thursday.
“As humans, we make mistakes and one of the common reasons we make mistakes is that people feed us misinformation or they tell us things that aren’t true or they tell us things that are highly suggestive or biased, and that can contaminate somebody’s memory, transform the memory, make them doubt their own memory. And when that happens to people, they are not deliberately lying,” Loftus said.
“I think the prosecution in this case wants the jury to believe that she’s a big, fat liar, and there’s an alternative explanation here,” she added. Loftus noted she couldn’t say definitively whether Troconis was lying, and that’s not her role as an expert witness in this case.
During his cross-examination, Assistant State’s Attorney Sean McGuinness grilled Loftus on her impartiality as an expert witness, as well as past cases she has worked on.
McGuinness brought up a 1991 book by Loftus called, “Witness for the Defense: The Accused, the Eyewitness, and the Expert Who Puts Memory on Trial.”
“Did you say in this book, ‘Should a psychologist in a court of law act as an advocate for the defense or an impartial educator? My answer to that question, if I am completely honest, is both,’ ” McGuiness asked.
“‘If I believe a defendant is innocent, if I believe in his innocence with all my heart and soul then I probably can’t help but become an advocate of sorts,’ ” Loftus continued, as she read the excerpt to refresh her memory Thursday.
McGuinness then asked Loftus whether she agreed with that statement still. “I guess I do agree with that,” she said. Loftus said she has testified as an expert in trials all over the world more than 300 times and has consulted with government agencies such as the CIA, the FBI and the U.S. Secret Service. Upon questioning from McGuinness, Loftus admitted that of her more than 300 appearances, she only appeared in court one time on behalf of prosecutors.
McGuinness pointed out Loftus testified “on behalf” of Ted Bundy, called as a defense witness, in an aggravated kidnapping trial. She also consulted with defense attorneys on the cases of Timothy McVeigh, O.J. Simpson, the Menendez brothers, Jerry Sandusky, Bill Cosby, Harvey Weinstein and Robert Durst and testified on behalf of the defense of Phil Spector.
“Did you believe any of those individuals were victims of bad memory and false identifications?” McGuinness asked.
“Well, there are different facts surrounding different ones of those individuals, but I do have my personal opinions. Some of them didn’t do some of the things they were accused of, even if they did other things that they were accused of,” Loftus said.
During the combative cross-examination, Judge Kevin Randolph warned McGuinness that he understood “zeal,” but would not tolerate disrespect. After further questioning, the judge called for an impromptu recess and said that things “were becoming unhinged.”
After the break, McGuinness continued questioning Loftus, focusing on particulars of Troconis’ case.
“Now, I wanted to ask you: You would agree that there is another possible explanation, other than memory contamination, for inconsistencies in the defendant’s statements, correct?” McGuinness asked. “Correct,” Loftus answered.
“One possible explanation could be that the defendant was simply lying to the police, correct?” McGuinness said.
“That’s possible,” Loftus said. “Well, certainly people who do commit crimes deny that they do.”
In his questioning, McGuinness also confirmed that neither police officers nor news articles suggested details she gave in her first interview on June 2, 2019, specifically her seeing Fotis Dulos with Kent Mawhinney at the Jefferson Crossing home the morning Jennifer Dulos went missing.
McGuinness then brought up details Troconis had shared about that day, such as returning a purse to a friend and buying parsley at the grocery store, facts which were later verified by police. McGuinness confirmed this was evidence that her memory was correct.
“If that were true, any stress she was apparently going through as part of the arrest didn’t impact her ability to recite those details correctly, correct?” McGuinness posed.
“Well, she could be producing some accurate details. Even if you are highly stressed, it doesn’t mean you can’t remember anything,” Loftus said.
In her testimony, Loftus said generally people are more likely to remember a shocking event than a mundane event. She cited one study in which she asked people to remember what they did during a time period three weeks prior. The subjects then were asked to verify what they remembered and, in many cases, their memory changed, Loftus testified.
The study found that people were trying to remember what usually occurs, but the evidence later collected showed that things didn’t happen the usual way, according to Loftus.
Jon Schoenhorn, Troconis’ defense attorney, also called Henry Thomas French Jr., who lived near Fotis Dulos on Jefferson Crossing. He testified that on May 24, 2019, at around 6 p.m., he saw Fotis Dulos jogging.
French said he didn’t recall Fotis Dulos having jogged before. He was, however, struck by Fotis Dulos’ appearance. At the time, Fotis Dulos looked “haggard” and his face “seemed to be in distress.”
“It was very unusual to me,” French said, so much so that he told his wife and daughter about it afterward.
Attorney Michael Rose, who represented Fotis Dulos in his divorce proceedings from early January 2019 to June 2019, also took the stand. Randolph granted a protective order, filed by Rose’s attorney, to limit his testimony. Based on the order, Rose’s testimony could not involve his direct communications on legal advice and strategy with Fotis Dulos, nor could he discuss any documents from the divorce proceedings that have been sealed by the court.
When Rose entered the case, he said Dulos “was not allowed to see his children at all.” That, however, changed at some point in March 2019 and there was structured visitation, he said.
Rose recounted how he and Fotis Dulos had reviewed a custody report at the offices of attorney Michael Meehan in April 2019, and how his client reacted to the report.
“He was very happy with what was there, pleased. He just seemed relieved and more optimistic than I’d seen him in a while,” Rose said.
Rose said he made a filing in the court shortly after reviewing the report, though he didn’t provide any details on the motion.
Troconis appeared to wipe away tears at the end of the last witness’ testimony. Connecticut State Police Sgt. Christoper Allegro, a former detective on the Western District Major Crime Squad, testified about his interview with Fotis Dulos’ former employee Pawel Gumienny in the wake of Jennifer Dulos’ disappearance.
The interview, which Allegro said lasted about eight hours, involved Gumienny and his attorney Lindy Urso.
At one point in the interview, Allegro said Gumienny “appeared to be relieved as he was afforded the opportunity to come in with counsel and actually explain some areas that we had some inconsistencies or concerns about.” After police had asked questions about those concerns, Allegro said Gumienny provided answers that “were reasonable.”
Police never gave Gumienny any assurances he wouldn’t be charged though, Allegro said.
The prosecution tried to prevent Loftus and another expert witness for the defense from testifying, arguing that the defense did not disclose these witnesses in a timely manner and they had not yet revealed “the precise nature of the expert testimony and opinions that will be offered,” according to a motion filed by the state. Prosecutors noted that this would affect their ability to cross-examine the witnesses.
In an irregular ruling from Feb. 15, Randolph ordered that the defense had until midnight that night to submit reports regarding what the two expert witnesses planned to testify. Schoenhorn said he met the deadline, so the expert testimonies will proceed.
The other expert who is expected to testify is Viorica Marian, a professor of communication sciences and disorders from Northwestern University who focuses on multilingualism and the relationship between language and memory.
The state rested its case Wednesday after Gloria Farber, Jennifer Dulos’ mother, took the stand.
Randolph denied a defense motion for judgment of acquittal on Wednesday, meaning he determined there was sufficient evidence for each count to go to the jury to consider before the defense called its first witness.
Randolph said Thursday that the defense anticipates resting its case on Friday.
Randolph, while going over scheduling for the remainder of the trial Wednesday, asked both sides to file proposed jury instructions by the end of the day Friday. After the defense’s last witness, lawyers will go into the charge conference, which will be on the record, and then the contempt hearing for Troconis.
Tuesday morning is slated to be closing arguments, Randolph said.