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Copyright (c) 2008 American Criminal Law Review
American Criminal Law Review


Fall, 2008

American Criminal Law Review

45 Am. Crim. L. Rev. 1297


Thomas P. Sullivan *



Regardless of how experienced, honorable, intelligent, dedicated and talented, no one is able to recount what occurred on a prior occasion with the same accuracy, completeness and descriptiveness of an electronic recording. The precise words, inflections, and mannerisms cannot be replicated in handwritten notes, typewritten reports, or testimony, as accurately and completely as in a recording. This is true even when the notes are made during the event, and the reports are prepared soon thereafter. Our experiences illustrate the point: compare an oral description of an exciting sporting event to a televised picture of the scene; or a summary of a speech to a recording; or handwritten notes of a deposition to the reporter's transcript.

Professionals in other disciplines have long since recognized the limitations and fallibility of memory. Here is what Justice Monk of the Supreme Court of California wrote in 1982, concerning the seminal work of Sir Frederic C. Bartlett, professor of psychology at Cambridge University:
"The first notion to get rid of is that memory is primarily or literally reduplicative, or reproductive . . . . In fact, if we consider evidence rather than presupposition, remembering appears to be far more decisively an affair of construction rather than one of mere reproduction." As had often been shown, "condensation, elaboration and invention are common features of ordinary remembering" . . . . "Remembering . . . . is an imaginative reconstruction, or construction, built out of the relation of our attitude towards a ...
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