I. Introduction

“Why the fuck does no one talk about the fact that depression and anxiety can give you major memory loss??”[1] This innocuous but provocative tweet went viral in May 2019[2] and shoved a conversation that had been happening in the background more into the foreground of how society sees the impact of depression and anxiety on memory.[3]

The incidence of depression is on the rise.[4] A study by Columbia University’s Mailman School of Public Health and CUNY Graduate School of Public Health and Health Policy shows that “depression increased significantly among persons in the U.S. from 2005 to 2015, from 6.6 percent to 7.3 percent,” including a rapid rise in adolescents aged 12 to 17, where incidence of depression increased from 8.7% in 2005 to 12.7% in 2015.[5] Some studies indicate that almost 20% of people could experience depression at some point in their lives.[6] And there is a problem with people’s memory when they have depression.

This Comment will discuss the impact of depressive episodes on memory loss and how that fact of memory loss should be allowed to impeach a witness’s qualifications for accuracy. Part II gives an overview of the scientific framework concerning memory to arrive at a working theory of memory on which this Comment will base its analysis. Part III discusses how evidence impeachment law currently handles other memory-loss conditions for the purpose of impeaching a witness’s accuracy. This includes a discussion of how these memory-loss characteristics fit into our framework of legal memory, as well as a discussion on how the practical understanding of these conditions determines how lawyers may impeach using them. Part IV discusses the scientific background of depression, the newly discovered impacts of depression on memory, and how these impacts coalesce with the theory. This Part includes a discussion of how depression impacts memory and specifically which processes are impaired. Part V will discuss the practical and philosophical mechanics of depressive episode memory loss and how it aligns with the other memory-loss characteristics within our framework. Part VI concludes with how the federal system of evidence should treat such memory loss. The conclusion contrasts the legal study of evidence with the sociological impacts that this rule may have.

II. A Philosophical Framework for Understanding Memory

It is important first to note that no system of memory fully encompasses all of the intricacies of memory we know through scientific research. The framework herein proposed will not perfectly encompass memory. We can nonetheless use a framework not as a correct working model of human memory but rather as a vocabulary tool to better quantify and categorize memory impairments.

In 1968, Stanford professor Richard C. Atkinson and his student Richard M. Shiffrin published their influential paper Human Memory: A Proposed System and Its Control Processes.[7] This paper proposed a new framework of memory analogous to a computer’s memory.[8] First, memory is divided into three structural components and three corresponding control processes.[9] A control process is the phenomenon that controls the operations of a structural component.[10] These processes are tied to their corresponding component.[11] The structural components are the different types of memory, and each component represents an integral part of the memory system.[12]

The human memory, according to Atkinson and Shiffrin, was divided into a sensory register, a short-term store, and a long-term store.[13] The sensory register handles the immediate stimulus within the appropriate sensory dimensions.[14] Memory here consists of visual and auditory stimuli and more.[15] The short-term store is the individual’s working memory.[16] Information stored here will eventually “decay and disappear,” but before it does so, the individual has increased access to that information while working.[17] The long-term store is the permanent repository for an individual’s memories.[18] It is important to delineate these memory structures because each memory impairment may impact a different section of memory.

Although there are many processes that affect an individual’s memory structure, this discussion focuses on four broad categories of processes that are emblematic of how a person deals with their memories: perception, encoding, storage, and retrieval. A person’s memory of an event “can be divided into the stages of encoding, storage (i.e., consolidation), and retrieval.”[19] Encoding is the process by which a person interprets stimuli and puts those stimuli into short-term memory.[20] Thus, our senses (at least our visual, tactile, and auditory senses) are a significant part of encoding. As an individual sees the world around her, she can convert the external stimuli into active, working memory.[21]

Even before encoding, there is the foundational ability of a person to create new experiential data—a process we call “perception.”[22] Blindness, deafness, and numbness would be the most obvious forms of perception dysfunction—the complete inability to receive (or the inability to process) these stimuli will lead to a lack of information with which to later encode.[23] Moreover, people who are sick or on drugs may experience altered perceptions and may have trouble distinguishing their reality accurately.[24]

Further, there can be many dysfunctions when it comes to encoding. Encoding is believed to occur in the prefrontal cortex and the hippocampus.[25] When individuals suffer physical damage to the hippocampus, they become unable to create new memories.[26] Moreover, individuals may be unable to encode new memories due to temporary impairment of the hippocampus.[27] This occurs most often when a person becomes drunk.[28]

Storage, also called consolidation, is the process by which a person converts short-term memories into long-term memories.[29] There are inherent issues with storage—not all information will be transferred from short-term memory to long-term memory equally.[30] Exactly how memory is stored and exactly what features each memory has are still disputed, but we do know that memories are encoded and stored with certain “traces” that assist recall.[31] This transition from short-term memory to long-term memory is an incredibly uncommon method of memory loss.[32]

Finally, retrieval is the process of accessing stored memories.[33] Traditionally, this process involves searching for a proper trace, which, when proverbially tugged on, will bring up the memory from long-term storage for recall.[34] There are other system processes that impact long-term memory, such as forgetting, which involves some combination of the decay of or interference with short-term memory and long-term memory registers.[35] And there are also factors that can significantly impact an individual’s ability to recall information. Common factors include the recency and primacy effects, context-dependency, and even food consumption or physical activity.[36]

To simplify, this Comment will now retreat from further discussion of registers, memory structures, and the like to focus on the three primary processes which inhibit memory—perception, encoding, and retrieval.[37] We can restate these processes in practical terms. If a witness did not perceive valid data (e.g., because she was taking psychedelic drugs), then she has no valid data to later encode or retrieve and her memory is invalid. Or if a witness perceived valid data but failed to properly encode a valid memory (e.g., because she became drunk), her memory has become impaired. Or finally, if a witness properly encoded and stored the memory, but failed to retrieve that memory (e.g., because her memory was improperly influenced during police photo identification),[38] her memories have been tampered with and are also inaccurate.

III. Impeachment of Memory Loss So Far

Although there is a plethora of memory impairments that impacts all three stages of common memory loss—perception, encoding, and retrieval—this Comment will focus itself on four common impairments: perception-altering drug use, drunkenness, amnesia, and finally, eyewitness impairment (such as identification techniques employed by police).[39] It will examine each using our understanding of memory built up in Part II, to determine which phase of memory is impaired and then contrast that with how courts have allowed lawyers to impeach based on that information. Each of the discussions about these ailments will be limited to their effect on a lay witness’s memory—that is, the impact the ailment will have on the perception, encoding, and retrieval of a witness’s autobiographical,[40] episodic[41] memory. Each of these discussions will also be limited to ailments that were occurring at the time of the events that occurred, as opposed to ailments that were occurring at the time the witness is testifying. Restated, the witness was experiencing the ailment when the events concerning the trial transpired.

A. Perception-Altering Drug Use

Evidence that an individual took perception-altering drugs is “always competent to show impairment of the sensory, retentive and communicative mechanisms as reflecting on the credibility of the witness’ [sic] testimony.”[42] Psychoactive drugs alter human perception and behavior.[43] Drugs impact an individual’s perception, behavior, mood, energy level, focus, or memory-recall in varied ways; however, this discussion is going to be limited to drugs that alter an individual’s perception. So long as the drugs impact a witness’s “capacity for accurate perception, recollection and communication,” they are admissible in court for impeachment.[44]

Psychoactive drugs that impact perception include hallucinogenic drugs (like LSD) and depressants (like cannabis).[45] LSD (short for D-lysergic acid diethylamide) can cause auditory and visual hallucinations.[46] Cannabis, on the other hand, in addition to causing temporary hallucinations when taken in high doses, can further cause time distortions and altered senses at lower doses.[47] These hallucinations and perception-altering effects may seem real while they are happening.[48] As a result, a witness who was on perception-altering drugs at the time of the events will not prove to be a reliable witness because she may have trouble distinguishing fact from fiction.

The Court of Appeals for the First Circuit looked at the issue of admissibility of questions into a witness’s drug use during the time of the events testified to.[49] In Campbell v. United States, an important nonparty witness may have been smoking marijuana at the time of the events.[50] The appellate court affirmed that a lawyer is allowed to impeach that witness’s credibility based on the fact that they were smoking cannabis at the time of the events.[51] The court of appeals did, however, hold that the district court correctly prohibited a lawyer from asking about the drug use using the prejudicial term “reefers.”[52] Or take the Fifth Circuit case, United States v. Samples, wherein a district attorney sought to impeach the defendant’s ex-wife’s testimony because of her drug use.[53] The court upheld the magistrate judge’s exclusion of the impeachment based on prior drug arrests because there was no evidence the ex-wife was on drugs during any relevant time.[54] The court held that unlimited impeachment of drug use was inappropriate because it was irrelevant.[55] The Eighth Circuit ruled similarly in Smalley v. United States.[56] In that case, the court decided that impeachment of a witness’s drug use was generally admissible so long as the witness was under the influence of drugs at the time of the relevant events.[57] However, in Smalley, the Eighth Circuit noted that the district court correctly refused to allow in extrinsic evidence about the specific drug the witness took because there was insufficient foundational evidence about how much of the drug he took.[58]

Thus, when drug use impacts a witness’s ability to perceive, the court system has decided that evidence of the witness’s drug use is admissible for impeachment. It should be noted that lay persons are often allowed to testify to another witness’s drug use only if an expert has given testimony as to the memory effects of that drug use.[59] And given a witness’s admitted drug use, some courts allow expert witnesses to testify to the memory-impacting effects of the drug.[60]

B. Drunkenness

Legally, drunkenness occurs when a person’s capacity for rational thought and action are impaired due to imbibing an “intoxicating liquor.”[61] A witness’s drunkenness may be at issue in a civil or criminal case for many reasons. These reasons include, but are not limited to, evidence of the witness’s competency to perceive and tell the facts,[62] evidence of the witness’s participation in the alleged misdeeds,[63] or evidence of an element of a crime,[64] tort,[65] or contract breach.[66] There is no bright line test for the admissibility of a witness’s state of drunkenness at the time of the events testified to between civil and criminal courts.[67] And there may be complications concerning the standards of proof if the witness is a party to the action and their drunkenness impacts the mental element(s) of the crime.[68] However, when restricting the reason to allow evidence of a witness’s drunkenness to only the resulting limitation on their ability to perceive and store their memories, a pattern begins to emerge.

When impeaching a witness’s evidentiary capacity in civil cases, courts traditionally allow the fact of a witness’s drunkenness to proceed to the trier of fact unless it would be prejudicial.[69] Because drunkenness is a commonly occurring and understood phenomenon, courts believe giving evidence of the witness’s inebriation to the jury will have the fairest result.[70] Although the potential risks of drunken intoxication are common, the actual scientific understanding of drunkenness’s impact on memory is, surprisingly, not.

Traditionally, drunkenness is believed to impact the encoding and retrieval functions of a witness’s memory.[71] At the encoding stage, alcoholic intoxication leads to a narrowing of cues the witness is able to take in, as well as an inability to relate the perceptions to other cues or abstract ideas.[72] When a witness is drunk during retrieval, the witness presents less sensitivity in their recollections, less access to long term memory, and less “hits” of memory recall.[73]

Drunkenness’s impact on the accuracy of witnesses is not fully understood by the scientific and legal communities.[74] Despite popular belief that a drunk witness may be of no good to a jury (because of their lack of perception or encoding), in fact, according to a number of research investigations, inebriation has had “little-to-no” impact on eyewitness’s ability to identify.[75] There is, however, significant research that indicates witnesses who were drunk at the time of the events testified to recalling fewer and less vivid details; though strangely, this lack of memory fidelity has minimal impact on any given witness’s overall accuracy while intoxicated.[76] Ultimately, the most noticeable impact is that drunk individuals, because of a reduced cognitive capacity while inebriated, tend to focus on their primary task to the exclusion of all others.[77] Meaning their subsequent recollections tend to lack extraneous detail and instead focus solely on the immediate event happening to the witness. Thus, drunkenness inhibits witnesses from properly encoding information.

Unfortunately, the phenomenon of drunk witnesses is not uncommon.[78] For better or for worse, alcoholic consumption and consumption to excess is commonplace in this society.[79] And this prevalence infects the courtroom too; although a latitudinal survey of trials across the nation has not been conducted, there is evidence that a significant number of cases have at least one witness who was intoxicated at the time of the events testified to.[80]

The prevalence of alcoholic intoxication in society has resulted in a low bar for proving a witness was intoxicated at the time of the events testified to. Lay witnesses are often allowed to present evidence of another witness’s drunkenness.[81] Witnesses are even allowed to testify to hallmark indications of drunkenness.[82] Witnesses may be cross-examined on their state of intoxication by opposing counsel.[83] Judges are even permitted, in their discretion, to include jury instructions to inform the jury of their options or duties when considering intoxication with respect to the crime or tort at bar.[84]

Ultimately, because the impact of drunkenness on a witness’s testimony may be minimal and because alcohol intoxication is a commonly experienced and (seemingly) commonly understood phenomenon, the court system has taken a laissez-faire approach to allowing evidence of a witness’s intoxication, allowing many types of evidence to proceed to the jury with the understanding that the jury will be able to determine for themselves the amount the witness is inebriated and the resulting impact on that witness’s testimony.[85]

C. Amnesia

There are basically two types of amnesia: retrograde amnesia and anterograde amnesia.[86] The “soap opera” amnesia is retrograde amnesia and it reflects an inability to retrieve past properly perceived and encoded memories.[87] Courts infrequently permit testimony concerning this type of amnesia.[88] Likewise, evidence concerning anterograde amnesia,[89] a failure to properly encode memory, store memory, or both, rarely goes to court.[90] Judges often believe that amnesia claims of any kind are fabricated.[91] The result is that amnesia is both rare and skepticized. Thus, although amnesia is commonplace in the fictitious worlds of our entertainment, amnesia has extremely limited practical application.

D. Eyewitness Impairment

Because many factors go into an eyewitness’s ability to retrieve their memories, police and others should be careful when retrieving these memories. Witnesses are affected by stress level, by cross-racial biases, and by method of line-ups when making identifications.[92]

Every witness has inherent inaccuracies in their testimony–identification exacerbates this. For instance, witnesses far more accurately identify persons in their own race than persons of a different race.[93] Witnesses, likewise, are prone to focus too much on the stressful details and therefore provide inaccurate testimony.[94] When this focus is directed at the presence of a weapon, witnesses’ accuracy drops precipitously.[95]

Additionally, there are false indicators of correctness that do not correspond to reality, the chief among them being confidence. Confidence of the witness is one of the factors juries lean on with the most weight when considering the witness’s identification.[96] The Supreme Court even lists confidence as a factor for testing the veracity of a witness’s pretrial identification.[97] However, there is also considerable scientific evidence that confidence has little-to-no bearing on improved accuracy in identification.[98]

Police must discount confidence, weapons focus, and cross-racial bias. To do so well, the police must carefully deliver information to the eyewitness when the witness makes an identification. Showing photo catalogs to eyewitnesses has been shown to have a negligible impact on their identifying abilities.[99] However, showing eyewitnesses one lineup and telling them that the suspect may or may not be in the lineup causes significant error.[100]

The question then becomes should we allow eyewitness experts to opine on the biases experienced by eyewitnesses, and here, courts are divided.[101] Some scholarship demands the inclusion of eyewitness expert testimony under Federal Rule of Evidence 702.[102] Many courts have followed this scholarship,[103] while a minority of courts have not.[104] Thus, although courts are split, there is momentum towards admittance of expert testimony concerning the fallibility of eyewitness testimony.

IV. Depression and Its Impact on Memory

This Part will give a background on depression before proceeding to a discussion on the memory-impairing effects of having a depressive episode. Depression, as discussed further in this Comment and as used in the common parlance, is an abbreviation for major depressive disorder, which is defined as “a mood disorder having a clinical course involving one or more episodes of serious psychological depression that last two or more weeks each.”[105] This psychological condition encompasses symptoms such as loss of interest or pleasure in activities, disturbances of appetite and sleep, difficulty in thinking, loss of self-esteem and guilt, and suicidal thoughts or attempts.[106] One of the primary deficiencies experienced by persons with depression is loss of memory.[107] And because a growing number of people experience depression, there is a corresponding concern for these persons’ ability to accurately recall and relay the facts of their past experiences.

There are many demarcations in the world of memory, including working memory, prospective memory, and—importantly for this Comment—retrospective memory.[108] Working memory is a “capacity-limited system that consists of an executive control component interacting with one or more storage systems to transiently maintain and store information in the service of other forms of cognition.”[109] It is, as discussed above, the active memory system used to assist short-term processes.[110] Some studies show that working memory is not affected by depression.[111]

Prospective memory is the “ability to carry out previously formed intentions in the future.”[112] Although this kind of memory is impacted by major depressive disorder,[113] its relevance is not significant to a witness’s accuracy because it deals with an individual’s desire to carry out future tasks, not relate past experiences.

It is retrospective memory that provides a witness’s value.[114] Retrospective memory, or autobiographical memory as it is sometimes called, can be delineated into episodic memory and semantic memory.[115] Episodic memory constitutes the proverbial factual record of one’s life.[116] Specifically, it is a witness’s episodic memory that constitutes a witness’s personal knowledge of her life’s events which, in turn, forms the foundation of that witness’s capacity for providing relevant and accurate testimony.[117] Instead, we rely on a witness’s autobiographical, episodic memory to provide the finder of fact with testimony of what she perceived.[118] In United States v. Sandles, the Sixth Circuit noted that it is not whether the witness possesses knowledge of the testimony, but the fact the witness perceived certain relevant events and later recalled those events before a jury that constitutes personal knowledge.[119] Moving forward, this Comment will use the term “autobiographical memory” for this type of legally relevant memory.

Autobiographical memory is impacted by a person’s depression.[120] Autobiographical memories may vary in specificity.[121] Memories may be specific—referring to unique events, triggered by sensory traces.[122] Or they may be general—referring to patterns or more abstract and conceptual memories.[123] Depressed individuals, because of their affliction, are more likely to retrieve general memories.[124]

Depression further causes “overgeneral memories” which are problematic.[125] Overgeneral memories may be thought of as general memories passing themselves off as specific memories. Overgeneral memories often lack vividness—meaning they glaze over details.[126] These memories are categorical, so they refer to groups of events, instead of specific events.[127] They may also be extended, meaning they refer to events lasting longer than one day.[128] When recalling an overgeneral memory, an individual is likely to give a standard, typical memory.[129] In other words, when asking a depressed person about a specific time frame—“What happened on June 2nd?”—or a specific event—“What happened when Ronnie spoke with you?”—the witness is likely to answer with a broad swath of memory, rather than a single, specific memory. People with overgeneral memory supplement what they cannot remember with “vague, script-like” commonalities.[130] Depressed patients take longer to recall specific memories.[131] Depressed individuals retrieve fewer specific memories.[132]

Overgeneral memories create evidentiary issues. One could argue that overgeneral memory is, in essence, a script that a depressed person tells themself because of their ability to fill in details they cannot recall with script-like placeholders. The American common law system does not allow witnesses to follow a script or read from past recollections.[133] The problem does not necessarily go away once a person stops experiencing depression. Overgeneral memory problems remain with once-depressed persons even after their symptoms subside.[134] A study published in 2017 found that overgeneral memories and other autobiographical deficiencies preceded at-risk youths’ onset of depression and continued after depressed individuals went into full remission of a depressive episode.[135] This finding indicates that ordinary persons who had a depressive episode but who are in full remission may nonetheless experience continuing autobiographical memory loss and recollection of overgeneral memories.[136]

Additionally, depression causes retrieval difficulties.[137] Depressed individuals are less likely to be able to recall rich, positive, autobiographical memories.[138] Theories vary on why this happens—whether individuals avoid positive stimuli or simply do not focus on positive events—but what matters for evidence is that depressed individuals are far less likely to remember a happy memory than their nondepressed counterparts.[139] Indeed, studies have shown that, especially when recalling primary school, adolescent, and early adulthood memories, depressed individuals recall statistically significantly fewer details.[140]

Depression causes deficits in memory vividness.[141] Vividness is strongly associated with increased activity in the hippocampus.[142] There is speculation that depressed adults exhibit reduced activity in the hippocampus given that their memories lack vividness.[143]

Finally, depression causes deficits in visual perspective.[144] Recent studies and evidence indicate that mental imagery deficits cause or, at the very least, correlate to overgeneral memory and other autobiographical memory dysfunction.[145]

In summary, depressed individuals have reduced capacity to recall specific memories, the memories will be less vivid even when recalled, and there is a danger of overgeneralization where depressed individuals may be following a prototypical script without even realizing it. Therefore, every aspect of a witness’s accuracy is implicated by the fact of that witness’s depression at the time of the events testified to.

V. Depression Is Somewhere in Between

This Part will discuss how the law has treated depression. Then begins an analysis of what law is currently in place and the problems associated with the current judicial reasoning. Finally, this Part will compare depression’s effects against drunkenness, perception-altering drug use, and eyewitness impairment to begin to sketch out a rule of admissibility.

Depression’s impact on memory is a relatively newly understood phenomenon with two resulting legal difficulties. First, the law is a slow-moving creature that traditionally prefers patience to activism.[146] Because of this slowness, the law is reticent towards many modern discoveries—depression included. To date, there are only a handful of cases that deal with evidentiary concerns of depression.[147] Second, depression has a negative stigma,[148] and our court system avoids embarrassment and harassment of witnesses within its walls.[149] Thus, many of the mental health issues are considered in camera with little-to-no printing or publication of witness’s history with depression or—importantly for this Comment—how the court considered it.[150] The main concern here is how to incorporate depression into an evidentiary framework that has yet to deal with depression. To do that, it is right to first consider recent history.

As recently as 2006, the Seventh Circuit in Farfaras v. Citizens Bank & Trust of Chicago affirmed a district court’s decision to allow lay witnesses to provide opinion evidence that another person is depressed, with certain caveats.[151] In that case, a layperson (a friend of the defendant) attempted to testify to the defendant’s depression, which drew an objection.[152] Relying on Federal Rule of Evidence 701, Judges Ripple and Sykes and Chief Judge Flaum, writing for the court, affirmed the trial court’s decision to allow a lay witness to testify that another relevant person was depressed, even though the court recognized the existence of a medical condition called depression.[153] The court reasoned that when the lay witness spoke about the defendant being “depressed”—a feeling of unrelenting sadness—the jury would be able to tell the difference between that depression and “depressed”—the abbreviated term for the clinical mental disease major depressive disorder, which is also used in the vernacular.[154] The interchangeable use of these two terms, using the same word for two radically different meanings, is problematic. To avoid further confusion, this Comment will refer to the justices’ “low in spirits” as “adjective depression,” and the medical disease as “medical depression” or “depression.” Unfortunately, several cases followed the decision in Farfaras.[155]

There are issues with the judges’ logic of which courts today should take notice. First, there is a “misunderstanding in common parlance” concerning depression.[156] People, even doctors, do not always properly distinguish between adjective depression and medical depression.[157] The terms can overlap because they are nebulous. Second, a jury is likely to be composed of people who do not inherently understand the legal and evidentiary difference between major depressive disorder and the Seventh Circuit’s adjective depression. Thus, the jury when reaching its verdict could be asked to decide what weight to give a person’s depression, hearing testimony about both adjective depression and medical depression without guidance on distinguishing the two.[158] Though, it should be noted that some courts recognize the danger of confusing the jury and, in an attempt to avoid that pitfall, keep the issue of depression from the jury.[159] Ultimately, this decision puts inordinate responsibility on the jury to make the proper decision, despite their inability to differentiate between adjective depression and depression. It should be overturned.[160]

Moving beyond the difference between adjective depression and medical depression, there is yet another issue—the new understanding of depression’s impact on memory is simply not accounted for in any decision.[161] Both the previous case, United States v. Jackson, and the seminal case for lay witness evidence of another’s depression, Farfaras v. Citizens Bank & Trust of Chicago, illustrate this issue—the judiciary in those decisions did not account for depression’s impact on the witness’s accuracy,[162] something we now know exists.[163] But the question then becomes, how do we “slot” depression into our robust memory-inhibition framework?

We must look at which memory processes—perception, encoding, and retrieval—are impacted, and compare that with how well understood and how commonly encountered depression is.

The problem is, of course, that depression’s impact on memory is unique when compared to perception-altering drug use, drunkenness, amnesia, or eyewitness impairment. Depression has subtle encoding issues, unlike alcohol intoxication’s more obvious encoding issues. And unlike alcohol intoxication, depression is not (currently) widespread and common to the point of ubiquitous understanding.[164] This makes drunkenness a poor model for how to treat witnesses with depression. There must be a higher bar to pass for evidence to enter the court’s record than in cases where a witness was inebriated.

Further, depression’s effects are not easily understood by the common person. The effects are subtle, making witnesses prone to overgeneralized memories with script-like renditions. In this way, depression is more like psychoactive drugs or eyewitness impairments, which our courts allow an expert to aid the jury to understand the memory effects and their impact on evidence. So how does one synthesize a rule from these conflicts and overlaps?

VI. Making the Rule About Depression

Because no law exists on this subject, this Comment will posit a rule about how to impeach a witness based on the fact that they experienced a depressive episode at the time of the events testified to.[165] To do so, four questions must be answered, each in turn. First and foundationally, should evidence of a lay witness’s depression be admitted to impeach her memory? Second, if so, how? Third, which witnesses are subject to this impeachment? And fourth, are there any exceptions?

The overall question must be answered first—should depression be admitted for purposes of impeaching a witness’s memory? The answer must be yes. The incidence of depression at the time of the events testified to has an impact on a person’s ability to encode and retrieve the facts. A depressed witness’s testimony will be far less vivid and far more overgeneralized than a nondepressed witness’s testimony. These facts go to the witness’s credibility, and the jury should hear them.

The question then becomes, how should the court allow the testimony of a witness’s depression to proceed to the jury? Here, we look to the jury’s inherent ability to understand the subtlety of depression’s impact on memory. First, the court should act as a gatekeeper to reduce the burden the jury has on deciding the evidentiary weight to put on a witness’s depression. If depression would unfairly bias the jury against a witness or create other unfair prejudice, it must be the goal of the court, in accordance with Federal Rules of Evidence 611(a)(3) and 403, to avoid confusing or biasing the jury. Second, with the goal being a fact-filled and fair trial, the court should proceed to the next hurdle—how best to relay the complex information to the layperson jury. Courts already allow expert testimony as evidence of mental derangement.[166] With this goal, the court should require expert opinion on the effects and impacts of depression on memory before allowing impeachment of a witness on the fact of their depression. Similar to the subtlety of eyewitness impairment and drug use, an expert will be able to assist juries on the implications of this complex medical condition.[167]

Having now defined how the evidence may come in, the next question becomes who may be so impeached? Given a bias against people with depression, the goal of the judiciary should be the inclusion of the evidence in a manner to avoid prejudice and seek probative value.[168] And because of the sensitive nature of mental health, it will be crucial for judges to determine proper relevancy whenever possible, outside the presence of the jury. In doing so, the judge will be able to determine the potential evidence’s relevance before allowing impeachment or calling an expert to assist the jury with understanding depression. In-camera rulings allow the correct evidence to reach the trier of fact without risking any “ringing of the bell” of irrelevant or prejudicial evidence.

Finally, it will also be important to consider the posture of the witness in question to see if there are any exceptions to the rule. Is the witness a party or a lay witness, only? Is the case criminal or civil? For criminal defendants with a mens rea element to their crime, an exception must be made to avoid the jury confusing the mens rea elements of the crime and the witness’s impeachable depression. This exception does not need to persist into civil cases as there is a much lower standard of proof and corresponding lower risk of confusion to the jury.

Having considered these questions, a potential rule emerges: when a lay witness experienced a medical depressive episode at the time of the events she is testifying to, the court must allow cross-examination accompanied by expert testimony on that witness’s depression. The fact of her depression is only able to be properly understood with expert testimony, so it is incumbent on the party seeking impeachment to also provide expert testimony on depression. Courts must disallow impeachment of criminal defendants to avoid the confusion between the mens rea elements of the crime and the evidence-impeaching depression.

VII. Conclusion

From a fairness perspective, the proposed system—allowing evidence of a witness’s depression but requiring an expert opinion with that impeachment—makes logical sense given the courts’ previous methods of handling memory impairment. But this solution has a sociological flaw—it proclaims as a rule of law that a depressed person’s testimony is less reliable in all situations. In a world with incidence of depression surging and the stigma of depression failing to ebb, this proposed solution throws an anchor around an already-laden neck. How would a depressed person react to the fact that even her word cannot be considered valid, when her life may already feel so empty?

There is a bright spot, however, if the courts maintain a system that keeps evidence of depression undiscoverable. If the courts create a threshold of a medical diagnosis of depression before allowing impeachment of depression, this discussion would be moot. It will not practically matter if depression may come into the trial on an evidentiary basis if that evidence is inherently undiscoverable. But as long as we have fair judges making reasonable decisions, we have a chance to get this right and improve both fairness to parties and esteem of our witnesses. Both of which must be the goal.

John Appel

  1. @skxllcity, Twitter (May 10, 2019, 2:37 PM), https://twitter.com/skxllcity/status/1126934426389229568 [https://perma.cc/2HA4-A9PX]. The formerly self-described twenty-one-year-old anarchist spoke to something that resonated with other Twitter users.

  2. Katie Way, Yes, Anxiety and Depression Are Linked to Memory Loss. Yes, People Talk About It, Vice (Oct. 21, 2019, 12:38 PM), https://www.vice.com/en_us/article/ywae7k/anxiety-and-depression-are-linked-to-memory-loss [https://perma.cc/XK2X-3NH9].

  3. See, e.g., u/keterr, Depression Has Changed My Memory– Has Anyone Else Experienced This?, Reddit (June 15, 2016, 10:39 AM), https://www.reddit.com/r/depression/comments/4o7x74/depression_has_changed_my_memory_has_anyone_else/ [https://perma.cc/3DWV-CRYH]. It should be noted at this juncture that this Comment will limit itself to the area of memory loss caused by depression and not by anxiety. Although the two are often experienced simultaneously—depression and anxiety are not coequal and, for focus’s sake, this Comment will discuss only depression. See Craig N. Sawchuk, Is It Possible to Have Depression and Anxiety at the Same Time?, Mayo Clinic (June 2, 2017), https://www.mayoclinic.org/diseases-conditions/depression/expert-answers/depression-and-anxiety/faq-20057989 [https://perma.cc/4F3T-P96G]; Ridout et al., infra note 121, at 114 (indicating that anxiety does not have associated episodic memory loss like depression does).

  4. Andrea Weinberger et al., Depression Is on the Rise in the U.S., Especially Among Young Teens, Colum. Mailman Sch. Pub. Health (Oct. 30, 2017), https://www.mailman.columbia.edu/public-health-now/news/depression-rise-us-especially-among-young-teens [https://perma.cc/2SWF-X9JA].

  5. Id.

  6. Ronald C. Kessler et al., Epidemiology of Depression, in Handbook of Depression 7, 8 (Ian H. Gotlib & Constance L. Hammen eds., 3d ed. 2014) (citing Ronald C. Kessler & Evelyn J. Bromet, The Epidemiology of Depression Across Cultures, 34 Ann. Rev. Pub. Health 119, 120 (2013)).

  7. Richard C. Atkinson & Richard M. Shiffrin, Human Memory: A Proposed System and Its Control Processes, in 2 The Psychology of Learning and Motivation: Advances in Research and Theory 89 (Kenneth W. Spence & Janet Taylor Spence eds., 1968).

  8. Id. at 90. Atkinson and Shiffrin compared the individual’s memory to the computer’s memory and the processes to the computer’s operating system. Id. This is an apt analogy and helps build a practical framework for memory. Id.

  9. Id. at 90–91.

  10. See id. at 92, 101, 107–08, 114–15, 117.

  11. Id. at 101.

  12. Id. at 92.

  13. Id.

  14. Id.

  15. Id. at 92, 95–96.

  16. Id. at 92.

  17. See id. at 92, 98, 108 (noting that the short-term register lasts about thirty seconds); Susanne Schweizer et al., Affective Enhancement of Working Memory Is Maintained in Depression, 18 Emotion 127, 127–28 (2018).

  18. Atkinson & Shiffrin, supra note 7, at 91.

  19. Asa Livner et al., Prospective and Retrospective Memory in Alzheimer’s Disease and Vascular Dementia: Similar Patterns of Impairment, 283 J. Neurological Scis. 235, 235 (2009).

  20. Memory Encoding, Hum. Memory, https://human-memory.net/memory-encoding/ [https://perma.cc/7XFV-ALFD] (Nov. 25, 2020).

  21. This Comment will use the female pronouns for two reasons. First, the Author finds it convenient and consistent to use one set of gendered pronouns in a single comment. Second, it is apt to use the female pronouns because of the greater incidence of depression in women. See Daniel E. Ford & Thomas P. Erlinger, Depression and C-Reactive Protein in US Adults: Data from the Third National Health and Nutrition Examination Survey, 164 Archive Internal Med. 1010, 1011 (2004) (noting that 5.7% of men and 11.7% of women had lifetime major depressive disorder). Also, Semantic encoding—the ability to reframe perceptions in a manner inconsistent with reality to create alternative, hypothetical possibilities—will not be discussed further as it is irrelevant to this Comment. See Step 1: Memory Encoding, Boundless Psych., https://courses.lumenlearning.com/boundless-psychology/chapter/step-1-memory-encoding/ [https://perma.cc/8P4L-PVNV] (last visited Feb. 5, 2021). There are four main types of encoding: semantic encoding, tactile encoding, visual encoding, and acoustic encoding. See Memory Encoding, supra note 20. Tactile, visual, and acoustic encoding strongly correlate to the senses they align with. Id.

  22. See Perception, Merriam-Webster, https://www.merriam-webster.com/dictionary/perception [https://perma.cc/9LW9-MF4Q] (last visited Feb. 5, 2021).

  23. See Matt Mielnick, Understanding Sensory Processing Disorders in Children: A Guide for Parents and Professionals 19, 22 (2017).

  24. See, e.g., Nafiseh Hashemi et al., Visual Hallucinations: A Review for Ophthalmologists, 7 Expert Rev. Ophthalmology 471, 471–74 (2012) (noting some of the conditions that might cause visual hallucinations).

  25. Jingji Jin & Stephen Maren, Prefrontal-Hippocampal Interactions in Memory and Emotion, Frontiers Sys. Neuroscience (Dec. 15, 2015), https://www.frontiersin.org/articles/10.3389/fnsys.2015.00170/full [https://perma.cc/UB45-5WXL].

  26. Aaron M. White, What Happened? Alcohol, Memory Blackouts, and the Brain, 27 Alcohol Rsch. & Health 186, 192 (2003).

  27. Id.

  28. Id. This is what happens when a person gets “blackout” drunk. Id. at 186.

  29. See Atkinson & Shiffrin, supra note 7, at 115, 117; Memory Consolidation, Hum. Memory, https://human-memory.net/memory-consolidation/ [https://perma.cc/9P4H-PFXG] (Nov. 25, 2020).

  30. Atkinson & Shiffrin, supra note 7, at 115.

  31. Id. at 111, 183. Traces are a mix between library catalog cards (or West Key Number System) and fishing lines for the mind—they enable categorical look-up, but not specific look-up based on certain prompts (you never know exactly what you will pull up). See generally id. at 108–15 (discussing the various theories of how memory traces work). Think about what comes to mind when prompted with “baking chocolate chip cookies.” It is likely you, reader, recall certain nostalgic memories based on reading those words, but not necessarily one specific event.

  32. See David Owen et al., Classical Diseases Revisited: Transient Global Amnesia, 83 Postgrad Med. J. 236, 236 (2007) (noting that anterograde amnesia has incidence of “5 per 100 000 [sic] population per year”). Compare Natalie M. Zahr et al., Clinical and Pathological Features of Alcohol-Related Brain Damage, 7 Nature Revs. Neurology 284, 284 (2011), with White, supra note 26, at 188 (stating that anterograde amnesia may develop from continued alcohol abuse in addition to the fact that alcohol-induced blackouts have a very similar, but not long-lasting, effect on the ability to store memories). See generally, e.g., Finding Nemo (Pixar Animation Studios 2003) (presenting the character Dory as a textbook example of this type of memory loss).

  33. Memory, Recall, and Retrieval System, Hum. Memory, https://human-memory.net/memory-recall-retrieval/ [https://perma.cc/S3EB-RCBH] (Nov. 25, 2020).

  34. Atkinson & Shiffrin, supra note 7, at 119–20; see also supra note 31, for an analogy of a trace.

  35. See Michael S. Humphreys et al., Explaining Short-Term Memory Phenomena with an Integrated Episodic/Semantic Framework of Long-Term Memory, Cognitive Psych., Dec. 2020, at 1, 1, 15–17 (reflecting on studies of forgetting indicates that forgetting is caused by both decay and interference); Kendra Cherry, The Psychology of Forgetting and Why Memory Fails, Very Well Mind (Jan. 4, 2021), https://www.verywellmind.com/forgetting-about-psychology-2795034 [https://perma.cc/FA57-EKE2] (((insert permalink.

  36. See, e.g., Robert A. Bjork & William B. Whitten, Recency-Sensitive Retrieval Processes in Long-Term Free Recall, 6 Cognitive Psych. 173 (1974) (discussing the recency bias’s effect on memory); James Eric Eich, The Cue-Dependent Nature of State-Dependent Retrieval, 8 Memory & Cognition 157, 168–69 (1980); Lauren B. Raine et al., The Influence of Childhood Aerobic Fitness on Learning and Memory, 8 PLOS One, at 1, 5 (2013) (discussing the impact that exercise has on memory retrieval, in this case children’s memories); Memory Games: Eating Well to Remember, Sci. Daily (Feb. 18, 2020), https://www.sciencedaily.com/releases/2020/02/200218124351.htm [https://perma.cc/8PBM-RSLV].

  37. Note that storage would ordinarily be included here, but storage will not for two reasons. First, storage is difficult to extract from understanding memory as a whole. See Kathleen B. McDermott & Henry L. Roediger III, Memory (Encoding, Store, Retrieval), NOBA, https://nobaproject.com/modules/memory-encoding-storage-retrieval [https://perma.cc/B92P-H7A8] (last visited Apr. 2, 2021) (“[T]he three stages [of memory]—encoding, storage, and retrieval—affect one another, and are inextricably bound together.”). The second reason is that storage error, unlike encoding error or retrieval error, is difficult to perceive because it happens entirely within the mind. See id. (noting that although storage errors may exist—e.g., retroactive interference—storage errors’ effects cannot be perceived until after retrieval).

  38. See, e.g., United States v. Saint Louis, 889 F.3d 145, 152–53 (4th Cir. 2018) (deciding that the police had not impermissibly suggested the suspect to the witness using a photograph array).

  39. It will do so because these are the most common forms of memory impairment and therefore have the most cases, secondary sources, and legal scholarship in existence.

  40. Autobiographical memory is the storage of “information about our lives” and is part of long-term declarative memory, meaning these memories are stored for a long time. Monika Talarowska et al., Autobiographical Memory Dysfunctions in Depressive Disorders, 70 Psychiatry & Clinical Neurosciences 100, 100 (2016).

  41. Episodic memory is a subpart of autobiographical memory and contains “conscious and specific memories concerning one’s own past, sensory and visual events as well as thoughts and feelings accompanying [those memories].” Id.

  42. Bernie R. Burrus & Harry L. Marks, Testimonial Reliability of Drug Addicts, 35 N.Y.U. L. Rev. 259, 259 (1960).

  43. Christian P. Müller, Episodic Memories and Their Relevance for Psychoactive Drug Use and Addiction, 7 Frontiers Behav. Neuroscience 1, 1 (2013).

  44. See Model Code of Evidence r. 106, cmt. 3 (Am. L. Inst. 1942) (emphasis added).

  45. Psychoactive Drug, Wikipedia, https://en.wikipedia.org/wiki/Psychoactive_drug [https://perma.cc/C924-F7F3] (last visited Feb. 9, 2021).

  46. See Hallucinogens, Nat’l Inst. on Drug Abuse, https://www.drugabuse.gov/drugs-abuse/hallucinogens [https://perma.cc/H4JH-F9JN] (last visited Mar. 14, 2021).

  47. See Marijuana, Nat’l Inst. on Drug Abuse, https://www.drugabuse.gov/publications/drugfacts/marijuana [https://perma.cc/F8KQ-99SZ] (last visited Feb. 9, 2021). Time distortion creates an altered sense of time for the drug user; altered senses can lead to increased sensitivity in some senses. See Time Distortion, Am. Psych. Ass’n, https://dictionary.apa.org/time-distortion [https://perma.cc/QL8Q-25HG] (last visited Feb. 9, 2021); The Effects of Marijuana on Consciousness, in Altered States of Consciousness 343 (Charles T. Tart ed., 1972).

  48. Hallucinogens, supra note 46.

  49. See Campbell v. United States, 269 F.2d 688, 690 (1st Cir. 1959), vacated on other grounds, 365 U.S. 85 (1961).

  50. Id.

  51. Id.

  52. Id. (holding that the question was of an improper form because it lacked specificity to inquire into a permissible question).

  53. United States v. Samples, 897 F.2d 193, 196–97 (5th Cir. 1990). The court limited evidence of drug use to when the witness’s use of drugs was relevant. Id. at 197.

  54. Id.

  55. Id.

  56. See Smalley v. United States, 798 F.2d 1182, 1189 (8th Cir. 1986).

  57. Id.

  58. Id. (stating that all information about the drug’s side effect would be speculative because there was no testimony about how much of the drug the witness took).

  59. See Kelly v. Md. Cas. Co., 45 F.2d 782, 788 (W.D. Va. 1929), aff’d, 45 F.2d 788 (4th Cir. 1930) (holding that a drug addict’s drug use was admissible only following an expert witness’s opinion on the effects of that drug use); People v. Buono, 12 Cal. Rptr. 604, 621 (Ct. App. 1961) (requiring expert opinion that narcotics “impair the capacity or disposition to tell the truth” before allowing proof of a witness’s use of narcotics); Weaver v. United States, 111 F.2d 603, 606 (8th Cir. 1940) (holding that the district court properly denied a defendant’s request for a special jury instruction that drug use impacts the credibility of the witness).

  60. See, e.g., State v. Robinson, 41 P. 884, 886 (Wash. 1895) (affirming as proper the district court’s allowance of expert testimony as to the medical effects of morphine and deeming as proper the exclusion of expert opinion of the witness’s accuracy). But see People v. Bell, 291 P.2d 150, 153 (Cal. Ct. App. 1955) (restricting evidence about the impacts of drug use to the drug’s impact on mental faculties); People v. Williams, 159 N.E.2d 549, 554–55 (N.Y. 1959) (limiting expert testimony to effects that carry “general scientific recognition” so as to avoid the jury “replac[ing] their judgment [with] the opinion of the expert”).

  61. Drunk, Black’s Law Dictionary (11th ed. 2019).

  62. See, e.g., State v. Phanor, 325 So. 2d 579, 581 (La. 1976) (illustrating how drunkenness can be considered in fact recitation since, in this case, the defendant alleges his drunken state prevented him from perceiving his surroundings and making cogent witness statements).

  63. See, e.g., People v. Rockwell, 608 N.W.2d 811, 813 (Mich. 2000) (Kelly, J., dissenting) (illustrating an example of a defendant who claimed drunkenness as a reason he did not have criminal intent to participate in the crime).

  64. See, e.g., Ramjattansingh v. State, 548 S.W.3d 540, 545 (Tex. Crim. App. 2018) (requiring drunkenness as an element of the crime of driving while intoxicated).

  65. See, e.g., DeStock No. 14, Inc. v. Logsdon, 993 S.W.2d 952, 957 (Ky. 1999).

  66. Cf. Stone v. Chicago & N.W.R. Co., 47 Iowa 82, 87 (1877) (noting that drunkenness did not excuse a train conductor from his breach of contract).

  67. See Martha M. Cleary, Annotation, Impeachment of Federal Trial Witness with Respect to Intoxication, 106 A.L.R. Fed. 371, § 2 (1992) (noting the difference between civil and criminal courts’ evidentiary requirements for the admissibility of a witness’s state of drunkenness).

  68. 5 Am. Jur. 2d Proof of Facts §§ 1, 3 (1975) (finding the basis for allowing evidence of intoxication—specific intent—a “very nebulous” concept and noting the resulting nebulous effect it has on admittance of intoxication as affecting mens rea).

  69. See United States v. Grey Bear, 883 F.2d 1382, 1388 (8th Cir. 1989) (listing the factors the jury may consider and including special factors for drunkenness that the jury should ponder—“each witness’s ability to observe matters testified to, as well as his opportunity to observe the persons in question”); Ord. of United Com. Travelers of Am. v. Tripp, 63 F.2d 37, 41 (10th Cir. 1933) (although there is conflicting evidence of intoxication, the jury was able to see both sides of the evidence).

  70. Greif v. Anheuser-Busch Cos., 114 F. Supp. 2d 100, 103–04 (D. Conn. 2000) (citing State v. Katz, 189 A. 606 (Conn. 1937)) (noting state courts are consistent in their view that “potential risks of alcohol intoxication and drunk driving are matters of common knowledge” (emphasis added)).

  71. Nadja Schreiber Compo et al., Alcohol Intoxication and Memory for Events: A Snapshot of Alcohol Myopia in a Real-World Drinking Scenario, 19 Memory 202, 202 (2011).

  72. Id.

  73. Id.

  74. See Jacqueline R. Evans et al., The Impact of Alcohol Intoxication on Witness Suggestibility Immediately and After a Delay, 33 Applied Cognitive Psych. 358, 359 (2019) (noting scientific studies have found alcohol’s impact on eyewitness memory to be “fairly minimal and inconsistent”).

  75. See id.

  76. Id. (noting either no impact on witness accuracy or “only 2% decrease in accuracy”).

  77. See Compo et al., supra note 71, at 203.

  78. See Evans et al., supra note 74 (according to two surveys, 73% of U.S. law enforcement respondents and 89% of English law enforcement respondents had either “common or very common” contact with inebriated eyewitnesses).

  79. See Nat’l Highway Traffic Safety Admin., Traffic Safety Facts: State Alcohol-Impaired Driving Estimates 1 (2018), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/812483 [https://perma.cc/MDV2-HG2X] (indicating that 28% of all automobile accidents during the year 2016 involved at least one alcohol-impaired driver); Hard-Drinking Tropes, TV Tropes, https://tvtropes.org/pmwiki/pmwiki.php/Main/HardDrinkingTropes [https://perma.cc/Q4TR-ZMDM] (last visited Feb. 9, 2021).

  80. See Francesca Palmer et al., Intoxicated Witnesses and Suspects: An Archival Analysis of Their Involvement in Criminal Case Processing, 37 Law & Hum. Behav. 54, 54–55, 57 (2013) (indicating there were intoxicated witnesses in 13% of randomly sampled felony criminal cases (rape, robbery, and assault) from the archives of a large jurisdiction District Attorney’s office). Note: The Author could not find any significant latitudinal study of witness’s drunkenness.

  81. See, e.g., Diaz v. Faulkner, 293 F.2d 286, 287 (6th Cir. 1961); see United States v. Grey Bear, 883 F.2d 1382, 1388 (8th Cir. 1989).

  82. See, e.g., United States v. Mozie, ARMY 20130065, 2016 WL 1730408, at *2 (A. Ct. Crim. App. Apr. 28, 2016) (indicating a witness’s ability to bring to the jury signs of drunkenness including the smell of alcohol, bloodshot eyes, staggering, or other erratic behavior).

  83. See, e.g., Ord. of United Com. Travelers of Am. v. Tripp, 63 F.2d 37, 41 (10th Cir. 1933) (holding as proper the district court’s discretion to allow a cross-examination of a witness who claimed to be sober). But see id. (holding as proper the district court’s refusal to allow in extrinsic evidence of that witness’s state of inebriation).

  84. See Williford v. Young, 779 F.2d 405, 408–09 (7th Cir. 1985) (affirming the district court’s use of an intoxication jury instruction as it did not alter the burdens of persuasion under the test announced in Francis v. Franklin, 471 U.S. 307 (1985), modified by Boyde v. California, 494 U.S. 370 (1990)).

  85. See, e.g., Wilson v. Superintendent, 1:16-CV-24-TLS, 2018 WL 3093437, at *5 (N.D. Ind. June 22, 2018) (finding that a decision to assume the jury had an understanding of the effects of intoxication was reasonable in its determination of a habeas corpus action), appeal denied sub nom. Wilson v. Neal, No. 18-2600, 2019 WL 11618602 (7th Cir. Apr. 15, 2019).

  86. Amnesia, Hum. Memory, https://human-memory.net/amnesia/ [https://perma.cc/TKR5-EHUP] (Nov. 25, 2020).

  87. See id.; Easy Amnesia, Tv Tropes, https://tvtropes.org/pmwiki/pmwiki.php/Main/EasyAmnesia [https://perma.cc/SC4E-36JV] (last visited Feb. 9, 2021); e.g., The Majestic, IMDB, imdb.com/title/tt0268995/ [https://perma.cc/X62G-GHV6] (last visited Feb. 9, 2021).

  88. See L.A. Bradshaw, Annotation, Necessity and Admissibility of Expert Testimony as to Credibility of Witness, 20 A.L.R. 3d 684, § 19 (1968) (stating that expert testimony has been infrequently admitted to rebut a witness’s asserted loss of memory).

  89. See Finding Nemo, supra note 32 (e.g., “Dory”).

  90. See, e.g., United States v. Villegas, 899 F.2d 1324, 1342 (2d Cir. 1990) (illustrating that the trier of fact in a criminal case accused the defendant of feigning anterograde amnesia to avoid mens rea). The Author conducted an extremely unscientific search through WestLaw and found that only thirty-nine federal cases contain the phrase “anterograde amnesia” in their text. Most of these cases concern temporary anterograde amnesia caused by drug use (including Rohypnol). See, e.g., Sera v. Norris, 400 F.3d 538, 541 (8th Cir. 2005) (discussing Rohypnol’s impact on memory); Levin v. United States, No. 05-00008, 2017 WL 2960510, at *7–8 (D. Guam July 11, 2017) (discussing anesthesia-induced anterograde amnesia); Gray v. McAuliffe, No. 3:16CV982-HEH, 2017 WL 102970, at *9 (E.D. Va. Jan. 10, 2017) (discussing how the use of midazolam to make a person receiving a lethal injection unconscious results in anterograde amnesia).

  91. See James E. Tysse & Thomas L. Hafemeister, Amnesia and the Determination of Competency to Stand Trial, 25 Devs. Mental Health L. 65, 67, 74 (2006).

  92. See 92 Am. Jur. 3d Proof of Facts §§ 6–7, Westlaw (database updated February 2020) (listing these factors among others).

  93. Brian L. Cutler & Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law 104 (1995); see also Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 Psych. Pub. Pol’y & L. 3 (2001).

  94. See Cutler & Penrod, supra note 93, at 103–04.

  95. See Elizabeth F. Loftus et al., Some Facts About "Weapon Focus," 11 Law & Hum. Behav. 55, 60 (1987). This phenomenon is called “weapon focus” and, according to the study, subjects at whom a weapon was brandished were less accurate by half at identifying the wrongdoer and 11% less accurate at even naming items in view at the scene. Id. at 60–61.

  96. See Menninger, supra note 92, § 8.

  97. Neil v. Biggers, 409 U.S. 188, 199–200 (1972).

  98. Siegfried Ludwig Sporer et al., Choosing, Confidence, and Accuracy: A Meta-Analysis of the Confidence–Accuracy Relation in Eyewitness Identification Studies, 118 Psych. Bull. 315, 322 (1995).

  99. See Cutler & Penrod, supra note 93, at 106–07.

  100. See Menninger, supra note 92, § 11 (citing Gary L. Wells, What Do We Know About Eyewitness Identification?, 48 Am. Psych. 553, 567 (1993)) (stating that incorrect identification rose from 25% to 68% when the perpetrator was not in the lineup).

  101. See id. § 16; United States v. Lumpkin, 192 F.3d 280, 288­–89 (2d Cir. 1999) (excluding eyewitness expert evidence as it would confuse the jury); United States v. Downing, 753 F.2d 1224, 1231 (3d Cir. 1985) (finding that eyewitness expert testimony would assist the jury).

  102. See Henry F. Fradella, Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony, 2 Fed. Cts. L. Rev. 1, 20 (2007) (arguing that “[b]io-psycho-social factors” impacting a witness’s memory is outside of the purview of the jurors); Brooke Whisonant Patterson, Student Article, The "Tyranny of The Eyewitness," 28 Law & Psych. Rev. 195, 202 (2004).

  103. See, e.g., United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986) (accepting the “modern conclusion that the admission of expert testimony regarding eyewitness identifications is proper”).

  104. See Flowers v. State, 240 So. 3d 1082, 1104–07 (Miss. 2017) (affirming the trial court’s refusal to admit expert testimony concerning the fallibility of eyewitness testimony), rev’d on other grounds, 139 S. Ct. 2228 (2019).

  105. Major Depressive Disorder, Merriam-Webster, https://www.merriam-webster.com/dictionary/major depressive disorder#medicalDictionary [https://perma.cc/MT4Y-XNFB] (last visited Feb. 9, 2021). If episodes of mania or hypomania interrupt the episodes of depression, a person has bipolar disorder, not major depressive disorder. Compare id., with Bipolar Disorder, Merriam-Webster, https://www.merriam-webster.com/dictionary/bipolar disorder [https://perma.cc/7WC6-WL4U] (last visited Feb. 9, 2021).

  106. Major Depressive Disorder, supra note 105.

  107. See Talarowska et al., supra note 40, at 101 (noting that disorders of many types, including PTSD and schizophrenia, exhibit symptoms of memory dysfunction).

  108. See Kristen M. Kennedy et al., BDNF Val66met Polymorphism Affects Aging of Multiple Types of Memory, 1612 Brain Rsch. 104, 106, 114 (2015) (listing retrospective memory and prospective memory as a few of the many types of memory).

  109. See, e.g., Schweizer et al., supra note 17, at 127 (citing Alan Baddeley, Working Memory: Looking Back and Looking Forward, 4 Nature Revs. Neuroscience 829, 829–39 (2003)).

  110. See supra Part II.

  111. See, e.g., Schweizer et al., supra note 17, at 134 (noting that working memory capacity was not impacted by an individual’s incidence of depression). But see id. at 128 (conceding that some studies indicate depressed individuals have a loss in reaction time as part of working memory).

  112. Craig P. McFarland & Jennifer J. Vasterling, Prospective Memory in Depression: Review of an Emerging Field, 33 Archives Clinical Neuropsychology 912, 912 (2018).

  113. Id. at 925–26 (stating that depression impairs prospective memory tasks, but the biological cause of this impairment is still unknown).

  114. See Robert S. Redmount, The Psychological Basis of Evidence Practices: Memory, 50 J. Crim. L. & Criminology 249, 249 (1959) (“The memory of individual witnesses, as it is reported in the courtroom, is the largest fact-substance of juridical decisions.”); Fed. R. Evid. 602 (requiring witnesses to have “personal knowledge” of a matter to testify).

  115. See Talarowska, supra note 40, at 100 (defining episodic memory as “knowledge such as ‘I remember that’” and semantic memory as “knowledge such as ‘I know that’”). As mentioned above, semantic memory will play no further role in this Comment.

  116. See Endel Tulvering, Memory and Consciousness, 26 Can. Psych. 1, 2 (1985).

  117. See id.; Livner, supra note 19 (categorizing deterioration of episodic memory as part of retrospective memory dysfunction in Alzheimer’s patients).

  118. See Fed. R. Evid. 602 (“Evidence to prove personal knowledge may consist of the witness’s own testimony.”).

  119. United States v. Sandles, 469 F.3d 508, 514 (6th Cir. 2006). The witness’s testimony was limited to what she actually perceived and not implications derived therefrom. Id. at 514–15.

  120. See Talarowska, supra note 40, at 101.

  121. Nathan Ridout et al., Autobiographical Memory Specificity in Response to Verbal and Pictorial Cues in Clinical Depression, 51 J. Behav. Therapy & Experimental Psychiatry 109, 109 (2016).

  122. Id.

  123. Id.

  124. Id.

  125. Ena Begovic et al., Positive Autobiographical Memory Deficits in Youth with Depression Histories and Their Never-Depressed Siblings, 56 Brit. J. Clinical Psych. 329, 330 (2017) (citing J. Mark G. Williams et al., Autobiographical Memory Specificity and Emotional Disorder, 133 Psych. Bull. 122, 123 (2007)).

  126. See Begovic et al., supra note 125, at 330.

  127. See Sally A. Moore & Lori A. Zoellner, Overgeneral Autobiographical Memory and Traumatic Events: An Evaluative Review, 133 Psych. Bull. 419, 420 (2007).

  128. See id.

  129. See id. at 419 (“When instructed to describe specific memories, individuals with MDD instead tend to describe broader, more general categories of events rather than a particular instance, even with repeated prompting.” (emphasis added)); Begovic et al., supra note 125, at 337; Kristin Valentino, A Developmental Psychopathology Model of Overgeneral Autobiographical Memory, 31 Developmental Rev. 32, 33 (2011).

  130. Begovic et al., supra note 125, at 330.

  131. See Ridout et al., supra note 121, at 112. The study found that depressed patients were slower to retrieve specific positive memories but were just as quick as their nondepressed peers to retrieve negative memories. Id.

  132. Id. at 114.

  133. See Fed. R. Evid. 612 (allowing parties to refresh witnesses’ memories, but still requiring them to testify themselves); cf. Fed. R. Evid. 611(c) (prohibiting leading questions during direct examination). But see Fed. R. Evid. 803(5) (allowing past recollections recorded to be read into the record if a witness no longer has memory of their once-known memories).

  134. See Begovic et al., supra note 125, at 340.

  135. Id. The study examined 31 depressed youth, 185 remitted youth, 204 never-depressed siblings of depressed youth, and 180 control youth. Id. at 332. By examining similarly situated youth (who even grew up in the same house), the study was able to determine the impact of depression on memory. Id.

  136. Id. (finding that the autobiographical memory dysfunction was “fundamentally linked” to depression); see also Anthony Wood, Depression and Anxiety Linked to Memory Loss in Later Life, New Atlas (Mar. 21, 2019), https://newatlas.com/brain-memory-loss-depression-anxiety/58970/ [https://perma.cc/JPG4-6QJQ] (citing Amber John et al., Longitudinal Associations of Affective Symptoms with Mid-Life Cognitive Function: Evidence from a British Birth Cohort, 215 Brit. J. Psychiatry 675 (2019)).

  137. Begovic et al., supra note 125, at 330.

  138. Id. at 337 (finding a marked difference between depressed and nondepressed youth’s ability to recall happy memories about their early lives).

  139. Id. at 337, 341.

  140. Sarah V. Biedermann et al., Autobiographical Memory Deficits in Patients with Depression Follow a Temporal Distribution, 257 Psychiatry Rsch. 193, 195 fig.1 (2017). The study also found that depressed individuals recalled fewer details about their recent past, though more than the time periods of primary school and adolescence. Id. The only time period where depressed individuals outstripped their nondepressed counterparts was early childhood. Id.

  141. Begovic et al., supra note 125, at 330.

  142. Id. at 341 (citing K.D. Young et al., Functional Anatomy of Autobiographical Memory Recall Deficits in Depression, 42 Pysch. Med. 345, 353 (2012)).

  143. Id.; see also K.D. Young, et al., supra note 142, at 345, 353 (positing that future studies should be done to show the link between depression, reduced hippocampus activity, and reduced vividness).

  144. Begovic et al., supra note 125, at 330.

  145. Id.

  146. See Lawrence M. Friedman, Law in America: A Short History 15–16 (2004) (describing the law as a sort of “bridge” connecting a town by a river: the bridge’s construction is a reaction to the society’s needs, and its existence does impact the town but only after being built to satisfy the town’s need to cross the river).

  147. See infra notes 151–160and accompanying text.

  148. See Mental Health: Overcoming the Stigma of Mental Illness, Mayo Clinic (May 24, 2017), https://www.mayoclinic.org/diseases-conditions/mental-illness/in-depth/mental-health/art-20046477 [https://perma.cc/M7M5-FS6L].

  149. See Fed. R. Evid. 611(a)(3) (allowing judges to tailor witness examination to avoid embarrassment or harassment).

  150. See, e.g., United States v. Fattah, 187 F. Supp. 3d 563, 566 (E.D. Pa. 2016) (first citing Fed. R. Crim. P. 17(c); and then citing Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987)) (asserting that the court serves as “the guardian of the gate” by reviewing a cooperating witness’s mental health records in camera “to prevent fishing expeditions” and protect the witness’s or party’s privacy interests).

  151. See Farfaras v. Citizens Bank & Tr. of Chi., 433 F.3d 558, 565 (7th Cir. 2006).

  152. Id. at 563, 565.

  153. Id. at 565–66 (reasoning that the fact of a person’s prolonged sadness was within the purview of a lay witness, being nonmedical in nature and within the witness’s personal memory).

  154. Id. at 565 (holding that a reasonable jury can understand the difference between the psychological condition and an ordinary layperson’s adjective); see also id. at 565 n.1 (citing the dictionary definition of depression—“low in spirits”—and noting the jury was capable of distinguishing between “low in spirits” and the equivalently named medical condition).

  155. See Gomez v. Palmer, No. 11 C 1793, 2016 WL 212800, at *8 (N.D. Ill. Jan. 19, 2016); United States v. Schultz, No. Cr. S-07-76 KJM, 2008 WL 152132, at *2 n.1 (E.D. Cal. Jan. 16, 2008); Morris v. Cath. Bishop, 16 C 7916, 2018 WL 2087450, at *2 (N.D. Ill. May 4, 2018); EEOC v. AutoZone, Inc., 631 F. Supp. 2d 1076, 1080 (C.D. Ill. 2009), rev’d in part on other grounds, 630 F.3d 635 (7th Cir. 2010); Hopey v. Spear, No. 13-CV-2220, 2016 WL 9665165, at *6 (C.D. Ill. June 23, 2016) (following AutoZone, 631 F. Supp. 2d at 1080).

  156. Caroline Kitchener, Let’s Talk About Mental Illness: It’s the First Step Toward Reducing the Stigma, Atlantic (Oct. 25, 2017), https://www.theatlantic.com/membership/archive/2017/10/lets-talk-about-mental-illness/543999/ [https://perma.cc/U4NK-EER6] (quoting Scott Stossel, an editor with ten years of anxiety research experience) (“Depression is not just being sad. Anxiety is not just being stressed out. They are true biological disorders that can be quite debilitating.”).

  157. See James Potash, Depression . . . or Just the Blues?, ABC News (Apr. 9, 2007, 4:27 AM), https://abcnews.go.com/Health/Depression/story?id=3015549&page=1 [https://perma.cc/PV6T-HXCU] (explaining how medical diagnoses can sometimes mix up feelings of sadness and major depressive disorder).

  158. See United States v. Sublett, No. 1:04-CR-00037-R, 2007 WL 274982, at *2 (W.D. Ky. Jan. 26, 2007), aff’d, 729 F. App’x 380 (6th Cir. 2018) (allowing the jury to distinguish between adjective depression and an expert’s medical depression testimony).

  159. See, e.g., United States v. Jackson, 863 F. Supp. 1462, 1465–66 (D. Kan. 1994) (withholding psychiatric records from the defendants because the patient’s major depressive disorder was a collateral issue for the trial).

  160. For a well-considered comment on the subject of overturning Farfaras, see Adam Santeusanio, Comment, Lay Witness Opinion Testimony on Mental State & Depression: A Call for Reform, 38 U. Ark. Little Rock L. Rev. 477 (2016).

  161. The Author conducted considerable research and could find no cases discussing the memory impacts of depression on a witness.

  162. See Jackson, 863 F. Supp. at 1465 (“The depression, while obviously serious enough to disable Garcia from work, was not of the nature or duration to impair significantly his ability to perceive the events at issue, to recall them, or to tell the truth.” (emphasis added)); Farfaras v. Citizens Bank & Tr. of Chi., 433 F.3d 558, 565–66 (7th Cir. 2006). It should be noted that Judge Crow’s discussion in Jackson nearly echoes the three methods of memory mishandling—perception, encoding, and retrieval. Jackson, 863 F. Supp. at 1465.

  163. See supra Part IV.

  164. See Kitchener, supra note 156.

  165. It should be noted at this juncture that the Author sees the irony in a nonlawyer attempting to create a legal ruling.

  166. See United States v. Hiss, 88 F. Supp. 559, 560 (S.D.N.Y. 1950); People v. Bell, 291 P.2d 150, 153 (Cal. Ct. App. 1955) (allowing expert testimony to the mental faculties of the witness but restricting opinion on the witness’s veracity—the habitual regard for the truth).

  167. This Comment leaves questions of the discoverability of a witness’s depression for another paper and instead assumes that party opponents already have access to lay and expert witnesses to testify that a person was in a depressive episode.

  168. See Fed. R. Evid. 403 (a goal of evidence is avoiding unfair prejudice).