WITNESS STATEMENTS; WITNESSES; EVIDENCE AND PSYCHOLOGY: GUIDANCE FROM THE EAST
The post yesterday looked at guidance on taking witness statements from Scottish Judges. Here we look at a real gem of an article by Ula Cartwright-Finch and Alex Waksman of Herbert Smith Freehills on the accuracy of witness statements and the psychology of investigations. It is worth considering in detail because you may not come across it unless you follow Herbert Smith Freehill’s Asia Dispute Notes.
THE FRAGILITY OF MEMORY AND THE USE OF LEADING QUESTIONS
The article examines the fragility of memory and highlights the dangers of asking leading and misleading questions. The best example of the use of leading questions is asking a group of people who had seen a video of a road crash. The use of a particular verb in asking the question had a direct impact on the responses when witnesses were asked to state the speed of the car:
- Smash – 40.5 mph
- Collide – 39.3 mph.
- Bump – 38.1 mph
- Hit – 34 mph
- Contact 31.8 mph
Similarly questions such as “did you see “the” broken headlight “as opposed to “did you see “a” broken headlight” had a major impact on the number of people who reported seeing a broken headlight.
The articles also examines the dangers of implanted memories. Look at the way so many people remember seeing Bugs Bunny at Disneyland after being shown (false) adverts. Bugs Bunny is not a Disney Character.
The actual process of investigation can prejudice the witness results. This can happen on the part of the person taking the statement and not just the witness. There is a tendency to seek out evidence that supports a view and overlook or ignore the evidence that contradicts it.
PRACTICAL INTERVIEWING TECHNIQUES
Finally the article looks at practical ways to minimise the problems of bias. For instance:-
- Ask open questions.
- Use alternative techniques if the interviewee’s memory is particularly weak or vague.
- Have a thorough documentation retention process inplace.
- A person making an investigation should take measures to insulate themselves from confirmation bias.
THE PRACTICAL EFFECT OF THIS: THERE ARE DANGER IN FAILING TO RECOGNISE THE RISKS OF (ACCIDENTALLY) TAKING “PARTISAN” STATEMENTS
These matters highlight the issues raised in a previous post Drafting Witness Statements: the questions you ask will determine the answers you get
The article should be required reading for anyone taking a witness statement. Their job is two-fold: (1) to gather evidence in support of the client;s case; (2) to enable the client to properly appraise the strength (and weaknesses) of the case in order that decisions can be made as to settlement or whether to proceed to trial.
Relatively few cases go to trial and litigators may feel it appropriate to gather evidence in a “partisan” way. However if the evidence is not collected fully and properly this can lead to real shocks at trial. It is worthwhile, indeed essential, that a client has a full and honest picture of the risks they are running in litigating. Gathering one-sided evidence (albeit inadvertently) could nasty surprises at trial.
This is one reason many litigants fail at trial. Not because they are deliberately dishonest (although that does happen) but because they have come to believe what they say is true. It can be the process of investigation and questioning that leads to this belief.
LINKS TO RELATED POSTS ON THE BLOG
- Litigators must know about credibility
- Witness statements: more about credibility
- The judge can accept some of the evidence some of the time
- The questions you ask will determine the answers you get