MEMORIES, WITNESS STATEMENTS AND EVIDENCE: A SCIENTIFIC VIEW: WHAT EXPERTS WISH YOU KNEW
I have written before about the issue of memory and witness evidence. I have also written about the work of Dr Julia Shaw on this subject. More guidance can be found in her article in the Scientific American What Experts Wish You Knew about False Memories.
In the article Dr Shaw asks top memory researchers to comment on what they wish everyone knew about their field. There is plenty of useful information for litigators. However I just want to concentrate upon the comments of one of the experts feature – Annelies Vredevelt.
BE CAREFUL ABOUT HOW YOU ASK QUESTIONS ABOUT A MEMORY
“What I’d like everyone to know is how (not) to probe for a memory of an event.
When you are trying to get a story out of someone, be it about a witnessed crime or a wild night out, it seems natural to ask them lots of questions about it. However, asking closed questions, such as ‘what was the color of his hair?’ or worse, leading questions, such as ‘he was a redhead, wasn’t he?’ often leads to incorrect answers.
It is much better to let the person tell the story of their own accord, without interrupting and without asking questions afterwards. At most, you might want to ask the person if they can tell you a bit more about something they mentioned, but limit yourself to an open and general prompt such as ‘can you tell me more about that?’
Research shows that stories told in response to free-recall prompts are much more accurate than stories told in response to a series of closed questions. So if you really want to get to the bottom of something, restrain yourself and don’t ask too many questions!”
The fact that the very act of taking a witness statement can have a major impact on the evidence is recognised in Gestmin SGPS -v- Credit Suisse (UK) Ltd  EWHC 3560.
“20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness’s memory has been “refreshed” by reading documents. The documents considered often include statements of case and 10 other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to record. The statement may go through several iterations before it is finalised. Then, usually, months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.”
TAKING STATEMENTS WITH AN “AGENDA”
It can be seen that there was clearly an agenda when those statements were being taken. The questions were loaded, not open ended, they were working towards a pre-existing view of what happened.
In a similar manner the dangers of having a set “checklist” of questions is clearly seen in the judgment in the contempt of court case of Motor Insurers Bureau –v- Shikhell  EWHC 527 (QB).
THE FACTS IN SHIKHELL
A contempt of court action was being brought against Mr Shikhell for false statements he made in a personal injury action. He had given evidence that he could not play football and was severely disabled. In fact he played regularly, had played every match for his team that season and had been “man of the match” several times. The proceedings were also brought against his father and two “character witnesses”, a neighbour and a team mate.
THE WAY THE STATEMENT WAS TAKEN
The neighbour who gave evidence had made a statement that Mr Shikhell was “unhappy because he could not play football as he did before.” There was considerable debate about what this meant – that he was playing to lower standard – or could not play at all?
The judge considered the way that the statement was taken
“I am also mindful of the evidence I have heard from [a trainee solicitor] She was a trainee solicitor in her first seat, a matter of weeks into that seat, when she was asked by her principal to proof Mrs Glancy and Simon Fennell. She took their statements over the telephone and she was provided with a list of questions, drafted by a more senior fee earner, to use when discussing the case with Mrs Glancy and Simon Fennell. Interestingly the drafting of perhaps the most crucial question is ambiguous: “Did they play football with James? If so, has he expressed sadness at not being able to play to the same level and ability as before the accident?” [22/942]. The question is ambiguous in that it might suggest that James Shikell was in fact playing football, albeit not at the same level and ability as before the accident, or it might suggest that he is not playing at all. A straightforward question asking the witness to confirm whether or not, to his or her knowledge, James Shikell was playing football might have averted the problems which subsequently arose. A witness who claimed to have the requisite knowledge should then have been asked the basis for that knowledge. I make no criticism at all of [the trainee] who was undoubtedly doing her best and following the list of questions provided to her. However, she was plainly very inexperienced. The drafting of the statement is extremely poor in that it fails to tie matters to particular dates and contains significant amounts of opinion evidence which is inadmissible for a witness of fact. It is undoubtedly the case that the drafting of the Witness Statement reflects the questions asked in that list.”
GUIDANCE FROM THE EAST
I have recommended before the article by Ula Cartwright-Finch and Alex Waksman of Herbert Smith Freehills on the accuracy of witness statements and the psychology of investigations.
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.
AND WHAT DOES THIS HAVE TO DO WITH CIVIL LITIGATION?
The basic answer is – everything. Whilst the criminal, and family, courts have paid some regard to the fallibility of memory it plays virtually no part in the training or day to day practice of the civil lawyer. Until that is, a witness is cross-examined about a witness statement that “their lawyer has drafted” – and (oftentimes) blames the lawyer for any inaccuracies.
A UNIVERSAL ISSUE IN EVERY TYPE OF CIVIL COURT
The major mistake would be to think that this only applies to matters such as allegations of sexual abuse. The issues here are universal.
In a judgment given n the Companies Court Mr Registrar Briggs( in Cusack -v- Holdsworth  EWHC 3084 (Ch).) said:
“… the fallibility of the memory has to be taken into account when determining issues of fact. Memory is an active process, subject to individual interpretation or construction. Each witness will have produced their witness statements many months ago, will have been asked to read or re-read their statement and review documents before giving evidence in court. There is high level commentary that reveals that this process reinforces a memory, even if the memory was false to begin with, and may cause a witness’s memory to be based not on the original experience of events but on the material which has been read and re-read.”
- In-House course on witness statements and civil procedure.
- Witness statements: When things go wrong – blame the solicitor.
- Witness statements: alteration and the fallible memory: a scientific study.
- Witness statements and Hillsborough: confirmation bias at its worst.
- Why lawyers have to know about the fallibility of memory (even company lawyers)
THE GESTMIN TEST
- Witness evidence, reliability & credibility: Why everyone should read Gestmin
OTHER POSTS ON WITNESS CREDIBILITY
This issue is also discussed in a number of other posts.
- Witness statements and witness credibility: getting back to basics
- Appealing on the judge’s findings of facts: a trial is not a dress rehearsal but “the first and last night of the show”.
- Assessing the credibility of a witness: it is a matter of communications.
- Reconstruction and recollection: honest witnesses get things wrong: which witness will be believed.
- The Central Bank of Ecuador case revisited: the Ocean Frost approach.
- When a witness says different things in different witness statements: don’t bank on winning.
- Reliability of witness evidence: honesty is not the same as reliability
CASES WHERE THE GESTMIN APPROACH HAS BEEN CONSIDERED (AND APPLIED)
- R (British American Tobacco) -v- Secretary of State for Health  EWHC 1169 (Admin)
- Barker -v- Baxendale Walker Solicitors  EWHC 664 (Ch)
- Sloper -v- Lloyds Bank PLC  EWHC 483 (QB)
- Dunhill -v- W Brook & Co  EWHC 165 (QB)
- Royal National Institute for Deaf People -v- Turner  EWHC 3301 (Ch)
- Mainland Digital Communications Ltd -v- Chaddah  EWHC 1580 (QB)
- Foulser -v- The Commissioners for Her Majesty’s Revenue & Customs  UKFTT 220 (TC)
- Lavis -v- Nursing & Midwifery Council  EWHC 4083 (Admin)
- Le Puy Limited -v- Potter  EWHC 193 (QB).
- Prescott -v- The University of St Andrews  CSOH 3
- UBS -v- Kommunale Wasserwerke  EWHC 3615.
- Hirtenstein -v- Hill Dickinson LLP  EWHC 2711
- Virulite LLC -v- Virulite Distribution Ltd  EWHC 366 (QB)
- Watson Farley & Williams -v- Itzhak Ostrovizky  EWHC 160 QB
- East England Schools CIC -v- Luci Palmer  EWHC 4138 (QB)