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Dishonesty Uncovered – is our memory deceiving us? (Part 1)

Posted on 16 November 2022

This article is part of our Dishonesty Uncovered series. Dishonesty is a core component of fraud, which globally is estimated to cost a staggering £3.89 trillion each year – and is on the rise. In the UK alone, the cost of fraud to business is estimated at £130 billion. But what do we know about dishonesty and is it possible to learn how to spot it?

Widely held beliefs about what dishonesty looks and sounds like are routinely debunked by science. Our biases – whether they be conscious or otherwise – can cloud or impede our ability objectively to evaluate evidence. This presents a particular problem when it comes to witness testimony.

In conjunction with Professor Mark Howe and Dr Lauren Knott of the Centre for Memory and Law at City, University of LondonPhilippa Rees, Gareth Minty, Sofia Berggren and James Watson explore over a series of articles what science tells us about relying on memory and how this intersects with the perception of dishonesty.

As Lord Justice Browne has said, "Observation and memory are fallible, and the human capacity for honestly believing something which bears no relation to what really happened is unlimited".1 However, despite 40 years having passed since Lord Justice Browne's comments, the fallibility of memory is unfortunately not as widely understood as it should be. All too often, we rely on 'received wisdoms' to assess whether someone is telling the truth, believing that inconsistencies within a witness' account or between multiple witnesses to the same event, mean that they are not telling the truth.  

However, once we scratch the surface of the science of memory, we see that such reliance can be misplaced and that, in fact, some inconsistencies may be accounted for by the normal functioning of human memory.

As we delve further into an understanding of memory, the conflation of honesty with truth comes to be challenged at a fundamental level, and we see that it is possible for even an unreservedly honest witness to be recounting events inaccurately.

In this first article, we will look at the grave consequences that can result when the fallibility of memory and its vulnerability to being altered are not fully understood, before going on to unpick some of the common misconceptions surrounding memory.

A miscarriage of justice

In November 1987, in North Carolina, USA, Ronald Cotton was convicted of the rape of Jennifer Thompson-Cannino and one other victim. The evidence against him rested overwhelmingly on Ms Thompson-Cannino's identification of him as the perpetrator. She had originally identified him in a photo array, having been shown polaroid mugshot photos. The other victim could not make an identification. After the photo array, investigators told Ms Thompson-Cannino, "You did great". Both victims were invited back to view a physical line-up in which the only line-up member who had also been in the photo array was Ronald Cotton. Ms Thompson-Cannino identified Cotton again, although the second victim still could not make an identification. On the second identification, the detective told Ms Thompson-Cannino, "We thought that might be the guy. It's the same person you picked from the photos."2

Ms Thompson-Cannino went on to testify at two trials about her absolute certainty that Ronald Cotton was her assailant, even after being presented with a person at the second trial who was later proven to be the real perpetrator. Ronald Cotton was sentenced to life plus 54 years.  

It was not until the spring of 1995 that Cotton was able to secure DNA testing of evidence in the case. That testing showed no match to Cotton but did show a match with the individual who had been presented at the second trial and who had earlier confessed to the crime to a fellow inmate in prison. On 30 June 1995, Ronald Cotton was officially cleared of all charges and released, having served 10 and a half years in prison.  

Stories such as this are sadly not isolated. The Innocence Project website contains numerous cases of miscarriages of justice, approximately 69% of which were caused by eyewitness misidentification, with many individuals spending years in prison for crimes they did not commit.

In many of these cases, there was no malice at play. Often the eyewitness genuinely believed, and in many cases was convinced, that they had correctly identified the true perpetrator. For those who later discover they were wrong, there is often deep remorse and guilt. Jennifer Thompson-Cannino considers that "the standard way eyewitness evidence was collected had failed me, and because of that, I'd failed, too"3. She and Roland Cotton met for the first time after Mr Cotton's exoneration and are now good friends, travelling around the US working to spread the word about wrongful convictions and reforms. 

Instead, what was at play was a less malevolent force – the natural fallibility of human memory, or more accurately, our failure to recognise and make allowance for the fallibility of human memory.  Although memory is in one sense at the root of the problem, it is in reality our failure to recognise its limitations that is the cause of the miscarriages of justice. If we were to assess evidence based on recollection with a deeper understanding of how memory operates, and in particular if the evidence was taken in the first place with the benefit of that deep understanding, such miscarriages of justice would be much less likely to arise4.

Memory was not 'designed' for the legal process

The starting point is to remind ourselves that memory was not 'designed' for the legal process. It evolved to help us to understand experiences, to interpret the world around us and to make predictions about the future. Memory enables us to perform everyday functions – remembering how to make a cup of tea, where the car is parked, how to get home. We can predict roughly what our day at the office will be like tomorrow, because we can remember our day at the office today.

The way that our experiences are encoded and stored in our memory, to later be retrieved, reflects this everyday functioning of memory. We do not store the equivalent of a video recording in a library catalogue, to be retrieved and replayed on demand. Indeed, if memory did work in that way, it would prove too cumbersome and inflexible to perform its intended function.

Instead, when we encode experiences, we do so through the lens of knowledge and expectation derived from prior experiences. What we already know and have stored in our memory directs our attention to the specific aspects of the current experience that we think are important when understanding what that experience means for us in the here-and-now, as well as possible consequences later down the road. Thus, what gets encoded and stored in memory is not a direct copy of the experience itself, but rather, our interpretation of that experience and how it is relevant to us.

It is this encoding process that explains why witnesses to the same event may have different accounts. Although what they witnessed was the same, what they took away from it (what they encoded) is personal to them, and dictated by their existing knowledge and experience.

Inconsistencies between witnesses may not be a sign of dishonesty

Once we begin to understand this, we can see that some inconsistences between multiple witness accounts will occur and are in fact to be expected. Although our natural tendency may be to view such inconsistencies with suspicion, and to treat them as evidence that one of the witnesses may not be telling the truth, or at the very least may not be recalling matters accurately, such a viewpoint may in fact be misplaced. On the contrary, it is the identical recollection that should perhaps arouse more suspicion.

In fact, a study examining the consistency between truth tellers and liars found that the liars were more consistent between themselves than the truth tellers5. In the study, individuals were paired up into "truth-telling pairs" and "lying pairs", with the truth-telling pairs being asked to recount an actual event that took place between them (in this case, a lunch), and the lying pairs being told to invent that they had had lunch together on a certain day (essentially, to fabricate a story together). Each pair member was then interrogated separately on two different occasions. The study found that the lying pairs were more consistent between themselves than the truth-telling pairs.

The study acknowledges that one possible explanation for the results may be that the lying pairs were given time to collude, whereas the truth-telling pairs were not given any opportunity to discuss and recapitulate what happened during the lunch. However, as the study argues, it may be fair to say that this would also be reflected in a real-life situation – liars may be more likely to coordinate their "story" in preparation for an interview as they may feel that it is crucial to plan and discuss together the facts of their fabricated story so that they ‘‘get their stories straight’’. By comparison, truth tellers may be less likely to prepare for the interview, perhaps because they believe that the truth will shine through - the "illusion of transparency"6.

The complexity of human memory

It can therefore be seen that the 'received wisdom' that inconsistent witnesses must be lying is not supported by the scientific understanding or research. In some cases, the opposite may be true and it may be the consistent witnesses who are not telling the truth. However, the complexity of human memory is such that it would of course be too simplistic to seek to draw any generalised conclusions. What we can do is to avoid jumping to false conclusions caused by an inadequate understanding of memory. When we understand how memories are encoded and that inconsistencies may arise naturally, and are alive to the possibility that dishonest witnesses may collude with a view to 'getting their stories straight', we put ourselves in a better position to assess any inconsistencies that do arise.

Similar issues arise when we look at inconsistencies within a single witness' account, a subject that we will explore in more depth in our next article, when we consider how memories are retrieved, and look at the risk of cross-contamination and how post-event information can be incorporated into the 'original' recollection.

Judicial Reflections, Current Legal Problems 1982, 5
Innocence Project Report – Re-evaluating lineups: why witnesses make mistakes and how to reduce the chance of a misidentification
Picking Cotton, St Martin's Press, 2009
Howe, M. L., Knott, L. M., & Conway, M. A. (2018). Memory and Miscarriages of Justice. Abingdon, UK: Routledge; and Howe, M. L., & Knott, L. M. (2015). The fallibility of memory in judicial processes: Lessons from the past and their modern consequences. Memory, 23, 633-656.
Granhag et al, 2003
Gilovich, Savitsky, & Medvec,1998

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