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Dishonesty Uncovered – is our memory deceiving us? (Part 3)

Posted on 30 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 London, Philippa 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.

The Way Forward

In our first and second articles in this series, we have seen that assessing the truthfulness of oral evidence will always be a difficult issue. However, it is an issue that can be much improved through raising awareness and educating both those who assess evidence and those who take it. Important strides are already being made in this respect in both the civil and criminal spheres, but more remains to be done.

In the civil context, judges are increasingly cognisant of the limits of human memory, most classically reflected in the judgment of Mr Justice Leggatt in Gestmin SGPS S.A. v (1) Credit Suisse (UK) Limited and (2) Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm), in which he recognised the "unreliability" of human memory, and its malleability, with memories "being constantly rewritten whenever they are retrieved". Although the judgment demonstrates a thorough understanding of the science of memory, such understanding is not necessarily as widespread as it could be. As Mr Justice Leggatt himself reflected, "I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony".  

In this respect, an important step forward was taken with the introduction of witness evidence reforms last year in the Business and Property Courts in England and Wales. Those reforms expressly recognise that human memory is not a fixed mental record but "a fluid and malleable state of perception" that is "vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration". The reforms require that witness statements are prepared so as to "avoid so far as possible any practice that might alter or influence the recollection of the witness".

In the criminal context, some jury instructions now include guidance that inconsistent accounts do not necessarily make them untrue. An example jury direction within the Crown Court Compendium in England provides that "just because W has not given a consistent account does not necessarily mean that W's evidence is untrue. Experience has shown that inconsistencies in accounts can happen whether a person is telling the truth or not". Similarly, jury instructions in New York invite the juror to consider whether any inconsistencies they may have heard are "significant inconsistencies related to important facts, or instead [are] the kind of minor inconsistences that one might expect from multiple witnesses to the same event".

Whilst these developments are to be welcomed, more needs to be done to fill in the depth of understanding that is required to provide people with a full appreciation of the factors at play. Detailed explanation and education is required so that ingrained beliefs, in many cases developed over a lifetime, can be undone. Without a detailed understanding of how human memory functions, it is difficult to see how, to use the example above, jurors in New York can assess what inconsistencies "one might expect" without falling back on those ingrained beliefs.

In Dauphin County in Pennsylvania, efforts have been made to fill this gap through more detailed jury instructions which have been developed by Judge Jeannine Turgeon, Dr Elizabeth Loftus (an eyewitness and memory expert), and Professor Elizabeth Francis (an expert in psycholinguistics). Those instructions not only set out the factors that the juror should consider when assessing eyewitness testimony, but also explain what the scientific research shows in relation to each of those factors. It is to be hoped that such instructions and guidance may come to be adopted more widely. 

Importantly, however, legal proceedings are not only about those who assess witness evidence. The requirement for a deeper understanding of memory applies equally, if not more so, to those who take evidence. Those who interview witnesses, whether investigative authorities or legal representatives, need to understand these issues, so that evidence can be taken in a way that maximises the recollection of accurate details, and minimises the adoption of inaccuracies. That requires in-depth training, so that takers of evidence fully understand, for example, the impact that the questions they ask can have on a witness's recollection. (For example, the study explored in our second article, where witnesses were asked how fast the cars were going when they "smashed" into each other, which produced a much higher estimate of speed from witnesses than when the interviewer used the word "hit"). If the process of taking witness evidence is undertaken properly, that will in turn make the job of assessing evidence that much easier.

Ultimately, the most reliable indicator of truthfulness will remain the assessment of oral evidence against any corroborating evidence. This has been seen most significantly through the advances in DNA testing, which have formed a mainstay of the work carried out by the Innocence Project, including the Ronald Cotton case discussed in our first article . Documentary evidence also plays a key part and it may be that in years to come, oral witness evidence takes a back seat to documentary and other real evidence as we move forward in an era where many aspects of our lives and communications are documented, whether through emails, phone records or CCTV. The recent witness evidence reforms in the civil courts were preceded by the Implementation Report of the Witness Evidence Working Group which commented that "the nature and volume of documents generated by ordinary commercial activity has changed out of all recognition. The need for and importance of factual witness evidence at trial in business disputes correspondingly should have diminished, for most if not all issues in most cases". In essence, the documents should 'speak for themselves'.

However, there are limits to such documentary evidence which may not always tell the 'full picture'. For example, it may be necessary for a witness to explain the context around a particular email or text message. There may be activity off-camera in the CCTV evidence which needs to be explained. In addition, there will remain other contexts, most notably the criminal and family litigation spheres, where conflicting oral testimony may be the only evidence. In those contexts, where decisions carry real implications for the personal lives of those concerned, the need to ensure that misconceptions around memory do not prejudice the outcomes of legal proceedings remains at its strongest.

Over the course of our series of articles, we have seen how widely-held beliefs about memory are often not supported by scientific research and are, in some cases, undermined by it. We have looked at how, when we encode experiences, we do not store a direct copy of the experience itself, but instead take away our interpretation of that experience based on how it is relevant to us. When we retrieve memories, we do so in a (re)constructive manner, and do not recall the same event in the same way each time it is recalled. It is these memory processes which explain why inconsistencies (both between witnesses and within a single witness' account over time) can naturally occur, and do not necessarily indicate dishonesty.      

Nevertheless, the common misconceptions surrounding memory stubbornly persist. Part of the reason for this may be the fact that there is no straightforward answer to the issue. As we have discussed, there is no litmus test for assessing oral evidence and there will always be an element of human judgement involved. It is this which makes the need all the stronger for greater awareness, clearer guidance, and more training at all levels of the legal system, so that that human judgement can be exercised with the benefit also of the science that underpins our understanding of how memory actually functions.

In this way, it is hoped not only that the grave miscarriages of justice that we saw at the beginning of our series can be avoided, but that the overall collection, presentation and assessment of witness testimony can be improved in a way that furthers the wider interests of justice.

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