Evidence given orally by an individual (a witness) was, historically, the main way to prove facts in the courts. Witness evidence has been the subject of recent reform in civil litigation with the introduction of Practice Direction 57 AC, but there are times its status feels under attack.
In the classical passage from Gestmin, Mr Justice Leggatt (now of the Supreme Court) said: “the best approach for a judge … is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said … and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.”
However, (as Mr Justice Leggatt recognised) witness evidence still has a critical role to play in litigation. A recent decision in Jaffé & another v Greybull Capital LLP & others [2024] EWHC 2534 (Comm) re-emphasised that whilst documents can be taken as the basis for a compelling argument, they still must be tested in their full context.
In this series, produced in collaboration with CKITT (specialist investigators who provide training on advanced interviewing techniques), we explore issues with evidence, including the very issues with witness memory and recall that motivated the judge in Gestmin, and strategies for effective collection of witness evidence (highlighting techniques that might also be counterproductive).
A trip down memory lane
Many years ago, I (Stacie) held a Saturday job at a well-known retailer. During one shift, someone came into the store on a bike and stole clothes. This was right in front of me. I was asked a little while later to describe that individual to the security guard. I duly did (with great detail). However, it turned out later (thanks to CCTV footage) that my description was wildly inaccurate. I felt a fool! That ‘memory’ has stayed with me throughout my life as a lawyer, especially when interviewing witnesses.
Forgetting is inevitable (I hear you say), memories really do fade over time, and errors in recall are likely to occur. Sometimes it will be a valid answer (even to the witness’ credit) to say, simply, “I don’t remember”. It is the inevitability of imperfect memories and errors (like mine) that lawyers need to have at the forefront of their minds when interviewing witnesses.
Common influences on memory include:
1. Storage – memory is not stored and reproduced like a video recording (trauma, interruptions, and other influences all affect how memory is processed, stored and available for recall). Crucial aspects of an event may never reach long term memory.
2. Filling in the gaps – as time goes by detail will inevitably be lost. It is possible that, if a person has experienced similar situations, they will rely on memories of those to substitute information (known as semantic memory) and this will be exacerbated every time the memory is recalled (ask yourself before interview – how many years has it been since the event(s) took place and how many times has the witness been asked the same questions over that time?).
3. Bias – attitudes and beliefs really influence how we experience an event and how we retrieve our memories of it (this can be particularly potent in the case of strongly held beliefs), which emphasises that the process of recalling an event has an important element of reconstruction based on existing knowledge and beliefs.
4. Suggestibility & guessing – it is hard work to remember detail. People can be influenced by others, particularly authority figures (willingness - even desire - to agree with someone senior or to fill a memory gap with information when unsure might impact the interview process), which can be an issue when interviewing, particularly vulnerable people.
If lawyers are not alive to these issues from the outset, they will likely surface for the first time under the lens at trial.
The potential for biases where witnesses have a stake in a version of events, the unreliability of memory when it comes to recalling past beliefs and the considerable interference with memory that may be introduced by the process of preparing for trial are all extensively explored in the case law.
Judges frequently acknowledge that the passage of time can cloud or distort memory and accept that some witnesses have better (or less fallible) . Against this backdrop, what remains for witnesses?
Lord Justice Popplewell in his fascinating speech Judging truth from memory: the Science acknowledged there are many cases which turn upon disputed recollections that written records cannot resolve: “the Court’s task is often to decide what happened in circumstances where the documentary record is silent or inconclusive on the critical points.” Emphasising that ‘where the contemporaneous record of the facts is clear and unambiguous, cases which turn on those facts will often settle.”
Christie Knowles of CKITT Investigation & Training trains lawyers in advanced interviewing techniques and notes “adverse influences on memory can be mitigated by an interviewer skilfully ‘managing a conversation’ to gather untainted reliable information from a witness using an ethical and reflective approach that will stand up to scrutiny.”
There is clearly a role for witness evidence. However, it is essential for interviewers to know more about memory and to use that knowledge to develop advanced interviewing skills. All lawyers should be more knowledgeable about the science of memory. We will continue to explore these issues next week. Part 2 will look at the Science of Memory and consider key points lawyers need to know.
This article was written by Andrew Walls and Stacie Bourton in the Burges Salmon Dispute Resolution team, and Christie Knowles of CKITT.