It is worthwhile anyone involved in assessment of witness evidence reading the post by Julia Shaw in Scientific America today: Do you suffer from memory blindness. The post refers back to the altered witness statements in the Hillsborough enquiries in the UK.
“Someone can tamper with your statement about an event you witnessed—and you might come to believe the altered version is what you actually saw”
Julia looks at research carried out at the University of California. A study carried out had interesting results:
“They found that it is possible that changed statements can go unnoticed by the person who gave the original testimony, and may even develop into a false memory that accommodates the false account”
THE TESTS: PARTICIPANTS CAN IDENTIFY ALTERATIONS AS THEIR OWN EVIDENCE
The participants were shown a slideshow of a crime and their responses written down. Random parts of the responses were changed and the participants shown this misinformation, as if if were there response, 15 minutes later when being asked follow up questions. 15 minutes later the same questions were asked.
The majority of participants failed to notice that their responses had been altered and changed their answers on the second test to be in line with the false responses.
Another study asked participants to watch a slideshow and thereafter identify the criminal from photos. They were later told that they had picked a different person to that originally identified. 53.7% of participants changed their answer as a result of this false information.
This has been looked at before in Witness Statements: Witness Evidence & Psychology: Guidance from the East . The words used in asking a question impact upon the answers. Questions were asked of 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 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 task of obtaining witness evidence 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
- Hillsborough & witness statements 1: the initial process and subsequent amendments.
- Hillsborough & witness statements 2: the early mixing of fact and opinion.
- Witness statements & Hillsborough 3: confirmation bias at its worst