Why do witnesses lie?
Why Do Witnesses Lie?
or
The Inevitable Fallibility of Memory
All trial lawyers will at some stage be faced by a hostile witness recounting a version of events completely at odds with his or her witness’s version. The natural reaction is to think that someone (hopefully the hostile witness) is lying. However, modern psychological research suggests in fact, it is more likely that both witnesses are telling the truth, as they honestly believe it to be.
The Fallibility of Memory
We should start by reminding ourselves that in a civil trial, we are generally delving into witness’s memory of events that occurred some years before.
Modern psychology will tell you that most people’s recollections of events are highly unreliable. They change significantly over time. This occurs almost naturally with most people. The prevailing wisdom now is that whilst a person might clearly remember a significant event (like 9/11, or the result of an election) their perception of their own relationship with that event is subject to significant change over relatively short periods of time.
The Phenomenon of “Flash-Bulb” Events
There have been many studies done into what are known as “flash-bulb” events. 9/11 was one such event, and it precipitated one of the largest studies of this phenomenon. Thousands of people were sent a questionnaire in the days after 9/11, asking where they were, what they were doing, and who they were with when they found out about 9/11.
The same questionnaire was sent out to the same people a month after 9/11. This was repeated one year, two years and ten years after the event. The results clearly showed most people’s recollections altering significantly over short periods of time, and continuing to evolve over the longer periods.
The Certainty of Recollection
After the ten year questionnaire was finished, the subjects were asked to compare their responses to the earliest (and logically, the most accurate) questionnaires with their current recollections. Almost invariably, they were convinced that the current recollection was totally accurate. Irrationally, many were convinced that errors must have been made in the earliest questionnaire.
It is that certainty or confidence in recollection that is the most interesting point.
The Importance of Contemporaneous Evidence
Most trial lawyers have at some time been involved in cases where the competing recollections of witnesses have been at issue. Witnesses have recollections of the same events that are completely at odds with those of other witnesses. Surely someone must be lying?
The research suggests otherwise. As the 9/11 study referred to above shows, people’s memory simply changes over time. But people’s faith in their memory is generally strong. The outcome is that a witness can have a completely inaccurate recollection of an event, but can also be completely honest in believing that their inaccurate recollection is the gospel truth.
This emphasises the importance of contemporaneous evidence over people’s recollections. However adamant someone is that their recollection is the truth, a contemporaneous written document is many times more likely to be accurate. This is something that lawyers need to bear in mind whilst briefing witnesses. Witnesses shouldn’t be allowed to put pen to paper (or have their lawyer do it for them) before they have been thoroughly grounded in all relevant and available contemporaneous documents. And be very cautious about thinking or calling someone a liar.
Recommended Listening
Below is a link to two excellent podcasts by Malcolm Gladwell on this point – highly recommended listening.
http://revisionisthistory.com/episodes/23-a-polite-word-for-liar-memory-part-1
http://revisionisthistory.com/episodes/24-free-brian-williams