I am one of the few people who can remember the occasion of their birth. On November 23 1934, my granny received a telephone call. Following this she announced to me with great delight that I had been born at 4pm. You may doubt that, but I have a strong physical memory of the whole episode. I can even remember where I was sitting to receive this excellent news.
It may help if you had some further detail. My elder brother was also born on November 23, but in 1932. He had been taken to my granny’s house next door to celebrate his second birthday while my mother was in labour. Of course I was to be told about the famous telephone call many times, and it somehow converted into a visual memory in which I had swapped places with my brother.
We often say:”I saw it with my own eyes.” But it would be truer to have claimed that we saw it with our own mind. What we see, attend to or notice varies according to many different factors – from attitudes and expectations to what we have had for breakfast that morning. Why, I wonder, is the most invisible object in any room the screwdriver I put down two minutes ago?
But our ability to see and remember correctly is crucial to the legal process because so often it depends on witnesses. And Jewish law is very wise in insisting on at least two witnesses. Even that doesn’t guarantee true testimony, but it improves the odds.
A rather disturbing experiment illustrates the potential problems. In this study a number of witnesses, who believed they were watching a crime taking place, were asked to attend an identification line-up. A substantial majority of witnesses identified the criminal, although he or she was not actually present in the line-up. Subsequently when the witnesses were told that a particular person had confessed 60 per cent changed their identification to that person. Significantly, about a quarter of real-life convictions, subsequently overturned by DNA evidence, involve a false confession.
An important factor is that memory decay occurs rapidly shortly after the incident. To counter this, the University of Abertay, (Dr Fiona Gabbert et al), devised a self-administered questionnaire for witnesses to complete at an early stage. It produces more than a 40 per cent increase in forensically relevant and accurate information.
Perhaps the most frequently encountered danger point is when a witness is questioned by the police. Leading questions or other remarks made by the police can alter the memories of a witness. Ideally, although perhaps impractically, the most accurate testimony is that which has been written down before any discussion has taken place. And every time the mistaken evidence is repeated, either by the interrogator or the witness, it becomes more fixed in the memory. Similarly, discussion between witnesses can lead to false memories. There does not seem to be a good correlation between the confidence of witnesses and the accuracy of their testimony. This is important because the confidence of a witness, including confidence in a mistaken memory, is a powerfully persuasive factor.
Although witnesses remember dramatic events well, they can be unreliable on detail. For example, in the assassination of the Swedish politician Anna Lindh the witnesses present all agreed that the murderer was wearing military clothing, but video camera pictures showed that he was wearing sports clothes. It may be no coincidence that she had criticised the war in Iraq, and new settlements in Israel. Expectations and the sharing of stories among witnesses may have been active here.
There are of course experts in the field but it is surprising how few psychologists are aware of the basic pitfalls of witness testimony. If you have read this column with care you may already be ahead of the game.
When it was suggested to Gerald Butler QC that it might be in the interests of justice to introduce memory researchers as expert witnesses he poo-poohed the idea on the grounds that juries could be relied upon to use their common sense to judge the reliability of witnesses. Unfortunately, it is precisely common sense which has proved itself unreliable in this matter.
Anyone might be involved in a road accident where measurement of blame depends on witness testimony. Most of these cases are decided on a balance of probabilities. But the evidence suggests that a judge or jury’s assessment of probability is likely to be faulty.
I will not easily forget a quarrelling married couple I was counselling some years ago. Even if the incident they wanted to discuss had occurred just that afternoon they would give me, quite sincerely, two quite different and inconsistent accounts. The capacity of emotion to distort perception is remarkable. Nor am I surprised that the synoptic gospels often give accounts which can conflict in their detail. I am surprised that they do not differ more. Perhaps people used their memories more accurately in those days.
It would be interesting to hear about people’s experiences of false memories. I can’t be the only one!