Expert Witness Journal Dec 24 - Journal - Page 66
Total Recall – Exploring the
issues around witness memory
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.”
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.
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.
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.
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).
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.
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
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
the interview – how many years has it been since the
