Expert Witness Journal Dec 24 - Journal - Page 68
Court Embraces Science of
Memory to Assess Conflicting
Evidence of Equally Honest Witnesses
How does a court decide which of two "equally patently honest and truthful witnesses" to believe?
This was the question faced in the recent case of Jaffe & another v Greybull Capital LLP
& Others [2024] EWHC 2534 (Comm), where the central issue was whether fraudulent
misrepresentations had been made at a meeting almost eight years ago. The usual approach in
such cases is to fall back on contemporaneous documents (where they exist). However, this case
demonstrates that even contemporaneous notes can be vulnerable to the fallibility of memory.
The case was described by the judge as "in some respects
a classic one" in that it involved a clash of recollection
between two sets of witnesses as to the content of oral
statements made at an in-person meeting several years
ago. However, what made the case more unusual was
the fact that the two witnesses whose recollections
clashed had both been found by the judge to be excellent witnesses, whose evidence she had no hesitation in accepting as honest and truthful; "I have no
doubt the individual witnesses' truths – in the sense of what
they either do (now) recall or what they honestly think they
recall – are simply different."
in our memory directs our attention to the specific
aspects of the current experience that we think are
important when understanding what that experience
means for us in the here-and-now, as well as possible
consequences later down the road. Thus, what gets
encoded and stored in memory is not a direct copy of
the experience itself, but rather, our interpretation of
that experience and how it is relevant to us.
As Popplewell LJ explained in the COMBAR lecture,
"….contemporaneous documents….may be produced near the
time, but they are produced after the memory has been encoded,
and if there is an encoding fallibility, which there may be for
all these different reasons, it infects the so called contemporaneous record every bit as much as other reasons for the
fallibility of recollection which affect it at the storage and
retrieval stage".
This reflects a theme that we discussed in depth in our
Dishonesty Uncovered series - that even an unreservedly honest witness can be recounting events
inaccurately.
It was for these reasons that the judge concluded that
whilst the contemporaneous note could be taken as
the basis for a compelling argument, "it itself must be
tested against the facts in the full context". That included
considering what was common to both parties in
terms of knowledge, but also what (if anything) the
parties were each focusing on which did not get communicated to the other side, which might affect both
encoding and recording or which might affect how
particular individuals expressed themselves.
The conflicting accounts in this case could therefore
not be resolved simply by assessing the credibility of
each witness. There was, however, a contemporaneous note of the meeting, which had been written up
shortly after the meeting and was based on a
manuscript note taken at the meeting by one of the
witnesses.
The court's general approach to fact-finding is to place
greater reliance on contemporaneous documents
than on witnesses' recollections, given the issues
around the fallibility of memory – an approach articulated in Gestmin SGPS SA v Credit Suisse (UK) Limited
[2013] EWHC 3560 (Comm). One way of resolving
the case would therefore have been to conclude that
the contemporaneous note trumped the witnesses' account of events. However, as the judge pointed out,
this would neglect to take into account the possibility
"of a faulty impression or recollection being encoded at a very
early stage and recorded in that document".
The judge therefore considered a number of factors,
including the motives, the inherent probabilities and
the counterfactuals. Having done so, the judge
concluded that the contemporaneous note was "in the
critical respect (entirely innocently) inaccurate…. It is likely
that coming to the meeting with Wirecard's discussed agenda
in his mind Mr Hilz encoded and interpreted what was said
in a way which deviated slightly but significantly from what
was said and that in recording his recollections that small but
significant deviation from accuracy became entrenched."
The judge referred to the lecture given by Popplewell
LJ to COMBAR in 2023 - "Judging Truth from
Memory" - which explored important points surrounding the science of memory and how memories
are encoded. This is again a theme we explored in the
first of our series of articles, in which we explained that
when we encode memories, we do so through the lens
of knowledge and expectation derived from prior
experiences. What we already know and have stored
EXPERT WITNESS JOURNAL
The implications for how contemporaneous documents will be viewed in future cases are interesting.
Some may argue that all contemporaneous records
will inevitably reflect the understanding and perception of the note taker and may contend that differing
records are not necessarily attributable to "encoding"
errors. It is a difficult and complex area that must be
carefully navigated and which leads on to a further
66
DECEMBER 2024
