By Dr. Ken Broda-Bahm:
My computer and I are currently fighting. In my Dell laptop's fragile state, even the simplest actions can result in a freeze, or one of those inscrutable Microsoft messages, like "the instruction at 0x00630522 referenced memory at 0x04d92670 and the memory could not be 'read'"(as if that information helps the typical user: “Oh, that sector…I’ll get right on that”). In the case of my computer, it may well be that the sheer level of software, security, and virtual networking infrastructure is outstripping the available memory. In litigation, memory problems plague the witness as well, and in that context, it may also be that the sheer level of psychological, legal, and communication demands end up outstripping our limits.
New research on popular beliefs about memory (Chabris and Simons, 2011) sheds some light on the problem. According to the first large scale national survey on intuitive beliefs about memory, we tend to see memory as more objective, more accurate, and more durable that it actually is. While these misperceptions undoubtedly influence jurors and other fact-finders, in this post I want to look at the implications of faulty memory beliefs on that pillar of the trial: the fact witness.
Daniel Simons and Christopher Chabris (2011) conducted a telephone survey with 1,500 respondents focusing on agreement or disagreement with a number of specific beliefs about the way memory works. What they found is that substantial portions of the population, majorities in many cases, have beliefs about memory that are demonstrably false. For example:
Approximately two-thirds of respondents feel that memory is like a video camera that precisely retains information for later review (a view that conflicts with the partial, reconstructive, and highly selective nature of memory).
Nearly half believe that once memories are recorded, they do not change (a view that conflicts with the known decay and restructuring of memories over time).
Most troubling, forty percent believe that the testimony of a single confident eye-witness should be enough to convict someone of a crime (a view that conflicts with evidence referenced by Simons and Chabris that even confident eye-witnesses are wrong about 30 percent of the time).
In a Science Daily release on the study, author Daniel Simons says, "People tend to place greater faith in the accuracy, completeness and vividness of their memories than they probably should." Chistopher Chabris adds, “The fallibility of memory is well established in the scientific literature, but mistaken intuitions about memory persist."
While I’ve probably already spoiled some of the answers for you, you can take a version of the survey yourself here.
The prevalence of these beliefs about memory has direct effects on the ability of a fact witness to present clear, consistent, and effective testimony. The witness is trying to balance several things: an awareness of law and opposing counsel’s strategy, a fair amount of stress that accompanies testimony, and for most, a difficulty in getting their minds around their memories. Particularly in the case of large-scale civil litigation, the facts that the witness is addressing are generally several years old. The standard advice from attorneys is “if you don’t remember, say you don’t remember.” That is good advice, without a doubt, but at the same time, it isn’t that simple. The fact witness can often think they remember much more than they actually do. Conversely, fact witnesses can believe they have no recollection, when further questioning shows that they do remember some things. Or worse, they can simply remember it differently from other known facts.
Drawing from my continuing adventures with computer memory, let me suggest three solutions for your work with fact witnesses.
1. Ask the Help Desk. For the witness, the “help desk,” is their attorney, perhaps a consultant, and perhaps a sounding board (co-counsel, associates, paralegals). Part of what this group should do with the witness is communicate frankly about the limits of memory. In that conversation, the witness should learn that their memory isn’t supposed to be perfect, that partial memories can be fine as long as they are consistent, and that retrospective thought can trick us into believing that memory is more clear than it actually is. Ultimately, the witness should understand that the team is not just one of the nuisances of the legal process, but is instead there to help the witness present as comfortably and effectively as possible.
2. Reboot in Safe Mode. For the witness, “safe mode” is the practice session with the attorney and any consultant and sounding board. It is in that mode that the witness should be able to explore in discussion what is remembered and to what degree. Testimony, whether for deposition or for trial, should be practiced and not just discussed. In the context of that practice, attorneys need to resist the urge to tell the witness what the case needs before hearing what the witness remembers and believes. Doing otherwise will result in a witness who is more confused and less confident. In “safe mode,” take the opportunity to hear the witness out, completely: what they recall and believe. Only when the full story is out can you help the witness address the gaps and decide what memories are clear and helpful enough to make it into testimony.
3. Defragment the Drive. Because obsessing over past events can dredge up fragments of memory, and can also develop into perceptions that carry more confidence but less accuracy, it is critical at an early moment to partition: There is what you do remember, what you kind of remember, and what you don't remember. The earlier witnesses are able to create a clear separation into those three sectors, the less they'll fall prone to a creeping distortion of thoughts on past events. This a reason why, for example, doctors named in a suit shouldn't start reading more research on the treatment at issue, because they'll inevitably start confusing what they knew at the time with what they know now.
Of course, I’ve tried all of that with my beleaguered laptop, to no avail. In fact, I think this constellation of problems might be Steve Jobs whispering from the Other Side: “Get a Mac.”
- Remember, Jurors Are Always Forgetting
- Diagnose Your Difficult Witness
- Take a Discovery Lesson From 'The Social Network'
- Offense Can Be the Best Defense: Train Your Witness to Fight Back in Cross
Photo Credit: yellowcloud, Flickr Creative Commons