The scenario is common during any trial: two witnesses give evidence who were both present at a particular event but whose recollection about what was said or what they saw is so completely at odds one wonders whether they witnessed the same thing. Whether it is a dispute between a claimant and a doctor about what was said during a consultation, the drivers of two cars that have collided about who was positioned where on the road or two parties to an oral contract who disagree about its terms, the difference in evidence is usually equally stark. Often the judge will accept one of their versions of events completely and reject the other. The oral evidence of the preferred witness may be repeated verbatim in the judgment, treated as though it is as accurate as CCTV footage or a secret recording of the event.
Ask yourself this question: on an ordinary day when nothing particularly good or bad has happened to make it remarkable, what do you remember of the details of the many small incidents that occurred? What do you honestly remember of what you saw as you walked down the high street, who served you in the supermarket, whether anyone was mopping the floor in the veg aisle, where precisely you crossed the road, what was said by you or the salesman when you discussed your new kitchen, which gear you were in as you drove towards a particular set of traffic lights, or precisely what the doctor told you or you said to him during a GP visit that seemed routine at the time. The honest answer is almost always somewhere between "nothing" and "not much". We remember the general gist and some of the main points of any day or particular conversation, but often little of the detail.
The adversarial system is such that witnesses are encouraged to put forward a positive recollection about all the surrounding facts of the day in question and, if they are honest and say that they don't remember everything clearly, they are at risk of being found unreliable. It is not good enough for a driver to say that if something untoward had occurred before a child ran out into her path she would have noticed it because she was paying attention. It is not good enough for a doctor to say that of course the advice was given because it is what she always says when dealing with that particular problem. Unless the witness professes to have an actual recollection of what they in fact saw or said, they are at risk of being found to be "an unreliable historian". "Not remembering" whether any life guards were present around the swimming pool gradually becomes a positive recollection that no life guards were there at the time. The favourite refrain of many a judge in road traffic cases is "well she was there to be seen: if you were paying attention you would have seen her". Maybe, maybe not. The brain might well process a child on the pavement, but unless she was doing something odd, why would that have stuck in the memory? As I drive along my road I might register vaguely that there are people about on the pavement. But unless they are doing something unusual, my attention will note nothing more than that. Are not these witnesses in fact the truthful and reliable ones?
Take, for example, a case in which a claimant professes to have a clear recollection about whether any cleaning crews were present in a huge supermarket superstore. Of course the clear recollection is that not a single cleaner was there to be seen. Really? Who can honestly say that they notice the workers, officials and cleaners present in any shop, transport hub or leisure premises when they are going about their business and focussing on their day. Uniforms blend into the background. But this evidence is often accepted as accurate. I do not place the blame on the witness who clearly believe their recollection iss true. My concern is about the judges who accept it as so.
In a different but related context the New Jersey Supreme Court in the US has recently raised concerns about the reliability of eye witness identifications and handed down new guidelines for testing them. It is notable that the Court places at the centre of its analysis scientific research into the reliability of eye witness evidence. In a unanimous opinion, the court said (http://www.judiciary.state.nj.us/opinions/supreme/A808StatevLarryHenderson.pdf):
"We find that the scientific evidence considered at the remand hearing is reliable. That evidence offers convincing proof that the current test for evaluating the trustworthiness of eyewitness identifications should be revised. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.
"We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control."
If scientific studies show that basic eye witness recognition of the perpetrator of a crime has a high incidence of unreliability it is difficult to see why recollection of other small facts and details in less dramatic cases should be any better. One cannot help but think that justice would be well served if more judges were prepared to recognise the reality of the vagaries of memory, rather than simply picking the witness they like best and accepting absolutely all they say as being completely accurate. That said, as much of my job involves catching witnesses out on small slips so that I can call the totality of their evidence unreliable, I'm at risk of putting myself out of a job...