I took these articles from Alan Gold’s February 8, 2016 weekley newsletter. assessing evidence. demenour. recollection.
Evidence based on recollection
15.An obvious difficulty which affects allegations and
oral evidence based on recollection of events which
occurred several years ago is the unreliability of human
memory.
16.While everyone knows that memory is fallible, I do not
believe that the legal system has sufficiently absorbed
the lessons of a century of psychological research into
the nature of memory and the unreliability of eyewitness
testimony. One of the most important lessons of such
research is that in everyday life we are not aware of the
extent to which our own and other people’s memories are
unreliable and believe our memories to be more faithful
than they are. Two common (and related) errors are to
suppose: (1) that the stronger and more vivid is our
feeling or experience of recollection, the more likely
the recollection is to be accurate; and (2) that the more
confident another person is in their recollection, the
more likely their recollection is to be accurate.
17.Underlying both these errors is a faulty model of
memory as a mental record which is fixed at the time of
experience of an event and then fades (more or less
slowly) over time. In fact, psychological research has
demonstrated that memories are fluid and malleable, being
constantly rewritten whenever they are retrieved. This is
true even of so-called ‘flashbulb’ memories, that is
memories of experiencing or learning of a particularly
shocking or traumatic event. (The very description
‘flashbulb’ memory is in fact misleading, reflecting as
it does the misconception that memory operates like a
camera or other device that makes a fixed record of an
experience.) External information can intrude into a
witness’s memory, as can his or her own thoughts and
beliefs, and both can cause dramatic changes in
recollection. Events can come to be recalled as memories
which did not happen at all or which happened to someone
else (referred to in the literature as a failure of
source memory).
18.Memory is especially unreliable when it comes to
recalling past beliefs. Our memories of past beliefs are
revised to make them more consistent with our present
beliefs. Studies have also shown that memory is
particularly vulnerable to interference and alteration
when a person is presented with new information or
suggestions about an event in circumstances where his or
her memory of it is already weak due to the passage of
time.
19.The process of civil litigation itself subjects the
memories of witnesses to powerful biases. The nature of
litigation is such that witnesses often have a stake in a
particular version of events. This is obvious where the
witness is a party or has a tie of loyalty (such as an
employment relationship) to a party to the proceedings.
Other, more subtle influences include allegiances created
by the process of preparing a witness statement and of
coming to court to give evidence for one side in the
dispute. A desire to assist, or at least not to
prejudice, the party who has called the witness or that
party’s lawyers, as well as a natural desire to give a
good impression in a public forum, can be significant
motivating forces.
20.Considerable interference with memory is also
introduced in civil litigation by the procedure of
preparing for trial. A witness is asked to make a
statement, often (as in the present case) when a long
time has already elapsed since the relevant events. The
statement is usually drafted for the witness by a lawyer
who is inevitably conscious of the significance for the
issues in the case of what the witness does nor does not
say. The statement is made after the witness’s memory has
been “refreshed” by reading documents. The documents
considered often include statements of case and other
argumentative material as well as documents which the
witness did not see at the time or which came into
existence after the events which he or she is being asked
to recall. The statement may go through several
iterations before it is finalised. Then, usually months
later, the witness will be asked to re-read his or her
statement and review documents again before giving
evidence in court. The effect of this process is to
establish in the mind of the witness the matters recorded
in his or her own statement and other written material,
whether they be true or false, and to cause the witness’s
memory of events to be based increasingly on this
material and later interpretations of it rather than on
the original experience of the events.
21.It is not uncommon (and the present case was no
exception) for witnesses to be asked in cross-examination
if they understand the difference between recollection
and reconstruction or whether their evidence is a genuine
recollection or a reconstruction of events. Such
questions are misguided in at least two ways. First, they
erroneously presuppose that there is a clear distinction
between recollection and reconstruction, when all
remembering of distant events involves reconstructive
processes. Second, such questions disregard the fact that
such processes are largely unconscious and that the
strength, vividness and apparent authenticity of memories
is not a reliable measure of their truth.
22.In the light of these considerations, the best
approach for a judge to adopt in the trial of a
commercial case is, in my view, to place little if any
reliance at all on witnesses’ recollections of what was
said in meetings and conversations, and to base factual
findings on inferences drawn from the documentary
evidence and known or probable facts. This does not mean
that oral testimony serves no useful purpose – though its
utility is often disproportionate to its length. But its
value lies largely, as I see it, in the opportunity which
cross-examination affords to subject the documentary
record to critical scrutiny and to gauge the personality,
motivations and working practices of a witness, rather
than in testimony of what the witness recalls of
particular conversations and events. Above all, it is
important to avoid the fallacy of supposing that, because
a witness has confidence in his or her recollection and
is honest, evidence based on that recollection provides
any reliable guide to the truth.
23.It is in this way that I have approached the evidence
in the present case.
— Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor, [2013]
EWHC 3560 (Comm); URL:
http://www.bailii.org/ew/cases/EWHC/Comm/2013/3560.html
Demeanour evidence
“44 This court has repeatedly cautioned against giving
undue weight to demeanour evidence because of its
fallibility as a predictor of the accuracy of a witness’s
testimony: Law Society of Upper Canada v. Neinstein,
2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel,
2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel,
at para. 85, “[i]t is now acknowledged that demeanour is
of limited value because it can be affected by many
factors including the culture of the witness,
stereotypical attitudes, and the artificiality of and
pressures associated with a courtroom.”
45 Although the law is well settled that a trial
judge is entitled to consider demeanour in assessing
the credibility of witnesses, reliance on demeanour
must be approached cautiously: see R. v. S. (N.),
2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and
26. Of significance in this case is the further
principle that a witness’s demeanour cannot become
the exclusive determinant of his or her credibility
or of the reliability of his or her evidence: R. v.
A. (A.), 2015 ONCA 558, 327 C.C.C. (3d) 377, at
para. 131; R. v. Norman (1993), 16 O.R. (3d) 295
(C.A.), at pp. 313-14.
46 It is of note that the trial judge started his
assessment of the appellant’s credibility by
expressing his concern about how the appellant
testified:
It was my impression that the [appellant]
testified in a careful fashion which lacked any
spontaneity. He appeared to me to be a witness
who was prepared and aware of what his evidence
should be to raise a reasonable doubt as
opposed to a retired teacher wrongfully accused
of fondling a young male 20 years ago.
47 This paragraph troubles me for two reasons.
48 First, the trial judge found the appellant’s
credibility was diminished because he testified in a
manner that was too careful. The problem I have with
this is that the trial judge had no reference point.
He did not know how the appellant normally expressed
himself. Moreover, the appellant’s “careful fashion”
of testifying may relate to such factors as the
unfamiliar atmosphere of the courtroom, the
artificiality of the circumstances under which the
appellant was being asked to provide information and
the pressure he was under given what was at stake.
49 Second, I am concerned by the trial judge’s
finding that the appellant testified more like
someone trying to raise a reasonable doubt than
someone wrongfully accused of sexually assaulting a
student. The trial judge provided no insight as to
how he arrived at that conclusion, particularly how
the differences between the two types of testimony
might manifest themselves. General assertions such
as this are, with respect, not only unhelpful but
also defy appellate review.”
— R. v. Hemsworth [2016] O.J. No. 505 (C.A.)
