Recollection and Demeanour Evidence

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.)