Ghislaine Maxwell is reportedly hiring an expert in “false memories” for her US child sex-trafficking trial. The expert is said to be a leading authority in the “misinformation effect”, which examines how a person’s memory can be altered by incorrect information they may have been given after an event, or by leading questions.
The English courts introduced new court rules last year to tackle this problem in the civil courts, as the process of preparing witness statements for trial can alter memories.
Lawyers normally prepare witness statements for witnesses from relevant documents long after the events in question, the statement may go through several drafts before being finalised, and when the trial takes place months later, the witnesses refresh their memories by re-reading their statements and other documents before cross-examination.
The malleability (and thus fallibility) of human memory and the resultant impact on reliable witness evidence was explored by a panel of international experts in a talk we hosted during London International Disputes Week (see Malleable memory and the reliability of witness evidence in a digital age).
The new court rules apply in the Business and Property Courts. Practice Direction 57AC specifically addresses the issue of malleable memory, saying that witnesses and those preparing their statements must understand that when assessing witness evidence, the approach of the court is that human memory is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.
The rules tackle the risk of false memories as follows:
- When preparing trial statements, the witness’s memory may be refreshed by being shown a document, but only if they created or saw the document while the facts evidenced by or referred to in the document were still fresh in their mind, so that they would have known if they were accurate or inaccurate. The statement must list all the documents they were referred to for the purpose of providing the statement so that there is transparency over what documents they were referred to. Other than this, the statement should be prepared in such a way as to avoid so far as possible any practice that might alter or influence the witness’s recollection.
- For important disputed matters of fact, the statement should, if practicable, state in the witness’s own words how well they recall the matters addressed, and state whether, and if so how and when, their recollection in relation to those matters was refreshed by reference to documents, identifying those documents.
- Particular caution must be shown when showing witnesses any other documents, which should only be done when necessary, and apart from in the above situations, this is only likely to be necessary when it is relevant to prove or disprove the content, date or authenticity of a document, or to explain that the witness understood a document, or particular words or phrases, in a certain way when dealing with the document in the past, or to confirm that they saw or did not see the document at the relevant time.
- Lawyers must not use leading questions when interviewing the witness to take their statement. They should take a full record of the interview. Lawyers can still take primary responsibility for drafting a statement, but the content should be taken from, and not go beyond, the content of interview record. A witness statement does not have to be prepared by way of an interview, but if it is not then the process by which it was prepared needs to be explained in the statement, and what process was used instead. The preparation of the statement should involve as few drafts as practicable and the rules explain that any process of repeatedly revisiting a draft statement may corrupt rather than improve recollection.
- Both the lawyers and the witnesses are required to sign a statement of truth on the statements confirming the compliance with these rules.