leslie cuthbert recorder, tribunal judge & adjudicator united … · a liar - try not to judge...

Assessing reliability

Leslie CuthbertRecorder, Tribunal Judge & Adjudicator

United Kingdom

Session AimsThere are 3 areas that will be covered in this

session:

• What is the difference between credibility & reliability?

• What mistakes of memory can occur and how does this impact on a person's reliability?

• What can be the impact of questioning/exposure to later information on a person's accuracy?

The Session• I know you don't currently have copies of the

handouts - that is deliberate as I want your focus to be here rather than looking down. Handouts will, however, be available to you afterwards.

• Although this session will be interactive given the pressure of time we don't have the opportunity of my answering questions so if you have any queries please raise them with me in the bar later!

What is the distinction between credibility and reliability?

If something is reliable, you can trust it. It is the inherent quality of the evidence.

If something is credible, you can believe it, whether it's real or not, whether you can trust it or not.

A person's story is usually credible if it is reliable.

However, their story can be credible, but not reliable.

Instructions

Count how many times the players wearing white pass

the basketball

Memory

Almost EVERYONE’s memory is fallible.

Memory Test Part 1

•On the next slide are 2 lists.

•Read them and do your best to memorise the contents of each list in the 60 seconds you will be given.

List 1

apple, vegetable, orange, kiwi, citrus, ripe, pear, banana, berry, cherry, basket, juice, salad, bowl, cocktail

List 2

web, insect, bug, fright, fly, arachnid, crawl, tarantula, poison, bite, creepy, animal, ugly, feelers, small

Now we wait…

Very rarely will a witness be asked to relay matters that occurred moments before and likewise you will have to wait until later before having to remember the words from those lists.

Change Blindness Eyewitnesses generally are taken off guard by the event that occurs, they are often

also preoccupied with their own thoughts and plans.

Would you notice if you changed from talking to 1 person to another person?

Change Blindness

Change blindness: Failing to notice apparently obvious changes

in a scene

Change blindness blindness: The unduly optimistic belief that one is very rarely affected by change blindness.

People mistakenly assume that they fully process everything in their periphery.

False Memory

People's memories are not infallible because of the reconstructive nature of memory. People don't store exact copies of their experiences but rather an 'outline'/the gist which is filled in later when it is sought to be recalled. We can't tell the difference between what we have actually experienced and what we may simply have heard after an event. The brain fabricates illusions so realistically that we believe that they are true.

Source Misattribution/False Memory

"I remember landing under sniper fire," she said in Washington. "There was supposed to be some kind of a greeting ceremony at the airport, but instead we just ran with our heads down to get into the vehicles to get to our base." News footage of the event, however, showed her claims to have been wide of the mark

http://www.youtube.com/watch?v=8BfNqhV5hg4

Was this motivated by political opportunism or was the original memory distorted by viewing other sources of information?

Hillary Clinton in Sarajevo, 1996

Witness Confidence

Decision makers tend to be influenced by a witness’s apparent confidence when giving their evidence but confidence is NOT always a good predictor of accuracy.

The Loftus experiment

Loftus and Palmer exp.1

Verb Mean speed estimate (mph)

Smashed 40.8

Collided 39.3

Bumped 38.1

Hit 34.0

Contacted 31.8

Loftus and Palmer exp.2Response to "Did you see any broken glass?"

Response Smashed Hit Control

Yes 16 7 6

No 34 43 44

Memory Test Part II

On the next slide is 1 list.

Write down the words you recognise below which you believe appeared in the previous 2 lists.

happy, woman, winter, circus, spider, feather, citrus, ugly, robber, piano, goat, ground, cherry, bitter, insect, fruit, suburb, kiwi, quick, mouse, pile, fish

How did you do?

Chances are that some of the words you thought you remembered i.e. “spider” and “fruit” are not in the previous lists at all. The words in the original lists simply suggested associated ones which appear in the third list.

This false memory effect relates to the power of suggestion and is a danger which you must always be on your guard about in how witnesses are asked questions.

Memory Test Part IIIThese are the original lists. Compare them against the words you wrote down.

List 1 apple, vegetable, orange, kiwi, citrus, ripe, pear, banana, berry, cherry, basket, juice, salad, bowl, cocktail

List 2 web, insect, bug, fright, fly, arachnid, crawl, tarantula, poison, bite, creepy, animal, ugly, feelers, small

Some rules of thumb regarding reliability (all have exceptions!)

• The usual is more likely to be what occurred than the unusual.

• A witness whose evidence suffers from no internal inconsistency is more likely to be correct than a person whose evidence cannot be so described.

• A witness whose evidence is consistent with other witnesses is likely to be correct.

• The witness whose evidence is consistent with the documents is more likely to be correct.

• Don't think you have some innate ability to spot a liar - try not to judge a case wholly on observations of demeanour.

• All observation evidence needs to be examined in the light of the opportunity to observe so distance, position, light & amount of time available to observe are important.

• Many witnesses will lie when they think they can escape detection.

• Don't be misled by an advocate's 'tricks'. • Sometimes 1 unassailable piece of evidence

will reveal where the true facts fall.

• Always take into account cultural or other characteristics which operate on the witness.

• Just because a witness says something is so, and is shown to be a liar, does not establish that something is not so!

• Beware of gaining such sympathy for a party that you start to see life through that party's eyes.

• One can sometimes infer the truth from the fact that a witness has not said something or was not asked questions about a fact.

Further Reading

Mrs Justice Cox referred to the importance of psychology in the work of the judge and there are 5 texts you may find beneficial to you:

'Thinking. Fast and Slow' by Daniel Kahneman

'Blink' by Malcolm Gladwell

'Mistakes were made but not by me' by Tavris & Aronson

'The Invisible Gorilla' by Simons and Chabris

'Time Warped' by Claudia Hammond