Eyewitnesses are unreliable

Eyewitnesses who consciously lie on a witness stand are dangerous to our justice system. But, potentially even more dangerous, are those eyewitnesses who think that they are being truthful (and are able to convincingly tell their story), but are actually recalling false memories.

Eyewitness testimony/memories are inherently unreliable.

Many people think of their memories as video recordings; they think that their eyes are like cameras and their memory is like a videotape recording. To remember something, they simply rewind the tape and watch it again. This perception, though, is completely wrong.

Memories are never as clear or detailed as the actual events; in fact, they are often highly distorted. Our minds play tricks on us.

How you ask?

Well, to start, memories about colour and speed are often distorted. People tend to remember colours as being brighter and more saturated (than the actual perception). Also, when recalling vehicle speeds, people tend to overestimate slow speeds and to underestimate fast speeds.

Also, memories typically contain gaps and, as a result, our mind will actually reconstruct events and fill in those gaps using other memories.

Specific to legal matters, it has been found that eyewitnesses who speak to other witnesses will use the additional information (from other witnesses) to fill in and add to their own memories.

Also, when people repeatedly recall an event, accuracy of the memory generally drops; some details are dropped from earlier versions and some new details are added.

You may be asking, “So what?” Well, this is important because eyewitness testimony is often given more weight than it deserves and is responsible for many wrongful convictions (of innocent people).

Consider Mr. Guy Paul Morin, who was given a life sentence in 1992 for the 1984 murder and sexual assault of his young neighbour in Queensville, Ontario. Eyewitnesses in that trial provided false memories, which led to his wrongful conviction.

Eyewitnesses in the Morin case expected the police to arrest the correct person and there was a lot of public pressure to find someone (anyone) responsible for the murder. Not surprisingly, their memories were rearranged (in their mind) in such a way that it benefited the police and the Crown.

In 1995, DNA testing exonerated Mr. Morin.

Everyone is capable of creating false memories. I see it often when interviewing witnesses and, of course, my job is to sort that out.

As a further illustration, while in law school, a professor, demonstrating the faultiness of memory, played my class a short video that portrayed a crime. Immediately after the video, we were all instructed to write down everything that we observed. Resoundingly, none of us were completely correct. Several weeks later, we were told, again, to recall our memories regarding the video. Again, none of us were correct and, even worse, some details were either removed and added.

Bottom-line: caution needs to be taken when relying on someone’s memories.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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