How do you solve the problem of witnesses?
Recently I have been considering how we approach witness evidence in arbitration and, more particularly, the situation where witnesses are 100% convinced of their evidence but the evidence cannot be true. As arbitrators, we often discuss the difficulties of weighing the evidence and taking into account whether a witness has been excessively prepared. We prepare ourselves for the possibility that witnesses deliberately highlight positive facts and minimise negative ones. But do we really consider the situation that I suspect arises much more frequently than any of us appreciate, namely where a witness is honest and compelling in his or her evidence, but is completely mistaken?
The issue of the unreliability of witness evidence was considered by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd  EWHC 3560. He stated:
“16…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.”
It is worth setting out his later observations: “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 to one side of the dispute. A desire to assist, or at least not prejudice, the party who 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.
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 or 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 10 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 record. 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.”
All this is very well put, but relatively unsurprising. What I had not properly appreciated was the way that a mind can independently convince itself that an incident had occurred, when it had not. For example, in December 2001 President George W Bush said that he had seen the first plane hit the twin towers on the TV on 9/11 prior to going into the elementary school classroom to read to the children. In fact, there was no live footage of the first plane hitting the tower so he could not have seen it before going into the classroom. Yet he was convinced he had seen it. His brain must have combined information he acquired later with the actual experience he had (of going into the classroom then being told of the tragedy) to establish a new experience in his memory.
We all know that memory is highly fallible. What gets encoded into memory, essentially what parts of the experience the individual decides to store, is fairly random, that information then gets integrated with other information that has already been stored in a person's long-term, autobiographical memory. What is retrieved later from that memory is shaped by the recollection of the event, coupled with the influences of later experiences which can be overlayed on the original memory, like President Bush’s recollection of 9/11. A highly imperfect process when it is relied upon to convince an arbitrator or judge to rule in a party’s favour.
So what does this all mean for an arbitrator seeking to evaluate witness evidence? Although I have been on both sides of the witness preparation debate, as I am qualified in both the US (where witness coaching is standard) and the UK (where it is not permitted), as an arbitrator I am wary of over-prepared witnesses. Yet the problem of memory fallibility plagues unprepared witnesses as well, with perhaps even a great effect on the decision maker. I seek to constantly cross-check the witness evidence against contemporaneous documents, I take into account when the witness was first asked about their evidence and in I test witnesses’ recollections of meetings and conversations against the available written evidence. All this does not mean that oral evidence serves no purpose but I would say that the utility of witness evidence can be disproportionate to its length. As counsel on a case back in 1999 one of my cases turned on a 3 page witness statement, written by the witness (unheard of these days), in relation to a USD$30 million ICC case.
I would say that the value of witness evidence lies in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to assist the arbitration in understanding the industry and background to the dispute rather than what the witness recalls of particular conversations and events.