Human memory is informed by subjective notions of reality. As time passes, external factors can cause an individual’s experience to be severely altered or even distorted entirely. Since the creation of the ICC Commission’s Task Force on Maximising the Probative Value of Witness Evidence (the Task Force), issues surrounding the psychology of human memory have gained renewed interest among the arbitral community.

Given the fragile and malleable nature of memory, the Task Force’s mandate has centred on efforts to consider the impact that reliance on potentially compromised evidence can have on the prospect of fair dispute resolution. Beyond acknowledging the risk for evidence corruption, the work undertaken by its members similarly purports to rethink common practices for preparing and presenting witness evidence in international arbitration contexts. Drawing upon the observations previously conveyed in a speech delivered by barrister Toby Landau QC, entitled ‘Unreliable Recollections, False Memories and Witness Testimony’, its recently published Report on ‘The Accuracy of Fact Witness Memory in International Arbitration’¹ (the Report), offers guidance to counsel and arbitrators by identifying measures aimed at increasing the evidentiary value of witness evidence.

The following will address the purpose of the Report as well as the relevance of its findings to arbitration practitioners. It will also refer to key considerations and measures outlined in the Report that are offered as guidance for in-house as well as external counsel when liaising with or preparing witness evidence.

Purpose of the Report

As a crucial source of information upon which the final decision of tribunals is based, witness evidence remains an integral part of arbitration proceedings. Yet, notwithstanding its importance, the Report recognizes that the process of preparing and presenting evidence of fact witnesses is not only a costly, but also a highly time-consuming endeavour: ‘presentation of oral evidence is one of the main functions of a ‘final’ hearing, often amounting to several days’ (p6). To avoid significant losses incurred through any external stimuli that may detrimentally impact the accuracy of witness accounts and thus undermine its credibility, the Report highlights methods to minimise risks that could hinder, corrupt or otherwise impact the proper recollection of past events.

In an effort to offer suggestions on how to effectively preserve witness memory within the context of international arbitration, the Report not only refers to the work of the Task Force itself, but incorporates the findings of the independent studies commissioned by Dr Kimberley A. Wade (Department of Psychology, University of Warwick). More specifically, it focuses on the following in turn:

Firstly, examining and reviewing the conclusions of field studies conducted by psychologists specialising in human memory to determine the extent of the fallibility of human memory and its relevance as it relates to witnesses;

Secondly, establishing the correlation and potential impact of erroneous memory on witness evidence in international arbitration;

Thirdly, addressing the extent to which the accuracy of witness memory carries any significance within the context of international arbitration proceedings;

Fourthly, outlining suggested measures to be adopted to improve the accuracy of witness memory;

Lastly, offering an overview of best practices to be applied while encouraging readers to pay due regard to the suitability and utility of such measures within a given context.

Existing scientific research on memory and eyewitness evidence

Section II: pp. 10-14

According to Section II of the Report, there are multiple circumstances that can give rise to an increased risk for witness influence. Such corruption is particularly detrimental in the context of commercial disputes and can be caused by a number of factors, influencing how witness evidence is obtained and prepared.

Phrasing

paras 2.09-2.12

The Report suggests that qualifying descriptors used in the questions submitted to witnesses can materially alter the responses given. Depending on the particular phrasing used, witnesses may adapt their answers accordingly, e.g. ‘frequently’ vs. ‘occasionally’; ‘how long’ vs. ‘how short’.

Misinformation effect

paras 2.13-2.21

A further influencing factor includes the ‘misinformation effect’, which the Report uses to describe a concept, whereby exposure to misleading information following an event can interfere with the recollection of said occurrence. Such transmission of misinformation can arise through exchanges between multiple individuals with knowledge of pertinent facts (co-witnesses) that may overwrite existing factual memory. It can also be caused by the introduction of additional inaccurate details supplementing an individual’s recollection of past events or through the process of facts being retold on multiple occasions over the course of a longer time period.

False Memories

paras 2.22-2.25

False memories are also mentioned as a reason for the generation of incomplete witness accounts. The Report hereby describes instances in which digitally enhanced photographs or manipulated documents are used to alter memory in a way that leads to the artificial fabrication of events that did not in fact materialise as is being claimed.

The impact of retelling on subsequent recall

paras 2.26-2.28

Lastly, the Report submits that the act of retelling a story from a particular perspective can generate bias and compromise the genuine recall or narrative of a particular event. Thus, a number of suggestions are offered to maximise the completeness of witness reports, including (paras 2.29-2.32):

• Ensuring witnesses provide a complete account immediately following the event;
• Refraining from reinforcing tentative responses that could falsely inflate the confidence of a witness regarding a matter they are in fact uncertain about;
• Reminding witnesses that the essence of their task lies in reporting on an event and doing so by drawing on their own knowledge thereof;
• Encouraging witnesses to identify the source of their knowledge.

Witness memory in the context of international arbitration

Section III: pp 14-16

Section III evaluates the findings of an empirical study, involving 316 participants across a wide array of industries and positions. The results reveal that similar to criminal law contexts, witness memory is also subject to error in business settings, thus creating a similar risk for distortion of key evidence.

Accuracy of witness memory and its significance in international arbitration

Section IV: pp. 16-20

Based on the existing research, the Report establishes that memory is not ‘akin to a fixed image that is “retrieved” when needed, but rather it is a dynamic process that can be affected by subsequent events’ (p7). Section IV examines the purposes for which witness evidence is used in international arbitration and the contexts in which the validity of such evidence may play a more significant role. The Report hereby identifies factors as well as actors that can contribute or amplify the distorting effects on human memory, namely:

• Multiple actors, e.g. in-house counsel, outside counsel, peers and supervisors;
• Post-event information influenced by e.g. cultural perceptions, language and cognitive biases of arbitrators, counsel and witnesses.

Measures that can be taken to improve the accuracy of witness testimony

Section V: pp. 20-26

Section V sets out suggestions that can be adopted by in-house and external counsel with regard to the gathering and presenting of evidence without impeding witness memory, inter alia:

In-House Counsel

para 5.5

• Obtaining contemporaneous written and oral witness evidence accounts at the time the relevant events unfold;
• Conducting witness interviews with the involvement of external counsel at the earliest opportunity;
• Discouraging discussions among witnesses and holding individual meetings;
• Avoiding presenting a ‘party line’ to prospective witnesses to avoid modification of the account given.

External Counsel

paras 5.6-5.30

• Interviews (para 5.7-5.10)
  • Conducting individual witness interviews at the earliest feasible stage;
  • Keeping an accurate record of interviews where necessary;
  • Avoiding giving feedback, intervening, summarising or otherwise influence the witness answer;
  • Posing open-ended, non-leading questions using impartial language;
  • Refraining from providing witnesses with documents to fill narrative gaps without first allowing them to recount their own understanding of the facts.

• Assessing Witness Information (paras 5.11-5.21)
  • Considering time lapses;
  • Assessing whether the answer might cause embarrassment or carry wider consequences for the witness;
  • Comparing extrinsic or neutral contemporaneous evidence to witness accounts.

• Preparing Witness Statement (paras 5.22-5.28)
  • Creating a list of central topics to be answered by witnesses in their own terms prior to an initial meeting;
  • Considering asking witnesses to prepare a first draft of their witness statement to preserve their own voice;
  • Encouraging witness statements to be prepared individually rather than together with co-witnesses;
  • Reminding witnesses to differentiate between recalling facts from personal knowledge as opposed to additional information concerning the event they may have obtained from other sources.

Comment

By fusing the science and practice of witness evidence, the Report is an essential guidance tool that enables parties, counsel and the tribunal to consider and take any necessary steps to protect and preserve witness memory at an early stage. The importance of accurate witness evidence is reinforced by the fact that ‘[t]he decision of the tribunal on the merits of the case will often turn, in varying degrees, on the witness whose evidence has been presented’ (p6). While the Report notes that ‘[o]ne of the important judgments that the tribunal members will often have to make is to determine the credibility of a witness and the weight to be given to a witness’ evidence’ (p6), practitioners are also reminded that an imperfect recollection does not invalidate the probative value of the testimony given. The non-exhaustive list of suggested measures to reduce memory errors is a clear reflection of the Task Force’s intention to avoid advocating for a universal, ‘one-size-fits-all’ approach. Instead practitioners are encouraged to be mindful of the complexity of human memory as well as aware of potential distortions – able to adopt appropriate steps ‘to the extent reasonably possible in order that the decision rendered [by the tribunal] can be just’ (p9).

Footnote

1. Available via: https://iccwbo.org/content/uploads/sites/3/2020/11/icc-arbitration-adr-commission-report-on-accuracy-fact-witness-memory-international-arbitration-english-version.pdf.

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