The Accuracy of Witness Memory in Arbitration

Witness evidence plays an important role in international arbitration. However, how reliable is something as fragile as the memory of a human being? In a recent publication made by the ICC, a special commission explores the accuracy of fact witness memory in international arbitration and questions whether the practices often adopted to prepare a witness may be distorting the evidence that arbitrators rely upon to issue an award. This post highlights the most relevant aspects of the report.

In November 2020, a specialized Task Force (“the Commission”) of the International Chamber of Commerce (“ICC”) undertook an investigation regarding the accuracy of fact witness memory and shared its report (ICC publication DRS 890) with interesting findings. Given than the preparation of a witness statement is a time-consuming duty for the parties and their attorneys, the purpose of this report is to shed a light on how to minimize the risk of having a witness statement based fully on distortions on their memory.

We can summarize the main findings of the report as follows:

  • Scientific research shows that the memory of a human being is fragile. Thus, the information that a witness may be exposed to after an event, will definitely have an impact on his/her statement. It is worth noting, that in most cases a witness will interact with other people (e.g. legal counsels, another witness, colleagues) after an specific event and this might result in a phenomenon known as the misinformation effect. According to the report, this effect describes a situation where “typically misleading information which participants are exposed to after an event interferes with or impairs their original memory of an event.” The problem with this effect is that a witness might distort the facts of the case due to its exposure to a post-event information.
  • The second aspect that the Commission emphasizes relates to “false memories”. In a nutshell, a witness may distort the facts of the case by providing information of things that he/she remembers but result from “entire fabricated events which have happened to them personally, so-called “false memories”. 
  • Scientific studies show than when a witness is telling their story regarding a commercial dispute, typically they will do that from their own perspective. This side of the story can be similar to the one of the claimants, the respondent, their employer or whomever they have a close contact to.
  • In light of the above, experts such as Dr. Cartwright-Finch and Dr. Wade conclude that in order to reduce memory distortion and facts-contamination the witness should provide their version of the story as soon as possible after the event occurred. In addition, legal counsels should ask witness open-ended questions in order not to induce an answer. In case the witness is unsure about a specific situation, scientists recommend not to put pressure on the witness, as this can result in an inaccurate response.
  • The report also found that the degree and probative value of a witness evidence will depend on the circumstances. In some cases, the memory of a person is crucial, but in other cases having a witness might be useful to give context to the tribunal on a specific commercial transaction, provide an explanation for a particular document, increase credibility of a party´s position, engage in a more personal level with the tribunal or provide technical explanations based on the witness experience.
  • Finally, the Commission recommends legal attorneys to interview each witness individually and record said interviews. Witness should keep in mind that their own recollection of the events is what matters and should not feel pressured in any way to give “a perfect answer”. It is advisable for legal counsels to conduct the interviews using a neutral language, avoid interruptions and any attempt to influence the witness’s own version of the story. In case the witness version is unclear or incomplete, the legal counsel may reformulate the questions procuring not to summarize or modify in any way the person’s response. The report also recommends not to prepare numerous drafts of a witness written statement, as this might result in a distortion of the facts of the case. Logically, the preparation of a witness before a hearing is key and part of the legal counsel’s duties, However, in order to try to keep the memory of a witness as pristine as possible, these recommendations should be taken into consideration.

Disclaimer: This document is informative and does not, and is not intended to, constitute legal advice.