Refreshing witness testimony prior to trial is now permitted on both sides of the border. Little is known of the practice in Scotland, but lessons can be learned from research in England & Wales
A witness can only give evidence on what they can recall at the time of questioning. Memory for a witnessed event can be influenced by a number of factors before the witness stands up in front of a courtroom, many of which are beyond our control such as media reporting of a case, and the questioning style of the original interviewer. Where an intervention can be made is in countering one of the main factors which influence the accessibility, accuracy and completeness of memory: the passage of time.
Long delays result in a loss of detail and recall for both adult and child witnesses (Ebbinghaus, 1913; Flin, Boon, Knox, & Bull, 1992), and in an ideal world, delay might be minimised by setting trial dates immediately after the police investigation. In reality, this is often not possible due to the volume of cases processed each year in Scotland as in other jurisdictions (Crown Office and Procurator Fiscal Service, 2013).
Historical reports of witness waiting times in Scotland suggest that witnesses often waited at least seven months between investigation and trial (Flin et al, 1992). Although more recent data for Scotland were unavailable, figures from England & Wales show witnesses are currently facing an average delay of six months (MoJ, 2012), and it is reasonable to expect that similar waiting times are facing witnesses in the Scottish justice system. In light of this and related issues, the UK Government, as part of a wider planned reform of the criminal justice system, has recently proposed mechanisms for speeding things up (MoJ, 2012). However, the white paper does not mention witnesses with special needs, and specific interventions for reducing the time delay between investigation and trial.
Although witnesses are not sitting a memory test, if there are errors and inconsistencies in their evidence, this can negatively impact on how they are viewed by judge and jury. The witness may lack credibility and their evidence may be judged as unreliable, potentially influencing judicial decision making and, ultimately, the verdict (Berman & Cutler, 1996; Brewer & Burke, 2002; Pozzulo & Dempsey, 2009).
The very young witness
In recent cases in the Court of Appeal, the testimony of very young children has been questioned. Concerns have been raised over the ability of young witnesses to fulfil competency requirements (R v Barker ), and also whether events preceding lengthy delays prior to trial can be recalled accurately, or even at all (R v Powell ; R v Malicki ).
Faced with such long delays, and what we know about the effects of time on memory decay, a degree of forgetting must be expected in witnesses of all ages, particularly witnesses in the youngest age brackets, five years and below (Flin et al, 1992). In an attempt to counter the effects of delay, witnesses in England & Wales are permitted to refresh their memory before giving evidence. This is done by providing witnesses with a copy of their written statement or video-recorded interview to read/watch (Criminal Justice Act 2003, s 139), a practice that can be referred to as “refreshed testimony”.
This practice has, anecdotally, been found to relax witnesses and to boost confidence in their ability to give evidence after such a delay (Ainsworth & Memon, in press; Plotnikoff & Woolfson, 2009). There is also some evidence to suggest that refreshing a witness’s memory provides a measurable increase in accuracy compared to non-refreshed witnesses (Magner, Markham, & Barnett, 1996; Turtle & Yuille, 1994). Although refreshed testimony aims to remind the witness of what they experienced first-hand, if the delay is too great, the memory trace may be completely lost, leaving nothing to refresh. This will be of particular concern when refreshing very young children after long delays (Flin et al, 1992), and could lead to unfair trials and overturned convictions.
What remains unclear is whether refreshed testimony provides cues to recall the original event, or simply cues memory for the original interview. This uncertainty formed the grounds, and ultimately the success, of the appeal in R v Malicki . The witness in this case was four years eight months old at the time of the alleged incident, and was interviewed shortly after disclosure. Fourteen months after the initial interview the witness was refreshed and, on appeal, the defence argued that it was not possible to determine whether the witness was recalling the original event or their video-recorded interview during the cross-examination. The defence cited the examination of witness S, in the same case, who had accepted that she could not recall the original event and that she was remembering what she had said on the video.
To our knowledge, refreshed testimony of adult witnesses has not yet been the focus of an appeal case; however, with the Malicki case as a precedent, it is arguably a possibility. With this in mind, the points raised in this article, relating to the preparation of child witnesses through refreshing, are also relevant and applicable to the preparation of adult witnesses, who are also entitled to refresh their memory.
Refreshed testimony: England & Wales
Even though refreshed testimony is legally permitted for all witnesses in England & Wales, recent research suggests that not all witnesses are offered this opportunity (Ainsworth & Memon, in press; HMCPSI & HMIC, 2012; Plotnikoff & Woolfson, 2004). If refreshing memory improves witness accuracy, it is possible that non-refreshed witnesses are disadvantaged.
When refreshing is offered, there is no official protocol to follow and limited guidance is available. The Achieving Best Evidence Guidelines 2011 (ABE) indicate that it is the responsibility of the police to arrange refreshing, suggesting that this should take place before the day of the trial to avoid witness distress and fatigue. This is the only advice offered. A recent survey of police officers found that practitioners are not given training on how to effectively refresh witnesses, resulting in reports of varying practices both between and within forces across England & Wales.
Some reported practices could, in fact, be compromising witness preparation such as by refreshing the witness a week in advance of the trial, and sending the witness a copy of their statement to their home address (Ainsworth & Memon, in press). Refreshing so far in advance of questioning introduces yet another delay that the witness must overcome, and releasing a copy of a statement to the witness raises issues of evidence tampering should the individual show their statement to and/or discuss their testimony with others. These are just two examples of potentially problematic practices that could jeopardise the outcome of a trial. Any opportunity to prevent these questionable practices should be acted upon as soon as possible.
Refreshed testimony: Scotland
Scots law also permits witnesses to refresh their memory, as outlined in s 85 of the Criminal Justice and Licensing (Scotland) Act 2010. Despite the option being available, however, it is possible that witnesses, and even practitioners, are not being made aware of and offered this opportunity. The website dedicated to preparing witnesses for the court experience (www.witnessesinscotland.com) does not mention refreshed testimony, and the Guidance on Joint Investigative Interviewing of Child Witnesses in Scotland (JJICW) only mentions the practice briefly and offers no guidance on how to conduct refreshed testimony, merely stating that it is routine in England & Wales. An assessment of refreshed testimony in Scotland has yet not been attempted, to our knowledge. Thus in Scotland we don’t know if practitioners offer this practice to witnesses routinely and, if they are, how it is being delivered.
Whether or not witnesses are refreshed before going to court is not the only concern. There are a number of issues surrounding the delivery of refreshed testimony that could interfere with its effectiveness. As Ainsworth & Memon (in press) report, in England & Wales there is a lot of variability in the way witnesses are refreshed and presumably, if Scottish practitioners are also not given training and guidance, the same can be expected in Scotland.
The following are a few considerations that need to be made:
When to refresh the witness?
- Too far in advance may be in ineffective, as witnesses will forget by the time of trial; too close to the court appearance may cause distress and fatigue the witness.
- The optimal period will be two to three days prior to the trial.
Where to refresh the witness?
- In the witness room could lead to evidence contamination from co-witness discussions; video-recorded evidence requires additional facilities that may be unavailable in certain locations.
- A neutral location with video-link facilities to the courtroom would ensure the equipment was always available and interaction between witnesses in the same case could be controlled. The environment could be made child friendly, and young witnesses would be spared from attending court.
What format should the evidence be in?
- Language abilities may make refreshing with written statements difficult for some categories of witness; audio and video-recorded evidence takes longer to review so may be difficult to use under time constraints.
- The capabilities of each child need to be assessed in advance of refreshing so that an appropriate format can be provided, based on the specific needs of the individual.
How often should the witness be refreshed?
- Are multiple opportunities to refresh more effective than only refreshing once? Regardless of the number of times a witness reviews their testimony, refreshing can only be effective if their original evidence has been gathered following best practice guidelines.
- Emphasis must be placed on gathering good quality interviews and statements to ensure the fullest and most accurate accounts are available for refreshing.
Summary and conclusion
Witnesses are facing lengthy delays between giving their initial statement and providing evidence in court. These delays are likely to cause some level of forgetting, particularly in young children, making the witness less accurate and potentially less credible to the judge and jury. Legislation both north and south of the border permits witnesses to refresh their memory with their original testimony, to prepare them for giving evidence in court. Research has found that not all witnesses in England & Wales are refreshed, and that delivery of refreshing varies amongst practitioners, with potentially inappropriate practices coming to light. As yet we do not have information about refreshed testimony practices in Scotland.
To address these concerns, academics and practitioners in both jurisdictions need to focus attention on witness care and preparation, to ensure that the evidence heard in court is as accurate and complete as possible, contributing towards a fair pursuit of justice. Scotland has the opportunity to learn from the practices currently documented in England & Wales, and to be proactive in assessing witness preparation in its own courts to further improve the quality of evidence from its witnesses.
Francesca Ainsworth and Amina Memon, Royal Holloway, University of London
e: Francesca.Ainsworth.firstname.lastname@example.org; Amina.Memon@rhul.ac.uk
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Plotnikoff, J, & Woolfson, R (2009): Measuring Up? Evaluating implementation of Government commitments to young witnesses in criminal proceedings (online: NSPCC).
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