Witness Preparation and the Corruption of Memory: A Survey of Australian Trial Judges

Abstract

An extensive body of psychological research establishes that practices commonly used in preparing witnesses to give evidence in civil proceedings are prone to corrupt witness memory. To grasp the scope of judicial perceptions of this issue in Australia, and to assist in informing a way forward, we conducted a survey of trial judges in superior courts in four Australian jurisdictions (N = 73, response rate = 51%). We also interviewed 26 of those judges. We asked judges about their experience with the reliability of witness statements and canvassed their views on a range of witness preparation practices and potential reforms. The judges reported serious perceived deficiencies in witness statements and affidavits, which they attributed to problems with the witness preparation process. There was a strong consensus in favour of more guidance and education for the profession to try and address these problems.

Keywords: witness, civil proceedings, witness preparation, evidence, memory, witness memory, Judge, trial judge