Why we can't trust witnesses

AuthorPaul Fruitman
g Summer 2017
hy e can’ us inesses
The most fascinating witnesses are those I call “credible fabri-
cators.” They condently recount their recollections, although it is
clear that those recollections do not match the documentary record.
In another time, we simply called these witnesses “liars,” even socio-
paths. However, with the benet of recent research into human psychol-
ogy, it is just as likely that these witnesses are telling the truth– as they
observed and remember it.
It turns out the human mind has serious deciencies. We do not
think clearly, and we have questionable observational skills and poorer
memories. Yet we think our memories and powers of observation range
from great to fantastic.1
This reality has profound implications for our common law, which is
grounded in and depends heavily on witness testimony. We require facts
be proven through witnesses, and witness credibility weighs heavily in
1 Expounding on the failings of the human mind has become its own cottage indus-
try over the past decade. Some notable examples include Rolf Dobelli, The Art of
Thinking Clearly (New York: HarperCollins, 2013); Richard H Thaler, Misbehaving:
The Making of Behavioral Economics (New York: Norton, 2015); Daniel Kahneman,
Thinking Fast and Slow (New York: Farrar, Straus and Giroux, 2011); and Christo-
pher Chabris and Daniel Simons, The Invisible Gorilla (New York: Crown Publish-
ing Group, 2010).

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