On Thursday 1 September 2022, I sat with other members of the Tigers faithful and watched the nail-biting elimination final against Brisbane.
With time almost expired, Tigers legend Tom Lynch took a mark in great position, albeit on a difficult angle. Lynch lined up and kicked, and the goal umpire signalled success – Lynch had kicked what would likely be the winning goal.
Then disaster struck, with the goal ruled a behind after video review; sadly for those of us in the Tiger Army, Brisbane marched up the field and kicked what actually was the winning goal, ending our season.
Leaving aside the question of whether or not the video review was correct (a debate largely resolved in line with one’s allegiances) there is an instructive issue for lawyers here. Every eye at the game was on that kick, and everyone saw exactly the same event, but they most certainly did not see the same thing.
100% of Tigers fans (including me) will tell you it was a goal, we saw it go through and it was a dead-set goal; 100% of Lions supporters will tell you the opposite. This is more than just team loyalties – I know what I saw, and Lions fans know what they saw – what is going on?
It turns out, eyewitness testimony is about as reliable as a politician’s promise – and can even be affected by events after the fact. Psychologist Elizabeth Loftus has conducted many experiments establishing this – for example, in 1974 she showed video of a car accident to participants and then asked them to describe what had happened as if they were eyewitnesses. They were then asked specific questions, including how fast the cars were going when the accident occurred.
Loftus showed that by changing the wording of the question for different groups of participants she could influence what they reported seeing. The more intense the word used to describe the encounter determined the estimate of speed; participants who were asked how fast the cars were going when they ‘smashed’ gave a higher estimate of speed than those who were asked using the word ‘bumped’. In short, what the participants thought they saw was affected by the verb used in the question.
Loftus has conducted similar experiments over the years1 and was instrumental in exposing false memories of highly improbable satanic child abuse claims.2 Importantly for lawyers, Loftus’ research confirms that memories can be affected after the event, and eyewitness testimony is a long way from the gold standard of evidence it is often taken to be.
Few will have missed the recent conviction of Chris Dawson for the murder of his wife decades ago, relying heavily on the recollection of witnesses from that time. Controversially, many of those witnesses had appeared on a podcast examining the case, some being interviewed at length; can we be sure that those questions did not have some impact on the witnesses’ memories?
That issue will surely be explored in the likely appeal, but practitioners should be aware of these issues when assessing the evidence of eyewitnesses, or leading and cross examining them. It may be necessary to explore the circumstances in which statements or affidavits were given, and be aware that a witness can be perfectly honest and still be 100% incorrect.
After all, we know that at the Tigers/Lions game, the entire crowd watched the same incident and half of them saw something that didn’t happen; what we can’t work out is which half it was.
Shane Budden is a Special Counsel, Ethics, with the Queensland Law Society Ethics and Practice Centre.
Footnotes
1 ‘How an unreliable eyewitness can make you a murderer’, Linda Geddes, New Scientist, 15 June 2016.
2 ‘Can you trust your memories?’, Clare Wilson, New Scientist, 24 October 2018.
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