Most people believe they would make a reliable witness. They were present. They paid attention. They remember it clearly. That belief is comforting. It is also largely illusory, writes Rebecca Ward, MBA.
The legal system continues to rely heavily on human recollection, yet decades of psychological research show that memory is not a recording of events. It is a reconstruction, shaped by emotion, stress, repetition, and expectation. For lawyers, this creates a professional tension that is easy to overlook: witnesses are asked to deliver precision under conditions that actively undermine it.
A useful way to examine this tension is to begin somewhere familiar and safe. You have seen Chris Hemsworth countless times. Films. Interviews. Red carpets. His face is instantly recognisable. Now answer the following questions – without looking anything up:
How tall is he?
What colour are his eyes?
Is he right-handed or left-handed?
Most people begin confidently and then hesitate. The answers feel almost available. Estimates replace certainty. Familiarity remains strong; recall does not. At this point, some readers object. Actors are styled. Films distort reality. That is not a fair test.
So, let’s try someone else. You have also seen Barack Obama thousands of times. Speeches. Press conferences. Debates. Interviews. He is one of the most visually familiar public figures of the last two decades. Again, without checking:
How tall is he?
What colour are his eyes?
Is he right- or left-handed?
Pause for a moment and notice what happens internally. Many people answer quickly and then immediately doubt themselves. Others realise they are guessing. Confidence flickers.
Now, let’s change only one thing. Imagine your answer will be relied upon in court. Imagine someone’s liberty – or their future – depends on you being correct. No approximations. No “about”. No hedging. You need to be certain. Does that increase accuracy? Or does it simply increase awareness of uncertainty?
For most people, higher stakes do not sharpen memory. They sharpen caution. What previously felt “good enough” now feels unsafe. The confidence that once accompanied familiarity quietly collapses. This is where an uncomfortable truth emerges: repeated exposure produces recognition, not reliable recall.
Stress changes what the brain records
Memory does not degrade only with time. It is shaped at the moment of encoding. Under stress, attention narrows. The brain prioritises threat detection, escape, and survival. Peripheral details – height, clothing colour, eye colour, handedness – are deprioritised. Emotional intensity increases certainty about how an event felt, while reducing accuracy about what was objectively observed.
Later, these two streams often merge. Fear, confidence, or danger are remembered as if they were visual facts. The distinction between “what was seen” and “how it felt” blurs, even though the witness experiences the memory as clear and coherent. This is not pathology. It is normal neurobiology.
The problem with time – and with certainty
Memory does not remain static after an event. Each act of recall reshapes it. The longer the delay between an incident and testimony, the greater the opportunity for reconstruction, conflation, and contamination. Memories become smoother, more complete, and more confident – not necessarily more accurate.
By the time a witness enters a courtroom, they may be recalling not the original event, but the most rehearsed version of it: the version shaped by police interviews, legal preparation, conversations with others, media exposure, and the human preference for coherence. In this context, confidence is not reassurance. It is a warning sign.
Pressure produces answers, not always memories
Legal processes place enormous pressure on witnesses to be precise. They are told to be definite. To answer quickly. To understand that details matter. Repeated questioning reinforces the sense that “I don’t know” is inadequate.
Over time, this pressure can produce answers where memory is weak or absent. When asked repeatedly whether someone was taller or shorter, left- or right-handed, closer or further away, witnesses may eventually supply a response not because it is remembered, but because silence feels unacceptable. Probability fills the gap where recollection does not exist. This is not dishonesty; it is compliance.
When certainty goes wrong
Australia has already seen the consequences of misplaced confidence in memory. In the Chamberlain case, witness recollections, sound interpretations, and behavioural assumptions were offered sincerely and accepted with conviction. Over time, those memories hardened into certainty. Subsequent forensic review revealed how unreliable many of those recollections were. The witnesses were not malicious. They were human. The failure lay in how readily certainty was accepted in place of corroboration.
The uncomfortable realisation for lawyers
By this point, two realisations often emerge, neither particularly flattering. First, most lawyers, placed in the role of witness, would likely perform poorly themselves. Recalling precise sensory details under stress, years later, while being examined and cross-examined, is not a skill lawyers practise or possess.
Second, the witnesses’ lawyers rely upon are being asked to do something extraordinarily difficult, often under conditions that actively impair memory accuracy. This does not mean witnesses are right or wrong. It does not mean memory evidence should be dismissed. It means it should be handled with humility.
Empathy without indulgence
Witnesses deserve empathy not because they are fragile, but because the task demanded of them is cognitively unrealistic. At the same time, the law must remain cautious. Memory evidence must be tested, contextualised, and corroborated – not rewarded for confidence alone.
Empathy and scrutiny are not opposites. Together, they protect justice. The danger is not that memory fails. It is what convinces. When witnesses speak with certainty, the law should listen carefully and pause. Because the most persuasive account is not always the most accurate one, and the most confident witness may simply be the most rehearsed. Justice is better served when lawyers remember just how unreliable their own memories would be under the same conditions.
Rebecca Ward is an MBA-qualified management consultant with a focus on mental health. She is the managing director of Barristers’ Health, which supports the legal profession through management consulting and psychotherapy. Barristers’ Health was founded in memory of her brother, Steven Ward, LLB.
