Oh Lord, you will say. He’s only just given us one of his periodic lectures on the importance of understanding the trail of electronic evidence we all leave behind us. Can’t he give us a break for a few weeks?
Last Friday, I published an article called Finding the evidence for hot tub murder and the red-headed children of Greendale. Its purpose was to re-state my frequent reminder that most of us leave an electronic trail which, while not necessarily proving what we were doing or saying, or showing where we were (or were not) at a particular time, creates a presumption which may either support our recollections or undermine them.
The following day, Gordon Exall published on his excellent Civil Litigation Brief an article called Lawyers, litigation and memory: the Memory Illusion. It refers to a book by Dr Julia Shaw called The Memory Illusion: Remembering, Forgetting and the Science of False Memory. Gordon Exall explores the factors which influence the recollection of a witness, including the potential bias of loyalty – the “desire to assist, or at least not prejudice, the party who called the witness or that party’s lawyers” – as well as the effect of the litigation process on recollection.
Our respective articles are related in the sense that the electronic trail which was the subject of my article is often overlooked when preparing witness statements or in considering the accuracy or otherwise of witness evidence.
This gave rise to a brief discussion on Twitter. Craig Earnshaw of FTI Consulting pointed out the importance of contemporaneous emails as a record of what was happening at the time. Written communication takes many forms now, and there is nothing esoteric about texts, chat and apps like WhatsApp which, numerically speaking, carry more communication than email. If email is a medium for rapid and unguarded exchanges, then how much more so is WhatsApp?
It is not just communication traffic which might help (or hinder) in this context. In my article, I gave the example of Google Maps and the record it keeps. Many of us carry at least one device permanently logged into Google and either don’t know or don’t care that these may be tracking your every move (you can choose to switch this off and you can erase the record or part of it if you wish to).
The red dots on this map show pretty well everywhere I have been since I first started carrying an iPhone or iPad.
I can zoom into a period, right down to a single day, and (subject to the vagaries of GPS accuracy) can see exactly where I was at any time. I gave in my article an example of my cycling five minutes up the road, spending an hour and seven minutes at my mother-in-law’s house and returning home via a shop. That record is not completely accurate, but it would serve as a reminder if I needed to account for myself on that day; alternatively, it might contradict something I had said in evidence.
Gordon Exall’s point is that memory is fallible and that litigating lawyers need to understand this. My point is that the lawyer who, in a case where it matters, neglects to investigate whether such sources exist, is failing in his or her duty. That is true whether you want to substantiate your own client’s recollections or undermine those of the other side’s witnesses.