(5)
If the facts involve interpretation, the witness must have correctly
interpreted what they observed. For example, circumstances of a case may
make it necessary for the court to determine whether a look on a person’s face
is a look of fear or of pain.
There is a special problem with Condition 1. To illustrate, assume that Sally
gives the following evidence. “I was on Blackpool Beach down the south end.
I was 3 feet away from two people whom I now know to be Dean and
Prudence. I saw Dean kiss Prudence and say “‘I love you like I have never
loved anyone before.’“ Ask yourself whether Condition 1, that the witness has
fully observed the facts, is satisfied. At first glance is seems to be. Sally was
only 3 feet away from Dean and Prudence and was looking at them. But there
is a problem. Put simply, how well do we know that this evidence is correct if
Sally is the only witness?
Condition 2: Accurately Remembering Facts
Condition 2 is that the witness has accurately remembered the facts. When a
person who witnesses an event, especially one which has occurred a long time
ago, comes to tell their account they may have forgotten some parts of what
they observed. This, of course, is why a lawyer will try to have witnesses
make a written statement of what they observed as soon as possible after the
event. When the case comes on for trial some time later, at least the witness
can refresh their memory from this near contemporaneous statement.
It is common wisdom that recollection of events is taken to be a reproductive
process. It is like playing a tape or DVD of past events in one’s life.
Consequently, it is common for counsel to attack the accuracy of memory by
imputing that it is a reconstruction and not a genuine recollection. However,
research now suggests that, in some cases at least, when people remember an
event they “reconstruct it from encoded elements distributed throughout the
brain”.
583
It is therefore unsafe for a court to disbelieve evidence solely on the
basis that it is a reconstruction.
Condition 3: Truthfully Recounting Facts
Introduction
Condition 3 is that the witness has truthfully recounted the facts as they believe
them to be. Since this is a condition for truth, a witness may be attacked on
the basis that they are biased or untruthful. A witness may deliberately not tell
the truth for some reason. Or there may be some matter which causes the
because Person B saw X and Person B told A. This is hearsay, and because of its
weakness in this regard it is generally inadmissible.
583
McNally (2003) p 35
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