The outcome of most claims, whether worker’s compensation or personal injury, often boils down to which side tells the most credible story. And the story starts with the claimant and other eyewitness interviews. How and when these interviews are conducted can have a significant impact on what story gets told and how believable that story is. Fortunately, cognitive science has taught us a great deal about how memory works and what interview techniques are most likely to yield the most complete and accurate eyewitness accounts.
Before we get to the actual strategies for conducting better interviews, a brief primer on human memory formation and recall is in order. Human memory is not, as many assume, like video footage that is stored and can be replayed at will. Instead, memory formation and recall “is a constructive process influenced by knowledge, beliefs, expectations, and schemas.” Many people also believe that we are like video cameras that encode everything that enters the visual field, regardless of where our attention was being directed. This is simply not how memory works: “Events can only be incorporated into explicit memory if they are noticed, and attention plays a central role in the encoding process.” In addition, when people are asked to remember things from the same event on multiple occasions, they often remember different things because the different retrieval attempts “make different aspects of the memory accessible.” Laypersons and legal professionals find this counterintuitive, but “repeated interviews can be a means to improve recall performance.” (The recall of additional information about the same event at subsequent interviews is called reminiscence. ) Finally, most researchers agree that the most important way to avoid corrupting memory during an interview is to ask open-ended questions that are not suggestive.
To start with our discussion of strategies for interviewing, the timing of the first interview is critical. Odinot, et al. (2013) found that test subjects interviewed immediately after watching videos of a crime being committed provided more new details in a second interview than test subjects whose first interview after watching the video was delayed. As the authors note, “this research shows for the first time, how critical the timing of a first interview is and it supports the use of interview protocols where information can be gathered from witnesses as soon as possible after an event is witnessed.” The authors reason that “because more information is retrieved in the initial interview (than would otherwise be recalled) there may be a greater chance that these details will be used as memory cues in future interviews and/or that an earlier cognitive interview reduces forgetting of details.” The research demonstrates that if you want to get the most complete account of an event from witnesses, the first interview should be completed shortly after the event is witnessed, when possible.
In the worker’s compensation setting, this often will require the employer to conduct the first interview since there is typically a delay between when the employer reports the injury to the insurer and the time when the claim handler assigned to the case begins her investigation. Hence, it is critical that employers be provided with the tools to conduct an effective interview. This could come in the form of employee training or use of a thorough interview checklist or both. In addition, given the importance of the timing of the first interview, insurers may be wise to institute procedures that ensure a claim handler or investigation specialist is available on the same day a claim is received to conduct the necessary interviews if the insurer cannot rely on the employer.
Unfortunately, insurers in personal injury claims are often at a disadvantage compared to insurers in worker’s compensation claims because they do not have a surrogate, like an employer, who is “on the ground” and can act in their stead. Insurers in personal injury claims are generally at the mercy of the parties involved in the accident to promptly report the claim. A personal injury insurer thus cannot conduct any interviews until after a claim has been submitted and only then if the parties have exchanged accurate information. Otherwise the insurer may experience a delay in getting enough witness information to conduct interviews. In the personal injury setting, insurers should have a policy of proactively securing witness information and conducting interviews within 24 hours of the occurrence when possible.
Another useful finding from Odinot, et al. is that “a repeated interview yielded on average, 21% of previously unreported details…” Of note, Odinot, et al. did not find that reminiscence reduced study participants’ accuracy and specifically reported that “contradictory testimonies were extremely rare…” The results of the study demonstrate that “two cognitive interviews can elicit more information than just one.” Other studies have also found that multiple interviews elicit more information than a single interview and that the additional information, though technically inconsistent, was nonetheless accurate.
These findings suggest that to obtain the most accurate and complete witness testimony, two interviews should be conducted rather than just one. We tend to think that reminiscence is an inconsistency that should be viewed with suspicion; however, Odinot, et al. (and other studies) show that reminiscence is in fact accurate. If we want the fullest and most accurate witness statements, we should accept that a second interview will likely produce more information than just one interview and that so long as the additional information is not contradictory, it is likely to be accurate. As noted above, Odinot, et al. concluded that “there may be a greater chance that these details [from the first interview] will be used as memory cues in future interviews and/or that an earlier cognitive interview reduces forgetting of details.” Fisher, et al. demonstrate that reminiscence shoud generally be considered accurate: “No matter how we scored the data, there was no evidence to support the ‘Courtroom’ theory that reminiscence is predictive of inaccuracy of the overall testimony.” Remarkably, even witnesses who made many contradictory statements were found to have an overall accurate recollection when taking out the contradictory statements.
To get the most out of the interview process, some simple rules should be followed. First, at least two interviews should be conducted. This is the best way to guarantee the most complete information will be obtained. Second, the first interview should be completed as soon as possible after the event, preferably on the same day. The second interview should occur after a delay of at least one day but no more than seven days. Third, all questions should be open-ended and non-suggestive. The reason is that numerous studies demonstrate that asking closed questions such as “did the suspect have facial hair?” produce inaccurate witness recollection when compared to open questions such as, “what did the person look like?” Studies also demonstrate that suggestive questioning causes witness inaccuracy by cuing the witness into a detail or answer that may not reflect what the witness actually saw. Suggestive questions cause witnesses to think that the suggested answer is the correct one and so they will blend or bend their memory to accommodate the suggestion and hence provide an inaccurate answer. Fourth, the first and second interview should be conducted by the same person. For reasons not entirely understood, both reminiscence and accuracy increase when both interview are conducted by the same person. Following these steps will help ensure that you obtain the most complete and accurate information possible, which will ensure that the story you tell is the most credible one.
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