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Tell me exactly what you heard

How realistic is it to expect a witness to recall a suspect’s words verbatim?

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While some witnesses might remember the exact words used by a suspect, most will not.

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Originally published on the Force Science Institute website. Republished here with permission.

By Lewis “Von” Kliem, MCJ, JD, LLM

In a previous article, we rejected the idea that an officer’s memory was the equivalent of a video recorder. We cautioned that inconsistencies between an officer’s memory and a video recording could result from human performance factors and are not necessarily evidence of intentional deception.

But even in cases without video evidence, insisting that an officer (or any witness) recall events with the precision of a digital recorder is not only unrealistic, but it can also unfairly impact the perception of that witness’s credibility.

In a recent high-profile interview, investigators insisted that the witness recall the precise words used by the suspects: “Tell me exactly, not an interpretation, exactly what you heard. Let’s get exactly what you heard.”

While some witnesses might remember the exact words used by a suspect, most will not.

The Gist

People generally prefer to interpret and store information that is the most meaningful and least detailed. Between “gist memory,” which focuses on the essential meaning of information, and “verbatim memory,” which focuses on the precise form of information, humans prefer the gist.

Certainly, there are cases in which prosecutors hope to prove an exact quote (“I’d like to beat you up” is different than “I’m going to beat you up”). But how realistic is it to expect a witness to recall a suspect’s words verbatim?

The Verbatim Effect

The verbatim effect is a cognitive bias that causes people to encode and remember the meaning of conversations better than they remember the exact words. Since our brains do not record like video cameras, our memories of conversations are rarely a complete record of the experience. Instead, we perceive the words, voice and other non-verbal elements of communication and then assign meaning to them.

While we might remember a summary of what we heard or saw, we are much more likely to remember the meaning we attached to it and the feelings that it generated – and not the exact words.

Not an Interpretation

If an investigator requires an exact quote to prove an offense, then insisting that a witness recites words “without interpretation” may seem like a reasonable approach. The risk is that this requirement implies that the witness should be able to recall the exact words. It conveys an unreasonable expectation that some witnesses will attempt to meet in order to maintain their credibility.

Since we remember experiences as summaries, we are all guilty of adding enough details to our stories for them to make sense, a type of confabulation. In social settings, the details aren’t that important, especially if the point of the story is to convey the lesson learned or the feeling it engendered. This “spontaneous confabulation” may result in the generation of implausible but otherwise harmless details, and we don’t even know we are doing it.

On the other hand, investigators can unintentionally provoke confabulation in circumstances where accuracy matters. When an investigator implies that a witness should be able to recall specific details, or creates an environment in which the witness feels their credibility is being scrutinized, or subtly conditions their approval on the witnesses’ ability to provide the information they are seeking – there is a risk of “provoking confabulations.”

In provoked confabulations, witnesses may compensate for normal and expected memory deficits (like not remembering exact quotes) by non-consciously adding plausible memory distortions. In other words, they are making up the facts to fill in the gaps, but, unlike lying, the witness isn’t aware that their memory isn’t accurate.

The Role of Emotion

The meaning that we assign to information is always subject to our interpretation and individual sensemaking. This “meaning” drives our emotional response to the information and impacts how we will remember a conversation or event.

The more emotional we react (emotional valence), the more likely we will remember the meaning we assigned to a conversation and less likely we will remember the exact words. While this is true of both positive and negative emotions, research suggests that negative emotions drive us even closer to the “gist” of the conversation and take us further from the precise language.

During interviews, emotion continues to play a role in the retelling of our experiences and can impact the likelihood of provoked confabulation. Stress, conflict and anxiety can generate or aggravate confabulation. Suggestive, leading, or argumentative questions can also increase the risk of this “honest lying.”

Mitigating Risks

To be sure, if the goal of an investigator is to undermine the confidence of the witness or induce them to recant, then suggesting that the witness should remember exact quotes or that only exact quotes are relevant may certainly accomplish these goals.

That said, there are witnesses who will offer exact quotes, and investigators have legitimate reasons to verify whether these statements are paraphrased or verbatim. The challenge is to conduct these interviews in ways that increase the amount, accuracy and context of information while mitigating the risk of provoked confabulation.

Open-ended, non-leading questions that allow for free recall continue to be the best-practice for capturing the largest body of information. The risk of confabulation or defensive withholding is decreased when investigators avoid any suggestion that there is a right answer, a preferred narrative, or a need to convince or please the interviewer.

Trivial Persuasion

If a witness does offer what sounds like a direct quote, investigators are right to determine how the witness intended them. That is because there are important differences between “quotes” that we include for rhetorical effect (persuasion) in our personal lives and those offered during official investigations.

First off, if a witness offers a verbatim account of a conversation under circumstances that we wouldn’t ordinarily expect them to remember, it is worth finding out why. But beyond that, failing to distinguish a paraphrase from a quote can unnecessarily expose witnesses to impeachment when imprecise statements are attacked as intentional distortions or deception.

By distinguishing paraphrases from quotes, investigators can also mitigate the risk of “trivial persuasion.” Trivial persuasion is the theory that witnesses who provide more detail are perceived to be more credible – even if those details are trivial and unrelated to the central case.

Suppose a witness offers information as a “quote” that is actually the product of confabulation, exaggeration, or simply carelessness. In that case, this distinction should be identified before the witness benefits from an undeserved credibility boost.

Discrediting Effect

There is another risk that investigators (and attorneys) must guard against, which is the risk of the discrediting effect.

If an audience (e.g., investigator, attorney, or jury) is convinced that a witness should remember specific details (whether they should or not!), getting that witness to admit they cannot remember those details can effectively discredit the witness.

To mitigate the risk of the discrediting effect, interviewers are encouraged to understand the factors that affect memory – factors such as emotional arousal, trauma, perception, attention, and bias. Only then can they manage audience expectations and avoid asking direct questions of witnesses that these witnesses may not reasonably be able to answer.

We are Not Video Cameras

At a time when agencies, communities, and courts continue to expect our brains to record like video cameras, understanding the verbatim effect, confabulation and trivial persuasion is critical. Of course, we are not video recorders, and it’s only after we consider the process of memory formation and recall that we can effectively guard against the discrediting effect that can result when witnesses are unable to tell us exactly what they heard.

About the author

With nearly 30 years in the criminal justice profession, Lewis “Von” Kliem, MCJ, JD, LLM, worked as a civilian police officer, attorney, educator and author. Von is an Attorney II for Lexipol, the executive editor of Force Science News and co-owner of Von Kliem Consulting, LLC, where he trains and consults on constitutional policing, use of force analysis, crisis communications and trauma-informed interviewing. The views and opinions expressed in this article represent the views and opinions of the author and do not necessarily represent the views or opinions of Lexipol.

About the Force Science Institute

The Force Science Institute (FSI) was launched in 2004 by Executive Director Bill Lewinski, PhD, who has a doctorate in police psychology. FSI conducts sophisticated scientific research studies in human behavior to document the physical and mental dynamics of life-threatening events, including officer-involved shootings. Its findings impact officer training and safety and the public’s perceptions of police use of force.

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The FSRC was launched in 2004 by Executive Director Bill Lewinski, PhD. -- a specialist in police psychology -- to conduct unique lethal-force experiments. The non-profit FSRC, based at Minnesota State University-Mankato, uses sophisticated time-and-motion measurements to document-for the first time-critical hidden truths about the physical and mental dynamics of life-threatening events, particularly officer-involved shootings. Its startling findings profoundly impact on officer training and safety and on the public’s naive perceptions.