Testifying Part 6 – Memory
Original article: March 5, 2017 | By Sweta Tejpal | Reviewed and updated October 7, 2026
A witness can be honest and still remember an event inaccurately. Memory is not a recording that can always be replayed unchanged. The useful question is not simply whether someone has a “good memory”, but what they could observe, what they actually remember and what may have influenced the account.
Start with the opportunity to observe
Where was the witness, and how long did they see or hear the event?
What were the lighting, distance, noise and any obstructions?
Was their attention on the relevant event or drawn to it only afterwards?
Are they reporting exact words, the substance of a conversation or an inference?
Were there specific circumstances affecting observation or recall, and what evidence supports that concern?
For example, someone drawn to a collision by a loud crash may have seen its aftermath rather than the moments leading up to it. Ask what they actually perceived. Age, disability, health or emotion must not be used as a shortcut to declare an individual’s evidence unreliable.
Later information can influence recollection
A 2013 study by Patihis and colleagues found that people with highly superior autobiographical memory were nevertheless susceptible to errors in word-list, misinformation and nonexistent-footage tasks. Strong memory ability did not make participants immune to distortion. The study supports caution about memory reconstruction; it does not establish that any particular witness has a false memory.
In practical terms, distinguish your own recollection from what you later learned through conversations, photographs, news reports or repeated questioning. If you are unsure of the source of a detail, acknowledge that uncertainty. Do not fill a gap simply because a suggested explanation sounds plausible.
Vividness and emotion do not guarantee accuracy
A 2017 study by Tambini and colleagues found improved later recollection of neutral images encountered after emotionally arousing images under controlled conditions. That finding is narrower than saying that every emotionally charged recollection of a real event is accurate. Its laboratory design does not supply a test for whether a witness’s account is true. Vividness, confidence and accuracy should not be treated as interchangeable.
Assess inconsistencies in context
As explained in Part 3 — Believe What I Say, truthfulness and accuracy are related but distinct. Compare an account with the other evidence and earlier statements. Consider what changed, how significant the difference is and whether there is an explanation. A minor discrepancy does not automatically establish a lie; a material contradiction should not simply be ignored.
R. v. Stirling, 2008 SCC 10 confirms that repetition alone does not make an account more likely to be true. Prior consistent statements are generally excluded, although exceptions permit particular uses—for example, rebutting an allegation of recent fabrication. The purpose for which a statement is admitted matters; it cannot automatically bolster every part of the witness’s account.
Children and recollections of childhood
R. v. W. (R.), [1992] 2 S.C.R. 122 rejects rigid assumptions that children’s evidence is inherently unreliable. Each witness’s understanding and ability to communicate must be considered. When an adult describes childhood events, inconsistencies about peripheral details should also be considered in light of the witness’s age when the events occurred. The Crown’s burden of proof does not change.
Capacity to testify is a separate issue from the weight given to evidence. Under section 16.1 of the Canada Evidence Act, a witness under 14 is presumed capable of testifying. Their evidence is received if they can understand and respond to questions, with the required promise to tell the truth. Counsel should identify any genuine capacity issue or need for appropriate questioning without relying on stereotypes.
Prepare without replacing your own memory
Preserve original notes, messages, photographs and recordings; do not alter them to fit an account.
Tell counsel when a note or statement was made and what information you had at that time.
Explain the difference between remembering an event and recognizing something in a record.
Ask counsel how records may properly be reviewed or used to refresh memory; do not assume you may read a script from the witness box.
Say when you do not know or cannot remember, and correct an answer if you realize it was mistaken.
The Ontario Superior Court’s criminal-trial guide explains the questioning process and use of documents. Proper preparation helps communicate an honest recollection; it cannot create a missing memory or guarantee that the court will accept an account.
Continue the Testifying series
Part 6 — Memory (this article)
Related guidance
For advice about your circumstances, contact our office. This article provides general information, not legal advice.