In the Jan. 25 “Ethics Forum“ of the Pennsylvania Law Weekly, Samuel Stretton drew what he termed a “bright line” about the content of witness preparation sessions and said unequivocally that witness preparation “should not involve helping the witness to re-construct what occurred.” Having coauthored an article titled, “Reconstructing Reality — Preparing the Deponent to Testify,” Litigation, Fall 1988, at 19, we disagree.
In “The Berlin Stories,” Christopher Isherwood wrote: “I am a camera.” But we aren’t really cameras. Psychologists have shown that human memory is a creative, subjective process of reconstruction rather than the unfailingly faithful playback of a video. So, when it comes to witness preparation, reconstructing what occurred is inevitable — the witness himself starts the reconstruction process the instant he begins to lay down the first subjective memories of the events, including subconsciously substituting routine, inference or desire for memory, selectively discarding certain events, and recalling events that did not occur.
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