Experienced litigators often describe successful trial preparation as a process that begins with identifying desired outcome, followed by “reverse engineering” the constituent parts of the desired result.
In most cases, the constituent parts of civil litigation leading to a successful jury trial are the pleadings, pretrial discovery and deposition practice, witness testimony at trial, trial advocacy, and finally jury instructions. Remember: Jury instructions, not closing arguments, are the last things that a jury hears before retiring to deliberate the case. So deposition questions that explore the same issues raised by the trial court during jury instructions are sure to resonate with jurors as they consider the case.
Jury instructions, not closing arguments, are the last things that a jury hears—so deposition questions that reflect those instructions are more likely to resonate during deliberations.
A good example of how jury instructions can be used to develop compelling deposition questions can be found in the Massachusetts Supreme Judicial Court’s recent decision to revisit its model jury instructions on eyewitness identifications. According to a memo outlining the reasons for the proposal, advances in scientific research into human memory suggest the need to give jurors new guidance on the fallibility of witness memories – particularly on the weakness of eyewitness identifications.
The Fallibility of Human Memory
The Massachusetts proposed jury instructions would allow trial judges to provide jurors with the latest insights from scientific research on memory, particularly the recognition that human memory is not as reliable as most of us would believe. From the proposed Massachusetts jury instructions:
Honest mistakes occur because our minds do not work like a video recorder. Our surroundings contain more information than we can take in at once. Also, we cannot store all that information accurately in our memory, no matter how hard we try. In addition, over time, many things can change a witness’s memory and affect the accuracy of their identification testimony. So, we cannot just replay a “mental recording” to remember what happened. Perception and memory are much more complicated.
The proposed model jury instructions are a goldmine for litigators in any jurisdiction because they contain a treasure trove of legal research, scholarly research into the vagaries of human memory, and – importantly – suggestions for questions that could be asked of any witness during any deposition.
The usefulness of information regarding weaknesses in eyewitness identifications is not limited to criminal trials. It’s also relevant to civil litigation, where witnesses are frequently asked to describe:
- events leading up to personal injuries and motor vehicle accidents
- negotiations and circumstances surrounding contracts and business dealings
- warnings received regarding medical care and drug prescriptions
- testamentary intent for wills and trusts
- workplace issues such as job performance warnings, terminations, and promotions
We know now that human memories are constructed after the fact, based on highly selective impressions of events, collected by senses that are fallible to varying degrees (e.g., mental impairments, physical impairments, inattention). Moreover, memories are dynamic. They change over time. The Massachusetts proposed jury instructions would expose jurors to recent scientific research into human memories, giving them guidance on reasons to accept – or discount – eyewitness evidence they heard during trial.
Scientific studies tell us that:
- Witnesses may honestly believe their memory is accurate but still make honest mistakes due to the nature of memory encoding, storage, and retrieval. Nor does confidence correlate strongly with accuracy.
- Factors such as lighting, distance, duration of observation, the presence of a weapon or other distractions, and stress levels can impair a witness’s ability to accurately perceive and remember salient facts.
- Exposure to information after the event can alter a witness’s memory and confidence, sometimes inflating confidence without improving accuracy.
- The passage of time between the event and identification generally decreases memory reliability.
- Memories can be altered or contaminated by discussions with others.
People tend to have overconfidence in the accuracy of their memories. But, as the cognitive experts tell us, that’s because most memories occur within our own thoughts, where no one is present to contradict them.
Applying Science to Deposition Preparation
Armed with these insights, litigators can develop compelling lines of inquiry whenever a witness gives damaging testimony based on memory and sensory impressions. For example:
- What opportunity did the witness have to observe and remember relevant events?
- How far away was the witness from the event? For how long?
- What were the lighting conditions or conditions for hearing?
- How good or bad was the witness’s eyesight or hearing?
- Was the witness under stress?
- Were there any other conditions that affected the witness’s ability to perceive and remember events accurately, such as tiredness, sleep deprivation, an injury, illness, or consumption of alcohol or drugs?
- How much time passed between the witness’s testimony and the event in question?
- Has any new information been brought to the witness’s attention between the event in question and the date of the witness’s testimony? (Possible memory contamination can come in the form of post-event exposure to documents, other witness testimony, or conversations with investigators and legal counsel.)
- Has the witness’s memory of the event changed over time?
The specific facts of each particular case will necessarily inform the questions to be asked at deposition time. Importantly, though, it’s easy to see how deposition questions that track the same issues identified by the trial judge’s jury instructions can be compelling for jurors.
Readers interested in diving deeper into this topic should consult the influential 2014 report, Identifying the Culprit: Assessing Eyewitness Identification from the National Academies of Science. The NAS report prompted legal reform efforts across the country, leading many jurisdictions to provide jurors with specific instructions on the vagaries of human memory and the weaknesses of eyewitness identification evidence. There is also a treatise from LexisNexis, Eyewitness Testimony: Civil and Criminal, that addresses how lawyers can apply scientific insights into human memory to witness interviews, discovery and motions practice, and the trial of contested civil matters.
The public comment period on the Massachusetts model jury instructions closes Sept. 16, 2025, but litigators can put insights gleaned from this document to good use right now. After all, artificial intelligence isn’t the only way for litigators to prepare for depositions these days.
