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306
Unlocking Memories: Cognitive
Interviewing for Lawyers, by Geoff
Coughlin1
JASON CHIN2
LITIGATORS SEEKING TO IMPROVE their interviewing skills may have noticed
a recent addition to the market, a book titled Unlocking Memories: Cognitive
Interviewing for Lawyers. Written by former English police ocer Geo
Coughlin, it is marketed as a way to “elicit up to 40% more information from
your witness interviews”3 in a manner that is both accurate and ecient. Grand
aspirations, indeed.
e advertisement struck a chord with me because I am a lawyer and former
psychologist. e cognitive interview is a well-established innovation from the
forensic psychology eld that is regularly used by law enforcement. Moreover,
interviewing witnesses is an integral part of the fact-gathering process and one
that, by my estimation, most junior lawyers simply learn by observation. ere
seems to be a genuine need for a book of just this kind.
Unfortunately, Unlocking Memories falls short in many respects. e book’s
organization is disjointed. It jumps from topic to topic rather than provide a
1. (London: Ark Group, 2015) [Coughlin].
2. Dr. Jason Chin, B.A. (University of Virginia), M.A. (University of British Columbia), Ph.D.
(University of British Columbia), J.D. (University of Toronto). Lecturer, T.C. Beirne School
of Law at the University of Queensland and Adjunct Professor, University of Toronto Faculty
of Law. ank you to Barbara Grossman for bringing this book to my attention.
3. Ark Group, “Unlocking Memories: Cognitive Interviewing for Lawyers” (2015), online:
<www.ark-group.com/product/unlocking-memories-cognitive-interviewing-lawyers>.
Book Review
(2016) 54 OSGOODE HALL LAW JOURNAL307
step-by-step guide. e poor organization results from the book—despite its
name—spending little time and attention on the actual cognitive interviewing
part. Instead, Coughlin takes many detours: some are helpful (e.g., a handy
note-taking method), but others are factually inaccurate (e.g., a discredited
technique for inferring mental states from eye movements).
ese concerns aside, a discussion of what Coughlin does and does not get
right is instructive. Cognitive interviewing is an eective way to accurately plumb
a witness’s memory that is underused by lawyers. By embracing one scientically
sound interviewing technique and one pseudoscientic one, Unlocking Memories
provides both a guide for how applied science can benet a lawyer’s practice, and
an important cautionary tale for how it should not.
I. THE COGNITIVE INTERVIEW
Psychologists Ed Geiselman and Ron Fisher developed the cognitive interview
about thirty years ago to provide a practical application for the dense scientic
literature on how memory works.4 ey endeavoured to use this body of
knowledge to extrapolate an interview methodology that would get the most out
of the witness while avoiding misinformation. For example, psychologists nd
that recall is often impaired by schematic information—knowledge about how
events typically unfold, as opposed to how the particular event in question did
unfold. Geiselman and Fisher solved this problem by having subjects recall the
event both chronologically and in reverse order to break the schema (it is hard to
follow a script while reading backwards).
Geiselman and Fisher identied four fundamental recall techniques that
comprise the cognitive interview. ey merit a review.
Context Retrieval is the principal technique. To employ context retrieval
the interviewer instructs the witness to place himself or herself back at the time
and place the event occurred.5 e witness attempts to recall any sights, smells,
or noises present at the time the memory was formed. In theory, these cues should
spark memories of the original event.
Second, the interviewer instructs the witness to report everything, even if he
or she thinks it might not be relevant or complete.6 is technique guards against
4. R Edward Geiselman et al, “Eyewitness memory enhancement in the cognitive interview”
(1986) 99 Am J Psychology 386.
5. Ibid at 390.
6. Ibid.
CHIN, UNlOCkINg MeMOrIeS 308
witnesses editing out bits they think might not be relevant and fosters recall
because even incomplete memories may jog other memories.
e nal two techniques draw on the notion of schema-breaking.7
As mentioned, the interviewer instructs the witness to recall the event in a dierent
order than that in which it actually occurred. In addition, the witness recalls the
event from multiple perspectives, such as from the point of view of other witnesses.
II. THE USE AND ABUSE OF APPLIED SCIENCE IN THE LAW
When evaluating advances in applied science, two questions should be asked:
(1) is the theory behind the method sound, and (2) has the method been tested?
While some of the logic behind the cognitive interview was initially
questioned,8 a great deal of research subsequently supported the method’s
eectiveness. For example, a recent review of approximately sixty published
studies found that the use of a cognitive interview (as compared to a standard
interview) resulted in a large and statistically signicant increase in the number of
details remembered about the event in question, with a disproportionately small
increase in error.9
Coughlin generally does a good job of laying out the cognitive interview
across four stages, which includes: (1) setting the environment, (2) explaining
what will happen, (3) using the recall techniques, and (4) concluding the
cognitive interview.10 Within his stages Coughlin highlights some problems that
may arise, and ways to deal with them. Overall it is a sensible and straightforward
application of the cognitive interview model.
Still, Coughlin should have noted some limitations inherent in cognitive
interviewing that are well established in the scientic literature. Practitioners
should know that research clearly shows that the technique is less eective with
children and the advantage of a cognitive interview diminishes the longer ago the
memory was formed.11 And most importantly, the cognitive interview carries the
risk of inaccurate memories and even confabulation (i.e., the witness generates
7. Ibid at 391.
8. Amina Memon & Ray Bull, “e Cognitive Interview: its Origins, Empirical Support,
Evaluation and Practical Implications” (1991) 1:1 Journal of Community & Applied Social
Psychology 291 at 298.
9. Amina Memon, Christian A Meissner & Joanne Fraser, “e Cognitive Interview:
A Meta-Analytic Review and Study Space Analysis of the Past 25 Years” (2010) 16:4 Psychol
Pub Pol’y & L 340 at 340 [Memon et al].
10. Coughlin, supra note 1 at 62-92.
11. Memon et al, supra note 9 at 354-56.
(2016) 54 OSGOODE HALL LAW JOURNAL309
details that were not there). Research has shown that the single best safeguard is
ensuring the witness understands that it is okay to say “I don’t know.”12
While I wish Coughlin had grounded his book more rmly in the science,
there’s a more serious problem in Unlocking Memories: Coughlin’s rundown of
the operative parts of the cognitive interview occupies only about thirty pages of
a 180-page book. e rest is mostly harmless ller (e.g., a half-page photo of a
brick wall used to illustrate the metaphorical brick wall that can come between
interviewer and witness). ere is real danger, however, in Coughlin’s espousal
of a discredited pseudoscientic interviewing technique called neurolinguistic
programming, which I discuss below. I suspect the application of the cognitive
interview to lawyering was simply too straightforward an endeavour, and
Coughlin wished to pen a book rather than a manual or some other lower cost
guide. Indeed, free versions of the cognitive interview are available online and are
easily adapted to the legal context.13
III. ADDRESSING NEUROLINGUISTIC PROGRAMMING
Coughlin proposes, at several points throughout the book, that interviewers pay
close attention to the eye movements of the witness. He even provides a diagram,
reproduced twice—further evidence of ller—of a smiley face looking in various
directions. If the face is looking left, then it is having an auditory memory; if the
face is looking up, then it is having a visual memory, and so on.
Coughlin is drawing on a pseudoscientic eld known as neurolinguistic
programing (NLP), which suggests the connection between neurology and
language can be used to provide a host of benets to students of the NLP
discipline, such as mindreading and subconscious inuence. ere is a real cost
to instructing readers in this discredited technique. An already overburdened
interviewer is now required to memorize the meaning of various eye movements
and change the direction of the interview accordingly. is comes at the expense
12. Ibid at 358.
13. See e.g. Saul McLeod, “Cognitive Interview” (2010) (blog), online: Simply Psychology
<www.simplypsychology.org/cognitive-interview.html>.
CHIN, UNlOCkINg MeMOrIeS 310
of actually conducting the interview. ere might be some value if NLP were
supported by scientic research, but unfortunately it is not.14
NLP is an incoherent and discredited theory that has been used to gird the
claims of parties as varied as pick-up artists and magicians. NLP proponents
claim it represents a reliable method for determining the way in which people
are thinking based on outward bodily manifestations—for example, the eye
movements Unlocking Memories relies on.
As discussed, applied science should be both theoretically grounded and
empirically supported. NLP is neither. e theory, dressed up in psychobabble
rather than sound principle, has been around for decades without empirical
support. An authoritative review stated: “Overall, there is little or no empirical
evidence to date to support either NLP assumptions or NLP eectiveness.”15
Coughlin’s endorsement of this baseless strategy is likely an inadvertent
mistake (he’s not a psychologist) but it is a costly one. Most importantly,
it misleads the interviewer. Further, as most litigators know, an interviewer’s
mental resources are already heavily taxed during an interview. e added task
of tracking the witness’s eye movements can detract from tasks that have a
demonstrable benet, such as taking notes and conducting the interview.
IV. UNLOCKING MEMORY’S ORGANIZATION
Despite the pseudoscience, I hoped that Unlocking Memories might prove
useful as a common sense guide to performing interviews. Interviewing can be
an amorphous task that would benet from some structure. Indeed, Unlocking
Memories describes itself as a “practical text and toolkit.”16
Unfortunately, the book’s actual structure belies its mandate with a
confusing, incoherent organization that regularly jumps from topic to topic.
What I wanted—and what I think is logical in a book of this sort—is a manual
that follows the progression of an interview from preparation, through the stages
14. See e.g. Daniel Druckman & John A Swets, Enhancing Human Performance: Issues, eories,
and Techniques (Washington, DC: National Academies Press, 1988) [Druckman & Swets];
Tomsz Witkowski, “irty-Five Years of Research on Neuro-Linguistic Programming.
NLP Research Data Base. State of the Art or Pseudoscientic Decoration?” (2010)
41(2) Polish Psychological Bulletin 58; Christopher F Sharpley, “Research Findings on
Neurolinguistic Programming: Nonsupportive Data or an Untestable eory?” (1987) 34:1 J
Counselling Psychol 103.
15. Daniel Druckman & John A Swets, Enhancing Human Performance: Issues, eories, and
Techniques (Washington, DC: National Academies Press, 1988) at 143.
16. Coughlin, supra note 1 at xix.
(2016) 54 OSGOODE HALL LAW JOURNAL311
of the interview, to any follow-up tasks. at was not the case: I found important
interview preparation steps ranging from developing questions to where to sit
relative to the witness spread through chapters two, three, and ve.
e organization within chapters is also frustrating. Chapter three, for
instance, is divided into principles and interview stages. While this organization
seemed sensible at rst blush, when trying to determine how I would actually
use this book I noticed that some purported principles actually included tangible
tasks, while others referred me forward to the stages described later in the chapter.
is design issue pervades the book and renders it dicult to use.
V. CONCLUSION
Although this review has largely been negative, there are some useful tips in
Unlocking Memories. As mentioned above, Coughlin’s visual note-taking scheme
is a sensible strategy. Coughlin also recommends using meaningful pauses to
urge the witness to continue, while not wresting control from the witness. is is
indeed an aspect of tested versions of the cognitive interview.17
Unfortunately, much of the rest of Unlocking Memories is either confusing
or in opposition to established science. e paperback version of Unlocking
Memories rings in at $165. And when you factor in that the book’s primary
innovation—the application of the cognitive interview to advocacy work—spans
about thirty pages, it’s an awfully steep price to pay.
17. Memon et al, supra note 9 at 342.