Confabulation: A Beginner’s Guide for Legal Professionals

Abstract

Confabulation can be defined as the unintentional creation of a false or inaccurate memory to compensate for memory gaps or deficits. Although some similarities may exist, the phenomenon of confabulation is distinguishable from other issues like suggestibility, malingering, and delusions. The possibility of confabulation is particularly pernicious in criminal justice settings. Here, self-reported memories play an integral role in the confessions and testimony of suspects, defendants, victims, and eyewitnesses. To raise awareness of this possibility, and protect against its consequences, this article reviews warning signs and risk factors for confabulation, tips on how to communicate with and treat individuals who may be confabulating, and recent research in the area of confabulation. In short, this serves as an introduction to confabulation for legal professionals.

Full text

ISSN: 2513-8677
Forensic Sci Criminol, 2017 doi: 10.15761/FSC.1000119
Research Article
Forensic Science and Criminology
Volume 2(3): 1-5
Confabulation: A Beginner’s Guide for legal professionals
Jerrod Brown1,2,3, Cody Charette4, Deb Huntley1, Anthony P Wartnik1, Cameron R Wiley5, Janina Cich1,3, Stephen Morgan1 and Kimberly D
Dodson6
1Concordia University, St. Paul, MN, USA
2Pathways Counseling Center, St. Paul, MN, USA
3The American Institute for the Advancement of Forensic Studies, St. Paul, MN, USA
4Alliant International University
5North Carolina Central University, Durham, NC USA
6University of Houston – Clear Lake, Houston, TX USA
Abstract
Confabulation can be dened as the unintentional creation of a false or inaccurate memory to compensate for memory gaps or decits. Although some similarities may
exist, the phenomenon of confabulation is distinguishable from other issues like suggestibility, malingering, and delusions. e possibility of confabulation is particularly
pernicious in criminal justice settings. Here, self-reported memories play an integral role in the confessions and testimony of suspects, defendants, victims, and eyewitnesses.
To raise awareness of this possibility, and protect against its consequences, this article reviews warning signs and risk factors for confabulation, tips on how to communicate
with and treat individuals who may be confabulating, and recent research in the area of confabulation. In short, this serves as an introduction to confabulation for legal
professionals.
Correspondence to: Jerrod Brown, 1919 University Ave. W. Suite 6 St. Paul MN,
55104, USA, E-mail: jerrod01234brown@live.com
Keywords: Confabulation, criminal justice, court, legal, memory
Received: August 20, 2017; Accepted: September 27, 2017; Published:
September 30, 2017
Confabulation: An introduction
Confabulation is the act of providing inaccurate information
without the intention to deceive [1,2]. e basis of this information
can take several forms including being the result of gaps in memory,
distortions of actual autobiographical recollections, problems
retrieving factual information, or the fabrication of memories with no
basis in reality. In this context, autobiographical recollections consist of
memories of personally experienced events [3-5]. Similarly, problems
retrieving factual information in this context consists of facts not
related to the episodes of one’s own life but a general knowledge of the
world [2,6,7]. is phenomenon can be the result of brain damage or
other cognitive decits that involve a host of memory errors ranging
from small distortions of actual experiences to the creation of novel and
bizarre memories that are not plausible in the real world. Detection is
made more dicult because individuals who confabulate believe that
what they are saying is accurate, true, and correct. Confabulation is a
challenging and oen confusing phenomenon to understand because
it has an uncertain etiology and an array of forms in which it presents.
Part of the confusion lies in the fact that confabulation has multiple
denitions, types, and forms.
ere are two main types of confabulation: spontaneous and
provoked [8]. Spontaneous confabulations are unprompted attempts
at lling in gaps in memory. Such confabulations are relatively
rare, manifesting mainly in cases of dementia and Alzheimer’s
disease. Spontaneous confabulation is believed to be an interaction
between frontal lobe pathology and organic amnesia [9]. Provoked
confabulations occur in response to a prompt, or an external cue,
and may represent a normal response to a faulty memory [10]. ese
types of confabulation can become apparent during memory tests,
interviews, or under cross-examination.
Confabulation most commonly takes either verbal or behavioral
forms. Verbal confabulation occurs when someone states a false
memory. In contrast, behavioral confabulation occurs when someone
physically acts on his or her own false memory [11-13]. Whereas
confabulation can arise in individuals with no identied cognitive or
psychiatric conditions, it oen associated with an extensive range of
neurocognitive and psychiatric disorders. Disorders associated with
confabulation include traumatic brain injury (TBI), schizophrenia,
post-traumatic stress disorder (PTSD), Wernicke-Korsako syndrome
(WKS), fetal alcohol spectrum disorder (FASD), frontotemporal
dementia, and Alzheimer’s disease [14-19]. Confabulation has also
been documented in individuals with no apparent brain impairment or
disorder or cognitive limitation [18].
e prevalence rate of confabulation in both general and criminal
justice-involved populations is currently unknown. Although
confabulation may be an unfamiliar concept to legal professionals,
it has a disproportionate signicance within the criminal justice and
civil legal systems. roughout their careers, it is likely that legal
professionals will encounter at least one individual, and probably
multiple individuals who confabulate. As such, legal professionals are
encouraged to become familiar with this memory phenomenon.

Brown J (2017) Confabulation: A Beginner’s Guide for legal professionals
Volume 2(3): 2-5
Forensic Sci Criminol, 2017 doi: 10.15761/FSC.1000119
Criminal justice system implications
Despite being a largely unfamiliar topic to legal professionals,
confabulation can have a detrimental impact on individuals involved in
the criminal justice system as well as the integrity of the judicial process
itself [14,15,20,21]. In legal settings, individuals prone to confabulation
may be at an increased risk to provide inaccurate statements while being
questioned by law enforcement ocers or attorneys. For example, some
individuals who confabulate may make false confessions they believe
to be completely accurate. A bizarre and tragic account of the depth,
breadth, and severity of this phenomenon was recently reported in an
article in e New Yorker magazine. In the article, the author reports on
the false, yet rmly believed confessions of six individuals to the sexual
assault and murder of a woman. Aer a trial and guilty verdict for all
six, a DNA evidence later exonerated them. Even aer the exoneration
each truly believed they had committed the crime [22]. Given that
many legal processes strongly rely on the accounts of a defendant or
witness, confabulation is highly damaging to a criminal defendant at
trial. If present, confabulation can taint confessions, eld interviews,
eyewitness testimonies, jury verdicts, and adversely aect sentencing
outcomes. is is particularly pertinent during stressful situations such
as interrogations, where the use of deception, misinformation, and
manipulation are all legal and common [20,23,24]. A confabulating
individual may relay completely false or partially inaccurate witness
accounts that may lead to the wrongful prosecution or conviction
of others. In addition, a confabulating individual may unknowingly
provide a false alibi for someone, and a guilty person walks free.
However, if prosecutors discover a person lied under oath, that person
may be charged with perjury even though he or she had no intention
to lie. Confabulation can also interfere with the defendant’s ability to
assist counsel in his or her defense, up to and including rendering the
defendant incompetent to stand trial [16,25,26].
Confabulation also aects performance on tasks requiring
memory, including responding during interrogations, testifying in
court, and participating in court-ordered forensic assessments [25-
27]. Additionally, it may confer a vulnerability to suggestibility, which
exacerbates the issues described above when certain suggestive and
closed-ended questions used in interview techniques are utilized (e.g.,
disorders including amenesia). To protect against the potential impact
of confabulation on the criminal justice process, legal professionals
should remain skeptical of the accounts made by individuals with a
history of confabulation and associated risk factors. Verifying the
reported information with collateral evidence from third-party
witnesses or corroborating physical evidence can then alleviate
the skepticism. In some cases, confabulation can even contribute
to continued involvement in the criminal justice system if it is not
recognized early, as individuals inadvertently continue to provide
objectively false information in an attempt to please other people.
As such, legal professionals should be familiar with confabulation
to provide or refer the client to appropriate services. With all of
this in mind, the remainder of this article reviews some important
considerations, presented in alphabetical order, about confabulation
that all legal professionals should know.
Points and considerations
Accurate recall
Suering from confabulation may make it dicult for an individual
to navigate the legal process. e ability to accurately recall events is
an integral component of this multifaceted and oen complex process.
From police interrogations to testifying in court, a wide range of legal
activities rely on complete, honest, and accurate recollection [25-
27,29]. e integrity of these steps is compromised when an individual
who confabulates goes undetected but is still required to go through
the aforementioned legal procedures. Further complications arise if
executive functioning and memory-related impairments related to
additional co-morbid mental disorders aect the individual.
Collateral sources
If confabulation is suspected, or subsequently conrmed, it is
critical to be wary of the individual’s accounts and recall. When
determining the accuracy of a client’s self-reported accounts, legal
professionals may need to use collateral sources as an alternative way
to obtain accurate information or to determine the veracity of client’s
recollections. Interviewing close family members who can conrm the
individual’s past proclivities and behaviors, as well as friends who can
attest to their personality and aect, can provide veried conrmation.
Additionally, ocial documents like medical and criminal justice
records, help paint a more complete and accurate picture of the both
situation and the aicted individual [14,30].
Continuing education training
Few advanced training and education options geared toward
identifying and understanding confabulation exist for legal
professionals. Education and training programs that focus on the
legal and forensic aspects of confabulation are desperately needed.
Specically, being able to identify potential symptoms of confabulation
and seeking the proper assistance for aected individuals is crucial.
rough advanced training and education, these professionals can
improve their ability to identify, manage, and assist clients who
confabulate.
Delusions
It is essential that delusions be distinguished from confabulation.
To the untrained observer, delusions and confabulation may appear
to be similar aictions [31]. However, a major dierence lies in the
strength of their commitment to the belief or memory. Delusions are
dened as the rm, false beliefs that can be maintained even in the face of
contradicting arguments or evidence [32]. Conversely, confabulations
are dened as inaccurate memories and can be altered in the presence
of high pressure or convincing alternatives.
Documentation
If legal professionals suspect that confabulation is present, they
must document it in the case le. Attempts must then be made to
obtain conrmation from reliable secondary sources as described in
collateral sources above [30]. If a diagnosis is conrmed, all subsequent
steps of the legal process must be tailored to the unique circumstances
confabulation presents. It is critically important to eectively challenge
false confessions in court, where the truthful nature of confabulated
confessions can be more closely scrutinized.
Eective intervention
Eective interventions for confabulation may require the
establishment and maintenance of working relationships with other
professionals in relevant elds, including mental health providers
who possess experience in dealing with confabulation in forensic
settings. Confabulation, by its very nature, necessitates enlisting a
multidisciplinary team of professionals to increase the likelihood of
success for both the individual and their case [33].

Brown J (2017) Confabulation: A Beginner’s Guide for legal professionals
Volume 2(3): 3-5
Forensic Sci Criminol, 2017 doi: 10.15761/FSC.1000119
Explore
Exploration of how confabulation may have aected individuals
in their personal and professional life is paramount [15,16,21,30,34].
Are individuals aware that their life has been aected by confabulation?
How has confabulation impacted their relationship with family,
friends, or professional service providers as described by the aicted
individual? e answers to these questions are essential to helping the
client, or patient, and must be veried by secondary sources. It is also
important for legal professionals to explore the impact confabulation
has had on the individual’s overall legal process so proper adjustments
can be established.
Identication issues
e identication of confabulation is extremely dicult to the
untrained observer. Identication is complicated by the fact that
individuals aicted by confabulation are unaware, or lack insight, which
they suer from this memory phenomenon [35,36]. Furthermore, some
of the symptoms for confabulation can be attributed to a host of other
disorders, both cognitive or behavioral, or are mistaken as delusional
behavior or malingering. Confabulation can vary wildly by case, which
increases the diculty of identication, assessment, and appropriate
intervention.
Lying
Confabulation is distinct from willful lying. By denition,
individuals who suer from confabulation are not aware that their
memory is inaccurate and are not trying to intentionally deceive
anyone. Conscious lying is generally willful and done for the purpose
of deception. e individual engaged in lying is consciously aware that
the information provided is not accurate [25,26].
Inaccurate self-reports
e screening and assessment process of these clients can be
dicult given that confabulation could render a client’s self-report
as unintentionally inaccurate. e false nature of these reports may
be masked by the client’s perceived normal appearance and apparent
conviction as they provide their accounts [21,25,30,34]. Unfortunately,
the consequences of not eectively addressing this issue oen result
in inaccurate diagnoses, inappropriate treatment, and improper
sentencing outcomes. In extreme circumstances, confabulation may
be a factor in cases involving false arrest, wrongful prosecution, or
conviction of an innocent person [14,16,30].
Interviews and interrogation
Stress and anxiety can lead to or exacerbate confabulation.
Unfortunately, these factors are common throughout the interactions
that take place during the judicial process. Interviews or interrogations
that are argumentative, hostile, insistent, or make suggestions to an
individual through the use of leading questions may increase the risk
of confabulating memories [37,38]. To increase the comfort level of
the interviewee, it is advisable to adjust the tone of the interrogation or
interview to decrease the potential for stress and anxiety. Additionally,
open-ended questions provide the aected individual with more
freedom in their answers. Closed-ended questions place increasing
pressure on the individual to give a certain answer from a short
list of possibilities, which oen results in an increased chance for
confabulation in order to t the narrative being presented and thereby
please the interviewer [14,16].
Malingering
Confabulation is the creation of false memories in the absence of
intentional deception. In this phenomenon, the individual’s sincere
conviction of the absolute veracity of the false memory distinguishes
it from malingering, or the intentional telling of untruths. It is not
“lying” in the conventional sense of the word. is is an important
point to emphasize because untrained professionals may misinterpret
confabulation as a malicious attempt to deceive rather than the product
of neuropsychological decits. ose who confabulate may simply be
trying to ease the stress of their current situation by appeasing the
interviewer, rather than purposefully attempting to subvert or aggravate
it. Whether distorted memories of an actual event or the creation of an
imagined one, confabulation should not be confused with intentional
lying, or malingering, for personal gain [15,25,26].
Memory condence
e accuracy of memory does not increase as a function of
condence in one’s own memory ability. is issue is particularly
salient when confabulation is suspected or conrmed to be present
[39]. People, including legal professionals and jurors, are more likely
to believe a memory is true if the person appears condent in that
memory. e convincing nature of an individual’s confabulations may
establish the foundation for faulty decisions by legal and mental health
professionals, which can have signicant negative consequences long
into the future.
Memory problems
Individuals who confabulate may suer from short- and long-term
memory loss. In some instances, these individuals may be unable to
recall important details from recent events [39,40]. is is a skill that
is critical to the accuracy of interrogations and testimonies. In other
circumstances, confabulations involving autobiographical information
can lead to inaccurate assessments and diagnoses in forensic settings.
ese decits may be more severe among individuals with co-occurring
neurocognitive or neuropsychiatric disorders [13].
Misdiagnosis
Since confabulation can result in an inaccurate diagnosis,
legal professionals should reconsider the appropriateness of any
previous diagnoses that may aect or account for the presentation of
confabulation. is reconsideration may include co-morbid disorders
such as FASD, TBI, and bipolar disorder among others [14,17,41-
43]. e challenge for the professional is determining whether the
confabulation is a result of some other phenomenon or independent
of external circumstances. is consideration is especially important
when the court orders an evaluation of competency to stand trial.
Misinterpretation of intent
Despite the facade of condence and accuracy, individuals may
confabulate entirely false memories of imagined details or events
[2,32,36]. It is important to note that in some instances, confabulation
can be based on partially true information grounded in a kernel of
truth. Confabulation by denition has no malicious component.
e presentation of false information is genuine and unintentional.
If these characteristics are not well understood, legal professionals
may mistake the phenomenon as a means to escape punishment. In
time, the professional may become resentful or frustrated with the
individual, which can negatively aect their subsequent treatment and
the quality of the legal services provided. As such, the recognition of

Brown J (2017) Confabulation: A Beginner’s Guide for legal professionals
Volume 2(3): 4-5
Forensic Sci Criminol, 2017 doi: 10.15761/FSC.1000119
confabulation remains incredibly dicult but extremely important for
legal professionals.
Psychological testing
e presence of confabulation may necessitate more advanced
neurological and psychological screening compared to typical cases
where such measures would not be necessary [15,21,34]. When
confabulation is suspected, legal professionals should consider
referral to a qualied mental health professional to ensure appropriate
psychological and neurological testing to establish denitive
conrmation. Expert testimony in court also may be required to educate
the judge, jury, and other attorneys about the features of confabulation
and its detrimental impact on the criminal justice process. at
testimony, in large part, will be based on data from the psychological
testing conducted by the multidisciplinary team or a clinician.
Suggestibility
Individuals who suer from confabulation may also be prone to
suggestibility [20,29]. Specically, these individuals may be likely
to adopt the statements or views of others when asked the same
question repeatedly or when they are given negative feedback. is
is commonplace during police interrogations and cross-examination
by attorneys at trial, so it is important to create a calm, low-pressure
environment and avoid using suggestive or leading questions and
statements. Permitting for an independent recall of information will
likely reduce their propensity of integrating outside inuences, details,
or confabulation of their narrative [14,16].
Understand
Legal professionals should understand the potential consequences
and outcomes of confabulation, especially when there have been
multiple veriable instances from an individual. Confabulation can be
emotionally stressful for both the individual and the people that they
encounter. is is especially true for those that are directly involved
with their case. By having an awareness of and greater understanding
regarding the complexities of confabulation and its impact on the
various stages of the trial process, legal professionals will be better
prepared mentally and emotionally to assist aected clients.
Suggestions for further research
Confabulation is in desperate need of systematic and sophisticated
research. Foremost, research has the potential to help clarify what
confabulation is and how it manifests itself. is information is of
great value to professionals working in mental health and criminal
justice settings. One viable option of accomplishing this goal is the
administration of surveys to dierent groups of professionals. For
example, surveys of legal professionals like attorneys and judges can
help crystallize what these professionals know and how they think
about confabulation in their respective elds. Similar surveys for
forensic evaluators are also ideal, as this group is oen tasked with both
evaluating a client and later testifying about them before the court.
Beyond those that play a role in trials, it is also essential to understand
what corrections professionals, such as parole ocers and correctional
ocers, and mental health professionals, such as substance use
treatment providers, know about confabulation. Last but not least,
surveys exploring the insights of family members, caregivers, and peers
may be extremely benecial to the eld. A recurring theme in surveys
to all of these groups must be an eort to improve understanding of
how confabulation impacts an individual’s ability to navigate the
legal system. is is especially important for those going through
competency to stand trial evaluations or those having to make dierent
legal decisions such as whether to request a jury trial or waive certain
individual rights. Responses to such questions across these groups
have the potential to help identify ways to improve how services are
provided to criminal justice-involved individuals who confabulate or
are at an increased risk to confabulate. If the information presented
above receives due consideration, there will be several opportunities to
improve short- and long-term outcomes for these individuals.
Conclusion
e negative eects of confabulation on the criminal justice system
are many and varied. Legal professionals are likely to encounter
individuals who confabulate at some point during their careers. To
minimize the consequences of confabulation, these professionals should
become more familiar with the characteristics of the phenomenon and
its potential ramications on the various stages of the judicial process.
Familiarizing themselves with the current published research literature
can facilitate a better understanding of confabulation. In so doing,
appropriate approaches and intervention strategies can be applied.
ese strategies can dramatically increase the likelihood of long-term
success for both the aected individual and the overall outcome of his
or her criminal case. Advanced training, education, and consultation
may also be necessary when attorneys and other criminal justice
personnel encounter clients who confabulate. In summary, due to the
serious negative impact of confabulation on criminal-justice-involved
populations, there is a genuine need for education and training
programs about confabulation for all legal professionals.
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