Confabulation: What Is It? https://www.youtube.com/watch?v=Z3uMgcRUYBs

My life, and the life of my family has been ruined by false testimony. My false accuser was a woman who was experiencing the strange phenomenon of 'Confabulation'. I had never heard of this before. Yet it was to cause the end of my career as an Anglican clergyman, and drive me to the point of despair.

Sadly, even now, many years later, the church authorities remain unable to acknowledge the tragedy of my plight, and treat me as a potential criminal, continuing to deny me the honour and respect that are my due.

Confabulation is the unintentional creation of a false or inaccurate memory to compensate for memory gaps or deficits. Although some similarities may exist, this is distinguishable from other issues like suggestibility, malingering, and delusions. The possibility of confabulation is particularly pernicious in criminal justice settings.

For Legal Professionals and Victims

This post reviews warning signs and risk factors for confabulation, guidance on how to treat individuals who may be confabulating. It also looks at recent research in this area.

Confabulation

This is the act of providing inaccurate information without the intention to deceive.

The 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 a personally experienced event. 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. This phenomenon can be the result of brain damage or other cognitive deficits 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 difficult because individuals who confabulate genuinely believe that what they are saying is accurate, true, and correct.

Confabulation is a challenging and often confusing phenomenon to understand because it has an uncertain cause or causes. It also presents in an array of forms. Part of the confusion lies in the fact that confabulation also has multiple definitions, types, and forms.

However, there are two main types of confabulation: spontaneous and provoked.

Spontaneous confabulations are unprompted attempts at filling 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.

Provoked confabulations occur in response to a prompt, or an external cue.

The disorder most commonly takes either verbal (oral) or behavioural forms.

Verbal confabulation occurs when someone states a false memory.

In contrast, behavioural confabulation occurs when someone physically acts on his or her own false memory. Disorders associated with confabulation include traumatic brain injury, schizophrenia, post-traumatic stress disorder, Wernicke-Korsakoff syndrome, fetal alcohol spectrum disorder, frontotemporal dementia, and Alzheimer’s disease. It has also been documented in individuals with no apparent brain impairment or disorder or cognitive limitation. How often confabulation occurs in a legal/criminal context is currently unknown. This means of course that the number of people wrongly incarcerated as a result of confabulated testimony is also unknown.

Although knowledge and familiarity with this condition is unfamiliar to many in the legal profession, it has a disproportionate significance within the criminal justice and civil legal systems.

Throughout their careers, it is likely that your solicitor or barrister will encounter at least one individual, and probably multiple individuals who confabulate.

Criminal justice system implications.

This disorder can have a detrimental impact on individuals involved in the criminal justice system as well as the integrity of the judicial process itself. In legal settings, individuals prone to confabulation may be at an increased risk to provide inaccurate statements while being questioned by police, the CPS or lawyers. Equally, their 'victims' - those against whom this evidence is being charged - face the possibility of many years of incarceration for a crime they did not commit.

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 The New Yorker magazine:

In the article, the author reports on the false, yet firmly believed confessions of six individuals to the sexual assault and murder of a woman. After a trial and guilty verdict for all six, a DNA evidence later exonerated them.

And yet, even after their exoneration each truly believed they had committed the crime.

Confabulation is highly damaging to a criminal defendant at trial, given that many legal processes strongly rely on the accounts of a defendant or witness.

Confabulation can taint confessions, field interviews, eyewitness testimonies and jury verdicts. It can also adversely affect sentencing outcomes. This is particularly pertinent during stressful situations such as interrogations, where the use of deception, misinformation, and manipulation are all legal and common.

A confabulating individual may relay completely false or partially inaccurate witness accounts that may lead to the wrongful prosecution or conviction of others. In my case, I was facing a possible sentence of 11 years imprisonment had my accuser's disorder not been recognised - at the last moment, after two trials - by a prescient legal team and excellent counsel. This is not something that an inexperienced advocate is likely to discover - or, indeed, to understand.

On the other hand, a confabulating individual may unknowingly provide a false alibi for someone, and a guilty person walks free. Also, the confabulating individual may find him or herself at great risk of prosecution. If the court discovers that a person 'lied' under oath, that person may be charged with perjury even though he or she had no intention to lie, but was confabulating.

Confabulation can also interfere with the defendant’s ability to assist counsel in his or her defence, up to and including rendering the defendant incompetent to stand trial. Confabulation also affects performance on tasks requiring memory, including responding during interrogations, testifying in court, and participating in court-ordered forensic assessments.

Additionally, it may confer a vulnerability to suggestibility, which exacerbates the issues described above when certain suggestive and closed-ended or leading questions used in interview techniques are utilised. Or, a support-group wishing to aid the confabulating individual, ignorant of his / her disorder, may inadvertently find itself colluding in the propagation of the series of imagined events, thus opening itself-up to possible charges of attempting to pervert the course of justice.

Prosecutors and defence counsel should remain sceptical 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 scepticism, even though in sexual abuse cases corroboration is not always required for a guilty verdict. In some cases, confabulation can even contribute to continued involvement in the criminal justice system if it is not recognised early, as individuals inadvertently continue to provide objectively false information in an attempt to please other people.

Points and considerations: Accurate recall.

Suffering from confabulation may make it difficult for an individual to navigate the legal process. The ability to accurately recall events is an integral component of this multifaceted and often complex process. From police interrogations to testifying in court, a wide range of legal activities rely on complete, honest, and accurate recollection. The integrity of these steps is compromised when an individual who confabulates goes undetected but is still required to go through the legal procedures.

Collateral sources

If confabulation is suspected, or subsequently confirmed, 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 confirm the individual’s past proclivities and behaviours, as well as friends who can attest to their personality and affect, can provide verified confirmation. Additionally, official documents like medical and criminal justice records, help paint a more complete and accurate picture of the both situation and the afflicted individual.

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. Specifically, being able to identify potential symptoms of confabulation and seeking the proper assistance for affected individuals is crucial. Through appropriate training and education, legal professionals at all levels could improve their ability to identify, manage, and help clients who confabulate.

Delusions:

It is important that delusions be distinguished from confabulations. To the untrained observer, delusions and confabulation may appear to be similar afflictions. However, a major difference lies in the strength of their commitment to the belief or memory. Delusions are defined as the firm, false beliefs that can be maintained even in the face of contradicting arguments or evidence. (like belief in a 6-day creation). Conversely, confabulations are defined 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 should document it in the case file. Attempts must then be made to obtain confirmation from reliable secondary sources. If a diagnosis is confirmed, all subsequent steps of the legal process must be tailored to the unique circumstances confabulation presents. It is also critically important to effectively challenge false confessions in court, where the truthful nature of confabulated confessions can be more closely scrutinised.

Effective Intervention:

Effective interventions for confabulation may require the establishment and maintenance of working relationships with other professionals in relevant fields, 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.

Explore:

Exploration of how confabulation may have affected individuals in their personal and professional life is paramount. Are individuals aware that their life has been affected by confabulation? How has confabulation impacted their relationship with family, friends, or professional service providers as described by the afflicted individual? The answers to these questions are essential to helping the client, and must be verified 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. Also, as previously stated, the effect and impact on the wrongly-accused defendant.

Identification:

The identification of confabulation can be extremely difficult to the untrained observer. It is complicated by the fact that individuals afflicted by confabulation are unaware, or lack insight, that they suffer from this memory phenomenon. Furthermore, some of the symptoms for confabulation can be attributed to a host of other disorders, both cognitive or behavioural, or are mistaken as delusional behaviour or malingering. Confabulation can vary wildly by case, which increases the difficulty of identification, assessment, and appropriate intervention.

Is This Person Lying?:

Confabulation is distinct from lying. People who confabulate are not aware that their memory is inaccurate and are not trying to intentionally deceive anyone. Conscious lying is generally wilful and done for the purpose of deception. The individual engaged in lying is consciously aware that the information provided is inaccurate.

Inaccurate Self-Reports:

The screening and assessment process of these clients can be difficult given that confabulation could render a client’s self-report as unintentionally inaccurate. The false nature of these reports may be masked by the client’s perceived normal appearance and apparent conviction as they provide their accounts. The consequences of not effectively addressing this issue often result in inaccurate diagnoses, inappropriate treatment, and improper sentencing outcomes. Confabulation may even be a factor in cases involving false arrest, wrongful prosecution, or conviction of an innocent person.

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.

It should not need to be said, since it is acknowledged by all good practitioners, but open-ended questions in interviews provide the affected individual with more freedom in their answers. Closed-ended or leading questions place increasing pressure on the individual to give a certain answer from a short list of possibilities. This often leads to an increased chance for confabulation in order to fit the narrative being presented by the interviewer.

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. This is an important point to emphasise because untrained professionals may misinterpret confabulation as a malicious attempt to deceive rather than the product of neuropsychological deficits. Those 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.

Memory confidence:

The accuracy of memory does not increase as a function of confidence in one’s own memory.

However, people, including judges, solicitors and barristers as well as jurors, are more likely to believe a memory is true if the person appears to be completely confident in the strength of that memory, and especially if the memory is more vividly recalled.

Memory problems:

Individuals who confabulate may suffer from short- and long-term memory loss. In some instances, these individuals may be unable to recall important details from recent events. This 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.

Psychological testing:

The presence of confabulation may necessitate more advanced neurological and psychological screening compared to typical cases where such measures would not be necessary. When confabulation is suspected, the legal team should consider referral to a qualified mental health professional to ensure appropriate psychological and neurological testing to establish definitive confirmation. Expert testimony in court also may be required to educate the judge, jury, and other legals about the features of confabulation and its detrimental impact on the criminal justice process. That testimony, in large part, will be based on data from the psychological testing conducted by the multidisciplinary team or a clinician.

Suggestibility:

Individuals who suffer from confabulation may also be prone to suggestibility. Specifically, 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. This is commonplace during police interrogations and cross-examination by barristers at trial, so it is important to create a calm, low-pressure environment and avoid using suggestive or leading questions and statements. (see below).

Understand:

Legal professionals should understand the potential consequences and outcomes of confabulation, especially when there have been multiple verifiable instances from an individual. Confabulation can be emotionally stressful for both the individual and the people that they encounter. This 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 affected clients, both in the prosecution and defence processes

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 and for those victims who are caught-up in false allegations of sexual crime by people who are confabulating.

Leading and Non-Directive Questions:

See 'Directive leading questions and preparation techniques effects on witness accuracy.' Jacqueline M. Wheatcroft. https://doi.org/10.1177/2158244019899053

The use of leading questions during cross-examination can undermine the accuracy and completeness of evidence presented in court. Further, increasing numbers of general witnesses are arriving in court unprepared for the experience. In this study, 60 mock witnesses from England and Wales were allocated to one of three preparation conditions; a) those who received no familiarisation with the cross-examination process, b) those who received a guidance booklet on cross-examination procedures, and c) those who underwent an alternative rapport-building protocol. The participants observed a hit-and-run scenario video clip before being cross-examined with either a) non-directive leading questions or b) directive leading questions. The results showed that directive leading questioning styles were most detrimental to witness accuracy. Neither familiarisation with the types of questions typically employed during cross-examination nor the rapport-building protocol were found to be effective as a preparation strategy to increase accurate responses compared against a control group. Consideration of the impact of directive leading question styles on all witnesses in court seems necessary.

There is a dearth of legal and psychological consideration of leading questions during the trial process. This article argues the current approach to leading questions does not assist or promote the accuracy of witness evidence. Witness here is taken to mean anyone giving oral testimony, whether for the prosecution, defence or indeed the defendant him or herself. We advance a revised definition of leading, differentiating between directive and non-directive questions. Directive questioning is the primary mischief to eliciting accurate witness testimony; we propose here its reform. Non-directive leading is of less concern and should be the leading form open to use in cross-examination.

(Jacqueline Wheatcroft is Professor of Forensic Psychology, Psychological Sciences, University of Gloucestershire.)

Acknowledgement: Correspondence to: Jerrod Brown, 1919 University Ave. W. Suite 6 St. Paul MN, 55104, USA, E-mail: jerrod01234brown@live.com.

(Edited and supplemented for ease of reading and usefulness to the readership of this Blog by Rev. Dr. Roy Catchpole. Footnotes and other references are available at the above email address.)