Eyewitness testimony

Eyewitness testimony is the account a bystander or victim gives in the courtroom, describing what that person observed that occurred during the specific incident under investigation. Ideally this recollection of events is detailed; however, this is not always the case. This recollection is used as evidence to show what happened from a witness' point of view. Memory recall has been considered a credible source in the past, but has recently come under attack as forensics can now support psychologists in their claim that memories and individual perceptions can be unreliable, manipulated, and biased. Due to this, many countries and states within the US are now attempting to make changes in how eyewitness testimony is presented in court. Eyewitness testimony is a specialized focus within cognitive psychology.

Reliability

Psychologists have probed the reliability of eyewitness testimony since the beginning of the 20th century.[1] One prominent pioneer was Hugo Münsterberg, whose controversial book On the Witness Stand (1908) demonstrated the fallibility of eyewitness accounts, but met with fierce criticism, particularly in legal circles.[2] His ideas did, however, gain popularity with the public.[3] Decades later, DNA testing would clear individuals convicted on the basis of errant eyewitness testimony. Studies by Scheck, Neufel, and Dwyer showed that many DNA-based exonerations involved eyewitness evidence.[4]

In the 1970s and '80s, Bob Buckhout showed inter alia that eyewitness conditions can, at least within ethical and other constraints, be simulated on university campuses,[2] and that large numbers of people can be mistaken: "Nearly 2,000 witnesses can be wrong" was the title of one paper.[5]

The mechanisms by which flaws enter eyewitness testimony are varied and can be quite subtle.

One way is a person's memory being influenced by things seen or heard after the crime occurred. This distortion is known as the post-event misinformation effect (Loftus and Palmer, 1974). After a crime occurs and an eyewitness comes forward, law enforcement tries to gather as much information as they can to avoid the influence that may come from the environment, such as the media. Many times when the crime is surrounded by much publicity, an eyewitness may experience source misattribution. Source misattribution occurs when a witness is incorrect about where or when they have the memory from. If a witness cannot correctly identify the source of their retrieved memory, the witness is seen as not reliable.

While some witnesses see the entirety of a crime happen in front of them, some witness only part of a crime. These witnesses are more likely to experience confirmation bias. Witness expectations are to blame for the distortion that may come from confirmation bias. For example, Lindholm and Christianson (1998) found that witnesses of a mock crime who did not witness the whole crime, nevertheless testified to what they expected would have happened. These expectations are normally similar across individuals due to the details of the environment.

Evaluating the credibility of eye-witness testimony falls on all individual jurors when such evidence is offered as testimony in a trial in the United States.[6] Research has shown that mock juries are often unable to distinguish between a false and accurate eyewitness testimony. "Jurors" often appear to correlate the confidence level of the witness with the accuracy of their testimony. An overview of this research by Laub and Bornstein shows this to be an inaccurate gauge of accuracy.[7]

Research

Research on eyewitness testimony looks at systematic variables or estimator variables. Estimator variables are characteristics of the witness, event, testimony, or testimony evaluators. Systematic variables are variables that are, or have the possibility of, being controlled by the criminal justice system. Both sets of variables can be manipulated and studied during research, but only system variables can be controlled in actual procedure.[1]

Estimator variables

Age of Witness

Among children, suggestibility can be very high. Suggestibility is the term used when a witness accepts information after the actual event and incorporates it into the memory of the event itself. Children's developmental level (generally correlated with age) causes them to be more easily influenced by leading questions, misinformation, and other post-event details. Compared to older children, preschool-age children are more likely to fall victim to suggestions without the ability to focus solely on the facts of what happened.[8]

In addition, a recent meta-analysis found that older adults (over age 65) tend to be more susceptible to memory distortion brought about by misleading post-event information, compared to young adults.[9]

Reconstructive memory

Many of the early studies of memory demonstrated how memories can fail to be accurate records of experiences. Because jurors and judges do not have access to the original event, it is important to know whether a testimony is based on actual experience or not.[10]

In a 1932 study, Frederic Bartlett demonstrated how serial reproduction of a story distorted accuracy in recalling information. He told participants a complicated Native American story and had them repeat it over a series of intervals. With each repetition, the stories were altered. Even when participants recalled accurate information, they filled in gaps with information that would fit their personal experiences. His work showed long term memory to be adaptable.[11] Bartlett viewed schemas as a major cause of this occurrence. People attempt to place past events into existing representations of the world, making the memory more coherent. Instead of remembering precise details about commonplace occurrences, a schema is developed. A schema is a generalization formed mentally based on experience.[12] The common use of these schemas suggests that memory is not an identical reproduction of experience, but a combination of actual events with already existing schemas. Bartlett summarized this issue, explaining

[M]emory is personal, not because of some intangible and hypothetical persisting ‘self ’, which receives and maintains innumerable traces, restimulating them whenever it needs; but because the mechanism of adult human memory demands an organisation of ‘schemata’ depending upon an interplay of appetites, instincts, interests and ideas peculiar to any given subject. Thus if, as in some pathological cases, these active sources of the ‘schemata’ get cut off from one another, the peculiar personal attributes of what is remembered fail to appear.[13]

Further research of schemas shows memories that are inconsistent with a schema decay faster than those that match up with a schema. Tuckey and Brewer found pieces of information that were inconsistent with a typical robbery decayed much faster than those that were schema consistent over a 12-week period, unless the information stood out as being extremely unusual. The use of schemas has been shown to increase the accuracy of recall of schema-consistent information but this comes at the cost of decreased recall of schema-inconsistent information.[14]

Misinformation effect

Elizabeth Loftus is one of the leading psychologists in the field of eyewitness testimony. She provided extensive research on this topic, revolutionizing the field with her bold stance that challenges the credibility of eyewitness testimony in court. She suggests that memory is not reliable and goes to great lengths to provide support for her arguments. She mainly focuses on the integration of misinformation with the original memory, forming a new memory. Some of her most convincing experiments support this claim:

  1. In one of her experiments, Loftus demonstrates that false verbal Information can integrate with original memory. Participants were presented with either truthful information or misleading information, and overall it showed that even the false information verbally presented became part of the memory after the participant was asked to recall details. This happens because of one of two reasons. First, it can alter the memory, incorporating the misinformation in with the actual, true memory. Second, the original memory and new information may both reside in memory in turn creating two conflicting ideas that compete in recall.[15]
  2. Loftus conducted more experiments to prove the reliability of expert psychological testimony versus the accepted basic eyewitness testimony. It was found that jurors who hear about a violent crime are more likely to convict a defendant than of one from a nonviolent crime. To reduce this tendency for a juror to quickly accuse, and perhaps wrongly accuse, choosing to utilize expert psychological testimony causes the juror to critically appraise the eyewitness testimony, instead of quickly reaching a faulty verdict.[16]
  3. Also, it has been shown that intelligence and gender has a role in the ability of accurate memory recall. Participants were measured in eyewitness performance in two areas: 1) the ability to resist adding misinformation to the memory and 2) accuracy of recalling the incident and person. It showed that when a woman was recalling information about a woman, the resistance to false details was higher and the recall was more accurate. If a man was recalling an incident involving a man, similarly the recall was more accurate. However, when dealing with opposite genders, the participants gave into the suggestibility (misinformation) more easily and demonstrated less accuracy.[17]
  4. Facial recognition is a good indicator of how easily memories can be manipulated. In this specific experiment, if a misleading feature was presented, more than a third of the participants recalled that detail. With a specific detail, almost 70% of people claimed that it had been there, when it had not been present.[18]

Systematic variables

Type of questioning

As early as 1900, psychologists like Alfred Binet recorded how the phrasing of questioning during an investigation could alter witness response. Binet believed people were highly susceptible to suggestion, and called for a better approach to questioning witnesses.[19]

Studies conducted by Crombag (1996) discovered that in an incident involving a crew attempting to return to the airport but were unable to maintain flight and crashed into an 11-story apartment building. Though no cameras caught the moment of impact on film, many news stations covered the tragedy with footage taken after impact.[20] Ten months after the event, the researchers interviewed people about the crash. According to theories about flashbulb memory, the intense shock of the event should have made the memory of the event incredibly accurate. This same logic is often applied to those who witness a criminal act. To test this assumption, participants were asked questions that planted false information about the event. Fifty-five percent of subjects reported having watched the moment of impact on television, and recalled the moment the plane broke out in flames-even though it was impossible for them to have seen either of these occurrences. One researcher remarked, "[V]ery critical sense would have made our subjects realize that the implanted information could not possibly be true. We are still at a loss as to why so few of them realized this."

A survey of research on the matter confirm eyewitness testimony consistently changes over time and based on the type of questioning.[21] The approach investigators and lawyers take in their questioning has repeatedly shown to alter eyewitness response. One study showed changing certain words and phrases resulted in an increase in overall estimations of witnesses.[22]

Improving eyewitness testimony

Law enforcement, legal professions, and psychologists have worked together in attempts to make eyewitness testimony more reliable and accurate. Geiselman, Fisher, MacKinnon, and Holland saw much improvement in eyewitness memory with an interview procedure they referred to as the cognitive interview. The approach focuses on making witness aware of all events surrounding a crime without generating false memories or inventing details. In this tactic, the interviewer builds a rapport with the witness before asking any questions.[23] They then allow the witness to provide an open ended account of the situation. The interviewer then asks follow up questions to clarify the witness' account, reminding the witness it is acceptable to be unsure and move on.[1] This approach guides the witness over a rigid protocol. When implemented correctly, the CI showed more accuracy and efficiency without additional incorrect information being generated.[24]

Currently, this is the U.S. Department of Justice's suggested method for law enforcement officials to use in obtaining information from witnesses.[25] Programs training officers in this method have been developed outside the U.S. in many European countries, as well as Australia, New Zealand, and Israel.[26]

While some analysis of police interviewing technique reveals this change towards CI interviewing is not put into effect by many officials in the U.S.A. and the U.K., it is still considered to be the most effective means of decreasing error in eyewitness testimony.[1][27]

Procedural reforms

Experts debate what changes need to occur in the legal process in response to research on inaccuracy of eyewitness testimony.

Jury guidelines

It has been suggested that the jury be given a checklist to evaluate eyewitness testimony when given in court. R. J. Shafer offers this checklist for evaluating eyewitness testimony:

  • How well could the eyewitness observe the thing he reports? Were his senses equal to the observation? Was his physical location suitable to sight, hearing, touch? Did he have the proper social ability to observe: did he understand the language, have other expertise required (e.g., law, military)?
  • When did he report in relation to his observation? Soon? Much later?
  • Are there additional clues to intended veracity? Was he indifferent on the subject reported, thus probably not intending distortion? Did he make statements damaging to himself, thus probably not seeking to distort? Did he give incidental or casual information, almost certainly not intended to mislead?
  • Do his statements seem inherently improbable: e.g., contrary to human nature, or in conflict with what we know?
  • Remember that some types of information are easier to observe and report on than others.
  • Are there inner contradictions in the testimony? [28]

Judge guidelines

In 2011, the New Jersey Supreme Court created new rules for the admissibility of eyewitness testimony in court. The new rules require judges to explain to jurors any influences that may heighten the risk for error in the testimony. The rules are part of nationwide court reform that attempts to improve the validity of eyewitness testimony and lower the rate of false conviction.[29]

See also

References

  1. 1 2 3 4 Wells, G. L.; Memon, A.; Penrod, S. D. (2006). "Eyewitness Evidence: Improving Its Probative Value". Psychological Science in the Public Interest. 7: 48.
  2. 1 2 Memon, A.; Mastroberardino, S.; Fraser, J. (2008). "Münsterberg's Legacy: What Does Eyewitness Research Tell Us About the Reliability of Eyewitness Testimony?". Applied Cognitive Psychology. 22: 841–851. doi:10.1002/acp.1487.
  3. ↑ Greenwood, John D. (2009). "A Conceptual History of Psychology". New York: McGraw-Hill Higher Education.
  4. ↑ Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual Innocence. New York: Random House.
  5. ↑ Buckhout, R. (1980). "Nearly 2,000 witnesses can be wrong". Bulletin of the Psychonomic Society. 16 (4): 307–310.
  6. ↑ Tversky, Barbara and Fisher, George. (1999). "The Problem with Eyewitness Testimony". Stanford:Stanford Journal of Legal Studies.
  7. ↑ Laub, Cindy, & Bornstein, Brian H. (2008) "Juries and Eyewitnesses". Newbury Park, CA: SAGE Publications.
  8. ↑ Bruck, Maggie and Stephen J Ceci. Annu. Rev. Psychol. 1999. 50:419–39 Copyright Ó 1999 by Annual Reviews. All rights reserved kj
  9. ↑ Wylie, L. E., Patihis, L., McCuller, L. L., Davis, D., Brank, E. M., Loftus, E. F., & Bornstein, B. H. (2014). Misinformation effects in older versus younger adults: A meta-analysis and review. In M. P. Toglia, D. F. Ross, J. Pozzulo, & E. Pica (Eds) The Elderly Eyewitness in Court, UK: Psychology Press.
  10. ↑ Mori, Naohisa. Styles of remembering and types of experience: An experimental investigation of reconstructive memory. Integrative Psychological & Behavioral Science, Vol 42(3), Sep, 2008. pp. 291-314.
  11. ↑ Bartlett, F.C. (1932). Remembering: A Study in Experimental and Social Psychology. Cambridge, England: Cambridge University Press.
  12. ↑ Stephen K. Reed. (2010). Cognition. San Diego:Wadsworth CENGAGE Learning, 383.
  13. ↑ Bartlett, F.C. (1932). Remembering: A Study in Experimental and Social Psychology. Cambridge, England: Cambridge University Press. 213.
  14. ↑ Tuckey, Michelle Rae; Brewer, Neil (2003). "How Schemas Affect Eyewitness Memory Over Repeated Retrieval Attempts". Applied Cognitive Psychology. 17 (7): 785–800. doi:10.1002/acp.906.
  15. ↑ Loftus, Elizabeth F.; Miller, David G.; Burns, Helen J. (1978). "Semantic integration of verbal information into a visual memory". Journal of Experimental Psychology: Human Learning & Memory. 4 (1): 19–31. doi:10.1037/0278-7393.4.1.19.
  16. ↑ Loftus, Elizabeth F. (1980). "Impact of expert psychological testimony on the unreliability of eyewitness identification". Journal of Applied Psychology. 65 (1): 9–15. doi:10.1037/0021-9010.65.1.9. PMID 7364708.
  17. ↑ Powers, Peter A.; Andriks, Joyce L.; Loftus, Elizabeth F. (1979). "Eyewitness accounts of females and males". Journal of Applied Psychology. 64 (3): 339–347. doi:10.1037/0021-9010.64.3.339.
  18. ↑ Loftus, Elizabeth F.; Greene, Edith (1980). "Warning: Even memory for faces may be contagious". Law and Human Behavior. 4 (4): 323–334. doi:10.1007/BF01040624.
  19. ↑ Binet, Alfred.(1900) La Suggestibilite
  20. ↑ http://www.history.com/this-day-in-history/plane-crashes-into-apartment-building
  21. ↑ Dunning, David; Stern, Lisa Beth (1992). "Examining the Generality of Eyewitness Hypermnesia: A Close Look at Time Delay and Question Type". Applied Cognitive Psychology. 6: 643–657. doi:10.1002/acp.2350060707.
  22. ↑ Libscomb, Thomas, McAllister, Hunter, & Bregman, Norman. (2001). Bias in Eyewitness Accounts: The Effects of Question Format, Delay Interval, and Stimulus Presentation. The Journal of Psychology, 207-212.
  23. ↑ Ghetti, S., Goodman, G. S., Schaaf, J. M. & Qin, J. (2004). Issues In Eyewitness Testimony. In W. T. O'Donohue, & E. R. Levensky (Eds.), Handbook of Forensic Psychology (pp. 532). San Diego, CA: Elsevier Academic Press
  24. ↑ Geiselman, R.; Fisher, Ronald; MacKinnon, David; Holland, Heidi (1986). "Enhancement of eyewitness memory with the cognitive interview". American Journal of Psychology. 99: 385–401. doi:10.2307/1422492.
  25. ↑ U.S. Department of Justice, "Eyewitness Evidence: A Guide for Law Enforcement."
  26. ↑ Fisher, R.P. (2005). The cognitive interview: Question & answers. Ashburn, Virginia: The National Transportation Safety Board Academy. Retrieved June 13, 2006, from http://www.ntsb.gov/ Academy/courseinfo/Q&A_Fisher.pdf
  27. ↑ Memon, A., Meissner, C. A., & Fraser, J. (2010). The cognitive interview: A meta-analytic review and study space analysis of the past 25 years. Psychology, Public Policy, and Law, 16[4], 340-372.
  28. ↑ Garraghan, Gilbert J. (1946). A Guide to Historical Method. New York: Fordham University Press. 157-158.
  29. ↑ https://www.nytimes.com/2011/08/25/nyregion/in-new-jersey-rules-changed-on-witness-ids.html
  • Identifying the Culprit: Assessing Eyewitness Identification (2014) - free download of book by the National Academy of Sciences summarizing research and recommending best practices
  • Evidence-based justice: Corrupted memory, Nature, 14 Aug 2013
  • "Supreme Judicial Court Study Group on Eyewitness Evidence Report and Recommendations" (PDF). 2013-07-25. Retrieved 2014-09-29. (Massachusetts)
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