Judges and jurists have great faith in the accuracy of eyewitness testimony. Psychologists however would have us believe eyewitnesses have little to offer the Criminal Justice System. Discuss
Judges and jurists have great faith in the accuracy of eyewitness testimony. Psychologists however would have us believe eyewitnesses have little to offer the Criminal Justice System. Discuss
The accuracy of eyewitness testimony is worse than the general public thinks, but not as bad as some psychologists would have us believe. Discuss
Argued to be 'among the most damning of all evidence that can be used in a court of law' (Loftus, E., 1979, p.8), eyewitness testimony is one of the most disputed areas in forensic psychology. A series of 'staged-court' experiments, conducted in 1979 by Loftus demonstrated the power of an eyewitness' testimony: Mock juries executed an enormous 54% swing from a non-guilty verdict, to that of guilty within the same case, simply through the introduction of an eyewitness. Recent advances in forensic DNA technology have led to the identification of thousands of perpetrators and the exoneration of thousands of those wrongfully convicted. An evaluation of the exonerated cases found that, in its present state, eyewitness testimony convicts innocent individuals in a devastatingly high proportion. A report circulated by the Centre of Wrongful Convictions1 analysed 86 cases of defendants sentenced to death and then exonerated: Eyewitness testimony played a role in 46 (53.5%) of the cases; and in 33 (38.4%) of the cases it was the only evidence against them. This report and numerous others proposes eyewitness testimony as the single highest instigator of wrongful convictions, higher than the other wrongful conviction types combined2. Unfortunately DNA technology can only be used in a small number of cases (usually sex attacks), and this has invoked deep concern among the psychology community. For the many thousands of convicted persons in prison protesting their innocence due to mistaken identification, how many are telling the truth, and how many will continue to be convicted based on an erroneous testimony from an eyewitness?
The fallibility of the human memory has been discussed for over a century; although the application of this research to the accuracy of eyewitness testimony only took shape in the 1970s. As research into eyewitnesses is a relatively new area, confusion and controversy still surround the reliability placed on an individual to give an accurate account of a crime. Though following the significant development of both theories and models of memory in the 1960s, came the recognition that the public have unrealistic expectations' of the ability of eyewitnesses to produce objective and reliable information3. Psychologists stipulate that the public hold a 'commonsense' view, which generally overestimates the accuracy of eyewitnesses; this has implications for the criminal justice system with the public making up an intricate part of criminal proceedings as the jury. Ainsworth (1998) argues that the public are 'ill-equipped to assess the accuracy of an eyewitness as they are not educated in the nature of memory' (p. 78). Pioneering studies conducted by Loftus and Buckout4 (1979) identified not only factors that affect the eyewitness' perception of the event but also errors that can occur once the event has entered the long-term memory store and procedural faults that elicit errors at retrieval. The experimental findings contrasted dramatically with the 'commonsense' perception conjectured by the psychologists; which led to the consensus that the accuracy of eyewitness is worse than the general public think. However due to the laboratory circumstances in which the experiments' are conducted, the criminal justice system has been slow in acknowledging their importance.
The refusal of the criminal justice system to revise its faith in current procedures provoked increased research and over the past thirty years' a series of experiments supporting the factors identified (and subsequently identifying more) have been published in psychology's top journals5. However, due to the sheer volume of criticism directed at eyewitnesses, some psychologists reviewing the material missed the intention of the work and began condemning the work as inherently unreliable and dangerous in court:
"Human memory can be fraught with so many biases and inaccuracies; it is perhaps surprising it is even allowed in court! ... If eyewitness testimony was a new form of evidence that was introduced to the court for the first time, it might well be disallowed." (Ainsworth, P., 1998.p.16).
Not all psychologists took this stance; others used the research and applied it to modifying the police procedures, which had been shown to lead the witness into giving false testimony. The subsequent success demonstrated over a succession of laboratory tests showed an improvement in the detail witnesses were able to give i.e. the accuracy of eyewitness testimony has the potential to be not as bad as some psychologists would have us believe. Therefore, this essay will track the development of the research into the accuracy of the eyewitness testimony to illustrate and evaluate the standpoint of the psychologists ...
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Not all psychologists took this stance; others used the research and applied it to modifying the police procedures, which had been shown to lead the witness into giving false testimony. The subsequent success demonstrated over a succession of laboratory tests showed an improvement in the detail witnesses were able to give i.e. the accuracy of eyewitness testimony has the potential to be not as bad as some psychologists would have us believe. Therefore, this essay will track the development of the research into the accuracy of the eyewitness testimony to illustrate and evaluate the standpoint of the psychologists and the public.
Hugo Munsterberg- a well-known Cognitive psychologist - recognised back in 1909 that the considerable amount of research into memory had the potential to inform the criminal justice system:
"Justice would less often miscarry if all who were to weigh evidence were more conscious of the treachery of the human memory."
(Musternberg, H., 1909, p 67).
The development of the Cognitive area has been hampered by the lack of an accepted theory and an appropriate method for experiments; 'like many fields of human research it seems that the more we learn, the more we realise that there is much still to be learned.' (Ainsworth, P. 1998, p.33). Yet the experimental psychologists involved have still built up a substantial body of work, focusing on contrasting the routinely made errors of the brain with the public's overestimation of their own mind's ability. With the primary aim to dismiss the principle misconception of using the camera analogy as a description of how the human memory operates: "There is an expectation of eyewitnesses to be able to rewind back to the event and pause at intervals to give every single detail of the event" (Wells, G.L. & Seelau, E. P., 1995). By breaking down the memory process into its three constituent stages, experimenters such as Loftus focussed on identifying everyday memory errors and in addition how witnessing a crime can cause further problems.
The first of these stages, Retention, also known as the encoding phase, refers to an individual's acquirement of information. From research into schemas and scripts6, emphasis is placed on memory being constructive i.e. our prior knowledge and expectations may allow our memory of an event to be subject to stereotypes and prejudice. From work performed into so-called 'top-down processing'7, being able to interpret complex events, the mind is forced to be selective and make assumptions about the parts of the incoming stimuli which can often lead to mistakes. Take for instance the slide below:
(Ainsworth, 1998. p. 15)
"There is, an intelligence to perception: it involves complex problem solving and does not always get the right answer" (Loftus, 1979 p. 23).
Loftus (1979) focused a lot of the work on perception into facial identification, which was found to be a major factor in the number of wrongful convictions later overturned. Faces form a class of objects whose recognition poses a far from trivial problem, that of visual pattern classification. "A rather homogenous set of patterns in which there may be very subtle differences between one individual's face and the next" (Cutler & Penrod, 1995. p. 65)8 Taking into consideration, also, that the majority of crimes are over very quickly, allowing the witness limited time to view the perpetrators face. In addition, the trauma of the event will not help to form a very clear picture; in accordance to the Yerkes-Dodson (1908) law9, increased levels of emotional arousal decrease the amount of processing capacity available for attention and memory. Moreover, in serious crime, for instance when a weapon is involved, the individuals focus is drawn solely to the gun and the danger it poses. So many more factors have been identified as affecting this stage, however it is the next phase of processing that Loftus dedicated much of her work.
The second stage in the memory process is entitled the storage phase whereby encoded information is stored in the memory for later use. Many experimental psychologists were concerned with the deterioration of memory and how ,in serious cases, the time that elapses between the criminal acts' witnessed and the testimony in court can be up to a year10. Instead, Loftus (1979) claims that "Time alone does not cause the slippage of memory. It is caused in part by what goes on during the passage of time" (p. 52): When the detective and the witness come together for the interview there is a 'unification of goals,' they both want to see justice done. Loftus suggested that it can become frustrating for both the detective and the witness and that there is a danger of witnesses becoming sensitive to feedback from the detective: Either communicated through unconscious transference (Loftus, 1979) or possibly the suggestibility of the interviewer (Sadava & McCreary, 1997). From a series of experiments performed by Loftus (1979), it was suggested that participants 'accept' misleading information and regard it as forming part of the original memory. Experiments conducted into the wording of a question found that even something as minor as replacing a word with another derivative will influence the witness e.g. asking the witness to estimate the speed at which a car was travelling when it was involved in an accident. Though, technically the two words have identical meanings (e.g. smash and hit), they elicit very different speed estimates from witnesses:
(Ainsworth, 1998. p 45)
Wells supported Loftus' claim, that "Witnesses will extract and incorporate new information after the witnessed event and then testify about the information as though they actually witnessed it" (2002). Therefore when it comes to the third phase, titled the Retrieval stage, where an individual recalls or recognises information from a memory, the witness 'cannot separate their original memory of the event and the subsequent information that they have been exposed to'. Tests conducted by the National Science Foundation (1997)11 revealed that once memory has been distorted in this way, a straightforward cross-examination would fail to distinguish inaccurate recollections. The problem comes when the witness appears in court confident of their recollections, experiments have shown in staged courtrooms that the juries are heavily influenced by the composure of the witness giving the testimony.12
"The intricacies of a complex business fraud or the mechanics of DNA profiling, will be beyond the comprehension of the jury and may thus be paid comparatively little attention. However, a confident witness who claims to have seen the defendant holding 'the smoking gun' will form a lasting impression".
Solicitors are aware of the impact of a confident witness, and know that any waver in their testimony may result in opposing side deeming it false, therefore will further make the witness rehearse their statement until cement in the head.
The criminal justice system has long been reluctant in accepting any recommendations from psychology due to the laboratory conditions in which they originate. However, the increasing number of DNA exonerated cases, found to have been convicted based on an erroneous eyewitness testimony, has garnered the attention of some key figures. In 1997, U.S. Attorney Janet Reno13 advocated that the criminal justice system should adopt a number of procedural improvements that would be effective in reducing the number of eyewitness errors. These included the Cognitive Interview, designed by Fisher and Geiselman (1992), which was tested in many laboratories and on average, has elicited between 35% - 75% more information than a typical police interview, without increasing the proportion of responses that are incorrect14. And the Sequential Presentation Line-up procedure, devised by Lindsay and Wells (1989), which was an alternative presentation procedure to the simultaneous line-up that would reduce the tendency of eyewitnesses to rely on 'relative judgement'. The data showed that simultaneous and sequential procedures produced nearly identical correct identification rates when the perpetrator was present in the line-up. However, the rate of mistaken identification was 43% with simultaneous procedure and only 17% with sequential.
The factors affecting memory recall have recently been re-explored in a series of field reports in an attempt to improve the ecological validity and combat the criticism of the laboratory conditions. These experiments imply that eyewitness testimony may be more accurate than laboratory-based studies previously suggested. Foster at al (1984)15 argues that eyewitnesses may be more likely to remember traumatic events that occur in real life because they may have serious consequences. Participants shown a video of a bank robbery and subsequently asked to identify one of the robbers in a line-up (having been told the robbery was real and that their responses would affect the trial) showed greater recall than did participants who were not given this information. In laboratory-based studies, participants may do their best to co-operate and please the experimenter, but they are aware that the suspect's freedom does not depend on their responses (Cohen et al, 2003).
I believe the future of eyewitness research will rest on improving the relationship between psychology and law. As the media are becoming involved, the criminal justice system can no longer ignore the 'hard' evidence of DNA testing:
The Baltimore Sun (Newspaper): 16/12/2002
As Wells (2002) suggested the criminal justice system would do well to acknowledge the psychologists involved in investigating eyewitness testimony; as they can do for the justice system what the justice system cannot, namely conduct scientific experiments that isolate cause-effect relationships. Head figures in the criminal justice system have already acknowledged the problems and the power of eyewitness testimony:
"The vagaries of eyewitness identification are well known, the annals of criminal law are rife with instances of mistaken identification" (Justice William Brennan, writing for the majority in U.S. v Wade, 196716).
Psychology and law now need to work together in bringing a higher degree of scrutiny into the court (when examining the testimony of an eyewitness), and make modifications to procedures used during the investigatory process. Changes such as the mandatory use of sequential line up and cognitive interviewing techniques would undoubtedly provide a remarkable recovery from the present 45% wrongful convictions rate displayed within many studies.
. The majority of crimes that come before the courts are still being resolved by judge and jury balancing the credibility of one witness's account against the assertions of another17. However recent advances in forensic DNA testing have provided additional evidence and have found numerous cases where erroneous eyewitness testimony appears to be the main factor in a false conviction18. From research over the past thirty years that has concentrated on the eyewitness area, contrasting viewpoints have emerged with the general public perceived to overestimate the ability of the human memory and some psychologists overly criticising.
2. The most prominent work on eyewitness accuracy was conducted by Loftus19; the main focus placed on the need to dismiss the camera analogy that plagued the Cognitive area: That humans do not simply record chunks of data, which they encounter but rather sift it, interpret it subjectively, and then record that interpretation. Using experimental re-enactment many errors that were routinely made by memory were identified. These psychologists were criticised heavily for condemning eyewitnesses as inherently unreliable, however using their research other psychologists were able to modify procedures that had been found to decrease the accuracy of the eyewitness: Such as the Sequential Line-up Procedure20 and the Cognitive Interview21.
3. Regardless of the substantial body of research, the criminal justice system has largely ignored the evidence mainly due to its experimental basis, continuing the difficult relationship between psychology and law22. However, recent research addressing the same errors as Loftus has concentrated on improving the ecological validity by constructing field-reports: Which have displayed a general improvement in eyewitness accuracy when placed in real-life circumstance23.
References
Ainsworth, P. (1998). Psychology, law and eyewitness testimony. West Sussex, England: Wiley.
Cohen, A-L., Dixon, R. A., Lindsay, D. S., & Masson, M. E. J. (2003). The effect of perceptual distinctiveness on the prospective and retrospective components of prospective memory in young and old adults. Canadian Journal of Experimental Psychology, 57, 274-289.
Cutler, B.L., & Penrod, S.D. (1995) Mistaken Identification: The eyewitness, psychology, and the law. New York: Cambridge University Press.
Fisher, R. P., & Geiselman, R. E.. (1992) Memory-enhancing techniques for investigating interviewing: The cognitive interview. Springfield, IL: Charles C Thomas.
Gross, R. ( 1996). Psychology: The Science of mind and behaviour (3rd edition). Kent: Hodder & Stoughton.
Huff, C., Rattner, A. & Sagarin, E. (1996). Convicted But Innocent. Thousand Oaks, CA: SagePublications
Kohnken, G., Milne, R., Memon, A., and Bull, R. (1999). The cognitive interview: A meta-analysis. Psychology, Crime, and Law, 5, 3-27.
Lindsay, R. C. L., Wells, G. L., & O'Connor, F. (1989). Mock juror belief of accurate and inaccurate eyewitnesses: A replication. Law and Human Behavior, 13, 333-340.
Loftus, E. F. (1979). Eyewitness Testimony. Cambridge MA: Harvard University Press.
Malpass, R.S., & Devine, P.G. (1981a). Eyewitness identification: Line-up instructions and the absence of the offender. Journal of Applied Psychology, 66, 482 - 489.
Munsterberg, H (1908). On the witness stand. New York: Doubleday.
Rattner, A. (1988). Convicted but innocent: Wrongful conviction and the criminal justice system. Law and Human Behaviour, 12, 283 - 293.
Sadava, S., McCreary, D. (1997) Applied social psychology. Prentice Hall
Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual innocence: Five days in execution and other dispatches from the wrongly convicted. New York: Doubley.
Wells, G. L. (2002). Eyewitness testimony. The encyclopedia of crime and punishment. Great Barrington, MA: Berkshire Publishing.
Wells, G. L. & Bradfield, A. L. (1999b). "Good you identified the suspect:" Feedback to eyewitnesses distorts their reports of the witnessing experience. Journal of Applied Psychology, 83, 360 - 376.
Wells, G. L. & Bradfield, A. L. (1999a). Distortions in eyewitnesses' recollections: Can the post identification feedback effect be moderated? Psychological Science, 10, 138 - 144.
Wells, G.L. & Seelau, E. P. (1995). Eyewitness identification: Psychological research and legal policy on line-ups. Psychology, Public Policy and Law, 1, 765 - 791.
Wells, G. L. (1993). What do we know about eyewitnesses' identification? American Psychologist, 48, 553 - 571.
Yuille, J. C. & Cutshall, J. L. (1986). A case study of eyewitness memory of a crime. Journal of Applied Psychology, 71, 291-301.
All websites accessed 12/04:
http://www.cbsnews.com/stories/1998/07/08/48hours/main13592.shtml
http://www.deathpenaltyinfo.org/
http://www.ingentaconnect.com/search;eyewitness
http://www.psychology.iastate.edu/faculty/gwells/homepage.htm
http://www.uplink.com.au/lawlibrary/Documents/Docs/Doc51.html
See http://www.deathpenaltyinfo.org/
2 See http://www.psychology.iastate.edu/faculty/gwells/homepage.htm
3 See C.B.S poll: http://www.cbsnews.com/stories/1998/07/08/48hours/main13592.shtml (01/01)
4 See www.psychology.iastate.edu/
5 See http://www.ingentaconnect.com/search;eyewitness
6Gross, R. ( 1996).
7Gross, R. ( 1996).
8 See also Cross-Racial Identification - Loftus (1979)
9 Cited by Ainsworth (1998)
0Wells, G. L. & Bradfield, A. L. (1999b)
1 See http://www.uplink.com.au/lawlibrary/Documents/Docs/Doc51.html
2 See Cutler & Penrod, (1995)
3 See http://www.psychology.iastate.edu/faculty/gwells/homepage.htm
4 See Kohnken, Milne, Bull (1999)
5 Cited by Ainsworth (1998)
6 http://www.psychology.iastate.edu/faculty/gwells/homepage.htm
7 Ainsworth,. P. (1996)
8 Huff, Rattner & Sagarin. (1996)
9 Loftus (1979)
20 Lindsay & Wells (1989)
21 Fisher & Geiselman (1992)
22 Yuille & Cutshall (1986)
23Cohen (2003)
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