What can be done to balance and mitigate these risks while allowing the jury to hear the value of an eyewitness testimony?
Eyewitness testimony has incredible implications for a legal case, and can be the best (and truest) depiction of what happened during a crime. Yet it comes with incredible costs because of the fallasies of human memory, and post-event misinformation effects.
What can be done to balance and mitigate these risks while allowing the jury to hear the value of an eyewitness testimony?
Requirements: 1 page
Eyewitness testimony has incredible implications for a legal case, and can be the best (and truest) depiction of what happened during a crime. Yet it comes with incredible costs because of the fallasies of human memory, and post-event misinformation effects.
What can be done to balance and mitigate these risks while allowing the jury to hear the value of an eyewitness testimony?
Chapter 4 (book)
Prosecutor: Do you see the person who attacked you sitting in this courtroom? Witness: Yes. Prosecutor: Please point to that person. Witness: He’s sitting right there. Prosecutor: Let the record show that the witness is pointing to the defendant.
Each year, more than 75,000 eyewitnesses identify suspects in criminal investigations across the United States (Liptak, 2011). More than 2,000 studies on eyewitness evidence have been published in social science journals over the past 30 years. Surprisingly, a number of these studies suggest that about one-third of eyewitness identifications are wrong (Liptak, 2011). For example, psychologist Gary Wells tested people who witnessed serious crimes in San Diego, California; Tucson, Arizona; Austin, Texas; and Charlotte, North Carolina; and discovered that between 30% and 40% of witnesses who made an identification mistakenly identified an innocent individual in a lineup, even when the best procedures were used (Moser, 2011). Because of these findings concerning eyewitness inaccuracies, the U.S. justice justice system has begun to change how eyewitness are used in criminal cases. In some jurisdictions, juries are told to be cautious about eyewitness testimony or to ignore how confident witnesses may be about what they think they saw (Bohannon, 2015). Psychological research has played an important role in helping the legal system identify a variety of factors that may influence or contaminate eyewitness evidence. As noted by Beatty and Calkins (2018), “one of the most tangible impacts that psychological research has had in the courtroom over the past several decades is in the area of eyewitness identification” (p. 29). In this chapter, we will review what we know about eyewitness evidence and its many limitations and inaccuracies, inaccuracies, although it is important to emphasize that eyewitness identification can be reliable and accurate under certain conditions. Simons and Chabris (2011) found that nearly 40% of those persons surveyed believed that the testimony of a single, confident eyewitness should be enough to convict a defendant. Other studies find that U.S. law students and undergraduate students have very limited knowledge about factors that affect reliability of eyewitness perceptions and memory (Wise & Safer, 2010). These findings indicate that the same misconceptions also exist in jurors and many court officials. Jurors have often been known to accept eyewitness testimony at face value, even when it is heavily contradicted by other evidence (Loftus, 1979). Jurors are apt to believe an account of someone who was at the scene of an incident, despite what experts may assert about the evidence. Even judges, attorneys, and law enforcement officials tend to accept the observations of witnesses as accurate, although these professionals are probably more skeptical than laypersons. Nevertheless, research indicates that even if the professionals are more skeptical, they are still not aware of the specific factors that influence the accuracy of eyewitness testimony, such as the effect of stress or the length of time one has to observe an incident. In a study involving judges, law students, and undergraduates, Wise and Safer (2010) found that judges and law students were no more knowledgeable about factors that influence
Eyewitness research has consistently revealed that suggestive questioning and biased lineup procedures can have enormous influences on the accuracy of eyewitness testimony (Wells & Loftus, 2013). This is apparent not only from the psychological research, but also from recent advancements in forensic procedures that have resulted in the exoneration of many previously convicted persons. For example, since 1989, 354 wrongful convictions have been overturned through DNA testing (Innocence Project, 2018). More than 70% of these wrongful convictions involved the misidentification of an innocent person by an eyewitness, which is more than all other sources of error combined. DNA exonerations have demonstrated that eyewitnesses can be absolutely positive and yet absolutely mistaken (Wells, Memon, & Penrod, 2006). There has been success in getting some law enforcement agencies to make use of psychological science in their procedures for collecting eyewitness evidence, but much more needs to be done (Wells, 2006; Wells et al., 2000; Wixted & Wells, 2017). Police protocols for collecting, preserving, and interpreting eyewitness evidence generally do not take into consideration the high potential for contaminating eyewitness evidence. To a very large extent, eyewitness evidence is collected in criminal investigations by non-specialists who have little or no training on the limitations of human perception and memory. The detective or patrol officer questioning a witness may be a good cop with years on the job but may have little knowledge about factors that influence information provided by a witness. On the other hand, physical evidence—from either the crime scene or elsewhere—is often carefully and scientifically collected and then analyzed by highly trained individuals who are usually familiar with the research literature and skillful in the scientific method as it pertains to physical evidence. In this chapter, we will examine psychological research and describe the numerous variables that influence eyewitness reports, which may or may not result in courtroom testimony. Because the literature typically refers to eyewitness testimony, we will often use eyewitness evidence and eyewitness testimony interchangeably. Ultimately, the general purpose of research in this area “is to generate scientific knowledge that will maximize the chances that a guilty defendant will be justly convicted while minimizing the chances that an innocent defendant will be mistakenly convicted” (Wells, 1978, p. 1546). At this point, though research is ongoing, there is enough evidence to urge caution in accepting too readily the accuracy of eyewitnesses. We will begin by describing the conditions that promote accurate and reliable eyewitness evidence, and we will then discuss the various conditions that contaminate it. It is common practice by law enforcement to interview witnesses to a crime, discover what they saw, and ultimately identify a perpetrator. In civil cases, lawyers and other legal professionals interview and question plaintiffs, defendants, and witnesses, both in depositions and in the courtroom. In both criminal and civil cases, arriving at the truth requires the accurate recall and recognition of the person or incidents that were observed.
Bartol, Curtis R.; Bartol, Anne M.. Psychology and Law (p. 99). SAGE Publications.
Eyewitness Confidence and Certainty
Eyewitness confidence is treated here as a system variable because it can be manipulated. “Eyewitness researchers tend to think of certainty as a system variable because it can be directly manipulated by legal system players through the timing and control of statements that are provided to eyewitnesses” (Smalarz & Wells, 2013, p. 161). However, it can also be considered an estimator variable as a feature of the individual. For example, some people are very firm in their convictions of what they saw—or they feel very unclear about it. No amount of questioning will change that confidence—or lack of it. In that sense, witness confidence can also be considered an estimator variable. People generally assume that those who are certain about what they saw are accurate witnesses. There is some validity to this assumption. Earlier psychological studies did suggest either that certainty was unrelated to accuracy or that it was an indicator of inaccuracy. (“If he’s that sure, he’s probably wrong.”) “In fact, this idea is still endorsed by members of the legal system who have not followed closely the development of the empirical literature” (Smalarz & Wells, 2013, p. 164). Current studies have found that, in general, the more confident the eyewitness, the more accurate her decisions when identifying the culprit (Brewer & Wells, 2006, 2011; Smalarz & Wells, 2013). Recall the research project discussed in Researchers at Work 4.1 (C. A. Carlson et al., 2017), where highly confident witnesses to a simulated street robbery were also accurate in identifying the perpetrator. Moreover, “Highly confident decisions, rapid decisions, and decisions accompanied by relevant recollection (i.e., recall of contextual information relevant to discriminating the culprit) are more likely to be accurate than are decisions made with low confidence, slowly, or without relevant recollection” (Brewer & Wells, 2011, p. 24). However, it should be emphasized that many things can influence eyewitness identification certainty. For example, post-identification feedback or poorly constructed lineups—such as one in which the members were not reasonably matched in appearance—can shift the level of certainty (Douglass & Steblay, 2006). Also, some findings that appear to be relevant to adults may not extend to children, which will be discussed in Chapter 8. Overall, research results suggest that police investigators should pay close attention to the level of confidence of the witness when determining the accuracy of offender identifications by adult witnesses. Certainty may still be a weak indicator of accuracy, however. Psychological research has currently shifted to trying to understand the conditions under which certainty is a strong indicator and under which it is a weak indicator (Smalarz & Wells, 2013). For example, Pezdek (2012) observes that witness confidence probably decreases with the passage of time. A witness may then be less confident but still accurate. In addition, Pezdek notes that repeatedly questioning eyewitnesses inflates their confidence without affecting the accuracy of their memory. Consequently, a witness may become even more confident but not necessarily more accurate or inaccurate. A vast majority of the research has focused on the accuracy of identifying the offender, but little research has been directed at the witness who is positive the offender is not in the lineup (Smalarz & Wells, 2013). These researchers argue that witnesses’ certainty in a non-identification situation is qualitatively different from witness certainty in an identification situation. People who do not identify an offender in a lineup are sometimes referred to as not-there witnesses or nonchoosers (Smalarz & Wells, 2013). There are two types of nonchoosers: those who are not sure whether the perpetrator is in the lineup and those who are sure the offender is not. Those witnesses who are certain that the offender is not in the lineup obviously provide very useful information to any police investigation, because research now suggests that they are likely to be accurate. To the innocent suspect drawn into the investigation, they are invaluable. On the other hand, a non-identification from a not-sure witness might occur because the witness’s memory of the incident was not that good to begin with.
Bartol, Curtis R.; Bartol, Anne M.. Psychology and Law (p. 113). SAGE Publications.
It is clear that the level of confidence reported by witnesses regarding their identification does not automatically translate to reliability or accuracy. As pointed out by Wixted and Wells (2017), in every one of the DNA exonerations cases involving eyewitness misidentification examined by Garrett (2011), “witnesses who mistakenly identified innocent defendants did so with high confidence when the case was tried in a court of law” (p. 11). The DNA exonerations of innocent people who were mistakenly identified by confident witnesses has helped create the general impression that eyewitness memory is unreliable and fraught with error. As further noted by Wixted and Wells, the legal system has increasingly incorporated some of the early scientific studies that indicate there is no meaningful relationship between confidence and accuracy. “As a result, some courts now advise juries to disregard eyewitness expressions of confidence and to focus instead on a variety of other factors when trying to assess the reliability of an ID” (p. 11). Wixted and Wells document a growing trend within the legal system to disregard eyewitness confidence, without any attention directed at what identification procedures were used by the police and no distinction made between witness confidence at the time of the initial identification compared to witness confidence at a later time. Should we just throw out witness confidence as a reliable indicator of accuracy? Wixted and Wells (2017) make a strong case for saying no. They argue, based on extensive research data, that when pristine identification procedures are used, eyewitness confidence emerges as a very important factor in accurately identifying the culprit. The term pristine refers to an unspoiled or uncontaminated condition. A pristine identification procedure means that other witnesses, friends, the media, or the investigating officers did not influence—in any way—the witness’s identification of the suspect. In other words, if a witness says she is very confident that “that is the person” during the initial identification procedure and before contaminating influences, it is highly likely that she is correct. That would be a pristine identification. If the witness expresses low confidence during the first identification procedure, it is still a pristine identification, and likely to reflect the witness’s true level of confidence. However, contaminating factors that follow—such as the lineup administrator’s comments or media accounts of the crime—may influence her level of confidence, so by the time she appears on the witness stand, she will have utter confidence in her identification. Wixted and Wells (2017) also emphasize that the only time confidence is known to be a highly reliable predictor of accuracy is when the memory is first tested and before there is much opportunity for memory contamination to occur, again, as was the case in the C. A. Carlson et al. (2017) study. Therefore, the most important criterion for a pristine identification is the documentation of the confidence statement at the time of the first identification of the suspect (Loftus & Greenspan, 2017). For example, in most of the DNA exoneration cases that involved misidentification by eyewitnesses, the eyewitnesses were unsure and not very confident of their ID of the suspect at the initial stages of the investigation, as was the case in the illustration just used. In the courtroom, however, these initial low-confidence IDs shifted to high-confidence IDs, very likely due to some contaminating influences between the first memory and later memory recall. It should also be noted that the National Research Council (2014), in their extensive study on eyewitness identification, strongly recommended “that law enforcement document the witness’s level of confidence verbatim at the time when she or he first identifies a suspect” (p. 5, italics added).
Bartol, Curtis R.; Bartol, Anne M.. Psychology and Law (p. 114). SAGE Publications.
Eyewitness Confidence Malleability
Eyewitness confidence becomes a system variable when it is manipulated by agents of the law. In a survey of eyewitness experts, 95% believed that eyewitness confidence can be manipulated (Douglass & Pavletic, 2012; Kassin, Tubb, Hosch, & Memon, 2001). Douglass and Steblay (2006), for instance, found that witness certainty was more influenced by the feedback they received during the identification procedure (e.g., live lineup or photo array) than any other system variable. Manipulation of this type is especially troublesome in the case of mistaken identification—as when a witness points fingers at an innocent person. In a series of studies, Wells and Bradfield (1998, 1999) focused on the creation of false confidence by external influences, such as giving feedback to eyewitnesses after they make their identification. The researchers report, “Telling eyewitnesses who have made false identification that they identified the actual suspect or the same person that other witnesses identified leads to robust inflation in the witnesses’ confidence in their identification” (p. 138). This increased confidence in eyewitnesses’ identification generated by external influences is referred to as the post-identification feedback effect. Wells and his colleagues (Wells & Bradfield, 1999; Wells et al., 2000) find that this post-identification feedback does more than inflate the confidence level of the witnesses; it also distorts eyewitnesses’ memory of how confident they were at the time of the initial identification prior to the feedback. In other words, the witnesses may believe that they were highly certain of their identification before the feedback, even though they may have wondered at the time. In addition, this confirming feedback distorts the eyewitnesses’ recollection of their witnessing conditions, such as how well they were able to see the perpetrator. Most witnesses are convinced that the feedback did not influence their judgments. Interestingly, Wells and Bradfield (1999) found it is possible to “inoculate” eyewitnesses against the post-identification feedback effect by asking them to think about the process prior to the feedback manipulation. For example, the eyewitnesses eyewitnesses were instructed to think privately about several variables, such as how certain they were, how good their view was, and how long they took to make an identification, prior to the feedback. Wells and Bradfield found that “eyewitnesses who were instructed to think about these variables prior to the feedback manipulation were largely unaffected by the manipulation, whereas eyewitnesses who were not instructed to think about these variables were strongly affected by the manipulation” (p. 142).
Bartol, Curtis R.; Bartol, Anne M.. Psychology and Law (p. 115). SAGE Publications.
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