Module 10 Eyewitness Testimony

Objectives

 To recognise that eyewitness memory is highly fallible

 To recognise that memories are considered a product of conceptual
systems
 To have a basic understanding of some of the research into perception,
memory and eyewitness testimony
 To examine and report on personal perception and memory.

Introduction

Eyewitness testimony can make a deep impression on a jury, which is often

exclusively assigned the role of sorting out credibility issues and making judgements
about the truth of witness statements. Perjury is a crime, because lying under oath
can subvert the integrity of a trial and the legitimacy of the judicial system. However,
perjury is defined as knowingly making a false statement, merely misremembering is
not a crime. Recognising the fallibility of witness memories, then, is especially
important to participants in the judicial process, since many trials revolve around
factual determinations of whom to believe. Arriving at a just result and a correct
determination of truth is a difficult enough process without the added possibility that
witnesses themselves may not be aware of inaccuracies in their own testimony.

Karpadis (1999) cites Clifford and Bull (1978) when he maintains that courts, lawyers
and police officers are becoming increasingly aware that to ask witnesses to recall
details of events, or to describe faces on the assumption that the human memory
operates like a camcorder, is a misleading passive model of human attention,
perception and memory. Some theorists such as George Kelly,(1955, 1963) propose
that every person generates his/her own constructs, which they use to describe and
distinguish people and events. Harvey et al (1961) and Harvey (1966), also
maintained that conceptual systems are ways of viewing the world. He proposed that
people move through four stages of conceptual system:

System 1: Views the world through an absolute frame. Things for them tend to be
black or white with very little grey area. Ones are committed to established order,
rules and authority
System 2: Tend to see everyone as equal and have contempt for the concept of
hierarchy and authority. Titles are offensive to them and they may be inclined to be
contrary. This system will give an honest opinion without being influenced by rank or
authority. They value the rights of the individual and relate well to those in the
system with low prestige and power.
System 3: Are recognised by their attractive interpersonal skills. They strive for
harmony and exhibit high interpersonal dependence. Unlike the system 1 people, 3s
tend to feel sympathy for people with low prestige and power. They further tend to
believe that the underdog is often a victim of forces beyond his/her control, such as
bad luck, poverty and prejudice.
System 4: This system is not as common as the other three. The fourth system
tends to process data without bias, and responds to people, situations, rules and
authority as each fit into a rational scheme.

Linked to this construct model of perception is attribution theory. Attribution theory

basically looks at how people make sense of their world; what cause and effect
inferences they make about the behaviours of others and of themselves. Heider
(1944, 1946, 1958) states that there is a strong need in individuals to understand
transient events by attributing them to the actor's disposition or to stable
characteristics of the environment. The purpose behind making attributions is to
achieve cognitive control over one's environment by explaining and understanding the
causes behind behaviours and environmental occurrences. By making attributions a
person gives order and predictability to their life. When attributions are made, a
person analyses the situation by making inferences (going beyond the information
given) about the dispositions of others and themselves as well as inferences about
the environment and how it may be causing a person to behave.

Two basic kinds of attributions are made: internal which are dispositional, the person
is seen as the cause of his/her actions and external or situational in which the
environment is seen as the cause of a person’s actions.

Making inferences has consequences which include giving order and predictability
and an impetus to behaviour, a person will, or will not behave in certain ways toward
the actor based on their inferences and they will form expectations as to how the
actor will behave. The meaning of a behaviour depends on the cause to which it is
attributed (e.g. bystander studies have shown that if the perception is that a situation
is not caused by an emergency then people do not act as if it is an emergency).
Inaccuracies in attribution can lead to:

 Misplaced blame (trials, eyewitness studies, racial stereotyping)

 Blinds people to other causes for the behaviour witnessed.

Factors involved in eye witness testimony include:

Perception

The capacity of the human sensory

organs to perceive is limited in scope
and it can be seen that perceptions
are molded by expectation,
sometimes known as "mind set" or
"set." This means simply that what is
perceived is what is expected to be
perceived. The fact-finding process
in a criminal investigation and trial is
based on the premises that sworn
witnesses can reconstruct the truth
based on perception, memory, and
recollection. Witnesses want to live up to the expectations of the system, as well as
their expectations of themselves. Witnesses without motives to falsify typically want
to be accurate and to appear able and consistent. If an eyewitness to a crime
doesn't find exactly the face that he/she saw during a crime, there is a psychological
tendency to select a similar one at the identification parade or in court.

Psychologists have long recognised that gap filling and reliance on assumptions are
necessary to function in society. The process of interpretation occurs at the very
formation of memory, thus introducing distortion from the beginning. Furthermore,
witnesses can distort their own memories without the help of examiners, police
officers or lawyers. Rarely does anyone tell a story or recount events without a
purpose. Every act of telling and retelling is tailored to a particular listener;
extraneous material is often edited out of many a recount. The act of telling a story
adds another layer of distortion, which in turn affects the underlying memory of the
event.

Human memory does not exist so that an observer may accurately report previously
seen events. The actual, physical events are data for interpretation in the human
mental processes. Each witness extracts an interpretation that is meaningful in
terms of their own beliefs, experiences and needs. Once the interpretation occurs,
the events themselves become relatively unimportant. Moreover, since each person
interprets the events in terms of their own world view, different eyewitnesses
observing the same event may have different interpretations and different memories.
To put it succinctly:

"We do not see what we sense. We see what we think we sense. Our
consciousness is presented with an interpretation, not the raw data. Long
after presentation, an unconscious information processing has discarded
information, so that we see a simulation, a hypothesis, an interpretation; and
we are not free to choose" (Norretranders, 1999).

Although Norretranders was talking about perception, the same basic operation
applies to memory:

1) It is an interpretation
2) The raw sensory data is largely discarded
3) Human beings are not free to choose, meaning that the transformation from
raw data to interpretation occurs automatically and outside volition.

This is why people can be so certain despite the distortion. They are simply not
aware of having "altered the facts."

Memory

Memory errors in eye witnesses can occur for a number of reasons which include:

Social desirability bias

Observers are influenced in their perceptions by biases, prejudices, interests, and

motives. In an effort to be good citizens, witnesses in good faith may fill in gaps in
their memory. What often happens when a victim of a serious offence interacts with a
police investigator is the unification of goals. Both have a desire to solve the crime,
but if the victim has a very strong desire to solve that crime, as most victims of
serious crimes do, they become especially sensitive to any feedback that they may
receive.

Several eyewitness crime studies have shown that self-reported confidence ratings
are correlated with recall accuracy, so that the more confident a person is in the
accuracy of a response, the higher the probability that the response is accurate.
Confidence is the extent to which a person believes the information s/he has
provided is correct, while accuracy is a measure of how close the information
provided is to the truth. If the confidence/accuracy relation is true for recalling a past
exposure, then confidence ratings may be useful in assessing the quality of recalled
data. Some studies suggest that conversing with other people about past events or
self-reflecting on past events increases confidence in reporting.

Problems arise if an investigator has a suspect in mind, because there is a possibility

that they may unwittingly communicate that idea to the victim (Loftus, 1998). This
interaction is known as suggestibility, and is defined as the tendency of individuals to
accept uncritical information during questioning, or merely complying with what they
believe the interviewer wants to hear (Sadava and McCreary 1997). Loftus (1979)
also found that once encoded, misleading details do not necessarily eliminate the
original memory trace, but simply becomes more accessible and so may interfere
with the retrieval of correct details. It may well be that these effects also depend on
the strength of the memory trace, such that strong traces may be more likely to be
resistant to incidental mood effects.

Interviewer effects

In a series of highly influential experiments, Elizabeth Loftus (1979) showed that

people are easily misled and report erroneous memories as a result of being exposed
to incorrect post-event information. One common way that eyewitnesses can be
exposed to post-event misinformation is by being asked leading (misleading)
questions, that is, questions that contain information about the observed episode that
was not in fact part of the original event. For example, a misleading question
suggesting that there was a ‘give way’ sign rather than a ‘stop’ sign at a road traffic
accident scene can produce a significant increase in incorrect memories, suggesting
that the ‘give way’ sign was part of the original scene. In a similar way, a question
like, “How fast was the white sports car going when it passed the barn while travelling
along the country road?” produces an increased tendency by eyewitnesses to report
having seen a barn, even though this was not part of the original scene. Even such
subtle post-event clues as a change from the indefinite to the definitive article (a to
the) can produce memory biases. Participants who were asked, “Did you see the
broken headlight?” were more likely to report seeing it later on than did those asked
“Did you see a broken headlight?”

This memory-biasing effect of post-event information is known as the misinformation

effect (Schooler & Loftus, 1993). Some explanations of the effect suggest that the
original memory trace becomes overwritten by the misinformation received later on
(Loftus, 1979). Other theories propose, however, that subsequent misinformation
does not eliminate the original memory, but simply interferes with its accessibility and
retrieval (Bekerian & Bowers, 1983). It was also suggested that the effect may
depend on the strength of the memory trace; strong memories are more likely to
resist misleading suggestions than weak memories (Pezdek & Roe, 1995; Reyna &
Lloyd, 1997).

Some interviewers have a tendency toward adopting self-fulfilling prophecy

techniques, whereby questions are specifically designed to generate flawed results
(Sadava and McCreary, 1997), and any information that does not fulfil these
expectations is simply ignored. A study conducted by Kwock and Winer (1986)
concluded that suggestibility depends on a variety of factors, including the identity of
the person proposing questions, their assertiveness and reactive responses. Those
designated as experts, as opposed to apparent novices, are more likely to influence
responses (Sadava and McCreary, 1997).

Mood effects

Wells & Olsen (2003) suggest that personal moods may influence memory at each of
the three stages of the eyewitness process:

1) Encoding stage: When the event is first witnessed

2) Post event stage: When potentially misleading information is encountered
3) Retrieval stage: When the information is retrieved and judgments are made.

Despite extensive interest in affective influences on cognition in recent years (Bless,

2001; Forgas, 2002), the influence of affective states on eyewitness accuracy has
received less than adequate attention to date. Forgas, Lahan and Vargas (2005)
examined three experiments which offer convergent evidence that transient moods
do have a marked influence on people’s susceptibility to misleading information when
remembering witnessed events. All three experiments showed that positive mood
increased, and negative mood decreased the tendency to incorporate misleading
details into eyewitness accounts. They found that congruence between current mood
and the affective valence of the target event provided no defence against misleading
information and that memories for real-life events were just as susceptible to affective
influences as were memories for videotaped or photographed scenes. They maintain
that subjective confidence was unrelated to eyewitness accuracy (Penrod & Cutler,
1996). Paradoxically, happy moods reduced accuracy yet increased confidence,
suggesting that people had little meta-cognitive awareness of their cognitive
processes (Nisbett & Wilson, 1977), and were unaware of the consequences of their
mood states for their thinking and memory (Berkowitz et al., 2000).

This module barely scratches the surface of the problems that surround the subject of
eyewitness testimony. Because perception and memory are processes common to
all human beings, the following assessment exercise gives you the opportunity to test
your own susceptibility to distorted perceptions and false memories.
Suggested Reading

Hammond, L. Thole, K (2008) “Interviewing and Testimony” in D. Canter (ed) Criminal

Psychology London: Hodder Education
Kelly, G. (1963) A Theory of Personality: The Psychology of General Constructs New
York: Norton
Loftus, E. F. (1979). Eyewitness testimony. Cambridge: Harvard University
Press
Norretranders, T., J. (1999). The User Illusion: Cutting Consciousness Down To Size,
New York: Penguin Books.
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