The Evolution and Shaping of Eyewitness Testimony
Melissa Ueckert
Pepperdine University
4/4/2012
Abstract
Eyewitness testimony is often one of the most important tools law enforcement officials use to re-create the course of events that took place during a crime. Witnesses’ testimonies can be a deciding factor in whether a defendant goes free or goes to jail, so it is vitally important that prosecutors and juries receive the most concise and exact testimonies possible. However, eyewitnesses’ memories sometimes fluctuate or fail, due either to a witness’ own forgetfulness, biases or preconceptions, or to outside forces that try to manipulate the witness’ memory. From the moment an individual witnesses a crime, his or her memory of the event begins to warp, allowing the possibility for inaccurate statements and false testimonies to emerge.
Keywords: eyewitness testimony, memory, event recollection
The Evolution and Shaping of Eyewitness Testimony
For as long as the process of trying criminals in some form of court has been in practice, the consideration of eyewitness testimony to help influence this practice has been in place as well. Those seeking to ensure righteousness strive to depict the circumstances surrounding crimes as accurately as possible in order to guarantee that the correct course of action is taken and justice is served. This depiction of what transpired during the crime can be created using a number of different techniques, ranging from surveillance footage to forensic analysis. Perhaps the most personal and direct technique is eyewitness testimony. Eyewitness identifications are among the most commonly used and compelling evidence brought against criminal defendants (Shermer, Rose & Hoffman, 2011). Eyewitness testimony can incorporate many human senses, such as hearing, touch and smell, which other types of evidence like video and forensic profiling can’t. Humans will always seek to form connections with other humans before turning to non-human entities (Baumeister & Leary, 1995). This is evident in the courtroom, where jury members will frequently be more inclined to follow humanistic evidence, as opposed to evidence based on technology. To jurors, there is little that is more persuasive than an eyewitness testifying that he or she saw the defendant commit a crime (Shermer et al., 2011).
However, one major shortcoming flaws the sole reliance on eyewitness testimony. When an eyewitness first views a crime taking place, his or her memory of it is incredibly sharp and near-perfect. But, as time lapses, the eyewitness’ memory gradually begins to grow distant, and recollections of certain aspects of the crime that were sharp before might not be remembered correctly. A witness’ memories can be manipulated by information presented to the witness shortly after exposure to an event, as when a police officer intent on solving a crime introduces false cues which subtly sway the witness’ memory. Both the witness’ own internal speculations, and the perception of external stimuli, can alter the witness’ memories over time, as can exposure to new experiences and memories (Leinfelt, 2004).
While eyewitness testimony is not the sole deciding factor in the conviction of criminals, it does carry an extremely heavy weight. The Innocence Project is a public policy organization whose mission is to free wrongly convicted individuals through the use of DNA testing. The organization lists eyewitness misidentification as the number one cause of wrongful conviction and imprisonment ("Eyewitness misidentification"). Shermer et al. (2011) state that of the first 225 wrongfully convicted individuals in the United States exonerated through the Innocence Project, 77% had been originally imprisoned due to mistaken eyewitness identifications. Considering that nearly 80,000 people in the United States are convicted and imprisoned each year based on the consideration of eyewitness testimonies, one can only imagine that there is a large possibility that a surprisingly large amount of these 80,000 imprisonments are not correct.
After viewing a crime, an eyewitness’ first interaction with the legal system is usually some form of questioning interview conducted by law enforcement; it is likely that an eyewitness will undergo several different sessions of questioning. Unfortunately, these interrogations often include investigators using suggestive techniques and “leading” questions, which have a tendency to artificially steer an eyewitness’ answer (Krahenbuhl & Blades, 2006). If leading questions are used in every interrogation that a witness is subjected to, the eyewitness’ memory becomes more and more susceptible to outside manipulation, whether intentional or not. Certain tactics used by police and investigators can influence a witness’ memories, and in turn, throw off an entire investigation and lead to incorrect conclusions (Shermer et al., 2011). Another one of these tactics is the repetition of questions asked by law enforcement officers and investigators. Studies show that when an individual is repeatedly asked about events that they have witnessed, the accuracy of their memories decline with each successive questioning (Krahenbuhl & Blades, 2006). And while this tactic does pose difficulty with adults, it is even more problematic when dealing with children. If investigators were to repeatedly ask an adult a question that the adult did not know the answer to, the adult would likely have no problem telling authorities that they did not have an answer. However, it has been found that reactions in corresponding situations are different with children. Rather than admit they do not know the answer to a question, children prefer to speculate and hypothesize. And, if they are asked the same question repeatedly, children will hypothesize repeatedly, and eventually their fabricated ideas will start to seem more and more real, until the children see their ideas as legitimate memories (Waterman, Blades & Spencer, 2001). A child may be questioned up to 12 different times during an interrogation, giving them 12 different chances to imagine up a persuasively falsified story (Ceci & Bruck, 1995). Children seek to “satisfy the intent” of the interrogator, and doing so often leads to false recollections and incorrect memories (Poole & White, 1991).
The interrogation process offers the chance for yet another form of memory variance to take place. Davies & Hine (2007) state how a range of variables can influence eyewitness identification, and their effects can often be seen in a change blindness scenario. Change blindness occurs when something changes in a particular scenario, but the person observing the scenario fails to notice the change. Change blindness is an incredibly common event amongst eyewitnesses. In a study, 80 different people were shown a video of a burglary, but were not told that the actor playing the burglar suddenly switched and became played by a different actor halfway through the video. In the end, 61% of viewers did not notice that the identity of the burglar changed (Davies & Hine, 2007). Witnesses generally place the criminals they see into three different groups based on certain identifying traits: familiarity, exposure time, and race. Familiarity indicates that an eyewitness is more likely to be able to identify a criminal if the criminal resembles an individual that the witness is familiar with; exposure time indicates that the longer an eyewitness has observed a suspect, the more likely the eyewitness is to notice changes in that suspect; and race indicates that a witness should easily be able to distinguish between individuals based on their ethnicities. Because the two burglar actors in the video did not resemble people that the viewers knew, and were seen for a relatively short period of time, and were the same race, there were not many differences for viewers to pick up on. The conciseness of these three categories makes it incredibly easy for eyewitnesses to falsely identify who they believe to be criminals. For instance, witnesses may confuse an offender seen entering a building with an innocent person seen leaving it later if the two individuals are the same race, are both seen for a short amount of time, or do not resemble someone that the witness is close with (Davies & Hine, 2007).
After undergoing interrogation, an eyewitness is often subsequently called as a witness during a criminal trial. The witness is questioned yet again, but this time the interrogation takes place in front of a jury, who will in turn use the witness’ testimony (and other evidence presented) to decide to convict or exonerate the defendant. This stage of the legal process offers another opportunity for eyewitnesses to falsely identify a criminal. By now the witness most likely has a solid image of their memory, regardless of whether the memory is right or not. The witness will likely appear confident and convinced of their testimony, in turn making the jury confident in the testimony as well. Shermer et al. (2011) state that “jurors’ ratings of the witnesses’ confidence accounted for nearly 50% of the variance in jurors’ decisions of whether or not to believe the witness.” (p. 185) Therefore, a jury will likely have no problem believing a witness’ testimony regardless of the accuracy of the testimony, so long as the eyewitness seems confident. Jurors fail to understand that confidence does not equate to accuracy, and that confidence exhibited by an eyewitness may not have originally been there. False confidence can be built up through police interrogations long before a trial even starts, and this deceptive confidence manages to last all the way through the trial and portray events that possibly might have never happened.
In summary, the evolution of eyewitness testimony begins the moment that an individual witnesses an event, and continues on a journey that shapes and re-forms it. This shaping can lead to a number of different results, some of which remain true to the original memory, and some of which depict a different event entirely. Many variables come into play, such as the introduction of false cues which alter witnesses’ memories, witnesses’ personal interpretations of what they saw and heard, witnesses’ preconceived ideas and beliefs, the phenomenon of “change blindness,” and as in the case of child witnesses, a desire to please. The courts place heavy importance on eyewitness testimony, but at the same time, allow this testimony to be cross-examined by the opposing attorney, which helps create balance. While studies show that memories can be intentionally manipulated, memories can also fail not through manipulation, but simply because we are human.
References
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Eyewitness misidentification. (n.d.). Retrieved from http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php
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Leinfelt, F. (2004). Close descriptive eyewitness testimony: The influence of emotionality, racial identification, question style, and selective perception. Criminal Justice Review, 29(2), 317-40.
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Waterman, A. H., Blades, M., & Spencer, C. (2001). Interviewing children and adults: The effect of question format on the tendency to speculate. Applied Cognitive Psychology, 15, 521-31.
