Download TESTIMONY - University of Exeter

TESTIMONY
The testimony trail
Offence witnessed -> Police question witness -> Witness statement recorded -> Media recount events-> Evidence in court -> Court/ Jury
verdict
1984 KIRK BLOODSWORTH was convicted of the rape and murder of a nine-year-old girl and sentenced to the gas
chamber—an outcome that rested largely on the testimony of five eyewitnesses. After Bloodsworth served nine years in
prison, DNA testing proved him to be innocent. Such devastating mistakes by eyewitnesses are not rare, according to a
report by the Innocence Project. Since the 1990s, when DNA testing was first introduced, Innocence Project researchers
have reported that 73 percent of the 239 convictions overturned through DNA testing were based on eyewitness testimony.
Connors, 96 -> false confictions- 40 trials (prison sentences or death row) – 90% of them involved the testimony of at least one eye
witness. Ronald Cotton- convicted of rape – 5 eyewitnesses (real rapist had confessed –but confession rejected by court).
1) OFFENCE WITNESSED
What influences attentional focus & encoding of memories?
# being taken back at the scene of the crime might trigger memories (like scuba divers and memory- Godden & Baddeley, 1975)
# stress - The Yenkes Dodson curve – a little bit of stress of arousal to perform better (if not, you’re bored and lethargic) – to get onto
optimal performance curve (would be different for each individuals – ex: formula 1 drivers operate better under more stress). A bit more
stress than that (stress conditions) performance starts to suffer. Impacts on ability to encode and retrieve info. Deffenbacher
(1983) reviewed 21 studies and found that the stress-performance relationship followed an inverted-U function proposed by the Yerkes
Dodson Curve (1908). This means that for tasks of moderate complexity (such as EWT), performances increases with stress up to an
optimal point where it starts to decline.
#context - Clifford and Scott (1978) found that people who saw a film of a violent attack remembered fewer of the 40 items of
information about the event than a control group who saw a less stressful version. As witnessing a real crime is probably more stressful
than taking part in an experiment, memory accuracy may well be even more affected in real life.
But false memories often described as less clear and vivid than true memories (Norman & Schacter, 97).
MEMORY RECONSTRUCTION However, memory does not work in this way. It is a feature of human memory that we do not store
information exactly as it is presented to us. Rather, people extract from information the gist, or underlying meaning.
In other words, people store information in the way that makes the most sense to them. We make sense of information by trying to fit it
intoschemas, which are a way of organizing information.
Schemas are therefore capable of distorting unfamiliar or unconsciously ‘unacceptable’ information in order to ‘fit in’ with our
existing knowledge or schemas.
'War of the Ghosts', Bartlett (1932) showed that memory is not just a factual recording of what has occurred, but that we make
“effort after meaning”. By this, Bartlett meant that we try to fit what we remember with what we really know and understand about
the world. As a result, we quite often change our memories so they become more sensible to us.
His participants heard a story and had to tell the story to another person and so on, like a game of “Chinese Whispers”.
The story was a North American folk tale called “The War of the Ghosts”. When asked to recount the detail of the story, each person
seemed to recall it in their own individual way.
With repeating telling, the passages became shorter, puzzling ideas were rationalized or omitted altogether and details changed to
become more familiar or conventional.
Allport & Postman (1947).
When asked to recall details of the picture opposite, participants tended to report that it was the black man who was holding the razor
(was white in the picture)
WEAPON FOCUS
Loftus et al. (1987) showed participants a series of slides of a customer in a restaurant. In one version the customer was holding a
gun, in the other the same customer held a checkbook. Participants who saw the gun version tended to focus on the gun. As a result they
were less likely to identify the customer in an identity parade those who had seen the checkbook version
2) POLICE QUESTION WITNESS
# Suggestibility – ex. Children more susceptible
Loftus & Palmer (74) –car – how fast when “hit” / “smashed into eachother” . Estimates of speed affected by word used
High anxiety and lowered self- esteem may increase susceptibility by making him or her more prone to try to please the interviewer by
providing the implied responses (Gudjonson, 1986).
Santilla, 1999-surprisingly, alcohol doesn’t affect retrieval efficacy and they are less susceptible
# Confessions - they sometimes feel like they need to confess . early days of good cop bad cop (whatever the good cop was suggesting
was better than what the bad cop was – could end in false confession)
Voluntary false- without any external pressure. Maybe morbid desire for notoriety. Mental illness (Gudjonsson, 99)
Coerced-compliant – persuasive interrogation. Reason: escape from stressful situation, release from custody. Fully aware of not having
commited the crime (Gudjonsson, 1990).
Coerced-internalised-> persuasive- but more manipulative . “Memory distrust syndrome” accept false scenario suggested by police
(Gudjonson, 1995).
Coerced –reactive -> pressured by somebody other than the police. Ex: McCann (98) violent man who intimidated wife into taking
responsibility for murder of one of her children.
# Cognitive interview’ - insurance companies to that (they ask you to tell the story. Then go to the middle of It, ask you to work
backwards from then. And look for inconsistencies). This technique developed 15y ago. doesn’t work with children- ask the same
question loads of times they will assume they got it wrong so change their answer.
For instance, the Cognitive Interview is a widely researched interview method that employs memory enhancement
techniques to improve eyewitness descriptions (Fisher & Geiselman, 1992).
This technique also promotes the use of rapport building, open-ended questioning, and active listening. Officers at crime
scenes need specific information about the perpetrator, but if they ask only specific direct questions, they will likely hear
very limited information, and perhaps not the relevant information. Starting with open-ended questions, such as, “Describe
everything you saw,”
# Can questioning be ‘bias-free’?- open style. Non leading questions (were there any vehicles. Not did you see the red car) same with
research. No Onomatopee (words that sound like the action that they are describing “smashed into each other”. better “bumbed into
each other” )
visual conspicuity? (red top would be more salient) . search conspicuity (if you are looking for certain elements ) . if you hanged out
with bikers before, they wouldn’t have been as cognitively conspicuous.
Loftus and Palmer (1974) wanted to see if the wording of a question affects recall.
A sample of students were shown a clip of a traffic accident. They were then asked about the speed of the car when it: bumped, collided,
contacted, hit orsmashed. The average speed when a particular word was used is shown below (in miles per hour).
Contacted 31.8 Hit 34.0 Bumped 38.1 Collided 39.3 Smashed 40.8. The wording of questions can affect the judgements of an eyewitness,
and may prompt false memories.
Howitt (2002) The longer the delay between crime and statement, the better the accuracy.
accurate in describing individual characteristics – agreement between witness description and police description of suspect : sex (100%),
eye shape (100%), hair colour (73%), race (60%), height (52%).
Accuracy predicted by: longer the statement-greater accuracy, length of description, duration of crime, physical position of witness in
relation to offender, feelings of threat etc.
Line-up - Relative judgment theory – in the absence of the culprit in a line-up- the line up members most similar will be picked out. –
no mechanism exists for deciding that non ot them is the offender. 54% of those who identified the culprit when present, would have
identified someone else in the culprit’s absence (Wells, 93).
Wells – protect the suspect –
1. the person who conducts the line-up or photospread should not be aware of which member of line-up of photospread is suspect (ex:
memory research remember list words- researcher may pause fractionally longer over critical words –Jung, 71).
2. the eyewitness should be told explicitly that the person administering the line-up does not know which person is the suspect.
3. The suspect should not stand out in the line-up or photospread as being different from the distracters based on the eyewitness’s
previous description or other facts.
4. clear statement at the time of identification and prior to any feedback as to his or her confidence that the identified person is the
culprit.
3) WITNESS STATEMENT RECORDED
all are videoed now – as a result of loads of inaccuracies in the past. But with children –it often happens so that you don’t bring child in
court (suffer effects of cross-examination).
4) MEDIA RECOUNTS EVENTS
# Pre-trial publicity
- Rebekah Brooks, trial – the witch hunt. – Andy Coulson . She is more represented in the paper. So this is what people will remember
about the trial (even though Andy Coulson and other were there as well). Gender issue.
-US jury trials have to moved from one state to another because of pre-trial publicity.
- A juror googled the name of the defendant – brought it directly to the jury room – she was convicted for contempt of court. (are not
allowed to consider anything that they didn’t hear in court)
Experiment : crash of Boeing 747 in Amsterdam (Crombag, 1996) –no images on tv but pps reported visual recollections of news
coverage- they did not realize that they were manufacturing memories.
Ruva, 2009
30 mock-jury deliberations were performed to explore whether pretrial publicity (PTP) affects the content of jury deliberations. The pattern of results
suggests that PTP has a powerful effect on jury verdicts and that PTP exposure can influence the interpretation and discussion of trial evidence during
deliberations. Jurors who were exposed to negative PTP (anti-defendant) were significantly more likely than their non-exposed counterparts to discuss
ambiguous trial facts in a manner that supported the prosecution's case, but rarely discussed them in a manner that supported the defense's case. This
study also found that PTP exposed jurors were either unwilling or unable to adhere to instructions admonishing them not to discuss PTP and rarely
corrected jury members who mentioned PTP
5) EVIDENCE IN COURT
# Expert witness evidence - not necessarily right- link between MMR vaccine and autism (wasn’t as reliable as he put it- his career is
now over).
- Woman. 3 of her children died. Expert witness- statistics. She was put in prison for years. And it wasn’t
her fault. Expert witness was wrong. (maybe rely on their evidence too much- in research we use 5% - but that means 1/20 we are out –
if someone’s life is on line and it’s all statistics, you might wanna be a bit more confident than that) .
“beyond reasonable doubt” – when you hear that from someone with better expertise. Power imbalance . so
you believe them
Expert witness – a person who through a special course of study or experience is able to furnish the Court or Tribunal with scientific or
technical information which is likely to be outside the experience and knowledge of a judge, magistrate, convenor or jury. (can give
opinion. Ordinary witness- just factual evidence)
# Confidence and accuracy- no relation between these issues but juries perceive more confident as being more accurate.
Brewer, 2006
-jurors tend to overestimate the reliability of identifications (Lindsay, 1981)
- biased line-up instructions- that is, instructions that fail to warn the witness that the offender may not be in the line-up
-Brewer, 2006- witnesses who infer or are led to believe that the account of events that they gave to police at intervierw was detailed and
of high quality, and believe that such accounts are likely to be predictive of identification accuracy are likely to be confident about their
ability to make an accurate identification if t4ested. Empirical evidence suggests quite a weak relationship between such recall and
identification test performance (Cutler, 1987).
– inflate the level of positive identifications from both target-absent and target-resent line-ups (Brewer, 2005).
# Questioning of witnesses - shakes their confidence in their own accuracy.
# Can questioning be ‘bias-free’?
6) COURT/JURY VERDICT
# Risky shift - decisions that a grop of people make will be more risky (ex: American invasion of Cuba-stupid plan. Cause JFK had a
cliquey group and didn’t get opinions from outside). Jury- isolated group so they could end up making weird decisions.
# Expert knowledge, previous experience - –their opinion more influential on opinion of group (ex: one jury member is a medic and he
knows a lot about a detail of the case)
# Majority/minority influence - Asch etc –basic psychology studies – look at social module 2nd year
# Differential focus on elements of case
# Deliberation Fatigue - jury members might not care anymore, they just wanna go home so if they’re in minority, they will agree with
majority.
CHILDREN AND OLD PEOPLE ARE RELIABLE EYE WITNESSES
-general idea: NO! but have to understand that there are cases where they are the only eyewitnesses. So – ways to improve process!
THEORY
each year more than 100,000 children testify in court. (Cassel, 1995)
PRO
!If questioning done right
UNDERESTIMATED MEMORY
.However, children often demonstrate high accuracy in remembering
events that are personally meaningful, such as genital contact, which
is prevalent in cases of sexual assault. (Jianjian, 1997).
Ochsner (1999)- whether young children’s eyewitness performance
following a criminal even would differ from their performance
following a neutral event. 30 first graders viewed neutral event or
purse theft. Theft- more accurate. => children’s memory performance
in criminal eyewitnerss situations is often underestimated.
OVERESTIMATED SUSCEPTIBILITY
Recovering original memories: Schaaf (2000) – groups of 4-6 year old
children participated in a play session. Misinformation through a
storybook read by parents that described the play session in which the
child took part but included wrong details (Having done jumping
jacks instead of the true detail- run on the spot). Results- misled by
incorrect info but instructions aided in recovery of original memory.
There are conditions under which children as young as four can
exclude incorrect answers from their reports even after having
potentially accepted misinformation.
PROCESS COULD IMPROVE
.
-a) focusing on the manner in which a child’s evidence was obtained
when determining the reliability of the statement
b) addressing the problems of leading and closed questioning during
cross-examination
c) increasing the feedback to investigate interviewers regarding the
judicial reaction to their interviews
d) providing more training to police, lawyers, judiciary around the
issue of children’s susceptibility and the relative impact of various
questions on error rates.
Could increase ability of children to tell their stories and answer
questions reliably (Cashmore, 2002).
The 1933 Children and Young Person’s Act allowed children to give
unsworn testimony provided that the child was reasonably intelligent
and understood his or her duty to tell the truth. BUT needed to be
corroborated either by other sworn testimony or by medical or
forensic evidence. BUT under the 1996 Criminal Justice Act, judges
are no longer required to warn the jury regarding the reliability or
otherwise of children’s testimony.
ANTI
-mistaken eyewitness testimony may be the largest cause of wrongful
convictions
Children’s cognitive abilities are not so well developed and so their
thinking and memory capacities are inferior to those of adult
witnesses
#MEMORY
- Studies on children show that the average child is at greater risk for
memory loss, due to the brain's immaturity and plasticity, when
compared to an average adult. Poorer memory performance in young
kids was shown when youth of different ages were asked to recall a
doctor's visit.(Jianjian, 1997) Children aged 3–5 answered with much
less accuracy than individuals aged 6–15, indicating developmental
differences in memory capacity. Furthermore, it has been shown that
information encoded and stored in memory is dependent on the extent
of knowledge regarding the event. That is, if a child is exposed to an
event that he or she knows little about, their memory of the event will
not be as accurate when compared to a child who is more
knowledgeable on event-related topics. (Gordon, 2001) Furthermore,
older children tend to have a larger knowledge base to draw upon than
younger children (Brainerd & Reyna; Case; Chi; Fischer; Fivush;
Johnson, et, al.; Lindsay; Nelson, in Goodman et al., 2001).
-Using early childhood memories in eyewitness testimony can also be
challenging because for the first 1–2 years of life, brain structures
such as the limbic system, which holds the hippocampus and
the amygdala and is involved in memory storage, are not yet fully
developed (Phelps, 2004)
-Fivush (1993) – younger children’s recall tends not to be as detailed
or as exhaustive as that provided by older children. A child who can
only recall details after a great deal of prompting may be seen as a
poor witness, and his or her story may be challenged by defence
counsel in court.
Fivush (1993) --less consistent in their answers – memory skills
undeveloped so when asked a number of different questions about the
same incident –will appear confused and provide different answers.
Live videolink- allows children to give evidence from a separate
room, less intimidating. (Finn, 1993). Memory more likely to be
accurate if not in the presence of alleged perpetrator. Ross (1994) –
mock juries more likely to convict an accused if shown a child giving
evidence in open court as opposed to videolink.
EGOCENTRIC
# From a Piagetian perspective, preoperational children still see the
world from a largely egocentric perspective, and they also tend to
focus on a single aspect of stimuli. From this perspective, it makes
sense that in general younger children would recall less than older
children, because they may not actually take in as much as an older
child, who can focus on multiple aspects of stimuli.
Also
(Poland, 2000) – adult participants saw him, correctly, as the 29 year
old that he was, while about a fifth of the children (12yo ) saw him as
being in the 40-45 year old age group.
Bull (92) – important that they provide account in their own words, at
their own pace. Interviewer’s role is as facilitator and not
COGNITIVE
- Bull (1992) - cognitive development cannot be controlled for – a
interrogator”
. For instance, eyewitness age (e.g., children or the elderly), poor
visibility during the crime, extreme stress or trauma, alcohol and
drugs, the race of the perpetrator relative to the eyewitness, and the
presence of a weapon may all reduce the amount of information
obtained from eyewitnesses and increase the chances of mistaken
identification.
Researchers call these factors estimator variables, because
officers can only estimate their impact on eyewitness reports (Wells,
1978). These factors are akin to finding a smeared fingerprint at a
crime scene, or a contaminated blood sample. Officers may attempt to
use this evidence to solve the crime or secure a conviction, but they
will weigh the reliability of this imperfect evidence as they make their
case. Although officers should consider how estimator variables
might affect their case, they cannot do much to reduce their
detrimental effects.
-prepare child- usefulness of teaching child groundrules of
investigative interview- correcting the interviewer, saying “I don’t
know” or “I don’t understand” (Gee, 99).
ADULT FRAGILE AS WELL
At the same time other research has demonstrated that adult testimony
is not always reliable, showing that mature witnesses' memories can
be equally fragile and susceptible to the distorting influences of
suggestion and misinformation.[55] The presumed gulf between the
reliability of evidence from children and that from adults appears to
have been exaggerated
Ironically, research indicates that the major problem with children's
evidence is not the risk of a child making false allegations, although
this is still a possibility. Rather the major problem is their significant
level of false denials and retractions. While children can be
encouraged to say that an event occurred knowing full well that it did
not, this is difficult to do. When children do make false statements at
the encouragement of others, the statements are often not very
credible and these children rarely persist with their made up
story.[69] On the other hand, to avoid punishment, to keep promises
not to tell or to avoid revealing embarrassing information, most
children will deny knowing information about an event that they
know occurred (Ceci, 93)
questioning style appropriate for one 8 y old may be inappropriate for
another 8 year old.
QUESTIONNING and SUSCEPTIBILITY
Children do not always differentiate between truth and fantasy and so
their reports cannot be trusted.
Roberts and Lamb - analysed 161 police interviews with children
regarding allegations of abuse. In 68 / 161 of the interviews the
interviewer misinterpreted “in private” as “in the privates” and
in 2/3 of these cases this remained uncorrected by the children.
are highly suggestible so their testimony can be very easily changed
by leading questions and suggestions.
Bull (1992) --children may be more likely to respond to yes/no
questions by saying “yes”
Cassel (92) Repeating a question within a single interview
session can also lead to young children changing their answer
to that question, perhaps because they interpret the repetition
of the question as an indication that their first answer was
wrong
Wells (89) – children (8-12 y olds) and adults watched a simulatedcrime video-tape and then respond to direct and cross-examination
questioning about the crime. Direct examination (straightforwards,
nonleading questions) – children as accurate as adults. However,
children were significantly less accurate than adults under cross
examination. ( => less accurate than adults in response to leading
questions). while only seven percent of the eight-year-olds changed
their original answer to the permission question in response to a
leading question, 42 percent of the six-year-olds changed their
original answers following a leading question. The important issue
was that the younger children tended to accept leading questions
significantly more than did the older children.
more reliable or equally –
changing procedures – tools rather than witnesses
child abuse- only witness ! Bruck (95) – 3 year old children
interviewed using anatomically detailed dolls may report having been
touched even when this is not the case. They may even go so far as to
insert their fingers into the doll’s caviies even if this has never been
done to them.
Maybe we do not have to use children as eye witnesses in court but –
when showed videotaped interviews of the child, the perpetrator often
chooses to admit the offence.
Old people - MEMORY
-Experiment – Rabbit (1981) – young and elderly participants. 300
words, one at a time – “old” or “new”? Elderly made more errors than
the young – but no false identifications (of a word which is in fact
new). However, experiment required people to recognize -. When
asked to recall – older subjects performed worse on both –recalled
fewer words and many words which were not presented.
-Cohen and Faulkner - they showed 70 year olds and 35 year olds a
film of a kidnapping then presented them with misleading
details before asking them to recall what happened in the film.They
found that the 70 years olds were more likely to be mislead than the
35 years olds.
Feb. 24, 2007 — A University of Virginia study suggests that older
adults are not only more inclined than younger adults to make errors
in recollecting details that have been suggested to them, but are also
more likely than younger people to have a very high level of
confidence in their recollections, even when wrong.
false recognition errors quadruple from childhood to adulthood
elderly more cautios – 2007 - older adults are not only more inclined
than younger adults to make errors in recollecting details that have
been suggested to them, but are also more likely than younger people
to have a very high level of confidence in their recollections, even
when wrong.
Cohen and Faulkner - they showed 70 year olds and 35 year olds a
film of a kidnapping then presented them with misleading
details before asking them to recall what happened in the film.They
found that the 70 years olds were more likely to be mislead than the
35 years olds.
Karpel (2001) – EWT in elderly – Young adults (17-25) and older
adults (65-85) shown video of robbery. Asked to recall. Young adults
more accurate and less vulnerable to leading questions.
CONCLUSION research on children's memories and their reliability has important implications for the way in which child
witnesses are interviewed during pre-trial investigations and questioned in court. The quality of a child witness' evidence can
depend on the communication skills and expertise of the interviewer and/or the questioner in court. Legal processes can and
should be modified to ensure that, as far as possible, child witnesses can give reliable, comprehensive information as required.