‘Memory, Like Liberty, Is a Fragile Thing’ (Loftus E. , 1980)
Eyewitness testimony can make a profound impact on the jury in a criminal case, the jury’s responsibility is to ascertain the defendant’s guilt, and this is undertaken by judging the truth of witness statements. Indeed, eyewitnesses are critical in solving crimes and on occasion, their accounts are the only evidence available in identifying the offender’s identity and, therefore, guilt. Eyewitness testimony is the account the witness to an incident gives to the court, it is a vital instrument which is used by not only the Irish legal system but by every jurisdiction internationally, eyewitness testimony has played a key role in the conviction of offenders, eyewitness testimony has even been the sole basis of many convictions, it has even been known that one witness can be the sole reason a conviction is obtained. Recognising the fragility of an eyewitness memory is especially important to the judicial process, mainly due to the fact that this can be the determinate factor to a jury when deciding an alleged offenders guilt or innocence.
This assignment will endeavour to examine the eyewitness testimony and how it is used within the Criminal Justice system (CJS). Eyewitness testimony has been deemed to be the pivotal element in a conviction (Milne & Bull, 1999), the majority of police officers who interview suspects and undertake investigations believe that eyewitness testimony and eyewitness evidence is largely important in their successes (Kebbell and Milne (1998)).
Eyewitness testimony depends on many factors and has an incredible amount of variables in order to be determined as reliable. We also have different kinds of memory, episodic, semantic and procedural, we have the specific episodes which we encounter and go through in our lives, these are called the episodic (Milne & Bull, 1999) memories, which memorise specific events, for instance, 9/11, semantic memories are whereby we know how life in general works, we know for instance that the sky is blue or that the moon is 252,088 miles away. We then use a different type of memory for day to day things like walking, or driving a car, we know from habitually doing one certain act how to do it, this is called procedural. Memory indeed is a fragile process, the accuracy and quality of a witness statement depends on a large variety of factors, including, the age of the witness, the gender of the witness, the length of time between the incident and the interview, whether the witness was involved in the act, or if there was stressors in the incident, including violence, alcohol or drug use and even the mood of the witness etc. Also included in eyewitness testimony are the areas of mis-memory or memory loss. This assignment will cover all of these variables and critically examine the claim that memory is a fragile process.
Hugo Munsterburg was the first Criminologist to identify the fallibility of witness evidence, he conducted research, which proved the fact of fallibility, his book called, on the witness stand was the first book to bring this area to light. Munsterburg argued on the basis of psychological research that eyewitness testimony was unreliable & shouldn’t be used by the legal system to give credence to criminal convictions. His findings were further backed up by other prominent professionals who claimed that eyewitnesses could not be trusted and in fact was successful in only approximately 12% of convictions. (Buckhout, 1988). Humans are fairly unreliable in how we process information. Individuals are heavily influenced by their emotional state at the time of the crime (e.g., rape, assault), this may focus their attention on striking aspects of the incident (for instance, the knife or the gun), unsuitable environmental settings (for instance, was it dark or was it raining) and also, stress may impair recollection. (Kline, 2008)
Firstly in order to define witness testimony we need to identify what the memory process entail. The information is encoded, the witness attempts to understand what they have just witnessed, they then store this information, for instance the identification of the perpetrator and when required the memory is retrieved. However this is not always possible and witnesses can be fallible in any of the three processes. (Brainerd, 1990), obtaining the information from the witnesses is the pivotal aspect of witness interview and pursuing statement. The interviewer must be unbiased and removed from the situation as possible and ensuring that they do not influence the witness’s memory by introducing false memories even by accidental suggestions. They will endeavour to access episodic memory, this is the memory of specific events, (Milne & Bull, 1999). Subsequent interview will utilise, recognition, recollection and reconstruction is the process of questioning the witness, using their own words and carefully structured questions to get a written statement in words, the recollection works slightly different insofar as it works on the memory of the event in picture, these pictures can be line ups and photo fits. Reconstruction works slightly differently from the other two insofar as it combines the events with existing knowledge or memories and reconstructs the scene. (Bartlett, 1932). This interview technique uses “effort after meaning” and can be fallible in a number of ways, firstly, witnesses use their own memories to for the reconstruction, this can cause existing memories to overlap with the new facts. The interviewer must not lead the witness in the questioning, the interviewer is also fallible, and can make mistakes. They have been known to forget the questions they are supposed to be asking. The interviewer can use cues to utilise recollection of the incident, these can be either open ended, closed questions or multiple questions, for instance, an open ended question is one where the interviewee is given a what did you see question, these can consist of questions which can be answered in few words, such as yes/no or I don’t know answers, (Milne & Bull, 1999) person identification from photos, or selections, select a response from two scenarios, excessive closed questions have been known to have a detrimental effect on the witness, and give the witness little chance to develop their thoughts. There are closed questions, for instance, was the suspect wearing a blue or white shirt, these have been shown to be more successful than open ended questions (Gudjonsson, 2003). Finally, there is the multiple question, did you see the suspect, what colour was their hair, where were you standing. The use of multiple choice questions can be known to confuse the witness, and does not produce results as successful as open ended. (Hargie, Saunders, & Dickenson, 1987) The use of open ended, closed and multiple choice is commonly used by interviewers, all too often the interviewer has a hypothesis and they seek to prove it. If an interviewer and an eyewitness are in the same arena,
Some of the variables to be taken into consideration when interviewing witnesses are as follows;
The scene at the time of the incident
Was it raining or dry, was it evening/dark or daylight? The evidence shows that the time of day or the evening/night plays a large part in witness recollection of the events; the quality of the witness testimony relied greatly and has marked results when the conditions are favourable. i.e. daylight v night, (Yarmey, 1993). In interpreting witness testimony Judges are required to inform the jury on the fragility of witness testimony insofar as they must inform the jury of these rules, the rules were set out in the case of R v Turnbull in 1977 and have subsequently become known as the Turnbull rules. The judges are required to give this information to the jury during the trial, for instance under the Turnbull rules the judge must inform the jury of the conditions at the time of the incident, but they are not required to give any personal information regarding the witness.
The age of the witness
Age plays a role in the applicability of eyewitness testimony of children and older witnesses.
Alcohol and/or substance abuse
Yuille and Tollestrop found that witnesses who had consumed even small amounts of alcohol were less informative and gave less accurate facts during interviews. (Yuille & Tollestrup, 1990)
Stress levels and mood
Stress level during an incident can have an impact on the accuracy of testimony, this was
Violence during the incident, those who suffered higher stress during the incident appeared to have a higher recollection after two days of the incident when questioned by the Police. (Yuille J. C., 1986) If the witness was involved in the incident the testimony can be accurate after a period of time, this is due to the witnesses reliving the incidents by talking to others about it. (Yuille J. C., 1986).
Involvement in the incident
According to (Yuille & Tollestrup, 1990)The involvement of the witness in the incident can make a large difference in the memory of the witness, a bystander is known to have less memory and understanding of the incident than an involved witness. However this is conflicted by Farrington and Lambert (1993).
Certainty and confidence
The certainty of the witness plays a large role in the identification or accuracy of the testimony. Certainty can be equated to confidence. The more confident a witness is in their identification the more success rates and accuracy. However, this can be greatly impeded by other factors such as viability, conditions etc at the time. Bothwell, (1987), However, positive feedback by the interviewer can falsely increase the confidence level of the eyewitness by possibly inspiring false beliefs such as “I must be right, if the police also believe it”. This is greatly enhanced when both the eyewitness and the interviewer show a great desire to solve the crime, their body language and non-verbal cues may suggest to the eyewitness that the interviewer may be requiring a specific answer, this is called suggestibility “the witness tells the interviewer what they (interviewer) wants to hear due to their desires to solve the crime. (Loftus E. F., 1991).
To further the success of the interview the following Turnbull rules which applies to cases in which witnesses are used the Judge must apply the Turnbull rules and advise the jury of any adverse conditions where were applicable.
The legal profession and judiciary uses the following system to assess the credibility of eyewitness testimony, this system is ADVOKATE.
A – the amount of time the witness observed the incident/perpetrator
• The amount of time which the witness has to look at the perpetrator/incident greatly enhances their ability to identify perpetrators at a later time.
D – the distance from the witness to the incident
• How far away the suspect, how long was was the visual, did the witness have time to look at the suspects face.
V – the Visibility conditions at the time, time of day, lighting
• The Turnbull Rules, what was the visibility, was it dark, bright, raining, foggy etc.
O – whether the line of sight was obstructed
• Were there obstacles, cars, other people, and buildings in the line of sight?
K – whether the perpetrator was Known to the witness or seen by them previously
• Was the description from memory of the actual suspect or was it familiarity with a facial feature of a known person
A – any reasons for remembering the incident or the person
• Was there a particular incident, did they shout in the witnesses face, did they shoot someone, or simply were they nice to them during the incident.
T – the time elapsed since the incident
• The time elapsed from the incident is not known to have a detrimental effect on the eyewitness accuracy
E – errors or discrepancies
• Errors or discrepancies in the testimony may occur due to post event information. (Loftus E. F., 1979)
The interviewer plays as much of a role in the eyewitness testimony retrieval and recollection as does the memory of the incident itself. Interviewers are required to use and utilise PEACE in the interview process. PEACE is a principle whereby the let the suspect talk lies. It works with both suspects and witnesses alike. The principle is as follows;
P – Planning & Preparation
E – Engage & Explain
A – Account
C – Closure
E – Evaluation
Planning & Preparation
What are the objectives of the interview? Witness testimony, suspect confessions, planning is important and the objective of the interview is required before the interview starts.
Engage & Explain
The interviewer must explain to the interviewee what rules will be followed in the interview process, this must be clear, the interviewer can use this time to build a connection with the interviewee, in essence to make the interviewee as relaxed as possible.
This is based on the interviewees account of the incident. This will depend on the cooperation of the witness, whether they are cooperative of uncooperative witnesses. If they are cooperative witnesses then the Cognitive interview is used, and if they are uncooperative then a Conversation Management interview is used. (Fisher & Geiselman, 1992)
The interviewer uses this time to recap on the statement and close the interview, the witness/suspect then has the opportunity to change any areas they feel is inaccurate, or to elaborate further.
The interviewers evaluate the information they received in the interview, they determine how this information is viable to their investigation. The interviewer can also evaluate the success or otherwise of the interview, their questioning or techniques used.
This PEACE model of interviewing is still in its infancy, training in the use of PEACE is still ongoing, however, obtaining a confession from a suspect or evidence from an eyewitness is still the vital part of the interview and investigation
The use of eye witnesses continues to be an important aspect of the Criminal Justice System and there is no discernible evidence to stop eyewitness testimony from continuing to be a vital component in the identification and conviction of offenders not only in Ireland but internationally. Munsterburg was the first to question the reliability of eyewitness testimony and closely followed by Burkout, , however his results are from a scenario which was undertaken in a law school test, a staged event, another prominent figure in eyewitness testimony is Professor Elizabeth Loftus, who has studied this area for over 30 years and believes that the memory is not like a camcorder, it can be distorted by other events, however this is criticised by other theorists, suggesting that it is the questioner that there is no distortion and the original “camcorder” memory is intact. In contrast, Loftus believes that the eyewitness can even have false memories implanted by misleading questions, this rate is incredibly high at 41%, this worryingly high rate of false memories were further sealed by findings that show inaccurate accounts can be influenced by language and wording used by the interviewer. (Loftus & Palmer, 1974)
Police officers are a vital aspect of the witness statement gathering; insofar as training is concerned it is advisable that all officers undergo specialised training in interviewing witnesses and keep leading questions to a minimum, however this is still a practice used today which in itself raised ethical concerns and also the need for a set rule in regard to questioning and the prohibition of leading questions. Officers and interviewers must use clear and unambiguous questions, as unclear questions can lead to unclear recollections or answers or words which sound similar but have very different meanings, can confuse witnesses. Loftus and Palmer also argue that a person’s memories of a specific event are twofold, we gather the first memories from perceiving the incident, and the second is the information we obtain after the event. After the event and over time the witness may not be able to discern the different details therefore integrating the incident and post incident memories, which is known as a reconstructive hypothesis. (Loftus & Palmer, 1974).
The statement “memory is a fragile process” is proven to be a true and accurate statement; however, it is fragile when in the hands of an untrained or unscrupulous interviewer. The interviewer is as important as the witness, how that information is obtained, in what way the interviewer leads the witness, how the interviewer deals with their own behaviour during interviewing. The age of the witness shows that either very young or very old witness may have difficulties in identification of perpetrators, that lighting is a factor in a witness’s perception and identification of a perpetrator. Alcohol is another variable which has an impact of the ability to identify accurately (Yuille & Tollestrup, 1990). It is unclear why this vital aspect is not included in the Turnbull rules in jury instructions; this is a vital component in any investigation and should be included in an instruction to a jury when determining a witness’s accuracy in identification. Therefore, the judge should be required to explain to the jury, in a clear and comprehensive manner, the dangers relating to eyewitness testimony. (Loftus E. F., 1979)
The witness mood or level of stress does have a positive bearing on the accuracy of identification, if a person is stressed by the incident or involved in a stressful incident this increases the chances that their testimony is more accurate, (Yuille J. C., 1986) as does direct involvement in the incident being witnessed. (Yuille & Tollestrup, 1990). However it can be shown that a witness’s confidence in their testimony has some impact on their accuracy, this gives rise to a possibility that an unscrupulous investigator could reduce a witness’s confidence and therefore their confidence in their ability to positively identify the perpetrator. The use of the ADVOKATE system in assessing the credibility of eyewitness testimony has greatly enhanced the legal profession in the area of credibility. Finally, the interviewer’s part in the interviewing process is vital and a pivotal aspect in the gathering of testimony from witnesses in the criminal justice system. The PEACE
P – Planning & Preparation
E – Engage & Explain
A – Account
C – Closure
E – Evaluation
principle of letting the suspect talk is amongst the most important principles in the gathering of testimony. Following strict guidelines in the retrieval of the fragile memories stored in the mind of the eye witness. Ensuring that the Turnbull rules are adhered to in the court room and the jury deliberations and instructions is the final principle to ensure that the fragile memories of the witnesses are conveyed to the jury and therefore the verdict of guilt or innocence follows strict guidelines and therefore ensuring that the verdict is fair and just. Finally, Accuracy, this is the pivotal part in the testimony, especially as in some cases the eyewitness testimony can be the sole reason for the verdict, and the consequences of unreliable or false information can be devastating for the accused. Errors do and will occur, memory is fragile and recall errors will continue as long as there are interviewers and witnesses who want to see someone punished for their crimes.
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