Eyewitness Identification

The Psychology

Deutcher/Leonoff

• bottom line, id witnesses can be wrong

• study 18% would convict on circumstantial case; 72% circ plus one eyewitness; 68% where eyewitness discredited on cross (not wearing glasses)

Fundamentals of Eyewitness Testimony

• jurors overbelieve eyewitness testimony (what about US sniper and “white van”)

• combined with inherent unreliability of this evidence

• Fact: the human mind is not a camera - influenced by a number of environmental stimuli and b/c of this accurate recall can be distorted at the time of perception, retention and retrieval

• We subconsciously and consciously screen an event (ie. in 1/10 of a sec, the human mind can absorb 4 or 5 digits but not 9)

• we therefore concentrate on a finite number of factors and ignore others

Practice Point

• Explore factors influencing witness at each of those stages: perception, retention and retrieval - ie. a nervous breakdown since making observation without a prior consistent statement?

FACTORS AFFECTING PERCEPTION: Related to the

event itselfLength of time of event, exposure time.

The longer we have to observe, the more details we can remember. It is also important then to understand our ability to estimate the length of time of an event. The duration of an event is usually canvassed in a trial setting. Studies establish that people tend to overestimate the length of time if there is great activity and underestimate if there is little action. In an anxiety-producing situation , time is perceived to pass more slowly, and in a stressful situation, appears longer than it actually is. (experiment: PUT THEM on a cart and wheeled them towards a flight of stairs). Loftus showed a videotape of a 32 second robbery: average estimate: 2 minutes, 32 seconds. 3% of the females provided estimates exceeding 15 minutes.

• Seriousness of crime. Works both ways. When a person knows they are witnessing a significant event, then accuracy increases to a point. But once that event creates a certain level of arousal, perception performance begins to decline.

• Environmental Factors. Lighting conditions, distance, obstructions.

Factors Related to Perception: Related to the witness

stress. Videotape of mugging or non-violent crime. Only 27% of people could accurately identify photo from array. Testimony of witnesses from non-violent event much better. Face identification inherently unreliable. In times of stress, the brain’s ability to encode is reduced, and memory is impaired. In times of stress, tendency to block out any external stimuli and concentrate on that which causes the greatest amount of stress - ie. “weapon fixation”, tendency to focus on a weapon and ignore details in the environment (identity); or concentration on escape route, or assailant’s hands. POINT: our eyes are not a wide-angle lens capturing a maze of detail. The brain has limited capacity.

expectations. WE SEE WHAT WE WANT TO SEE. Experiment with groups of students watching same violent football game involving their own schools - they appeared to be watching two different games. Like our inability to proofread ourselves. 80% of people shown word “dack”: write down “duck.”

Age. Spontaneous recall increases with age. Young children recall less detail, but what they recall is no less accurate. At age 6 the ability to recognize a previously unfamiliar face is only slightly above chance. Past age 12, children perform equally to adults. Under 13, tendency to guess, rather than admit lack of knowledge. The elderly tend to be cautious in making an id.

• Sex. Women slightly better than men in face recognition. Men better at identifying cars.

• Alcohol and Drugs. Different drugs affect differently. Alcohol affects acquisition. Marijuana affects time perception, and affects short term to long term memory. Marijuana, amphetameines, LSD, lengthens perceived duration. Call pharmacologist, use pharmacological guide to look up effects of medication, cross witness thereon.

FACTORS AFFECTING RETENTION AND RETRIEVAL

• Once an event has been coded into memory, the process of forgetting begins. New events must be stored in memory, old memory interfered with or obliterated. FORGETTING is initially rapid, then becomes more gradual. IDENT PROCEDURES held several days, weeks, or months of a crime are of suspect validity. Further, if a witness becomes more detailed at trial than he or she was at an earlier stage, additional details must be considered suspect. It is likely that the additional details have been added unconsciously, either from another source or through the brain’s own unconscious modification of memory. SO STRATEGY: close cross of what was provided at time or written down.

• Post-event Information: Memory like perception is an active process and memories can be altered or replaced by the introduction of new material. Once altered, the original memory is lost, or at least very difficult to locate.

• Study. Subjects view group of people. One and a half hours to 3 days, they see a photo array, asked to choose. 4 to 7 days, asked to view a live lineup. Found: subjects EQUALLY as likely to identify person seen in photo as they were to identify a live target. THE FACES VIEWED IN THE PHOTOGRAPH had supplanted the original observation. So STRATEGY: show tainting since original observation, ie. the one-person or the photo.

• “Looks like” or “may be” at time of photo lineup becomes “certainty” at trial. SUBSEQUENT identification at lineups or in a courtroom are then of no use.

• Study: witnesses will incorporate false information into their accounts if it comes from a credible source.

• POST-EVENT INFO from witness, press, police. Once altered, the witness quite HONESTLY will be unable to distinguish the post-event info from the original memory.

Note

• Children are more susceptible to post-event questioning.

• If interested in truth, important to use neutral, unbiased questioning.

• Unconscious Modification/Transference: by the brain to eliminate uncertainties and inconsistencies; fulfilling desire to help. Repetition establishes the answer in the mind. This explains the witness who between prelim and trial becomes more certain or adds more detail. The memory gaps filled in by guesses have now been cemented in memory. THE WITNESS MAY REPORT THIS AS BEING DUE TO EXTRA THOUGHT OR CONCENTRATION, but since MEMORY DOES NOT IMPROVE WITH TIME, it is likely attributable to unconscious memory modification.

FACTORS RELATING TO RETRIEVAL

• Questioning and context cues. Free recall, where the person provides a narrative without assistance, is the process free of bias - it provides the most accurate information. Leading questions have a massive impact on the final report.

• Hypnosis. People can lie while hypnotized, even having taken sodium pentothal, and pass lie detector tests.

• Author cites authority for proposition that memories first revealed under hypnosis should be excluded. No way to know if witness is reporting reality of fantasy. Argues its an issue of competence. Ie. inability to separate fact from fiction therefore impossible to give that evidence any weight, If it can’t be given any weight, then more prejudicial than probative.

PRE-TRIAL IDENTIFICATION TECHNIQUES

• Ability to recognize a face is directly related to the frequency of exposure. STRATEGY: explore number of times witness may have seen/interacted with suspect.

• Humans can form a good memory trace after a few exposures to people with whom they have talked and interacted. Mere exposure, however, creates a poor memory trace, even after a few exposures. Witnesses have a tendency to remember hair color, style, presence of glasses and facial hair.

• Cross-racial identification: general rule - people can identify faces of their own race better.

• Delay: time is of the essence in face recognition. Within 5 minutes of viewing an unfamiliar face, a good portion of the memory trace is gone. More gradual loss over next 48 hours. By this time, most of the memory trace is gone. Tests should be done within 48 hours.

• Confrontations. Involves presenting a single suspect to a witness and asking the witness to attempt an identification. Highly suggestive. Any doubt in witness’ mind may be overcome by the powerful suggestion that the police have captured the guilty party. Any gaps in memory are filled in with the face of the suspect. The witness is then entirely unable to separate the original memory from that supplanted by this procedure.

• Lineups and photo arrays. Most witnesses realize that if the police have gone to the trouble of assembling the lineup or photo array, they must have a suspect in mind. The witnesses will try hard to find a match between their memory and the person in the lineup or photo before them. Failing that, and using a process of elimination, the witness may choose the one that most clearly resembles their recollection of the criminal.

• A lineup must be fair. Fairness in composition is tested by deciding if all foils ARE PLAUSIBLE CHOICE ALTERNATIVES. If a foil does not match a witness’ description in any important detail, then that person is eliminated as a plausible choice. E.g. age, race.

• If a lineup or photo array is fair, a witness who observed the offender should be able to make an identification, but a person who merely reads the description given by the witness should not be able to make an identification with a probability greater than chance. If the random people eliminate foils because of hair color or size, unfair. R. v. Shatford: eyewitness to a robbery description of accused - rather good looking. A random group were able to pick accused from the lineup as the best looking. 11 out of 21 subjects chose him from lineup. Lineup unfair. If fair, would only have been picked one or two times.

• Importance of instruction that suspect may not be in lineup (o/wise 100% will pick).

• Therefore: witness should be told suspect may not be present in the lineup or photo array, and should be cautioned against guessing. Witness should be asked if she can make a positive identification, NOT “does anyone look familiar?” or “is anyone closest.” So Strategy: ask not only p.o. who did lineup what was asked, but also id witness how they took the instruction. In my experience, they either do not remember, or they took instruction a different way (oh yeah, we knew he was going to be in there).

• Look for other cues in lineups. E.g. other officers used as foils in lineups, diverting their eyes, or move slightly away. Their gait or posture may set them aside from the suspect.

• The photo array in Sophonow contained one candid shot of the accused taken indoors and seven photos clearly discernible as police mugshots. Other cues can be more subtle.

• Knowledge of severe consequences to accused did not prevent 73% choosing inaccurately.

ASSESSING CREDIBILITY

(1) CONFIDENCE - the issue with an eyewitness is reliability, rarely veracity. THERE IS NO positive correlation between confidence and accuracy. A confident witness is just as likely to be wrong. Accuracy is a product of the quality of the perception, retention, and retrieval of the information. Confidence is a product of psychological and social variables that influence the witness - e.g. studies show that witness confidence increases with knowledge that cross-examination will take place. It is also increased by positive feedback by police and prosecutors. All entirely unrelated to accuracy. Only 37% of lawyers and judges are aware of this fact.

(2) DETAIL - no correlation between ability to provide details of description, and making a correct identification - different cognitive functions control verbal recall and visual recognition.

(3) TRAINING - 65% of Cdn judges and lawyers believe that an eyewitness id made by a police officer is superior to that of a store clerk. Training is ineffective in the area of face recognition. There are people out there with good visual memories, but hard to find out through them, as people are poor judges of heir own visual memories.

PSYCHOLOGIST AS WITNESS

• Usual tool to expose weakness in evidence: cross. But not necessarily helpful in all these area because witness is probably unaware of effect on certain intangibles on their perception, retention and recall.

• Research indicates that potential jurors have an inadequate knowledge base concerning these areas.

• General rule: such expert evidence, being within the knowledge of the jury, is inadmissible - ie. not likely to be outside their experience. They can form their own conclusions without help. Sophonow No. 2, inadmissible if of a general nature - ie. deterioration of memory with time, must be specific to an issue at trial.

• Author: if literature establishes that human nature is insufficient to appreciate the factors that influence the eyewitness, the TOL should have a discretion to admit the evidence if it will assist the jury.