Example of a Critical essay on Law about:
eyewitness testimony / memory / criminal justice / perception / Laplas
The problem of considering eyewitness memory to be a reliable evidence for the Court.
Why has eyewitness memory always been a subject of constant arguments?
How does Criminal justice treat eyewitness memory?
What are the strength and the weaknesses of eyewitness testimony?
The eyewitness memory can be of any value only in case of its correspondence to the major court demands and its 100% objectivity which is especially hard due to the subjectivity of the human perception.
Eyewitness Memory to Recall a Crime is Infallible essay
Table of contents:
2. Eyewitness testimony and its weaknesses
3. The accuracy of eyewitness memory
4. Children as eyewitnesses
5. Ways of facilitating eyewitness testimony
6. Eyewitness stereotype
"The case in which you really need to worry about eyewitnesses’
memory is the case in which it’s the only evidence you‘ve got,"
Steven M. Smith
Introduction. Eyewitness memory has always been a subject of constant arguments throughout the whole history of its existence. People’s words have always been valued and having a witness of a crime was he worst thing hat could happen to the criminal. The phrase “Eyewitnesses do not live long” so commonly spread among people, reveals the importance of the fact of eye-witnessing for the majority of people in general and especially for the jury. The eyewitness memory as any other source of evidence has to be carefully checked and evaluated. And what is even more important – the objectivity of the recollections have to be very at a very high rate. Criminal justice requires special attention to the phenomenon of the eyewitness memory as it is known that sometimes memory plays tricks on its carriers. This is primarily due to the peculiarities of the perception of human mind and the character of the reproduction of the information. It is common knowledge that memory is a process of perception, storage and reproduction of any information. So it is very important to be sure that all of these processes are undamaged. This emphasises the importance of the information about the eyewitness health and mental abilities. The eyewitness memory can be of any value only in case of its correspondence to the major court demands and its 100% objectivity which is especially hard due to the subjectivity of the human perception.
2. Eyewitness testimony and its weaknesses
Eyewitness testimony is an oral informing about the circumstances that are important to the criminal case. During the process of checking and evaluation of the eyewitness testimony the main difficulty is to determine if the eyewitness has certain reasons for concealing information or giving false testimony. The main weakness of the eyewitness testimony is the analysis of the process of its formation, taking into account all the subjective and objective factors, which could have influenced the accuracy, veracity and objective reliability. There are four factors that question the trustworthiness of the eyewitness testimony. They are: the characteristics of human perception, the conditions under which the perception takes place, the specific character of the memorization and the memory peculiarities, and the character and he conditions under which the reproduction of the perceived information takes place. All these four conditions can without any doubt be called the weaknesses of the process of the eyewitness testimony.
The characteristics of human perception implies the physiological limitations of he persons, any defects of the perception organs and the orientation of the perception, susceptibility to different irritants, the psychological setting on perception of the person and he understanding of his own attitude towards the perceived facts. The conditions under which the perception takes place emphasize the importance of the psychological state of a person at the moment of perception, the duration and the atmosphere of the process of perception, the operation factors of the perceived object, physical conditions of the perception such as the specificity of illumination, distance, audibility and any others. The specific character of the memorization and the peculiarities of memory of the eyewitness create a separate group which is vital in the evaluation of the reliability of the eyewitness testimony. This is especially actual in terms of the novelty of the events for the eyewitness, their recurrence, the continuance of the storage of information, the particular qualities of the witness’s memory and its defects and a last the possibilities of distortion or substitution of the information. The character and the conditions under which the reproduction of the perceived information takes place intends to reveal the value of the interpretation of the setting, unwillingness to give reliable testimony according to personal motives or because of the dread of revenge from the side of defendant and the conformity of the given testimony and its record.All these conditions under which the eyewitness testimony is “insolvent” make it very hard to trust the eyewitness testimony or rely only on it during the case investigation. For that reason no eyewitness testimony should be taken in into consideration if the witness depositions contradict other irrefutable evidence. Another questionable situation is the contradiction of the testimonies of two eyewitnesses which rather often happens in court. Basically saying eyewitness testimony remains too objective for the court and for that reason it can not be a subject of complete confidence until it is not supported by any objective details. The major problem is the contradiction and sometimes the discrepancy of the subjective and objective evidence. This puts the necessity of eyewitness testimony under a big question!
3. The accuracy of eyewitness memory
The biggest task of the evaluation of the eyewitness testimony is the selection of the correct information and the release from all the subjective “blast”.According to Marc Green:”Memory can change the shape of a room. It can change the colour of a car. And memories can be distorted. They are just an interpretation. They are not a record” . This is what makes the eyewitness memory primarily unreliable for the court. It goes without saying that there are both accurate and inaccurate eyewitnesses. Nevertheless, the probability of getting inaccurate eyewitness testimony may is still rather high and this is extremely dangerous due to the fact that the wrong person can be put in jail only because someone gave “inaccurate” information concerning the case. The jurisdiction system is not the place for might guesses and human beings can very seldom be objective towards what they have observed in the past. Individuals tend to add and to modify what they saw and they do it unconsciously. It happens due to the peculiar probabilities of the memory. The brain subconsciously “fills in the gaps” of memory and through this creates new case-details. These details ordinarily are not correct at all.Actual perception and memory do not have much in common, as many facts a blurred, forgotten or replaced by other facts. Any reconstruction of a given even is often accompanied by slight changes in the testimony which can become indicators of the unreliability of the eyewitness’s event and fact memory. The accuracy of the eyewitness’s statements is not stable and subjectivism reduces the precision of the facts to zero. The brightest practical example is any childhood event that people usually like to reproduce. It is common knowledge that all of them are distorted sometimes completely. But what happens to the perception when a person finds himself in a situation of high stress when for instance becomes an eyewitness of a murder?
According to the studies of the Yale University:”…the ability to recognize persons encountered during highly threatening and a stressful event is poor in the majority of individuals…” . So the only situation when the eyewitness testimony should be considered is when that even took place in a very familiar environment for he individual and did not cause any extreme stress condition.The problem of accuracy of the eyewitness testimony is closely related to the inability to provide correct “peripheral details” and the tendency to provide changed details of the event. The majority of people have stereotyped thinking when certain events are connected to certain objects and other events. For instance, a person that has a settled opinion that all robbers have knives will claim that he saw a knife in the hands or in the pocket of the robber. Individuals confuse memory information sources and sometimes also combine two different events. Or they might have heard a story related o their case and impose this “borrowed memories” over the actual situation. So the accuracy is no any means a characteristic of the eyewitness testimony.
4. Children as eyewitnesses
There have been certain research made in terms of identifying the accuracy of child’s eyewitness testimony. According to the general experience in child testimony, it is much less accurate then the adult testimony. The main reason for this is that children are unable to give concrete answers to the questions that require detailed answers . The research conducted by Amina Memon and Rita Vartoukian, psychologists from University of Southampton, analysed the child’s ability to answer repeated questions during the testimony. Children tend to think that they may give “a correct or incorrect” answer on a testimony, that is the reason repeated questions confuse them and make them think that their original story was not true. So repeated testing does not bring its normal benefits when it goes about child eye-witnessing. Therefore, the first information provided by a child is the best. The younger the child is, the less accurate testimony can be made. Children tend to give incorrect answers due to their liability to social convention. They always need to be socially approved. The best solution in such a situation is to make sure that during the interview they know that they may answer a question with “I do not know” or even telling them that some questions may be tricky and the most important part is telling that even if they are asked to repeat an answer it does not necessarily mean that they gave the “wrong” answer . Research states: “children can be reliable witnesses as long as adults use careful questioning”.
5. Ways of facilitating eyewitness testimony
Very often some questions or situations the witnesses find themselves in can confuse them. This especially concerns the situation when eyewitnesses make false identifications.The good example of false identification was provided by the University of Nebraska which studied the photo-memory of the eye-witnesses. Students observed how criminals(actors) committed several crimes in front of them and a hour later they were provided with shots with the people who were ”criminals” and not. In a week a line-up was organized and the eyewitnesses were asked to point out the criminals. Surprisingly, the people who were chosen did neither participate in the crimes nor appear in the shots. 20% of those who did not participate, but whose pictures were given to the “eye-witnesses” a week before were falsely identified, too .The suspect line-up is always a problem for an eyewitness, due to the mentioned above peculiarities of the memory. For this reason certain elaborations should be made. It is vital to mention that the offender may not even be present at the line up. The decisions of the eyewitness need to be not taken in a rush, but after a calm observation. It is a much better option to make several line-ups. All the questions addressing the eyewitness are supposed to be clear and conscious and not by any means perplexing. By this acting the level of uncertainty will be reduced. Another good technique is the usage of the statements made by the witness himself earlier in the conversations. The eyewitness needs to feel comfortable. Ordinarily, the majority of eyewitnesses feel excessive responsibility, which causes them to feel anxiety. This should be reduced by the manner of talking to them, which is not to be hostile but friendly and supportive. Sometimes the method of free recall should be used in order to make the eyewitness feel free of any pressure. Taping the testimony will help the interviewer to “hedge” the eyewitness from additional “sufferings” connected with the situation of repeating unpleasant memories.
It is very important not to impose any words, expressions or opinions to the eyewitness. The task of the interviewer is just to fix the information obtained from “correctly stated” questions.
It is not unusual when eyewitness testimony contradicts the real forensic evidence of the case. This contradiction creates a serious problem for the jury. Juries are people and are also subjective, and it is obvious that their personal.The research in the field of eyewitness memory is of a great significance to the jurisdiction system. And that is very important not to underestimate the meaning of the temperament, physical properties and other moments when analyzing the eyewitness testimony.Psychological questions concerning the eyewitness testimonies were the main priority of a French scientist Laplas. Laplas analyzes the probability of the eyewitness statements along with the probability of he outcome of court verdict. He constructed a list of elements that may imply that the testimony complies with the reality. This list consists of the next elements:
• The probability of the event that the eyewitness is telling about.
• The likelihood of the next four hypotheses in terms of the eyewitness’s statements.
o The eyewitness is not mistaken and is not lying.
o The eyewitness is lying, but not mistaken.
o The eyewitness is not mistaken, but is lying.
o The eyewitness is both lying and mistaken.
In this hypotheses “mistaken” means that the eyewitness is confusing facts that of the described event. Laplas perfectly understood the difficulty of evaluation of the veracity or falsity of the eyewitness testimonies through this method because of the large amount of circumstances, accompanying the facts that the eyewitness makes statements about. He considered his theory to be just a probability and not a certainty. That is the reason he also considered that the court does the same thing – it bases on the probability and not reliability. Nevertheless Laplas’s scheme is very interesting as a scientific attempt to evaluate the reliability of the eyewitness testimonies.
Conclusion. Human memory there fore is something very personal and comparative. It cannot be a base for any important decisions such as the court verdicts. The eyewitness puts all his believes, settings and attitudes to the testimony he makes.It is vital to keep in mind that memory changes with time and every subsequent attempt to retell what has happened will be jus another subjective interpretation of the event. Eyewitnesses can support or refute general facts about the case, but the details and their testimony should never be put above the actual evidence presented to the court. The only exception are the cases when eyewitness testimony is the only available evidence, but these cases should by analyzed on a very specific model, as they do not coincide with what people call “justice”. If to act like this it is possible to accuse any innocent person and put him behind the bars. How just is this? Should eyewitness testimony be taken into account at all? It goes without saying that the information got from the witnesses can be important, but only general information in the first place and its verity will be considered rather relative in the second.The following words by Norretranders and Sydenham perfectly describe the whole situation around the eyewitness memory reliability:”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”.
Saul McLeod published 2009
Eyewitness testimony is a legal term. It refers to an account given by people of an event they have witnessed.
For example they may be required to give a description at a trial of a robbery or a road accident someone has seen. This includes identification of perpetrators, details of the crime scene etc.
Eyewitness testimony is an important area of research in cognitive psychology and human memory.
Juries tend to pay close attention to eyewitness testimony and generally find it a reliable source of information. However, research into this area has found that eyewitness testimony can be affected by many psychological factors:
Anxiety / Stress Reconstructive Memory Weapon Focus Leading Questions (Loftus and Palmer, 1974)
Anxiety / StressAnxiety or stress is almost always associated with real life crimes of violence. 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.
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.
However, a study by Yuille and Cutshall (1986) contradicts the importance of stress in influencing eyewitness memory.
They showed that witnesses of a real life incident (a gun shooting outside a gun shop in Canada) had remarkable accurate memories of a stressful event involving weapons. A thief stole guns and money, but was shot six times and died.
The police interviewed witnesses, and thirteen of them were re-interviewed five months later. Recall was found to be accurate, even after a long time, and two misleading questions inserted by the research team had no effect on recall accuracy. One weakness of this study was that the witnesses who experienced the highest levels of stress where actually closer to the event, and this may have helped with the accuracy of their memory recall.
The Yuille and Cutshall study illustrates two important points:
1. There are cases of real-life recall where memory for an anxious / stressful event is accurate, even some months later.
2. Misleading questions need not have the same effect as has been found in laboratory studies (e.g. Loftus & Palmer).
Bartlett ’s theory of reconstructive memory is crucial to an understanding of the reliability of eyewitness testimony as he suggested that recall is subject to personal interpretation dependent on our learnt or cultural norms and values, and the way we make sense of our world.
Many people believe that memory works something like a videotape. Storing information is like recording and remembering is like playing back what was recorded. With information being retrieved in much the same form as it was encoded. 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 into schemas, which are a way of organizing information.
Schemas are mental 'units' of knowledge that correspond to frequently encountered people, objects or situations. They allow us to make sense of what we encounter in order that we can predict what is going to happen and what we should do in any given situation. These schemas may, in part, be determined by social values and therefore prejudice.
Schemas are therefore capable of distorting unfamiliar or unconsciously ‘unacceptable’ information in order to ‘fit in’ with our existing knowledge or schemas. This can, therefore, result in unreliable eyewitness testimony.
Bartlett tested this theory using a variety of stories to illustrate that memory is an active process and subject to individual interpretation or construction.
In his famous study '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.
For example, the information about the ghosts was omitted as it was difficult to explain, whilst participants frequently recalled the idea of “not going because he hadn’t told his parents where he was going” because that situation was more familiar to them. For this research Bartlett concluded that memory is not exact and is distorted by existing schema, or what we already know about the world.It seems, therefore, that each of us ‘reconstructs’ our memories to conform to our personal beliefs about the world.
This clearly indicates that our memories are anything but reliable, ‘photographic’ records of events. They are individual recollections which have been shaped & constructed according to our stereotypes, beliefs, expectations etc.
The implications of this can be seen even more clearly in a study by 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.
Clearly this is not correct and shows that memory is an active process and can be changed to 'fit in' with what we expect to happen based on your knowledge and understanding of society (e.g. our schemas).
This refers to an eyewitness’s concentration on a weapon to the exclusion of other details of a crime. In a crime where a weapon is involved, it is not unusual for a witness to be able to describe the weapon in much more detail than the person holding it.
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
However, a study by Yuille and Cutshall (1986) contradicts the importance of weapon focus in influencing eyewitness memory.
Allport, G. W., & Postman, L. J. (1947). The psychology of rumor. NewYork: Holt, Rinehart & Winston.
Bartlett, F.C. (1932). Remembering: A Study in Experimental and Social Psychology. Cambridge: Cambridge University Press.
Clifford, B.R. and Scott, J. (1978). Individual and situational factors in eyewitness memory. Journal of Applied Psychology, 63, 352-359.
Deffenbacher, K. A. (1983). The influence of arousal on reliability of testimony. In S. M. A. Lloyd-Bostock & B. R. Clifford (Eds.). Evaluating witness evidence. Chichester: Wiley. (pp. 235-251).
Loftus, E.F., Loftus, G.R., & Messo, J. (1987). Some facts about weapon focus. Law and Human Behavior, 11, 55-62.
Yerkes R.M., Dodson JD (1908). The relation of strength of stimulus to rapidity of habit-formation. Journal of Comparative Neurology and Psychology, 18: 459–482.
Yuille, J.C., & Cutshall, J.L. (1986). A case study of eyewitness memory of a crime. Journal of Applied Psychology, 71, 291-301.
How to reference this article:
McLeod, S. A. (2009). Eyewitness testimony. Retrieved from www.simplypsychology.org/eyewitness-testimony.html
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Elizabeth Loftus and Eye Witness Testimony