Eyewitness testimonies have performed an essential role in assisting investigations, and for centuries, have served as one of the most persuasive forms of evidence in the justice system. However, new findings and extensive research indicates how inherently unreliable this type of evidence is. In the United States alone, recent reports reveal that mistaken identification contributed to 70% of all DNA exonerated cases documented in August 2013 (Innocent Project, Nancy M S, Law and Human Behaviour). This exposes how eyewitness evidence can be impaired and how it has the potential to wrongfully convict and charge individuals who are ultimately innocent.
This essay aims to outline the elements that contribute to negatively influencing and obscuring our memories’ ability to recall information correctly. This essay will also define some key terms that are important to understanding this topic including; the Reconstructive Theory of Memory Effect, the Misinformation Effect and the False Memories Effect. Specific issues that will be covered are; (1) How the False Memories Effect has the ability to distort and provide inaccurate information during investigations. (2) How photo lineups are a poor procedure of obtaining evidence, and (3) How subtle changes in a question and environmental factors can result in inaccurate evidence.
Throughout this essay, the use of empirical research will be utilised to exhibit and show the fundamentals of these findings. The arguments discussed in this essay will support my opposition against the use of eyewitness testimonies being employed in the criminal justice system. I firmly believe that although providing contributory evidence to a case and acting as a guide, the primary fault lies is in the neglection of recognising psychological evidence and human factors in memory recollection.
Both law enforcement agencies and members of the criminal justice system typically give eyewitness testimonies the most credibility in the courts besides a confession. Although many offenders are accurately prosecuted and imprisoned under such evidence, concurrently, many innocent individuals are also wrongfully labelled, finding themselves unjustly tried and convicted. Many human and psychological factors can inhibit the recalling of information accurately, and unless adequately mitigated and scrutinised thoroughly, these factors can have severe repercussions.
Examples, like reciting information or events that may not have happened, are directly linked to the way an individual may be questioned and suggestively worded too. This in turn adversely affects an individual’s judgment and their memory of the event, thus compromising the accuracy of testimonies and the crime itself. Many eyewitnesses and juries are unaware of these types of factors.
Loftus, E. F. (1997, September) coordinated a study into how the power of suggestion contributed to the creation of false memories. During this investigation, subjects were shown a simulated crime. From that point, Loftus’s team then deliberately fed misinformation about what they experienced. This example showed a vehicle going through a yield sign. But, then used the power of suggestion to convey to the participant it was a stop sign. What happens when people are exposed to this misinformation is sometimes they will adopt this as their own memory and become convinced by it, stating that its now a stop sign when in reality, this is a false and distorted detail.
Further, into this area of research, participants were given a short description of childhood events. While participants believed that all the stories were accurate and provided by family members, one was actually a pseudo-event that had not occurred. In this study, approximately 25% of participants were enticed to accept, wholly or partially, that at age 5 or 6 they were lost in a shopping mall for an extended time, were exceedingly distressed, and were ultimately rescued by an older adult and reunited with their family. The method of using relatives to facilitate and plant false memories has been labelled the ‘familial informant false narrative procedure’ (Lindsay, Hagen, Read, Wade, & Garry, in press), this is also known as the ‘lost in the mall technique’.
Many investigators have used this approach to establish false memories of events that would have been far more unconventional, bizarre, painful, or even traumatic had they occurred. Particularly striking is “rich false memories”, which are experiences about which an individual can feel confident, provide details, even express emotion about made-up events that never happened. This research reveals how susceptible our minds are to new and suggested information. More so, how simple it is to plant false information that can lead law enforcement and justice representatives to conducting investigations under the pretence of false evidence.
This also contributes towards the research done by Loftus, E. F., & Hoffman, H. G. (1989). This focused on how misinformation can influence people’s memories when they are interrogated suggestively or when they converse with others who give their version of events. Misinformation about incidents, crimes and everyday activities can sway individuals when exposed to influential, bias or misleading information. This leads a witness to adopt and present this information as their recollection of memories of the incident, crime or activity. This phenomenon would ultimately be called the Misinformation Effect.
In an investigation conducted by MacLin, O.H., MacLin, M.K., & Malpass, R.S. (March 2001) found many factors influence the accuracy of recalling and identifying a face. In the right conditions, these factors will affect how one’s memory recalls the specific features that make one face distinct from another. This also highlights the fact of how individuals can change particular features of themselves such as hair length/colour, tan, colored contacts and beards etc.
Eyewitness testimonies most often serve as direct evidence in court, strongly influencing the juries (MacLin et al., 2001). However, recent DNA exonerated cases exhibited the flaws in eyewitness identification, and how it may lead to the wrongful conviction of innocent people. MacLin and colleagues (2001), in an investigation into face recognition, recognised four specific factors that influence an eyewitness’s viewing conditions. These include exposure time (period a witness has viewed the face), delay (time between initial presentation of a stimulus and subsequent recognition), attention/arousal (the concentration of mental effort), and weapon focus (the presence of a weapon).
In addition, Searcy and colleagues (1999) studied how age affects the accuracy in face recognition. Their studies of aging and face recognition show a positive correlation between age and false identification. Chambers (2001) looked at suggestive questioning and biases in lineups as main factors in misidentification. Careful treatment of the memory is critical when dealing with the accuracy of eyewitness identification. It does not take much to completely distort the recollection of an event, especially if it occurred a substantial time ago. Eyewitness testimony often has a robust impact on juries, and may be the deciding factor of whether a defendant is convicted or found innocent. Regardless of the integrity judges credit to eyewitness testimony, scientific studies of perception and memory have continually confirmed that such evidence is subject to inaccuracy.
In a study into Reconstructive Theory of Memory (1932) by Frederic Bartlett, many people believe that memory works comparable to a video recording. Documenting and storing information that when it comes back to recalling memories/events, it’s like playing back what was recorded. However, memory does not work this way. People store information in a way that makes the most sense to them. We make sense of information by trying to fit it into schemas, which is a way of organising cognitive information. Schemas allow us to make sense of what we encounter in the 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 prejudiced. Schemas are consequently capable of distorting unfamiliar or unconsciously ‘unacceptable’ information in order to ‘fit in’ with our existing knowledge of schemas. This can, therefore, result in unreliable eyewitness testimony.
In a study conducted by Loftus, E.F. and Palmer, J.C. (1974) “Reconstruction of automobile destruction”, investigated the interaction between language and memory. Loftus and Palmer performed numerous experiments where they demonstrated that very simple manipulations could sway people’s memories of an event. This showed post-event information and wording of a question might influence people’s memory. During this experiment, nine participants were asked: “how fast were the cars going when they hit each other?” This was considered the control group. In the other groups, the critical word “hit’” was replaced by ‘collided’, ‘bumped’, ‘smashed’ or ‘contacted’. Each of these groups had nine participants answering the question.
The result of this experiment revealed that when asked with the critical word “smashed” participants estimated the car was going 65.6 km/h, but on the other end when participants were asked with the critical word “contacted”, they estimated the car was going 51.1 km/h. This distortion of memory reflects on the types of interview questions that can be asked and the types of answers that have the potential to exaggerate the integrity of an event. Depending on the structure and use of words, this can result in a dramatically distorted version of what happened. In conclusion, it seems participants’ memory of an incident can be changed by using suggestive questioning and wording.
Another way in which evidence may be distorted can be based upon how witnesses recall specific details in different environments. This could be the type of lighting in the environment, if there’s an obstruction between the witness and the crime and also the time between when the offence occurred and when it was brought to the attention of authorities. Saying that, not everyone is particularly good at recalling conditions that may impact their attention; they tend to underestimate the distance between themselves and a target event (Lindsay et al., 2008) and overestimate the duration of events and their ability to notice the salients aspects or changes to their environment (Friedman, 2004, 2005; Simon and Ambinder, 2005).
Even if the conditions were perfect and a professional knew a witness had paid attention to a specific detail, this does not guarantee they actually processed it correctly. (Cowan, 2005; Simons and Resink, 2005). This phenomenon is referred to as “change blindness”. This occurs when people fail to see a significant or obvious change to an environment. For example, in 1999 Dr Simons and Chabris showed roughly half of the participants who were asked to count the passes among teammates in a sports game did not notice when a person outfitted in a gorilla costume walked through the middle of the game, stopped to thump their chest and then walked out of view. Approximately half of the participants who engaged in the study failed to notice this significant change (Simons and Levin, 1998). Note in the “gorilla” experiment, the socially desirable response would be to admit to having seen the change (to show oneself as highly observant), which suggests the percentages are not inflated.
Eyewitness testimony clearly can be exceedingly unreliable, as shown by the many instances mentioned in which an individual may be cognitively impaired and influenced. Even though this essay aims to dissuade all such use, there are, however, many valid ways of increasing the reliability of eyewitness testimonies. From proper administration of photo lineups, an investigator can take practical and straightforward precautions to ensure justice is served and the truth is pursued. The judge can also help decrease the rate at which innocent people are convicted by giving the jury proper instruction regarding the factors that affect the reliability of eyewitness identification and how the testimony of a discredited witness should be viewed. After all, the court system exists to seek the truth, not to obtain a conviction. With some of these factors in mind, it is vitally important that the criminal justice system attempts to determine the truth and to seek justice with integrity. Ethics must never be compromised to obtain a conviction.
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