{"id":1757,"date":"2016-11-27T15:45:41","date_gmt":"2016-11-27T20:45:41","guid":{"rendered":"http:\/\/www2.law.temple.edu\/aer\/?p=1757"},"modified":"2021-12-16T14:58:34","modified_gmt":"2021-12-16T14:58:34","slug":"witness-interviewing-lessons-eyewitness-error-cases","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/aer\/2016\/11\/27\/witness-interviewing-lessons-eyewitness-error-cases\/","title":{"rendered":"WITNESS INTERVIEWING LESSONS FROM EYEWITNESS ERROR CASES"},"content":{"rendered":"

That eyewitnesses make errors \u2013 errors of a catastrophic nature that can send an innocent person to jail for decades or even face a sentence of death \u2013 cannot be doubted.\u00a0 As confirmed by the INNOCENCE PROJECT, \u201c[e]yewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing, playing a role in more than 70% of convictions overturned through DNA testing nationwide.\u201d\u00a0\u00a0 http:\/\/www.innocenceproject.org\/causes\/eyewitness-misidentification\/<\/a> (last visited September 30, 2016).<\/h2>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 But are the lessons from these exonerations of more general applicability; of use in civil as well as in criminal cases?\u00a0 The simple answer is \u201ccertainly.\u201d<\/h2>\n

The single most important lesson for anyone preparing to interview a fact witness is that the mind is not a video recorder that captures events and information; maintains that information without modification; and then recalls it accurately.\u00a0 \u00a0To the contrary, \u201c[m]emory is much more than a simple retrieval system\u2026Rather, the nature of memory is constructive and influenced by a person\u2019s current state as well as intervening emotions, beliefs, events and other factors since a recalled event.\u201d http:\/\/historynewsnetwork.org\/article\/152111#sthash.CtsVIakR.dpuf<\/a> (last visited September 30, 2016).<\/p>\n

Memory scientists teach that this is a three-stage process \u2013 encoding, the time of initial input of information; storage, the time during which the memory is retained; and retrieval, the telling\/interview\/interrogation process.\u00a0 At each stage errors may occur.<\/p>\n

At encoding, the witness may get only a partial view or actually \u2018see\u2019 an incorrect detail.\u00a0 This is best shown by an experiment conducted more than 100 years ago by the great researcher Hugo Munsterberg:<\/p>\n

[There was] a meeting of a scientific association, made up of jurists, psychologists, and physicians\u2026 Suddenly, in the midst of the scholarly meeting, the doors open, a clown in highly coloured costume rushes in in mad excitement, and a negro with a revolver in hand follows him. In the middle of the hall first the one, then the other, shouts wild phrases; then the one falls to the ground, the other jumps on him; then a shot, and suddenly both are out of the room. The whole affair took less than twenty seconds. All were completely taken by surprise\u2026It seemed most natural that the President should beg the members to write down individually an exact report, inasmuch as he felt sure that the matter would come before the courts.<\/p>\n

Of the forty reports handed in, there was only one whose omissions were calculated as amounting to less than twenty per cent of the characteristic acts; fourteen had twenty to forty per cent of the facts omitted; twelve omitted forty to fifty per cent., and thirteen still more than fifty per cent. But besides the omissions there were only six among the forty which did not contain positively wrong statements; in twenty-four papers up to ten per cent, of the statements were free inventions, and in ten answers — that is, in one-fourth of the papers, — more than ten per cent of the statements were absolutely false, in spite of the fact that they all came from scientifically trained observers. Only four persons, for instance, among forty noticed that the negro had nothing on his head; the others gave him a derby, or a high hat, and so on. In addition to this, a red suit, a brown one, a striped one, a coffee-coloured jacket, shirt sleeves, and similar costumes were invented for him. He wore in reality white trousers and a black jacket with a large red necktie.<\/p>\n

http:\/\/psychclassics.yorku.ca\/Munster\/Witness\/memory.htm<\/a> (last visited September 30, 2016).\u00a0 If you need more convincing, take the \u201cselective attention\u201d test at https:\/\/www.youtube.com\/watch?v=vJG698U2Mvo<\/a> .<\/p>\n

The potential for change in memory continues.\u00a0 During retention, the memory may fragment or be changed by new information, a process that may recur during retrieval.\u00a0 Here, the most compelling illustration comes from an experiment by Elizabeth Loftus.\u00a0 Subjects were shown a video of a car accident, and then asked to estimate the speed of the vehicles.\u00a0 But rather than a neutral question of \u201cwhat speed were the cars going at\u201d the viewers were asked how fast the cars were going when they<\/em> \u201ccontacted,\u201d \u201chit,\u201d \u201cbumped,\u201d \u201ccollided\u201d or \u201csmashed.\u201d\u00a0 The more intense the verb, the higher the speed estimate:<\/p>\n

\"loftus-1\"<\/p>\n

 <\/p>\n

What came next was worse.\u00a0 In a related experiment, witnesses were shown an accident video and again asked to estimate speeds using differing verbs to describe the contact.\u00a0 One week later, those who viewed the video were asked whether there was any broken glass [when in fact there was none].\u00a0 The more intense the verb, the greater number who \u2018remembered\u2019 broken glass.<\/p>\n

\"loftus-2\"<\/p>\n

http:\/\/www.simplypsychology.org\/loftus-palmer.html<\/a> (last visited September 30, 2016).\u00a0 The questions as worded changed or \u2018grew\u2019 the memories.<\/p>\n

One last lesson from the eyewitness cases bears study \u2013 the deleterious effect of time in eroding detail memory.\u00a0 People remember the \u2018gist\u2019 of an event \u2013 being robbed or assaulted, or seeing a horrific crash \u2013 but the memory of details degrades rapidly, often within a day.\u00a0 And degradation continues over time.\u00a0 See, e.g.<\/em> \u201cAre Your 9\/11 Memories Really Your Own?\u201d http:\/\/blogs.scientificamerican.com\/psysociety\/are-your-911-memories-really-your-own\/<\/a> (last visited September 30, 2016).<\/p>\n

What are the lessons?\u00a0 Interview as close to the event as possible and understand the limited reliability of interviews conducted far after the event; avoid words that may contaminate memory by suggesting an image or behavior; and learn and deploy alternative techniques such as cognitive interviewing.\u00a0 This process has been described as deploying several techniques:<\/p>\n