What US judges know and believe about eyewitness testimony

In a survey, 160 US judges indicated their knowledge and beliefs about eyewitness testimony. Although correct on some issues, judges were often wrong on important issues such as whether at trial eyewitness confidence is a good indicator of eyewitness accuracy, and if jurors can distinguish accurate from inaccurate witnesses. Increased knowledge was associated with: a willingness to permit legal safeguards, including expert testimony at trial; a belief that jurors have limited knowledge of eyewitness factors; a reluctance to convict defendants solely from eyewitness testimony; a more accurate estimate of the extent to which wrongful convictions result from eyewitness error; and a belief that judges need more eyewitness training. Additional training about factors and procedures that affect eyewitness accuracy may help judges reduce the number of wrongful convictions. Copyright © 2004 John Wiley & Sons, Ltd.     

A Lay Perspective on the Accuracy of Eyewitness Testimony1

To understand more about what laypeople think they “know” about eyewitness testimony, 276 jury-eligible university students were asked to indicate what factors they believe affect the accuracy of eyewitness testimony. In contrast to the large proportion of eyewitness-memory research that concerns system variables, the lay respondents overwhelmingly generated factors related to estimator variables, while system-variable factors such as police questioning and identification procedures were rarely mentioned. Respondents also reported that their own common sense and everyday life experiences were their most important sources of information about the accuracy of eyewitness testimony. Not only do these results clarify the need for further research on the lay perspective of eyewitness testimony, but they also provide some insight into the way in which many jurors might approach cases involving eyewitness evidence.     

Solving the eyewitness problem

Faulty eyewitness testimony is a major source of wrongful convictions. Four solutions are examined to safeguard against mistaken testimony having undue impact: (1) to overturn any conviction based solely on the uncorroborated testimony of a single eyewitness, (2) to require that an attorney be present at any pretrial identification procedure, (3) to allow an expert to testify during the trial about factors of perception and memory that could affect a witness's accuracy, and (4) to have the judge deliver a cautionary instruction to the jury, admonishing them to carefully scrutinize eyewitness testimony, or to educate them about such testimony. Each alternative is discussed within the context of psychological research and legal cases.     

Eyewitness testimony: tracing the beliefs of Swedish legal professionals

This paper examines beliefs held by Swedish legal professionals about eyewitness testimony. In a survey including questions about 13 key issues of eyewitness testimony, three groups were investigated: police officers (n = 104), prosecutors (n = 158), and judges (n = 251). The response rate was 74%. Examples of findings are that the beliefs were in line with scientific findings concerning the weapon focus effect, but were not in line for simultaneous vs. sequential lineups. Between-group differences were found for seven items. Judges were much more sceptical than police officers about the reliability and completeness of children's testimonies. The groups seldom agreed about one answer alternative, and they reported not being up to date about scientific research on eyewitness testimony. The results suggest that some important research findings have reached those working on the field. However, they hold many wrongful beliefs about eyewitness testimony, beliefs that might compromise the accuracy of legal decisions.     

Beliefs about factors affecting the Reliability of eyewitness testimony: A Comparison of judges,jurors and the general public

We surveyed 164 members of the juror pool of the Court of Appeal and a representative sample of 1000 adult Norwegians without juror experience, about their knowledge and beliefs about eyewitness testimony, and compared their answers to a prior survey of Norwegian judges. Although the judges were somewhat more knowledgeable than jurors and the general public, all groups had limited knowledge of eyewitness testimony. Juror experience, in terms of number of times serving as juror, did not correlate with eyewitness knowledge. Consistent with this finding, the knowledge scores of the jurors were similar to the scores of the general public, tested with an abridged seven‐item version of the questionnaire. Comparisons with the results of surveys conducted in the US, indicate similar levels of knowledge among law professionals and jurors in the two countries. Increasing the knowledge of eyewitness testimony among the principal participants in the judiciary system may be an important component of the solution to eyewitness error. Copyright © 2009 John Wiley & Sons, Ltd.     

Lay knowledge of eyewitness behaviour: A British survey

One of the recent concerns in the study of eyewitness memory is how well lay knowledge, i.e. ‘common sense’, matches the findings of empirical research. A number of American and Canadian studies, some using questionnaire methodology, have found limitations in lay knowledge of eyewitness behaviour. Further studies have extended this general finding beyond the lay public–who are prospective jurors–to legal professionals such as lawyers and policemen. The present study utilized the Knowledge of Eyewitness Behaviour Questionnaire (KEBQ), an inventory used in previous studies, to replicate the North American studies with a British sample of students, including law students, and the general public. The results showed a great similarity between the North American and British samples' knowledge of eyewitness behaviour. A significant number of correct responses were made to eight of the 14 KEBQ items, with a significant number of incorrect responses to the remainder. It was also found that law students were no more knowledgeable than other subjects; that knowledge did not vary with age; and that previous experience as an eyewitness was not related to knowledge of eyewitness behaviour. In responding to some of the criticisms of questionnaire studies it is argued that the evidence is mounting in favour of the need for a recognized system to make jurors aware of the factors known to influence eyewitness testimony.     

Judge's Instruction on Eyewitness Testimony: Evaluation and Revision1

Studies of the reliability of eyewitness identification show that such testimony may frequently be inaccurate; because of this inherent unreliability, the law has established certain safeguards to the use of eyewitness evidence. One safeguard has been the development of an instruction that a judge may use to focus jurors' attention on the eyewitness issue. The effectiveness of this instruction has never been assessed, although other studies confirm that jurors frequently misunderstand or incorrectly use instructions they get from the judge. The purpose of these studies was to evaluate comprehension of this instruction in the context of a videotaped trial and to develop a simplified instruction that would be easier for jurors to understand. Compared to jurors who heard the existing instruction, those with the revised version were more knowledgeable of the factors to consider when listening to eyewitness testimony and were less likely to convict the defendant. A sample of superior court judges in the U.S. thought the simplified instruction was more effective than the existing version at conveying the intended legal concepts to the jury, but also rated it as more strongly biased toward the defense.     

What U.S. law enforcement officers know and believe about eyewitness factors,eyewitness interviews and identification procedures

We surveyed 532 U.S. law enforcement officers about eyewitness factors, and how they conduct eyewitness interviews and identification procedures. There were 83 officers from departments that had implemented eyewitness reforms, and 449 officers from departments that had not implemented reforms. Officers from both samples had limited knowledge of eyewitness factors. They also reported conducting interviews and identification procedures in a manner that violated many provisions of the National Institute of Justice's Guide and Training Manual. Although officers in reform departments reported following more correct lineup procedures than officers in non‐reform departments, the two groups did not differ in knowledge of eyewitness factors or in their use of proper interviewing procedures. Only 18% of the reform officers and 1% of the non‐reform officers had both read the Guide and received training based on it. We discuss the implications of the present study for training U.S. law enforcement officers about eyewitness testimony. Copyright © 2010 John Wiley & Sons, Ltd.     

How effective are the cross-examination and expert testimony safeguards? Jurors' perceptions of the suggestiveness and fairness of biased lineup procedures

Mock jurors (N = 800) viewed a videotaped trial that included information about a lineup identification procedure. Suggestiveness of the eyewitness identification procedure varied in terms of foil, instruction, and presentation biases. Expert testimony regarding the factors that influence lineup suggestiveness was also manipulated. Criteria included juror ratings of lineup suggestiveness and fairness, ratings of defendant culpability, and verdicts. Jurors were sensitive to foil bias but only minimally sensitive to instruction and presentation biases. Expert testimony enhanced juror sensitivity only to instruction bias. These results have implications for the effectiveness of cross-examination and expert testimony as safeguards against erroneous convictions resulting from mistaken identifications.     

Testimony and the Constitutive Norm of Assertion

Abstract

I can, given the right conditions, transmit my knowledge to you by telling you some information. If I know the time, and if all goes well, I can bring it about that you know it too. If conditions are right, all I have to do is assert to you what time it is. Paradigmatically, speakers use assertions to transmit what they know to their hearers. Clearly, assertion and testimony are tightly connected. The nature of this connection, however, is not so clear. According to many accounts, assertion has an epistemic constitutive norm. This norm appears to be able to account for some important features of testimony: first, testimonial knowledge transmission, second, the reliability of testimony, and third, the epistemic rights exchanged in cases of testimony. In this paper, however, I argue against this apparent ability. The constitutive norm of assertion, I argue, plays no role in accounts of testimonial knowledge transmission, or of the epistemic rights that testimony confers. This is especially clear when we consider the general norms to which we’re held. Epistemological accounts of testimony can and should, therefore, avoid the difficult debate over the constitutive norm of assertion.     

Testifying on Eyewitness Reliability: Expert Advice Is Not Always Persuasive1

This study investigates the impact of different types of expert testimony regarding the unreliability of eyewitness identification. In two hypothetical court cases involving eyewitnesses, expert testimony was presented that was either sample-based (presenting the results of a research program on eyewitness identification) or person-based (presenting information about the particular eyewitness under consideration); the expert either offered causal explanations for his unreliability claim or failed to do so. Two additional control groups (with and without eye-witness identification) were not presented with any expert testimony. The results indicate that subjects who had been confronted with an expert statement made more lenient judgments about the offender but did not discount the eyewitness identification completely. Sample-based information had a moderate impact on the subjects' judgments, regardless of whether or not causal explanations were given. Person-based testimony was the most influential type of expert advice when a causal explanation was provided but the least influential one when no reasons were given. The practical (international differences in admissibility of expert testimony) and theoretical implications (processing of base-rate information) of these findings are discussed.     

The Discrediting Effect in Eyewitness Testimony1

Loftus (1974) had subjects read summaries of criminal trials that contained the testimony of either credible or discredited prosecution eyewitnesses, and found no effect of discrediting an eyewitness. Instead, almost as many subjects voted guilty with a discredited eyewitness as with a credible eyewitness; this led Loftus to the conclusion that jurors tend to overbelieve eyewitness testimony. Loftus's conclusion was subsequently challenged by others who reported a strong discrediting effect. A series of three experiments using college students was conducted to explore the characteristics of trial summaries that might account for the discrepancy in results, such as inclusion of judicial instructions concerning proof beyond a reasonable doubt, or an eyewitness's reaffirmation of his testimony following discrediting. In all cases, a strong discrediting effect was found. Apparently the discrediting effect appears regardless of wide variation in content of trial summaries. The present data do not support the overbelief claim.     

Expert testimony and jury decision making: An empirical analysis

This experiment examines the influence of expert psychological testimony on juror decision making in eyewitness identification cases. Experienced jurors and undergraduate mock jurors viewed versions of a videotaped trial, rated the credibility of the eyewitness and the strength of the prosecution's and defense's cases, and rendered verdicts. In the absence of expert testimony jurors were insensitive to eyewitness evidence. Expert testimony improved juror sensitivity to eyewitness evidence without making them more skeptical about the accuracy of the eyewitness identification. Few differences emerged between the experienced jurors and undergraduate mock jurors.     

Individual differences in face identification postdict eyewitness accuracy

Eyewitnesses frequently mistake innocent suspects for the culprits of an observed crime, and such misidentifications have caused the wrongful convictions of many innocent people. This study attempted to establish the accuracy of individual eyewitnesses by assessing their ability to process unfamiliar faces. Observers viewed a staged crime and later tried to select the culprit from an identity lineup. This was followed by a face test that provides a laboratory analogue to lineup identifications. We found that this face test could determine the reliability of individual witnesses when a positive eyewitness identification had been made. Importantly, this was possible based on the specific response that a witness had made and without prior knowledge of whether the culprit was actually present in the lineup. These findings demonstrate that individual differences in face processing provide a potential instrument for postdicting eyewitness accuracy and for preventing miscarriages of justice.     

Process versus content in eyewitness metamemory monitoring

Three studies (Ns = 200, 135, and 187 college undergraduates) contrasted process versus content accounts of eyewitness metamemory monitoring. Subjective vividness, a cue related to memory content, was a better predictor of confidence and accuracy than were cues related to the retrieval process. Participants who were asked to recall, rather than recognize, event details displayed greater insight into accuracy, primarily because vividness was a more valid accuracy cue under recall conditions. Results reinforce the value of recall-based protocols for eliciting eyewitness testimony and suggest some specific conditions (e.g., yes-no recognition) under which investigators should be especially cautious in relying on confidence to infer accuracy. In addition, results point to a general framework for understanding moderating effects on eyewitness metamemory accuracy.     

Was und wie häufig sind Fehlurteile?

Spectacular trials leading to alleged or proven wrongful convictions arouse the concern of the German public. In spite of that there is no current systematic analysis of sources of error in criminal procedures. This article defines what may be recognized as a wrongful conviction or wrongful decision and gives an account of studies on wrongful convictions in America and some European countries. Concerning the German situation, firstly possible sources of error in preliminary proceedings are highlighted and then the outcomes of appeals are analyzed, thus estimating the quantity of wrongful convictions by courts in the first instance on the basis of statistical data. Furthermore, the very restrictive prerequisites for retrials are discussed. Concluding, the author argues for a systematic empirical analysis of sources of error in criminal proceedings and a facilitation of the prerequisites for retrials.     

Line‐up Misidentifications: When Being ‘Prototypically Black’ is Perceived as Criminal

Eyewitness misidentifications are the leading factor contributing to wrongful convictions. Black men, more than any other racial group, are disproportionately affected by this, thus elevating the importance of identifying factors that contribute to the false recollection of unseen faces. In the current studies, we tested whether misplaced familiarity and subsequent misidentification of Black faces was underpinned by the degree to which target faces were considered ‘prototypical’ (i.e., representative) of the Black race category. First, results revealed that Black faces with stereotypical facial features were accurately categorized as ‘Black’ quicker than faces with nonstereotypical features (Experiment 1). Moreover, identification errors were higher for both face recognition (Experiment 2) and line‐up identification (Experiment3) for stereotypical‐featured than nonstereotypical‐featured faces. Overall, results suggest that stereotypical Black faces are representative of the category ‘Black’ and facilitated feelings of familiarity and the endorsement of memory errors that may underpin eyewitness misidentifications. Copyright © 2013 John Wiley & Sons, Ltd.