tag:theconversation.com,2011:/ca/topics/eyewitness-evidence-5245/articlesEyewitness evidence – The Conversation2022-09-26T12:30:08Ztag:theconversation.com,2011:article/1860102022-09-26T12:30:08Z2022-09-26T12:30:08ZChildren’s eyewitness testimony can be as accurate as adults’ or more so – if interviewers follow these guidelines<figure><img src="https://images.theconversation.com/files/485996/original/file-20220921-15817-m88a16.jpg?ixlib=rb-1.1.0&rect=0%2C75%2C8213%2C5825&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Researchers know better ways to get accurate information from child witnesses.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/at-home-learning-royalty-free-image/1349504236">FatCamera/E+ via Getty Images</a></span></figcaption></figure><p>Eyewitness memory has come under a lot of scrutiny in recent years, as organizations such as the Innocence Project suggest it was a key piece of information in <a href="https://doi.org/10.1525/nclr.2011.14.3.333">as many as 75%</a> of wrongful convictions in the United States. Unfortunately, human memory doesn’t work like a video camera recording a scene, allowing you to play memories back exactly as they happened. Instead, memories must be reconstructed every time they are used, like putting together a jigsaw puzzle. All kinds of things can <a href="https://doi.org/10.3758/BF03195837">influence this reconstruction process</a>, ranging from new information you learn after the event to simply the passage of time.</p>
<p>Adults are bad enough at providing accurate testimony, because of issues related to the reconstructive nature of memory as well as the ways memories can be influenced by new information and decay over time. Considering these limitations of human memory, how well do kids do? The reliability of child witnesses is especially important to understand given the <a href="https://calio.dspacedirect.org/handle/11212/384">large number of children</a> who become involved in the legal system every year. In cases involving child witnesses, the child’s testimony is often <a href="https://doi.org/10.1348/026151005X57657">the only available evidence</a>, so gaining reliable accounts may be the only way to keep dangerous offenders off the streets.</p>
<p><a href="https://scholar.google.com/citations?user=-lZihQgAAAAJ&hl=en">I’m a psychology lecturer</a> at Clemson University <a href="https://sites.google.com/view/ben-f-cotterill/research?authuser=0">who researches children’s eyewitness memory</a>. In my new book “<a href="https://doi.org/10.1007/978-3-031-10382-7">Are Children Reliable Witnesses?</a>” I explore what can influence the accuracy of children’s testimonies, for better or worse. Research shows that children can be reliable witnesses, but it depends on both the individual child and the situation.</p>
<h2>Getting child witnesses to tell their stories</h2>
<p>Typically, police begin a forensic interview by asking witnesses, including children, <a href="https://doi.org/10.1002/acp.1489">to freely recall</a> everything they remember about the event. During this stage of the interview, even young children can be just as accurate as adults, but they <a href="https://doi.org/10.1002/9780470773291">often miss many details</a>.</p>
<p>To elicit the most information possible, police will often then start asking different types of questions. Open-ended questions – for example, “Tell me more about what happened” – generate more accurate and coherent responses <a href="https://doi.org/10.1146/annurev-lawsocsci-110413-030913">than any other type</a>.</p>
<p>Questions that include an option – like “Was he tall?” – can increase the amount of information a witness provides but often lead children to answer questions they actually don’t know the answer to. The overall accuracy of their recollections typically declines when kids are <a href="https://doi.org/10.1348/0261510041552710">given these kinds of questions</a>.</p>
<p>If investigators struggle to gain information from young children, they may resort to leading questions that suggest details the child has not already mentioned, such as asking about touching when the child has not brought up physical contact. Often, young children will comply with the suggestion of the interviewer <a href="https://doi.org/10.1146/annurev-lawsocsci-110413-030913">even if it is untrue</a>. They may then <a href="https://doi.org/10.1006/jecp.2000.2610">incorporate that misinformation into their subsequent accounts</a> of the crime.</p>
<p>Sticking to a structured interview format makes investigators less likely to fall back on questions that are <a href="https://doi.org/10.1002/acp.1489">suggestive or pose limited options</a>.</p>
<p><iframe id="7xwLa" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/7xwLa/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>The <a href="https://www.nichd.nih.gov">National Institute of Child Health and Human Development</a> provides one <a href="https://nichdprotocol.com/">evidence-based protocol</a> investigators can follow when working with young witnesses. It takes away some of the guesswork on the part of the investigator and ensures open-ended prompts are used before reverting to more focused questions. It also guides investigators to include practice interviews and rapport-building, both of which <a href="https://doi.org/10.1002/9780470773291">improve interview performance</a>, increasing the quality and quantity of information provided.</p>
<p>However, interviewers <a href="https://doi.org/10.1037/amp0000039">need regular training workshops</a> to maintain best practices.</p>
<h2>Setting up better lineup procedures</h2>
<p>After a child eyewitness has described an alleged perpetrator to the authorities, the child may be asked to look through a photo lineup. Usually, the lineup contains someone the police consider to be a suspect along with several people the police know to be innocent.</p>
<p>Lab research suggests that children as young as 6 can be just as accurate as adults when presented with a lineup that contains the alleged perpetrator, typically scoring accuracy rates of <a href="https://psycnet.apa.org/record/2014-08273-006">at least 60%</a>. However, when shown a lineup that doesn’t include the target, children are significantly more likely than adults to <a href="https://doi.org/10.1080/1068316X.2013.793334">make a false identification</a>. Researchers suspect children <a href="https://doi.org/10.1007/s11896-011-9089-8">feel pressured into making a selection</a> and are less aware of the potential consequences of false identifications.</p>
<p><iframe id="7LJ5Q" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/7LJ5Q/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p><a href="https://doi.org/10.1002/acp.1511">One method</a> that works to reduce false identification rates is to add an additional photo consisting of a silhouette with a question mark to the lineup. In this situation, children are told to point to the silhouette card if they do not see the target in the lineup. In multiple studies, the silhouette card reduced false identifications while <a href="https://doi.org/10.1002/acp.2870">not reducing the likelihood of a witness’s making a correct identification</a> in the lineup. </p>
<h2>When children are better witnesses than adults</h2>
<p>Children are more <a href="https://doi.org/10.1006/jecp.2000.2610">vulnerable to external pressures</a>, such as leading questions. And their memories are more likely to be tainted by post-event misinformation. But they are less likely to have their interpretation of an event <a href="https://doi.org/10.3758/s13421-010-0043-2">influenced by assumptions</a>, previous experiences, prior knowledge or stereotypes than grown-ups are.</p>
<p>For instance, adults in research studies are more likely than children to <a href="https://www.in-mind.org/article/children-are-poor-witnesses-or-are-they">misremember that a nonviolent bank robbery involved a weapon</a>. It’s also more common for adults to misreport having read a word on a list of words centered around a particular theme. For example, if the list included the words “dream,” “pillow,” “blanket” and “bed,” then adults would be more likely than children to <a href="https://doi.org/10.3758/s13421-010-0043-2">misremember “sleep” having also been on the list</a>. </p>
<p>This area of research needs further exploration, but it seems when specific information cannot be remembered, adult memories often rely upon gist information – that is, the <a href="https://doi.org/10.1111/j.1467-8624.2009.01373.x">overall structure, but not the specific details</a> – more so than children’s do. This tendency may make <a href="https://www.in-mind.org/article/children-are-poor-witnesses-or-are-they">adults more prone to spontaneous false memories</a> than children are. However, children are still more vulnerable to externally induced false memories, like those that stem from leading questions or learning new information after the event.</p>
<p>Unfortunately, every year in the U.S. thousands of criminal cases rely on children’s testimony in order to bring charges. Understanding the wide range of factors that can affect memory in these young witnesses is of the utmost importance.</p><img src="https://counter.theconversation.com/content/186010/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben Cotterill does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Human memory doesn’t work like a video camera, simply recording a scene as it happens. But researchers know how to help children recall information accurately.Ben Cotterill, Lecturer in Psychology, Clemson UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1347672020-07-04T14:19:17Z2020-07-04T14:19:17Z6 eyewitnesses misidentified a murderer – here’s what went wrong in the lineup<figure><img src="https://images.theconversation.com/files/341014/original/file-20200610-34692-1weew9s.jpg?ixlib=rb-1.1.0&rect=594%2C24%2C3360%2C2127&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Research shows how to make lineups more fair and less biased.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/female-victim-identifying-criminal-royalty-free-image/1129468325">EvgeniyShkolenko/iStock via Getty Images Plus</a></span></figcaption></figure><p>On the strength of six eyewitnesses’ lineup identifications, Lydell Grant was <a href="https://www.chron.com/news/houston-texas/houston/article/Life-term-given-for-Montrose-stabbing-death-4100491.php#photo-3861342">sentenced to life in prison</a> in 2012 for the murder of a young Texas man, Aaron Scheerhoorn, who was stabbed to death outside a Houston nightclub in 2010.</p>
<p>All six of those eyewitnesses were wrong.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1229488184750264321"}"></div></p>
<p>Thanks to the work of the <a href="https://innocencetexas.org/">Innocence Project of Texas</a>, new DNA testing on biological material collected from underneath the victim’s fingernails cleared Grant and implicated another man, Jermarico Carter, who police said <a href="https://www.khou.com/article/news/local/lydell-grant-exoneration-new-murder-charges-filed/285-5702c0c1-4510-44a4-be88-5220b362a6ed">confessed to the killing</a>. Carter <a href="https://www.nbcnews.com/news/us-news/texas-man-released-dna-evidence-still-not-exonerated-after-new-n1231621">has now been indicted</a> for the murder by a grand jury, and Lydell Grant was released from prison.</p>
<p>But faith in eyewitnesses runs so deep that despite the overwhelming proof of Grant’s innocence, the Texas Court of Criminal Appeals initially <a href="https://www.click2houston.com/news/local/2020/07/03/despite-dna-evidence-texas-court-asks-for-more-evidence-before-exonerating-lydell-grant-from-2010-murder/">refused his exoneration request</a>. Instead, they asked that the six eyewitnesses who originally testified against Grant respond to his claims of innocence. Finally, almost a year later, the Texas Court of Criminal Appeals <a href="https://www.khou.com/article/news/local/lydell-grant-declared-actually-innocent-by-texas-court-of-criminal-appeals/285-6fee68fe-7b38-4d28-ac85-2e003c5fbfe4">declared Grant “actually innocent”</a> on May 19, 2021.</p>
<p>It’s a fact that <a href="https://theconversation.com/vagaries-of-memory-mean-eyewitness-testimony-isnt-perfect-34692">eyewitnesses make mistakes</a>. There have been hundreds of cases in which mistaken eyewitness identification testimony led to the <a href="https://www.innocenceproject.org">conviction of innocent people</a>.</p>
<p>The puzzling question in this case, though, is why did six eyewitnesses independently identify Lydell Grant as the killer and then confidently testify in court?</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/340693/original/file-20200609-21238-1igruxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/340693/original/file-20200609-21238-1igruxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/340693/original/file-20200609-21238-1igruxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=380&fit=crop&dpr=1 600w, https://images.theconversation.com/files/340693/original/file-20200609-21238-1igruxm.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=380&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/340693/original/file-20200609-21238-1igruxm.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=380&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/340693/original/file-20200609-21238-1igruxm.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=478&fit=crop&dpr=1 754w, https://images.theconversation.com/files/340693/original/file-20200609-21238-1igruxm.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=478&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/340693/original/file-20200609-21238-1igruxm.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=478&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Mugshots of Lydell Grant (left, in 2010) and Jermarico Carter (right, in 2007) show the men don’t look very similar.</span>
<span class="attribution"><a class="source" href="https://www.khou.com/article/news/local/lydell-grant-exoneration-new-murder-charges-filed/285-5702c0c1-4510-44a4-be88-5220b362a6ed">KHOU/Houston Police Department</a></span>
</figcaption>
</figure>
<p>One might assume that Grant was the murderer’s unlucky doppelganger. But a comparison of the pair’s mugshots reveals that they bear little physical resemblance to one another beyond both being Black men. </p>
<p><a href="https://www.researchgate.net/profile/Laura_Smalarz">As an experimental psychologist</a> who conducts research on eyewitness identification, I’ve seen hundreds of examples of highly confident yet mistaken eyewitnesses – both in the laboratory and in actual court cases. My review of the transcripts from Grant’s trial suggests a simple explanation for these high-confidence mistakes: The police did not use scientific best practices for collecting the eyewitness identification evidence.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/341015/original/file-20200610-34688-5ppfyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/341015/original/file-20200610-34688-5ppfyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/341015/original/file-20200610-34688-5ppfyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/341015/original/file-20200610-34688-5ppfyo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/341015/original/file-20200610-34688-5ppfyo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/341015/original/file-20200610-34688-5ppfyo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/341015/original/file-20200610-34688-5ppfyo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/341015/original/file-20200610-34688-5ppfyo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Police lineups have evolved over time, but some states still need to catch up.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/image-of-ten-men-standing-in-a-police-lineup-on-a-platform-news-photo/88159748">Chicago Sun-Times/Chicago Daily News/Chicago History Museum via Getty Images</a></span>
</figcaption>
</figure>
<h2>Conducting a lineup with the suspect in mind</h2>
<p><a href="https://doi.org/10.1037/lhb0000359">Scientific best practices for conducting eyewitness lineups</a> require that the person administering the lineup not know who the police suspect. Just as double-blind clinical trials in medical studies are intended to prevent patients’ and doctors’ expectations from affecting outcomes of the clinical trial, double-blind lineups aim to prevent witnesses’ and administrators’ expectations from influencing the outcomes of the identification procedure.</p>
<p>The transcript from Lydell Grant’s trial revealed that the homicide detective in charge of investigating the case administered the lineup to the eyewitnesses. Of course, he knew that Lydell Grant was the one under suspicion.</p>
<p>Psychological experiments have shown that lineup administrators who know who the suspect is end up cuing witnesses toward that person. Compared to administrators conducting double-blind lineups, these informed administrators are more likely to <a href="https://doi.org/10.1037/xap0000147">ask witnesses about the suspect</a> and <a href="https://doi.org/10.1037/lhb0000197">smile when witnesses are looking at the suspect</a> rather than at another person in the lineup.</p>
<p>Such behaviors are often inadvertent; neither lineup administrators nor eyewitnesses may be consciously aware that they’re happening. Nevertheless, these subtle behavioral cues affect eyewitnesses’ decisions by making them <a href="https://doi.org/10.1037/law0000139">more likely to choose the suspect</a>.</p>
<p>But if the six eyewitnesses chose Lydell Grant from the lineup only because they were cued to do so by the case detective, why were they so confident in their identifications? According to the trial transcript, most of the eyewitnesses testified to having been positive when they picked Grant out of the lineup. One reported that he had identified Grant without doubt or hesitation. Another stated that the killer’s face was “burned into [her] memory immediately.”</p>
<h2>Reinforcing what eyewitnesses ‘remember’</h2>
<p>The witnesses’ trial testimony reveals a simple explanation for these high-confidence errors: All of the eyewitnesses received confirmatory feedback following their identification of Grant.</p>
<p>Three of the eyewitnesses reported that the detective told them that they had picked the same person other people had, though the detective himself denied having made such statements. Two other eyewitnesses, a couple, remembered discussing their selection with one another and confirming each other’s decisions. One eyewitness couldn’t recall whether the detective had told him anything after he identified Grant, but the detective acknowledged telling that particular eyewitness “good job” following the identification. The detective also admitted making a similar comment to at least one other witness. </p>
<p>Research has repeatedly demonstrated that simple confirming comments such as these <a href="https://doi.org/10.1037/law0000001">have dramatic effects</a> on eyewitnesses’ testimony. Not only do such statements inflate eyewitnesses’ confidence in the accuracy of their identification, but they lead them to falsely remember having been that confident all along.</p>
<p>As a result, witnesses who have received confirmatory feedback provide testimony that is highly persuasive to jurors.</p>
<p><iframe id="GqXfK" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/GqXfK/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>In one study, people playing the role of jurors were able to reliably distinguish between accurate and mistaken eyewitnesses when the witnesses had not received any confirmatory feedback.</p>
<p>But when the witnesses had received a simple reinforcing comment following their identification (“Good job, you got the guy”), the mock jurors could <a href="https://doi.org/10.1037/lhb0000067">no longer tell the difference between accurate and mistaken eyewitnesses</a>. In other words, the confirmatory remark made the mistaken eyewitnesses just as persuasive as the accurate ones.</p>
<p>Witnesses <a href="https://doi.org/10.1037/0021-9010.83.3.360">aren’t able to tell</a> whether their testimony was influenced in this way. Moreover, confirmatory feedback can <a href="https://doi.org/10.1037/lhb0000078">alter witnesses’ memories of the original crime</a>, making them <a href="http://www.afterinnocence.net/jenstory.html">less able to recognize the actual perpetrator</a> when they see him again.</p>
<h2>How to run less biased lineups</h2>
<p>The processes at play in Lydell Grant’s case are predictable and unfortunately common. The way to avoid these problems with eyewitness testimony is for police to adopt best practices based on the psychological research. </p>
<p>In addition to implementing double-blind lineup procedures, it’s essential that lineup administrators document eyewitnesses’ confidence immediately following an identification. Confidence collected at the time of an identification during a double-blind lineup procedure <a href="https://doi.org/10.1177/1529100616686966">is informative regarding the eyewitness’s accuracy</a>. Confidence reported at trial after the eyewitness has received confirmatory feedback is not. </p>
<p>To date, <a href="https://www.innocenceproject.org/eyewitness-identification-reform/">25 states have adopted these core procedural reforms</a>, including Texas in 2011, one year after the investigation of Aaron Scheerhoorn’s murder. Unfortunately for Lydell Grant, these reforms came a year too late. I believe the remaining 25 states should act swiftly to prevent additional miscarriages of justice.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklysmart">You can get our highlights each weekend</a>.]</p>
<p><em>This is an updated version of an article originally published on July 4, 2020.</em></p><img src="https://counter.theconversation.com/content/134767/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Laura Smalarz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Eyewitness testimony can hold a lot of weight with jurors. But eyewitnesses aren’t always right, and poor investigative practices can make matters worse.Laura Smalarz, Assistant Professor of Psychology, Arizona State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/941072018-04-02T19:56:48Z2018-04-02T19:56:48ZWhy we made iWitnessed, an app to collect evidence<figure><img src="https://images.theconversation.com/files/212385/original/file-20180328-109185-18ck0l5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There's been an accident - but witness accounts will stray and lose accuracy over time. </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/accident-car-crash-bicycle-on-road-1043808766?src=X2ov_VvkKgbfi64l8FRMKw-1-21">from www.shutterstock.com </a></span></figcaption></figure><p>Eyewitness evidence can be critical to investigations and trials. However, <a href="http://learnmem.cshlp.org/content/12/4/361.full">research shows</a> that eyewitness memory can be inaccurate and vulnerable to distortion depending on what happens next – for example, inaccurate information encountered through leading questions, discussion with other witnesses, or journalists. </p>
<p>This is particularly true when there is a long delay between witnessing an event and reporting the details to police. We forget details <a href="https://www.tandfonline.com/doi/abs/10.1080/09658210701363146">very rapidly</a>, and the more we forget, the more our memories become <a href="http://learnmem.cshlp.org/content/12/4/361.full">prone to inaccuracies</a>. </p>
<p>I am part of a team of eyewitness memory experts, and together we have developed the iWitnessed smartphone application. Starting today, the app is available to the general public for free download for both Apple and Android devices across Australia.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/legal-lessons-for-australia-from-ubers-self-driving-car-fatality-93649">Legal lessons for Australia from Uber’s self-driving car fatality</a>
</strong>
</em>
</p>
<hr>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/212384/original/file-20180328-109175-1bvvylo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/212384/original/file-20180328-109175-1bvvylo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=1067&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212384/original/file-20180328-109175-1bvvylo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=1067&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212384/original/file-20180328-109175-1bvvylo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=1067&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212384/original/file-20180328-109175-1bvvylo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1340&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212384/original/file-20180328-109175-1bvvylo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1340&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212384/original/file-20180328-109175-1bvvylo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1340&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">iWitnessed prompts the user to add a range of information.</span>
<span class="attribution"><span class="source">Helen Paterson</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>iWitnessed was designed upon an evidence base, to help witnesses and victims provide a detailed account of an event in a way which helps preserve and protect their memory. Such recordings can then be used in court to refresh the memory of a witness – either for one-off events (such as a car accident), or multiple, related events (such as bullying).</p>
<p>We believe this is the first smartphone application designed by cognitive scientists to help protect witness memory evidence. </p>
<p>iWitnessed helps preserve eyewitness memory as soon as possible after an event. Police officers are often very busy in the immediate aftermath of an incident, and can be unable to question witnesses until days, or weeks later. </p>
<p>Also, some witnesses do not come forward to police immediately after an event because they may be reluctant to report a crime. This delay can lead to forgotten and contradictory details, which can undermine the quality of the evidence when witnesses do decide to make a statement. </p>
<h2>Helping witnesses record evidence</h2>
<p>Memory researchers have studied the ways that a witness’ memory can be protected against forgetting and memory distortion.</p>
<p>One of the best ways to do this is to give witnesses an opportunity to provide a comprehensive account at the earliest possible time. We know from <a href="http://psycnet.apa.org/record/1999-10334-002">research</a> that this early account is often more complete than later retellings. </p>
<p>More importantly, the act of recalling soon after the event helps protect the memory. That is, details <a href="https://link.springer.com/article/10.1007/s10979-008-9146-8">recalled in this early account</a> are less likely to be <a href="https://onlinelibrary.wiley.com/doi/abs/10.1002/acp.2828">forgotten or changed</a> by the introduction of <a href="http://psycnet.apa.org/record/2014-38927-007">post-event information</a>. These beneficial effects are dependent upon the early comprehensive account being given <a href="https://www.tandfonline.com/doi/abs/10.1080/13218719.2014.947670">within 24 hours of the incident</a>. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/212386/original/file-20180328-109196-ent9rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/212386/original/file-20180328-109196-ent9rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/212386/original/file-20180328-109196-ent9rh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/212386/original/file-20180328-109196-ent9rh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/212386/original/file-20180328-109196-ent9rh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=425&fit=crop&dpr=1 754w, https://images.theconversation.com/files/212386/original/file-20180328-109196-ent9rh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=425&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/212386/original/file-20180328-109196-ent9rh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=425&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Evidence can be collected by the voice-to-text function.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/handsome-trendy-man-wearing-white-shirt-738726307?src=x7EUVg6kxZ5Dbe2DhfwjNA-1-82">from www.shutterstock.com</a></span>
</figcaption>
</figure>
<h2>Can iWitnessed evidence be used in court?</h2>
<p>Legally speaking, evidence collected using iWitnessed will be treated like contemporaneous notes. Contemporaneous notes are witness accounts composed during or immediately after a critical event, and in court proceedings they can range from a note scribbled on the back of a napkin to a meticulous description of the event.</p>
<p>According to the <a href="https://legislation.nsw.gov.au/inforce/b7024c25-a877-6ee1-a80f-fff6c3c384e8/1995-25.pdf">Evidence Act 1995 NSW (sections 32 and 34)</a>, contemporaneous notes or contemporaneous recordings of events can be used to refresh the memory of a witness to an event. Even if very rudimentary, they can add to the reliability and strength of the evidence being given in court proceedings. </p>
<p>It is also possible that developments in evidence law may enable evidence collected using iWitnessed to become directly admissible. While there is <a href="https://www.legislation.nsw.gov.au/acts/2007-64.pdf">some legislation</a> on the <a href="https://legislation.nsw.gov.au/inforce/b7024c25-a877-6ee1-a80f-fff6c3c384e8/1995-25.pdf">admissibility of this type of evidence</a> in court, this has not kept pace with the rapid development of modern technologies. As a result, the evidence may be used only upon strict proof in individual cases – for <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2014/1077.html">example</a>, regarding the use of <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2016/345.html?query=">audio recordings</a>. </p>
<h2>Anyone with a device</h2>
<p>iWitnessed is designed to be used by anyone within Australia with a smartphone or tablet, and does not require high levels of literacy or language skills. Users can type details using their keypad, and record spoken notes – standard voice-to-text functions also work in iWitnessed. Responses do not need to be in English, allowing witnesses to use their preferred language to give the most accurate and detailed account. </p>
<p>iWitnessed also includes contact details of support services and some general advice on responses to traumatic events. </p>
<p>With the app opened up, users are first given advice on how to protect their memories. Then they are asked to follow a series of prompts and enter details of the event they witnessed. As well as text and audio recordings, images can be uploaded. All entries can be time, date, and location stamped, and the history of any changes made to the entry is recorded. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-dark-side-of-mondegreens-how-a-simple-mishearing-can-lead-to-wrongful-conviction-78466">The dark side of mondegreens: how a simple mishearing can lead to wrongful conviction</a>
</strong>
</em>
</p>
<hr>
<p>Information entered via the iWitnessed app remains on the user’s phone/tablet, and can be locked with a PIN code. If witnesses choose to do so, they can send their account to police in the form of an email. All evidence stays on the device unless this step is taken, although the potential exists for this information to be subpoenaed by police. </p>
<p>There are many advantages of iWitnessed as highlighted above, and we believe the development of our tool is timely. Australians use advanced technologies on a daily basis, with the <a href="https://www2.deloitte.com/au/mobile-consumer-survey">majority (88%) owning a smart phone</a>). This statistic explains why more and more people are recording incidents they witness (such as racist <a href="http://www.news.com.au/national/victoria/news/young-girls-filmed-in-shocking-racist-rant-on-melbourne-train/news-story/5bd9b6f8daa3dbf5ace48117ca8e4b9e">attacks in public transport</a>). </p>
<p>iWitnessed will formalise the way that this information is collected. Ultimately, we expect the information gathered by iWitnessed will facilitate police practice and investigation as well as litigation in both criminal and civil trials. </p>
<hr>
<p><em>Other experts involved in the development of iWitnessed are Celine van Golde (The University of Sydney), Richard Kemp (UNSW Sydney), Nicholas Cowdery (former Director of Public Prosecution in NSW) and NSW police officers.</em></p><img src="https://counter.theconversation.com/content/94107/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Helen Paterson has received funding from the Australian Research Council. iWitnessed was developed thanks to a very generous anonymous donation provided through the University of Sydney Development Office.</span></em></p>Memories of events are notoriously unreliable - especially after some time has passed. Experts and police have developed an app to help the general public record evidence when it’s fresh.Helen M. Paterson, Senior Lecturer in Forensic Psychology, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/676632017-07-13T12:48:43Z2017-07-13T12:48:43ZNew research reveals how little we can trust eyewitnesses<figure><img src="https://images.theconversation.com/files/177877/original/file-20170712-19675-moouck.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Eyewitness recollections are easily distorted by the views of others.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Eyewitnesses statements often play a vital role in securing criminal convictions – police surveys show that eyewitness testimony is the main form of evidence in more than <a href="https://www.researchgate.net/publication/314082250_The_Reduction_of_False_Convictions">20% of cases</a>. But that doesn’t mean the evidence is always reliable. </p>
<p>In fact <a href="http://www.newenglandinnocence.org/eyewitness-misidentification">research shows that 75%</a> of false convictions are caused by a inaccurate eyewitness statement. This means up to <a href="http://metro.co.uk/2016/11/23/every-year-100-innocent-people-are-wrongly-convicted-of-sex-crimes-6277325/">100 innocent people could be wrongfully convicted</a> each year of a violent or sexual crime in the UK because of these false eyewitnesses.</p>
<p>Today, the phenomenon of eyewitness misidentification is more familiar to the public because of the Netflix documentary series “Making a Murderer”. <a href="https://en.wikipedia.org/wiki/Steven_Avery#Media_coverage">Steven Avery</a>, the subject of the documentary, was falsely convicted of rape and spent 18 years behind bars before being exonerated. And <a href="https://www.ncbi.nlm.nih.gov/pubmed/2725271">eyewitness suggestibility</a> – where witnesses are willing to accept and act on the suggestions of others if false but plausible information is given – was at the heart of the case. </p>
<p>Miscarriages of justice can occur more often than television documentaries would have us believe – across a variety of crimes.
<a href="https://www.theguardian.com/uk/2009/aug/18/eyewitness-evidence-wrongful-conviction">William Mills</a>, for example, was falsely identified for robbing a bank in Glasgow. He was sentenced to nine years based on police identification from CCTV images – which showed a man in sunglasses with a scarf over his mouth and chin. </p>
<p>Another notable case was the <a href="https://www.theguardian.com/uk/2008/aug/01/jilldando.ukcrime1">Jill Dando murder enquiry</a> in 2001. An innocent suspect (Barry George) was convicted of murder after witnesses discussed the case with each other and changed their minds based on the information one witness presented with. One eyewitness went from being “uncertain” to “95% sure” that George was the correct suspect.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177878/original/file-20170712-19681-yfydak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177878/original/file-20170712-19681-yfydak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=356&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177878/original/file-20170712-19681-yfydak.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=356&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177878/original/file-20170712-19681-yfydak.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=356&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177878/original/file-20170712-19681-yfydak.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=447&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177878/original/file-20170712-19681-yfydak.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=447&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177878/original/file-20170712-19681-yfydak.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=447&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Steven Avery’s mugshot.</span>
<span class="attribution"><span class="source">Netflix</span>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Of course, it isn’t just that these suspect eyewitness statements can lead to the unsafe conviction of innocent people – it means that the real perpetrators remain at large. And <a href="http://www.innocenceproject.org/reevaluating-lineups-why-witnesses-make-mistakes-and-how-to-reduce-the-chance-of-a-misidentification/">in 48% of cases</a> of wrongful conviction the real perpetrator re-offends – which can be devastating for all involved. </p>
<h2>Eyewitness talk</h2>
<p>Many factors such as memory decay, poor eyesight and induced stress have already been shown to <a href="http://psycnet.apa.org/journals/apl/63/3/352/">have an influence</a> in false testimony. But these factors can only explain a small percentage of false eyewitness statements. There is another factor known as “eyewitnesses talk” which comes into play. This is where witnesses discuss what they saw with each other after the event and then change their mind about what they thought they saw based on the evidence of another witness.</p>
<p>Witnesses talking after an event is a pretty common phenomenon, a <a href="http://www.tandfonline.com/doi/abs/10.1080/10683160512331316334">survey</a> found that 86% of real eyewitnesses claim to have discussed the event with other witnesses prior to giving evidence. And this is where the process of “co-witness conformity” occurs – in other words eyewitnesses are influenced into including
things they didn’t actually see in their statements. </p>
<p>But while <a href="http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0134739">previous research</a> has proved that such processes can occur, very little is known about why some people are more likely to do this, or what influences people to change their statements in the first place.</p>
<h2>Finding out the truth</h2>
<p>A team of investigative psychologists from the University of Huddersfield has been undertaking a <a href="https://www.hud.ac.uk/news/2017/july/eyewitnessrecollectioneasilydistortedbytheviewsofothers/">series of experiments</a> on more than 600 participants to simulate the event of witnessing a crime. In <a href="https://www.researchgate.net/publication/314082250_The_Reduction_of_False_Convictions">our research</a>, groups of participants were shown actual footage of a bar fight taking place. </p>
<p>In some of the participant groups we planted actors who were instructed to suggest the wrong man had started the violence. Participants were then interviewed and asked to identify the person who had started the fight.</p>
<p>The results found that eyewitnesses were susceptible to accepting false information from other witnesses and would then include the “evidence” in their own statements. One cause of this suggestibility was due to participants doubting their own judgement after being exposed to the contradicting information. But we also found that eyewitnesses had genuinely convinced themselves they too had witnessed this false information. </p>
<h2>Rethinking the evidence</h2>
<p>In the group without any actors, 32% of participants gave incorrect statements – which was put down to factors such as poor eyesight and memory. But when actors were planted in the group, 52% of the “real” participants gave an incorrect statement. And worryingly, when more than two actors were planted in a group, almost 80% of the participants ended up giving the same incorrect statement and identifying an innocent man as the culprit. </p>
<p>Our experiment also found that people with submissive and neurotic personalities were far more likely to relay false information in such a setting – as it may be that these types of people are more susceptible to this type of inadvertent manipulation. </p>
<p>What all this shows is that witness testimony is one of the least reliable forms of evidence. And this is why we are now using our research to help identify ways the police can prevent eyewitnesses from relaying false information.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/177879/original/file-20170712-19645-qd8kau.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/177879/original/file-20170712-19645-qd8kau.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/177879/original/file-20170712-19645-qd8kau.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/177879/original/file-20170712-19645-qd8kau.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/177879/original/file-20170712-19645-qd8kau.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/177879/original/file-20170712-19645-qd8kau.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/177879/original/file-20170712-19645-qd8kau.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Not such an expert after all.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<p>Going back to the famous example of Making a Murderer, the chances are that in the case of Avery’s first conviction, the witness did not intentionally fabricate her identification. Instead, constant exposure to misinformation by the police after the event <a href="https://www.theguardian.com/commentisfree/2016/jan/06/making-a-murder-netflix-series-miscarriages-of-justice-are-not-at-all-rare">contaminated her original memory </a> of what happened. And subsequently, her failure to correctly differentiate between what she witnessed and what she later found out will have led her to believe Avery was indeed the assailant. </p>
<p>Avery was originally sentenced to 32 years in prison for a wrongful sexual assault conviction, of which he served 18. Who knows how many people are serving just as long behind bars because of someone’s well-meaning but false identification.</p><img src="https://counter.theconversation.com/content/67663/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dara Mojtahedi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Turns out eyewitness testimony is one of the least reliable forms of evidence.Dara Mojtahedi, Lecturer, University of HuddersfieldLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/739752017-03-07T16:32:41Z2017-03-07T16:32:41ZOur study suggests alcohol may actually protect eyewitness memory – here’s how<figure><img src="https://images.theconversation.com/files/159806/original/image-20170307-14963-176xqcd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Memory preserving serum?</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File%3AOxford_-_The_Bear_Inn_-_0556.jpg">Jorge Royan/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-sa/4.0/">CC BY-NC-SA</a></span></figcaption></figure><p>Ever witnessed a punch up during a boozy night out? Did you assume that you probably wouldn’t be a reliable witness because you’d been drinking? You may have been right, but our latest research indicates that in some circumstances this is not the case.</p>
<p>There is a strong link between alcohol and crime. According to the <a href="http://webarchive.nationalarchives.gov.uk/20160105160709/http://www.ons.gov.uk/ons/rel/crime-stats/crime-statistics/focus-on-violent-crime-and-sexual-offences--2013-14/rpt-chapter-5.html">Crime Survey for England and Wales</a>, 70% of public violent incidents in 2013-14 were alcohol related and 93% of those happened in pubs, bars and clubs where alcohol is sold. Given these numbers, it is likely that many witnesses and victims will be under the influence when they witness a crime. But are drunk witnesses always less reliable than sober ones?</p>
<p>In certain situations alcohol can have a beneficial effect on memory. Our study, <a href="http://rdcu.be/pm7O">published in Psychopharmacology</a>, shows that if alcohol is consumed after witnessing a crime it can protect memory from misleading information.</p>
<p>The 83 participants in our study watched a video of a staged theft, where a man and a woman entered a house and stole some jewellery, money and a laptop. The robbers then swiftly left the property, before the homeowner could stop them. </p>
<p>After watching the film, participants were split into three groups. Members of the first group were given alcohol and were aware that they had been given it. The second group were told they would be drinking non-alcoholic beer, but in fact did drink alcohol (the purpose of this was to ensure as far as possible that it was the effect of the alcohol itself and not expectations about the effect of alcohol that would cause any effects). And the third group did not get any alcohol and knew they were not drinking. </p>
<p>On average, participants did not exceed the English drink-drive limit of 80mg of alcohol per 100ml of blood. All participants were then exposed to some fake information about the crime video. For example, it was suggested that the victim’s jumper was green instead of blue and the thief’s hair was brown instead of black. The following day, all participants returned to the lab when sober and their memory about the crime was tested.</p>
<h2>Drunks are better than their reputation</h2>
<p>While <a href="https://www.researchgate.net/publication/275102965_Alcohol_Intoxication_Impairs_Memory_and_Increases_Suggestibility_for_a_Mock_Crime_A_Field_Study">previous research</a> suggests that alcohol may harm memory and make people more suggestible, our study found that those who did not drink alcohol were more likely to remember false information compared with those who had, whether they knew they were consuming alcohol or not.</p>
<p>We think this is because alcohol blocks new incoming information, including misinformation, so it is less likely to have a negative impact on what was witnessed.</p>
<p>Worryingly, not only were our sober witnesses more suggestible to misinformation than our alcohol consumers, but, when they were asked, they also expressed greater willingness to testify these incorrect responses in a court of law.</p>
<p>Our research challenges the intuitive view that alcohol is bad for eyewitness memory recall by showing that, in fact, it can be the timing of alcohol consumption that is important when it comes to determining how accurate and reliable inebriated witnesses are. Although we still don’t know the effects of different volumes of alcohol on the reliability of eyewitness testimony.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/159771/original/image-20170307-14966-5hk3gf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/159771/original/image-20170307-14966-5hk3gf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/159771/original/image-20170307-14966-5hk3gf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/159771/original/image-20170307-14966-5hk3gf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/159771/original/image-20170307-14966-5hk3gf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/159771/original/image-20170307-14966-5hk3gf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/159771/original/image-20170307-14966-5hk3gf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">It may be too soon to tear up the rule book on inebriated witnesses.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/186812807?src=dG5C6Ak4HVi0eipfPsUjNg-1-0&size=medium_jpg">Andrey_Popov/Shutterstock.com</a></span>
</figcaption>
</figure>
<p>It is perhaps too soon for police officers, lawyers and judges to tear up the rule book regarding inebriated witnesses. We are fully aware that further research is needed to explore the exact reasons why in certain situations alcohol may protect our memory from misinformation and whether this happens in more realistic situations too, for example, when people have consumed larger volumes of alcohol than they did in our study.</p>
<p>The theory underpinning our findings could also explain that horrible feeling heavy drinkers get the morning after the night before, that they may have said or done something they can’t remember, as alcohol seems to prevent new information from entering our memory.</p><img src="https://counter.theconversation.com/content/73975/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julie Gawrylowicz has received funding from the British Academy and The Leverhulme Trust.</span></em></p><p class="fine-print"><em><span>Ian Albery has received funding from the British Academy and Leverhulme Trust, Alcohol Research U.K. And Cancer Research U.K. </span></em></p><p class="fine-print"><em><span>Anne Ridley does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If you believe intoxicated people always give unreliable eyewitness testimonies, think again.Julie Gawrylowicz, Lecturer in Psychology, Glasgow Caledonian UniversityAnne Ridley, Visiting associate professor, London South Bank UniversityIan Albery, Professor of Psychology, London South Bank UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/672542016-10-27T14:47:53Z2016-10-27T14:47:53ZWhy eyewitnesses give false evidence – and how we can stop them<p>In October 2004, a rumour of a gang fight circulated on an east London estate and a large crowd of around 50 young people gathered to take part. During the melee, one youth received a fatal blow from a sharp object and the attackers fled on their bicycles. This tragedy left one young man dead and another, Sam Hallam, <a href="http://news.bbc.co.uk/1/hi/england/london/4463530.stm">convicted of murder</a> – wrongly, as it later turned out.</p>
<p>Eyewitness evidence lay at the heart of this case. One witness picked Hallam out of a police lineup while another identified him in an interview. Yet both these testimonies were later shown to be false and eventually – after seven years in prison – Sam Hallam had his conviction quashed and <a href="http://www.bbc.co.uk/news/uk-england-london-18102336">he was released</a>. For all the importance of eyewitness testimony to the justice system, witnesses can and do get things wrong. Understanding exactly why could help us reduce the chances of further miscarriages of justice.</p>
<p>One obvious reason why witnesses make mistakes is that the conditions of an event may not produce very strong memories. The Hallam case provides a good example of such poor conditions: the incident unfolded rapidly, a weapon was involved, it was distressing and some of the perpetrators had the hoods of their hoodies pulled up to hide their faces. These so-called <a href="http://law.jrank.org/pages/1157/Eyewitness-Identification-Psychological-Aspects-distinction-between-estimator-variables-system-variables.html">estimator variables</a> can affect how reliable a witness’s memory is.</p>
<p>Memories can also be influenced by other people, for example if a witness discusses the event with someone else afterwards, <a href="http://cdp.sagepub.com/content/18/3/174.abstract">particularly other witnesses</a>. <a href="https://www.judiciary.gov.uk/judgments/sam-hallam-judgment-17052012/">For example</a>, Witness 1 in the Hallam case initially told police that they had seen a black man brandishing a baseball bat at the scene of the incident. Despite this, they then picked out the white male they knew as Hallam from an identification parade. In cross-examination, the witness later admitted that they selected Hallam after they had <a href="http://www.independent.co.uk/news/uk/crime/sam-hallam-i-need-time-to-recover-from-the-last-seven-years-man-jailed-for-murder-has-conviction-7764000.html">heard a rumour</a> that he was involved.</p>
<p>Similarly, Witness 2 gave a detailed description of the baseball bat in their first interview but made no mention of having seen Hallam at the scene until a second interview. It turned out this was only after the rumour that Hallam was involved circulated.</p>
<p>Leading questions from interviewers can also plant the <a href="https://www.ted.com/talks/elizabeth_loftus_the_fiction_of_memory?language=en">seeds of a false memory</a> in witnesses’ minds. For example, when Witness 1 picked Hallam out of the police lineup, this was mistakenly treated as evidence that they had identified him as holding the baseball bat. It appears that two leading questions from the interviewing officers <a href="http://www.thelawpages.com/court-cases/Sam-Hallam-8230-1.law">contributed to this misunderstanding</a>. </p>
<p>This can happen when investigators have become biased against a particular suspect and focus on a single theory that fits with or confirms the evidence at hand, rather than considering alternative possibilities. On top of this, the <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1559-1816.2007.00175.x/abstract">expectations and motivation</a> of an interviewer to get information can alter the perception and weight that is given to a witness statement. </p>
<h2>Innocent until proven guilty?</h2>
<p>Investigator bias may have also played a part in the wrongful conviction of Barry George for the <a href="http://news.bbc.co.uk/1/hi/uk/7536815.stm">murder of TV presenter Jill Dando</a>. Once again, eyewitness evidence supporting the hypothesis that George was responsible played a primary role <a href="http://netk.net.au/UK/George.asp">in court</a>. The poor quality of the eyewitness evidence presented at trial was overlooked.</p>
<p>For example, a couple of witnesses had learned where the suspect was positioned in the lineup. They were also allowed to give evidence in the form of a partial identification, despite the fact that that they had <a href="https://www.theguardian.com/media/2002/jul/16/broadcasting.jilldando">failed to identify George</a> in a formal video identification procedure. When witnesses talk to each other they may come to agree on what they saw, and research shows <a href="http://onlinelibrary.wiley.com/doi/10.1002/acp.1037/abstract">feedback from other witnesses</a> can inflate their confidence in court. </p>
<p>These cases remind us that the principle that every suspect should be <a href="http://defensewiki.ibj.org/index.php/Presumption_of_Innocence">presumed innocent</a> until proven guilty should apply at all stages of criminal proceedings. The burden of proving a suspect’s guilt is on the prosecuting team, who have a responsibility to <a href="https://www.fairtrials.org/about-us/the-right-to-a-fair-trial/the-presumption-of-innocence/">ensure a fair trial</a> and that means following procedures to reduce mistaken eyewitness identifications.</p>
<p>Specifically, investigators and lawyers have the responsibility to make sure individual witnesses do not come into contact with each other. But more than this, investigators should consider theories and evidence that may lead them to conclude the suspect is innocent. And where problems with eyewitness evidence do occur, the jury in the trial should be alerted. Without such safeguards, evidence based on eyewitness errors will continue to make its way into trials and more serious miscarriages of justice will occur.</p><img src="https://counter.theconversation.com/content/67254/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amina Memon has received funding from ESRC, Nuffield and Leverhulme Trust. They are a trustee for the Centre for the Study of Emotion and the Law, on the project advisory for Asylum Aid and research and ethics board for Freedom from Torture. </span></em></p>Your memory of an event can be manipulated – and miscarriages of justice can follow.Amina Memon, Professor of Psychology, Royal Holloway University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/638872016-08-17T20:22:33Z2016-08-17T20:22:33ZCan photos on social media lead to mistaken identity in court cases?<figure><img src="https://images.theconversation.com/files/134071/original/image-20160815-15277-1fyiuqn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">What face do you see?</span> <span class="attribution"><span class="source">Shutterstock/Zurijeta</span></span></figcaption></figure><p>When it comes to identifying someone allegedly involved in a crime there can be risks associated with seeing photos of people on Facebook and other social media, as the recent case involving convicted killer Adrian Bayley highlights.</p>
<p>Bayley was arrested in 2012 for the rape and murder of ABC journalist Jill Meagher. He later <a href="http://www.abc.net.au/news/2013-04-05/adrian-bayley-pleads-guilty-to-jill-meagher-murder/4611058">pleaded guilty in 2013</a> and was sentenced to a minimum term of 35 years.</p>
<p>In 2014 and 2015, Bayley was <a href="http://www.theage.com.au/victoria/adrian-bayley-found-guilty-of-raping-three-women-before-he-raped-and-murdered-jill-meagher-20150320-1m3otn.html">found guilty of raping three other women</a>. The first incident was alleged to have taken place in 2000 and the other two were in 2012, only months before he killed Meagher.</p>
<p>As a result of these new convictions his sentence was extended so he was <a href="http://www.abc.net.au/news/2015-05-28/adrian-bayley-minimum-prison-term-extended-10-years-over-rapes/6502986">ineligible for parole until 2058</a>.</p>
<h2>Beyond reasonable doubt?</h2>
<p>But last month, the Victorian Court of Appeal <a href="http://www.supremecourt.vic.gov.au/home/law+and+practice/judgments+and+sentences/judgment+summaries/judgment+summary+bayley+v+the+queen">overturned one of Bayley’s new convictions</a> and <a href="https://www.theguardian.com/australia-news/2016/jul/13/jill-meagher-murderer-adrian-bayleys-jail-term-cut-by-three-years-on-appeal">cut his minimum sentence by three years</a>.</p>
<p>The victim of the attack in 2000, identified as GH to protect her identity, was a sex worker at the time.</p>
<p>The prosecution alleged that Bayley had picked up GH in his car, punched her to the side of her face and then sexually assaulted her. Bayley’s defence was that it wasn’t him, and the victim had made a mistake in identifying him as her attacker.</p>
<p>She initially identified Bayley during the media storm surrounding Meagher’s death, 12 years after her attack. She was on Facebook and saw a missing persons page for Meagher when, <a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2016/160.html">according to her evidence</a>:</p>
<blockquote>
<p>[…] all of a sudden I’ve seen Adrian Bayley’s face and I knew, a hundred percent, that’s my guy.</p>
</blockquote>
<p>Police then conducted a formal photo board procedure with her and showed her a board with around 12 photographs on it, one of which was Bayley. She positively identified him again during that procedure.</p>
<p>At trial, <a href="http://www.austlii.edu.au/au/cases/vic/VCC/2015/698.html">the jury accepted GH’s evidence and convicted Bayley</a>. He then appealed to the Court of Appeal, arguing that no reasonable jury could have found him guilty beyond reasonable doubt.</p>
<p>His argument was that the initial circumstances of the victim identifying him via Facebook were too unreliable, and that the later ID by police was therefore unreliable as well.</p>
<h2>The displacement effect</h2>
<p><a href="http://www.austlii.edu.au/au/cases/vic/VSCA/2016/160.html">The appeal court agreed</a>, saying there was too great a risk that her ID was tainted by a phenomenon known as the displacement effect.</p>
<p>This effect is one of the ways in which post-event information can change how we remember an event happening, our brains subconsciously tricking our memory.</p>
<p>The American cognitive psychologist Elizabeth Loftus, <a href="http://edition.cnn.com/2013/05/18/health/lifeswork-loftus-memory-malleability/">famous for her research on false memories</a>, has shown that hearing someone else describe a person a particular way can then <a href="https://webfiles.uci.edu/eloftus/LoftusGreeneLHB1980.pdf?uniq=rseqtl">cause us to describe that person the same way</a>, even if that description isn’t accurate.</p>
<p>The displacement effect more specifically involves visual misinformation: seeing a person after an event (in a photo, video or real life), linking them to that event for some reason, and then falsely remembering them as having been involved.</p>
<p>Imagine, for example, that you see a fight outside your local pub one night. You don’t know anyone who was involved, but police want to interview you to see if you can identify anyone. You agree to attend the police station in a day or so.</p>
<p>Before you go into the police station, a friend comes over to your house, opens up their Facebook app on their phone, and shows you images of who they believe was involved in the fight.</p>
<p>From the moment that you see that photo, there is a risk – not a guarantee, but definitely a risk – that you have superimposed the face from that photo into your memory of the fight.</p>
<p>You might now confidently remember the person from the photo as being the person involved in the fight. And you might be right. The problem is that because you were expecting to see the culprit, your mind might have altered your memory without you realising it.</p>
<p>Our memory is <a href="http://www.theatlantic.com/health/archive/2012/03/memory-is-not-a-recording-device-the-science-of-remembering/253881/">not a perfect recording device</a>. The displacement effect, a process whereby a new face is displaced onto an old memory, is like our brain Photoshopping our memory.</p>
<h2>Facebook and the displacement effect</h2>
<p>Prior to Facebook becoming such a daily part of our lives, the displacement effect wasn’t a huge problem. We didn’t have access to mass databases of photographs of people we may or may not know.</p>
<p>But that’s all changed through social media. We now have access to photos of friends, photos of friends of friends as well as photos of strangers. There are exponentially more opportunities for us to go on our own amateur investigation and try to find the culprit.</p>
<p>This means that eyewitness identifications might be even more unreliable than ever, already accounting for <a href="http://www.innocenceproject.org/causes/eyewitness-misidentification/">more than two-thirds of wrongful convictions</a> in the United States alone.</p>
<p>Courts need to be extra careful to scrutinise the circumstances in which someone has identified an accused. If the initial identification took place under suggestive circumstances, such as a witness trawling Facebook in the hopes of identifying the offender, their identification may not reach the standard needed to be used as evidence.</p>
<p>Using Facebook to find a culprit can be a double-edged sword, then. It offers us an entirely new way to identify who committed the crime, but it may be that the evidence becomes unusable in the process.</p>
<p>The circumstances in which the displacement effect will pose a particularly dangerous risk are when we actively try to find the person. The reason this is particularly dangerous is because, at least in part, we are expecting to succeed.</p>
<p>So a word of caution. Police have special procedures in place that help minimise the risk of mistakes during identifications. If you see a crime, don’t look at Facebook or other social media until you’ve had a chance to work with police. Otherwise you might end up doing more harm than good.</p><img src="https://counter.theconversation.com/content/63887/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Paul McGorrery does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s a concern that images posted on social media run the risk of disrupting the accurate identification of people allegedly involved in a crime.Dr Paul McGorrery, PhD Candidate (Criminal Law), Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/498612015-12-14T15:55:51Z2015-12-14T15:55:51ZWhy some types of leading question should be banned from court<figure><img src="https://images.theconversation.com/files/104297/original/image-20151203-29636-ngll2n.jpg?ixlib=rb-1.1.0&rect=3%2C90%2C1011%2C677&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Are leading questions swaying the scales of justice?</span> <span class="attribution"><a class="source" href="http://www.blogtrepreneur.com/media-justice/">mikecogh/flickr.com via http://www.blogtrepreneur.com/media-justice/</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>If you were asked one of the following two questions by a lawyer on the witness stand, would you feel like you were being led to answer in a certain way? “Did he touch you?” or “He didn’t touch you, did he?”</p>
<p>A leading question is one which prompts an interviewee to answer in a particular way. While they may be important to the process of examination in court, and barristers are taught to use them, <a href="http://repository.liv.ac.uk/2008915/">identifying leading questions can be difficult.</a> </p>
<p>If you take the example above, both are technically leading questions. But it is the second – “He didn’t touch you, did he?” – which I would argue is particularly pernicious. It is known as a “directive form question” and can be more damaging to the accuracy of witness reports. The other question – “Did he touch you?” – is what’s called a “non-directive” leading question. A non-leading question would be simply: “Did anything happen?”. </p>
<p>My research shows that directive forms of leading questioning are a primary concern in cross examination. But there is a problem with the way the law in England and Wales defines leading questions. The law <a href="http://readinglists.brunel.ac.uk/items/55AB302F-A816-EC5C-BC77-1E0078C6B2BA.html">needs refinement and revision</a> and I <a href="http://repository.liv.ac.uk/2008915/">argue</a> that direct leading questions should be prohibited in cross-examination. </p>
<p>In 2013, <a href="http://www.bbc.co.uk/news/uk-england-28489500">violinist Frances Andrade</a> was found dead after giving evidence against her former teacher who was later found guilty of indecently assaulting his pupil. In court, Andrade was called a <a href="http://www.bbc.co.uk/news/uk-england-21387399">“liar” and a “fantasist”</a> under cross-examination. By <a href="http://www.theguardian.com/society/2013/apr/13/rape-sexual-assault-frances-andrade-court">putting the question</a>: “Utter fantasy, is it not?” to her in cross-examination, she was subjected to a direct form of leading question. </p>
<p>Andrade, texted a friend three days before her death to say she felt like she had been <a href="http://www.theguardian.com/society/2013/apr/13/rape-sexual-assault-frances-andrade-court">“raped all over again”</a> <a href="http://www.theguardian.com/uk/2013/feb/10/frances-andrade-killed-herself-lying">after appearing in the witness box at Manchester Crown Court</a>. This is just one of a number of high-profile cases in which vulnerable witnesses have had to relive experiences in detail under cross-examination in court. </p>
<p>Her husband, Levine Andrade, said in an interview after her death that he hoped an improvement in the law could be her legacy. “I hope they can change the law,” <a href="http://www.dailymail.co.uk/news/article-2276229/Frances-Andrade-Husbands-anguished-account-abused-wife-spiralled-suicide-court-ordeal.html">he said</a> in an interview with the Mail on Sunday. “Fran felt as if she was on trial. She kept saying, ‘I can see why nobody comes forward. I can see how people crack under the pressure.’”</p>
<h2>Setting ground rules</h2>
<p>In 2014, the case prompted exploration of a way to <a href="http://www.telegraph.co.uk/news/10994279/Frances-Andrade-case-prompts-review-of-the-treatment-of-victims.html">rebalance the legal process.</a> One way to assist those vulnerable to give evidence is by use of <a href="http://login.westlaw.co.uk/maf/wluk/ext/app/document?docguid=IE1780621F40911E488659AF6C025C41A&crumb-action=reset">ground rules hearings.</a> This kind of process sets out what considerations and provisions might be required so that cases can be dealt with justly. In doing so, ground rules may provide a framework for the appropriate questioning of a vulnerable witness. But this process does not assist all witnesses who are required to give evidence in court.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/104298/original/image-20151203-20682-1spzu0t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/104298/original/image-20151203-20682-1spzu0t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/104298/original/image-20151203-20682-1spzu0t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/104298/original/image-20151203-20682-1spzu0t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/104298/original/image-20151203-20682-1spzu0t.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/104298/original/image-20151203-20682-1spzu0t.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/104298/original/image-20151203-20682-1spzu0t.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Be prepared.</span>
<span class="attribution"><span class="source">aerogondo2/www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>It is important that the aim of a trial is achieved, and that witnesses are assisted to give their most accurate testimony to the court. Real-life cases, as illustrated in the case of Andrade, and <a href="http://epj.sagepub.com/content/14/3/187">research</a> into the <a href="http://dx.doi.org/10.1080/15564880903048529">damaging effects</a> of leading questions calls into question the accuracy of witness reports.</p>
<p>It is essential that the balance between testing how reliable a witness is and testing their accuracy is maintained so as not to undermine the right of the defence to challenge the evidence. Barristers will therefore use leading questions – some of them “direct” ones – during a trial to obtain particular information that they need confirmed. </p>
<p>In 2010, <a href="http://connection.ebscohost.com/c/articles/51978907/effectiveness-witness-preparation-cross-examination-non-directive-directive-leading-question-styles-witness-accuracy-confidence">research I worked on</a> showed that the directive leading form, as used in cross examination, had clear detrimental effects on robust witness accuracy by making them tell a mistruth. Providing examples of the directive leading style to witnesses as simple advance preparation, however, helped them to be more confident in giving accurate answers.</p>
<p>Legal understanding and definition of the leading question needs refinement and revision. The current approach in England and Wales to leading questions does not assist or promote the accuracy of all witness evidence – nor does it encourage all witnesses to give of their best. Redefinition of the leading question, and banning directive leading questions, will enhance the fact-finding aims of the trial process.</p><img src="https://counter.theconversation.com/content/49861/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jacqueline Wheatcroft receives funding from the Arts and Humanities Research Council and is affiliated with the British Psychological Society. </span></em></p>Would you know if you were being asked a leading question?Jacqueline Wheatcroft, Registered Forensic Psychologist, Institute of Psychology, Health and Society, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/346922014-11-30T22:12:17Z2014-11-30T22:12:17ZVagaries of memory mean eyewitness testimony isn’t perfect<figure><img src="https://images.theconversation.com/files/65867/original/image-20141130-20606-1f9fm10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Police often rely on witnesses to finger the right guy, but eyewitnesses are far from perfect.</span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic.mhtml?id=121070422&src=lb-29877982">Lineup image via www.shutterstock.com.</a></span></figcaption></figure><p>Twenty eyewitnesses testified before the grand jury investigating the police shooting of Michael Brown in Ferguson, Missouri. None of these accounts is fully consistent with any other. Moreover, eyewitnesses even gave accounts that do not agree with their own earlier versions. To the public and the media, these discrepancies have been startling. </p>
<p>But psychological scientists who study human perception and memory are not surprised at all. In fact, had there been good agreement among the various witnesses, psychological scientists would have been very suspicious and speculated that something was amiss. Those of us who study eyewitness memory have long observed that these accounts are far less reliable than people – including the eyewitnesses themselves – tend to believe. </p>
<h2>Making a memory</h2>
<p>What causes these memory errors? In order to report accurately on a witnessed event, the witness must successfully encode information on what he’s seen, store it as a memory and then retrieve it. Each of these three stages is complex and imperfect. The final memory report can be no better than the weakest part of each of the three stages.</p>
<p>Consider the encoding, or acquisition, stage. While witnessing an unexpected, complex event there is often confusion, distraction and fear. On top of this, there is an illusion of sorts that we are taking in the details of the scene. But studies show that the brain is actually primarily absorbing the gist of the scene and few of the details. This reflects a phenomenon called <a href="http://www.gocognitive.net/demo/change-blindness">change blindness</a> – people tend not to notice visual differences in the details of a scene. So what actually gets stored in the second stage of memory is full of gaps. The brain doesn’t like gaps, especially when there’s a need to understand what was just witnessed. These gaps are often filled in unconsciously with inferences, deductions or other processes that are not very reliable.</p>
<p>The groundbreaking work of cognitive psychologist <a href="http://www.holah.co.uk/summary/loftus/">Elizabeth Loftus</a> illustrates vividly how memory changes after the witnessed event as a function of externally-provided information – even when that information is false. This can result in false memories. What is stored in memory is not a stagnant picture or video of the event but a constantly-edited record that evolves. Since we tend not to be aware of the editing process, we end up believing that the reconstructed memory is what we actually saw.</p>
<p>Finally, we have to retrieve the memory and retrieval itself can alter it. Every time we retrieve a false memory – privately to ourselves or by telling another person – it tends to strengthen that false memory. In the end we have a full story of what we saw, one that we might very confidently believe but might have only a very distant relation to what actually happened.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=440&fit=crop&dpr=1 600w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=440&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=440&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=553&fit=crop&dpr=1 754w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=553&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/65869/original/image-20141130-20582-wit2y0.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=553&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Since the courts rely heavily on eyewitness testimony, they should stick to recommended best practices.</span>
<span class="attribution"><a class="source" href="http://commons.wikimedia.org/wiki/File:CourtEqualJustice.JPG">Matt H. Wade</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Fallible memories and the legal system</h2>
<p>There is good documentation of how eyewitness unreliability plays out in eyewitness identification – when a witness points to an individual and says “that’s who I saw commit the crime.” Since the 1970s, <a href="http://public.psych.iastate.edu/glwells/">my research program</a> has conducted controlled experiments that show how easily witnesses will pick the wrong person from a lineup. Then, with only the slightest reinforcement, they become convinced and highly confident in their mistaken identification. Making this mistake then causes their memory to change to fit the person they mistakenly identified. </p>
<p>This kind of mistaken eyewitness identification is not just a laboratory phenomenon: since the advent of forensic DNA testing in the 1990s, hundreds of innocent Americans who had been convicted by juries and served hard time (some even sentenced to death row) have been <a href="http://www.innocenceproject.org/">exonerated by DNA tests</a>. Tellingly, approximately 75% of those exonerations were cases involving mistaken eyewitness identification.</p>
<p>The legal system has been slow to respond to eyewitness science. Despite the fact that the legal system relies very heavily on eyewitnesses, the legal system has no theory of memory, law enforcement is not educated about the workings of memory, judges are not trained on how memory works (and does not work) and a large percentage of courtrooms do not permit expert testimony on the reliability of eyewitness memory. </p>
<h2>How best to use eyewitness testimony</h2>
<p>This year, however, a blue ribbon panel of the National Academy of Sciences conducted an extensive review of the science on eyewitness identification. Among other things, the <a href="https://doi.org/10.17226/18891">Academy’s report</a> calls for all law enforcement agencies to provide their officers and agents with training about vision and memory, practices for minimizing contamination of eyewitnesses, and the use of effective protocols for obtaining and preserving eyewitness accounts. The Academy report also calls for the use of expert testimony about eyewitness reliability in certain cases as well as jury instructions that might help jurors make more informed judgments about eyewitness reliability.</p>
<p>None of this should be taken as evidence that eyewitnesses are always wrong. Eyewitness testimony is a critical tool in the legal system for reconstructing what actually happened. Too many bad guys would go free if eyewitness memory were completely discarded as a tool. But the legal system needs a more sophisticated appreciation for the vagaries of memory, how to avoid contamination of eyewitness memory and the conditions under which eyewitness testimony is more and less trustworthy.</p><img src="https://counter.theconversation.com/content/34692/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gary Wells receives funding from: The National Science Foundation</span></em></p>Twenty eyewitnesses testified before the grand jury investigating the police shooting of Michael Brown in Ferguson, Missouri. None of these accounts is fully consistent with any other. Moreover, eyewitnesses…Gary Wells, Professor of Psychology, Iowa State UniversityLicensed as Creative Commons – attribution, no derivatives.