Transcript Eyewitness Identification1 - Edmonton`s Criminal Defence Lawyers

Eyewitness Identification
The Psychology
Deutcher/Leonoff
• bottom line, id witnesses can be wrong
• study 18% would convict on circumstantial
case; 72% circ plus one eyewitness; 68%
where eyewitness discredited on cross
(not wearing glasses)
Fundamentals of Eyewitness
Testimony
• jurors overbelieve eyewitness testimony (what
about US sniper and “white van”)
• combined with inherent unreliability of this
evidence
• Fact: the human mind is not a camera influenced by a number of environmental stimuli
and b/c of this accurate recall can be distorted at
the time of perception, retention and retrieval
• We subconsciously and consciously
screen an event (ie. in 1/10 of a sec, the
human mind can absorb 4 or 5 digits but
not 9)
• we therefore concentrate on a finite
number of factors and ignore others
Practice Point
• Explore factors influencing witness at each
of those stages: perception, retention and
retrieval - ie. a nervous breakdown since
making observation without a prior
consistent statement?
FACTORS AFFECTING
PERCEPTION: Related to the
event itself
Length of time of event, exposure time.
The longer we have to observe, the more details we can remember.
It is also important then to understand our ability to estimate the
length of time of an event. The duration of an event is usually
canvassed in a trial setting. Studies establish that people tend to
overestimate the length of time if there is great activity and
underestimate if there is little action. In an anxiety-producing
situation , time is perceived to pass more slowly, and in a stressful
situation, appears longer than it actually is. (experiment: PUT THEM
on a cart and wheeled them towards a flight of stairs). Loftus
showed a videotape of a 32 second robbery: average estimate: 2
minutes, 32 seconds. 3% of the females provided estimates
exceeding 15 minutes.
• Seriousness of crime. Works both ways.
When a person knows they are witnessing
a significant event, then accuracy
increases to a point. But once that event
creates a certain level of arousal,
perception performance begins to decline.
• Environmental Factors. Lighting
conditions, distance, obstructions.
Factors Related to Perception:
Related to the witness
stress. Videotape of mugging or non-violent crime. Only
27% of people could accurately identify photo from array.
Testimony of witnesses from non-violent event much
better. Face identification inherently unreliable. In times
of stress, the brain’s ability to encode is reduced, and
memory is impaired. In times of stress, tendency to block
out any external stimuli and concentrate on that which
causes the greatest amount of stress - ie. “weapon
fixation”, tendency to focus on a weapon and ignore
details in the environment (identity); or concentration on
escape route, or assailant’s hands. POINT: our eyes are
not a wide-angle lens capturing a maze of detail. The
brain has limited capacity.
expectations. WE SEE WHAT WE WANT
TO SEE. Experiment with groups of
students watching same violent football
game involving their own schools - they
appeared to be watching two different
games. Like our inability to proofread
ourselves. 80% of people shown word
“dack”: write down “duck.”
Age. Spontaneous recall increases with
age. Young children recall less detail, but
what they recall is no less accurate. At age
6 the ability to recognize a previously
unfamiliar face is only slightly above
chance. Past age 12, children perform
equally to adults. Under 13, tendency to
guess, rather than admit lack of
knowledge. The elderly tend to be
cautious in making an id.
• Sex. Women slightly better than men in face
recognition. Men better at identifying cars.
• Alcohol and Drugs. Different drugs affect
differently. Alcohol affects acquisition. Marijuana
affects time perception, and affects short term to
long term memory. Marijuana, amphetameines,
LSD, lengthens perceived duration. Call
pharmacologist, use pharmacological guide to
look up effects of medication, cross witness
thereon.
FACTORS AFFECTING
RETENTION AND RETRIEVAL
• Once an event has been coded into memory, the
process of forgetting begins. New events must be stored
in memory, old memory interfered with or obliterated.
FORGETTING is initially rapid, then becomes more
gradual. IDENT PROCEDURES held several days,
weeks, or months of a crime are of suspect validity.
Further, if a witness becomes more detailed at trial than
he or she was at an earlier stage, additional details must
be considered suspect. It is likely that the additional
details have been added unconsciously, either from
another source or through the brain’s own unconscious
modification of memory. SO STRATEGY: close cross of
what was provided at time or written down.
• Post-event Information: Memory like perception is an
active process and memories can be altered or replaced
by the introduction of new material. Once altered, the
original memory is lost, or at least very difficult to locate.
• Study. Subjects view group of people. One and a half
hours to 3 days, they see a photo array, asked to
choose. 4 to 7 days, asked to view a live lineup. Found:
subjects EQUALLY as likely to identify person seen in
photo as they were to identify a live target. THE FACES
VIEWED IN THE PHOTOGRAPH had supplanted the
original observation. So STRATEGY: show tainting
since original observation, ie. the one-person or the
photo.
• “Looks like” or “may be” at time of photo lineup becomes
“certainty” at trial. SUBSEQUENT identification at
lineups or in a courtroom are then of no use.
• Study: witnesses will incorporate false information into
their accounts if it comes from a credible source.
• POST-EVENT INFO from witness, press, police. Once
altered, the witness quite HONESTLY will be unable to
distinguish the post-event info from the original memory.
Note
• Children are more susceptible to postevent questioning.
• If interested in truth, important to use
neutral, unbiased questioning.
• Unconscious Modification/Transference: by the brain
to eliminate uncertainties and inconsistencies; fulfilling
desire to help. Repetition establishes the answer in the
mind. This explains the witness who between prelim and
trial becomes more certain or adds more detail. The
memory gaps filled in by guesses have now been
cemented in memory. THE WITNESS MAY REPORT
THIS AS BEING DUE TO EXTRA THOUGHT OR
CONCENTRATION, but since MEMORY DOES NOT
IMPROVE WITH TIME, it is likely attributable to
unconscious memory modification.
FACTORS RELATING TO
RETRIEVAL
• Questioning and context cues. Free recall, where the person
provides a narrative without assistance, is the process free of bias it provides the most accurate information. Leading questions have a
massive impact on the final report.
• Hypnosis. People can lie while hypnotized, even having taken
sodium pentothal, and pass lie detector tests.
• Author cites authority for proposition that memories first revealed
under hypnosis should be excluded. No way to know if witness is
reporting reality of fantasy. Argues its an issue of competence. Ie.
inability to separate fact from fiction therefore impossible to give that
evidence any weight, If it can’t be given any weight, then more
prejudicial than probative.
PRE-TRIAL IDENTIFICATION
TECHNIQUES
• Ability to recognize a face is directly related to
the frequency of exposure. STRATEGY: explore
number of times witness may have
seen/interacted with suspect.
• Humans can form a good memory trace after a
few exposures to people with whom they have
talked and interacted. Mere exposure, however,
creates a poor memory trace, even after a few
exposures. Witnesses have a tendency to
remember hair color, style, presence of glasses
and facial hair.
• Cross-racial identification: general rule people can identify faces of their own race
better.
• Delay: time is of the essence in face recognition. Within
5 minutes of viewing an unfamiliar face, a good portion
of the memory trace is gone. More gradual loss over
next 48 hours. By this time, most of the memory trace is
gone. Tests should be done within 48 hours.
• Confrontations. Involves presenting a single suspect to
a witness and asking the witness to attempt an
identification. Highly suggestive. Any doubt in witness’
mind may be overcome by the powerful suggestion that
the police have captured the guilty party. Any gaps in
memory are filled in with the face of the suspect. The
witness is then entirely unable to separate the original
memory from that supplanted by this procedure.
• Lineups and photo arrays. Most witnesses realize that
if the police have gone to the trouble of assembling the
lineup or photo array, they must have a suspect in mind.
The witnesses will try hard to find a match between their
memory and the person in the lineup or photo before
them. Failing that, and using a process of elimination,
the witness may choose the one that most clearly
resembles their recollection of the criminal.
• A lineup must be fair. Fairness in composition is tested
by deciding if all foils ARE PLAUSIBLE CHOICE
ALTERNATIVES. If a foil does not match a witness’
description in any important detail, then that person is
eliminated as a plausible choice. E.g. age, race.
• If a lineup or photo array is fair, a witness who observed
the offender should be able to make an identification, but
a person who merely reads the description given by the
witness should not be able to make an identification with
a probability greater than chance. If the random people
eliminate foils because of hair color or size, unfair. R. v.
Shatford: eyewitness to a robbery description of accused
- rather good looking. A random group were able to pick
accused from the lineup as the best looking. 11 out of 21
subjects chose him from lineup. Lineup unfair. If fair,
would only have been picked one or two times.
• Importance of instruction that suspect may not be in
lineup (o/wise 100% will pick).
• Therefore: witness should be told suspect may not be
present in the lineup or photo array, and should be
cautioned against guessing. Witness should be asked if
she can make a positive identification, NOT “does
anyone look familiar?” or “is anyone closest.” So
Strategy: ask not only p.o. who did lineup what was
asked, but also id witness how they took the
instruction. In my experience, they either do not
remember, or they took instruction a different way (oh
yeah, we knew he was going to be in there).
• Look for other cues in lineups. E.g. other officers used as
foils in lineups, diverting their eyes, or move slightly
away. Their gait or posture may set them aside from the
suspect.
• The photo array in Sophonow contained one candid shot
of the accused taken indoors and seven photos clearly
discernible as police mugshots. Other cues can be more
subtle.
• Knowledge of severe consequences to accused did not
prevent 73% choosing inaccurately.
ASSESSING CREDIBILITY
(1) CONFIDENCE - the issue with an eyewitness is
reliability, rarely veracity. THERE IS NO positive
correlation between confidence and accuracy. A
confident witness is just as likely to be wrong. Accuracy
is a product of the quality of the perception, retention,
and retrieval of the information. Confidence is a product
of psychological and social variables that influence the
witness - e.g. studies show that witness confidence
increases with knowledge that cross-examination will
take place. It is also increased by positive feedback by
police and prosecutors. All entirely unrelated to accuracy.
Only 37% of lawyers and judges are aware of this fact.
(2) DETAIL - no correlation between ability
to provide details of description, and
making a correct identification - different
cognitive functions control verbal recall
and visual recognition.
(3) TRAINING - 65% of Cdn judges and
lawyers believe that an eyewitness id
made by a police officer is superior to that
of a store clerk. Training is ineffective in
the area of face recognition. There are
people out there with good visual
memories, but hard to find out through
them, as people are poor judges of heir
own visual memories.
PSYCHOLOGIST AS WITNESS
• Usual tool to expose weakness in evidence:
cross. But not necessarily helpful in all these
area because witness is probably unaware of
effect on certain intangibles on their perception,
retention and recall.
• Research indicates that potential jurors have an
inadequate knowledge base concerning these
areas.
• General rule: such expert evidence, being within the
knowledge of the jury, is inadmissible - ie. not likely to be
outside their experience. They can form their own
conclusions without help. Sophonow No. 2, inadmissible
if of a general nature - ie. deterioration of memory with
time, must be specific to an issue at trial.
• Author: if literature establishes that human nature is
insufficient to appreciate the factors that influence the
eyewitness, the TOL should have a discretion to admit
the evidence if it will assist the jury.