The Effects of Eyewitness Testimony

in Today’s Judicial System.



PSY 397

Psychology and Law

Dr. Winslow



Article Critique Paper


Brent Barnes

                Throughout history the eyewitness has gained support and weight added to their testimony in our court system.  In this paper I will try to demonstrate the importance of not relying solely on their testimony because, as I will show, misidentification is more common than most in society believes.  Many research experiments have looked at this highly controversial topic and studied it from every possible angle.  What influences the eyewitness at the time of the event, are there any factors that may distort the viewer’s perspective, just how reliable is the human memory?  These questions and more are what will be covered and explained throughout this paper.

                In a court of law the eyewitnesses’ testimony of what happened can either make or break the case being presented.  The eyewitnesses’ confidence in their words can lead even the toughest jury to convict an innocent person. This confidence can persuade the jury to believe whatever it is that they are saying and give the false impersonation that what they are saying is actually the truth.  Our court system assumes that individuals’ memory can perform like a video in that they will be able to store information with precise clarity and without prejudice.  The current research on perception and memory does not validate this idea of a human recording device.  It generally states that the reliability of the human memory is far from perfect and can be influenced by many different factors that are occurring at the time of the event in question and even at times after the event.

                Noted in the current research on memory is the idea of unconscious transference, it states that eyewitnesses can place an innocent bystander at the scene of the crime or even as the accused, even when the accused is not present at the time.  The theory reports that memories of past events can interfere with the present memory.  The eyewitness might recall the accused individual from a scene that might have taken place more than three months ago, but still be able to place them as the accused with their own amount of confidence.  This is where every individual should take notice, this places the entire public at risk for being the accused!  This may not be entirely correct but it stands that the individual making the accusations will believe through suggestion that they are making the correct assumption and will then produce confidence in their statement, thus enabling others to believe what they are saying.  This just keeps snowballing to a point where the accused goes from being suspected of a crime to being convicted of committing the crime.  This is why I have chosen this topic to research and write about.  I feel that the public needs to be aware of the situation at hand and have the information given to them so they will be enabled to make the right decisions.  Most individuals will not be able to differentiate between a confident liar and the truth, given the information provided to them.  I have looked at different articles to find current information on the subject of eyewitness testimony and have found three relevant articles that I think will help to eliminate any confusion about the topic at hand.

                The first article is titled The Discrediting Effect in Eyewitness Testimony by Thomas Kennedy and Robert Haygood.  This article took into consideration previous experiments that examined the same topic and built upon the ones presented.  The study examined the findings reported by Loftus (1974) that had university students read a summary of a court case and decide if the defendant was guilty of not guilty.  In one condition only physical evidence was presented, in the second an eyewitness testified about the event and in the third condition the eyewitness testimony was discredited by the defense but subsequently reaffirmed by the eyewitness.  In these conditions Loftus found that 18% came to a guilty verdict in the physical evidence only condition, 72% found a guilty verdict with the eyewitnesses’ testimony and 68% still found the defendant guilty even when the eyewitness was discredited.  This previous research shows that  jurors not only place too much weight on eyewitness testimony, but rarely regard eyewitness testimony with any degree of skepticism.  This phenomenon has been called the “discrediting failure effect” and it appears to offer empirical evidence for the claim that jurors tend to overbelieve eyewitness testimony. 

                So in order to test this theory even farther the researchers in this article decided to add to this standing research.  They held three evidence conditions: no eyewitness, credible eyewitness, and discredited eyewitness.  Each had two levels of judicial instruction  (part had instructions while the other did not.).  Half the summaries in each condition contained judge’s instructions to the jury concerning the elements of the crime and the beyond-a-reasonable-doubt criterion of conviction and the other half contained no mention of judge’s instructions.  In all three conditions the defense presented a case that stated the defendant had been in the store the day of the robbery, that the money found in his home had accumulated over a six month period in order to buy a car, that his pistol had been stolen months before the robbery, and that he had been home at the time of the crime.  Evidence was also presented that no gun had been recovered at either the crime scene or at the home of the accused.

                The results of the experiment show that the percentage of guilty verdicts between conditions with and without judicial instructions did not yield a significant difference, similarly a gender comparison also yielded nonsignificant results.  However 27% found the defendant guilty in the no eyewitness condition, 42% in the credible eyewitness condition, and 19 % in the discredited eyewitness condition.  These results show that prospective jurors are able to distinguish between the credible eyewitness and the discredited eyewitness.  They placed more emphasis on the eyewitness whose testimony was upheld as compared to the eyewitness’s testimony that was discredited by the defense attorney.  This study provides strong support that discrediting an eyewitness will undermine the influence of that witness on the decision-making process.

                The second article is Gender Differences in Eyewitness Testimony by Butts, Mixon, Mulekar, and Bringmann.  This article looked at the differences in recall of memory of men and women and pitted the two against one another.  It was looking to see which group was more consistent with their answers when it came to recalling information learned only seconds before.  Earlier research on this topic had pointed out
that men were better at remembering facts and less influenced by misleading questions (Stern, 1903-1904).  Bringmann & Bringmann (1986) also found that men were better witnesses than women. 

                This experiment had forty subjects, evenly male and female, all of whom were undergraduate students who had volunteered for the experiment.  Each individual was given a picture of a family kitchen scene (pic 1) or a visually complex scene portraying a vehicle accident at a busy street corner, this picture contained many aspects such as numerous kinds of cars, animals, and people (pic 2).  Which scene they were presented with first was where the experiment varied.  Half were given picture #1 first and picture #2 last or vice versa.  After each picture they were given a questionnaire containing 10 questions, 5 were factual questions and 5 were leading questions.

                What they found suggested that gender had no significant effect on the recall of the material.  Both the males and the females were both equally able  to recall the same amount of information.  What they did find was that the first picture they were given to recall they remembered less about than when they were given the second picture and they were able to recall in more detail the answers to the questions concerning the second picture.  This is called the “priming effect” and is a common finding is memory research and has been described by numerous investigators (Collins & Loftus, 1975; et al...).

                The third and last article that I found is titled The Psychology of Eyewitness Testimony: A Comparison of Experts and Prospective Jurors by Saul Kassin and Kimberly Barndollar.  In this country, in order for an expert to be called to the stand for testimony the information provided by them must have general acceptance in the scientific community, the expert must be seen as qualified, the testimony must concern a subject that is not a matter of common knowledge, and the probative  value of the testimony must outweigh  its possible prejudicial impact on the jury.  This article looked at what the experts believe to be important factors influencing the eyewitness’s testimony and what the layperson believes to be important.  This information is important when considering that experts are accustomed to information that will help to decide between what is said and then disregarded or what is said and believed.  This research was designed to understand the lay beliefs about eyewitness testimony and then compare that to the beliefs held by the experts. 

                The researchers put together a list of 21 statements that the experts and the laypeople rated as being generally true or false.  These questions regarded the effects of certain aspects on eyewitness testimony.  Seventy nine subjects were presented with this list of statements, almost half were college students and the other half were people recruited from a local mall.  Some examples of certain topics and statements about them were: Stress - very high levels of stress impair the accuracy of eyewitness testimony, Exposure time - the less time an eyewitness has to observe an event, the less well he or she will remember it, Unconscious transference - eyewitnesses sometimes identify as a culprit someone they have seen in another situation or context.

                The results showed varying responses, most thought that eyewitness reports were influenced by the wording of a questions (89.9% layperson, 96.8% experts), attitudes and expectations (88.6% layperson and 86.9 % experts), and high levels of stress (82.3% layperson and 70.5 % experts).  But relatively few felt that eyewitness reports were influenced by exposure time (36.7% layperson and 84.7% experts), the violent nature of the event (27.8% layperson and 36.0% experts), and the sex of a witness (24.1 % layperson and 11.1 % experts).  The students and the nonstudent adults were highly similar in their responses, which shows that they do not significantly differ in their sensitivity to factors that affect eyewitness testimony.  Also noted is the relatively unheard of phenomena of the fairness of a lineup, effects of lineup instructions, show-ups, exposure time, the forgetting curve, cross-race biases, hypnotic suggestibility, and the color perception under monochromatic light by the students and the non students.  This suggests that under the court rule that all expert testimony must be of knowledge that is not common, these above aspects would be allowed to be covered in a court of law by expert testimony.  This study stated that it has provided a tentative list of eyewitness topics worthy of expert testimony or scientifically-informed cautionary instructions from the judge.  This research indicated that expert testimony may lead jurors to become more critical of eyewitness evidence and more aware of the factors that influence its accuracy.

                These three articles are similar in the fact that they all three examine different aspects of the testimony of eyewitnesses.  They look at the factors influencing the testimony such as gender, discrediting effect, and levels of stress along with many others.  Each aspect plays a vital role in examining the confidence in each testimony and needs to be dealt with even farther in order to gain a greater perspective about eyewitness testimony.  The methods were basically similar in that individuals exposed to the experiment read summaries of the experiment and completed a questionnaire at the end.  The articles’ results were all in support of each other in the fact that each individual needs to be informed in order to gain the utmost in clarity.  The three articles were different in format and content but related to the same topic of eyewitness testimony, its just that each article examined a different aspect of the process.

                My approach to these articles and this topic is that the more that we know about eyewitness testimony the better judgment we will be able to pass.  The average person is unfamiliar with the entire process of the law and is at most just a bystander to the entire process.  In order for them to gain insight they need to have all the information that is relevant to the situation.  That means presenting them with what we know and also the ideas that are still in question to the researchers so that we will all be able to start on the same page, so to speak. 

                I really enjoyed the article that examined the list and statements about eyewitness testimony and compared expert and layperson results.  I feel that this article is perhaps the most important one that I covered, it dealt with the issue that the layperson is not presented with the information needed to make a clear concise answer.  These people are entrusted with lives of fellow human beings and still they are not given the entire picture.  Yes, they did interpret some of the statements as being important to the testimony abut still their were many other points made that they felt had no bearing of the testimony.  These are some of the same issues that we covered in class that they are in the dark about.  Issues like unconscious transference and lineup fairness were not deemed as important by the layperson when in fact they play very critical roles in the crediting process of eyewitness testimony.

                In order for all of us to be more confident about the decisions that we make we need all the information.  Judges need to take the issue even farther to be the one that stands up to tell the jurors the issues that they are faced with and be sure that they have enough information given to them to enable them to make the best decision possible.  I feel that prospective jurors need to have seminar-like  class given to them before they even hear the first piece of evidence in a case.  This would afford them the opportunity to become more familiar with the process by which they will be basing their answer.  I realize that this process is highly unlikely due to the time constraints of the law and the unwillingness of the jurors, but I for one would like to know that if I was in their position, with the power to punish the accused, I had made the best decision I could have made and it was based on all the right issues and not just the ones that stood out to me the most.

                Butts, S.J., Mixon, K.D., Mulekar, M.S., &Bringmann, W.G.  (1995).  Gender Differences in Eyewitness Testimony.  Perceptual and Motor Skills, 80,  59-63.

                Kassin, S.M., & Barndollar, K.A. (1992).  The Psychology of Eyewitness Testimony:  A Comparison of Experts and Prospective Jurors.  The Journal of Applied Social Psychology,  22,   1241-1249.

                Kennedy, T.D. & Haygood, R.C. (1992).  The Discrediting Effect in Eyewitness Testimony.  The Journal of Applied Social Psychology, 22,   70-82.