American Justice System
By Andrew Sandon
Over the past twenty years, psychologists have conducted a great deal of research on the phenomenon of eyewitness identification. Many laypersons believe that human memory works like a videocassette recorder (Brigham and Bothwell, 1983, p. 18). In essence, we remember what we see and can reproduce those recollections when needed. Psychological studies indicate, however, that memory is really a complex process consisting of three stages: (1) acquisition, (2) retention, and (3) retrieval. In each of these stages, various factors can alter a witness's perception of an event and render it unreliable (Brigham and Bothwell, 1983, p. 20).
The acquisition stage covers the witness's perception of the original event (Loftus, 1981, p. 105). Factors in this stage fall into two categories: event factors and witness factors. As their names imply, these factors describe the circumstances surrounding the event and the witness, respectively. An event factor is something inherent in an incident which affects one's ability to perceive it accurately. One event factor is the duration of the event. In general, the reliability of an eyewitness identification diminishes as the viewing time decreases (Loftus, 1981, p. 105). For example, the woman, who saw the robber for over thirty seconds, was in a better position to make a reliable identification than the man who saw the robber for a much shorter period of time.
A witness factor is a factor inherent in a witness which affects that person's ability to perceive (Loftus, 1981, p. 110). For instance, the woman may have felt stress and fear because an unknown man accosted her on a deserted street late at night. This stress may have affected her ability to process information about the man even before he actually became outwardly violent. The effect of stress on identification depends upon the level of stress. At low levels of stress, a witness is inattentive to many details and not likely to be accurate (Wells, 1988, p. 17). At moderate levels, memory improves, because a witness is better able to focus. At high levels, it becomes difficult for a person to concentrate and store the details of an event. Indeed, when one is concerned with self-preservation, there is a tendency to ignore anything not necessary for survival. The retention stage spans the interval between the occurrence of the event and the recollection of information about it. Accuracy in identification decreases as this interval increases (Lipton, 1977, p. 90). It is also important to know what happened during the retention interval. Certain activities, such as viewing "mug shots" or answering leading questions, can affect one's memory by suggesting an interpretation of the event. Indeed, witnesses may accept this information, whether true or false, and incorporate it into their memory (Lipton, 1977, p. 90).
In the retrieval stage, the witness recalls the retained information. Psychologists have found that a witness's recollection depends on even subtle distinctions in the questions one asks (Lipton, 1977, p. 94). For example, a question using a definite article (e.g., "Did you see the red car?") elicits more "yes" answers than does a question employing an indefinite article (e.g., "Did you see a red car?"), even when the question refers to an element not actually present in the event. Likewise, a change in a question's wording can affect the substance of a witness's response through the power of suggestion. The question, "How tall was he?," will likely produce a different answer from the substantively identical question, "How short was he?" Thus, the wording of questions at retrieval can be critical to ensuring accurate recollection.
In contrast, there is no significant correlation between a witness's confidence and his or her accuracy in identification. In one study, psychologist Gary L. Wells tested the correlation between confidence and accuracy in the context of an attorney briefing a witness. Wells found that both accurate and inaccurate eyewitnesses who were briefed by an attorney regarding the delivery of their testimony were more confident in their presentation than those who did not receive the briefing (Wells, 1988, p. 88). In fact, the inaccurate eyewitnesses gained more confidence than the accurate eyewitnesses as a result of the briefing.
Therefore, the accuracy of an eyewitness identification depends on how the event was acquired, retained, and recalled. Accordingly, a jury should consider several factors in judging the accuracy of an eyewitness identification. Social science data suggests, however, that jurors are unaware of several scientific principles affecting eyewitness identifications. Moreover, even when they are aware of such principles, jurors are unable to apply them when making a decision. Indeed, most jurors simply assume that eyewitness identifications are infallible. Therefore, jurors should use expert testimony about eyewitness identification as well as appreciate and apply the appropriate scientific principles in specific cases.
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