Eyewitness Evidence & Competency to Stand Trial

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Eyewitness Identification and Testimony

Chapter 5

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Identification and Testimony

In this chapter

Eyewitness Testimony and the Legal System

The Construction, Reconstruction, and Evaluation of Eyewitness Memories

Using Research Findings to Improve Eyewitness Accuracy

Techniques for Refreshing the Memories of Witnesses

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Identification

Eyewitnesses rely on memory

Encoding (gathering)

Storage (holding)

Retrieval (accessing)

Errors can occur at each stage

Imperfect encoding

Memory trace deterioration

Retrieval distortion

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Testimony and the Legal System

Compelling evidence in court

“Aside from a smoking pistol, nothing carries as much weight with a jury as the testimony of an actual witness.” (Loftus & Ketcham, 1991)

Very persuasive to a jury

Should it be?

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

How Memory does NOT Work

“Memory works a little bit like a Wikipedia page. You can go in there and change it – but so can other people.”

-Loftus (2013) TED Talk

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The Three Phases of Memory

Encoding

(gathering)

Time of event

Storage

(holding)

Btwn event & interview

Retrieval

(accessing)

Time of interview

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Click here for video

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The Three Phases of Memory

Memory is imperfect

Errors can occur at each stage

Imperfect encoding

Memory trace deterioration

Retrieval distortion

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Types of Memory Retrieval

Two basic types of memory retrieval

Recall

Recognition

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Memory is “Reconstructive”

Retrieval of information involves reconstruction

This is what makes memory fragile

To suggestions from others

To our expectations of what should happen

To our past experiences about what usually does happen

And so much more!

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Testimony and the Legal System

Involves most compelling evidence in court

Is most persuasive to a jury

Leads to more wrongful convictions than any other evidence

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Four Leading Causes of Wrongful Convictions

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The incidence of other causes—especially law-enforcement misconduct, prosecutorial misconduct, and bad defense lawyering—are difficult to calculate. Percentages add up to more than 100% because many cases involve more than one cause. (Data from the Innocence Project, 2020, based on a total of 377 cases included at the time of this writing.)

Example: Eyewitness Misidentification

What Jennifer saw

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Testimony and the Legal System

Manson criteria are used to evaluate testimony accuracy

Influenced by two key cases

Neil v. Biggers (1972)

Manson v. Braithwaite (1977)

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Testimony and the Legal System

Five factors in Manson criteria

Witness’s opportunity to view perpetrator

Witness’s level of attention

Accuracy of witness’s previous offender description

Witness’s degree of certainty

Time lapse between crime and identification

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Testimony and the Legal System

Reliance needed on the self-reports of eyewitnesses to evaluate three of the five Manson criteria (i.e., certainty, view, and attention)

Biased questioning and lineup procedures

Can inflate a witness’s certainty

Can lead witnesses to overestimate how clear a view they had of the perpetrator

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Suggestive Procedures on Eyewitness Identification and Manson Criteria

Suggestive questioning and identification procedures could cause a mistaken identification and could also inflate witnesses’ estimates of their own standing on Manson criteria.

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Testimony and the Legal System

Difficulty in applying Manson criteria with certainty

Evaluation of witness attention and view time of perpetrator limited

Witness overestimation of view time

Effects of time between witnessing crime and criminal identification

Biased questioning and lineup procedures

Undue juror faith in reliability of eyewitness testimony

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness Testimony and the Legal System

Legal system attempts to expose eyewitness bias

Determining witness ability to observe

Voir dire

Cross-examination

Jury deliberation

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Research shows that jurors place undue faith in the reliability of eyewitnesses, place too much weight on eyewitness confidence, and are not very skilled at distinguishing between accurate and inaccurate eyewitnesses.

Legal Spotlight: Post-Manson Court Decisions on Eyewitness Identification

Perry v. New Hampshire (2012) (U.S. Supreme Court)

Issue of eyewitness evidence revisited but Manson criteria not updated

Fallibility of eyewitness identifications noted

State v. Henderson (2011) (NJ supreme court)

Manson rule does not provide sufficient reliability measure, does not deter, and overstates jury’s ability to evaluate eyewitness testimony

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Legal Spotlight: Post-Manson Court Decisions on Eyewitness Identification

State v. Lawson (2012) (Oregon supreme court)

Prosecution must prove identification was based on permissible basis

People v. Lerma (2016)

Eyewitness identifications not always reliable—this is understood from a scientific standpoint and research may be used

Until the U.S. Supreme Court revisits the issue of eyewitness evidence, several states will continue to reconsider the outdated criteria established in Manson

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Construction, Reconstruction, and Evaluation of Eyewitness Memories

Cross-racial identifications

Cross-race effect (own-race bias) present from infancy to adulthood

Not large bias effect, but consequential for legal system

Involves more false positive identifications

Own-race identification more likely to be correct

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Cross-Race Effect

Cross-race effect (“Own Race Bias”):

More difficult for people to recognize faces of people outside their racial group

Finding is consistent across

Races

Ages

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The Outgroup Homogeneity Effect

The tendency to assume that there is greater similarity among members of outgroups than among members of ingroups

“Asians/Blacks/Jews/Hispanics/Whites/ are all alike.”

Why does it exist?

Greater contact with our ingroups

More intimate contact with our ingroups

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Do you think you would be better at identifying a culprit who looks more like you than one who looks less like you?

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Sheriff/Splash/Newscom; middle: St Louis PD/Splash News/Newscom; bottom: VASheriff/Splash News/Newscom)

Eyewitness Identification as a Function of Stress Level

Stress and weapons focus

Stress affects encoding

Weapons focus effect (witness focus on weapon, not assailant)

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Figure 6.3 summarizes the findings for participants who were able to identify their interrogator after the training.

Notice that the rate of correct identifications was significantly higher for participants in the low-stress condition: About 71% of participants in the low-stress condition made a correct identification, compared to about 38% of participants in the high-stress condition.

Also notice that only about 25% of people in the low-stress condition identified the wrong person, but in the high-stress condition, 58% identified the wrong person.

Stress and the Weapon Focus Effect

Weapon focus may lead to eyewitness memory impairment

Presence of weapon induces stress

» When a weapon is present, witnesses spend more time looking at the weapon than at the person holding it

– As a result, they are less able to identify the culprit

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitnesses

Sunny Khalsa, 41

“I saw a man who was handcuffed being shot”

Anthony O’Grady, 26 “He looked like he was trying to get away from the officers,”

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Click the picture!

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

After seeing video footage….

Sunny Khalsa, 41

She admits she looked way.The attack lasted only 3 seconds

“With all of the accounts in the news of police officers in shootings, I assumed that police were taking advantage of someone who was easily discriminated against,” she added. “Based on what I saw, I assumed the worst.

Even though I had looked away.”

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Construction, Reconstruction, and Evaluation of Eyewitness Memories

Unconscious transference

Face seen in one context transferred to another

Preexisting expectations

Interaction of beliefs about sequence of actions in a case (scripts) with prior knowledge

Leading or suggestive comments

Eyewitness recall shaped by wording of questions

Inhibition of details through retrieval inhibition

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Unconscious Transference

When a face that is seen in one context is transferred to another context (e.g., crime scene)

Sometimes eyewitnesses will misidentify someone because they:

Have seen that person before and they mistakenly think the familiarity was from the crime scene

“I know your face but not where I saw you…”

Example: Donald Thompson; Ronald Cotton

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Construction, Reconstruction, and Evaluation of Eyewitness Memories

Witness confidence

Highly confident eyewitnesses tend to persuade jurors

Critical level of confidence is one expressed at initial identification, not at trial

Confidence erosion or manipulation

Poorly constructed lineup

Biased information or feedback exposure (postidentification feedback effect and cognitive dissonance)

Confidence increase over time

Defendant identification in court

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Eyewitness’s initial expression of high confidence in an identification is a strong indicator of accuracy.

Witness Confidence

Witness Confidence is…

highly correlated with persuasiveness

weakly correlated with accuracy, especially i best practice guidelines are not followed

Why is confidence not necessarily a good predictor of accuracy?

Confidence increases over time (description, photo lineup, live lineup, court)

Confidence is malleable and easily manipulated

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Post-Identification Feedback

Telling a witness that they identified the suspect can inflate the witness’s recollection of how confident they were in the identification

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Witness Confidence:

Post-Identification Feedback

Wells & Bradfield (1998)

Participants viewed a robbery video & made ID

Feedback manipulation:

Confirming Feedback  “Good. You identified the suspect!”

No Feedback – Nothing said

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Witness Confidence:

Post-Identification Feedback

Wells & Bradfield (1998)

Results:

Compared to witnesses receiving no feedback, witnesses who received confirming feedback inflated their confidence ratings and their viewing conditions

(e.g., estimates of view, ease of making an ID, view of face, basis for making ID, etc.)

All were unaware the feedback influenced them

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Witness Confidence:

Post-Identification Feedback

Post-identification feedback distorts…

the memory of eyewitnesses

the ability of fact finders to discern between correct and mistaken IDs (Smalarz & Wells, 2014)

Cognitive Dissonance Theory

Strengthens post-identification feedback effect

Once you commit, you are motivated to justify

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Construction, Reconstruction, and Evaluation of Eyewitness Memories

When the eyewitness is a child

As compared to adults, children provide less information, and somewhat less accurate information, when responding to interview questions about what they witnessed.

Children are only slightly less accurate than adults when presented with lineups or photo spreads if the true perpetrator is present in the lineup (i.e., culprit-present, or target-present lineup).

lf the true perpetrator is absent from the lineup (i.e., culprit-absent, or target-absent, lineup), children do worse.

Memories of children seem to be especially negatively impacted by a stress-inducing interview style.

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Hot Topic: Cameras and Computers as “Eyewitnesses”

Significant advancements in FRT by government and private corporations in past decade

Hundreds of precise human face measurements

Challenges

Alterations in human appearance

Software developed from limited ethnic groups

Government use in public demonstrations

Lack of laws designed to prevent violation of basic legal rights such as privacy and free speech

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Facial recognition technology (FRT) uses hundreds of different measurements to create a unique map of a human face, enabling computerized identification of people from their images captured by cameras.

During the past decade, cameras in public places have become far more numerous and much better able to provide high-resolution images that can be stored digitally for long periods of time.

Using Research Findings to Improve Eyewitness Accuracy

Estimator variables

Factors outside legal system control

System variables

Factors under legal system control

American Psychology–Law Society (APLS)

Nine science-based recommendations for gathering and preserving eyewitness identification evidence

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Following the nine recommendations dramatically reduces the number of mistaken identifications, with little or no reduction in the number of correct identifications.

American Psychology–Law Society (APLS) Guidelines

Prelineup interviews

Conduct interviews as soon as possible after crime

Have objective video recording of what eyewitness actually reported just after witnessing a crime

Use open-ended questions and avoid suggestive or leading questions

Ask about prior familiarity with suspect

Instruct witness not to discuss crime with other witnesses

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

American Psychology–Law Society (APLS) Guidelines

Evidence-based grounds for putting suspects in lineups

Use documented, evidence-based grounds to suspect an individual is guilty of specific crime being investigated (avoidance of culprit-absent lineups)

Double-blind lineups

Ensure that neither the administrator nor the witness knows who the suspect is in the lineup

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

American Psychology–Law Society (APLS) Guidelines

Appropriate lineup fillers

Use only one suspect per lineup and at least five appropriate fillers who do not make the suspect stand out in the lineup from the fillers (i.e., physical appearance, other contextual factors)

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The shackle (circled) is an unmistakable sign that number 5 is the suspect in this lineup.

Can you spot any other ways in which number 5 stands out from the others in the lineup? (New York City Police Department/The New York Times/Redux Pictures)

American Psychology–Law Society (APLS) Guidelines

Prelineup instructions to eyewitnesses

The eyewitness should be instructed that:

the lineup administrator does not know which person is the suspect and which persons are fillers;

the culprit might not be in the lineup at all, so the correct answer might be “not present” or “none of these”;

if they feel unable to make a decision they have the option of responding “don’t know”;

after making a decision they will be asked to state how confident they are in that decision; and

the investigation will continue even if no identification is made

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

These bias-reducing instructions remove the presumption that the witness is obliged to choose someone from the available options.

In addition, telling witnesses that the person administering the lineup does not know which person is the suspect, discourages witnesses from looking to others in the room for clues about who is the “right” person to identify. It forces witnesses to rely solely on their own memory.

American Psychology–Law Society (APLS) Guidelines

Obtaining an immediate postlineup confidence statement

Secure clear statement about how confident the witness is that he or she identified the right person

Ensure statement is taken immediately after the witness identifies a person and before any feedback is given to the witness (postidentification feedback effect)

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

American Psychology–Law Society (APLS) Guidelines

Video recording

Video record the entire identification procedure, including prelineup instructions and witness confidence statement

Avoiding repeated identification procedures with the same witness and suspect

Repeating an identification procedure with the same suspect and same eyewitness should be avoided regardless of whether the eyewitness identified the suspect in the initial identification procedure

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

American Psychology–Law Society (APLS) Guidelines

Avoiding the use of showups

Avoid presenting a single suspect to an eyewitness and asking the eyewitness whether or not that person is the one who committed the crime

Showups should be avoided whenever it is possible to conduct a lineup

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Expert Testimony

Additional safeguard against mistaken identification

Particularly helpful when eyewitness identification procedures significantly deviate from nine recommendations

Provides psychologist summary on research related to eyewitness testimony that increases or decreases eyewitness accuracy

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Techniques for Refreshing the Memories of Witnesses

Hypnosis

Involves relaxed state, more receptive to suggestion

May facilitate hypnotic hypermnesia

Does not increase accuracy; courts skeptical

Cognitive Interview

Involves procedure to relax witness, provide multiple opportunities to report, and avoid coercive or leading questions

Reinstates context surrounding crime

Is difficult for police to adopt this method

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Refreshing Memories of Eyewitnesses: Hypnosis

Enhance the memories of crime victims and witnesses

In relaxed, focused state & highly receptive and responsive to suggestions made by hypnotist

Instructed to “re-witness” the event

Hypnotic hypernesia

Recall more information when hypnotized than when not – does NOT increase recall of accurate information

May include fantasy and imaginative elaboration

Solidify false memory

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Does Hypnosis Work?

1976 – bus hijacking in California

Bus driver & license plate

Can help to facilitate investigation of a crime

Can be used as “face-saving” device

Usually severe restrictions on testimony from hypnotized witnesses

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Refreshing Memories of Eyewitnesses:The Cognitive Interview

Interview technique based on principles of cognition and communication

Involves putting the witness at ease by developing rapport

Encourages active witness participation

Discourages guessing

Goal is to gather as much information as possible

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The Cognitive Interview

Due to: (1) problems with standard police interviews & (2) at the request of legal officials:

Apply social/cognitive and communication principles to police interviews

Goals: increase recall accuracy & reduce suggestibility

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Phases of the Cognitive Interview

Phase I: Introduction

Rapport building

Transfer control to witness

Phase II: Re-create context of original event

Phase III: Open-ended narration

Phase IV: Closure

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The Cognitive Interview

Asks primarily open ended questions

Does not interrupt witness

Uses code compatible questions

Reinstates context of the event

Uses varied retrieval

Reverse order, change perspective, sketching

Extends functional length of the interview

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

The Cognitive Interview: Does it Work?

Over 80+ research studies

Increases amount of correct information

Accompanied by slight increase in incorrect information

No increase in witness suggestibility

Effective with children, adults, & seniors

Report more information (quantity) and more accurate information when the CI is used

FORENSIC AND LEGAL PSYCHOLOGY

Mark Costanzo | Daniel Krauss | Fourth Edition

Consider This: Translating Science Into Practice

Difficulties

Identification of threshold for policy recommendation

Resistance to reform among responsible reformers

Contingent nature of some research findings

So, does the science of eyewitness evidence substantially transform procedures for information gathering from eyewitness to crime?

Eyewitness Evidence & Competency to Stand Trial

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