Eyewitness testimony: Not the gold standard we have been told.

Introduction

The study of psychology has many facets in its modern applications, including forensic psychology, which is concerned with applying psychological methodology and knowledge to legal purposes (Neal, 2018). Beyond this, one facet of forensics psychology and any psychological practice is to educate and advocate for patients or clients under their care. For this research project, I will be investigating education and advocacy surrounding eyewitness testimony; it’s fallibility, and misconceptions.

The term eyewitness testimony is legal, referring to an account given by a person regarding an event they have witnessed (Safer et al., 2016). Examples include people who had witnessed violent crimes, motor vehicle accidents, or other first-person accounts to identify the individuals present when the event took place. While to the uninitiated, eyewitness testimony may appear the gold standard, in reality, it is significantly flawed, often misleading, prone to error, for a number of reasons, which will be discussed in this paper.  

History and Application

While the origins of eyewitness testimony are lost to antiquity, history does make a note of the first attempts to demonstrate such accounts’ error. On the witness stand (Münsterberg, 1908) attempted to illustrate the inaccuracy of eyewitness statements; however, his book was met with extreme criticism from attorneys and judges (Bornstein & Meissner, 2008). It was widely believed that eyewitness testimony is a critical part of the legal process. History is replete with cases of individuals having been convicted on nothing more than statements from witnesses (Loftus, 2018). Yet from the moment of the event, memories, particularly those associated with a traumatic event such as a violent crime, a malleable; Sigmund Freud, as pointed out by Kihlstrom (2017), believed that memory was prone to distortion based on personality, length of time since the event, and prone to bias.

Moreover, later researchers would find that this malleability was often due to the individual’s interpretation, where those memories were stored, and how they are retrieved, more especially during stressful events, all leading to inaccurate recollection (Dahl et al., 2018). Given the implications of wrongful conviction through eyewitness testimony in legal proceedings, more especially when there is a lack of confirmation, for example, other sources of evidence, jurors often incorporate their own experiences in an attempt to ascertain if a witness is accurate and believable (Curci, Lanciano, Curtotti, & Sartori, 2020). Termed flashbulb memory by Brown and Kulick in 1977 (Lanciano, Curci, Matera, & Sartori, 2018), such memory is said to be highly detailed and exceptionally vivid of the moment and circumstances that the memory was created. A mental photograph, highly detailed and complete, and the stressful situation, indelibly etched in the memory. Recent examples of flashbulb memory include the Terrorist attacks of 911 on Americans and the Fukushima nuclear disaster. The memories of such events, often held confidently by those witnesses, long believed to be indelible, be far more prone to error (Talarico & Rubin, 2017).

The importance of events, unusually large occurrences experienced by multiple persons, is often determined by membership in a particular group. Events traumatic for one group may elicit little notice, among others, even flashbulb memory events (Talarico & Rubin, 2017). Another area that is significantly impactful in the formation of memory, including flashbulb memory, is the prior beliefs of the witnesses surrounding the event and those involved.

Moreover, the idea of a spontaneously generated flashbulb memory, such as the eyewitness attack on the world trade towers on 911, is partly due to the importance of the event and proximity and culture. And while this type of memory is often surprising, significant, and emotional, current research focusing on individual attenuation of memory development factors suggests that flashbulb memories may not be persistent overtime for all observers (May, Dein, & Ford, 2020). Still, for others, emotionality, shock, cultural lens, and social ramification of the event may cause an unforgettable emotional response that is inaccurately stored in memory.

According to researchers (Kihlstrom, 2017; May, Dein, & Ford, 2020; Puddifoot, 2018; Talarico & Rubin, 2017), several studies have shown the fallibility of memory conclusively and identified how emotionality, culture, and stress, can distort perceptions, during and after the event. This becomes crucial when memories are recalled for past events that may implicate an individual for a crime.

Inaccurate recollection and the resulting conviction of an innocent person is catastrophic, not only for the individual but their loved ones, and any time lost to incarceration can never be regained (Ramsey, 2020). In worst-case scenarios, innocent persons have been executed by a system that allowed eyewitness testimony to play a large part in the conviction and sentencing. At the same time, expert testimony about the fallibility of, and implications of, recalled events, particularly in cases of eyewitness testimony, explains that memories are formed from events and perceptions that occurred before, during, and after the incident, and therefore the reliability of that memory, mainly when used as an essential part of a trial, may fail to result in a fair verdict or for justice to be served (Clow & Ricciardelli, 2016).

Despite this understanding, even today eyewitness testimony is frequently the most influential aspect of the trial experience. Witnessing the witness’s positivity and explaining the events and the perpetrator still significantly influence juries. Experts in communication and psychological processing suggest that memory is malleable. It is combined with bits and pieces of many events, past and present, and often future that creates the lens through which we view the world (Navas Viana, 2018). Memories and the accumulation of every moment, every discussion, every belief, every action, every perception from the most complex to the most simplistic requires the use of memory. Memories are information stored and retrieved for individuals to function from day to day.

Whether we are remembering to pick up a child at school, reflecting the bus route from childhood, or recalling the emotions of a first date or the loss of a family member, every memory formed and stored for later recognize directly affects our memories, to a greater or less or extent, that proceeded from that moment (Howard, 2018). End it is because of the enormous amount of information, auditory, visual, tactile, emotional, that the average individual can’t pay attention to every single detail of every single moment. This is why cognitively, we use a filter system that separates the noise from the critical information we are bombarded with. Yet when it comes to recognition, even a fellow human, our memories are imperfect.

According to Uhl (2017), visual memory for faces, a frequent part of eyewitness testimony concerning individuals’ behavior, while extensively researched, remains highly problematic. It is still unknown exactly what the average person remembers about a face, other than the graphic content of visual memory, but even this is prone to bias and misremembering. What we remember about others’ faces, mainly if they are not known to us, is highly subjective. And while there are times when, particularly in novel situations or under extreme stress, some individuals can recall precise details about an event that would usually be disregarded, and the reliability of this recall has come to play a large role in the apprehension and prosecution of criminals, particularly when that witness is convinced of the accuracy of their perception (Kantner, Solinger, Grybinas, & Dobbins, 2019).

Issues of Perception and Memory

 Researchers examining the process of emotion and memory used during the recollection find details pertaining to the observation of events, particularly novel events that are sensory-rich; those experiences that combine taste, smell, tactile impressions, for example, eating chocolate for the first time are likely to be recalled longer, although not necessarily more accurately, than other experiences, even though the perception may be evident in the person’s mind when they remember images of the first time they tasted a chocolate bar. Yet it is that act of perception that is, in fact, the interpretation of the surrounding, which creates the memory of the event. Therefore they are not entirely precise because they are constructed from bits and pieces of other stored memory of previous experiences (Munsterberg, 1908).

When we experience a novel situation, an event that is foreign, for example, witnessing a violent crime, we create an interpretation of that experience, applying various degrees of understanding. As previously mentioned, our social construct creates the lens with which we view events that surround us. When we are faced with something extraordinary or far outside of our experience, our mind fills in the blanks to make sense of what we witness even before the memory of the event is processed and stored in our mind (Van den Berg, Yoo, & Ma, 2017). The issue of judgment confidence is frequently domain-specific; in other words, if it is an image, a sound, smell, and event that is within our perceptual history, we can often make sense of the perceptions, however when faced with novel situations, especially if the event is sufficiently dissimilar to our history of experiences, our sensory systems can quickly become overwhelmed through multiple influences (Van den Berg, Yoo, & Ma, 2017). Because of the complex nature of memories, errors can be made at the instant of the event and compounded each time the memory is remembered and processed (Shi et al., 2018). Moreover, the more the memory is recalled and discussed, social cues taken from the hearers also shape the memory and how it is stored and recalled. Much of the work around the accuracy of memory and, in particular, eyewitness recollection points to context and situation have been crucial in accurately reporting events.

Situation, Context, and Schema

Situation is critical in the mental recording of sensory information that forms a memory. According to some researchers (Bjånes & Moritz, 2019; Nanay, 2018), memories are, in fact, not capture of an accurate visual or auditory image, but a multi-sensory perception, one that is highly complex and prone to error. Many researchers understand sensory stimulation and multi-sensory perception not as accurate recollections of events but in a patchwork, visual, auditory, tactile, and mental imagery that comprise most experiences. Moreover, Nanay (2018) suggests that most perceptions, even when understood as simple and everyday events, are perceived multi-sensory occasions. Context and schema are critical aspects of the process of memory formation. Context refers to the details of the event I just remembered; time, place, odors, sounds, and emotions are critical aspects of the context and, when recalled, maybe remembered each time differently.

Moreover, because certain aspects of memory, often referred to as impressions (engrains), are stored in different parts of the brain for recall, psychologically challenging or traumatic images or events can be predominantly visceral (Reagh & Ranganath, 2018). And while research on memory formation has been principally cognitive, new research on the neural basis of memory storage, backed by neuroimaging verification, has made headway into informing how and where memories are stored. Functional MRI scans show that traumatic visual memories are predominantly stored in the cortico-hippocampal network (Inhoff & Ranganath, 2017).

The context of the memory critical to it is recalled, so too is the context wherein it is remembered. How are few events more stressful than testifying as an eyewitness to a crime or an event one has witnessed, particularly under cross-examination where memory or honesty may be challenged. During times of stress, memory retrieval may be difficult or impossible without queuing. This, of course, leads to problems with coaching the witness to recall information that may require remembering the specific circumstances of the original creation of the memory;  even when reviewing pictures of family members that resemble those we know, we often search for familiarity to place the photograph into context, and then into memory (Agroudy et al., 2016). Working memory becomes critical when individuals experience an event that may become critical later. Working memory probably evolved to recognize faces quickly as a survival mechanism (Hou & Liu, 2019).      

Evolution theorists understand that the human ability to differentiate stored memory for recall should possess processes that aid survival or reproduction. The memory recall system, a critical aspect of evolutionary fitness (Seitz, Polack, & Miller, 2018), may have evolved to help our ancestors quickly ascertain novel situations’ threat level to survive. Moreover, researchers (Hou & Liu, 2019; Pandeirada, Fernandes, Vasconcelos, & Nairne, 2017) suggest that recognition based on memory evolved through the ability to assess danger accurately, identify a viable mate, and avoid conflict through a process known as survival processing advantage. This survival processing advantage biases us towards acceptable and unacceptable individuals, often before they exhibit any behavior, based on nothing more than their approximate appearance to ourselves (Nairne, Coverdale, & Pandeirada, 2019). This survival processing advantage is the lens through which we view other people, especially those who are different in appearance or behavior; however it can easily be altered through previous perceptions, even if these perceptions were not experienced firsthand (Noble & Tabar, 2017).

The term schema refers to a psychological concept that informs an individual about what they should expect from others, experiences, or situations. These schemas are precise blueprints for understanding the information provided by the world to store them in memory for retrieval. In retrieving memories, for example, as an eyewitness to an event, the individual frequently becomes more convinced of the accuracy of their memory as the recounting progresses. This phenomenon, known as the law of closure (Ehrensperger, Stabinger, & Sánchez, 2019; Zeng, 2017), States that when individuals perceive any object, shapes, photographs, or even faces, they will see them as complete even if they are only partially visible. Memory is used to fill in the blanks and entirely perception of what we expect to see.

This is not to suggest that witnesses are intentionally fabricating evidence, but that as they are questioned, they tend to fill in the gaps to make their stories more cohesive. Many factors can fill in the gaps in witness memory (Bartol and Bartol, 1994). 

 In modern social sciences, several factors are recognized as influencing eyewitness testimony, including distance from the event, the amount of light at the time, weather conditions, time of day, and witness (Obdal, 2018). Still, it is a matter of history that many juries and even judges tend to apply more credibility to individuals considered high stature, for example, police officers, security guards, and members of the community who are held in high esteem (Ball, 2017; Vernham et al., 2020). Conversely, witnesses’ believability is often disregarded when testimony is given by those the culture of demons as having less value, thus less credibility (Vernham et al., 2020).

 Witness confidence, the insured he provided by the individual is not significantly associated with accuracy, yet many courts and juries hold to this false belief (Ball, 2017). Moreover, forensic psychology has investigated several situations where the influence of law-enforcement has been identified as directly impacting witness statements and testimony (Lvovsky, 2016); this includes the type of lineup used to identify suspects, identification of photos, and assistance in writing witness statements and even how the witnesses are questioned (Hanway & Akehurst, 2018; Melinder, Magnusson, & Gilstrap, 2020). Finally, Loftus (2019) observed that experiences after the event, including news releases of information, significantly impact working memory and alter the event’s original perception. New information introduced into a novel experience changes the recall of the event, and over time, the witness cannot differentiate between the initial situation and the recalled situation (Loftus, 2018; Vernham et al., 2020).

Conclusion

In this brief treatment of the idea of eyewitness testimony, it has been shown that memory is far from absolute and that eyewitness testimony, regardless of how certain the witness, is highly imperfect. Why are there exist several psychological theories as to how memory is formed and recalled? All agree that recall excepting incredibly rare events is inaccurate (Delaney, Godbole, Holden, & Chang, 2018). Many frantic psychologists and other researchers suggest that better awareness of memory and recall limits would necessarily generate fewer wrongful convictions based on inaccurate eyewitness testimony and wrongful identification influenced by bias or stress (Uça, 2001; Zaragoza, Hyman, & Chrobak, 2019). And while witnesses can provide accurate identification, they are just as likely to be wrong. Therefore, juries must have a reasonable understanding of the issues of memory and recall. Thankfully, technological advances, including DNA testing, have exonerated a surprisingly large number of wrongfully convicted individuals (Clow & Ricciardelli, 2016; Turow, 2017). To avoid wrongful convictions, eyewitness testimony should be subjected to the same level of scrutiny as other aspects of a criminal trial to provide a balanced and accurate assessment of guilt or innocence.

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