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The growing general recognition that eyewitness memory does not operate as a stable DVR or videotape record of experience but rather requires a complex multistage process of encoding, storage, and reconstruction that is vulnerable at every step to influence and contamination has intersected with a growing list of exonerations of wrongfully convicted individuals in eyewitness cases revealed by DNA comparisons. There is now a widespread perception that honest but mistaken eyewitnesses are the leading cause of wrongful convictions.
Law enforcement and legal practitioners have long recognized that their dangerous dependency on unreliable identifications of perpetrators by eyewitnesses in criminal cases is an important weakness in criminal justice systems (Borchard 1932). Since at least the end of the nineteenth century, social scientists have investigated the sources of eyewitness error and have attempted to persuade criminal justice practitioners to apply their findings in modernizing investigative and adjudicatory practices. The result has been a long and complicated relationship between researchers and criminal justice practitioners: a dynamic of reciprocal challenge and response that has influenced both the research agenda of the scientists and the daily routines of the practitioners. The history of the psychology/criminal justice interface in the eyewitness context parallels and may in fact have formed a template for interactions in other contexts such as the evaluation of interrogations leading to false confessions.
Concern with eyewitness unreliability is an international phenomenon that has attracted the attention of a polyglot array of researchers (Sporer and Cutler 2003; Roberts 2009), but the structure of the dialogue concerning eyewitnesses can be seen most clearly in common-law countries where investigative fact development is later subjected to adversarial end-stage adjudicative inspections. The collision between social science research and criminal justice system practice is starkly illuminated by experience in the United States, where the relationship of the science of eyewitness memory and the criminal justice system can be described as a chronicle of running battles that have stretched over more than 100 years.
This historical background exercises a significant influence over current discussions and contributes to the fact that while there is now a very substantial body of research and commentary addressing the eyewitness issue, “A significant shortcoming in much of the writing on the subject is the adoption of a parochial and procedurally atomistic approach” (Roberts 2009).
Early Encounters: Munsterberg And His Peers
The basic battle lines or the interaction of the psychology researchers and the criminal justice community was laid down in early controversies initiated by Hugo Munsterberg, a student in Wundt’s earliest psychology courses, who was brought to Harvard by William James to run Harvard’s experimental psychology laboratory. Munsterberg, an energetic promoter of his new discipline, had outlined in his best-selling 1908 book, On the Witness Stand, a remarkably prescient series of insights concerning the operation of witness memory. He provided, for example, demonstrations that eyewitness mistakes were frequent, that memory was not permanent but malleable, and that witness confidence was not sure evidence of witness accuracy (Munsterberg 1908). These findings had obvious forensic applications, but Munsterberg, in his self-appointed role as publicist and controversialist, complained that although other disciplines and professions were eager to learn the lessons about eyewitness memory that his new field of experimental psychology was beginning to teach: “the lawyer alone is obdurate.” Munsterberg charged that the lawyers chose traditional primitive ignorance over scientific enlightenment.
This charge drew the attention of John Henry Wigmore, the Dean of Northwestern University School of Law and the preeminent evidence scholar of his era. Wigmore was an early proponent of the integration of scientific psychology into legal practice, and in his article responding to Munsterberg’s charges, he provided an appendix that compiled a full list of the extant psychological material and that indicated that Wigmore had actually reviewed that material more thoroughly than had Munsterberg himself (Doyle 2005).
The real purpose of Wigmore’s article was to illuminate the potential in a law and psychology relationship and to throw his prestige behind its inception. Wigmore agreed that the legal system had neglected psychologists’ research. Wigmore’s goal was to herald the day when the lawyers and psychologists could move forward in “a friendly and energetic alliance in the noble cause of justice” (Wigmore 1909). Even so, according to Wigmore, Munsterberg was premature in announcing the immediate utility of such an alliance; Wigmore thought that was still on the distant horizon. Wigmore pointed out that while Munsterberg’s findings on the reliability of witnesses were highly significant, the legal system’s concern was not with the reliability of witnesses in general but with the reliability of verdicts in individual cases. Munsterberg’s mistake, according to Wigmore, was his assumption that contemporary psychology could immediately help the criminal justice system to sort the correct eyewitnesses from the incorrect ones. Wigmore argued that day had not arrived. Still, Wigmore looked forward to its arrival, and he was confident that day would come. “When the psychologists are ready for the courts,” he announced in a subsequent piece, “the courts will be ready for the psychologists” (Wigmore 1937).
But it was not the substance of Wigmore’s response to Munsterberg that was best remembered by psychologists; it was the caustic satirical tone of his article. Wigmore’s criticism is still recalled as a paradigm of the kind of welcome social scientists should expect from the legal system and its practitioners (Doyle 2005).
In fact, Wigmore did want to issue a mild call to order: to correct Munsterberg’s overstatements and to address Munsterberg’s misapprehensions about the realities of legal practice. But Wigmore structured his article as a mock trial of a Munsterberg proxy for libeling the legal system and then proceeded to humiliate this fictional psychologist and, by extension, to humiliate psychology. Deployed in this starkly adversarial format, Wigmore’s Olympian status in the legal world and Wigmore’s corrosive sarcasm combined were devastating and drove Munsterberg from the field. After Wigmore’s article, although research continued in the laboratories, the question of the proper role of psychology in assessing eyewitness memory lay dormant as a public issue for close to 70 years.
The Expert Witness Era: Robert Buckhout And Elizabeth Loftus
Psychologist Robert Buckhout picked up Munsterberg’s fallen banner in the politically charged atmosphere of the United States in the 1970s, and he relied on a modernized version of Munsterberg’s demonstration approach (Doyle 2005). For example, Buckhout induced a New York television station to broadcast a staged crime and invite viewers to make choices from a staged lineup. The number of correct identifications this process yielded was lower than would have been achieved by random guessing (Doyle 2005). But while his method may have been similar to Munsterberg’s, Buckhout’s temperament was very different from his predecessor’s. Munsterberg was an academic who retreated when faced with Wigmore’s onslaught. Buckhout knew his science, but he was a cheerful agitator who carried the battle into the courts and into the popular media.
Buckhout published an accessible survey article on eyewitness error in the general audience magazine Scientific American (Buckhout 1974). He testified on the unreliability of eyewitness testimony in the trial of California radical Angela Davis and was instrumental in winning her acquittal. He seized every opportunity to comment in the media (e.g., opining on the case of a butcher identifying his own pork chops from a pork-chop lineup) where the lessons of eyewitness psychology could be taught. His science was aligned with his politics. Buckhout believed that criminal defendants, particularly poor and minority indigent defendants, were being abused by the legal system’s complacent reliance on an antique view of how memory worked. He almost immediately rallied two groups of partners.
The first group was a cohort of idealistic younger psychologists, like Elizabeth Loftus, who were anxious to see that their science have an impact in the world. Loftus attacked the eyewitness issue in a radically different way: She “did science” in the form of rigorously controlled experiments, changing one variable while holding all others constant. The results she began to produce were striking. She showed, for example, that when questions about a white barn were introduced into interrogations of witnesses who had viewed a film of an auto accident, over 20 % of those viewers later reported seeing a white barn although in fact there had been no white barn in the film (Loftus and Palmer 1974).
This was a crucial finding for criminal eyewitness cases: It showed that eyewitness memory not only decayed but also changed. It showed that a witness could not only forget the right man but also – after being unknowingly influenced by viewing mug shots or showups (which operate as “post-event information” like the white barn in an interview question) – could remember the wrong man.
Loftus’s findings and those of her colleagues mounted quickly, and they went to the heart of the eyewitness experience as it is encountered in the criminal justice system. Taken together they indicated that in an eyewitness case, the memory of the witness is for all practical purposes the scene of the crime. They showed that memory evidence was, in effect, “trace evidence”: difficult to collect, easy to contaminate, but impossible to test for contamination after any contamination has occurred.
At the same time, Loftus’s scrupulous scientific methods were winning her work admission to the blue-ribbon, peer-reviewed academic journals and encouraging younger academic psychologists to extend and challenge her research. Experimental findings such as Loftus’s (unlike the demonstrations of Munsterberg and Buckhout) could be replicated or falsified. The number of published studies multiplied (Cutler and Penrod 1995). Forensically relevant findings on the effects of stress, own-race bias, and postevent information burgeoned.
By the late 1970s, the history of the eyewitness issue in the United States had become completely entangled with the peculiar features of commonlaw adversarial tradition. The United States Supreme Court had ruled in a series of cases that identifications that had been so infected by police misconduct as to be irreparably unreliable would be excluded from trials on constitutional grounds (Manson v. Braithwaite 1977). But those rulings left open the question of how to assess the credibility of identifications that were not unconstitutional but may have been less reliable than jurors’ “commonsense” understanding of memory as a stable DVR or videotape capacity suggested.
Tantalized by psychological research’s potential for undermining confidence in that range of identifications, Buckhout’s second group of recruits, the desperate criminal defense lawyers, joined in. Buckhout’s testimony in the Angela Davis case had drawn their attention, and his Scientific American article quickly circulated through the defense bar. Elizabeth Loftus published a popular general audience account of eyewitness science, Eyewitness Testimony, at about this time, and that contribution was buttressed by an influential Stanford Law Review comment written by Frederick Woocher (a trained psychologist then in law school), which provided a blueprint for arguments for conveying psychological science through expert witnesses. Defense lawyers began to demand the admission of expert testimony before juries by Loftus, Buckhout, and their colleagues aimed at debunking faith in eyewitness evidence.
This point of entry was bad luck for anyone who hoped for Wigmore’s “friendly and energetic alliance.” Persistent litigation over admissibility of psychological testimony did help to keep the issue of eyewitness science alive in the courts, and feedback from skeptical courts did help to provoke new, better-targeted research. But these benefits came at a steep price.
The initial environment has affected discussions of eyewitness science in criminal justice ever since. Admissibility questions arise at the most acutely adversarial moments of the criminal process, and their resolution (at least in the eyes of the contending advocates) may determine who wins and who loses a trial. The US prosecutors – goaded by inflammatory rhetoric from Buckhout – quickly denounced eyewitness findings as enemy pseudoscience: a trick designed to let criminals go free by unnerving credulous lay jurors and sliming all eyewitnesses, most of whom were right and many of whom were crime victims. For some American prosecutors – then and now – eyewitness science is simply a shield for the guilty. For many judges, the cumulative price of the skirmishing over marginally interesting science the experts offered seemed enormous in terms of hours, dollars, and distended docket backlog.
The critics of expert psychological testimony garnered important support from within the research community. Well-respected psychologists took the position that the field’s existing body of knowledge was crippled by problems of ecological validity and theoretical inadequacy and was insufficient to aid the accurate resolution of disputed identification questions. It was the position of this group – which was quickly found and utilized by prosecutors – that efforts to use experts’ psychological testimony promised more harm than good: more juror confusion than enlightenment, more guilty people freed than innocent people protected. In this view, the testimony of Buckhout and his successors misappropriated the prestige of science to produce only unjustified and destructive general skepticism about eyewitnesses (McCloskey and Egeth 1983). Since the prevailing test for the admission of novel expert testimony in the United States at that time focused on the “general acceptance” of the science offered by the proposed experts within the relevant scientific community, adversarial battles over the admissibility of evidence focused tightly (for purely forensic reasons) on this fault line within the research community.
This dispute had the unexpected effect of acting as a goad to further research, as researcher experts attempted to address the criticisms of skeptical adversaries and colleagues. A substantial body of knowledge began to accumulate, one peer-reviewed publication at a time. By 1989, Kassin and his colleagues, in a survey of psychologists, were able to generate a list of propositions – for example, the focus on a weapon degrades eyewitness reliability – with which 80 % of psychologist-experts agreed (Kassin et al. 1989). In the view of some, the desire for pragmatic usefulness outran the substance of the research findings. For example, legal actors understandably sought to make use of psychologists’ findings that post-event information had an impact on witness performance before scientists had determined whether that impact was to replace original memories, to alter memory traces, to lead to attribution of a memory to the wrong source, or to instigate a “memory blend” of old and new information.
New Focus On The Prevention Of Error: “System-Variable” Research And Application
While the battles over admissibility of expert testimony ground on in American courts, another of Buckhout’s recruits, Gary Wells, was engineering a shift in perspective (Wells 1978; Doyle 2005). Wells admired Loftus and accepted her findings as good science, but he also pointed out limits on their utility.
Because Loftus and her peers were scrupulous scientists, they had isolated and studied a single factor (e.g., the wording of a question, the stress of the event, the presence of post-event information) at a time. Wells noted that these studies yielded statistical results that could tell you what happened eight times out of ten, but could not tell you whether this case was one of the eight or one of the two. That second question, clinical and diagnostic (not probabilistic in nature as were the research results), was the challenge the legal system actually faced. Wells also noted that every criminal event incorporates many factors, not just one, and there was no science-based mechanism for combining these factors and assessing their interactions. From Wells’ point of view, offering post hoc diagnosis of eyewitness error from the witness stand was the wrong way to mobilize the solid (but inherently probability-based) science that Loftus and a generation of their colleagues were producing.
Wells successfully called for the new orientation that has dominated criminal justice policy discussions about eyewitnesses for the past decade. He noted that some factors Loftus had studied (e.g., lighting, age of witness, stress of event) are not under the criminal justice system’s control. He called these “estimator variables.” But he also noted that there were other factors (e.g., lineup construction, lineup administration, witness interview technique) that the system’s actors do have power over. If you understood how these “system variables” could be modernized, you could reduce the rate of error. Wells argued that preventing mistakes by identifying new “best practices” in investigation would be better than trying to catch mistakes from the witness stand after they happened. The task of psychological science in this conception was the prevention of eyewitness errors as evidence was being produced, not the retrospective inspection of eyewitness testimony to see if an error had occurred.
A torrent of research followed, exploring and refining new elements of “system-variable” design (Malpass 1981). In part, this was because the ethical barriers that bedevil research into the witness’s time-of-event “estimator” experiences do not generally arise in “system-variable” investigations. Research-based designs for new techniques for interviewing witnesses without contaminating memories (Fisher and Geiselman 1989), for choosing the members for lineups and photographic arrays, and for performing identification procedures began to be developed and to gain momentum. That research coalesced around a photo-array and lineup protocol described by a number of leading researchers in an influential consensus “white paper” of the American Psychology-Law Society.
This document urged the adoption of four reforms to prevailing procedural routine. First, the authors recommended that a “blind” official who did not know the identity of the suspect administer the test. Second, the authors, adopting a line of defense pioneered by Malpass, aimed at reducing the likelihood that a witness might make a “relative judgment” that an innocent suspect “looks most like” the perpetrator and choose the suspect on that basis by urging that the eyewitness be told at every procedure that the real perpetrator “may or may not” be present in the lineup or photographic array (Malpass 1981). Third, the authors agreed that research indicated that the “fillers” in the procedure should be chosen to match the witness’s verbal description of the perpetrator rather than the suspect. Finally, the “white paper” urged that the police take a statement of confidence from the witness immediately after any choice in order to minimize the influence of “feedback” which might later boost the witness’s confidence artificially.
An alternative attack on the “relative judgment” problem, the “sequential” display of suspect and fillers one at a time was discussed but not included in the four core recommendations of the white paper, although it has since become an important (and controversial) focus of reform efforts.
Controversies Over Developing “Systems” Applications
Criminal justice system efforts to harvest the lessons of social science findings in the eyewitness area received powerful new impetus from the release of the first lists of DNA exonerations of wrongfully convicted defendants: lists on which convictions driven by mistaken eyewitnesses predominated (Garrett 2011). Many systems have begun to institute “system-variable” procedural changes based on scientific findings.
These changes have been quite varied, and they have been arrived at by different routes in different systems. In the United Kingdom, for example, where the administration of criminal justice is highly centralized, the Devlin Commission and its successors assessed the problem and suggested changes that were made broadly applicable and supported by legislation (Roberts 2009). Innovations such as a preference for video lineups over traditional live identification parades have been adopted relatively seamlessly.
In the United States, where thousands of individual jurisdictions make independent decisions about eyewitness procedures, advances have not followed a straight line.
The origin of many changes in routine practice can be traced to an influential document produced by the United States Department of Justice’s research arm, the National Institute of Justice, in 1999, in the immediate aftermath of the first DNA exonerations. The NIJ convened a mixed “Technical Working Group” composed of leading researchers, experienced police and prosecutors, and defense bar representatives (Technical Working Group 1999). That group debated the existing research in light of law enforcement operational concerns and then published and disseminated Eyewitness Evidence: A Guide for Law Enforcement, with the explicit goals of increasing the amount of eyewitness evidence collected (e.g., by employing research-generated “cognitive interview” techniques), enhancing the quality of eyewitness evidence (e.g., by avoiding memory contamination in interviews and decreasing “looks-most-like” pressures by providing pre-lineup instructions), and improving the justice system’s ability to evaluate eyewitness evidence (e.g., by requiring recording of an immediate witness confidence statement at the time of any identification).
The Guide was not an expression of scientific consensus; it emerged from a long and contentious process during which operational realities, political compromises, and an awareness that US jurisdictions are diverse in their resources and attitudes all played a role. No scientist would have considered the Guide to be “cutting edge.” For example, the Guide did not embrace a requirement that lineups be administered “double blind,” and while it did include instructions for conducting the new “sequential” lineups in which the suspect and fillers are displayed individually, it did not announce a preference for that procedure. Nor did the Guide have any binding effect on anyone; it was purely advisory.
Nevertheless, the N.I.J. Guide seems to have inspired the creation in state and local jurisdictions of similar “all-stakeholders” working groups, task forces, and commissions which have wrestled over and then ultimately adopted versions of the “double-blind sequential” approach to lineup administration. This approach, often associated with Iowa State University researcher Gary Wells, has at its core double-blind administration, fillers matched to descriptions, pre-lineup (“perpetrator may or not be there”) instructions to witnesses, “sequential” presentation of lineup members, and an immediate confidence measurement.
The spreading application of the double-blind sequential approach has not been uncontested.
Even psychologists broadly supportive of system-variable reforms have expressed doubts about the empirical basis for particular elements of the new approach, especially the “sequential” approach to the display of suspects and fillers in a lineup or photographic array (McQuistonSurrett et al. 2006).
Some feel that the double-blind sequential protocol imposes unacceptable burdens on frontline police investigators, although police in jurisdictions employing the method generally express satisfaction with its operability.
Others, both within and outside the academy, have objected on utilitarian policy grounds. They argue that the double-blind sequential format’s successes in protecting the innocent are outweighed by the fact that it also seems to reduce the rate of correct identifications of the guilty (Clark 2012). While results vary on this point somewhat from study to study, it generally appears that the double-blind sequential technique reduces the number of false identifications when the actual perpetrator is not present in the lineup or array but at the price of reducing the number of accurate identifications when the actual perpetrator is in the group (Steblay 2011). Although the increase in the rate of “false misses” in the “target present” identifications is considerably smaller than the reduction in the rate of “false hits” when the actual perpetrator is not present, the debate over whether the costs of the traditional system (in which falsely identified suspects result in the guilty going free and innocents going to prison) are outweighed by the costs an aggravated rate of “false misses” in the double-blind sequential format is a point of contention in many discussions of reform (Clark 2012).
There have also been perennial challenges focused on the ecological validity of the entire body of eyewitness findings. Most study has occurred in laboratory settings, utilizing student subjects. Within that setting, certain conditions (e.g., the terror experienced by an actual sexual assault victim during a crime) simply cannot be duplicated for ethical reasons. Although, in general, such scant “real-world,” archival data as has been compiled and studied (Berman and Davey 2001) conforms in general outline to the laboratory findings, there are exceptions, and the generalizability of eyewitness studies to real-world conditions can be expected to remain an ongoing issue.
Skepticism about the usefulness of laboratory studies in gauging the effectiveness of reformed “system-variable” practices has led to calls for “field tests” of the double-blind sequential technique in actual cases. An initial effort in this direction, designed and conducted by the Chicago Police, led to a substantial detour when it was offered as proof that the in the field the “double-blind sequential” protocol when it was claimed that it produced a higher rate of inaccurate identifications than did traditional “nonblind, simultaneous” methods. Examination of that study, however, showed that it suffered from fatal design flaws that rendered its results largely to interpret and useless (Schacter et al. 2007). A subsequent, more carefully designed field study appears to have vindicated the laboratory findings of the superiority of the double-blind sequential approach (Wells et al. 2011). Even so, it is important to remember that “superiority” here is used to mean “producing fewer mistakes” (Steblay 2011). Some commentators would put a higher value on freeing the innocent, others on identifying the guilty. It is still contested as a utilitarian matter what ratio of imprisoned innocents/freed perpetrators one finds “superior.” Although most law enforcement agencies that have confronted the trade-offs required have been satisfied that the doubleblind sequential technique strikes the best balance, the issue cannot be regarded as settled. Different agencies and jurisdictions may come to different conclusions. In the United Kingdom, for example, although video identification procedures display one suspect or filler at a time, individually, the witness controls whether the viewings terminate after one round or repeat, converting a procedure into the functional equivalent of a “simultaneous,” multiple choice test (Roberts 2009).
All field studies are hampered by the fact that they can assess only the rate of suspect identifications, using the identifications or failures to identify suspects (who may or may not be factually guilty) as a proxy measure for perpetrator identifications. Although the most recent field study, conducted by an alliance led by the American Judicature Society, made strenuous efforts to develop an approximation of the “ground truth” of the identity of the real perpetrator who was (or was not) identified in the real-world cases under examination, there is no way to be certain in a field study whether the suspect identified (or missed) was, in fact, the person seen during the commission of the crime.
There is one sense in which the future direction of the psychology and criminal justice relationship will remain unchanged: The participants will continue to attempt to educate their interlocutors in the methods, findings, and practical requirements of their mutually unfamiliar fields.
But there will be change as well as continuity.
The future development of eyewitness issues in criminal justice will advance along distinct but not unrelated paths.
Continuing “system-variable” experimentation in the laboratories and in the field will have direct impact on the fact-generating, investigations, stage of the criminal process. It can be expected that the prevention of eyewitness error through the design of better techniques will remain a primary focus and that inquiries into emerging “best practices” sparked by field experience will result in modifications. It can also be expected that adjustments in police operations – for example, the migration of identification tasks such as lineup and photo-array administration to digital media and mobile devices – will require additional scientific inquiry to guarantee that new utilities take an evidence-based approach to the gathering of memory evidence.
At the same time, weaknesses in the adjudicative, inspection, stage of the process when seen in light of the modern scientific findings must also be addressed. The DNA exonerations lists have provoked extensive commentary (Simon 2012) concerning the limited diagnostic capabilities of the traditional criminal adjudicative vehicles. Lawyers and courts will have to supplement their existing toolbox with others devices. In the aftermath of the extensive system-variable reforms to investigative interview, lineup, and photo-array routines, courts are being forced to confront the issue of how to manage the adjudication of cases where there are imperfections in the eyewitness evidence gathering that fall short of best practices but where identifications are still admissible because they do not reach the level of crude suggestion that would require their elimination from evidence altogether. This issue has reinvigorated the debate over the efficacy of expert testimony. It has led to calls to enhanced “expert-substitute” jury instructions. The question of the handling of imperfectly derived but not constitutionally excludable identification evidence has also focused renewed attention on the impact of “estimator variables,” since no set of “system-variable procedures” can completely eliminate the dangers created by a confluence of damaging “estimator variables” like lighting, race, or acute stress. Besides, a suboptimal investigative practice (e.g., a failure to give appropriate pre-lineup instructions) matters less when a calm witness viewed a criminal for a long time in an extended nonviolent crime event than it does when the event was traumatic and brief. A more sensitive ability to evaluate these complex situations can be hoped for as the education of courts and lawyers advances.
Finally, there is broad agreement among psychologists – some of whom disagree with each other on many specific issues – that the field needs to develop a more robust interest in basic theory (Clark 2012; Charman and Wells 2007). Psychologists have gained the place that Munsterberg claimed for them: They are now intimately involved in the development and evaluation of evidence. But there is a consensus that to continue to contribute in that hard-won role, psychologists will have to diligently pursue not simply discrete individual applications responding to challenges from practitioners but a broad, theory-driven program of research (Brewer et al. 2007).
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