Essay on Unreliability of Eyewitness Testimony

Unreliability of Eye Witness Testimony

            Consider this example, a person while walking along an alley hears a commotion.  As he approaches the corner of the street he saw two men in the act of shooting another.  Upon seeing a passerby the killers immediately fled.  The witness likewise immediately fled to avoid the possibility that the killers might come back and look for him.  The next day he watches television and hears the news about the person being killed.  Stories about who the possible killers may be spread across the whole town.  The police have their suspects but they have no witnesses.  The witness appeared several months after the incident telling the police that he has some information about the suspects in the killing.  The chief of police, excited that they now have a lead to the possible killers, gathers the suspects for a line-up.  The witness then pointed to one suspect as the perpetrator of the crime. 

            This research paper does not seek to negate the importance of eyewitness testimony.  In the absence of object and documentary evidence, testimonial evidence still is an effective tool in apprehending the accused.  It may happen that there is no physical evidence involved or the physical evidence found may not be conclusive to place the accused in the crime scene.   In these cases, eyewitness testimony could help solve the crime.  However, jurors should not rely exclusively in eyewitness testimony, especially if physical evidence states the contrary.  Eyewitness testimony is fallible and corruptible. 

            It is important to understand that the whole process called memory does not function like a video recorder.  Human memory does not capture everything on tape.  Memory does not record as clearly and vividly as that of the recorder.  Memory does not last for years and still be as vivid as the time when the event was first seen.  Elizabeth Loftus, in her study, has affirmed that human memory is malleable such that the original information which it has previously stored may be changed, supplemented or modified by a new memory.  (“Eyewitness Testimony and Face Recognition”)

Perception

            One of the factors that could affect our recollection of past events is our perception.  It bears stressing that to get a wrongful and erroneous conviction of an accused, the witness need not commit a perjury.  Perjury happens when a witness knowingly and intentionally makes a false statement while under oath.  Wrongful conviction may result even if the witness was unaware of it.  This is because of the way we perceive things. 

            Perception is defined as “a process or the total amalgam of sensory signals received and then processed by an individual at any one time.” (Henry F. Fradella 2006)  In layman’s term, perception is the way we see things.  There is a huge difference between the way we see, hear, smell and taste things and the way things actually are.  The object of perception may not actually what things actually are but who we are as a person making the object of perception dependent on the perceiver.  Thus, an event could actually be interpreted in a variety of ways depending on the personality of the perceiver. 

            Psychologists divide the memory process into three stages: a) the acquisition stage; b) the retention stage; and the c) retrieval stage.  The acquisition stage refers to the time when the individual perceives the event.  In the example, it is the time when the witness saw the killing by the two accused.  It is at this time when the event enters the individual’s memory.  The retention stage refers to the period of time between the acquisition and the retrieval stage.  This period of time may be as short as a few days to as long as several years.  On the other hand, the retrieval stage is the final stage of the memory process.  It is at this time that the witness tries to recall the stored information. 

Acquisition Stage

            Even at the first stage of the memory process, there are several factors that may affect the individual from getting an accurate and objective perception of an event.  In our example, conditions such as the time of the day the event happened, the distance of the perceiver from the object of the perception, the relative speed of the happening of the sequence of events.  If it was at nighttime the jury must consider whether there was proper lighting condition within the vicinity for the witness to see the two accused.  If the witness was so far away from the scene then it would not have been possible for the witness to accurately describe the accused.

            Aside from these external factors, the internal factors must also be given weight.  Factors such as the degree of attention, the degree of intoxication, stress, fear, eyesight or hearing impairment must be considered in determining the reliability of his testimony If the witness was driving or was doing something else at the time of the event then it is possible that he may not have given proper attention to the event making his testimony less reliable.  It is also possible that the witness was under a lot of stress or fear at the time of the event which would make his testimony less reliable. 

Retention Stage

            There are also obstacles and biases in retention stage which seriously affects the reliability of the eyewitness testimony.  Several factors could have an effect in the memory of the witness.  One of them is the time the event is stored in the memory until the time it is retrieved.  It is also basic that the more information is stored for the less amount of time makes the retention of the memory more difficult.  Thus, the witness may have overheard too much conversation between the parties prior to the actual killing or he may have witnessed the fight between the parties before the actual killing, this information may be too complicated for the witness to actually recall and relate.  Retention Interval or the length of time that passes between the actual storage and the actual retrieval of the information also makes the testimony less reliable. 

            The most important factor, however, in the retention stage is called the Post-Event Misinformation Effect.  After the event is perceived, the witness is exposed to different information that may significantly affect his recollection of the event.  This exposure to information may alter and change the information that is stored in his memory to suit the post-event information that he was exposed to.  (“(“Eyewitness Testimony and Face Recognition”)

Thus, when this happens, even the details of the event which were previously nonexistent maybe included in the memory.  What could be worse is that this inclusion of nonexistent details in the previously acquired memory may happen even if the witness was unaware of it.  An example of this is when the lone witness watches the news on the television and the possible suspects are shown on television.   If the pictures of these suspects are seen on television by the witness, then at the time he is made to choose in a police line up it is highly possible that his recollection of the actual event will be mixed with his recollection of the news he saw on television.   

            Another bias that may affect the reliability of the testimony of the witness is called the “confidence malleability.”  It is defined as the tendency for an eyewitness to become more or less confident in his or her identification as a function of events that occur after the identification.  (Henry Fradella) Research has shown that the statements or subliminal body messages of the person administering the police lineup may have an effect on the testimony of the witness. (“Social Psychology principles can be used to facilitate eyewitness testimony”) These statements affirming or negating the testimony of the witness have the effect of tainting the testimony making it less reliable. 

            A recent study conducted by psychological eye witness expert Gary L. Wells in Journal of Applied Psychology found that people who identify a suspect from a police lineup or a group of photos are far more confident of their choice when given positive feedback.  Conversely, people become less sure of the identification if given negative feedback.  Thus, statements during police line-ups such as “Take a look at the 3^rd man!” or “Are you sure he is the man you saw and not the 2^nd man in the lineup?!” or “Great! We knew he was the one” are subtle signs which are enough to confuse the eyewitness. 

            It is because of the confidence malleability doctrine that it is suggested that the administrator of the police line-up must have no knowledge of who the actual suspect is and who are the mere fillers.  (Zak Stambor) Psychologists suggest that the administrator must be in the same position of the witness who must have no knowledge of who the actual suspect is among the line-up and who are mere fillers.  This practice will help avoid the possibility of the administrator giving subtle signals and statements to the witness.  This will also avoid situations wherein the administrator gives suggestive or leading questions to the witness.  This situation wherein both the witness and the administrator of the line-up both do not know the suspect is known as the double-blind. Wells has suggested that double blind system is not only applicable in Behavioral Science but it also has useful application in the criminal justice system.  (Garry L Wells and Elizabeth A. Olson)  

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            The lack of understanding and knowledge by the witness that the suspect may not even be in the police line-up may also affect his testimony.  (Marc Green)  In a police lineup, the witness is most likely to assume that one of the presented in the police line-up is a suspect.  He may think that he has to make a choice among the people presented to him because otherwise he would not be needed in the line-up.  There is also that pressure upon the witness that he has to make the choice among the suspects before him.  It is because of these reasons that it is suggested by experts in Psychology that the witness be apprised before hand that it is possible that the suspect may not even be in the line-up.  (Kathryn Foxhall) This lightens the pressure upon the witness and informs him that he does not have to make a choice among the suspects in the line-up if based on his recollection no one resembles the perpetrators of the crime.  

            The manner of the presentation of the suspects in the police lineup also affects the retention of the memory of the eyewitness.  The customary manner of presenting suspects is that all of them are simultaneously presented at the same time to the eyewitness.  Recent studies have shown that the witness has greater possibility of making false identification when all suspects are presented simultaneously at the same time.  In this procedure, the witness almost always makes the choice as to who among the suspects appearing before her is the most likely culprit, to the point of comparing which among the persons in the lineup is the most likely suspect instead of making a genuine recollection of the event.

            It is therefore preferred that the sequential viewing of suspects in a police line up should be adopted.  In this procedure, the testimony is more reliable because he is more likely to test his recollection on the basis of what is in his memory and not among the suspects who are in front of him.  Also, before the next suspect is shown to the witness the administrator will have to ask the witness whether or not he is sure of his choice.  This same theory has been applied in the use of photographs as a means of identification of the suspect.  It is said that using a sequential technique in the presentation of photographs rather than presenting them all at once cuts down on witnesses mixing and matching different suspects’ faces.  (Melissa Dittmann) 

            Further, the differences in the appearance among the suspects presented in a police lineup likewise send implicit signals to the witness.  Every police line-up should be administered in such a way that all the persons in the police line-up actually resemble the suspect. (“Social Psychology principles can be used to facilitate eyewitness testimony”)  No one should actually stand out from the rest.  Fairness demands that the suspects must at least be of the same height, skin color, and clothing.  Making one suspect stand out from the rest would be as if the administrator of the police line-up is making the witness point to him.   

            Photo-biased Identification is another factor that affects the reliability of the eyewitness testimony.  Research shows that constant exposure to photographs before the police line up makes the latter’s face look and appear to be familiar.  This familiarity may be mistaken by the eyewitness to be the actual accused.  It may happen that because of the constant viewing of photographs the witness may actually confuse the face that he saw during the killing and the face that he saw when he was viewing the photo.  Thus, unconsciously, the witness may actually think that the person he was pointing to was the person who committed the crime where in fact he was only pointing to a person whose face resembled that of the photograph he saw earlier. 

            Further, the distortion in the memory of the witness need not be caused by extraneous events, it may be caused by the perceiver himself.  One factor here is his relationship with the accused.  It is possible that the testimony of the mother in favor of her son that her son was not present at the time of the killing is less reliable compared to the testimony of a disinterested person testifying that he actually saw the accused at the scene of the crime.  The second is his age.  Old age affects the memory of a witness.

            It is possible that the memory in the mind of the witness is no longer the original memory and is no longer an accurate perception of the event because of the biases of the witness himself.  When the witness has told his story, this act itself may distort the original memory.  Psychologists say that when witnesses have stated facts in a particular way or have identified a particular person as the perpetrator in a particular way, most of the time he is unwilling to reconsider the possibility that he may have given a wrong description of the event or wrong identification of the perpetrator.  Thus, the act of telling a story adds another layer of distortion, which in turn affects the underlying memory of the event.  (Laura Engelhardt)  It is because of this that when a witness has identified a person in police lineups he is likely to identify the same person he has previously identified in later line-ups. 

Retrieval Stage

            Insofar as the Retrieval stage is concerned, research shows that it is possible that some other images in one’s memory may actually taint the testimony of the witness as he is trying to recall the event.  This is called the unconscious transference where memory images in the past may without the knowledge of the witness be actually confused with other memory images.  In a study conducted by Robert Buckhout (1974), he staged a mock assault in front of 141 unsuspecting students.  These students were later asked to identify the perpetrator from the 6 photographs shown to them.  Of the 60% who did not correctly identify the assailant, 2./3 chose an innocent bystander who was present at the crime scene.  Applying this in our previous example it is very likely that the witness’ memory of who the actual killers were may be confused with his other memories such as faces of those people whom he met before or after witnessing the killing. 

       

Conclusion

            Eyewitness testimony is still one of the most important pieces of evidence that may help bring perpetrators of crime to justice.  It is still reliable in some instances such as when the witness knows the suspect or he has previously seen the suspect. It is also reliable when supported with physical evidence.  However the readers must understand that eyewitness testimony is not reliable at all times.  Jurors must therefore be cautious in making use of eyewitness testimony in convicting the accused on the sole basis of an eyewitness testimony.   

            The knowledge of the fallibility and malleability of eyewitness testimony provides the readers with useful insights as we are prone to believe anything that another person tells us.  Human memory is not as error-free as we think it is.  I have shown that right from the moment of the perception, we already have different ways of seeing, hearing, smelling and tasting an object and this depends on our experience and personality.  During the acquisition stage, eyewitnesses can have a distorted view of the event because of the distance, lighting conditions, and the speed of the sequence of events.  Individual differences may also affect the acquisition stage because of stress, fear, poor eyesight, hearing impairment, degree of attention and degree of intoxication at the time he saw the event.  I have also shown that even if the witness has an accurate view of the event there are certain factors which happen after the event and before the memory is retrieved which significantly affect his memory such as post-event information, leading questions, confidence malleability, knowledge of the administrator of the line-up, simultaneous showing of the accused in the line-up, photo-biased identification, relationship with the accused, old age, and the retelling of the story by the witness. 

            All these pieces of evidence point to the reality that despite our overconfidence in human memory, human memory is weak and could be affected and influenced by external factors and factors peculiar to the perceiver.  As a result, eyewitness testimony which depends so much on human memory can be lost or destroyed or even contaminated.  However, this does not mean that any testimony coming from an eyewitness should not be relied upon by the jurors. 

            By presenting this research paper , I do not intend to destroy our confidence in eyewitness testimonies.  I merely aim to help in making guidelines that could make it more reliable.  By understanding its weakness, means and procedures could be devised so that eyewitness testimonies would be less vulnerable to external and internal factors. 

            There are still sufficient safeguards that the rules of evidence have provided us in order to ensure that the testimony used to convict the accused is not tainted by bias and prejudice.  The Rules of Evidence in every judicial body allows the opposing counsel to cross-examine the witness.  Cross-examination of witnesses serves to check the accuracy of the recollection of the witness thus reducing the possibility of error.  Also, it is not sufficient that the witness is reliable but the testimony must also be credible.  Credibility and reliability are two distinct terms.  Credibility refers to the likelihood that the facts to which the witness testify to is an accurate perception of the event.  Further, eyewitness identification is not the only basis for convictions.  The account of the eyewitness must actually coincide with the other pieces of evidence presented in court.  These rules are sufficient safeguards that ensures that that testimony  

            Aside from the procedural safeguards, Psychologists have also provided us with sufficient psychological safeguards to avoid the possibility of error in the testimony of eyewitnesses.  In every police line-up due care must be taken by the person administering it so that the suspects are presented to the witness sequentially not simultaneously.  It is also advised that there be a number of suspects to be presented to the witness to reduce the possibility of the latter making erroneous identifications.  Both the administrator of the line-up and the witness must have no knowledge of who the actual suspect so as to avoid the possibility of the administrator making suggestive and leading signs and statements to the witness.  The witness must actually be informed of the possibility that the witness may not even be in the line-up.  

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