Should eyewitness testimony be allowed in court

An eyewitness testimony is a report made by a person who observed an event. Police, prosecutors, juries and judges in court generally believe, trust and accept eyewitness testimony, especially if no other evidence (objects, documentary and/or physical evidence) is available and if the eyewitness has no reason nor motivation to give false statements (Wells et al., 2006). Notably, eyewitnesses provide the criminal justice system with important details around the criminal event such as identifying the criminal or recalling incidents or conversations (Wells et al., 2006). For the legal system, they are perceived as being an important and credible delivery of information, yet they can be completely wrong. Indeed, psychologists have warned the criminal justice system about eyewitness testimony and its error-prone nature (Fradella, 2006).

Backed up with a vast amount of research (starting in the early 1900s), the legal system has not believed or given considerable attention to what psychologists have been constantly finding. Only the establishment of DNA-testing in the 1990s, showing that many punished convicts were innocent in reality, did reveal the almost 900 exoneration cases – with eyewitness testimony misidentification attributed as the main cause (Gross & Schaffer, 2012). Consequently, the image of eyewitness testimony as being a trustful source has been weakened and eyewitness psychology has gained trust (Wells et al., 2006). Despite the improvements based on the results of eyewitness research, complete accurate identification is still not guaranteed. Hence, this essay will focus on the question whether eyewitness testimony should or should not be admitted in court on the basis of the research findings in the field of memory and eyewitness testimony.

The case of Kirk Bloodsworth is one of the first of the numerous examples which illustrate eyewitness testimony fallacy and underlines the importance of research and improvements in this area. Bloodsworth was exonerated after DNA fingerprinting proved his innocence of rape and murder crimes, having by that time spent 9 years of two consecutive life sentences in prison. Staggeringly, five different eyewitnesses had maintained that he was seen with the victim, greatly influencing his sentencing and highlighting the extent of the erroneous ways of testimony (Kassin et al., 2010).

The error-prone and corruptible factors of eyewitness testimony is backed up by psychological sciences (Fradella, 2006). Deriving from our memory, eyewitness testimony requires an understanding of its processes as a primary step. In essence, human memory consists of three stages: acquisition, retention and retrieval with each stage subject to false and distorted memory. No legal system, however, has ever carried out experiments on human memory or eyewitness testimony to understand the processes behind it (Schmechel et al., 2006). Rather, they heavily rely on it and treat eyewitness testimonies as an equivalent to a videotape. This is despite the fact that our cognitive and mental processes are in fact subjective reconstructions of events (Loftus & Ketcham, 1997). Hence, drawing conclusions from sole reliance on eyewitness testimony cannot be objective.

Simply by knowing how memory works and conducting experiments to explore its limits, a great amount of information can be learned and then applied to eyewitness testimony and its treatment in court. This would work towards making the legal system trustworthier. Thus far, memory and eyewitness testimony have been thoroughly investigated with widely acknowledged methods. (Schmechel et al., 2006). Furthermore, through new innovations and technology, methodologies have improved (e.g. showing videotape scenarios) and became better linked to real life scenarios (Memon et al., 2008). As a result, research from psychological sciences can be a powerful and reliable source to help the criminal justice system to understand and accurately incorporate eyewitness testimony in court (Schmechel et al., 2006).

Wells and colleagues (2006) focused on when and why eyewitness testimony is most likely to be error-prone, verifying a complex interaction of memory processes and social influence. All characteristics and circumstances of the witness, the crime scene and the culprit have to be considered. These factors are called estimator variables (Wells et al., 2003). For example, memory and identification accuracy is higher when the eyewitness and the culprit are of the same race (Birgham & Meissner, 2007) as well as the same age (He et al., 2011). Absence of a weapon at the crime scene (Wells et al., 2006), low stress and anxiety provoking situations (Deffenbacher et al., 2004), mood (Forgas et al., 2004), attention (Haber & Haber, 2000) and gender (Areh, 2011) of the eyewitness as well as the time elapsed between event and recall (Cutler, 2006) and exposure duration to the event (Memon et al., 2003) have an impact on accuracy. Even though those variables cannot be controlled, merely by knowing and being aware of these findings, eyewitness testimony can be treated differently and more cautiously. Therefore, if eyewitnesses are allowed to be in court, the judges need to factor in the circumstances they were in and on these grounds weigh up the importance and reliability of their testimony.

The so called system variables, on the other hand, can actually be controlled by the system. The constructions and content given, behavioural influence as well as the chosen method of presentation by the interviewer fall under the category of such variables. Memory can be falsified through a person’s’ general knowledge (Bartlett, 1932). In our long-term memory we store many different schemes of knowledge. When we have to reconstruct specific events and its details, inaccuracy can arise from our idea of what must have been true or what makes the most sense by using stereotypes or filling the gaps of missing or ambiguous details. This, strikingly, does not match with what has been seen in reality. Moreover, this can especially be falsified through postevent information, in either a social (information exchange with other individuals or media) or nonsocial way (misleading questions or suggestions) (Skagerberg & Wright, 2008). These explicit, but also subtle, forms of (mis)information can unconsciously produce altered (Loftus & Palmer, 1974) or blended memory (Wright & Loftus, 2008). Knowing this, research went further and looked at how to improve the process of interviewing (which affects the recall of memory) as well as the identification process of the suspect (which involves recognition memory), examining social influences in both cases (Wells et al., 2006).

Together, these research findings as well as real examples suggest that eyewitness testimony should not be admitted to court as it may lead to many wrong prosecutions. As seen, subjectivity, suggestibility, and fallibility of memory as well as social influences, environmental and personal circumstances make it hard to assess the accuracy of eyewitnesses statements.

Promisingly, many improvements have been already implemented due to advances in eyewitness research, making eyewitness testimony more accurate as well as reliable for the court, suggesting that further research is the key for eliminating false convictions. The cognitive interview (which is an interview based on all knowledge about memory and social influence in order to get more accurate information whilst interviewing eyewitnesses), training for police, judges, juries etc (instructions, behavior, etc), the structure of lineups (pre-instructions, content, presentation time and method), adding eyewitness experts to the court to assist the judges and being aware of the uncontrollable influences (Wells et al., 2006) are such amendments. Of paramount significance, the question still remains if these improvements can really be called improvements. For example, the change in lineups only lead to 50% of the time to correct target identification or the fact that eyewitness experts increase scepticism in judges as well as they are not case-specific (Leippe et al., 2004). Hence, it is still highly disputable, if elimination of eyewitness testimony would make the legal system more accurate.

Eyewitness testimony, in my opinion, still is an undeniably important source for the legal system since there are no CCTV security operations installed in every corner of the world. Only the person who has been present at the scene can report what has happened. Yet, the evidence presented is substantially consistent with the notion of eyewitness testimony fallacy. As such, further changes in the justice system need to be operated for the pursuit towards fairer sentences. As the idea of CCTV security operations being installed everywhere is impossible, one shall still refer to the “human video camera” – but only as long as it is viewed with a sceptical eye, keeping the research findings in mind in order to minimise the amount of innocent people in jail as well as the guilty people on the loose.

As the crucial decisions lie within the power of the justice system, the improvements should primarily focus on raising awareness of the potentially errant aspects involved in witness recollection of events in agencies of the legal system. Changes in education and training, combining investigation with the psychological variables in the criminal event, can contribute to a fairer inquiry. Concomitantly, further research should encourage new ideas for the development of novel assessment criteria, for example using brain activity measures, eye movements, and heart rate change measurements to make eyewitness testimony an authoritative source of information (Wells et al., 2006).

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