Eyewitness testimony is a powerful tool within any field, particularly that of justice, as it is a readily accepted form of evidence that allows for convictions. Tests conducted in 1979 (Loftus) have shown an enormous 54% swing from a non-guilty verdict, to that of guilty within the same case simply through the introduction of an eyewitness. This alone displays the potency of eyewitness testimony, and asserts the theory that jurors tend to over believe, or at least weigh heavily on such evidence (Kennedy & Haygood, 1992).

Unfortunately in its present state, eyewitness evidence – though technically reliable in its own right – tends to convict innocent individuals in a devastatingly high proportion, estimated at 45% (Loftus & Ketcham, 1991). This alone proves to be the single highest instigator of wrongful conviction, even higher than wrongful conviction types combined. The cause, as pointed out by many social psychologists, is directly related (among other things) to casual remarks and subliminal body messages that take place between the eyewitnesses and those who administer suspect lineups and photo spreads. In fact, any activity that condones ("Okay, we had a feeling that he might have been the one.") or bolsters ("Great! We knew it was him.") an eyewitness’s testimony is inevitably distorting that witness’s memory (Chartier, 1997) by filling in vague and fuzzy recollection with fictional facts. This kind of feedback can artificially increase the confidence level of the eyewitness by possibly inspiring false perceptions such as "if the police believe it, then they must be right", and "after all, if they did not have a suspect they would not require the assistance of the witness". Tests conducted by the National Science Foundation (1997) revealed that once memory has been distorted in this way, a straightforward cross-examination will fail to distinguish inaccurate recollections. Furthermore, eyewitnesses will even tend to change their stance as to how well they witnessed an incident, those involved, and other relating factors.

One of the things that happens when you place a victim of a serious offence together with a police investigator, is the unification of goals. Both have a desire to solve the crime, but if the victim has a very strong desire to solve that crime – as most victims of serious crimes do - they become especially sensitive to any feedback they may receive. And so, if the investigator has a suspect in mind, there remains the possibility that they may communicate that idea to the victim unwillingly (Loftus, 1998). This interaction is known as suggestibility, and is defined as the tendency of individuals to accept uncritical information during questioning, or merely complying with what they believe the interviewer wants to hear (Sadava and McCreary, 1997). On the other hand, some interviewers have a tendency toward adopting self-fulfilling prophecy techniques, whereby questions are specifically designed to generate flawed results (Sadava and McCreary, 1997), and any information that does not fulfill these expectations is simply ignored.

A study conducted in 1986 by Kwock and Winer concluded that suggestibility depends on a variety of factors, including the identity of the person proposing questions, assertiveness and reactive responses. Those designated as experts, as opposed to apparent novices, are more likely to influence responses (Sadava and McCreary, 1997).

The general attitudes toward child witnesses have changed dramatically over the last decade, though some psychologists are still divided. Some deem children as reliable and quiet capable of providing accurate and detailed testimony (due to their resistance to suggestion regarding events they took part in), whilst others describe them as having difficulties in distinguishing reality, for which further questioning must be initiated, and thus unreliable (Ceci & Bruck). But over all, it is logical to assume that children have similar failings to their adult counterparts, with the possible exception of being more easily confused by technical or unclear questions.

With so many inherent failings, continued use of the present testimonial system would be illogical. It does not achieve the unbiased facts that it sets out to obtain, instead, it violates them. But, with a few well thought modifications, this fruitless system can quiet easily be modified to achieve the ideologies it was intended to.

False identification can be remedied in several ways. Firstly, in suspect lineups, the eyewitness should be informed that there is a large possibility that the culprit is not present. This in itself will remove the "one of these individuals must be guilty, otherwise I would not be here" mentality. In doing so, identification will no longer be based purely on similarity defaults, but true recognition. This will alleviate the selection of innocent individuals simply because they were of a similar appearance to that of the criminal. Furthermore, it might prove beneficial to have two or more lineups, the total number of which is undisclosed to the witness, in order to promote the fact that the culprit can not be in each. By not disclosing the amount of lineups that a witness will be asked to participate in, they will not make rash decisions based on the perception "I better pick one quickly because I am running out of options". Secondly, the suspect lineup should be composed of individuals that fit the basic recollection of the witness. For instance, if the culprit were of a certain race, it would be unwise to have only one individual of that race present, because the chances are more than likely that they will be pointed out as the offender. So to, it is necessary to have different lineups for each individual witness, because individuals see and perceive events differently (William, 1999) and need a lineup consisting of individuals that bare a resemblance to their own personal recollection. Thirdly, because a wealth of scientific evidence suggests that interviewer’s expectations, wishes and hopes unintentionally influence the respondent (Wells, 1998), it would be prudent to supply interviewers who are unaware of the facts surrounding the case. This will remove the possibility of that the interviewer inadvertently making suggestions as to who is guilty and who is not by direct or indirect vocal and/or body language reactions. Fourthly, the eyewitness should be questioned as to how they selected their suspect in order to distinguish the possibility of error. And lastly, no comments should be made to the witness after their selection as to accuracy, because this may bolster their perceptions, which will affect the quality of testimony at later stages.

The guidelines for suspect lineups are also applicable to photospreads. At no time should the tester initiate any form of interaction with the witness who is attempting to distinguish the true offender. Comments such as "Take a closer look at this one" should never be used, in fact, the only comment that should ever be made would be "Remember, the suspect may not be present within this photospread". This will remove any pressures from the witness, and ultimately lead to a better selection. AS with lineups, it is important to question the witness as to their conclusion. Accurate witnesses tend to have difficulty in providing descriptions as to how they reached their decisions, whilst inaccurate witnesses tend to waffle about their choice, explaining their process of elimination (e.g. "I compared photos to each other in order to narrow down my selection") (Dunning, 1995). In such instances, the testimony should either be struck out, or not weighed upon heavily.

Witness questioning also plays an important factor within the development of a functional testimony system. When questioning a witness – particularly in the case of children – it is important to approach them with questions that are not perplexing, but instead clear and conscious. Unclear questions lead to uncertainty, which in turn leads the witness to become more reliant on the context of questions. The use of earlier made statements by the witness are good tools for cross referencing the validity of eyewitness testimony, but this cross referencing must be done in a non hostile, non accusatory way to decrease the possibility of increased anxiety (Sadava & McCreary) which would otherwise create an unstable witness. At the same time, particular attention needs to be placed on the wording within questions, as one term might produce a different response to that of another – even though technically, the two words might have identical meanings (e.g. smash and contact).

One other possible solution that needs to be reviewed in order to further reduce the possibility of errors, is the deployment of information regarding the soundness of each individual eyewitness’s testimony to judges and juries for consideration. Further more, the judge should take time to explain to all jury members, in a clear and comprehensive manner, the dangerous relating to eyewitness testimony.

Eyewitness testimony can play a beneficial part in the criminal justice system if factors such as police procedures are controlled under the strict guidelines. If witness identification is correctly implemented, investigators and prosecutors will be able to make their judgements more effectively, and thus focus their resources more efficiently (Malpass & Kochnken). It should be kept in mind though, that even if all the social aspects mentioned are completely controlled, there still remains the possibility that errors will continue to occur due to memory recall errors, and overly emotional witnesses who simply wish to see someone punished for their crimes. But regardless of this fact, there would undoubtedly be a remarkable recovery from the present 45% wrongful conviction rate as displayed within many studies.

References

Ceci, S., Bruck, M., Jeopardy in the Courtroom, Internet Address http://www.apa.org/books/jeopardy.html
Chartier, G. (1997) False identification: New research seeks to inoculate eyewitnesses against errors, National Science Foundation
Dunning, D., (1995) Untitled, Cornell Psychology Department – Internet Address http://comp9.psych.cornell.edu/Psychology/research/Dunning_Research
Kennedy, T. D., Haygood, R. C., (1992) The discrediting effect of eyewitness testimony. Journal of Applied Social Psychology
Loftus, E. (1998) What Jennifer saw. Frontline – Internet Address http://www.pbs.org/wgbh/pages/frontline/shows/dna/interviews/loftus.html
Loftus, E. (1979) Eyewitness Testimony. Harvard University Press
Loftus, E., Ketcham, K. (1991) Witness for the defence. The accused, the eyewitness, and the expert who puts memory on Trial. St. martin’s Press
Malpass, R., Kochnken, G., (unknown) Psychological issues in eyewitness identification, Internet Address http://www.erlbaum.com/html/2291.htm
Sadava, S., McCreary, D. (1997) Applied social psychology. Prentice Hall
Wells, G., (1998) Needed new legal procedures, Frontline – Internet Address http://www.pbs.org/wgbh/pages/frontline/shows/dna/etc/police.html
Williams, K., (1999) Psychology & Law: Eyewitness Testimony, University of Sydney – Internet Address http://www.psy.unsw.edu.au/~kipw/Lectures/3rdYearPsychLaw/PL7-Eyewitness_files/v3_document.htm

Written By Evan Sycamnias - 1-9-1999