Psychological research shows that eyewitness testimony is not always accurate; therefore, it should not be used in the criminal justice system. Discuss.

Psychological research shows that eyewitness testimony is not always accurate; therefore, it should not be used in the criminal justice system. Discuss.

Since the exoneration of wrongly convicted people through DNA evidence, the question of whether eyewitness testimony should be used in the Criminal Justice System (CJS) has been debated. This essay will discuss different estimator variables affecting eyewitness testimony, both during the event – face-recognition challenges; stress and trauma; weapons focus and interference - and after the event – misinformation effect and suggestibility; and unconscious transference. Thus concluding that eyewitness testimony has known limitations, but with adaptations of certain practices - recording of testimony; cognitive interview; specific guidelines for lineups or photo arrays; recommendations for jurors, and expert testimony - it can improve the probative value of eyewitness testimony allowing it to continue to play an important role in the CJS.

Eyewitness testimony is defined as formal evidence of a persons direct observations of an event in question (Mann & Blunden, 2010), and is considered a vital part of the Australian CJS for both investigating and prosecuting crimes. Eyewitness testimony is one of the oldest forms of evidence and was previously considered the most credible source to implicate a suspect short of perhaps a confession (Vollen, 2005). However, eyewitness testimony is fundamentally defective due to its reliance on the human senses and on the brain’s ability to process and remember these perceptions (Howitt, 2012).

Not all eyewitness testimony would be at risk of misidentification, examining the violent crime statistics for assaults where the relationship between victim and offender was stated, 81% of female and 49% of male victims knew the offender (Australian Bureau of Statistics, 1997–2010). In these cases, eyewitness misidentification would be negligible. However, in circumstances where the victim and offender are strangers the risk of eyewitness misidentification increases substantially (Megreya & Burton, 2008).

Formation of memory goes through three stages, encoding which is the receiving, processing and combing of received information; the formation or the storage of a permanent record of the encoded information and finally retrieval or recollection of the stored information (LaBar & Cabeza, 2006). Research has shown that memory is fallible and the limitations of memory can be classified into three main categories:
Forgetting:
Transience – memory for facts and events typically become less accessible over time, even when an event has been well encoded and recalled immediately (Schacter, 1999).
Absent-mindedness – insufficient attention or lapses during encoding (Schacter, 1999).
Blocking – information is present but temporarily inaccessible “tip of the tongue” (Schacter, Chiao, & Mitchell, 2003)
Distortions:
Misattribution – memories attributed to an incorrect source (Schacter & Dodson, 2001)
Suggestibility – implanted memories of things that didn’t occur, an example would be the misinformation effect (Ridley, Gabbert, & La Rooy, 2013).
Bias – memories can be influenced or distorted by current knowledge, beliefs and expectations, likewise memories of past events can be swayed by current temperament and emotional state (Schacter et al., 2003)
Persistence: unwanted or traumatic recollections that people cannot forget (Schacter et al., 2003)
Nearly all of these categories can alter an eyewitnesses recollection of the event in question and cause false accusations or identification error (Wells, Memon, & Penrod, 2006).

There are numerous face recognition challenges that can affect accuracy of eyewitness identification, one such difficulty lies in the initial encoding of unfamiliar faces, especially during traumatic events (Megreya & Burton, 2008). Early research proposed that people were experts in recognising unfamiliar faces, with recognition of more than 90% sometimes reported. However, it is now known that this high accuracy represents memory for the image of faces and not the faces themselves (Megreya & Burton, 2008).

Another face recognition challenge falls under the cross-racial identification effect or own-race bias. Which is the diminished capability of people to identify faces and facial expressions of people of a race other than their own (Josephson & Holmes, 2008). As people have trouble distinguishing other races faces and facial expressions, this falls under the misinformation act, as they are believed to be misinformed about other races (Meissner & Brigham, 2001).

Stress and trauma during an event can affect encoding of the memory. Memory can be suppressed out of conscious awareness or dissociation may occur as a coping mechanism (Hoscheidt, LaBar, Ryan, Jacobs, & Nadel, 2014). Studies have shown that stress in small amounts can help aid memory encoding while high amounts of stress along with other factors is sometimes detrimental to memory encoding (Hoscheidt et al., 2014).

These other factors can include: the quality of the lighting where the event occurred; how long the offender and witness were near each other; how close the witness and offender where to each other; if the witnesses view was obstructed; the age of the witness (the young and the elderly tend to be less accurate) and the estimated distance between the witness and the crime (Howitt, 2012).

Interference is another factor than can influence memory encoding; it is caused by numerous stimuli distracting the witness from the main detail (the crime). A version of this is the weapon focus effect, which is caused by the narrowing of a persons attention to focus on the dominant aspect (the weapon), which in turn causes the witness to lose focus on the peripheral aspects (the offenders characteristics) (Hope & Wright, 2007).

Witnesses can be exposed to retroactive interference that may alter their memories of the event, there is a real possibility they can be compromised by either suggestibility (the influence of other people’s expectations on their memory) or misattribution (information that has been attributed to the incorrect source) (Schacter & Dodson, 2001). This is called the misinformation effect (Loftus, 2005).

Unconscious transference is defined as an eyewitness misidentification of an innocent person for the offender because of their exposure to the innocent person in another context. This context could be the innocent person was a bystander at the event, or when the person was seen in a mug shot array and is then picked out at a live lineup (Read, Tollestrup, Hammersley, McFadzen, & Christensen, 1990).

A famous example of both unconscious transference and misinformation effect is the Ronald Cotton case, where the witness Jennifer Thompson incorrectly picked Cotton out from a mug shot array and then again in a police lineup (unconscious transference) (Howitt, 2012). After picking Cotton out in the lineup Thompson was advised that she had chosen the same suspect both times thus reinforcing her belief and memory of Cotton being the offender (misinformation effect). Thompson’s testimony helped convict Cotton who was in prison for 10 years before DNA evidence exonerated him (Howitt, 2012).

Current research has shown clear evidence that suggestive influence or misinformation on eyewitness testimony can be completely reversed and in some instances, memory improved, even after significant time has passed (Oeberst & Blank, 2012). The researchers put forward that it might be possible to develop real world procedures to lessen the influence of misinformation even after the fact (Oeberst & Blank, 2012).

While it may seem insurmountable to counteract these limitations to eyewitness testimony, there are certain practices and procedures that have been proven to do just that. Research suggests that the initial information provided by an eyewitness is the most precise and it is therefore essential to store this information accurately, preferably with both video and audio recordings (Kebbell, Wagstaff, & Britain, 1999). This helps in providing accurate information for both police investigations and the judge and jurors to watch at the trial.

The most effective way to get accurate information from the eyewitness is via the cognitive interview (CI) and more recently the enhanced cognitive interview techniques. The primary focus of the CI is to help minimise misinterpretations, confabulation, misinformation, and suggestibility (Geiselman, Fisher, MacKinnon, & Holland, 1985). CI employs four memory retrieval mnemonics:
Mentally reestablishing the environmental and personal framework that occurred at the time of the event (Geiselman et al., 1985).
Reporting everything, even incomplete information, despite the perceived significance of the information (Milner, Squire, & Kandel, 1998).
Describing the events in a variety of orders (LaBar & Cabeza, 2006).
Recounting the events from a variety of perspectives (Geiselman et al., 1985).

A police lineup or identity parade, helps an eyewitness identify the offender by viewing an array of photos or live suspects (Robinson-Riegler & Robinson-Riegler, 2013). A set of procedures should be in place for police to follow to reduce bias and therefore increase the accuracy of eyewitness identification. These guidelines should be:
Make sure the eyewitness is aware the offender may not be present (Wells et al., 2006).
A double blind procedure to prevent any information or feedback given to the eyewitness about possible suspects (Howitt, 2012).
A sequential lineup, where photos are presented one at a time, resulting in less risk of misidentification (Hansen, 2012).
Known innocent non-suspects should be used as fillers in lineups. Then if his or her memory is unreliable it will be revealed if the eyewitness chooses someone other than the suspect. (Hansen, 2012).
The initial report of the offender, provided by the eyewitness and the known innocent fillers should match (Hansen, 2012).
The 10-12 second rule. Eyewitnesses who identify an offender from a line up promptly tend to be more accurate than those that take more time (Dunning & Perretta, 2002).

Numerous studies have shown that jurors are generally unaware of factors that affect the reliability of eyewitness identification and consequently are unable to distinguish between accurate and inaccurate testimony; and credible vs. discredited eyewitness testimony (Cutler, 1995) . When eyewitness testimony is used in court, precautions should be taken to ensure both judge and jury are aware of the limitations of memory and eyewitness testimony. A set of guidelines listing information on the cross-racial identification effect, the weapon focus effect, the detrimental effects of stress on eyewitness testimony as well as lineup procedures should be provided to all jurors (Houston, Hope, Memon, & Don Read, 2013).

Once the jurors understood the limitations of eyewitness testimony, it would be essential to then have an expert witness in eyewitness testimony testify. An expert is someone whose level of knowledge, skill or experience in a particular area qualifies them to present their opinion during legal proceedings (Mann & Blunden, 2010). Research over the last 30 years has shown it is the only legal safeguard that is effective in informing jurors to eyewitness errors (Wise, Sartori, Magnussen, & Safer, 2014). This is especially important in cases where there is only circumstantial evidence - where the jury is given a fact or facts and asked to infer a further fact or facts (Mann & Blunden, 2010) - or where no DNA evidence can link the suspect to the crime.

Eyewitness testimony can sometimes be considered direct evidence. Direct evidence is adduced from a person who personally witnessed the event sought to be proved (Mann & Blunden, 2010); this in itself can be dangerous given what we know about the shortcomings of memory and eyewitness testimony. It is imperative that the CJS has safeguards in place that prevent a decision being made purely on eyewitness testimony.

By understanding the limitations to memory and how it can affect eyewitness testimony in turn helps reduce the possibility of misidentification of an offender and the possibility of a miscarriage of justice by convicting an innocent person. Eyewitness testimony is vital to the criminal justice system as long as precautions are put in place such as cognitive interviewing techniques; the recording of the initial information provided by the eyewitness; specific instructions for both photo array and live lineups; guidelines for jurors, expert testimony and the prevention of a trial being based entirely on eyewitness testimony.

Bibliography
Australian Bureau of Statistics. (1997–2010). Recorded crime, victims, Australia. (cat. no. 4510.0). Retrieved from http://www.abs.gov.au/.
Cutler, B. L. (1995). Mistaken identification: The eyewitness, psychology and the law: Cambridge University Press.
Dunning, D., & Perretta, S. (2002). Automaticity and eyewitness accuracy: a 10-to 12-second rule for distinguishing accurate from inaccurate positive identifications. Journal of Applied Psychology, 87(5), 951.
Geiselman, R. E., Fisher, R. P., MacKinnon, D. P., & Holland, H. L. (1985). Eyewitness memory enhancement in the police interview: cognitive retrieval mnemonics versus hypnosis. Journal of Applied Psychology, 70(2), 401.
Hansen, M. (2012). Show me your ID: Cops and courts update their thinking on using eyewitnesses. ABAJ, 98, 18.
Hope, L., & Wright, D. (2007). Beyond unusual? Examining the role of attention in the weapon focus effect. Applied Cognitive Psychology, 21(7), 951-961. doi: 10.1002/acp.1307
Hoscheidt, S. M., LaBar, K. S., Ryan, L., Jacobs, W. J., & Nadel, L. (2014). Encoding negative events under stress: High subjective arousal is related to accurate emotional memory despite misinformation exposure. Neurobiology of Learning and Memory, 112(0), 237-247. doi: 10.1016/j.nlm.2013.09.008
Houston, K. A., Hope, L., Memon, A., & Don Read, J. (2013). Expert Testimony on Eyewitness Evidence: In Search of Common Sense. Behavioral Sciences & the Law, 31(5), 637-651. doi: 10.1002/bsl.2080
Howitt, D. (2012). Introduction to forensic and criminal psychology (4th ed.). Harlow, England ; New York: Pearson.
Josephson, S., & Holmes, M. E. (2008). Cross-race recognition deficit and visual attention: do they all look (at faces) alike? Paper presented at the Proceedings of the 2008 symposium on Eye tracking research & applications, Savannah, Georgia.
Kebbell, M. R., Wagstaff, G. F., & Britain, G. (1999). Face Value?: Evaluating the Accuracy of Eyewitness Information: Home Office, Policing and Reducing Crime Unit, Research, Development and Statistics Directorate.
LaBar, K. S., & Cabeza, R. (2006). Cognitive neuroscience of emotional memory. Nature Reviews. Neuroscience, 7(1), 54-64. doi: 10.1038/nrn1825
Loftus, E. F. (2005). Planting misinformation in the human mind: a 30-year investigation of the malleability of memory. Learn Mem, 12(4), 361-366. doi: 10.1101/lm.94705
Mann, T., & Blunden, A. (2010). Australian law dictionary. South Melbourne, Vic: Oxford University Press.
Megreya, A. M., & Burton, M. A. (2008). Matching Faces to Photographs: Poor Performance in Eyewitness Memory (Without the Memory). Journal of Experimental Psychology: Applied, 14(4), 364-372.
Meissner, C. A., & Brigham, J. C. (2001). THIRTY YEARS OF INVESTIGATING THE OWN-RACE BIAS IN MEMORY FOR FACES: A Meta-Analytic Review. Psychology, Public Policy, & Law, 7(1), 3-35.
Milner, B., Squire, L. R., & Kandel, E. R. (1998). Cognitive Neuroscience and the Study of Memory. Neuron, 20(3), 445-468. doi: 10.1016/S0896-6273(00)80987-3
Oeberst, A., & Blank, H. (2012). Undoing suggestive influence on memory: The reversibility of the eyewitness misinformation effect. Cognition, 125(2), 141-159. doi: 10.1016/j.cognition.2012.07.009
Read, J. D., Tollestrup, P., Hammersley, R., McFadzen, E., & Christensen, A. (1990). The unconscious transference effect: Are innocent bystanders ever misidentified? Applied Cognitive Psychology, 4(1), 3-31. doi: 10.1002/acp.2350040103
Ridley, A. M., Gabbert, F., & La Rooy, D. J. (2013). Suggestibility in legal contexts : psychological research and forensic implications. Chichester, West Sussex, UK ; Malden, MA: Wiley-Blackwell.
Robinson-Riegler, B., & Robinson-Riegler, G. L. (2013). Cognitive psychology: Applying the science of the mind: Pearson Higher Ed.
Schacter, D. L. (1999). The Seven Sins of Memory: Insights From Psychology and Cognitive Neuroscience. American Psychologist, 54(3), 182-203. doi: 10.1037/0003-066x.54.3.182
Schacter, D. L., Chiao, J. Y., & Mitchell, J. P. (2003). The Seven Sins of Memory. Annals of the New York Academy of Sciences, 1001(1), 226-239. doi: 10.1196/annals.1279.012
Schacter, D. L., & Dodson, C. S. (2001). Misattribution, false recognition and the sins of memory. Philosophical Transactions of the Royal Society of London. Series B: Biological Sciences, 356(1413), 1385-1393. doi: 10.1098/rstb.2001.0938
Vollen, L. E., D. (2005). Surviving justice: America’s wrongfully convicted and exonerated. San Francisco, CA: McSweeny's Books.
Wells, G. L., Memon, A., & Penrod, S. D. (2006). Eyewitness Evidence: Improving Its Probative Value. Psychological Science in the Public Interest (Wiley-Blackwell), 7(2), 45-75. doi: 10.1111/j.1529-1006.2006.00027.x
Wise, R. A., Sartori, G., Magnussen, S., & Safer, M. A. (2014). An examination of the causes and solutions to eyewitness error. Frontiers in psychiatry, 5.