PSY700 - Week 4

What are the problems with our current case-based system?

1. Case-based system focuses attention on individual problems and people and obscures recurring systematic errors. Those errors are best identified when data is considered across people and over cases. 2. The informal resolution of most cases means that much of what goes on in the system is loosely documented. 3. The adversary culture has a high level of public support in the United States, but is not well suited to managing scientific evidence. 4. Building an evidence-informed legal system requires a society that values and accepts the results of research. The current system is lacking in its commitment to evidence-informed policies and practices.

When did the programmatic eyewitness research area begin?

1970s The most significant body of work to which the modern era of the study of eyewitnesses should be credited was the work of Elizabeth Loftus. Buckhout, a professor at Brooklyn College, began looking at the shocking rates at which research participants would misidentify someone from highly biased lineups and boldly claimed that eyewit- nesses were simply too unreliable to be used in courts. Also in the 1970s, Roy Malpass published what appears to be the first study showing the cross-race effect in eyewitness identification in which it is more difficult to identify someone of another race than someone of one's own race. In 1980, the first conference devoted to eyewitness identification was held and the first special issue of a journal devoted to eyewitness identification issues was published

Explain the 1st recommendation: Train All Law Enforcement Officers in Eyewitness Identification

All law enforcement agencies should provide their officers and agents with training on vision and memory and the variables that affect them, on practices for minimizing contamination, and on effective eyewitness identification protocols. Officers should receive periodic refresher training, and officers assigned to investigative units should receive in-depth instruction. Dispatchers should be trained not to "leak" information from one caller to the next and to ask for information in a non-leading way. Police officers should be trained to ask open-ended questions, avoid suggestiveness, and efficiently manage scenes with multiple witnesses (e.g., minimize interactions among witnesses).

How do jurors exhibit poor situational awareness in the credibility of eyewitnesses?

Although people usually recognize that the conditions of an identification (e.g., distance, lighting, weather) can shape eyewitness accuracy, many aspects of their general knowledge about situational influences are lacking. For example, people often do not know that cross-racial identifications are generally less accurate, or that when a criminal uses a weapon the accuracy of an involved eyewitness goes down.

Who are Barry Scheck and Peter Neufeld?

Cofounders of the Innocence Project in New York. Scheck and Neufeld were (and remain today) at the center of using forensic DNA evidence to test claims of innocence. Scheck's knowledge and connections opened many doors for eyewitness researchers to share their findings and recommendations on eyewitness identification reform. Later, the Innocence Project created satellite innocence projects across the U.S. and today there is at least one in every state and up to 10 in some states. The main New York Innocence Project adopted eyewitness identification (as well as reform of junk forensic science) as a central part of their educational efforts. This gave eyewitness identification researchers a nexus to legal system actors, including police, judges, prosecutors, trial attorneys, and legislators all across the country. The importance of the Innocence Project, and Scheck personally, to the application of eyewitness science to the legal system cannot be overestimated.

What circumstances do jurors need to consider when adjusting for the credibility of eyewitness statements?

Elements that are outside the control of the witness. These involve the circumstances of the initial identification: time viewing the event, lighting, distance, whether there is a weapon, etc. The degree to which the eyewitness paid attention is also important, since witnesses are often not initially aware that an important event is occurring, and may nat be focused on the events unfolding around them. They may be talking on their phone, diving for cover, or trying to run away. Everything that shapes the degree to which an eyewitness can be accurate is an estimator variable. These circumstances are what the jury needs to appropriately adjust for.

What are estimator variables?

Estimator variables are those that affect the accuracy of eyewitness identification over which the criminal justice system has no control. In other words, even though we could manipulate these variables in our experiments, the justice system could only use them post hoc to estimate accuracy because they could not be controlled in actual cases. Examples of estimator variables include cross-race versus same-race identification, how good of a view the eyewitness had of the culprit, how much attention the witness paid to the culprit, whether there was a gun involved, & how long the culprit's face was in view.

Who should police pick for innocent fillers in lineups?

Fillers need to be people who fit the eyewitnesses' description of the culprit so that, if the culprit is not in the lineup, any identification errors will tend to spread to the fillers rather than load up on the innocent suspect. Suppose, for example, the eyewitness described the culprit as a clean-shaven White male, about 5 feet 8 inch tall, in his mid-20s with short dark hair. If police have a suspect who fits that description then each the fillers should also fit that description. After all, if the fillers are in their 30s or 40s, or have facial hair, or are 6 feet tall, or have blond hair, then it is clear to the eyewitness which person the police suspect, which increases demand on the eyewitness to pick that person.

What happened with the case of Francisco Carrillo?

Francisco Carrillo was convicted of murder in 1991 and served 27 years before being exonerated. Five eyewitnesses confidently identified Carrillo and he was convicted based on their testimony. But they had no false memories. In fact, they knew all along that they saw almost nothing during the drive-by shooting. Instead, pressure from a lineup administrator on the first eyewitness led to a wrongful pick of Carrillo and that eyewitness influenced the other eyewitnesses to pick the same person. None of them ever developed a false memory and they always knew that they were unable to see the shooter. The only role played by memory in this example is that the absence of any actual memory probably made it easier to manipulate them to pick an innocent person. When we look at the mistaken identifications in the DNA exoneration cases, we see eyewitnesses who were shaky and uncertain at the time of the identification but evolved rapidly into positive, confident, persuasive eyewitnesses at trial. This transformation is the result of both social influence and memory processes, which interact to yield eyewitness behaviors.

How many cases involve eyewitnesses identifications per year?

Goldstein et al. (1989) studied 157 prosecutors in 30 states and estimated that about 77,000 cases per year involved evewitnesses. Liptak (2011) similarly estimated that there are around 75,000 eyewitness identifications per year in criminal cases.

Who is Gary Wells?

He began by studying errors that might be identified in trial testimony and later highlighted the importance of establishing better investigatory procedures to improve eyewitness reliability, rather than seeking to mitigate possible errors at trial. This shift in focus has led to greater attention to the processes, such as lineups, that affect the pretrial phase of cases.

What was the removal-without-replacement experiment?

It was a test of the relative-judgment conceptualization. Specifically, if the relative-judgment conceptualization has any merit, then it should be the case that removing the culprit from the lineup (and then replacing the culprit with no one) would produce an increase in the rate at which the other (innocent) members of the lineup are identified. If, on the other hand, identifications of the culprit in the culprit-present lineup were a more absolute form of recognition, then removing the culprit would increase the rate of rejection (none of the above) responses by the same amount as the rate at which eyewitnesses identified the culprit when the culprit was present. In this experiment, it was important to remove the culprit without replacement rather than use the standard method of replacing the culprit with an innocent suspect. This is because the critical conceptual question concerns what happens with the mere absence (removal) of the culprit, not what happens when the culprit is replaced (substituted) with a totally new person. The effect underscores one of our most basic observations about line-ups, namely that a lineup should contain only one suspect and the remaining lineup members must be known-innocent fillers.

Who was John Farmer?

John Farmer, the Attorney General of New Jersey, was the first major state-level figure to take up the cause of eyewitness identification reform. Farmer's office contacted the current author in late 1999 to help New Jersey make reforms to eyewitness identification procedures. New Jersey was the easiest state in which to implement reforms because New Jersey happens to be the only state in the United States for which there is an individual (the Attorney General) who has authority over all police in the state. New Jersey became the first state to adopt eyewitness identification reforms in 2002. No other state could follow the process of reform that New Jersey used because in the other 49 states neither the states' Attorney's General nor their Governors had the authority to tell police how to collect evidence. Instead, how evidence is collected was under local control by individual police and sheriff's departments. At last count (August 2020), 29 states have passed such legislation. Collectively, these states cover over 65% of the population. Moreover, many of the states that have not yet passed such legislation have jurisdictions that have made the reforms on their own, without state-wide adoption.

Explain the 6th recommendation: Conduct Pretrial Judicial Inquiry

Judges have an affirmative obligation to insure the reliability of evidence presented at trial. To meet this obligation, the committee recommends that, as appropriate, a judge make basic inquiries when eyewitness identification evidence is offered. At a minimum, the judge could: - Inquire about prior lineups, what information had been given to the eyewitness before the lineup, what instructions had been given to the eyewitness in connection with administering the lineup, and whether the lineup had been administered "blindly." - Entertain requests from the parties for additional discovery and could ask the parties to brief any issues raised by these inquiries. - Review reports of the eyewitness' confidence and any recordings of the identification procedures. - When assessing reliability, inquire as to what eyewitness identification procedures the agency had in place and the degree to which they were followed. If these initial inquiries raise issues with the identification process, a judge could conduct a pre-trial hearing to review the reliability and admissibility of eyewitness identification evidence and to assess how it should be treated at trial if found admissible.

How do jurors use non-diagnostic cues when assessing the credibility of eyewitnesses?

Jurors may rely upon a variety of cues to determine the accuracy of an eyewitness. Studies suggest that they rely heavily upon the confidence expressed by that eyewitness. People are letting the evewitness tel them how much weight to put on their testimony, rather than distinctly evaluating the circumstances of the identification. The problem here is that research indicates that the actual accuracy of an eyewitness is only related to eyewitness self-confidence under some conditions. In practice, these conditions have been infrequently met in the past. Sauer et al. (2019) note "the absence of established protocols for systematically collecting and preserving witness confidence ratings in most criminal justice systems currently represents a significant practical hurdle to the effective use of confidence as an index of identification accuracy"

What did studies by Kahan et al. show?

Kahan et al. (2009) showed the video of the car chase from the Scott case, discussed above, to 1,350 Americans and found sharp differences of opinion about whether the driver "posed a deadly risk to the public." This is an opinion, not a judgment about facts. A factual judgment would be how many miles per hour the car was traveling. Studies also show that prior beliefs also shape people's perceptions of the facts viewed in videotape form. Kahan et al. (2012) designed an experimental study in which the same videotape of a public protest was presented as being staged by liberal or conservative protestors. This framing shaped how viewers "saw" the events depicted. In these studies, people looking at the same video literally did not see the same thing, because their prior views caused them to focus their attention on different aspects of the encounters.

What is one of the biggest misconceptions about perception?

Laypeople have a fundamental misconception of the way perception works, which leads them to overestimate the accuracy of eyewitness recall. People think of memory as a series of photographs which are stored and retrieved. Rather, memory is a process of selection, in which only some information isstored. People first decide what to pay attention to in their environment. Decisions are then made, guided by prior knowledge and stereotypes, about what to consolidate into memory, so that what is remembered is not a veridical representation of what has occurred. Classic studies in percep- tion show that people fill in events, especially where there is ambiguity, to make them consistent with their expectations and stereotypes.

Why are efforts to implement legislation to safeguard the process of eyewitness testimony hindered in the USA?

Legal authorities face public pressure to identify and convict suspects, while often lacking resources and manpower. Legal authority in America is distributed across thousands of local communities, which have inconsistent standards and procedures. The adversary system motivates police and prosecutors to strive for convictions in addition to seeking accurate verdicts. The culture of plea bargaining leads to eyewitness identifications rarely receiving formal vetting, and keeps the actual impact of eyewitness error out of the public eye. That, in turn, means that the system faces very little pressure to improve because the tragic proportions of harm are never salient. Many well-intentioned legal decision-makers accept this system because the lack of appropriate data obscures systematic error of the type revealed in psychological studies and because participation in the adversary culture leads to unconscious mental blinders that justify existing practices. If someone were to raise the standards of the legal system for conviction and require greater supporting evidence, these changes would likely be politically unpopular.

Reading 2

NAS Report on eyewitness identifications

What did Hugo Munsterberg believe about the legal system's reliance on eyewitnesses?

On eyewitness matters, much of his emphasis was on visual and auditory illusions and also about a lack of interwitness agreement about what witnesses had seen. His writings were highly critical of criminal and civil courts, which he felt were naïve and ignorant of what psychology had to offer with regard to eyewitnesses.

What are reflector variables?

Research on reflector variables in eyewitness identification has tended to be treated as a subcategory of estimator variables. But reflector variables are distinct from estimator variables. Reflector variables are the behaviors of eyewitnesses during the identification procedure that covary with, and reflect, whether the suspect in an identification procedure is innocent or guilty. Examples of reflector variables include eyewitnesses' decision times, eyewitnesses' verbal utterances during the identification, vocalized decision processes, eyewitnesses confidence statements, and other behaviors synchronous with the identification process. Reflector variables do not affect eyewitness identification accuracy but instead reflect accuracy. An eyewitness who takes a long time to make an identification is more likely to be mistaken than is an eyewitness who takes very little time to make an identification. But it is not the amount of time that is causing the mistake. Instead, the length of time to make an identification decision reflects the strength of the match between the memory of the eyewitness and the appearance of the lineup members. Hence, decision time in an eyewitness identification task reflects (rather than affects) the accuracy of that decision. Another example is the confidence an eyewitness expresses in an identification, which does not affect accuracy but instead reflects accuracy. An even more important reason to separate out reflector variables as distinct from system and estimator variables is that system and estimator variables are unaffected by whether the police have the actual culprit in the lineup (whether they created a culprit-present vs. a culprit-absent lineup). Reflector variables, in sharp contrast, are causally influenced by whether the suspect in the lineup is the culprit or an innocent person. In other words, reflector variables covary with whether the lineup includes the culprit whereas system and estimator variables are themselves mostly independent of whether the lineup includes the culprit.

How can bias be introduced when obtaining confidence judgements of witnesses?

Self-reported confidence at the time of trial is not a reliable predictor of eyewitness accuracy. The relationship between the witness" stated confidence and accuracy of identifications may be greater at the moment of initial identification than at the time of trial. However, the strength of the confidence-accuracy relationship varies, as it dependson complex interactions among such factors as environmental conditions, persons involved, individual emotional states, and more.' Expressions of confidence in the courtroom often deviate substantially from a witness' initial confidence judgment, and confidence levels reported long after the initial identification can be inflated by factors other than the memory of the suspect.

What did Vallone et al. (1985) find from their study?

That when people were asked factual questions about stimuli that they had been shown, the facts they remembered were shaped by their level of racial prejudice. This classic finding has more recently been extended to studies of the shooter situation, in which officers must quickly decide if a person seen on a video or in a photo is holding a cell phone or a gun. Prejudiced officers are more likely to mistake the cell phone as a gun if the person pictured is Black. But this same area of research suggests that well-designed training can reduce or eliminate the influence of prejudice on police shooting behavior, suggesting that there are ways to address biased perceptions.

Explain the 8th recommendation: Use Scientific Framework Expert Testimony

The committee finds that a scientific framework describing what factors may influence a witness' visual experience of an event and the resolution and fidelity of that experience, as well as factors that underlie and influence subsequent encoding, storage, and recall of memories of an event, can inform the fact-finder in a criminal case. Many scientifically established aspects of eyewitness memory are counter-intuitive and may defy expectations. Jurors will need assistance in understanding the factors that may affect the accuracy of an identification. In many cases this information can be most effectively conveyed by expert testimony. Judges should have the discretion to allow expert testimony on relevant precepts of eyewitness memory and identifications. Expert witnesses can explain scientific research in detail, capture the nuances of the research, and focus their testimony on the most relevant research. Expert witnesses can convey current information based on the state of the research at the time of a trial. Expert witnesses can also be cross-examined, and limitations of the research can be expressed to the jury.

Explain the 2nd recommendation: Implement Double-Blind Lineup and Photo Array Procedures

The committee recommends blind (double-blind or blinded) administration of both photo arrays and live lineups and the adoption of clear, written policies and training on photo array and live lineup administration. Police should use blind procedures to avoid the unintentional or intentional exchange of information that might bias an eyewitness. The "blinded" procedure minimizes the possibility of either intentional or inadvertent suggestiveness. Suggestiveness during an identification procedure can result in suppression of both out-of-court and in-court identifications and thereby seriously impair the prosecutions's ability to prove its case beyond a reasonable doubt, The use of double-blind procedures will eliminate a line of cross-examination of officers in court. Double-blind procedures should be used, where the test administrator does not know the composition of the photo array or lineup. If administrators are not involved with con- struction of the lineup and are unaware of the placement of the potential suspect in the sequence, then they cannot influence the witness. Even when lineup administrators avoid comments that could identify which person is the suspect, unintended body gestures, facial expressions, or other nonverbal cues have the potential to inform the witness of his or her location in the lineup or photo array. If an officer who is not aware of the identity of the suspect cannot be assigned to the task, then a non-blind administrator (one knowing the status of the individuals in the lineup) might use a computer-automated presentation of lineup photos. If computer-based presentation technology is unavailable, then the administrator could place photos in numbered folders that are then shuffled, as is current practice in some jurisdictions.

Explain the 4th recommendation: Document Witness Confidence Judgments

The committee recommends that law enforcement document the witness' level of confidence verbatim at the time when she or he first identifies a suspect, as confidence levels expressed at later times are subject to recall bias, enhancements stemming from opinions voiced by law enforcement, counsel and the press, and to a host of other factors that render confidence statements less reliable. During the period between the commission of a crime and the formal identification procedure, officers should avoid communications that might affect a witness' confidence level. To avoid increasing a witness' confidence, the administrator of an identification procedure should not provide feedback to a witness. Following a formal identification, the administrator should obtain level of confidence by witness' self-report (this report should be given in the witness' own words) and document this confidence statement verbatim. Accommodations should be made for non-English speakers or those with restricted linguistic ability.

Explain the 5th recommendation: Videotape the Witness Identification Process

The committee recommends that the video recording of eyewitness identification procedures become standard practice. Although videotaping does have drawbacks (e.g., costs, witness advocates opposing videotaping of witnesses' faces, and witnesses not wanting to be videotaped), it is necessary to obtain and preserve a permanent record of the conditions associated with the initial identification. When necessary, efforts should be made to obtain non-intrusive recordings of the initial identification process and to accommodate non-English speakers or those with restricted linguistic ability. Measures should also be taken to protect the identity of eyewitnesses who may be at risk of harm because they make an identification.

Explain the 3rd recommendation: Develop and Use Standardized Witness Instructions

The committee recommends the development of a standard set of easily understood instructions to use when engaging a witness in an identification procedure. Witnesses should be instructed that the perpetrator may or may not be in the photo array or lineup and that the criminal investigation will continue regardless of whether the witness selects a suspect. Administrators should use witness instructions consistently in all photo arrays or lineups, and can use pre-recorded instructions or read instructions aloud, in the manner of the mandatory reading of Miranda Rights. Accommodations should be made when questioning non-English speakers or those with restricted linguistic ability. The committee recommends the development and use of a standard set of instructions for use with a witness in a showup.

Explain the 10th recommendation: Establish a National Research Initiative on Eyewitness Identification

The committee recommends the establishment of a National Research Initiative on Eyewitness Identification. The Initiative should involve the academic research community, law enforcement community, the federal government, and philanthropic organizations.

Explain the 9th recommendation: Use Jury Instructions as an Alternative Means to Convey Information

The committee recommends the use of clear and concise jury instructions as an alternative means of conveying information regarding the factors that the jury should consider. Jury instructions should explain, in clear language, the relevant principles. The instructions should allow judges to focus on factors relevant to the specific case, since not all cases implicate the same factors. Jury instructions do not need to be as detailed as the New Jersey model instructions and do not need to omit all reference to underlying research. With the exception of the New Jersey instructions, jury instructions have tended to address only certain subjects, or to repeat the problematic Manson v. Brathwaite language, which was not intended as instructions for jurors.

Who was Chris Mumma?

The director of the North Carolina Innocence Projects, worked to create an Innocence Commission and got the conservative Chief of the North Carolina Supreme Court to chair it. Eyewitness identification reforms were their first task. The commission made strong recommendations to police for reformed eyewitness identification procedures. Many police and sheriff's departments adopted the recommended procedures and it became a model for other states to follow. But the recommendations of the commission were not mandatory. Later, in the profound, national-profile sexual assault case known as the Duke-Lacrosse case, problematic eyewitness identification practices in North Carolina came into focus. Although on paper the Durham, NC police department had adopted the commission's recommendations on eyewitness identification reform, in the Duke-Lacrosse case the prosecutor took over the identification procedures from the police department and violated nearly every recommendation for how an eyewitness identification procedure should be conducted. The fact that the identified individuals in the Duke-Lacrosse case were later proven innocent created the perfect storm for legislative action. On the heels of the outrageous identification procedures used in the Duke-Lacrosse case, the North Carolina Legislature unanimously adopted into law the eyewitness identification reforms that were previously set out by the commission passed unanimously in the North Carolina State Legislature.

What is one reform to address the suggestibility issue?

The double-blind lineup. In that procedure, the administrator does not know which person is the suspect or even if there is a suspect in the lineup.

What are Type I versus Type II filler identification rates?

Type I: When the culprit is in a lineup but the witness misidentifies somebody else in the lineup as the culprit. Type 2: When the culprit is not in a lineup and the witness misidentifies somebody else in the lineup as the culprit. The extent to which Type II Filler identifications exceed Type I filler identifications tells us something about how much an eyewitnesses' identification of a filler should reduce our belief that the suspect is guilty (an observation first made 40 years ago

What is suggestibility in terms of eyewitness statements?

Where witnesses accept and act on the suggestions of others. In this case, improper behavior by legal authorities may shape the statement of a suggestible witness, leading to an identification error. Suggestibility errors may be triggered by cues of which a police officer is unaware or by deliberate efforts to shape the outcome of a lineup. In either case, the behavior has the effect of providing a second source of information about the "correct" answer, which reflects the beliefs of the officers, not the memory ofthe eyewitness. An important finding of psychological studies is that, while some law enforcement personnel may deliberately make suggestions there are also many well-intentioned officers who may unwittingly give cues to eyewitnesses. Those officers can honestly felt that they are being neutral in their conduct, while observers detect subtle, often nonverbal, cues given to witnesses. For example, studies demonstrate that if a witness receives post-identification positive feedback from an officer, their confidence in their memory increases in future identifications.

How are videotapes different from eyewitnesses?

With a videotape, multiple people can view the same event. Consistent with the logic of a jury, a deliberation among those people may cancel out the influences of prejudice on the group consensus about what the videotape depicts. With an eyewitness only one person's memory is considered.

Once material is in our memory, is it malleable?

Yes. All memories are being consolidated over time, leading to constant change in the way people remember the past. This is not simple forgetting, since the actual form of memories changes, and people's memories can be influenced by later events.

Who was Janet Reno?

the U.S. Attorney General in the Clinton administration in the 1990s and was the longest serving Attorney General in U.S. history. In 1996, Reno took note of new forensic DNA technology and paid particular attention to the fact that this new technology was uncovering convictions of innocent people who had been convicted by juries. She took particular note of the fact that most DNA exonerations that were unfolding were cases of mistaken identification. In response, Attorney General Reno created a working group on eyewitness identification. The working group included eyewitness identification researchers, law enforcement, prosecutors, and trial lawyers from across the country. After 18 months of meetings, the Department of Justice working group released the first (and still only) set of national guidelines for the collection and preservation of eyewitness evidence (Technical Working Group for Eyewitness Evidence, 1999). The psychologists on the working group wrote an article that was published in this journal (American Psychologist) describing their experience in this endeavor (Wells et al., 2000). Reno remained involved in this effort, and a close consultant of mine on eyewitness reform, for years after she was no longer Attorney General.

What are the 4 NAS recommendations for best practices for eyewitness identifications in court? (starts at #6 in whole list)

6. Conduct Pretrial Judicial Inquiry 7. Make Juries Aware of Prior Identifications 8. Use Scientific Framework Expert Testimony 9. Use Jury Instructions as an Alternative Means to Convey Information

What does the NAS say law enforcement should improve on?

1. Adopt "blinded" eyewitness identification procedures. 2. Providing standardized and easily understood instructions to eyewitnesses. 3. Improve careful documentation of eyewitness' confidence statements. 4. Understand the data that reflect a witness' identification and the contextual factors that bear on that identification.

What 6 priorities does the NAS recommend the Initiative implement (unrelated to eyewitness testimony)?

1. Establish a research agenda to guide research for the next decade; 2. Formulate practice- and policy-relevant research questions; 3. Identify opportunities for additional data collection; 4. Systematically review research to examine emerging findings on the impact of system and estimator variables; 5. Translate research findings into policies and procedures that are both practical and appropriate for law enforcement; 6. Set priorities and timelines for issues to be addressed, the conduct of research, the development of best practices, and formal assessments.

What 5 priorities does the NAS recommend the Initiative implement related to eyewitness testimony?

1. Include a practice- and data-informed research agenda that incorporates input from law enforcement and the courts and establishes methodological and reporting standards for research to assess the fundamental performance of various aspects of eyewitness identification procedures and synthesize research findings across studies. 2. Develop protocols and policies for the collection, preservation, and exchange of field data that can be used jointly by the scientific and law enforcement communities. - Data collection procedures used in the field should be developed to ensure the relevance of the collected data, to facilitate analysis of the data, and to minimize potential bias and loss of data through incomplete recording strategies. 3. Develop and adopt guidelines for the conduct and reporting of applied scientific research on eyewitness identification that conform to the highest scientific standards. - Best research practices including pre-registration of all study protocols; investigating questions and hypotheses informed by the needs of practice and policy; (3) adopting strict operationalization of key measures and objective data collection; (4) developing experimental designs informed by analytical concerns; (5) using proper statistical procedures that account for the often nontraditional nature of data in this field (e.g., estimates of effects with appropriate statements of uncertainty, multiple responses from different scenarios from the same individuals, effects of order and time of presentation when important, treatment of extreme observations or outliers); reporting of participant recruitment and selection and assignment to conditions; (7) the complete reporting of findings including effect sizes and associated confidence intervals for both significant and non-significant effects; and (8) deriving conclusions that are grounded firmly in the findings of the study, are framed in the context of the strengths and limitations of study methodology, and clearly state their implications for practice and policy decisions. 4. Adopt rigorous standards for systematic reviews and meta-analytic studies - Include grey literature in reviews as well - Analyses should consistently appraise and account for possible b

What 3 areas has psychological research shown jurors to lack the background knowledge to appropriately weight eyewitness testimony in?

1. Over-belief; 2. Poor situational awareness; 3. Non-diagnostic cue utilization.

What conditions make a eyewitness lineup pristine?

1. Prior to the lineup, the victim is cautioned that the suspect may not be present. 2. The lineup itself has one suspect and fillers who are similar to the suspect. 3. If at any point the victim expresses doubts, the lineup stops and the doubts are recorded, since persisting after doubts has been indicated is associated with high error rates in identifications. 4. At the conclusion of the lineup, the victim or witness immediately rates their confidence in their identification, since only at this point is confidence related to accuracy. A further approach, proposed by Sauer et al. (2019), is to have witnesses rate their confidence in an identification for everyone in the lineup, rather than simply saying yes or no (a culprit likelihood rating). Comparisons could then be made among the confidence ratings.

What are 2 large and highly replicable effects that are central phenomena that go to the very core of our understanding of how mistaken identifications come about and how mistaken eyewitnesses can be so positive in their testimony that they result in convictions of the innocent?

1. The removal-without-replacement effect. 2. The postidentification feedback effect.

What types of research does the NAS report suggest the Initiative should pursue for eyewitness testimony?

1. The variables that affect the accuracy, precision, and reliability of eyewitness identifications, and how those variables interact and vary in practice; 2. The (possibly joint) impact of estimator and system variables on both identification accuracy and response bias; 3. Best practices for probing witness memory with the least potential for bias or contamination; 4. Best strategies to assess witnesses' confidence levels when making an identification; 5. Appropriate types of instructions for police, witnesses, and juries to best inform and facilitate the collection and interpretation of eyewitness identifications; 6. Photo array composition and procedures; 7. Identification procedures in the field (showups); 8. Innovative technologies that might increase the reliability of eyewitness testimony (e.g., algorithm-based computer face recognition software, computer administered photo arrays, and mobile technologies with photo identification programs); 9. The most effective means of informing jurors how to consider the factors that affect the strengths and weaknesses of eyewitness identification evidence.

What are the 3 elements required for knowledge to affect policies and practices in large systems?

1. There must be a large body of evidence that not only identifies the problems, but also offer solutions. 2. The problem has to reach tragic proportions to the point that the system simply cannot ignore or deny the problem anymore. 3. There must be people and entities working selflessly and tirelessly to pressure the system to confront the problem and implement policy and procedural reforms.

What are the 5 NAS recommendations for best practices for the law enforcement community?

1. Train All Law Enforcement Officers in Eyewitness Identification. 2. Implement Double-Blind Lineup and Photo Array Procedures. 3. Develop and Use Standardized Witness Instructions. 4. Document Witness Confidence Judgments. 5. Videotape the Witness Identification Process.

What are the 4 NAS recommendations to improve the scientific foundation underpinning eyewitness identification research? (starts at #10 in whole list)

10. Establish a National Research Initiative on Eyewitness Identification. 11. Conduct Additional Research on System and Estimator Variables

What is the proportion of DNA exoneration cases involving mistaken identification (for which we later learned who the actual culprit was) did not have the actual culprit in the identification procedure?

100% Using lab data we see that the base rate for the culprit being in a lineup has a larger effect than any other controllable (system) variable.

How does the framework of retrieval shape memories?

Adversarial questioning shapes the nature of the memories that are retrieved. While the dramatic questioning of witnesses is a hallmark of adversary trials, studies show that witnesses are more accurate if they are allowed to give an uninterrupted narrative of the events they remember

What are the limitation of an expert with regards to their testimony?

An expert explaining the relevant scientific framework can describe the state of the research and focus on the factors that are particularly relevant in a case. However, an expert must not be allowed to testify beyond the limits of his or her expertise. The committee has seen no evidence that the scientific research has reached the point that would properly permit an expert to opine, directly or through an equivalent hypothetical question, on the accuracy of an identification by an eyewitness in a specific case.

What legislation has the UK implemented regarding eyewitness testimony?

Based on concerns about the unreliability of eyewitnesses have led to the imposition of rules through which a person cannot be convicted solely on the basis of testimony by an eyewitness.

What did Loftus show about suggestive questioning?

Classic work by Loftus (1979) shows that suggestive questioning during storage can alter memories. She finds that asking a witness to recall an accident alters memories about how fast the cars were traveling, depending on whether the two cars are described as having "hit" or "smashed into" one another. Strikingly, the witnesses questioned about cars that "smashed into" one another were more likely to recall that there was glass strewn on the road, although no glass was present in the videothey watched. These altered memories then become part of the remembered event.

What is the post-identification feedback effect?

False confidence occurs when an eyewitness expresses a high level of confidence or certainty in a mistaken identification. When people receive positive feedback about their identification, they become more confident in their judgement. The results of the original postidentification feedback experiment showed that when compared to the no-feedback condition, feedback produced shockingly inflated reports of retrospective confidence, view, and attention, but also inflated related variables such as witnesses' reports of how well they could make out details of the culprit's face during witnessing and their self-reports of how good they are at recognizing faces in general. A simple comment from the lineup administrator led to distorted recollections of their confidence, view, attention and other testimony-relevant reports of the entire witnessing and identification experience. A meta-analysis of the postidentification feedback effect summarizing 23 articles from 11 labs involving over 7,000 participant-witnesses shows an effect size increase of a full standard deviation in the confidence of mistaken eyewitnesses. In their meta-analysis, Steblay et al. (2014) estimated that only about 1/16 of witnesses in the no-feedback conditions recalled being highly confident in their identifications whereas approximately 1/3 of mistaken eyewitnesses in the feedback conditions recalled being highly confident. Even somewhat more ambiguous postidentification feedback to eyewitnesses (e.g., "Thank you, you have been a good witness") can produce the postidentification feedback effect.

Other than at trial, how can eyewitness statements interfere with the outcomes in cases?

Identifications are important in the process of investigating crimes, with the police often using a variety of informal means to initially identify suspects for entry into the system. This includes asking a witness for a description that can be used by the police in their search, pointing out someone on the street or in a squad car, and showing photographs or computer images. Early informal steps can be followed by a more formal lineup, in which eyewitnesses are asked to select the suspect from a group of people. Only if the case ultimately goes to trial does the eyewitness testify. Thus, there are likely many more cases, disposed of by plea bargain agreement, in which eyewitness error contributes to injustice.

What would ensure that eyewitnesses view fewer culprit-absent lineups, which have inherent danger for innocent suspects?

Implementing an evidence-based suspicion requirement before placing a person in a lineup. Unfortunately, more than one third of these agencies believe that they need no evidence at all before placing someone in a lineup. A field study of police lineups in Northern California showed that 40% of their lineups had no prelineup evidence at all against the suspects they put in their lineups and an additional 30% of their lineups had minimal prelineup evidence against their suspects

What is a sequential lineup?

In a sequential lineup the suspects/ fillers are presented one at a time, with the eyewitness indicating "yes" or "no" for each person. This is opposed to seeing everyone at once.

What is the show-up? Is it good?

In a show-up the witness is presented with the suspect alone, often on the street or in a picture. This is an error-prone way of obtaining an identification but is in use, particularly where limited resources make it difficult to hold pristine lineups. It should clearly be avoided and can increase errors.

What was the result of the removal-without-replacement experiment by Wells?

In the original removal-without-replacement experiment (Wells, 1993), a crime was staged 200 times for 200 separate witnesses who were then assigned to view either a culprit-present lineup (culprit plus five innocents) or that exact same lineup with the culprit removed. All witnesses were warned that the culprit might not be in the lineup and were given the option of making no identification. When the culprit was present 54% identified the culprit, 25% identified a nonculprit, and the remaining 21% made no identification. The critical question is where does the 54% go when the culprit is removed? Notice that identifications of nonculprits increased from 25% in the culprit-present condition to 68% in the culprit-removed condition, an increase of 43%. Hence, nearly 80% of the 54% who would have identified the culprit (had he been present) chose an innocent person instead of rejecting the lineup. This is the removal-without- replacement effect; eyewitnesses tend to identify someone else from a lineup (rather than make no identification) if the culprit is not present. Not surprisingly, the removal-without-replacement effect is stronger when eyewitness memory is weaker

What happened in State v. Chapple (1983)?

It established the right to have an expert testify in the area of eyewitness fallibility. In that case, the failure to allow a psychologist to testify was ruled by an appellate court to be a reversible error. Since then there have been many decisions made by judges allowing this type of psychological testimony, as well as ongoing discussions about its value.

How is the way police officers should conduct suspect lineups similar to how researchers conduct experiments?

Like an experimental researcher, the police investigator has a hypothesis (that the suspect is the culprit), creates a design (e.g., a six-person lineup), develops materials (gathers lineup fillers), meets with a participant (the eyewitness), gives instructions (prelineup instructions), collects data (identification decision, confidence statement), makes a data record (lineup outcome report), and then reevaluates the preexperiment hypothesis in light of the obtained data (revises up or down her belief that the suspect is the culprit). The police-lineup-as-psychology-experiment analogy is powerful because everything that can go wrong in a psychology experiment can go wrong in a lineup. Hence, the same problems that can threaten the validity of an experiment can threaten the validity of a lineup. In experiments, for example, there are potential problems with demand characteristics, poor instructions, participants interacting outside of the experiment, experimenter expectancy effects, confounds, failures to accurately record data, and confirmation biases, and so on. These problems often exist with lineups as well. For example, instructions might fail to warn eyewitnesses that the culprit might not be in the lineup or in some other way create a demand for a positive identification

Tyler Chapter 3

Lineups and eyewitnesses

What happened in New Jersey v. Henderson (2011)? What happened in Oregon v. Lawson, 2012?

New Jersey v. Henderson: New Jersey asked a special master to review evidence on this issue in the context of New Jersey v. Henderson (2011). Based on its review, the New Jersey Supreme Court concluded that before eyewitness identifications are admitted as evidence, their probative value should be carefully scrutinized by judges in all cases. Oregon v. Lawson: Oregon went further when its Supreme Court decided to put the burden on the state to establish that such evidence should be admissible (Oregon v. Lawson, 2012). Overall, there is great variation in state standards, but there is a general trend toward increased scrutiny of eyewitnesses, some of it directly linked to psychological research findings.

Explain case of Ronald Cotton

Police conducted a photo lineup with the victim Jennifer Thompson, who was assaulted and raped. Jennifer struggled with the photo lineup, moving back and forth between the photos, and finally showed a preference for Cotton's photo. But she could have identified any photo and police would have charged that person because no fillers were used and the actual culprit (Bobby Poole) was not in the lineup. Cotton served 111⁄2 years in prison before DNA proved he was innocent and incriminated Bobby Poole.

Explain the memory-as-trace-evidence metaphor.

Police investigators have long known to take great care at crime scenes so as to not contaminate trace evidence and to follow carefully proscribed procedures for collecting such evidence to protect the integrity of that evidence. The memory-as-trace-evidence metaphor takes advantage of police investigators' preexisting understanding of the idea of the need to adhere to crime-scene investigation protocols for physical evidence and engages them to think of memory evidence in a similar way. The metaphor calls for eyewitness memory to be treated with the same care as other forms of trace evidence. Trace evidence in criminal investigations is typically conceptualized as a physical trace that was left behind at the crime scene (e.g., fibers, hair, fingerprints) that could potentially establish the identity of the perpetrator of a crime. But a mental trace could also be construed as a form of trace evidence. In the case of eyewitness memory, of course, the trace is in the brain of the eyewitness (rather than left behind at the scene). Both types of evidence, for example, can deteriorate, decay, or in other ways lose evidentiary integrity over time. Moreover, the manner in which both types of evidence are collected can affect the quality of the evidence. Just as one can smudge a latent fingerprint using poor methods, one can "smudge" (metaphorically) elements of an eyewitness's memory. Contamination is an issue not only with physical evidence but also with memory evidence. With physical evidence, the investigators themselves can contaminate the crime scene by leaving their own traces (e.g., fibers, hair, soil) at the scene, which can then become confused with those of the culprit. Hence, crime scene investigators wear gloves, shoe coverings, and hair nets, and follow a careful protocol. This analogy has allowed psychological scientists to effectively communicate to police investigators the need to be similarly concerned about following careful protocols for interviewing eyewitnesses so as to not contaminate the eyewitnesses' memories.

Reading 3 - Gary Wells

Psychological Science on Eyewitness Identification and Its Impact on Police Practices and Policies

How can people's perception of videos be impacted like our other memories?

Psychological models predict that as people acquire, consolidate, store, and retrieve video images, each individual's memories will be influenced by their prior beliefs, stereotypes, and attitudes. Consequently, the perceived images will diverge from the common video material as they are recreated in the minds of observers. People watching the same videotape will not create a single perceived event, but rather a set of similar, but not identical, psychological representations of that one event. In a video recording some aspects of an event are so salient that most viewers will agree about their content, just as eyewitness accuracy is high under ideal conditions. On the other hand, studies make clear that different people can view a videotape of the same event and "see" different things. What they "see" reflects not only the objective event, but also the viewer's psychological makeup.

What is the ideal reform regarding eyewitness testimonies?

Psychologists often focus primarily, or exclusively, upon the misaccusation of the innocent (convicting the innocent) without addressing the legal system's concern with identifying and convicting the guilty. The ideal reform is one that will increase the likelihood of identifying the guilty but lower the likelihood of misaccusing the innocent. This meets the goal of justice but does not undermine the crime control mandate of legal authorities. This is what is considered a case-baded system.

Explain the 11th recommendation: Conduct Additional Research on System and Estimator Variables

Research should advance our understand of: - Whether a simultaneous or sequential lineup is preferred - A rigorous exploration of methods that can lead to more conservative responding (such as witness instructions) but do not compromise discriminability - The committee recommends a broad exploration of the merits of different statistical tools for use in the evaluation of eyewitness performance. ROC analysis represents an improvement over a single diagnosticity ratio, yet there are well-documented quantitative shortcomings to the ROC approach. - A broad exploration of the effects of different system variables (e.g., additional variants on lineup procedures, witness lineup instructions) and estimator variables (e.g. presence or absence of weapon, elapsed time between incident and identification task, levels of stress) and—importantly—interactions between these variables using either the ROC approach or other tools for evaluation of binary classifiers that can be shown to have advantages over existing analytical methods. - That the scientific community engaged in studies of eyewitness identification performance work closely with law enforcement to identify other system and estimator variables that might influence performance and practical issues that might preclude certain strategies for influencing performance. - Policy decisions regarding changes in procedure should be made on the basis of evidence of superiority and should be made in consultation with police departments to determine which procedure yields the best combination of performance and practicality.

How do jurors exhibit over-belief in the credibility of eyewitnesses?

Research suggests that they do not sufficiently adjust for the unreliability of identifications. In general, decision-makers such as jurors put too much weight on eyewitnesses relative to their actual accuracy. Psychological research has made clear that there isageneral discrepancy between the probative value of eyewitness identifications and the weight they have in the minds of jurors

Can people recognize faces from video? Would this hold-up in court?

Reviewing studies of identifications from surveillance video, Wixted and Wells (2017) conclude that "peaple are quite poor at being able to accurately match a stranger to a surveillance image, even for high-quality images" Nonetheless, in recent years, as video recordings have become a ubiquitous source of information on news and social media sites, the legal system has also begun using them more routinely to identify suspects, supplement traditional reports from eyewitnesses, and monitor interactions between police officers and citizens. The event is preserved and can be watched repeatedly under perfect conditions by multiple people. Yet, unique individual viewers are involved in perceiving the images with videotaped events, just like real-world events, so the psychology of perception is also relevant. People over-believe the veridicality of their memories of video, failing to recognize how their interpretation of such evidence leads to inaccuracy. And, again, people are unaware of the ways in which they are reshaping events that they witness.

What did the Criminal Law Review Committee (1971) conclude about eyewitness testimonies? What did the innocence project find? What did Liptak find?

That cases of mistaken identification constitute by far the greatest cause of actual or possible wrong convictions. The Innocence Project, which uses DNA evidence to exonerate prisoners who were wrongfully convicted, suggests that of the first 250 cases considered, eyewitness misidentification played a role in 76 percent of them. Liptak (2011) estimates that around 25,000 of the eyewitness identifications that are made each year are incorrect. This is approximately one-third of the cases in which eyewitnesses are involved.

How can camera placement change how we perceive events?

Studies show that observers perceive the same interrogation differently depending upon whether the camera is focused on the defendant or on the interrogator (Lassiter et al., 2009). This means that the way that videotaped images are initially captured has important downstream consequences in terms of how events are later perceived and understood.

What concern does Justice Sotomayor raise about eyewitness identifications?

That concern with eyewitnesses should be not only be with deterring improper police conduct. It is the likelihood of misidentification that violates a defendant's right to due process. She points to issues beyond suggestibility, and notes that the general unreliability of eyewitnesses, their powerful impact upon juries, and the inability of ordinary tests to correct these problems al suggest the need for better procedures for managing eyewitness testimony.

What are system variables?

System variables also affect the accuracy of eyewitness identification but, in contrast to estimator variables, system variables are under the control (or can be put under the control) of the legal system. Examples of system variables include instructions given to eyewitnesses before viewing a lineup, characteristics of the fillers used in the lineup, and the use of double-blind lineup test procedures.

What is the Manson v. Brathwaite test?

That test evaluates the "reliability" of eyewitness identifications using factors derived from prior rulings and not from empirically validated sources. As critics have pointed out, the Manson wv. Brathwaite test includes factors that are not diagnostic of reliability. The test treats factors such as the confidence of a witness as independent markers of reliability when, in fact, it is well established that confidence judgments may vary over time and can be powerfully swayed by many factors.

What happened in Simmons v. United States (1968)?

The Simmons v. United States (1968) decision says that exclusion should occur if there is a"very substantial likelihood of irreparable misidentification" (p. 384). The judge must determine whether the identification was "impermissibly suggestive," and if so, whether the identification has information value regardless of these errors. This rule is consistent with psychological studies showing that intentional and accidental suggestions can both impair eyewitness accuracy. The key legal issue is not why the suggestion occurred, but whether itintroduces asubstantial possibility of error.

What happened in Perry v. New Hampshire (2012)?

The Supreme Court addressed police misconduct via suggestibility in eyewitness identification in Perry v. New Hampshire (2012). Justice Ginsburg indicated that, without evidence of police misconduct through inappropriate suggestion, the jury should be entrusted with evaluating the reliability of eyewitness testimony, consistent with the general view that juries can account for error and that there are mechanisms to correct for imperfect evidence in a trial (cross-examination, expert testimony, pattern instructions). The Court suggests that the Constitution only requires that evidence not be used in a fundamentally unfair way by State actors. It is designed to protect citizens against misconduct by legal authorities. Beyond that, the Court suggests that the system currently has mechanisms for managing the possibility of error in the evidence (even if psychologists suggest they are inadequate).

What did the national academy of science say about police efforts to improve eyewitness testimonies?

The law enforcement community, while operating under considerable pressure and resource constraints, is working to improve the accuracy of eyewitness identifications; however, these efforts, have not been uniform and often fall short as a result of: - Insufficient training, - The absence of standard operating procedures, - The continuing presence of actions and statements at the crime scene and elsewhere that may intentionally or unintentionally influence eyewitness' identifications. The field would benefit from collaborative research among scientists and law enforcement personnel in the identification and validation of new best practices that can improve eyewitness identification procedures.

What did the American Psychology-Law Society do to improve our understanding of eyewitness testimony?

The leadership of AP-LS had decided in 1996 that the eyewitness research area had reached a point of maturity where a "white paper" of sorts was warranted that might help transfer scientific knowledge into practices and policies. The timing was perfect because, in effect, this AP-LS white paper served as the framework for all discussion and drafts of the Department of Justice working group. This was published in 1998.

What is the removal-without-replacement effect?

The relative- judgment process postulates that eyewitnesses viewing a lineup tend to choose the person who looks the most like their memory of the culprit even though they are warned that the culprit might not be in the lineup at all. If the suspect is not the culprit (a culprit-absent lineup), there would still be someone in the lineup who looks most like the culprit and that person would be in jeopardy of misidentification.

What did Hastorf and Cantril (1954) find from their study?

They asked students from two Ivy League colleges to evaluate a series of controversial officiating calls made during a football game between their schools. They found that students viewing the same game on film were more likely to perceive errors in officiating when the penalty assessments were imposed on their own team. This type of error illustrates the idea of motivated cognition, because it reflects the influence of the viewer's loyalties on how they view events. This situation is analogous to an adversary procedure because the people involved were aligned with one side.

What research improvements does the NAS say should be make regarding eyewitness testimony?

They can be solidified through: 1. The use of more effective research designs, such as those that consider more than one variable at a time, and in different study populations to ensure reproducibility and generalizability); 2. The use of more informative statistical measures and analyses (i.e., methods from statistical machine learning and signal detection theory to evaluate the performance of binary classification tasks); 3. The use of more probing analyses of research findings (such as analyses of consequences of data uncertainties); 4. The use of more sophisticated systematic reviews and meta-analyses (that take account of current guidelines, including transparency and reproducibility of methods) 5. Better experimental designs that incorporate selected combinations of these variables (e.g., presence or absence of a weapon, lighting conditions, etc.) will elucidate those variables with meaningful influence on eyewitness performance, which can, in turn, inform law enforcement practice of eyewitness identification procedures.

Explain the 7th recommendation: Make Juries Aware of Prior Identifications

it is important for jurors to hear detailed information about any earlier identification, including the procedures used and the confidence expressed by the witness at that time. The descriptions of prior identifications and confidence at the time of those earlier out-of-court identifications provide more useful information to the fact-finders and decision-makers. The committee recommends that judges take all necessary steps to make juries aware of prior identifications, the manner and time frame in which they were conducted, and the confidence level expressed by the eyewitness at the time.