Grâce à la liberté dans les communications, des groupes d’hommes de même nature pourront se réunir et fonder des communautés. Les nations seront dépassées.
Friedrich Nietzsche (Fragments posthumes XIII-883)

Forensic Psychology - Open University (2)

1.2 Introduction to eyewitness psychology

The processes that a witness might go through in any subsequent police investigation are a key focus of this course. What is seen? What is remembered? How can the police best obtain reliable evidence through questioning? How are the suspects identified?
Each of these questions has been the subject of psychological research, which draws on concepts from across the spectrum of psychological theory. This includes theories of memory, showing that it does not work like a videotape or computer, but is instead ‘constructed’, meaning that memories can change over time, particularly when we are questioned about them.

Psychology and law

Although both psychologists and lawyers are closely concerned with human behaviour, the application of psychology in legal issues is fairly recent. This is because, although the subject matter may overlap, the aims of psychologists and lawyers are very different and their approaches vary.
Psychologists are concerned with obtaining knowledge about psychology by conducting rigorous research, which contrasts with lawyers’ use of typically ‘commonsense’ psychology and the reliance placed on their accumulated experience and legal precedents. Whereas psychology is characterised by empirical methods and scientific analyses, law uses its internal systems to scrutinise its ‘evolved’ legal processes. It has also been the case that law, as a profession, has remained sceptical of the ability of disciplines such as psychology to have anything to offer (e.g. Nijboer, 1995). Increasingly, however, psychologists work in collaboration with members of the legal profession. Specialist conferences provide a forum for psychologists and members of the legal profession to come together and communicate with each other. In parallel, there has been a growth in both the number of postgraduate courses in forensic psychology, and the number of psychology or law degrees that include an option in ‘psychology and law’.
A number of different terms have been adopted to describe the applications of psychology to law, including ‘legal psychology’, ‘criminological psychology’, ‘psychology and law’ and ‘forensic psychology’. This is not surprising as the applications are wide-ranging. For instance, there is the work of psychologists who are concerned with the treatment and rehabilitation of offenders, and offender profiling. Additionally, there is research, often conducted in the laboratory, that examines witness testimony, juror decision making and public perceptions and attitudes towards crime and penal sanctions. This course focuses on just one of these research areas, namely witness testimony, which is one of the more extensively investigated areas.

Psychology research

In some cases, psychologists’ research has resulted in changes to the law and legal procedures. For example, reforms to accommodate children’s testimony in the courtroom came about largely as a result of research showing that children’s evidence was more reliable than had previously been believed. Research has also highlighted some of the psychological stresses placed upon child witnesses and how they might be alleviated (Spencer and Flin, 1993). Alternatively, changes that are introduced to legal procedures may prompt new psychological investigations. For example, the need to examine the role of closed circuit television (CCTV) in identification evidence arose from the installation of CCTV systems in many towns and city centres. Thus, while the findings of psychological research may impact upon policy, changes to policy may also prompt research. Therefore the relationship between law and psychology can be viewed as two-way. Psychology research is also influenced by developments in technology, social policy, and the media (e.g. reporting of public outcry over a particular case or event).

1.2.1 Causes of miscarriages of justice

Miscarriages of justice are one of the most significant legal issues that have acted as a catalyst for psychological research.
In particular, psychological research has been concerned with miscarriages of justice involving the wrong person being convicted of a crime, resulting in an innocent person being sent to prison, often for many years. This is obviously a terrible consequence and something to be avoided. Remember also that if an innocent person is convicted, the guilty person remains free, making wrongful convictions doubly problematic.
In the following activity you are provided with eight factors that have contributed to wrongful convictions (based on data from Scheck, Neufeld and Dwyer, 2000). Can you work out which is the most problematic?





1.2.2 Miscarriages of justice

The data used in the previous activity was based on analysis of 74 cases where the original person convicted of the crime was later exonerated. Later research conducted by the Innocence Project, and based on 225 exonerations, revealed a similar pattern of results, with eyewitness misidentification remaining the leading cause of wrongful convictions, featuring in over 75% of cases. This analysis also showed that forensic science featured in 23% of the wrongful convictions. It is common for crime dramas to portray forensic science as being completely accurate and reliable, but often the techniques they show owe more to science fiction than they do science fact.
In reality, the accuracy and reliability of forensic science varies greatly according to the particular technique in question. In addition, a great deal of forensic science is reliant on the interpretation and judgements made by a human expert, which can lead to mistakes being made.
A study conducted on fingerprint analysis found that most fingerprint experts would change their decision about whether a latent print was a positive match based on whether other information about the crime suggested the person was guilty or not (Dror and Charlton, 2006). This suggests even forensic evidence such as fingerprint analysis can be prone to human error and may not be as reliable as we think.
For example, in 2004, following fingerprint analysis conducted by several of their experts, the FBI arrested Brandon Mayfield, a US citizen and recent convert to Islam, in connection with the bombings at Alcala de Henares station outside of Madrid (which killed 191 people). Two weeks later Mayfield was released when Spanish police made a positive match between the same fingerprints and another suspect, a match the FBI confirmed as correct.
DNA analysis is a robust technique based on sound scientific principles, but even it can fall foul of human error. For 16 years, German police chased an elusive female serial killer known as ‘the Phantom of Heilbronn’, as the same female DNA was found at 40 crime scenes, including six murders. It was eventually discovered that the cotton swabs used to collect the samples of DNA had been contaminated by a woman working at the factory making the swabs, and that the crimes were not linked at all! If you want to find out more about this case, have a look at ‘DNA bungle’ haunts German police  via BBC News.

1.2.3 The size of the problem – the Innocence Project

Eyewitnesses frequently identify the wrong person, as you learned in Section1.2.1, Causes of miscarriages of justice. This is very worrying indeed. The problem is so significant that it has become the central focus of the Innocence Project, a US organisation dedicated to exonerating wrongfully convicted individuals through DNA testing.
The Innocence Project has an excellent website that contains a great deal of information on how miscarriages of justice occur and case files of all the wrongfully convicted people that the organisation has so far helped find justice.
Visit the Innocence Project website  and look at the section labelled Understand the causes . Also have a look at some of the Case profiles  to see the impact a misidentification can have on someone’s life.
One of the most famous cases of wrongful conviction that the Innocence Project investigated was that of Ronald Cotton , who was charged with rape and burglary and served ten and a half years in prison (the sentence was for life plus 54 years).

Share your thoughts about miscarriages of justice in the course forum thread for this activity. Has anything shocked you about wrongful convictions? Have your views changed about:
  • the usefulness of witness evidence
  • the prevalence of police misconduct
  • the accuracy of forensic science
  • or about police investigations and criminal trials in general?

1.2.4 Variables affecting reliability of testimony

Wrongful convictions occur in a variety of circumstances and across many different types of crime, which the Innocence Project illustrates.
In determining what can affect the reliability of eyewitness evidence, the nature of the crime is itself significant: witnessing someone stealing from a shop is a different experience from witnessing someone physically assaulting another person; and being a victim of a handbag snatch is very different from being a rape victim. While the findings from research in one particular setting are not necessarily generalisable to all crime scenarios, they do provide useful information to the legal system. Research findings have also identified ways of enhancing the reliability of witness testimony, both in the police station and in the courtroom.
In general, when researching variables that might affect eyewitness evidence, psychological research distinguishes between factors based on whether or not they are under the control of the criminal justice system. This distinction is important as it determines how the results of the research can be applied.

System variables

System variables are those that might affect eyewitness evidence and that are under the control of the criminal justice system. System variables include the way in which the police question a witness and the procedures for asking a witness to identify a perpetrator in an identification parade. Research that investigates system variables can have important implications for policing policy and practice (Wells, 1978). For example, if one set of procedures is found to be more effective in eliciting accurate evidence, then, arguably, it should be adopted as common practice. Thus, research on system variables can be applied by altering the way that investigations and trials are conducted.

Estimator variables

Estimator variables are those that might affect eyewitness evidence and that are not under the control of the criminal justice system. This includes such things as whether the perpetrator was wearing a disguise or positioned too far away from the witness to allow for accurate identification. These are obviously factors that cannot be affected by the police or courts.
Although research on estimator variables cannot be used to alter the processes used in investigations and trials, nevertheless the findings can help in determining how likely it is that the witness is able to provide reliable evidence. For example, a witness who saw the perpetrator from a great distance is unlikely to be able to identify the perpetrator accurately. Research on estimator variables can also be very important when the case reaches court, as it is important for the jury to know whether there were factors that might have had an impact on the accuracy of the evidence being provided by the eyewitness.

Comparative law

Another factor to consider when exploring psychology and the law is that the law and different systems of justice vary from one country to another.
For example the legal system in the UK, and in other countries modelled on the English system of common law, is described as adversarial, or accusatorial. Spencer and Flin (1993, p.75) summarise such systems:
In an accusatorial system each side presents a case before a court the function of which is limited to deciding who has won. The judges have nothing to do with the preliminary investigations, give no help to either side in presenting its case, and take no active steps to discover the truth, which emerges – or so the theory goes – from the clash of conflicting accounts.
By contrast, the inquisitorial system found in many European countries and other parts of the world is described as:
The court is viewed as a public agency appointed to get to the bottom of the disputed matter. The court takes the initiative in gathering information as soon as it has notice of the dispute, builds up a file on the matter by questioning all those it thinks may have useful information to offer – including, in a criminal case, the defendant – and then applies its reasoning powers to the material it has collected in order to determine where the truth lies.
(Spencer and Flin, 1993, p. 75)
The research and police investigations described in this course are firmly located in the accusatorial system of justice that is used in the UK and the USA. This is partly due to the accusatorial system posing more problems for witnesses and the reception of their testimony (e.g. placing what may seem to be undue emphasis on oral evidence live in court on the day of the trial), but also because most of the psychological research in this area stems from the USA and the UK.

1.2.5 A witness misidentifies her attacker

NARRATOR MALE
In 1984, Jennifer Thompson was at college, but in the early hours of July 29th Jennifer's life was changed forever.
JENNIFER
Around three o'clock in the morning I thought I heard something in the bedroom, and when I looked over the side of my bed I saw someone's head, and so I of course screamed; I said who is that? Who's there? And this person jumped on my bed, quickly put a gloved hand across my mouth and straddled my body and put a knife to my throat, and told me to shut up or he was going to kill me.
NARRATOR MALE
In the midst of the devastating assault, Jennifer made a conscious decision - she determined to be such a good eyewitness that she would be instrumental in securing her attacker's conviction.
JENNIFER
I decided that if I lived through this I wanted to know the shape of his eyes, I wanted to know the colour of his hair, I wanted to know, you know, the shape of his face, how old he was, how much he weighed, what his voice sounded like, did he have any tattoos, did he have a scar- something and everything that I could remember, that I could bring to the police and hopefully catch this person and put him away for life.
NARRATOR MALE
After the rape, the attacker fled. Jennifer was taken to hospital by the police where detective Mike Golding was the first Officer to interview her.
MIKE
Although she was emotional and upset as you would expect any rape victim to be, she had a presence of mind and a sense of determination that I hadn't seen before in a rape victim.
NARRATOR MALE
Detective Golding worked with Jennifer to create and identikit image that would be circulated in the hope that somebody might recognise it.
JENNIFER
We began to work through this identikit where you have mouths and lips, and cheeks and chins, and noses and nostrils, and ears and everything; until you start putting together these pieces of the face that you remember seeing.
NARRATOR MALE
Within a few days of the public appeal a number of suspects had been suggested. Their pictures were shown to Jennifer as a photo line up.
JENNIFER
I immediately discounted four, and you start doing the - no that's not his ears, no his ears looked closer and that's not his nose, and that nose really looks like his nose, and his hair's too long.
NARRATOR MALE
Jennifer had picked out a man called Ronald Cotton. Later, police called Jennifer back to identify the suspect at a live line-up.
JENNIFER
I remember walking into the room and there was nothing between me and this physical line-up but a table, like a picnic table type of thing. My knees were shaking, I was sweating, my heart was racing.
I remember looking at number four and number five and going, mmm, and then I wrote down number five, and I handed it to the detective.
NARRATOR MALE
Number five - the man Jennifer chose - was again the suspect Ronald Cotton, and based on her strong eyewitness identification, the case went to court. Despite protesting his innocence, at the trial in January 1985, Cotton was convicted of rape and sentenced to life plus fifty years in prison.
A year into his sentence, a convicted serial rapist named Bobby Paul was sent to the same prison. The two men looked so alike that the guards often got them confused.
Cotton discovered that Paul had bragged to fellow inmates that it was he, who had raped Jennifer.
NARRATOR MALE
In north Carolina, at the time of Cotton's trial, the practice of analysing DNA evidence was not routine, but ten years later it had become more commonplace. Cotton, still maintaining his innocence, asked for DNA evidence to be analysed.
The DNA did not belong to Ronald Cotton it belonged to Bobby Paul.
Ten years after being wrongly convicted, Ronald Cotton was finally released.
JENNIFER
I knew it had been my identification, I mean I knew that. It wasn't malicious intent, it wasn't racially motivated, but it didn't matter because the end result was Ronald Cotton spent a third of his life in prison for something he didn't do.
MIKE
I can't tell you how many times I looked at that case and rethought it and, you know, tried to envision what I could have differently that would have prevented it and so it was very bad.

This video includes a witness talking about some of her experiences of a rape, so do think carefully about the impact this might have on you before deciding to watch it.
The video contains interviews with Jennifer Thompson and Detective Mike Gauldin. Jennifer was one of the victims/witnesses in the Cotton case that is presented on the Innocence Project website , and Detective Gauldin one of the police officers who investigated the case.
While watching the video, consider the extent to which the factors that contributed to the wrongful conviction were under the control of the police and criminal justice system. In other words, were system or estimator variables the problem, or was it a combination of both?