1.2 Introduction to eyewitness psychology
Psychology and lawAlthough 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.
1.2.1 Causes of miscarriages of justice
1.2.2 Miscarriages of justice
1.2.3 The size of the problem – the Innocence Project
- 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 testimonyWrongful 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 variablesSystem 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 variablesEstimator 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 lawAnother 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.
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.
1.2.5 A witness misidentifies her attacker
NARRATOR MALEIn 1984, Jennifer Thompson was at college, but in the early hours of July 29th Jennifer's life was changed forever.JENNIFERAround 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 MALEIn 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.JENNIFERI 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 MALEAfter the rape, the attacker fled. Jennifer was taken to hospital by the police where detective Mike Golding was the first Officer to interview her.MIKEAlthough 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 MALEDetective Golding worked with Jennifer to create and identikit image that would be circulated in the hope that somebody might recognise it.JENNIFERWe 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 MALEWithin 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.JENNIFERI 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 MALEJennifer had picked out a man called Ronald Cotton. Later, police called Jennifer back to identify the suspect at a live line-up.JENNIFERI 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 MALENumber 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 MALEIn 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.MIKEJENNIFERI 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.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.