Psychology of Witness Testimony and the Criminal Justice System - Research Paper Example

 Psychology of Witness Testimony and the Criminal Justice System Introduction The criminal justice system depends greatly on witness testimonies, and as shown in actual practice this dependence does not imply that criminal justice agencies respond competently to them. Common ideas of how the criminal justice system acts in response to crime shed light on how law enforcement commits itself to the collection and application of witness testimony. Nevertheless, a great deal of criminal justice procedures also requires commitment to sizeable resources and developing several techniques to prevent or rectify errors (Greene & Heilbrun, 2013). For instance, criminal justice agencies do so through the services of chosen attorneys when suspects are pinpointed through line-ups and the exercise of prosecutorial decision to abandon charges on the basis of untrustworthy witness testimonies, appellate review procedures to ward off failure to comply with appropriate legal requirements in the utilisation of witness accounts, juries to ensure the reliability of witness testimony, evidentiary verdicts by judges to guarantee appropriate use of witness testimony, and cross-examination by attorneys to screen untrustworthy witnesses (Newburn et al., 2012). Altogether, these represent somewhat notable safeguards. This essay discusses the value of witness testimony to the criminal justice process in relation to evidential and investigative aspects. It also examines how psychological research and theories match current policy and practice. Value of Witness Testimony to the Criminal Justice Process The considerable value of witness testimony in the criminal justice system can be viewed in several perspectives: in the different protections guaranteed by the law to defend suspects from unjust verdict based on erroneous identification; in the effort of courtroom attorneys to disprove the witnesses of the other parties; in the proof that witness testimony affects the result of trials; and, ultimately, in the considerable attention given to the witness testimony by law reform committees and psycho-legal scholars. The prosecution in a court hearing should substantiate its case beyond reasonable doubt and the jurors have to be convinced and definite of the defendant’s culpability (Kapardis, 2014). In spite of the protections in the criminal justice system to defend suspects against unjust verdict based on erroneous identification, there are numerous incidents of these cases. A great deal of the research on the correlation between eyewitness confidence and eyewitness truthfulness or accuracy has focused on the conditions around the initial two phases of the eyewitness involvement: the first witnessed incident, and the gathering of evidence between the witnessed incident and trial. Research has showed that jury members give much important to eyewitness testimony. Even in the availability of scientifically validated evidence like DNA fingerprinting, eyewitness testimony is the courtroom remains powerful and influential (Brandl, 2014). Due to the great risks and interests in numerous courtroom trials, eyewitnesses themselves certainly recognise the value of their testimony. The value of witness testimony is obvious and straightforward (McDonald, 2000, 986): There are reasons to believe that witness testimony may be of particular importance in the trials before the International Tribunal due to the absence of the kind of detailed documentary evidence or “paper-trail” that was available in the trial of major war criminals before the Nuremberg Tribunal… Thus, the powers of the International Tribunal in relation to witness testimony may be viewed as the inherent powers of any criminal court or as implied necessary powers of the Trial Chamber under the Statute. Generally, witnesses are persons who have direct, actual knowledge about an incident and give evidence that contributes to the identification of facts in a specific case. There are different kinds of witnesses, which is important to understand in order to make sense of the value of witness testimony to the criminal justice process. Lay witnesses are individuals who participate in the criminal hearing due to their actual knowledge of a person involved in the crime, and the incident for which the suspect is accused (Loftus, 1996). Eyewitnesses are people who actually witnessed a crime; they are usually the most credible, convincing source of evidence in the courtroom. Character witnesses, on the other hand, give testimony about the suspect with the intention of persuading the jury or judge that the suspect is very unlikely to perpetrate the criminal act at issue. At times, victims can be witnesses too, giving their own description of the suspected crime of which they were made a victim of as well as statement about the participation of the defendant in the crime (Loftus, 1996). Lay witnesses are permitted to give evidence concerning only details, about which they have actual knowledge and should carry this out under oath, confirming or pledging that their testimony is truthful and precise. Witnesses are generally neglected by the criminal justice system by being compelled to bear unexpected suspensions and alterations in trial schedules; although they are salaried for absences at work, the salary is minimal (Tong et al., 2009). In spite of attempts to enhance these procedures, these problems still exist in several administrations, and the witness nowadays usually provide testimonies owing to a sense of responsibility in an attempt to pursue justice to the detriment of his/her financial status. Expert witnesses are witnesses with professional, particular skills or knowledge who are acknowledged by the court to help create perspective for the jury or judge to guide them in their identification of guild. Expert witnesses usually are request to give specialised information on an important subject matter in the case, and inform the jurors about common issues in a field for which they have particular understanding (Cutler & Kovera, 2011). Expert witnesses can give testimony for either the suspect or the state, but generally are requested to get involved for the party their testimony is most probable to help. Nevertheless, not like lay witnesses they are often permitted to give their opinions or interpretations or give conclusions grounded on their specialisation or specific knowledge. Since each party usually presents its own expert witnesses in court, the testimony of expert witnesses can be conflicting and hence unclear (Webber, 2009). In spite of this problem, almost all researchers claim that expert witness give more credible, truthful testimony compared to lay witnesses. Nevertheless, eyewitness proof of identity or identification is considered as one of the most unreliable forms of evidence, but it is very convincing in determining proof. In truth, the sole evidence that has greater convincing powers is a confession (Tong et al., 2009). However, as stated by Wells and colleagues (1998), “False eyewitness identification is the primary cause of the conviction of innocent people” (as cited in Brandl, 2014, 171); more than 300 incidents of mistaken convictions are presented on the online page of the Innocence Project, and they disclose eyewitness inaccuracy as the most usual cause of erroneous convictions (Brandl, 2014, 171-2). Still, the official responsibilities and function of witnesses in the criminal justice system are strongly recognised. The Home Office proclaims that “a witness to a crime is expected, as a civic duty, to report the crime to the police… At a later date the witness may be asked to give oral evidence in court about what they have seen, and answer questions during cross-examination by the defence” (Newburn et al., 2012, 462). However, it is only in recent years that studies have emphasised the multifaceted array of variables that influence the decisions of witnesses to take part in the crime investigation and provide testimony at court. Beliefs about the severity of the crime, the social setting wherein it takes place and issues emerging from earlier experiences of appearing in court all have an effect on whether or not a witness will take part in an investigation of a crime (Ainsworth, 1999). Awareness of these concerns has encouraged dynamic and comprehensive policy initiatives in relation to witnesses as government strives to ensure greater degree of witness involvement in the criminal justice system. Although these policy initiatives are obviously to be received, there are also major weaknesses with the present policy framework (Greene & Heilbrun, 2013). Primarily, with regard to location and timing of policies that have been executed, the primary focus has been on the duration of the hearing and what transpires in the courtroom. As explained by Burton and colleagues (2006) (as cited in Newburn et al., 2012, 462): The focus of policy and practice [has] tended to be the courts, as successful court cases are the ultimate objective of most criminal justice processes… [E]ffort must now be directed at the investigation and pre-trial processes as much as at court processes, for these court cases to be successful. In fact, this argument was also raised by the Speaking Up for Justice in 1998, which emphasised that “vulnerable witnesses are likely to need assistance at earlier stages in the criminal justice process and require the adoption of special measures both during the investigation and during the pre-trial period as at the trial itself” (Newburn et al., 2012, 462). Another and associated argument is that policy as regards witnesses, especially concerning intimidation, seems to support what is basically a situational method, concentrated on the control and handling of particular settings which contribute to the reduction of the susceptibility of witnesses to coercion or pressure, like witness relocation or the installation of CCTV in courtrooms (Joyce, 2013). Although the implementation of these specific actions could assist in the process of investigation in terms of persuading witnesses to provide testimony, these steps deal with warning signs not causes. They are focused on the reduction of risk, instead of tackling the fundamental interests and issues of witnesses. If improvement is to be attained in terms of addressing several of these concerns, then greater focus has to be given on social instead of situational methods. A case in point is the Community and Police Enforcement (CAPE) programme in Newcastle. The initiative is trying to challenge ‘no-grassing’, a traditional practice of refusing to give evidence to the police, by encouraging locals to help one another if they report a crime to the police or if the incident is tried at court (Newburn et al., 2012, 462-3). Perhaps, these community-based, socially oriented approaches are more in line with the long-term demands and requirements of witnesses and their neighbourhood than situational strategies. In view of this it is important that future policy initiative in this domain deals with how witness participation in the criminal justice process is viewed in wider perspectives than merely the direct conditions of giving an evidential testimony and appearing at court. In earlier times, the criminal justice system has been prone to detach the witness from his/her immediate social setting, treating him/her only as a body needed for the legal procedure. In fact, this practice of estrangement is frequently strengthened informally through the criminal justice system’s subcultures (Needs & Towl, 2008). For instance, it is not uncommon for law enforcers to refer to witnesses as ‘gems’(Kassin, 1983), items of immense worth to an investigation which have to be thoroughly cared for. On the contrary, there will be certain witnesses who consider themselves ‘grasses’ since the neighbourhood wherein they reside believe helping the police is a violation of the local culture about not helping the criminal justice system (Needs & Towl, 2008). According to Tong and colleagues (2009), although a great deal of improvement has been attained in the UK recently in dealing with the fears and worries of the ‘reluctant witness’, acknowledging and acting in response to the reality that witnesses are rooted in specific social situations which completely influence their decisions as regards working with criminal justice agencies and, eventually, providing testimony in court, is still important missions for the criminal justice system of the UK. Psychological Research and Theories and Current Policy and Practice The studies of Ronald Huff, one of the earliest researchers of wrongful convictions or miscarriages of justice, reports that blunders can take place at any of the phases of handling out a criminal case specifically in the process of investigating, prosecuting, and adjudicating; the leading causes of erroneous verdict are informants, government wrongdoing, untruthful confessions, incompetent forensic analysis, mistaken eyewitness identification and, ultimately, inefficient lawyering (Kapardis, 2014). The inefficiency of prosecutors and police officers and heavy demands on investigators to put on trial suspects in high-profile criminal cases, especially rape or murder, also extends to documenting perversions of justice. Schmidt (2012) has studied determinants of wrongful conviction making use of information on 59 criminal cases submitted to the Court of Appeal by the Criminal Cases Review Commission of England and Wales (as cited in Bekerian & Levey, 2011). When aspects identified prior to preliminary conviction were examined, it was discovered that a wrongful conviction was highly determined by the suspect being unconnected to the victim and several individuals apparently involved in the murder; nevertheless, when aspects identified after the preliminary conviction were added to the study, a wrongful conviction was also greatly determined by reliable new evidence (Bull et al., 2009). The R v George (2002) case demonstrates how an uncertain eyewitness identification of a defendant, alongside unsure forensic and circumstantial evidence, was provided in such a manner as to misinform the jurors, leading to a conviction (Bekerian & Levey, 2011, 51). Another main point of cooperation between the criminal justice system and psychologists has been in the area of interview methods. Almost all psychology student textbooks mention the studies of Elizabeth Loftus. Loftus (1996), in her work entitled Eyewitness Testimony, specifies the crucial value of what she called ‘post-event information’ (PEI). PEI is defined as “any information that a witness receives, or is exposed to, after an event has occurred” (Bekerian & Levey, 2011, 51). Illustrations of PEI are witnesses being revealed in media reports of an incident, a witness practising the incident with other witnesses, and, essentially, major questions asked by investigators. Experimental findings on PEI have resulted in significant progress in the way in which investigators question witnesses (Webber, 2009). Although numerous studies on witness testimony have placed emphasis on the untrustworthiness of memory, several researchers have been more focused on identifying whether witness testimonies could be made more precise with the development and practice of new methods. A particular method that has gained substantial consideration is hypnosis (Chaemsaithong, 2012). The precise psychological mechanisms underlying hypnosis are debatable. Several early researchers thought that hypnosis created ‘dissociation’, or a distorted state of consciousness. This concept of dissociation is widespread among athletes, who try to disregard pains and throbbing in order to carry on with their routine. On the contrary, other scholars saw hypnosis as a usual state of consciousness, where the susceptibility or openness of the individual is simply increased (Brandl, 2014). Ernest Hilgard introduced the modern concept known as the ‘neodissociation theory’, which supports the idea that hypnosis is distorted consciousness. Hilgard mentioned the unseen onlooker, which is that portion of the brain still vacant for information processing whereas another portion is in a state of stupor (Levesque, 2006). Hilgard substantiated the notion of hypnosis when he built his test site for hypnosis studies in the 1950s at Stanford University. Almost all psychologists think that the process is influenced more by the traits of the individual undergoing hypnosis than the ability of the individual who is performing the hypnosis (Levesque, 2006). Although there are proofs that hypnosis can assist in the ability of eyewitnesses to recall needed information, there are also proofs to indicate that hypnosis can be dangerous. Hypnotized witnesses, for instance, appear quite certain in the details they remember while under hypnosis, despite the precision or trustworthiness of the information (Loftus, 1996). Because it is widely recognised that jurors give more importance to testimony of assertive victims and witnesses, this implies that hypnotically prompted testimony can bear greater influence or credibility, although they may not be more trustworthy. However, research on wrongful convictions offer definite illustrations of the level to which the error-connection and error-avoidance processes appear insufficient to correct misidentifications. One popular research on wrongful convictions, for instance, found out that misidentification was the most widespread form of error, observed in more than 50 per cent of the studied cases (Tong et al., 2009). Significantly, more than 40 per cent of wrongful convictions were in murder cases, indicating that unjust sentencing was probable to be drawn-out and dangerous. In addition, the National Institute of Justice currently carried out a research on criminal convictions that had eventually been determined as erroneous by means of DNA testing. The research found out 28 cases of such, altogether concerning sexual violence, wherein DNA evidence eventually acquitted the convicted felon (Greene & Heilbrun, 2013, 85-87). All of these cases included witness testimonies and identifications, and in most of them the primary evidence that had established the verdict was wrongful witness identification. These studies suggest the idea that the duty for the witness may appear plain and simple on the surface, yet the endeavour could result in erroneous identification that become the reason for a higher number of real incidents of wrongful convictions by jurors than all other reasons taken together. Significantly, these sets of empirical evidence do not essentially illustrate the broad influence and effect of witness testimony (Kapardis, 2014). The criminal justice system does not certainly deal with errors successfully and in fact could aggravate the untrustworthiness of witness testimony. Psychological studies have long demonstrated that jury members give more importance to witness testimony and those witnesses can contribute much to miscarriages of justice (McDonald, 2000). A seminal research, for instance, reported that the inclusion of a witness testimony and identification to circumstantial evidence identifying a defendant raised the number of respondents choosing to convict from 18 per cent to 72 per cent. Significantly, even with further proof indicating that the witness was untrustworthy, 68 per cent of respondents still chose to convict (Bekerian & Levey, 2011, 67). Besides being given too much importance by jury members, it is common knowledge that witnesses can commit errors. Another influential research showed how respondents were convincingly untrustworthy when they had witnessed a re-enactment of purse-snatching and had a definite image of the suspect’s appearance. Surprisingly, merely 14 per cent of the respondents accurately identified the purse-snatcher in the line-up (Bekerian & Levey, 2011, 55-57). In spite of having been granted with a definite sight of the suspect, the eyewitnesses much lower than if they had speculated arbitrarily. Studies from then on have kept on substantiating the notable untrustworthiness of witness testimony (Cutler & Kovera, 2011, 54). Apparently, recognition that witness testimony could be imprecise and erroneous is not unknown. The criminal justice system has confronted difficulties with the credibility of eyewitnesses and it keeps on coping with the level to which errors affect criminal justice procedures and outcomes. However, fortunately, researchers are now aware of the high risks of wrongful conviction due to eyewitness misidentification, although those who perform legal procedures strongly give greater weight on witness testimony (Joyce, 2013). There are also voluminous empirical findings nowadays suggesting causes of risky witness misidentification or error and formulating solutions to this problem (Levesque, 2006). One of the encouraging advances in the social sciences and criminology is the improvement of methods, backed up by field and laboratory studies, widely recognised as the Cognitive Interview (CI). CI builds on the empirical evidence regarding the precision of unaffected recovery and probable roots of corruption and repression to determine procedures that encourages the natural mechanisms of memory recovery by involved eyewitnesses (Needs & Towl, 2008). The CI is based on two notions of memory. The first notion states that “the effectiveness of a retrieval cue is related to the amount of feature overlap with the encoded event” (Levesque, 2006, 37). The second notion explains that “there may be several retrieval paths to the encoded event, so that information not accessible with one retrieval cue may be accessible with a different cue” (Levesque, 2006, 37). The four common directions of CI based on those notions are the following (Needs & Towl, 2008, 132): (1) Mentally reinstating the environmental and personal context that existed at the time of the original event, (2) reporting everything, even partial information, regardless of its perceived importance, (3) recounting the events in a variety of orders, and (4) reporting the events from a variety of perspectives. The CI, similar to a controlled and structured clinical interview, is performed in an organized structure to get the most out of retrieval of vital information. The CI also offers direction about what the investigator must avoid doing. For instance, even though the asking of open-ended questions to encourage the eyewitness to give a full description of the incident is a widely known procedure, law enforcement interviewers could still often interrupt the eyewitness. The thinking is that these interruptions can disrupt the natural memory mechanisms of the witness, boost cognitive unresponsiveness of the witness, and prevent full description of the event or volunteering of information (Newburn et al., 2012). Such dilemmas are aggravated when disruptions assume the form of close-ended, rattling questioning, or questions that hastily try to bring the eyewitness back to an earlier part in the narrative course (Webber, 2009). Generally, the CI requires a more persistent, insightful, and accommodating interpersonal approach than several criminal justice investigators could either have dispositionally or have acquired in their law enforcement duties and through interaction with non-cooperative, hostile individuals (Joyce, 2013). In addition, the CI requires greater amount of time than the traditional law enforcement investigation, for it does not try to rapidly acquire the needed information, but rather puts up with and even motivates the witness to remember all details of the incident, regardless how absolutely indirect or irrelevant to the focus of the investigation. The tremendous possibility of mistaken identification furthers the focus on analysing how the criminal justice system deals with witnesses. An indispensable part of the investigatory procedure concerning witnesses is the structured identification process by which witnesses identify suspect(s) (Tong et al., 2009). But the attempts of investigators to make the most of retrieval or vital information while avoiding corruption confront serious difficulties. Witnesses deal with not just a cognitive problem-solving context formed by the memory retrieval activity but also a social problem-solving activity created by the interaction with criminal justice investigators (Poythress, 1983). Due to the vulnerability of memory information to post-event corruption—the supposed ‘post-event information contamination’ or ‘misinformation’ phenomenon—has been thoroughly studied, the core issue becomes how criminal justice agencies can most effectively tackle ‘memory traces’ (Chaemsaithong, 2012, 473). The trace located in the memory of the eyewitness poses the fundamental concern about how investigators can or must handle witness testimony such as concrete trace evidence, like concentration of blood alcohol as determined by a breath examination, a DNA sample, or a fingerprint (Bull et al., 2009). However, established practice and intuition instead of empirical findings inform the procedures included in dealing with witness testimony. The criminal justice system has employed three methods to deal with insufficiencies in witness testimony in pre-trial identifications. The traditional or synchronised line-up shows several ‘suspects’ simultaneously and a victim or eyewitness selects from those individuals in the line-up (Greene & Heilbrun, 2013). Otherwise, a sequential line-up shows the ‘suspects’ in sequence and instructs the witness to identify at the moment of showing whether the person fits his/her memory of the offender. These two types of line-up can be carried out with pictures or actual persons. Finally, identifications could be acquired by means of showups. Showups require taking the suspects to witnesses to find out whether they will pinpoint that individual as the criminal (Joyce, 2013). These identification methods have attained different consistency and reliability outcomes. However, regardless of the identification method, similarly essential to take into consideration is what happens after the witness gives identification. Current studies have indicated that if the witness is informed, soon after the line-up method, that s/he accurately pinpointed the suspect, two outcomes can take place. First, as expected, the witness becomes more self-assured in the precision of the identification (Levesque, 2006). Second, however, the response or opinion also is probable to affect his/her memory for the criminal act itself. The eyewitness can possibly recall that s/he witnessed the suspect longer and more clearly than earlier stated (Tong et al., 2009; Levesque, 2006). These two aspects can probably affect the future recollections of the witness as they undergo criminal justice procedures; it can also possibly affect how authorities handle suspect(s) (Levesque, 2006). Strong scientific findings suggest that the certainty with which witnesses give testimony is the most essential value of evidence in relation to whether jury members will have confidence in the testimony and identification of the witness. Conclusions In reality, an assertive witness has a tendency to persuade jury members to disregard the witnessing circumstances themselves and have confidence in the witness at a level that surpasses the real level of precision. However, little correlation is reported between the precision of witness testimony and the certainty of witnesses in there identification testimony. Irrespective of this consistent report, most people, as well as trial judges, jury members, prosecutors, and police investigators, depend greatly on witness certainty as a predictor of witness precision. Altogether, these studies reveal the unreliability and weaknesses of the human mind within the setting of witness testimony, and create serious uncertainty over court cases that depend on witness testimony. References Ainsworth, P. (1999). Psychology, Law and Eyewitness Testimony. UK: Wiley. Bekerian, D. & Levey, A. (2011). Applied Psychology: Putting Theory into Practice. Oxford, UK: Oxford University Press. Brandl, S. (2014). Criminal Investigation. Thousand Oaks, CA: SAGE Publications. Bull, R. et al. (2009). Handbook of Psychology of Investigative Interviewing: Current Developments and Future Directions. Oxford, UK: John Wiley & Sons. Chaemsaithong, K. (2012). Performing self on the witness stand: Stance and relational work in expert witness testimony. Discourse & Society, 23(5), 465-486. Cutler, B. & Kovera, M. (2011). Expert Psychological Testimony. Current Directions in Psychological Science, 20(1), 53-57. Greene, E. & Heilbrun, K. (2013). 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