Problems in the criminal justice system

Eyewitness Testimony Problems

One of the fundamental assumptions of the American criminal justice system is that the testimony of eyewitnesses can be trusted -- in fact, that it can be trusted absolutely. There is little more convincingly to a jury than hearing a witness declaim: "That's the man -- I saw him leaving the murder scene." We believe eyewitnesses because we like to believe that we ourselves would be good eyewitnesses, that we ourselves are capable of remembering the world exactly the way that it is. But recent research has documented a wide range of possible errors that consistently occur in eyewitnesses testimony, a fact that must call into question any reliance on such testimony if significant and widespread errors are not to occur. This paper examines some of those errors and suggests some ways in which they can be mitigated without dismissing the value that such testimony can have.

Before proceeding with an examination of eyewitness testimony, I should make it clear that the problems that I am focusing on here do not include intentional lying or perjury, although certainly eyewitnesses -- like other kinds of witnesses, of course -- do intentionally lie. Their lies range from outright fabrications to more subtle shadings of the truth. This is why the act of perjury is a crime: Intentional giving of false information (whether in criminal or civil cases) is a primary cause of injustice (Connell, 2002). But a range of researchers argue that perjury is far less of a problem within the criminal justice system than are the unintentional distortions that creep into people's well-intentioned testimony.

Eyewitness errors tend to follow certain patterns. That is, eyewitnesses tend to make the same kinds of mistakes from case to case. This is actually very helpful in that it is easier for both police and court officers to work to remedy such problems when they are systematic rather than if they were purely idiosyncratic. Connell, in writing an overview of recent research on this problem, cites a number of the ways in which eyewitness testimony can become biased or distorted or in some other ways inaccurate.

While noting that "No doubt, witnesses attempt to give accurate information to law enforcement authorities" Connell stresses that "there is a range of factors that affect their ability to do so." Some of the broad categories of concern in eyewitness testimony include: "witness characteristics, perpetrator characteristics, and event variables or characteristics" (Connell, 2002).

Among witness characteristics that might influence accuracy are the witness's age, state of mind, relationship with the alleged perpetrator, alertness, general cognitive capacity, and comfort providing information or testimony. Perpetrator characteristics that may affect witness reliability are distinguishable or unique features, racial similarity or difference from witness, manner of behavior, and other such variables. Event characteristics that may affect accuracy include the presence of a weapon, the sense of crisis or emergency, the length of time the witness has to observe the perpetrator, lighting and other factors that might affect the witness's capacity to make an accurate mental record, the recency of the event, the frequency of the event (for repeated episodes of sexual assault, for example), the uniqueness of the situation, and factors that might cause the witness to fear consequences if accurate testimony is provided. (Connell, 2002)

One specific problem, as noted above, is that eyewitnesses are less reliable when asked to identify a member of a different race (with white witnesses somewhat less skilled at doing so, but members of all races being less accurate in their ability to identify individuals of different races than they are when identifying members of their own races (Wells etal, 1993, p. 554). This seems to be the case regardless of the view of an individual towards members of other races: Even those who claim to be non-racist still have a lower accuracy rate in identifying individuals of other races.

Special Concerns With Child Eyewitness Testimony

All eyewitnesses -- indeed all humans -- are susceptible to suggestions. It thus follows that anyone interviewing a witness must take especial care not to suggest possible answers. This is actually quite hard to do: Most interviewers will have some idea to explain what has happened in any particular case-based either on the fact of that case itself or from their general experiences with such cases and these basic ideas will tend to shape the questions that they ask, and therefore shape the answers that they receive. Children, especially young children, are among the most suggestible of all eyewitnesses and therefore interviewers must be as vigilant as possible in interviewing them and in assessing the validity of their testimony.

One of the most problematic elements of the fact that eyewitnesses are suggestible to theories embedded in questions is that such suggestions make them more certain of their own testimony. Thus, as Connell (2002) warns, it is imperative that police and court officers do not correlate an eyewitness' high level of certainty with a high level of accuracy.

Unwitting communication of the interviewer's theory of the case is almost inevitable, so that premature formulation of a hypothesis or lack of objectivity is likely to distort witness reports. Witnesses are known to have difficulty attributing source to memory of events or persons, so that child witnesses, for example, may have difficulty distinguishing between a dream, a real event, or an event about which they have been questioned numerous times. Witnesses who hear discussion about a crime in the media, or from other witnesses, may have difficulty recalling where they got pieces of information and may believe they saw something or heard something at the crime scene that, in fact, they did not. Witness certainty is a poor predictor of witness accuracy, a fact that is somewhat counterintuitive (Connell, 2002).

Indeed, much about eyewitness testimony is counterintuitive -- which is precisely the reason that research must continue to be done so that all possible precautions can be integrated into the criminal justice system to ensure that there are no miscarriages of justice as the result of inaccurate eyewitness testimony.

The issue of the accuracy of children's eyewitness testimony is central to cases involving charges of the sexual abuse of children in which there may be few if any additional sources of evidence and in which the nature of the (purported) crime is highly traumatic. As Connell (2002) noted in the passage cited above, the specifics of the crime are one of the major causes of eyewitness distortion. The traumatic nature of the crime of sexual abuse, the shame that the victim often attaches to it, and the fact that the abuser may well have threatened the child with dire consequences if she or he reveals what happened are all factors that may shift children's eyewitness testimony away from the truth (Lepore & Sesco, 1994, p. 110).

Particular problems arise when child eyewitnesses are younger than five. Ceci, Huffman, Smith, & Loftus (1994) found that when preschool-age children were given false information about an event (after it had happened), they were up to 44% more likely than adults (and about 25% more likely than older children) to make inaccurate statements. Interestingly, the same study also found that even very young children (in this study the children were four) were almost perfectly accurate when they were not given false information about an event after it occurred. This fact suggests that careful interviewing techniques can surmount many of the problems that can arise with a reliance on eyewitness testimony. This is, of course, true not only of children but of adults are well.