By Dr. Ken Broda Bahm:
Chants of “Hands Up, Don’t Shoot” and “I Can’t Breathe,” continue to be heard at protests around the country. Motivated by the Ferguson, Missouri police shooting of Michael Brown, as well as the choke-hold death of Eric Garner in Staten Island, New York, these protests testify to a rising distrust of police killings, particularly when they involve African-American men. To some extent, these demonstrations are reactions to disproportionate impacts when it comes to police use of force, a reaction that is independent of the facts of any one or two given cases. But to another extent, these reactions reflect a lack of credibility in the judicial system’s response. In the Ferguson case, for example, the nonindictment of officer Darren Miller was based on the grand jury’s choice, some say a choice inappropriately encouraged by the prosecutor, to believe some witnesses and not others.
The idea that eye witnesses can be inconsistent is not new, but the dozens of Ferguson witnesses provide a timely example of that. To listen to the witnesses, Michael Brown was charging or surrendering. And he was either close or quite distant at the time. Intuitively, we would like to think that there is nothing better than a first-hand visual account, but we know that those accounts can be fallible. University of Nebraska-Lincoln psychologist Brian Bornstein refers to it as the “Eyewitness Paradox:” Everyone knows that perception and memory can fail, yet at the same time, eyewitness testimony is still enormously influential, with some 75 to 80 percent of overturned wrongful conviction cases being based on eyewitness testimony that was later found to be wrong. A look into that paradox highlights some important implications for litigators, as well as others interested not only in psychology but in their beliefs about psychology. While the research most often focuses on eyewitnesses in the criminal trial, the lessons from eyewitness psychology and folk psychology apply to witness evaluations in any situation where witnesses are remembering things that may or may not be accurate. This post will take a look at a few of the more important implications covered in a recent article and lecture.
The psychology of eyewitness memory is the subject of a recent Op-Ed in The New York Times, written by Christopher Chabris and Daniel Simons, psychology professors at Union College and the University of Illinois respectively. In addition, an hour-long and detailed (but still accessible) academic lecture from Brian Bornstein is currently available on Cornell University’s webcasting site. Drawing from both the article and the lecture, I see three important implications that apply to practical litigators:
Appreciate the Fallibility of Memory
The point made repeatedly, and empirically, in both of these sources is that an eyewitness’s memory is not a neutral record. Honest and careful witnesses make mistakes. Those who work in the area of false convictions (e.g., The Innocence Project) can attest that these mistakes aren’t rare outliers, but are actually disturbingly common. From a wide body of research, we know these failures occur because perception isn’t perfect, and because what we see and hear are not simply stored and then recalled, they are transformed through the acts of perception, retention, and recall. Studies continue to show that memory is far less complete, neutral, and thorough than we would expect it to be. But the “eyewitness paradox” is that even where we see the eyewitness’s potential flaws, we continue to act as though those flaws aren’t there.
Account for Beliefs About Memory
The reason we tend to act in ways that give memory more credence than it deserves comes down to our beliefs about memory. Professor Bornstein addresses many of these beliefs in discussing the field of “meta-memory” research, a field focusing on our knowledge and beliefs regarding how our memory and the memory of others works. Bottom line: People are not particularly accurate in understanding the way their own memory and other peoples’ memory works. And these often-wrong beliefs about memory matter, particularly when we’re evaluating witness testimony. For example, Bornstein points to something called the “confidence heuristic,” meaning the rule of thumb we apply suggesting that those who are more confident are more likely to be accurate than those who aren’t confident. That rule of thumb is the most influential factor in determining witness credibility, endorsed by the jury instructions and the jurors’ intuitions alike. The problem is that the link between confidence and accuracy is mostly an illusion. As Bornstein explains, “Laypeople, which includes prospective jurors, have some erroneous beliefs about eyewitness testimony. They expect some things, like confidence, to matter when they don’t.” Chabris and Simons’ New York Times piece also references research (Roediger & DeSoto, 2014) looking at how well people did at recalling words from a list that they had studied. Their results show that subjects express high confidence not only in true memories, but in false ones as well. And with the false memories, higher confidence is actually correlated with lower accuracy.
And Try to Educate
Having an expert on hand to testify about some of these memory issues would certainly be useful. The problem is that it often isn’t allowed. And, of course, there’s no guarantee that jurors wouldn’t trust their own intuitions more than the expert’s testimony. But it is still a good idea to try to educate jurors and potential jurors to the potential threats to accurate memory. By default, jurors are likely to focus on one main threat to accuracy: conscious dishonesty. But the equation that “If it’s honest, then it must be accurate,” doesn’t bear out. As Chabris and Simons explain, “It is just as misguided to conclude that someone who misremembers must be lying, as it is to defend a false memory in the face of contradictory evidence.” But a jury pool won’t know that, and will instead “know” a number of things that aren’t true about eyewitness testimony at the start of voir dire. Bornstein, for example, includes a table comparing a number of statements and indicating the percentage of memory experts who agree versus the percentage of jurors who agree. Looking at the “cross-race effect” — the finding that eyewitnesses are more accurate when identifying members of their own race rather than another race — 90 percent of experts agree, but only 47 percent of jurors agree that this effect is real. But it actually is real. Drawing from these and other resources, attorneys should be able to make a very compelling case for the need for expert testimony geared toward helping jurors do their duties and reasonably and accurately evaluate eyewitness testimony. If that doesn’t work, litigators can also use oral voir dire to prompt discussions that at least induce jurors to be a bit more informed and critical.
Ultimately, the treatment and evaluation of eyewitness testimony is another area where the law is challenged in keeping up with the psychology. The common sense of the panel simply isn’t enough.
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Other Posts on Witness Credibility:
- Don’t Overthink Your Credibility Assessments
- When Crossing or Responding to Your Opposing Expert Witness, Look for the L.I.E. (Large Internal Error)
- Don’t Assume Prior Convictions Kill Credibility
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Photo Credit: 123rf.com, used under license.