Eyewitness Testimony and Memory Construction

Learning Objectives

  • Describe the unreliability of eyewitness testimony
  • Explain the misinformation effect

Memory Construction and Reconstruction

The formulation of new memories is sometimes called construction, and the process of bringing up old memories is called reconstruction. Yet as we retrieve our memories, we also tend to alter and modify them. A memory pulled from long-term storage into short-term memory is flexible. New events can be added and we can change what we think we remember about past events, resulting in inaccuracies and distortions. People may not intend to distort facts, but it can happen in the process of retrieving old memories and combining them with new memories (Roediger and DeSoto, in press).

Suggestibility

When someone witnesses a crime, that person’s memory of the details of the crime is very important in catching the suspect. Because memory is so fragile, witnesses can be easily (and often accidentally) misled due to the problem of suggestibility. Suggestibility describes the effects of misinformation from external sources that leads to the creation of false memories. In the fall of 2002, a sniper in the DC area shot people at a gas station, leaving Home Depot, and walking down the street. These attacks went on in a variety of places for over three weeks and resulted in the deaths of ten people. During this time, as you can imagine, people were terrified to leave their homes, go shopping, or even walk through their neighborhoods. Police officers and the FBI worked frantically to solve the crimes, and a tip hotline was set up. Law enforcement received over 140,000 tips, which resulted in approximately 35,000 possible suspects (Newseum, n.d.).

Most of the tips were dead ends, until a white van was spotted at the site of one of the shootings. The police chief went on national television with a picture of the white van. After the news conference, several other eyewitnesses called to say that they too had seen a white van fleeing from the scene of the shooting. At the time, there were more than 70,000 white vans in the area. Police officers, as well as the general public, focused almost exclusively on white vans because they believed the eyewitnesses. Other tips were ignored. When the suspects were finally caught, they were driving a blue sedan.

As illustrated by this example, we are vulnerable to the power of suggestion, simply based on something we see on the news. Or we can claim to remember something that in fact is only a suggestion someone made. It is the suggestion that is the cause of the false memory.

Eyewitness Misidentification

Even though memory and the process of reconstruction can be fragile, police officers, prosecutors, and the courts often rely on eyewitness identification and testimony in the prosecution of criminals. However, faulty eyewitness identification and testimony can lead to wrongful convictions (Figure 1).

A bar graph is titled “Leading cause of wrongful conviction in DNA exoneration cases (source: Innocence Project).” The x-axis is labeled “leading cause,” and the y-axis is labeled “percentage of wrongful convictions (first 239 DNA exonerations).” Four bars show data: “eyewitness misidentification” is the leading cause in about 75% of cases, “forensic science” in about 49% of cases, “false confession” in about 23% of cases, and “informant” in about 18% of cases.

Figure 1. In studying cases where DNA evidence has exonerated people from crimes, the Innocence Project discovered that eyewitness misidentification is the leading cause of wrongful convictions (Benjamin N. Cardozo School of Law, Yeshiva University, 2009).

How does this happen? In 1984, Jennifer Thompson, then a 22-year-old college student in North Carolina, was brutally raped at knifepoint. As she was being raped, she tried to memorize every detail of her rapist’s face and physical characteristics, vowing that if she survived, she would help get him convicted. After the police were contacted, a composite sketch was made of the suspect, and Jennifer was shown six photos. She chose two, one of which was of Ronald Cotton. After looking at the photos for 4–5 minutes, she said, “Yeah. This is the one,” and then she added, “I think this is the guy.” When questioned about this by the detective who asked, “You’re sure? Positive?” She said that it was him. Then she asked the detective if she did OK, and he reinforced her choice by telling her she did great. These kinds of unintended cues and suggestions by police officers can lead witnesses to identify the wrong suspect. The district attorney was concerned about her lack of certainty the first time, so she viewed a lineup of seven men. She said she was trying to decide between numbers 4 and 5, finally deciding that Cotton, number 5, “Looks most like him.” He was 22 years old.

By the time the trial began, Jennifer Thompson had absolutely no doubt that she was raped by Ronald Cotton. She testified at the court hearing, and her testimony was compelling enough that it helped convict him. How did she go from, “I think it’s the guy” and it “Looks most like him,” to such certainty? Gary Wells and Deah Quinlivan (2009) assert it’s suggestive police identification procedures, such as stacking lineups to make the defendant stand out, telling the witness which person to identify, and confirming witnesses choices by telling them “Good choice,” or “You picked the guy.”

After Cotton was convicted of the rape, he was sent to prison for life plus 50 years. After 4 years in prison, he was able to get a new trial. Jennifer Thompson once again testified against him. This time Ronald Cotton was given two life sentences. After serving 11 years in prison, DNA evidence finally demonstrated that Ronald Cotton did not commit the rape, was innocent, and had served over a decade in prison for a crime he did not commit.

Link to Learning

To learn more about Ronald Cotton and the fallibility of memory, watch these excellent Part 1 and Part 2 videos by 60 Minutes.

Ronald Cotton’s story, unfortunately, is not unique. There are also people who were convicted and placed on death row, who were later exonerated. The Innocence Project is a non-profit group that works to exonerate falsely convicted people, including those convicted by eyewitness testimony. To learn more, you can visit http://www.innocenceproject.org.

Dig Deeper: Preserving Eyewitness Memory: The Elizabeth Smart Case

Contrast the Cotton case with what happened in the Elizabeth Smart case. When Elizabeth was 14 years old and fast asleep in her bed at home, she was abducted at knifepoint. Her nine-year-old sister, Mary Katherine, was sleeping in the same bed and watched, terrified, as her beloved older sister was abducted. Mary Katherine was the sole eyewitness to this crime and was very fearful. In the coming weeks, the Salt Lake City police and the FBI proceeded with caution with Mary Katherine. They did not want to implant any false memories or mislead her in any way. They did not show her police line-ups or push her to do a composite sketch of the abductor. They knew if they corrupted her memory, Elizabeth might never be found. For several months, there was little or no progress on the case. Then, about 4 months after the kidnapping, Mary Katherine first recalled that she had heard the abductor’s voice prior to that night (he had worked one time as a handyman at the family’s home) and then she was able to name the person whose voice it was. The family contacted the press and others recognized him—after a total of nine months, the suspect was caught and Elizabeth Smart was returned to her family.

Try It

The Misinformation Effect

Cognitive psychologist Elizabeth Loftus has conducted extensive research on memory. She has studied false memories as well as recovered memories of childhood sexual abuse. Loftus also developed the misinformation effect paradigm, which holds that after exposure to incorrect information, a person may misremember the original event.

According to Loftus, an eyewitness’s memory of an event is very flexible due to the misinformation effect. To test this theory, Loftus and John Palmer (1974) asked 45 U.S. college students to estimate the speed of cars using different forms of questions (Figure 2). The participants were shown films of car accidents and were asked to play the role of the eyewitness and describe what happened. They were asked, “About how fast were the cars going when they (smashed, collided, bumped, hit, contacted) each other?” The participants estimated the speed of the cars based on the verb used.

Watch It

This video explains the misinformation effect.

Participants who heard the word “smashed” estimated that the cars were traveling at a much higher speed than participants who heard the word “contacted.” The implied information about speed, based on the verb they heard, had an effect on the participants’ memory of the accident. In a follow-up one week later, participants were asked if they saw any broken glass (none was shown in the accident pictures). Participants who had been in the “smashed” group were more than twice as likely to indicate that they did remember seeing glass. Loftus and Palmer demonstrated that a leading question encouraged them to not only remember the cars were going faster, but to also falsely remember that they saw broken glass.

Photograph A shows two cars that have crashed into each other. Part B is a bar graph titled “perceived speed based on questioner’s verb (source: Loftus and Palmer, 1974).” The x-axis is labeled “questioner’s verb, and the y-axis is labeled “perceived speed (mph).” Five bars share data: “smashed” was perceived at about 41 mph, “collided” at about 39 mph, “bumped” at about 37 mph, “hit” at about 34 mph, and “contacted” at about 32 mph.

Figure 2. When people are asked leading questions about an event, their memory of the event may be altered. (credit a: modification of work by Rob Young)

Studies have demonstrated that young adults (the typical research subjects in psychology) are often susceptible to misinformation, but that children and older adults can be even more susceptible (Bartlett & Memon, 2007; Ceci & Bruck, 1995). In addition, misinformation effects can occur easily, and without any intention to deceive (Allan & Gabbert, 2008). Even slight differences in the wording of a question can lead to misinformation effects. Subjects in one study were more likely to say yes when asked “Did you see the broken headlight?” than when asked “Did you see a broken headlight?” (Loftus, 1975).

Other studies have shown that misinformation can corrupt memory even more easily when it is encountered in social situations (Gabbert, Memon, Allan, & Wright, 2004). This is a problem particularly in cases where more than one person witnesses a crime. In these cases, witnesses tend to talk to one another in the immediate aftermath of the crime, including as they wait for police to arrive. But because different witnesses are different people with different perspectives, they are likely to see or notice different things, and thus remember different things, even when they witness the same event. So when they communicate about the crime later, they not only reinforce common memories for the event, they also contaminate each other’s memories for the event (Gabbert, Memon, & Allan, 2003; Paterson & Kemp, 2006; Takarangi, Parker, & Garry, 2006).

The misinformation effect has been modeled in the laboratory. Researchers had subjects watch a video in pairs. Both subjects sat in front of the same screen, but because they wore differently polarized glasses, they saw two different versions of a video, projected onto a screen. So, although they were both watching the same screen, and believed (quite reasonably) that they were watching the same video, they were actually watching two different versions of the video (Garry, French, Kinzett, & Mori, 2008).

In the video, Eric the electrician is seen wandering through an unoccupied house and helping himself to the contents thereof. A total of eight details were different between the two videos. After watching the videos, the “co-witnesses” worked together on 12 memory test questions. Four of these questions dealt with details that were different in the two versions of the video, so subjects had the chance to influence one another. Then subjects worked individually on 20 additional memory test questions. Eight of these were for details that were different in the two videos. Subjects’ accuracy was highly dependent on whether they had discussed the details previously. Their accuracy for items they had not previously discussed with their co-witness was 79%. But for items that they had discussed, their accuracy dropped markedly, to 34%. That is, subjects allowed their co-witnesses to corrupt their memories for what they had seen.

Controversies over Repressed and Recovered Memories

Other researchers have described how whole events, not just words, can be falsely recalled, even when they did not happen. The idea that memories of traumatic events could be repressed has been a theme in the field of psychology, beginning with Sigmund Freud, and the controversy surrounding the idea continues today.

Recall of false autobiographical memories is called false memory syndrome. This syndrome has received a lot of publicity, particularly as it relates to memories of events that do not have independent witnesses—often the only witnesses to the abuse are the perpetrator and the victim (e.g., sexual abuse).

On one side of the debate are those who have recovered memories of childhood abuse years after it occurred. These researchers argue that some children’s experiences have been so traumatizing and distressing that they must lock those memories away in order to lead some semblance of a normal life. They believe that repressed memories can be locked away for decades and later recalled intact through hypnosis and guided imagery techniques (Devilly, 2007).

Research suggests that having no memory of childhood sexual abuse is quite common in adults. For instance, one large-scale study conducted by John Briere and Jon Conte (1993) revealed that 59% of 450 men and women who were receiving treatment for sexual abuse that had occurred before age 18 had forgotten their experiences. Ross Cheit (2007) suggested that repressing these memories created psychological distress in adulthood. The Recovered Memory Project was created so that victims of childhood sexual abuse can recall these memories and allow the healing process to begin (Cheit, 2007; Devilly, 2007).

On the other side, Loftus has challenged the idea that individuals can repress memories of traumatic events from childhood, including sexual abuse, and then recover those memories years later through therapeutic techniques such as hypnosis, guided visualization, and age regression.

Loftus is not saying that childhood sexual abuse doesn’t happen, but she does question whether or not those memories are accurate, and she is skeptical of the questioning process used to access these memories, given that even the slightest suggestion from the therapist can lead to misinformation effects. For example, researchers Stephen Ceci and Maggie Brucks (1993, 1995) asked three-year-old children to use an anatomically correct doll to show where their pediatricians had touched them during an exam. Fifty-five percent of the children pointed to the genital/anal area on the dolls, even when they had not received any form of genital exam.

Ever since Loftus published her first studies on the suggestibility of eyewitness testimony in the 1970s, social scientists, police officers, therapists, and legal practitioners have been aware of the flaws in interview practices. Consequently, steps have been taken to decrease suggestibility of witnesses. One way is to modify how witnesses are questioned. When interviewers use neutral and less leading language, children more accurately recall what happened and who was involved (Goodman, 2006; Pipe, 1996; Pipe, Lamb, Orbach, & Esplin, 2004). Another change is in how police lineups are conducted. It’s recommended that a blind photo lineup be used. This way the person administering the lineup doesn’t know which photo belongs to the suspect, minimizing the possibility of giving leading cues. Additionally, judges in some states now inform jurors about the possibility of misidentification. Judges can also suppress eyewitness testimony if they deem it unreliable.

More on False Memories

In early false memory studies, undergraduate subjects’ family members were recruited to provide events from the students’ lives. The student subjects were told that the researchers had talked to their family members and learned about four different events from their childhoods. The researchers asked if the now undergraduate students remembered each of these four events—introduced via short hints. The subjects were asked to write about each of the four events in a booklet and then were interviewed two separate times. The trick was that one of the events came from the researchers rather than the family (and the family had actually assured the researchers that this event had not happened to the subject). In the first such study, this researcher-introduced event was a story about being lost in a shopping mall and rescued by an older adult. In this study, after just being asked whether they remembered these events occurring on three separate occasions, a quarter of subjects came to believe that they had indeed been lost in the mall (Loftus & Pickrell, 1995). In subsequent studies, similar procedures were used to get subjects to believe that they nearly drowned and had been rescued by a lifeguard, or that they had spilled punch on the bride’s parents at a family wedding, or that they had been attacked by a vicious animal as a child, among other events (Heaps & Nash, 1999; Hyman, Husband, & Billings, 1995; Porter, Yuille, & Lehman, 1999).

More recent false memory studies have used a variety of different manipulations to produce false memories in substantial minorities and even occasional majorities of manipulated subjects (Braun, Ellis, & Loftus, 2002; Lindsay, Hagen, Read, Wade, & Garry, 2004; Mazzoni, Loftus, Seitz, & Lynn, 1999; Seamon, Philbin, & Harrison, 2006; Wade, Garry, Read, & Lindsay, 2002). For example, one group of researchers used a mock-advertising study, wherein subjects were asked to review (fake) advertisements for Disney vacations, to convince subjects that they had once met the character Bugs Bunny at Disneyland—an impossible false memory because Bugs is a Warner Brothers character (Braun et al., 2002). Another group of researchers photoshopped childhood photographs of their subjects into a hot air balloon picture and then asked the subjects to try to remember and describe their hot air balloon experience (Wade et al., 2002). Other researchers gave subjects unmanipulated class photographs from their childhoods along with a fake story about a class prank, and thus enhanced the likelihood that subjects would falsely remember the prank (Lindsay et al., 2004).

Using a false feedback manipulation, we have been able to persuade subjects to falsely remember having a variety of childhood experiences. In these studies, subjects are told (falsely) that a powerful computer system has analyzed questionnaires that they completed previously and has concluded that they had a particular experience years earlier. Subjects apparently believe what the computer says about them and adjust their memories to match this new information. A variety of different false memories have been implanted in this way. In some studies, subjects are told they once got sick on a particular food (Bernstein, Laney, Morris, & Loftus, 2005). These memories can then spill out into other aspects of subjects’ lives, such that they often become less interested in eating that food in the future (Bernstein & Loftus, 2009b). Other false memories implanted with this methodology include having an unpleasant experience with the character Pluto at Disneyland and witnessing physical violence between one’s parents (Berkowitz, Laney, Morris, Garry, & Loftus, 2008; Laney & Loftus, 2008).

Importantly, once these false memories are implanted—whether through complex methods or simple ones—it is extremely difficult to tell them apart from true memories (Bernstein & Loftus, 2009a; Laney & Loftus, 2008).

Think It Over

Jurors place a lot of weight on eyewitness testimony. Imagine you are an attorney representing a defendant who is accused of robbing a convenience store. Several eyewitnesses have been called to testify against your client. What would you tell the jurors about the reliability of eyewitness testimony?

Glossary

false memory syndrome: recall of false autobiographical memories
memory construction: formulation of new memories
misattribution: memory error in which you confuse the source of your information
misinformation effect paradigm: after exposure to incorrect information, a person may misremember the original event
reconstruction: process of bringing up old memories that might be distorted by new information
suggestibility: effects of misinformation from external sources that leads to the creation of false memories

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