Social Science Evidence – Stuff You do every day but don’t think about or “Ivory Tower Mumbo Jumbo that gets Baby Rapers out of Jail!” YOU DECIDE!
Before the CSI shows came out, hell before Star Trek: The Next Generation came out, there was a popular “issue” in crime dramas other than physical evidence. This issue was what to make of the psychological sciences. It would come up in a variety of ways, commonly some kind of insanity plea, but sometimes they’d use a “syndrome” or some such as well. While abnormal psychology and extreme mental disturbances do encompass some of the use of psychological science in the courtroom it is by far one of the least used areas of psychological evidence in the courtroom. Your daily interactions with others, your thoughts during daily tasks, your actions, and recollections during extreme circumstances are all far more important and far more common grist for the evidentiary mill.
I will break up this chapter into categories of commonly used forms of psychological evidence at trial. In each category, I will attempt to outline the hidden troubles or merits behind each kind of usage. Many of these areas are constantly in flux, not only in the courtroom but also in the field of psychology itself. Research on memory, personality disorders, impulse control, reactions to stress, reactions to long-term abuse, and reactions to immediate abuse are constantly coming out and theories are constantly changing. Furthermore, many of these psychological issues arise almost entirely simultaneously with criminal prosecutions or civil commitments. Some might say that this gives rise to the law creating psychology rather than the other way around. They might be right! Many times the syndromes I will explain are falsely explained in TV shows, and misused in court. Many people have heard “Battered Woman’s Syndrome” but chances are your only exposure is through TV or news sources, and to my knowledge, they have never gotten it right.
Eyewitness ID’s and Memory
Before we get into the ID part, let us begin with a general discussion of memory. We’ve probably all said something like this: “I’ll never forget that for as long as I live.” We’ve all had memories that just seem to stick with us after decades. I can guarantee that everyone who reads this has at some point walked into a room and forgotten why they decided to come into the room. Sometimes dreams seem real, sometimes memories seem like dreams. It’s all a bit confusing and hazy. Well, unfortunately, so is everyone’s memory. So how can we trust eyewitnesses, even direct victims of crimes recollections?
Don’t let the above paragraph let you think that somehow no one really remembers anything correctly. Memory is just trickier than most people realize. Many people visualize memory in terms of the contemporary technology of the day. Oh, it’s like a film camera, it’s like a tape recorder, no you fools it’s like a hard drive. Memory isn’t like any of those things. It does not record what is being inputted from the eyes, ears, and nose onto some sort of immutable medium for later retrieval. Memory is like a complex interaction of neurons, local neural networks, neurotransmitters, and sensory input devices made from the same things. We don’t know how it works, we don’t really know anything about the hardware of memory. We do know it has something to do with the hippocampus but that’s just about it as far as the physical basis of memory. Luckily, we don’t have to know anything about the hardware of memory in order to study the end result – memory formation (acquisition), retention, and recall. As might be expected, errors in recall can occur at any of these stages!
A Caveat! I am not a psychologist or a neurologist. I have no particular expertise or specialized training in these areas. So if you are one of those things and memory research has come a long way in the last 3 years (I know that it has come a significant distance in the hardware department) then feel free to correct me! I love being right and that’s difficult to do if I’m saying something factually incorrect.
Beginning with memory formation: there are a lot of super intuitive and obvious factors that go into determining how well a memory will be initially formed in that mess of flesh and bone you call a head. You can probably come up with a list of four of five by yourself right now. Just for the hell of it though I’ll present my own list: (1) exposure time; (2) violence level of events; (3) stress level of the witness; (4) expectations of the witness; (5) age of the witness (really applies to child vs. non-child); (6) whether the witness is recalling major events or smaller side details.
So, given the above list, if a witness sees someone for just a few seconds, sees them bashing in a woman’s skull, is hiding in a closet out of fear of having their own skull bashed in, and when the guy came in he was wearing hockey mask and a bright yellow T-Shirt that said “Skull Basher,” but at the same time the witness is trying to recall whether the guy was wearing loafers or sneakers they might not have formed a very accurate memory of the event! They might even lapse into a rambling run-on narrative about it when asked!
The next step, retention, is far simpler. The longer it’s been since you witnessed something, the less accurate your memory will be! It’s important to note that this decrease in memory has a non-linear relationship with time. There is a huge increase in memory lapses shortly after the event, then much more slowly after that. You can probably explain this by less details being conveyed into the long-term memory than were initially retained by the short-term memory. I don’t know. Brains are complicated and confusing things.
There is a second problem with retention that I’m sure everyone has encountered. Intervening facts or knowledge will influence the original memory. You don’t remember what shoes your wife was wearing when you left for the opera. However, once you can clearly see her feet after you get up for intermission, all of a sudden your memory is refreshed! You can clearly remember that she was wearing her matte black 2 inch heels with special orthotics because she has a collapsed arch. Maybe your memory was refreshed. Maybe, instead of being refreshed, you simply updated your old fuzzy memory with the new information you observed. The same thing happens when you read information in the newspaper about events you witnessed, or hear another witnesses telling of the same event. Even just focusing on the event extra hard trying to remember can result in you unintentionally introducing erroneous information into the memory. Remember my write-up on hypnosis? It’s likely a similar phenomenon – you want to fill in the missing pieces, so you do. See? Hypnosis really isn’t as sinister as you think.
Lastly, the way in which information is recalled can have huge affects on memory. The interrogator, the ID procedures used, the method of interrogation, queues from other people in the room (verbal and nonverbal) all will influence the accuracy of the memory.
Unique Skewing Circumstances
Finally, there are a few special circumstances with memory. Cross-racial identification of suspects is bad. It is very difficult for people to ID people of other races. You know how racists always say, “you all look alike to me?”, and you were all “NO ONE WORLD ONE PEOPLE”? Well tough shit kiddos because your brain just doesn’t do as well recognizing the subtle differences in faces and bodies of people not of your race. They literally do all look more alike to you. Also, they’ve tested if it’s due to racial bias or simply inexperience with looking at other race’s faces. It’s not due to those things. So, even if you have soooooo many black friends you still can’t tell them apart as well as other black people.
Weapon focus is another major problem with eyewitness IDs. People tend to look at the thing that is going to kill them. If it’s just a guy in a sweatshirt with his fists balled up, you are looking right at him. If he has a knife or a gun you are looking right at the instrument of death, anticipating your life’s blood flowing on the concrete as your final heartbeats quiet into silence while you die alone over $50 and some credit cards. When someone has a weapon, you’re looking at it, not the robber. So when the cops ask, “What did he look like?” and you have no idea don’t feel bad because shit was crazy and that dude had a fucking gun man, what do you expect give me a minute here I need a cigarette.
Another issue is what the scientists call “unconscious transference” but is really just a form of excellent, if misplaced, memory. Say you show someone a photo array or a mug-book. This person can’t pick out a picture. None of them look familiar. Later, you have a definite suspect and bring in this same witness for a live line-up, thinking maybe now they can make an ID. The witness ID’s the suspect. But where are they identifying them from? The crime/event? Or the photo array? Who knows! The witness sure doesn’t no matter what they say.
Finally, the coup de grace: witness confidence is totally unrelated to witness accuracy! However, witness testimony is probably the most influential on the jury! Witness confidence is very influential on juries! Juries also have no idea how memory works or about any of the issues I’ve discussed above.
If you want to read up on any of this check out Dr. Elizabeth Loftus, the preeminent researcher in this field.
What you see on TV shows isn’t all that inaccurate. A bunch of dudes file into a room with a one-way mirror and the witness picks one or more out. In addition, there is the so called “six-pack” of six photos and the witness picks one or more out. These procedures have several problem associated with them. Simultaneous ID’s tend to be more inaccurate than sequential IDs. Lineups will sometimes contain multiple suspects. Witnesses may feel compelled to pick someone if they feel that the suspect is present. The person administering the lineup can either intentionally or unintentionally queue the witness. Finally, all the non-suspects should look something like the suspect. The best ID technique would be something like this: the witness looks at each person in turn for however long they want, then they move on to the next person. The witness cannot go back and look at previous people in the sequence. The person administering the ID has no idea who the suspect is or who any of the people in the ID process are. The witness is told that it might not be any of the people in the ID process. All the people in the line-up or photo array should look somewhat similar. IF the witness described a tall bald white guy with a big forehead then all the people at the line up should be tall, bald, white and have big foreheads. Apparently the sequential line-up with no going back to previous people is pretty controversial and no one does it. On the other hand I have heard that sequential photo-IDs – you look at each photo in turn and can’t go back to previous photos – are being implemented.
There is also the procedure of the “show-up” – the cops drag the dude they found in the dumpster in front of the weeping rape victim and gruffly ask “IS THIS THE SCUMBAG?!” to which the victim replies “yes yes its him officer!” and the officers tune him up and little and take him to the station. This is, of course, the least accurate procedure of ID.
Law of IDs
The law of identification is complex and relies on multiple Constitutional grounds. The basic standard is that ID procedures cannot be unnecessarily suggestive. However, even unnecessarily suggestive IDs can be admissible if other evidence proves the ID reliable independent of the unnecessarily suggestive ID procedure. You also have the right to have your attorney at lineups if you have an attorney. Most criminal defendants don’t already have one and the right to an attorney under these circumstances doesn’t attach until your initial appearance in court. Even if the right to an attorney has attached it doesn’t stop the police from doing photo IDs outside the presence of an attorney so it’s kind of an empty right.
As far as getting expert testimony on all the stuff I’ve written about above? Yeah, most jurisdictions will now let you have an expert testify about why an eyewitness’ ID is unreliable, about memory in general, about ID procedures and the like. Does it work? It probably has some positive affect but studies on the impact of expert testimony on ID’s currently falls on both sides.
I’ll write up the rest of the social science and psychology stuff and post it this weekend or early next week. Some teasers – Battered Woman Syndrome, Munchausen’s by Proxy, Profiling!