analysis of memory and eyewitness testimony in witness for the defense
TRANSCRIPT
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 1
Analysis of Memory and Eyewitness Testimony in
Witness for the Defense
Nina Turner
Eckerd College
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 2
Famous legal cases throughout history have been highly publicized due to the intense
mystery surrounding the “perpetrator” of horrific or tragic crimes. One major example that
comes to mind is the John F. Kennedy assassination. After the assassination, several witnesses
and onlookers narrated details of their stories about the events which occurred on that fateful
day. Much to the dismay of detectives and those involved in the investigation, the witnesses’
accounts were wildly inconsistent with one another. A man by the name of Lee Harvey Oswald
was eventually declared the assassin responsible for the murder of the president. Still, years after
the investigation, the public continues to speculate about flaws in the investigation, which
ultimately led to the aforementioned conclusions. Was there a “Grassy Knoll” shooter? Was Lee
Harvey Oswald found fleeing the scene of the crime? Was there one shooter; or were there
multiple shooters? Unfortunately, the answers to these questions are impossible to know for
certain, because they partially rely on eyewitness testimony from a real life tragedy in American
history.
Eyewitness testimony is one of the most controversial, yet widely used procedures for
identifying suspects in a criminal case (Wrightsman & Fulero, 2009). Eyewitness testimony
relies on the memories of witnesses who were directly involved as a participant, as a victim, or
as an observer of the crime. The subject of memory itself has also been a widely debated topic
among psychologists, lawyers, judges, members of law enforcement, and even the public.
According to the research of Loftus and other psychologists, memory does not work like a “tape
recorder,” whereby we have the ability to replay memories in our heads exactly as they truly
happened (A. Schwarzmueller, eyewitness testimony lecture, April 9, 2010). This idea seems to
be the antithesis of a commonly held belief about memory. Instead, memory is a reconstructive
process: we take into account our beliefs, social obligations, our interpretation and understanding
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 3
of an event, and several other individual factors. These factors help us to recall a memory in our
own way. Therefore, the memory we have of an event may or not reflect what happened in
reality. Loftus and Ketcham (1991) continually assert the idea that memory is reconstructive
rather than reproductive. For these reasons, it is necessary to understand when memory works;
when memory fails; and why eyewitness testimony is problematic evidence to be presented in
criminal trials.
There are several debilitating effects of utilizing eyewitness testimony in criminal court
cases. As mentioned previously, eyewitness testimony relies on the memories of one or more
individuals. The generally accepted theory of memory among psychologists is that memory is
complex in how humans acquire, store, and retrieve memories (Loftus & Ketcham, 1991). When
an eyewitness takes the stand, and recalls the details of a crime, there is no absolute way of
knowing if he or she is recanting truthful events. According to Fulero and Wrightsman (2009),
the memories they recall, or memories we all recall, for that matter, are “influenced by more than
just memory processes” (p. 223). At times, the details described by eyewitnesses are contrary to
factual physical evidence (Wrightsman & Fulero, 2009). A witness may seem confident in his or
her recollection of details, or in the identification of the actual criminal, but their recollection
may not be accurate. Regrettably, this confidence can sometimes be mistaken for accuracy,
especially when factored into the decision of a jury.
The issue of confident yet erroneous eyewitness testimony can be illustrated by the case
of Steven Titus, who was convicted of raping a young girl named Nancy Von Roper in October
of 1980 (Loftus & Ketcham, 1991). While on the stand, Nancy was explicitly asked if she
recognized Titus from a series of photographs; then, she was asked if the person was present in
the courtroom; she ultimately pointed the finger at Titus. Of the many flaws which came about in
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 4
the Titus case, two primary ones stand out in the way of eyewitness testimony. For starters, the
young victim was presented with a biased photo array. The photo array contained pictures of
Titus as well as other men who looked similar to him (Wrightsman & Fulero, 2009). His
photograph, however, was of a different size and other dissimilar characteristics than the other
photos. According to Loftus and Ketcham (1991), the investigator in the case made a suggestive
request of the young victim, “We want you to look at these photographs and see if you can pick
out the man who raped you” (p. 38). The quote is indicative of suggestive questioning on the part
of the investigator. Instead of asking the victim if the photo array contained a picture of her
possible rapist, they suggested to Nancy that the man who raped her could be found in one of the
photos. According to Loftus’ studies, simply interchanging between words such as “a” and “the”
can have a significant impact on the witness’s memory (A. Scwarzmueller, eyewitness testimony
lecture, April 9, 2010). The suggestive questioning led Nancy to identify Titus as being the one
who looked closest to the perpetrator.
Not only was there the issue of the biased photo array, but the problems of demand
characteristics and leading questions also played a big role in her identification. Being a
seventeen year-old girl most likely caused Nancy Von Roper to succumb to demand
characteristics, and feel a pressure to please authority figures, i.e. the investigators who believed
Titus was the true criminal. Also, instead of asking Nancy if she recognized any of the photos,
they employed leading questions by specifically asking which man had raped her (Wrightsman
& Fulero, 2009). By showing a biased photo array and subjecting the victim to leading questions,
the investigators suggested that Steve Titus was, in fact, the man who raped Nancy Von Roper.
When it came time to take the stand during the trial, Nancy’s memory had been
influenced, and she truly came to believe that Steve Titus had been the one who raped her and
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 5
forever altered her life. Despite the lack of physical evidence against Titus, the jury was
undoubtedly swayed by Nancy’s powerful testimony. After several trials, and the tragedy that
ensued in the life of Steve Titus, the real criminal eventually came forward—effectively setting
Titus free. Though he was free in the eyes of the system, Steve Titus had lost everything that was
important to him (Loftus & Ketcham, 1991). Had the circumstances been different, and had the
investigators been wary of the testimony from Nancy Von Roper, Titus’ life may not have taken
a turn for the worse. In this case, the biased photo array and suggestive questioning proved to be
instrumental in Nancy’s testimony.
Titus is not the only victim of faulty eyewitness testimony. One cannot begin to imagine
the amount of prisoners whose sentence to jail or prison has been based on inaccurate eyewitness
testimony. Loftus and Ketcham (1991) discuss several other cases which have been characterized
by problematic eyewitness accounts. In 1989, a man by the name of Howard Haupt was accused
of kidnapping and murdering a young boy by the name of Billy Chambers. Like the Titus case,
the witnesses interviewed for the Haupt case took part in a photo-biased identification and were
also subjected to suggestive questioning (Loftus & Ketcham, 1991). Prior to seeing Howard
Haupt in an in-person lineup, the witnesses were exposed to his photograph in a photo array.
Even those witnesses who were not as sure of their identification during the photo array became
more confident when Haupt appeared before their eyes (Loftus & Ketcham, 1991). In a study by
Brown et. al (1977), researchers were interested in determining whether this biasing effect could
occur if a photo array of mug shots was presented before an in-person lineup (A.
Schwarzmueller, eyewitness testimony lecture, April 13, 2010). The researchers’ results showed
that participants were more likely to identify someone within the lineup if they had previously
been exposed to their actual mug shot. This research suggests that a biasing effect is possible,
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 6
though it is hard to pinpoint for certain. However, it seems to be more likely if photo arrays are
provided before in-person lineups take place. Loftus also argues that suggestive questioning of
the witnesses took place in the Haupt case. She pointed out the fact that the interviewer
continually asked questions which focused on confirming details about Howard Haupt. This
focus on Haupt likely hinted to the witnesses that the investigators saw him as their lead suspect
(Loftus & Ketcham, 1991). There are two important implications for the use of suggestive
questioning when interviewing witnesses (A. Schwarzmueller, eyewitness testimony lecture,
April 13, 2010). For one, it can cause the witness to have an altered memory for a person or an
event. Secondly, it may also cause a response bias by changing the witness’s verbal recall.
Though Howard Haupt was later acquitted of all the charges against him, the confounding
eyewitness testimonies were powerful enough to suspect him and almost convict him of the
violent act of murder.
Next, two other precarious aspects of eyewitness testimony include psychological
occurrences called unconscious transference and the weapon focus effect. In 1981, Clarence Von
Williams was accused of raping Sally Blackwell and her teenage daughter (Loftus & Ketcham,
1991). The rapist himself also possessed a weapon, which he used to threaten both of the victims.
After the crime, Sally was interviewed by the police and gave a description of the rapist. Later,
Sally’s boyfriend, Bob, continually pressed her for details, insisting that she had to have known
or seen the perpetrator somewhere before. Finally, he asked if Sally had possibly seen the
criminal at a party. Once he made the reference to a party, something suddenly clicked in her
head. She remembered attending a party with her friend Lois, and her husband Clarence. In her
mind, the description of the man she saw perfectly matched that of Clarence Von Williams,
which is part of the reason why he was brought up on charges (Loftus & Ketcham, 1991). Later,
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 7
when the real criminal confessed, Sally was in disbelief. In her mind, Clarence Von Williams
was, in fact, the man who committed horrific acts against her. Sally had spent time with Clarence
before, but his face was from an entirely different source. Unconsciously and unintentionally,
Sally had replaced the memory of her actual rapist with the face of Clarence Von Williams
(Loftus & Ketcham, 1991). When put on the stand, Loftus cited research about the weapon focus
effect. Given the fact that Sally and her daughter’s rapist possessed a gun, Loftus says that their
ability to process and store the memory of the event and the perpetrator was significantly
reduced (Loftus & Ketcham, 1991). The principle Loftus refers to is the Yerkes-Dodson law,
which states that extreme stress has profound, debilitating consequences on memory acquisition
and retrieval (Loftus & Ketcham, 1991). Not only had Sally Blackwell unconsciously made a
source monitoring error, known as unconscious transference; but she was also negatively
affected by the presence of a weapon in the crime.
In sum, there are several reasons why eyewitness testimony is problematic evidence to
present in a criminal court case. Eyewitness testimony can be affected by the malleable nature of
memory (A. Schwarzmueller, eyewitness testimony lecture, April 13, 2010). Witness accounts
can be altered by photo-biased arrays or lineups; the use of suggestive or leading questions;
unconscious transference; and when a weapon is present, which is evidence for the weapon focus
effect. However, there are also some compelling reasons as to why the law should retain
eyewitness testimony as evidence in a trial. Most of the time, it is the first bit of evidence that
law enforcement can use to narrow down possible suspects of a crime. At times, there may not
be substantial physical evidence from which conclusions can be drawn in a case; here,
eyewitness testimony may be very helpful. Lastly, according to the Yerkes-Dodson law, a
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 8
moderate amount of stress or arousal can lead to optimal memory acquisition and retrieval
(Loftus & Ketcham, 1991).
In Witness for the Defense, Loftus outlines an important case, which was largely built on
the testimony of a girl who was abducted by one of America’s most notorious serial killers: Ted
Bundy. The girl’s name was Carol DaRonch; she’d successfully managed to escape Ted Bundy
in 1974. When she was initially approached by Bundy, she was not under a great deal of stress;
he insisted that he was a policeman and had intentions to help her (Loftus & Ketcham, 1991).
Later, she identified Bundy from different photos and lineups. In her narrative, Loftus also
discusses the possible inaccuracies of DaRonch’s testimony. While Loftus was on the witness
stand during Bundy’s trial, she again cited principles behind the Yerkes-Dodson law. It was here
that the judge in the case, Hanson, made an outstanding point to the courtroom. For a good
period of time, DaRonch was not under severe stress; arguably, she was under a moderate
amount of stress. In this case, she may have been in her prime time to have optimal memory
performance; thus, she would have a better chance of remembering the abduction as well as
Bundy’s features (Loftus & Ketcham, 1991). In this scenario, it is clear that Carol DaRonch’s
memory and testimony aided in the conviction of Ted Bundy, who later admitted to the murder
of over thirty individuals.
Psychologists have studied the ways in which the accuracy of eyewitness testimony can
be improved. One way psychologists believe eyewitness testimony can be improved is through
the use of repeated interviews. Lab research shows that repeated interviews lead to more recall as
well as more accurate recall (A. Schwarzmueller, eyewitness testimony lecture, April 6, 2010).
Other psychological research shows that the use of mental or physical context reinstatement
helps victims of witnesses to remember more accurate information. In a study by Malpass and
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 9
Devine (1981), it was found that those participants who were asked to employ context
reinstatement were significantly more accurate in their recall than those who were not asked to
employ context reinstatement (A. Schwarzmueller, eyewitness testimony lecture, April 6, 2010).
Another research supported technique for eliciting correct information from witnesses is the use
of a cognitive interview. The cognitive interview is a four step process that involves context
reinstatement and recalling information in different orders and from different perspectives. A
study by Gieselman et. al (1985) showed that the use of a cognitive interview lead to more
accurate recall than other interview conditions, such as hypnosis (A. Schwarzmueller, eyewitness
testimony lecture, April 6, 2010).
Fulero and Wrightsman (2009) also outline several other mechanisms for improving the
accuracy of eyewitness testimony. Psychologists have also attempted to identify ways in which
each person involved in a case (i.e. the witness, law enforcement, and the jury) can be cautious in
their approach to a witness’s testimony. Some of these safeguards, on the part of law
enforcement, include slowing down the rate of questioning; tailoring questions to individual
witnesses; centering the interview on the witness; avoiding premature conclusions; and being
sensitive to the distinction between correct and incorrect responses. The witness should write
down everything, as soon as possible (H. White, memory lecture, March 18, 2010). He or she
should avoid discussing the event with others, to avoid the misinformation effect by altering the
original memory. Also, the witness should not try to be overly helpful to the police and should
simply report their own account. Jurors should be cautious not to mistake a witness’s confidence
for accuracy; they should realize the limits of human memory. Lastly, the jury should pay
attention to the use of leading questions on the part of attorneys and members of law
enforcement (H. White, memory lecture, March 18, 2010). Though the aforementioned
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 10
safeguards may not be foolproof, they seem to be helpful ways of safeguarding eyewitness
testimony and aiding in accurate recall from witnesses.
From the evidence above, it seems there are more reasons than not to exclude eyewitness
testimony from criminal court cases. However, my own opinion is that eyewitness testimony
should be retained. Despite the sometimes questionable nature of the testimony obtained from
witnesses, it has still proven to be helpful in some cases. Take the Ted Bundy case, for instance.
What if the police were not able to use Carol DaRonch’s testimony in a court of law? How many
more lives would be lost at the hands of a murder, without her account? As we have seen from
many cases illustrated in Witness for the Defense, the information obtained from witnesses is
usually a helpful starting point for an investigation. I do not believe that eyewitness testimony is
more accurate than actual physical evidence, but I also do not think we should make it
inadmissible in court. The jury should realize the fundamental aspects of memory—when it
works and when it fails. When a witness or a victim points the finger at the defense and claims
that he or she committed the crime, the jury is likely to be swayed by their confidence. Rather
than rule out eyewitness testimony altogether, the legal system should focus its attention on
educating jurors and the general public on the limits of memory. Perhaps more education or the
continued admissibility of expert testimony can help the jury distinguish between the credible or
not so credible parts of an eyewitness account. Nonetheless, I feel it eyewitness testimony should
still be used in criminal court cases, but that it should not be mistaken for factual evidence.
In a perfect justice system, any given jury would be without bias. A perfect justice system
might also entail each juror being well aware of both the benefits and problems of eyewitness
testimony, or any testimony, for that matter. However, the legal system is less than perfect, and
must rely on many sources in its pursuit of truth. One of these sources the legal system
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 11
sometimes refers to is an expert witness. According to Fulero and Wrightsman (2009), the role of
an expert witness is to give his or her own expert opinion in a case, which deals with special
knowledge he or she possesses on a given topic. The expert witness must also speak about what
they know to be true, from evidence and experience.
In Witness for the Defense, Loftus provides a narrative of important cases where she
served as an expert witness regarding memory and related issues. For most of her cases, she
appears to be as objective as possible, at least in the beginning. Loftus carefully analyzes records
from the defense and looks for factors in the case which could have contributed to problems with
testimony from witnesses. This process helps her decide whether or not she will appear before
the court. There are several instances in the narrative when Loftus mentions that the defense
attorney is convinced of the defendant’s innocence. At times, it seems as though defending the
innocent, or rather, preventing the innocent from being wrongfully accused, is a driving force
behind Loftus serving as an expert witness in some cases. In this regard, I would argue that she
might have been biased by her own feelings, albeit unconsciously at times. On the other hand, I
feel her true intention is to present scientific evidence to the courtroom and help the judge or a
jury determine what is true for a particular case. We as humans cannot help but to choose sides
or become biased at times; after all, our passion for what we believe in is what fuels our lives and
gives us a sense of purpose. Therefore, any time an expert witness is permitted to testify in a
criminal court case, there is no way of knowing if the person will be biased. In the way of
scientific evidence, a judge or jury may not be aware if an expert witness decides to present
skewed or unsupported scientific claims. Like the issues of eyewitness testimony, it appears as
though there are also some concerns for admitting expert testimony in the judicial process.
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 12
Clearly, the judicial system is plagued with ethical dilemmas—dilemmas for which
answers are not readily available. Fulero and Wrightsman (2009) specifically outline some
temptations of those involved in the field of forensic psychology. Conflicts can arise when an
expert witness is tempted to become an advocate for a certain person or group rather than being a
neutral, objective party. An example of advocacy over scientific objectivity came into play when
Loftus became involved in the Tyrone Briggs case. Initially, the defense wanted to bring Loftus
in as an expert witness, but they were continually denied their request (Loftus & Ketcham,
1991). Though she could not be an expert witness, some of the people involved in the case
sought her out for advice and guidance. One woman in particular, Joyce, served on the jury and
became dedicated to the freedom of Tyrone Briggs. Joyce felt the evidence clearly showed that
Tyrone had not committed the crimes of which he was charged. Loftus agreed to meet with
Joyce, and later met with Tyrone. Soon after, she reported feeling as though she, too, would be
an advocate for Tyrone’s innocence if she had the opportunity to serve as an expert witness
(Loftus & Ketcham, 1991). Suppose Loftus did serve as a witness in the Briggs case: would she
allow her own personal opinions overcome empirically based findings? There is no way to know
for certain, but this is a simple example of why a judge might not permit expert testimony in the
judicial process.
As with eyewitness testimony, there are several pros and cons for the use of expert
testimony in the judicial process. However, I would argue that the nature of expert testimony is
an inherently neutral form of testimony. With this statement, I mean to say that experts who get
on the stand and talk about scientific findings, research, and other specialty-related knowledge
do not have anyone on their side, at least in the beginning. They are instructed to simply provide
their credentials and tell the courtroom what they know, or have experienced, to be true. It is the
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 13
job of the judge or the jury to determine whether or not “the truth” spoken by the expert witness
is applicable to a criminal court case. An expert witness may be tempted to lie or stray away
from the facts, but I feel admitting their testimony is surely worth the potential risks. If the legal
system provided the opportunity for judges and jurors to learn more about human nature, such as
stuttering, or the limits of memory, then I might argue against the use of expert testimony in
criminal trials. For the time being, I believe it is crucial for the continued use of expert testimony
in such trials. The potential evidence and knowledge they can provide can drastically alter the
potentially fatal decision of a judge or jury. For this reason, and for the sake of presenting the
truth in a court of law, I believe our system should continue to take advantage of the benefits of
expert testimony.
Loftus and Ketcham’s critically acclaimed novel, Witness for the Defense, provides
important information about both the benefits and limitations of eyewitness testimony in criminal
court cases. There are several reasons why the judicial system should be careful in their
consideration of eyewitness testimony as viable evidence in a trial. In fact, research on memory
speaks to the weaker and sometimes stronger aspects of eyewitness accounts. Research has also
provided us with useful tools and safeguards for interviewing and preserving the testimony of
eyewitnesses. Loftus also provides readers with several shocking examples of the possible
implications and setbacks of eyewitness testimony, from guilty criminals who were almost set
free—to innocent people who almost lost their lives for good. In addition, Loftus does not seem
to be ashamed in admitting the imperfections of human nature. She details the temptations of
being potentially biased as an expert witness. Since the publication of the novel, drastic changes
have come about in the legal system and new research findings have surfaced regarding memory.
Nevertheless, eyewitness and expert testimony are still widely debated issues among
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 14
psychologists and professionals in the justice system. Is there a right way to solve these
problems? To handle these critical concerns about our system? Perhaps the best we can do is
continue to be critical of the system itself, and press on as advocates for “truth”—a concept the
legal system should take into account more often.
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 15
References
Fulero, S.M. & Wrightsman, L.S. (2009). Forensic Psychology (3rd ed.) Belmont, CA:
Wadsworth.
Loftus, E., & Ketcham, K. (1991). Witness for the defense: The accused, the eyewitness, and the
expert who puts memory on trial. New York: St. Martin’s Press.