…But How Sure Are You?
By Madison Bryant
Madison recently finished her Bachelor’s degree at Rhode Island College, where she majored in Psychology. While there, she took on a leadership role in Psych Society and was an active member of Psi Chi. During her last semester, she wrote the following blog post as an assignment for Dr. Sumeracki’s Cognitive Psychology course.
A Note from the Learning Scientists: Today’s guest post is a little bit different from those we normally publish; that is it’s not directly related to classroom learning. This post discusses the fact that our memories are not like tape recorders. Instead, our memory is reconstructive. While this has implications for the classroom, it also has very large implications for the legal system. We feel that it is important for us to understand how learning and memory works both for the classroom and for other aspects of our lives, and that the way our legal system handles eyewitness testimony has the potential to affect everyone.
I have an innocent look to me that makes people assume that I love Lifetime movies, puppies, and cry a lot. And I do – but what you might not assume is that I am also a true crime junkie. So, one day when I was nineteen and bored over winter break, I decided to write to an inmate on death row.
After scrolling online through lots of bios and pictures of inmates who were looking for pen pals, I decided to write to a guy we’ll call Joe. When he was convicted, he was the same age as I was at the time, he liked art, he enjoyed writing, and his picture did not look scary. I also chose him because he was on death row on the other side of the country, so he would most likely never be able to track me down in person, and that made me feel safer. My mom was surprisingly all for it, so I sent my first letter.
At first, we ignored the elephant in the room. I told him about what I wanted to go to school for, how many siblings I had, and sent him a picture of a painting that I had done. He told me about his family, what it was like to live in solitary confinement, and eventually, he told me why he was on death row in the first place – something that would have been nice to include in the bios, but whatever.
When Joe was nineteen, he and a few other guys were involved in a robbery gone wrong, where a man was shot and killed. Although there was no DNA evidence in the trial, there was a witness who testified, and ultimately, got him convicted. Throughout the entire time that we wrote to each other, he always claimed his innocence. He claimed that he was part of the robbery, but he did not shoot the man. Back when I was nineteen, I took everything that he said with a grain of salt, thinking to myself that he probably did shoot him even if he did not want to admit it to me. Because why else would the witness identify him as the shooter?
That was six years ago. I am now twenty-five, finishing up my last semester of undergrad, and wondering what the truth was. I had never thought too much into the possibility that maybe he was actually innocent. After he and I had discussed the crime once, we switched to other topics because it felt like rubbing salt in the wound. He was already being punished, so why keep rehashing it? But now that I have learned about the accuracy of eyewitness testimonies in a few of my classes, I cannot help but think about it.
In the courtroom, we tend to take eyewitness testimonies as facts. After all, the person was there. The person saw the crime happen with their own two eyes. How could they not know who it was? In such a stressful situation, it would be very hard to forget the face of a killer or a rapist or a burglar. That is what we think at least. But that is not actually true.
In an example that was presented in one of my classes, we learned about a woman named Jennifer. Jennifer was raped, and of course, it was a very traumatic experience for her. While it was happening, she made the decision to look at him very carefully so that when it was over, she would be able to identify him and he would pay for what he had done to her. So, when she reported it to the police and viewed a photo lineup of potential suspects, she pointed to her guy. She remembered his face. When she saw him again in another lineup, she chose him again, and the cop validated for her that it was the same guy that she had previously chosen. When the suspect was put on trial, she was positive that the man in front of her was the man who had raped her and she had done what she had set out to do – find the guy and make him pay. But ten years later, the right guy confessed. And it was not the guy she sent to prison. Is Jennifer a rare exception? Unfortunately, no.
There are over 300 people who have been falsely convicted of crimes that they did not commit, mostly due to eyewitness testimonies and a lack of DNA evidence in their trials (1), (2). And those are just the ones that have been recognized by the group known as the Innocence Project. Who knows how many innocent people are still behind bars right now. Although many of the convictions are made based on confident eyewitnesses, it is not necessarily the eyewitness’s fault because our memories contain a lot of errors. Not just in situations like this, but in everyday life. We fail to recognize just how faulty and suggestible our memories are because unless we are on the stand, it usually does not matter if we make mistakes, so it usually goes unnoticed. But unfortunately, when it does matter, there are consequences. Especially when the judges, lawyers, and cops do not acknowledge the research on memory and instruct jurors to interpret confidence as accuracy. So, what can we do to keep eyewitness testimonies as accurate as possible?
We can do a few things. First, we can get the witness’s account of what took place as soon as possible after the event occurs. This will eliminate changes that can be made when there is a large gap of time in between the event and the recollection of what occurred. When we replay events over and over in our heads or tell lots of different people about it, the story can sometimes shift in details due to other influences that are not necessarily intentional (1), (3). We can also have witnesses identify the suspect in a sequential lineup instead of seeing them all at once (4), (5). Additionally, we can warn the witnesses that the suspect may or may not be included in the lineup (6). With these two changes, you will eliminate the tendency to just pick the person who looks ‘the most’ like the suspect and encourage the witness to only identify someone if they know it is the right person. They can still make errors of course, but it will encourage them to be more careful in their identifications. And if they do identify someone, we can try to fight the urge to tell them whether they identified the suspect or not. Like we saw in Jennifer’s case, when the witness is given validation on their identification, it often makes the witness a lot more confident than they were prior to choosing someone (7). This can make people go from ‘maybe that is him’ to ‘I am positive that is him’, and that is not what we want. Finally, we can try to bring more psychology into the courtroom.
If I was on a jury prior to taking these classes, I would probably take the witness’s testimony as an accurate recollection of what took place. But if I was warned beforehand that eyewitness testimonies contain errors and can be influenced by subtle things such as what questions they are asked directly after the event, whether a weapon was involved, or how long ago it occurred, I would be more likely to weigh it more carefully – especially in cases that do not have any other evidence, such as the case with Joe. I think it is important that those who are involved in the court system are up to date with the research on the topic and I think we need to do a better job of combining psychology and the law because a lot is at stake if we get it wrong. I do not know whether Joe was innocent or not. But for his sake, I hope that he was guilty, because I cannot imagine being on death row at the age of nineteen for a crime that I did not commit.
If you enjoyed this post, you may be also be interested in this one:
(1) Goldstein, E. B. (2015). Cognitive psychology: Connecting mind, research, and everyday experience (4th edition). Stamford CT: Cengage Learning.
(2) Quinlivan, D. S., Wells, G. L., & Neuschatz, J. S. (2010). Is manipulative intent necessary to mitigate the eyewitness post-identification feedback effect? Law and Human Behavior, 34, 186-197.
(3) Bartlett, F. C. (1932). Remembering: A study in experimental and social psychology. Cambridge, UK: Cambridge University Press.
(4) Lindsay, R. C. L., & Wells, G. L. (1985). Improving eyewitness identifications from lineups: Simultaneous versus sequential lineup presentation. Journal of Applied Psychology, 70, 556-564.
(5) Steblay, N. K., Dysart, J. E., & Wells, G. L. (2011). Seventy-two tests of the sequential lineup superiority effect. Psychology, Public Policy, and Law, 17, 99-139.
(6) Malpass, R. S., & Devine, P. G. (1981). Eyewitness identification: Lineup instructions and absence of the offender. Journal of Applied Psychology, 66, 482-489.
(7) Wells, G. L., & Bradfield, A. L. (1998). “Good, you identified the suspect”: Feedback to eyewitnesses distorts their reports of the witnessing experience. Journal of Applied Psychology, 83, 360-376.