- Published on Tuesday, 22 October 2013 13:17
- Written by Bill Pursell
The United States Department of Justice, Bureau of Justice Statistics, admits that statistically 8 to 12% of all state prisoners are either actually or factually innocent. If this statement alone isn’t harrowing enough, consider this quick statistical delineation. As of January 1, 2010, there were 1,404,053 total inmates in American state prisons, according to Prison Count 2010. If the Bureau of Justice’s mean statistic of falsely imprisoned people is used (10%), then in 2010 there were approximately 140,405 falsely imprisoned people in our country.
Eyewitness testimony is an integral part of the judicial process, but often can be described as a chronic ailment of the American judicial system and one that contributes to wrongful convictions. The evidence is plain to see. Search any credible study or media source, and it will invariably display the same thing. Reliance on the memory of witnesses is, after all, not reliable.
To examine how chronic eyewitness testimony is to the American judicial system, the scope of this 2010 approximation must be narrowed a little more. The Innocence Project estimates that of these wrongful convictions, at least 72% are caused from eyewitness misidentification. It is important to note that the Innocence Project has collected this evidence specifically from DNA overturned cases, therefore establishing a concrete and potentially low end estimate. Their figures, combined with the previous figures, show at least 101,091 possibly innocent people in state prisons in 2010 were there because eyewitness misidentification played a role in the case.
This number is staggering, especially when the sheer volume of research on misidentification and witness biases are examined. Elizabeth Loftus has conducted experiments dating back to the mid seventies that prove the inaccuracy of human memory, specifically when dealing with a third party that provides false or misleading information to the witness. In her experiment, Loftus discovered that a person could be shown a picture and then conditioned through misleading questions to build inaccurate memories, or memories that are predictably divergent from their peers.
Since Loftus’ experiments, more works have shown similar faulty or completely erroneous memory’s that arise because of problems at the various levels of memory encoding and recall. One such problem occurs before a memory is created. All memories are first encoded through senses, but the encoding process is also influenced by a person’s perception. A perception can incorrectly shape a memory of an event. The reason for this is that perception is under the influence of biases. The bias of any witness is influenced by attitudes, background, abilities, and environment. These factors often lead people who hear or see partial stimuli to use invented details to fill in the gaps between the stimuli they have actually witnessed. These invented details come from a person’s biases, and fill in details to form a solid convincing memory. In other words, a person may, for example, be told that they are in a high density bear region, and therefore believe that he or she has seen a bear in the woods when only perceiving a brown furry creature.
Another problem arising from witness testimony comes in the retelling of a memory. Laura Engelhardt’s The Problem with Eyewitness Testimony a talk by Barbara Tversky, Professor of Psychology And George Fisher, Professor of Law suggests that the simple act of retelling any story is never done neutrally. A story is always subject to reformatting for its target audience. An example of this would be the retelling of a morning commute. A person will most likely exclude many details while over emphasizing other details to create the desired effect. Or, when retelling about a brown furry creature in the woods, a person may decide to omit their inability to properly distinguish the creature, and simply explain that they had seen a bear. The witness and their peers can reaffirm these altered memories and make the witness believe more confidently that they are real.
Those factors that make up a person’s bias, and others, such as general personality, can alter the degree of confidence a witness may have in the retelling of their story regardless of the various elements of potential fabrication. Confidence in a witness’ testimony, according to Amy Bradfield and Dawn E. McQuiston, can have an immense affect on the jury. In one of their studies, participants who read a testimony by a highly confident and a lowly confident witness often felt that the highly confident witness had a better view. This opinion among participant jurors remained unchanged when instructed that confidence was not a good indicator of accuracy, according to When Does Evidence of Eyewitness Confidence Inflation Affect Judgments in a Criminal Trial? Therefore a severely biased individual or someone with a generally confident personality will have more influence on a jury regardless of their testimonial accuracy.
It is in the hands of the judges to try and remove as many of these biases and inaccuracies as possible. In a study by Richard A. Wise and Martin A Safer, there was a startling discovery about a surveyed group of judges on their understanding of eyewitness factors. The study set up a knowledge scale for judges on the problems arising from eyewitnesses, the frequency by which these factors are addressed, and the understanding of other participants in the law process (lawyers) on these factors. The judges they surveyed had a limited understanding of eyewitness factors scoring a 55% on their knowledge scale. Wise and Safer also suspect that the judges, who volunteered for their survey, represent a group that is more interested and knowledgeable than the general population of judges. They conclude that judges need to bolster their knowledge of eyewitness testimony, and were backed in this opinion by the surveyed judges, “75% of the judges agreed that judges should receive more training on testimony, and only 10% stated that judges receive adequate training on eyewitness testimony.”