EYEWITNESS TESTIMONIES: A CRITICAL ANALYSIS OF MEMORY

PART I: INRODUCTION

A witness has been defined as someone who is able to provide information by written or oral dispositions provided in the court or otherwise. Eyewitness testimonies are the accounts of incidents from the perspective of a bystander. They are believed to play an extremely significant role in the criminal justice delivery system as they help in identifying the accused in various situations. In Vikas Kumar Roorkewal v. State of Uttarakhand and Ors, where the Supreme Court examined the role of witnesses in the criminal justice delivery system, it was reiterated that eye witnesses play an integral role in the criminal justice delivery system. The court also opined in this case that in order to contribute towards conducting fair trials, it is important to take legislative measures for the protection of witnesses. Furthermore, the court stated that close observation should be made to check if there was any possibility of threat to the eyewitness or if the witness was operating under undue influence while testifying in the court.

Section 3(1) of the Indian Evidence Act, 1872 (hereafter, the Act) relates to the eyewitness testimonies and attaches major evidentiary value to the statements made by an eyewitness under oath. They are admissible in the India courts under Section 9 of the Act. Section 134 of the Act is another provision which reaffirms the importance of eyewitness testimonies as it establishes that there is no particular number of witnesses that are required by law to prove any fact and attaches more importance to quality than quantity. Moreover, the Supreme Court has established that there can be conviction even on the basis of a sole witness. Section 118 of the Act is also a relevant provision in this context as it states that every person is competent under the law unless they are incapable of understanding any question posed by the court for the reason of their extreme old age, tender age or because of any disease. Therefore, within the meaning of this provision, even if a witness is a child, of tender age, or suffers from any disease, insofar as they are able to understand such questions, they will be qualified as a competent witness capable of testifying.

Furthermore, one of the areas where eyewitness testimonies become essential is especially when a Test Identification Parade (hereafter, TIP) is conduced, which is generally followed by the dock identification so that its evidentiary value could be enhanced. The ability of an eyewitness to recognize an accused is majorly influenced by their ability to remember when a TIP is conducted. Therefore, the memory of such eyewitness plays an extremely essential role. TIPs are mostly held in criminal cases to establish the guilt or innocence of an accused in respect of persons or articles and are similar to line-ups. Section 9 of the Act makes the identification of an accused by a witness and the relevant facts admissible in the court. In Budhasen v. State of U.P., the Supreme Court opined that TIPs have two major objectives; firstly, to establish the identity of the accused and to corroborate the identity of the witness before the trial and; secondly, to test the memory of witnesses. It is also an established position that in cases where the accused are unknown to the witnesses, but the witnesses during the course of investigation state that if shown, they would be able to recognize some of the criminals, a TIP ought to be held before a magistrate at the earliest possible instance. The reason behind this is that the chances of the witness’s memory fading are minimized if the parade is held at the earliest opportunity. As memory is malleable, the information perceived by an eyewitness is stored in memory while it is made available for retrieval when the witness is called upon to identify the suspect. Unconsciously, we regularly perceive information in a biased manner which we later reconstruct, forget and distort the things that we believe to be true.

However, research shows that more than 75% of eyewitness testimonies result in wrongful convictions as a consequence of various inaccuracies, which can lead to a miscarriage of justice. The consequences of erroneous convictions based on incorrect eyewitness accounts are profound. Numerous innocent people have spent years behind the bars while the perpetrators continue to commit additional crimes leading to an overall increase in the crime rate. These outcomes can also undermine general public interest in the criminal justice system which could result in social unrest and hostility directed towards the courts and law enforcement. Such inaccuracies arise because of the limitations of human memory. There are certain factors that can affect the memory of an eyewitness, thereby affecting the reliability and accuracy of the testimonies. The next part of the paper discusses these in detail.

PART II: BIASES AND FACTORS AFFECTING THE MEMORY OF EYEWITNESSES

Despite the importance that is associated with eye witness testimonies, due to the shortcomings of human memory they are prone to be influenced by certain biases which reveal that what the human eye can perceive is not completely reliable. For instance, despite the shocking nature of the crime which would make it particularly unforgettable, on September 11, 2001 when the World Trade Centre in New York was destroyed in a terrorist attack, the then President of the United States, George W. Bush made public statements about how he heard the news on three different occasions. Surprisingly, his testimonies about the recollection of those events were different on all three occasions. Daniel Greenberg, a psychologist from Duke University provides with two explanations that could be helpful in understanding these inaccuracies. His first explanation is called the “wrong time slice error”, which explains that when asked to recollect memories about particular everyday events, people often respond with description of an event from a completely different time. He argues that this is true specifically with respect to visual images as they can bring about errors as they are “easy to generate, easy to modify and easy to remember.” He suggested another explanation called the “narrative construction” according to which, while constructing a narrative account of an event, it is common for people to sometimes reconstruct the gaps based on their general perceptions of what would usually happen in a situation. It is relevant to discuss this example because it explains that Bush was acting under the same kind of biases that eyewitnesses generally act under. This example also illustrates that eyewitness testimonies are lot less accurate than they are expected to be.

From the various factors that affect the memory of eyewitnesses, most of them can be classified into two main categories respectively as estimator and system variables. The former includes things such as viewing conditions, for instance, duration, lighting, distance etc., the presence of stimuli that lead to distraction, such as bright lights, loud noises, weapons etc. and the internal state of the eyewitness such as motivation, attention, biases, skills etc. These variables are not under the control of the justice system, but they must however, be taken into account to understand the true nature of a testimony. On the other hand, system variables include those which could be controlled by the criminal justice system. They include factors such as the manner in which a TIP should be conducted, the manner in which the witnesses are to be interviewed, whether the administrators conducting the TIP should be blind to the status of the participants and alike. Some of the biases that affect the memory of eyewitnesses which are a result of estimator variables are discussed hereafter.

The Weapon Focus Effect

Considering that each individual is unique, our experiences of the world around us would also be different. For the same reason, it is also possible for us to misperceive events based on our own subjective experiences. Research suggests that the circumstances of the crime also influence the memory of an eyewitness. The weapon focus effect suggests that in cases where a weapon is involved, it is difficult for the witness to focus on the physical appearance of the criminal as the entire attention is drawn away from it and towards the weapon. A study was conducted in this regard, in which the researchers combined all the existing research on this aspect and conducted a meta-analysis and argued that there is empirical support to explain why this happens. One explanation suggests that this happens because the witnesses are fixated on the source of the threat because they are distracted by it. Another explanation suggests that the witnesses find the weapon as something unusual and surprising and therefore, their entire attention is focused towards it. Therefore, this effect explains that it is highly likely for an eyewitness testimony to be unreliable in cases where a weapon is involved. However, one possible solution for this could be to train people likely to be exposed to situations involving weapons for instance, police officers.

Misinformation

Surprisingly, it is highly probable for people to forget things that one would not expect them to forget. Furthermore, it is extremely easy to interfere with memory by introducing misinformation. In a study conducted in 2013, certain participants were asked to watch the video clip of a robbery captured on CCTV in which one of the robbers had a gun. Thereafter, they discussed the crime with a witness who was planted to introduce misinformation with respect to the person who was holding the gun. Even when they were warned beforehand that the information from this witness is prone to errors, they still ended up incorporating that information into their own accounts of the crime. This experiment can be used to explain that even when eyewitnesses are made aware that the media reports of a crime are inaccurate, the contamination of their memories cannot be prevented. Such contamination can lead to travesties of justice. Furthermore, in her experiment, Elizabeth Loftus from the University of Washington established that even in cases where misinformation is not planted, false memory can still be produced. Thus, memory is more vulnerable and prone to contamination than people expect it to be.

Inattentional Blindness

In certain situations, individuals fail to perceive an unexpected stimulus, mainly because of a lack of attention. Such a situation may also result in a temporary state of blindness due to which an eyewitness may fail to correctly recollect the incident that they had witnessed. The capacity theory of attention suggests that inattentional blindness occurs because the amount of cognitive resources that people are able to devote for the perception of their surrounding are limited. Therefore, eyewitnesses often fail to perceive certain aspects in their surrounding that fall outside the scope of their focus attention.

Eyewitness Confidence

It seems intuitively logical that the more confident an eyewitness is the more accurate will be the testimony. Similar to this was the case in Daya Singh v. State of Haryana, where the Supreme Court of India placed reliance on the character of the witness to ascertain the reliability of the testimony. However, various studies have identified post-event factors that increase the confidence significantly, but not the accuracy of eyewitness testimony. A similar study by a psychologist Kathy Pezdeck explains that the confidence of an eyewitness is not a determining factor for the reliability of the testimony. In fact, she illustrates through an experiment that the more confident the eyewitnesses are, the less likely they are to be correct. Therefore, eyewitness confidence has little significance in determining the accuracy of testimonies because of the various factors that affect confidence but not accuracy.

Biases such as these interfere with an eyewitness’s memory and diminish the authenticity of their testimonies. However, research in this area has also led to the development of some possible solutions. The next part of the paper analyses such solutions.

PART III: POSSIBLE SOLUTIONS TO INCREASE RELIABILITY

While interviewing the witnesses, investigating officers generally make three types of errors- they fail to obtain the maximum amount of correct information from the eyewitnesses, they contaminate the eyewitness’s memory of the crime by asking leading questions, and they give into to systemic pressures that either lead them to charge the less experience officers to gather the most important evidence or to gather evidence with a pro-prosecution bias. However, since system variables are something that cannot be controlled, it is argued that bringing about improvements in the system variables can go a long way reducing the biases that affect eyewitness memory. In this regard, is also argued that eyewitness testimonies should be considered in the category of physical trace evidence such as DNA, fingerprints alike as similar to them, they also have physiological basis whose authenticity depends on the proper use of scientific procedures in collecting evidences. Therefore, like other categories of trace evidences, they should only be admitted if proper scientific procedures are followed in producing them. Analyzed below are some of the ways which illustrate how improving system variables could prove beneficial in producing more accurate accounts of eyewitness testimonies.

Forensic Hypnosis

In this method, people are guided into an alternative state of consciousness. It is believed that individuals have increased concentration and a better focus and appear to be particularly open to suggestion in such a state. Such a technique has been reported to be beneficial in cases where eyewitnesses have a traumatic experience of the crime they have witnessed. This technique has been used by police departments of various countries to improve eyewitness memory, such as the FBI, the New York Police, the Israeli Police, the Texan Police and others. Moreover, in the US, some detectives are even trained to carry out the hypnosis themselves. Marilyn Smith in her article also talks about certain incidents where forensic hypnosis proved to be crucial in solving the crimes when all other methods had failed. However, it is important to consider that certain studies have also demonstrated that apart from certain exceptions, forensic hypnosis has not really been successful in improving the memory of eyewitnesses. To this, Smith offered one explanation that people’s suggestibility increases under hypnosis. However, this is not to suggest that this technique should be disregarded altogether, but to suggest that one needs to be cautious in its usage as it may prove to be a useful way in generating leads in investigations where no other method is proving to be useful.

Cognitive Interview

In their research, Ronald Fischer and his colleagues attempted to incorporate findings from psychological research into practical techniques that could be used in real life investigation process. In doing so, they developed a procedure which they called the “cognitive interview.” Various studies on this method have demonstrated that it increases the amount of information obtained from eyewitnesses by 35% to 75% over standard police interviews. Traditionally, during the interviews conducted in investigations, the investigating officers follow a question-based approach where the officer asks questions which the witness is expected to answer based on their memories of the event. However, with this approach there is a possibility of false memory being created by the means of leading questions asked by the investigators. Contrarily, cognitive interviews are based on the “encoding specificity principle” which is the idea that the ease with which memory can be recalled depends on how much informational overlap it has with the cue being used to retrieve it. In simpler terms, it means that when something is recollected, it is encoded in relation to the context in which it is situated. This, in turn, produces a unique trace in which information from both the target and the context is incorporated. Therefore, the more there is an overlap between something that has already been recalled, and something that is desired to be recalled, the more will be the chance of retrieving the desired memory. This method helps in improving the standard form of interview in three ways- firstly, it takes into consideration the social dynamics of the interview process by encouraging the investigating officer to show empathy with the eyewitness; secondly, it enhances eyewitness’s memory of the crime by applying basic principles of memory and by recording the interview and; thirdly, it helps in improving communication between the interviewer and the eyewitness as it involves asking open-ended questions and not interrupting the eyewitness while they are narrating their account of the crime. Based on these principles, a cognitive interview helps in maximizing a witness’s chances of recollecting their memory of a crime/event. This technique has now been adopted by the police officers in various countries such as the US, UK, Canada, Hong Kong, Singapore, Australia and others.

Furthermore, a dominant theme in the eyewitness research has been to modify the type of line-up to improve the eyewitness memory, which is also a system variable. A study conducted in the year 1985 raised this possibility which compared a traditional line-up in which the faces of all the suspects are presented to the eye witness simultaneously with a newly developed form of line-up which the faces were presented sequentially, i.e., one at a time. This study conducted that the latter was more effective in the identification of the correct accused as compared to the former. Research also suggests that one of the major factors for reducing eyewitness error is to conduct interviews in such a manner that maximizes the amount of information received from eyewitnesses which helps in avoiding the contamination of their memory in relation to the crime. One way of doing this is by ensuring that the officer who interviews an eyewitness should not know the identity of the suspect to prevent the biasing of eyewitnesses’ responses to incriminate the suspect. Another way could be to allow a videotaping of the interviews so that the judges could be informed of the improprieties that may occur during the interviews.

PART IV: CONCLUSION

In conclusion, adopting psychologically sound techniques such as the ones described above are extremely essential in reducing eyewitness memory errors. Such techniques not only help in maximizing the amount of information received from eyewitnesses, but also help in preventing an artificial increase of their confidence and do not contaminate their memory of the crime. Many of these techniques have been adopted by countries across the world. Even in India, for instance, the guidelines for conducting a TIP require that a sequential line-up method described above be followed. However, we still have a way to go in terms of adopting the other methods of improving eyewitness memory such as cognitive interviews. Considering that eyewitness testimonies have tremendous significance in deciding the fate of a case and the advancements in research and technology have provided possible solutions, it is high time that they are incorporated into India’s investigation systems as well so that the accuracy of eyewitness testimonies could be improved.

Sanya Sethi

3rd Year Law Student (B.A.L.L.B Hons.)

O.P. Jindal Global University