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Clarkian Logic on Trial
Abstract
On the first day of April of 2012, an interesting trial took place in Wells County, exactly 103 years after the famous trial described by Wigmore (1909). The defendant, D, was charged with brutally stabbing a homeless man just after midnight on New Year’s Day. Before the police arrived on the crime scene, the perpetrator, rushing to flee the scene, knocked into a witness who had seen the stabbing, Miss Jane Takin. Three weeks after the crime, a detective called Jane and asked her to participate in a procedure to see whether she could identify the perpetrator. Detective Sy M. Taneous (whose friends call him Mel, which is his middle name) constructed a photo lineup using his standard procedure. He selected five foils and put D’s photo in Position #3. After looking over the photos for several minutes, Jane identified D as the criminal. During D’s trial, the prosecution put on their star witness, Jane, who testified that she had picked D out of the photo lineup, and she reaffirmed her identification of him in court. The defense put on an expert witness, a respected psychological scientist who studies eyewitness memory, Professor William S. Devlin (whose friends called him WSD). WSD testified for over an hour, primarily about the problems with the identification procedure. He took issue, in particular, with the fact that Detective Taneous had presented the photos simultaneously and administered the identification procedure being well aware of the identity of the suspect. In an unusual move, the prosecution, during rebuttal, put on a different eyewitness expert to counter WSD’s testimony. Their expert, Professor Cleve Stark, is a well-regarded psychological scientist who specializes in mathematical modeling of eyewitness identification. We obtained a transcript of Dr.Stark’s cross examination by the defense attorney and present portions of it in this commentary.
... In contrast, Wells and colleagues have suggested that additional accurate identifications of the guilty "are ill-gotten" if they come at the risk that innocent individuals will erroneously be identified through unnecessarily suggestive procedures (Wells, Steblay, & Dysart, 2012, p. 265). Newman and Loftus (2012) have similarly argued that gains in the form of fewer false negative identifications often come at the expense of coercion and suggestiveness, and should not be embraced even if fewer true identifications are obtained. ...
Research Summary
In this article, we examine criminal offending by true perpetrators after innocent people are arrested and convicted for their crimes. After investigating a set of cases in which DNA was used to exonerate the innocent and to identify the guilty party, we identified 109 true perpetrators, 102 of whom committed additional crimes. We found a total of 337 additional offenses committed by the true perpetrators, including 43 homicide‐related and 94 sex offenses. By extrapolating from our findings, we estimate that the wrong‐person wrongful convictions that occur annually may lead to more than 41,000 additional crimes.
Policy Implications
Our findings indicate that one consequence of wrongful convictions, allowing the true perpetrators of crimes to remain at liberty and commit new crimes that imperil prospective victims, represents an important threat to public safety and thereby dramatically compounds the harms caused to innocents. We stress the importance of framing wrongful conviction issues to capture these important crime control concerns and, thus, to help galvanize public opinion and promote policy reforms that will mutually benefit adherents of both crime control and due process perspectives.
... Countering this argument, other authors pointed out that many of the correct identifications made under suggestive or otherwise inadequate lineup procedures might not be legitimate 'hits.' Rather, they might well include guesses and selections based upon external 'hints' (Newman and Loftus, 2012). These authors argue that we do not gain from increasing correct identifications for the wrong reasons. ...
Eyewitnesses have always played a fundamental role in the legal process. However, eyewitness evidence is not always as reliable or as accurate as one might hope, given the weight that decision makers often ascribe to it. In this article, we review some of the many factors that can determine the reliability of witness testimony, including factors that are, and those that are not, within the control of investigative and judicial processes. In doing so, we consider how policies might assist in ensuring that witness testimony can play the most effective and informative role in the legal process as possible.
... There is ongoing debate about the causes of this finding (criterion shifts vs. relative decisions) as well as the costs and benefits associated with using the recommended procedures (see, e.g., Clark, 2012;Newman & Loftus, 2012;Wells, Steblay, & Dysart, 2012). It is important to acknowledge some limitations in our methodology that temper the implications of our findings. ...
The purpose of this study was to determine how American and Canadian robbery detectives collect identification evidence and whether their practices are consistent with published guidelines. Via a survey, we asked about the use of various lineup practices (e.g., single-blind vs. double-blind administration, sequential vs. simultaneous presentation, and videotaping). Canadian detectives are more likely to use research-based reforms such as double-blind sequential lineups and videotaping. We also assessed how robbery detectives interact with eyewitnesses at four points during a lineup: prior to the lineup, immediately after an identification, and after 12 seconds and 3 minutes have elapsed without an identification. Results showed that at the latter two junctures, officers from both the countries question eyewitnesses in subtle ways that could influence the likelihood of choosing and confidence in the selection. Canadian detectives are less likely than American detectives to do so, however. This finding can be explained by the absence of written guidelines in most US jurisdictions on how officials should interact with eyewitnesses during lineups.
... The public policy implications of the no-cost pattern—and its disappearance—have been discussed at length elsewhere (see Clark, 2012a, 2012b; Laudan, 2012; Newman & Loftus, 2012; Wells et al., 2011). We will not repeat those arguments and counterarguments here. ...
Scientists in many disciplines have begun to raise questions about the evolution of research findings over time (Ioannidis in Epidemiology, 19, 640-648, 2008; Jennions & Møller in Proceedings of the Royal Society, Biological Sciences, 269, 43-48, 2002; Mullen, Muellerleile, & Bryan in Personality and Social Psychology Bulletin, 27, 1450-1462, 2001; Schooler in Nature, 470, 437, 2011), since many phenomena exhibit decline effects-reductions in the magnitudes of effect sizes as empirical evidence accumulates. The present article examines empirical and theoretical evolution in eyewitness identification research. For decades, the field has held that there are identification procedures that, if implemented by law enforcement, would increase eyewitness accuracy, either by reducing false identifications, with little or no change in correct identifications, or by increasing correct identifications, with little or no change in false identifications. Despite the durability of this no-cost view, it is unambiguously contradicted by data (Clark in Perspectives on Psychological Science, 7, 238-259, 2012a; Clark & Godfrey in Psychonomic Bulletin & Review, 16, 22-42, 2009; Clark, Moreland, & Rush, 2013; Palmer & Brewer in Law and Human Behavior, 36, 247-255, 2012), raising questions as to how the no-cost view became well-accepted and endured for so long. Our analyses suggest that (1) seminal studies produced, or were interpreted as having produced, the no-cost pattern of results; (2) a compelling theory was developed that appeared to account for the no-cost pattern; (3) empirical results changed over the years, and subsequent studies did not reliably replicate the no-cost pattern; and (4) the no-cost view survived despite the accumulation of contradictory empirical evidence. Theories of memory that were ruled out by early data now appear to be supported by data, and the theory developed to account for early data now appears to be incorrect.
... The public policy implications of the no-cost pattern-and its disappearance-have been discussed at length elsewhere (see Clark, 2012aClark, , 2012bLaudan, 2012;Newman & Loftus, 2012;Wells et al., 2011). We will not repeat those arguments and counterarguments here. ...
The U.S. Supreme Court wrote in 1967, 'The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.' (U.S. v. Wade, 388 U.S. 218). Forty-five years later these 'vagaries' are perhaps even more well-known. Archival analyses have led to a consensus that mistaken eyewitness identification is the primary cause of wrongful convictions in the U.S. (Garrett, 2011; Gross, Jacoby, Matheson, Montgomery, & Patil, 2005; Gross & Shaffer, 2012). Experimental research on eyewitness identification has led to the development of new procedures designed to increase the accuracy of eyewitness identification evidence and reduce the risk of false identification errors that can send innocent people to prison. Many state governments and local law enforcement jurisdictions have already implemented the new procedures, and others are contemplating their adoption. As the reform movement has gained momentum, however, the empirical foundation for the recommended procedures has eroded. The procedural changes produce a trade-off between false identifications avoided and correct identifications lost. In some cases the reforms may not reduce eyewitness errors, but only redistribute them, such that the changes in accuracy are very small or non-existent.
Some commentators view my analyses (Clark, 2012, this issue) as an important step forward in assessing the costs and benefits of eyewitness identification reform. Others suggest that the trade-off between correct identifications lost and false identifications avoided is well-known; that the expected utility model is misspecified; and that the loss of correct identifications due to the use of reformed eyewitness identification procedures is irrelevant to policy decisions, as those correct identifications are the illegitimate product of suggestion and lucky guesses. Contrary to these criticisms, the loss of correct identifications has not been adequately considered in theoretical or policy matters, criticisms regarding the various utilities do not substantively change the nature of the trade-off, and the dismissal of lost correct identifications is based not on data but on an outdated theory of recognition memory.
© The Author(s) 2012.
Objectives. Errors in eyewitness accounts can occur when a witness comes into contact with post‐event ‘misinformation’. A common way to encounter misinformation is through face‐to‐face interaction, in particular, via conversation with other individuals who also witnessed the crime. The current research compares this kind of misinformation with the non‐social post‐event narrative method typically employed in laboratory studies.
Method. Young (17–33 years) and older (58–80 years) adults viewed a simulated crime event on video and were later exposed to four items of misinformation about it. The misinformation items were either introduced as part of a discussion about the event with a confederate or were embedded within a written narrative about the event that participants were asked to read. A questionnaire containing 20 items about the event was given to participants before and after the experimental manipulation.
Results. Participants were less accurate than controls on questionnaire items after encountering misinformation. More importantly, misinformation encountered socially was significantly more misleading than misinformation from a non‐social source. This was true for both young and older adults.
Conclusion. Misinformation encountered socially produced more errors than misinformation from a non‐social source. This finding has implications both for applied (forensic) and theoretical understanding of eyewitness memory.
A total of 1,242 subjects, in five experiments plus a pilot study, saw a series of slides depicting a single auto-pedestrian accident. The purpose of these experiments was to investigate how information supplied after an event influences a witness's memory for that event. Subjects were exposed to either consistent, misleading, or irrelevant information after the accident event. Misleading information produced less accurate responding on both a yes-no and a two-alternative forced-choice recognition test. Further, misleading information had a larger impact if introduced just prior to a final test rather than immediately after the initial event. The effects of misleading information cannot be accounted for by a simple demand-characteristics explanation. Overall, the results suggest that information to which a witness is exposed after an event, whether that information is consistent or misleading, is integrated into the witness's memory of the event.
The misinformation effect refers to the impairment in memory for the past that arises after exposure to misleading information. The phenomenon has been investigated for at least 30 years, as investigators have addressed a number of issues. These include the conditions under which people are especially susceptible to the negative impact of misinformation, and conversely when are they resistant. Warnings about the potential for misinformation sometimes work to inhibit its damaging effects, but only under limited circumstances. The misinformation effect has been observed in a variety of human and nonhuman species. And some groups of individuals are more susceptible than others. At a more theoretical level, investigators have explored the fate of the original memory traces after exposure to misinformation appears to have made them inaccessible. This review of the field ends with a brief discussion of the newer work involving misinformation that has explored the processes by which people come to believe falsely that they experienced rich complex events that never, in fact, occurred.
Research on memory conformity shows that collaborative remembering--typically in the form of discussion--can influence people's memories. One question that remains is whether it matters with whom we discuss our memories. To address this question we compared people's memories for an event after they discussed that event with either their romantic partner or a stranger. Pairs of subjects watched slightly different versions of a movie, and then discussed some details from the movie, but not others. Subjects were better at remembering non-discussed details than discussed details: when remembering discussed details they incorrectly reported information from their partner's version instead of their own. In addition, subjects who discussed the event with their romantic partner (rather than with a stranger) were even more likely to report false memories. We discuss our findings in relation to other research on memory conformity, social influences on false memories, and memory systems within romantic relationships.
Psychological science has come to play an increasingly important role in the legal system by informing the court through expert testimony and by shaping public policy. In recent years, psychological research has driven a movement to reform the procedures that police use to obtain eyewitness identification evidence. This reform movement has been based in part on an argument suggesting that recommended procedures reduce the risk of false identifications with little or no reduction in the rate of correct identifications. A review of the empirical literature, however, challenges this no-cost view. With only one exception, changes in eyewitness identification procedures that reduce the risk of false identification of the innocent also reduce the likelihood of correct identification of the guilty. The implication that criminals may escape prosecution as a result of procedures implemented to protect the innocent makes policy decisions far more complicated than they would otherwise be under the no-cost view. These costs (correct identifications lost) and benefits (false identifications avoided) are discussed in terms of probative value and expected utility.
© The Author(s) 2012.
The current study compared the effects of co-witness information on memory with more widely studied methods of encountering post-event information. Participants were shown a crime video and then exposed to both correct and incorrect post-event information about the video through one of four methods: (1) leading questions, (2) media report, (3) indirect co-witness information, or (4) co-witness discussion. There was also a control condition in which participants did not receive any post-event information. All participants were individually tested on their memories for the event 1 week later. Results suggest that co-witness information had a particularly strong influence on eyewitness memory, whether encountered through co-witness discussion or indirectly through a third party. That is, participants were more likely to report co-witness information than post-event information encountered through leading questions or a media report. Copyright © 2006 John Wiley & Sons, Ltd.
False memories are often demonstrated using the misinformation paradigm, in which a person's recollection of a witnessed event is altered after exposure to misinformation about the event. The neural basis of this phenomenon, however, remains unknown. We used fMRI to investigate encoding processes during the viewing of an event and misinformation to see whether neural activity during either encoding phase could predict what would be remembered. fMRI data were collected as participants studied eight vignettes (Original Event phase). Shortly afterward, participants studied the same vignettes during scanning, but with changes to several details, serving as the misinformation (Misinformation phase). Two days later, their memories for the Original Event were assessed. Activity that subsequently led to true and false memories was examined during both encoding phases. Two interaction patterns between encoding phase (Original Event and Misinformation) and type of memory (true and false) were observed in MTL and PFC regions. In the left hippocampus tail and perirhinal cortex, a predictive item-encoding pattern was observed. During the Original Event phase, activity was greater for true than false memories, whereas during the Misinformation phase, activity was greater for false than true memories. In other regions, a pattern suggestive of source encoding was observed, in which activity for false memories was greater during the Original Event phase than the Misinformation phase. Together, these results suggest that encoding processes play a critical role in determining true and false memory outcome in misinformation paradigms.