Question

Scenario

You are a defense attorney and an eyewitness to the crime in question has given testimony identifying your client as the culprit. Given what you know about effortful vs. automatic encoding, state-dependent and mood-congruent memory, interference, and the constructive nature of memory (including misinformation, imagination, and source amnesia effects), how would you challenge the validity and reliability of that eyewitness testimony? What arguments would you use to confront the witness in your cross-examination?

Step 1:. Read ONE of the following four research articles and summarize the article's predictions(hypotheses), methods, and findings.

Step 2:  Answer the questions in the Scenario above. Use the research article you've chosen, as well as material from the rest of this lesson, to support your conclusions.

Research Article #1:  Misinformation Effect  https://www.scientificamerican.com/article/evidence-based-justice-acknowledges-our-corrupt-memories/

Research Article #2: Flashbulb memories https://www.usnews.com/news/articles/2016-09-09/flashbulb-memories-of-dramatic-events-such-as-9-11-arent-as-accurate-as-believed

Research Article #3: How accurate are our memories of 9/11?  https://www.scientificamerican.com/article/911-memory-accuracy/

Research Article #4: Eyewitness identification https://www.scientificamerican.com/article/do-the-eyes-have-it/

Your brief summary and evaluation of the reliability of eyewitness testimony (integrating the above-mentioned issues) should be 2-3 pages (double-spaced, 1-inch margins, 12-point font). See the "More About the Eyewitness Identification Assignment" page and the "Eyewitness Identification APA Checklist" for more resources and information. Submit your write-up in the "Major Assignment - Eyewitness Identification" Assignment Tool.

Answer 1

Article selected:
https://www.scientificamerican.com/article/do-the-eyes-have-it/

Effortful vs. automatic encoding: Effortful encoding is one in which significant effort and conscious attention are required in order to process information. Automatic encoding happens unconsciously.

State-dependent and mood-congruent memory: Memories are often easier to recall when people are in the same state of consciousness as they were when the original memory was formed.
Mood-congruent memory occurs when the current mood is congruent with the mood at the time of memory storage. This helps in easier retrieval of the memory.

Memory interference: Memories which are of the same pattern have a way of leaving the long-term memory thereby not being able to come into the short-term memory for recall. This is interference.

Constructive nature of memory: When some kind of explanation is made in order to fill up a memory gap. The memory may not be complete if this piece of information is not included so the brain automatically comes up with a scene or memory in order to fill up the gap. It is prone to error and could be distorted.

How would you challenge the validity and reliability of that eyewitness testimony?

1. The reliability of eyewitness claim could be tackled scientifically. Memories as they are formed as not just played back when required, but are actually reconstructed at that point in time.
2. Information provided in the witness statement could be different from the statement the witness gives when I, as a defense lawyer question the eyewitness.
3. It has been proven that people are gullible and could be made to believe that they saw something that they did not see. By comparing the videotaping of the actual identification process and contrasting it with the answers given during my cross-examination, I can test the validity of their claim.
4. By proving that there was high stress for the witness during the trial or at the time of the crime, I could prove that the eyewitness testimony itself was biased.
5. I could bring in the physical traits of my client if there were no stark identifiers, such as tattoos - It could have been an average Joe, not just my client.
6. I could make use of racial references if the client and the eyewitness are of different
7. races.
8. Presence of danger at the actual crime scene could have increased the stress of the eyewitness thereby leading them to false witness statements.
9. The reliability of the eyewitness can be tested by studying the historical behavior of the person, what they do for a living, how they do it and the likes. By researching this, I could make their statements a little less reliable than what is portrayed.

What arguments would you use to confront the witness in your cross-examination?

Arguments that I would use:

1. How is the eyewitness so sure that my client was the culprit? What are the physical indicators?
2. Does the eyewitness know my client?
3. Was the eyewitness in any kind of stress during the crime? (memory interference)
4. Was the eyewitness taken to a doctor for an evaluation after the crime?
5. How did the doctor report the mental state of the eyewitness to be? (State-dependent and mood-congruent)
6. Was the eyewitness threatened during the crime? (constructive nature of memory)
7. What does the eyewitness do for a living? Since how long?
8. Is the eyewitness undergoing any treatment for mental illnesses?
9. Was the eyewitness under medication or drugs during the crime?
10. Is the eyewitness currently inebriated?

Such kind of questions could bring about many answers that can support the cause of my client's case while cross-examining the eyewitness. The article suggests that almost 73% of the cases that were overturned were based on eyewitness statements - This is key.