Professional Documents
Culture Documents
Serena Aeschilman
From the beginning of criminal justice under authoritarian rule, eyewitness accounts have
been utilized to an extreme. Criminal justice truly began when the Hammurabi code was created
in 1754 BC, to describe the law code of Mesopotamia. Since then, eyewitness accounts have
been used to assess crimes, especially in the United States court system. It wasnt until recently
that psychology proved eyewitness accounts to be faulty. These eyewitness accounts are faulty
due to the proneness of false memories, which may be created through high suggestibility,
The human mind has always been susceptible to high suggestibility. This weakness in the
human mind can make eyewitness accounts faulty due to the easy formation of false memories.
A witness may hear what others believe occurred during the crime, leading the witness to
subconsciously create a scenario that may not have occurred, simply to match what everyone
else is saying (Thompson, 2011). This can be a problem, as the Defendant may be found guilty
from that false information. Oftentimes, in cases with little evidence, the jury may decide on a
case, stitched together based on an eyewitness accounts alone. Since memories are malleable to
what others would like to hear, leaving one to conform and possibly gain a false memory leading
to many problems (Balko, 2009). For example, the individual who reported the crime may be
called down to identify the individual who committed the crime. This is a problem in itself, as it
may have been days since the crime occurred. Furthermore, the crime may have occurred in
circumstances that make it difficult to distinguish the felon from a similar-looking innocent. This
leads many to be falsely accused, and even sentenced to prison (Robinson-Riegler, 2012). As
Sandra Guerra Thompson, New York Times, says, Memory also fails us when we need it most.
The Fault of Eyewitness Accounts~Aeschilman 3
Memories alter over time, leaving holes to be filled in with our imagination. These false
memories can easily be implanted into our minds. With a single seed, a whole idea may grow
and flourish. This process is called the Misinformation Effect (Neimark, 1996). It occurs when
recollections become less accurate, due to post-event information (Weiten, 2010). Psychologist
Elizabeth Loftus has conducted extensive research about misinformation. She proves that the
reliability of testimonies are affected as information is given to the individual. In a case study in
1974, she interviewed two different individuals about a car crash. They asked one witness if they
could elaborate on what they saw occur during the car crash. The witness began speaking
about shattering glass, even though there wasnt any shattering glass; the word glass simply
sparked an alternative idea of what happened. Another individual was asked about the car
accident, leading them to talk about how it was a gentle bump, nothing major. What Elizabeth
Loftus realized was that human beings utilize verbiage to recall memories to form what
happened, both of these witnesses had different memories of the same event. If the interviewer
used harsh verbs and adjectives, recollection would be altered due to a bias. Another example are
children who are asked to identify individuals; they are especially at risk to having a pliable
accusation. Younger children are more likely to be be traumatised and may also want to put a
face with their nightmare, leaving them to falsely identify someone just to feel safe. Children
are especially susceptible to high suggestibility, as they want to please their parents (Bruck et. al,
1999). This urgency can have an affect on how one recalls a memory.
memory occurs over time; as the memory fades, the individuals mind attempts to fill in the rest.
This is done through their perception, imagination, beliefs and outside influences (Schacter,
The Fault of Eyewitness Accounts~Aeschilman 4
1989). Most notably, anxiety, stress, and beliefs will all deeply influence recollection. For
example, questions by lawyers and police investigators can lead to reconstructive memories.
Similarly to high suggestibility, upon questioning, one is asked to try to remember what
happened and relay it to the authorities (Arkowitz et al., 2009), but these memories can get
confused, as the individual may still be shock. This leads them to say whatever they need to in
order to get out of questioning. During the prosecution, when the authorities read back the
persons prior statements in court, reconstructed memories occur for the witness, further
confusing their recollection of events. Rape cases are also an example of where reconstructive
memory is caused. Oftentimes, individuals that have been legitimately raped may push the
memory out of their mind, especially under high pressure. Working alongside to the example of
higher suggestibility in children, anyone who has been raped will want to put their rapist in jail to
the detriment of accuracy. There may be holes in their memory, leading them to falsely accuse
anyone who somewhat resembles the individual who raped them. Unfortunately for the accused,
judges and jurors do not have the needed information to truly understand a case and possibly
understand that the defendant is being falsely accused. This false accusation may lead to jail time
and will be on a record. Moreover, memories can fail to be accurate as individuals beliefs come
into play (Bartlett, 1932). For example, a girl may agree to have sex but then later regret it.
Because she regrets it, she may feel the need to tell someone about it and subconsciously claim it
as rape. In other words, reconstructive memory can spawn out of a lie, leading your mind to
believe the lie to be the truth, allowing the girl to tell a believable, but false, account of what
occurred. The girls regret could have such a compelling effect on her memory that it alters her
view of what happened. As the individual feels strongly about the memory, the eyewitness
The Fault of Eyewitness Accounts~Aeschilman 5
testimony of a rape case then can proceed. This leads the male, who had consensual sex, to be
viewed by society as a rapist, even though that is not what happened. Unfortunately for the male
accused, there is no evidence of the girl agreeing to having sex, giving an advantage to the girl
claiming to be raped. In most of these situations, during the case, the accuser is under high
amounts of stress, trauma, and anxiety, leading to further blurriness in memory. These
individual into prison. The accuracy of testimonies are diminished due to the faulty recollection
Hindsight bias also has an affect on the accuracy of eyewitness accounts, especially
because these witnesses may be dedicated to seeing the defendant behind bars. Hindsight bias is
also known as the knew-it-all-along effect (Reese, 2012); this is because people tend to think
past events were more predictable after they have occurred, or 20/20 hindsight. Now that they
understand how the events unfolded, they believe that they were correct, or want to make
themselves be correct. Hindsight bias can create distortion in memories, making it difficult to
fully analyze and understand the situation and leaving the imagination to wander and create
scenarios that did not really occur. Thus, more false memories can be created. Oftentimes, cases
are opened for long periods of time. After a long period of time, the jury and judge might just
want to punish an individual and may subconsciously justify the mindset by thinking the
defendant probably committed another crime and deserves to be in prison. This leads many
judges and juries to proceed with the bias that the defendant is guilty (Tversky, 1999). It is hard
to avoid hindsight bias; people have an innate urge to see those who have done wrong in
(Tykocinski, 2005). Often, individuals will replay the scenario in their head, including the
testimony. These witnesses may say things such as they seemed to be normal or but they were
so nice, and they may find the criminal behavior impossible to believe. These types of witnesses
give testimonies overly in favor of the defendant. Likewise, there are witnesses who give an
exaggerated testimony against the defendant. These witnesses may be motivated by their fear for
safety. They fear that the accusation against the defendant is true, leading to the fear that a future
incident will involve themselves (Australian Financial Review, 2012). This is also why key
witnesses are often placed in witness protection to lessen the fear through protection. These
witness protection areas ensure that individuals will be safe and that no harm will come to them.
Furthermore, jurors are often kept away from media to ensure an unbiased--to an extent--opinion
for the case. If media is not kept away from jurors, they may begin to have an overconfident
viewpoint toward a case based on the medias opinions. Unfortunately many individuals, jurors
and witnesses alike, take the it is better to be safe than sorry route, when participating in court
cases.
However, pop culture has targeted the flaw in eyewitness accounts. In the 1957 movie, 12
Angry Men, twelve men were chosen as jurors on a murder trial case. These men then had a
discussion to determine a unanimous agreement on whether or not the defendant was guilty. At
first, eleven men all agreed that the defendant was guilty. Many were just annoyed that they were
called into jury duty and wanted to get it over with as soon as possible, as they had plans for
afterward. They didnt consider that the defendant might be innocent because they had a
The Fault of Eyewitness Accounts~Aeschilman 7
conflicting bias toward their circumstances and were preoccupied with better ideas for their time.
In spite of this, the only man who didnt believe that the defendant was guilty pled his case. He
told the room about discrepancies with the eyewitness accounts. He managed to sway a few more
of the jurors onto his side, moving the jury to a tie of six and six, meaning that the defendant
would not be found guilty. This movie shows that eyewitness accounts can be faulty, and the
court system can easily fail individuals (Ellsworth, 2003). This fictional scene is actually a
realistic interpretation of what occurs in juries on a murder cases. Twelve individuals are placed
into a room, and they must stay there until they make a decision. This leads to frustration,
confusion, conflict, and more emotions harmful to memory. While the jury doesnt have any ties
to the case, they may have resentment toward being called into jury duty. This can lead them to
make rash decisions, which they may even believe to be the truth (Loftus, 2011). This truth is not
really supported by evidence, as the evidence is provided by eyewitnesses who have faulty
memories.
Even outside of pop culture, real stories still make their way into the public eye, in
regards to the usage of eyewitness accounts. Recently in modern news, the 2008 case of State of
New Jersey v. Larry R Henderson forced the United States Supreme Court to revise their
eyewitness account criteria. This case involved a man, Henderson, who was the top suspect in a
murder case (Findlaw, 2017). In 2003, he was placed in prison. He did not believe it was fair to
be sentenced based on only eyewitness accounts. He claimed a problem with the court system
and insisted that he was wrongly accused. Henderson and his defense team quickly gathered
scientific evidence on human memory and the factors that could affect the reliability of the
testimonies of the witnesses (New Jersey Courts, 2012). This evidence changed the mind of
The Fault of Eyewitness Accounts~Aeschilman 8
Judge Geoffrey Gaulkin, who then agreed that witness reliability is limited (Pena, 2010). This
case changed the court system for the better, and was set to change in 2014 (Innocence Project,
2012). This supreme court case showed that many individuals in prison may have been wrongly
Faulty eyewitness accounts are a huge problem for the justice system. Just two years ago,
it is was estimated that about 35% of prosecutions target wrongly identified individuals based on
eyewitness accounts. That is a large percentage of individuals in prison. In modern day, the exact
statistic is hard to determine as someone could claim to be innocent, when indeed they
committed the crime. A better example of this statistic would be in Texas during 2015, when
28% of prisoners were exonerated due to DNA testing (Melber and Hauser, 2016). This 28%
consisted of wrongly accused individuals based on eyewitness accounts, leading many more to
question the reliability of eyewitness accounts. By this time, eyewitness accounts are already
closely examined, assuring more individuals that they have hope of not being wrongly convicted.
Sadly, many individuals on the jury do not understand the stress that is placed on witnesses and
how the stress affects their memory. If the witness were to make a mistake in wording or
identifying, the jury may make a decision based on that, leading to an innocent man being
convicted of a crime they did not commit (Azar, 2011). DNA evidence has luckily changed the
way criminal justice systems work, but eyewitness accounts still hold ground in the court system,
allowing anyone to make a claim against the prosecutor. Fortunately, eyewitness testimonies are
now closely examined to ensure validity for the accusation or identification of a crime (Azar,
2011). Presently, there is more of a movement against eyewitness accounts, unless they are
absolutely necessary.
The Fault of Eyewitness Accounts~Aeschilman 9
In short, eyewitness accounts are faulty due to the false memories that can be created due
to high suggestibility, reconstructive memory, and hindsight bias. As humans, we are not perfect,
and neither are our memories. Many individuals believe their memories work as video cameras
(Loftus, 2011), but this is inaccurate, as our memories can alter as time progresses, leading to a
potentially invalid piece of evidence in court. Eyewitness accounts should not stand in court;
presently they are losing credibility, thanks to innovative technology such as DNA testing. Many
individuals have suffered in the United States from the court system that we used to have, but
luckily some, such as Henderson, have changed the system for the better.
The Fault of Eyewitness Accounts~Aeschilman 10
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