Academic journal article North American Journal of Psychology

Eyewitness Testimony in Civil Litigation: Retention, Suggestion, and Misinformation in Product Identification

Academic journal article North American Journal of Psychology

Eyewitness Testimony in Civil Litigation: Retention, Suggestion, and Misinformation in Product Identification

Article excerpt

Although expert testimony regarding eyewitness memory is now common in criminal trials, eyewitness testimony is also critical in civil litigation. This is particularly true in product liability cases involving alleged exposure to toxic substances like asbestos. Witnesses in these cases must recall specific brands of products that may have been used decades earlier. The present experiments investigated eyewitness memory for brand names of various kitchen products seen in a cooking show. Although memory was reasonably accurate at brief delays, within a week recognition rates for the brand names dropped to scarcely above chance; nearly half of these delayed selections were of the most familiar (but unseen) brands. Subtle and inaccurate post-event suggestions produced robust false alarm rates--nearly 70% of responses when the most popular brands were suggested. Additionally, confidence in the accuracy of responses and actual accuracy was inversely related following the introduction of misinformation.

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During a recent asbestos liability trial (Hampel, 2005), the 55-year-old daughter of a mesothelioma victim testified that she remembered the brand of joint compound her father had used during a distant project, and was able to describe its container confidently, and in some detail. When a defense attorney asked her if she recalled the type of paint her father had used on the same project, she replied with an incredulous "No," and then added, "It was 35 years ago." That the capability to recall a brand of paint from 35 years ago should not differ from the capability to recall a brand of joint compound used 35 years ago seems to have escaped this witness--a notion that may often be unappreciated by jury members as well. Here we intend to explore some of the factors influencing the reliability of eyewitness memory for product information.

An increasing awareness of memory's reconstructive nature has prompted a thorough reevaluation of the usefulness of eyewitness memory testimony in the criminal courtroom (Wells & Loftus, 2003). The Department of Justice has created a thorough series of guidelines for the handling of eyewitness evidence in criminal cases (see U. S. Department of Justice, 1999), and memory experts are commonly called upon to make clear to jurors in such cases that "memory is not a video tape." April 23, 2007 marked the 200th criminal conviction exonerated by DNA evidence in the United States of America. According to www.innocenceproject.org, over 75% of the 200 criminal cases shown to be wrongful convictions in the United States involved faulty eyewitness testimony. Collectively, these 200 people spent a total of 2,475 years in prison. Only three years ago, Loftus (2004) provided an interesting summary of this growing problem and how it happened on the heels of the 100th DNA exoneration.

One of the most common paradigms used to study eyewitness memory involves the introduction of false information to a witness after an event happens. Frequently, this post-event misinformation becomes integrated into the witness' memory of the event, a phenomenon known as the "misinformation effect" (Loftus, Donders, Hoffman, & Schooler, 1989). For example, an eyewitness may view a traffic scene involving a yield sign. Later, if an investigator asks a question about a stop sign, the witness may integrate this assertion into her or his memories (Loftus, Miller, & Burns, 1978). Loftus et al. (1989) contend that misinformation effects result from the outright eradication of the previous memory trace by the new suggestion, while others (see Chandler, Gargano, & Holt, 2001) argue that both the suggestion and the original event coexist in memory, but are confused at the time of retrieval. The resulting inaccurate recollections are regarded as source confusion errors. Regardless of their cause, misinformation effects are robust and highly replicable, and have cemented the notion that eyewitness memory is highly malleable. …

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