Following a major crime, the police often ask members of the public who saw something to come forward. These citizens could be asked to make a statement for use as evidence, or they could be asked to testify at trial.
But how reliable are eyewitnesses? Can they be counted on to clearly recall what they saw or heard? If an eyewitness testifies in your case, how would a criminal lawyer in Toronto defend you?
Here we discuss the main academic findings about eyewitness testimony and how a criminal lawyer in Toronto could call this testimony into question.
Academic Research about Eyewitness Testimony
You may be surprised to learn that many scholars have studied eyewitness testimony over the years, and that this area of research started over 100 years ago.
Elizabeth Loftus and her colleagues ushered in the modern era of this work. In one of her early studies, Loftus showed people a video of a car accident and asked them to estimate how fast the cars were going when they “smashed” into each other. Their estimates were much higher than people who were asked the same question with “collided,” “bumped,” “contacted,” or “hit” instead of smashed. One week later, people who were asked the “smashed” version of the question were more likely to say that they saw broken glass, although there was no broken glass in the video.
This study demonstrated that witnesses’ memories can be affected by the way a question is asked. Given that only one word was changed, you can imagine what could happen when a witness is questioned by police, who have broad license to determine how they phrase questions.
What We Know about Eyewitness Testimony
There are volumes of research on eyewitness testimony; this list is not comprehensive, but highlights some key findings:
Memory Errors
Research findings have indicated that:
- Eyewitness’s memory can be affected by information and prompts people get after the event 1,2
- Witnesses can confuse the actual events they saw with information they got from other sources, including other people’s recollections of the event and even general information and beliefs.3
- Memory is not static, nor is it a perfect recording of what happened, even in people who claim to have “photographic memory.” Memory is often a mental reconstruction of what happened based on trace memories, our assumptions about what must have happened, and other factors.4
Age of Witness
Young children5 and older people6 tend to be less accurate when asked to recall something that happened. Children can be misled by information someone else gives them, while older adults can be influenced by age-based recall deficits.
Presence of a Weapon
One of the most interesting research findings in the field of eyewitness testimony is that witnesses do not recall details of a crime as accurately when there is a weapon involved.7 Most criminal lawyers with a Toronto base have dealt with this problem.
Questioning Technique
There is a wealth of evidence showing that the way a question is asked can influence the answer.1,8 This applies to the wording used, the type of question (closed- vs open-ended), and the context. If a witness feels threatened or intimidated, their answers to questions can be affected.
Lineup Presentation
We have all seen TV shows that include a suspect lineup, where a witness is asked to identify the person they believe committed the crime. These lineups have been studied extensively,9 and the research has resulted in reforms to the way they are conducted.10 Some jurisdictions have switched to sequential lineups or to having the witness look at photographs.
Cross-Race Identification
In general, people are less accurate when they try to identify people of a different race than their own.10 This effect has been identified in numerous contexts including eyewitness testimony.
Many other factors can affect the accuracy of eyewitness identification, including lighting and weather conditions, the witness’s eyesight and hearing, and distracting elements at the scene.
The US Innocence Project contends that the majority of people who were convicted of crimes and later exonerated by DNA evidence were misidentified by eyewitnesses.11 Despite their fallibility, many cases rely on this type of evidence, and lawyers must be prepared to counter the testimony.
How Would a Criminal Lawyer in Toronto Handle Eyewitness Testimony?
Have you been charged with a crime and are concerned about how eyewitness testimony could affect your case? Here are some ways a lawyer can help:
Scrutinizing the Details of the Crime and the Crime Scene
Your criminal lawyer and their Toronto-based team will access the information about the crime and the crime scene to identify ways the witness could have made a mistake. They may find the weather, time of day, or the witness’s distance from you can call the witness’s testimony into question.
Examining Witness Statements
Not everything a witness says in their statements to police will come out in court. Your criminal lawyer and their Toronto team will carefully review these statements looking for inconsistencies they can exploit.
Questioning Police Procedure
The police can easily influence a witness; a skilled lawyer with Toronto experience will have had many experiences with this. Using what they know about police procedures, your lawyer will try to uncover any mistakes they made or potential misdirection by the police.
Finding Disconfirming Witnesses
As a defendant, you are also entitled to have witnesses. Your lawyer will attempt to locate witnesses who can offer evidence that exonerates you or can speak to the unreliability of the prosecution’s witness. The criminal lawyer for your Toronto case can also call on expert witnesses to testify on matters such as whether the witness could have identified you accurately given the conditions at the crime scene.
Questioning the Witness Directly
Armed with knowledge about the fallibility of witness testimony, the criminal lawyer for your Toronto case will test the witness’s memory and truthfulness by asking targeted questions about what they saw or heard and by challenging their certainty about what they saw.
About Zamani Law
If you have been charged with a crime that has eyewitnesses, you need a skilled criminal lawyer with a Toronto base and experience with the local police and prosecution. Above all, you need someone who understands the research on eyewitness testimony and how to use it in your defence.
The team at Zamani Law, headed by esteemed criminal lawyer Farid Zamani, is prepared to do the meticulous work of uncovering errors in police procedure and in the eyewitness recollection of events. Contact Zamini Law today for a free consultation.
References
- Elizabeth F Loftus & John C Palmer, “Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory” (1974) 13:5 J Verb Learn Verb Behav 585, online: https://doi.org/10.1016/S0022-5371(74)80011-3.
- Elizabeth F Loftus, David G Miller & Helen J Burns, “Semantic Integration of Verbal Information into a Visual Memory” (1978) 4:1 J Exp Psychol: Hum Learn Mem 19, online: https://doi.org/10.1037/0278-7393.4.1.19.
- DS Lindsay, “Memory Source Monitoring and Eyewitness Testimony” in DF Ross, JD Read & MP Toglia, eds, Adult Eyewitness Testimony: Current Trends and Developments (Cambridge: Cambridge University Press, 1994) 27.
- HL Roediger, “Reconstructive Memory” in Neil J Smelser & Paul B Baltes, eds, International Encyclopedia of the Social & Behavioral Sciences (Oxford: Elsevier, 2001).
- GS Goodman & RS Reed, “Age Differences in Eyewitness Testimony” (1986) 10 Law Hum Behav 317, online: https://doi.org/10.1007/BF01047344.
- E Pica & J Pozzulo, “Comparing Younger and Older Adult Eyewitnesses: Examining the Simultaneous, Elimination, and Wildcard Lineup Procedures” (2017) 25:1 Psychiatr Psychol Law 106, online: https://doi.org/10.1080/13218719.2017.1364614.
- NM Steblay, “A Meta-Analytic Review of the Weapon Focus Effect” (1992) 16 Law Hum Behav 413, online: https://doi.org/10.1007/BF02352267.
- Kathy Kellermann, “Persuasive Question Asking: How Question Wording Influences Answers” (2007), paper delivered at Annual Meeting of the State Bar Association of California, Anaheim, CA, online: SSRN https://ssrn.com/abstract=1691186.
- Daniel L Schacter et al, “Estimating the Reliability of Eyewitness Identifications from Police Lineups” (2015) Psychol & Cognitive Sci, online: https://doi.org/10.1073/pnas.1516814112.
- Canada, Public Prosecution Service of Canada, Identifying Suspects in Criminal Investigations, online: https://www.ppsc-sppc.gc.ca/eng/pub/is-ip/ch3.html#fnb57.
- Innocence Project, Eyewitness Misidentification (2023), online: https://innocenceproject.org/eyewitness-misidentification/.
