You are on page 1of 12


The Fault of Eyewitness Accounts

Serena Aeschilman

CJ 1010 Spring Semester 2017

Instructor Keith Bronson

April 18, 2017

The Fault of Eyewitness Accounts~Aeschilman 2

The Fault of Eyewitness Accounts

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,

reconstructive memory, and hindsight bias.

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.

Reconstructive memory also affects the value of eyewitness accounts. Reconstructive

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

reconstructive memories greatly impact evidence in court, possibly putting an innocent

individual into prison. The accuracy of testimonies are diminished due to the faulty recollection

human beings tend to have.

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

pain--leading witnesses to attempt to avoid a disappointing outcome for the defendant

The Fault of Eyewitness Accounts~Aeschilman 6

(Tykocinski, 2005). Often, individuals will replay the scenario in their head, including the

memorys distortions, to create overconfidence when giving their testimony.

Overconfidence, or even arrogance, is typical in witnesses, especially when giving their

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


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


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

accused, leading to further investigation and the exonerations.

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


1. Arkowitz, Hal, and Scott O. Lilienfeld. "Why Science Tells Us Not to Rely on

000000Eyewitness Accounts." Scientific American. Scientific American, 05 Dec. 2009.

000000Web. 18 Apr. 2017.

2. Azar, Beth. "The Limits of Eyewitness Testimony." Monitor on Psychology. American

000000Psychological Association, Dec. 2011. Web. 18 Apr. 2017.

3. Barbara, Tversky. "The Problem With Eyewitness Testimony." Stanford Journal of legal

000000Studies. N.p., 5 Apr. 1999. Web. 18 Apr. 2017.

4. Bartlett, F.C. (1932). Remembering: A Study in Experimental and Social Psychology.

000000Cambridge, England: Cambridge University Press. 213.

5. Beil, Laura. "The Certainty of Memory Has Its Day in Court." The New York Times. The

000000New York Times, 28 Nov. 2011. Web. 18 Apr. 2017.

6. Bruck, Maggie and Stephen J Ceci. Annu. Rev. Psychol. 1999. 50:41939 Copyright

0000001999 by Annual Reviews

7. "Code of Hammurabi." Encyclopdia Britannica. Encyclopdia Britannica, inc., n.d.

000000Web. 18 Apr. 2017.

8. Ellsworth, Phoebe C. (2003). "One Inspiring Jury [Review of 'Twelve Angry Men']".

000000Michigan Law Review. 101 (6): 13871407. JSTOR 3595316. In depth analysis

000000compared with research on actual jury behaviour.

9. "FindLaw's Superior Court of New Jersey, Appellate Division case and opinions."

000000Findlaw. N.p., n.d. Web. 18 Apr. 2017.

The Fault of Eyewitness Accounts~Aeschilman 11

10. Kellogg, Sarah. "Washington Lawyer." A Flawed Record: The Fragility of Eyewitness

000000Memory. N.p., Nov. 2014. Web. 18 Apr. 2017.

11. "Lifelong confidence rewarded in bigger pay packets". The Australian Financial Review.

00000028 November 2012.

12. Loftus, Elizabeth F. "The New York Times Company." The New York Times. The New

000000York Times, 1 Sept. 2011. Web. 18 Apr. 2017.

13. Melber, Ari, and Marti Hause. "Jailed but Innocent: Record Number of People

000000Exonerated in 2015." NBCUniversal News Group, 03 Feb. 2016.

000000Web. 18 Apr. 2017.

14. Neimark, Jill (1996). "The diva of disclosure, memory researcher Elizabeth Loftus".

000000Psychology Today. 29 (1): 4853. Retrieved 2012-06-12.

15. "New Jersey Courts." Supreme Court Releases Eyewitness Identification Criteria for

000000Criminal Cases. N.p., 19 July 2012. Web. 18 Apr. 2017.

16. "New Jersey Supreme Court Issues New Jury Instructions That Will Greatly Improve the

000000Way Courts Handle Identification Evidence." Innocence Project. N.p., 18 July

0000002012. Web. 18 Apr. 2017.

17. Prez-pea, Richard. "Use of Eyewitnesses in New Jersey Courts Needs Change,

000000Ex-Judge Says." The New York Times. The New York Times, 21 June 2010. Web.

00000018 Apr. 2017.

18. Robinson-Riegler, Bridget (2012). Cognitive Psychology: Applying the Science of the

000000Mind, 3rd Edition. Boston, MA: Pearson Education, Inc. pp. 305322. ISBN

The Fault of Eyewitness Accounts~Aeschilman 12

19. Roese, N. J.; Vohs, K. D. (2012). "Hindsight bias". Perspectives on Psychological

000000Science. 7: 411426. doi:10.1177/1745691612454303.

20. Schacter DL. (1989). Memory. In Foundations of Cognitive Science, ed. MI Posner, pp.

000000683725. Cambridge, MA: MIT Press

21. Thompson, Sandra Guerra. "The New York Times Company." The New York Times. The

000000New York Times, 1 Sept. 2011. Web. 18 Apr. 2017.

22. Tykocinski, O. E.; Steinberg, N. (2005). "Coping with disappointing outcomes:

000000Retroactive pessimism and motivated inhibition of counterfactuals". Journal of

000000Experimental Social Psychology. 41: 551558. doi:10.1016/j.jesp.2004.12.001.

23. Wayne Weiten (2010). Psychology: Themes and Variations: Themes and Variations.

000000Cengage Learning. p. 338. ISBN 978-0-495-60197-5.