The Handbook of Eyewitness Psychology: Volume I

Memory for Events

Michael P. Toglia, J. Don Read, David F. Ross, R.C.L. Lindsay, Michael P. Toglia, J. Don Read, David F. Ross, R.C.L. Lindsay

• Publisher: Psychology Press
• Year: 2017
• ISBN:
  9781351543699
• Edition: 1
• Topic: Psychology
• Subtopic: History & Theory in Psychology
• Index: Psychology

The Handbook of Eyewitness Psychology presents a survey of research and legal opinions from international experts on the rapidly expanding scientific literature addressing the accuracy and limitations of eyewitnesses as a source of evidence for the courts. For the first time, extensive reviews of factors influencing witnesses of all ages-children, adults, and the elderly-are compiled in a single pair of volumes. The disparate research currently being conducted in eyewitness memory in psychology, criminal justice, and legal studies is coherently presented in this work.Controversial topics such as the use of hypnosis, false and recovered memories, the impact of stress, and the accuracy of psychologically impaired witnesses are expertly examined. Leading eyewitness researchers also discuss the subjects of conversational memory, alibi evidence, witness credibility, facial memory, earwitness testimony, lineup theory, and expert testimony. The impact of witness testimony in court is considered, and each volume concludes with a legal commentary chapter. The Handbook of Eyewitness Psychology is an invaluable aid to researchers, legal scholars, and practicing lawyers who need access to the most recent research in the field, accompanied by the interpretations and commentary of many of the world's leading authorities on these topics.

I

FORENSIC ADULT MEMORY OF WITNESSES AND SUSPECTS

1

Memory for Conversation: The Orphan Child of Witness Memory Researchers

Deborah Davis

University of Nevada, Reno

Richard D. Friedman

University of Michigan Law School

The months of late 2003 and early 2004 were filled with accounts of the notorious Martha Stewart insider trading scandal and trial. Hard evidence against Ms. Stewart consisted primarily of the recorded sale of her Imclone stock, and phone records documenting relevant calls to and from Ms. Stewart. Remaining evidence consisted almost exclusively of reports of conversations between Ms. Stewart and her stockbrokers, friends, and aides. Although Ms. Stewart and her brokers described memories of their own conversations, others reported on what they overheard of the conversations, as well as their memories of Ms. Stewart’s later comments on them. In the end, Martha Stewart was indicted and convicted of a crime—obstructing justice by lying to investigators—largely through others’ reports of remembered conversations.

Martha Stewart’s trial may appear to be unusual, if not unique, in its focus on conversation. But nothing could be farther from the truth. Indeed, it is rare that a case—whether civil or criminal—fails to involve some testimony reporting specific individual statements or the tone or contents of specific conversations. Having spent almost 20 years as a jury consultant and expert witness, I (Davis) have been struck by the pervasive presence of testimony regarding conversations and the pervasive absence of expert testimony addressing the varied memory issues inherent in such reports. Although conversational participants and witnesses sometimes choose to lie, their memories are perhaps more commonly subject to the same honest failures and distortions that plague memories for specific persons, locations, objects, and events. It is primarily such honest failures of memory for conversation that we address here, in the hope that our review of relevant research and common areas of testimony will serve as a “call to arms” and road map for future researchers to venture into this underexplored area of witness memory research.

We begin by discussing the various ways in which memory for conversation may be relevant to litigation. Since relevance is not sufficient to guarantee admissibility, we then turn to Professor Friedman’s review of the rules of evidence governing admissibility of testimony involving statements or conversations. Finally, the bulk of this chapter reviews relevant memory research, focusing on issues relatively unique to memory for conversation and pointing to gaps in existing knowledge.

CONVERSATION AND LITIGATION

Relevant Features of Oral Communications

Before describing various purposes for which testimony regarding oral communication may be introduced, it should be noted that many features of verbal interactions can be relevant. Sometimes the only issue is what was said, as is often the case when the conversation involved only two persons, and the time and context are clearly established. But often the issues are far more complex. Witnesses to group interactions may be asked to recall not only what was said, but who said it, and to whom. A particular utterance may have more or less probative value, depending on such contextual issues as the personal histories of the maker of the statement and of those who hear it, what else was occurring concurrently, when the conversation took place, who else might have witnessed it, and which of many conversations in which a particular exchange took place. A suspect might give false testimony concerning a crucial conversation, forgetting that others were there who could impeach his claims. Conversely, that same suspect might falsely remember that others had witnessed a conversation and could verify his testimony, only to be impeached when others denied having witnessed the crucial conversation. A statement might be grounds for termination if made at work and in a particular role, but irrelevant if overheard at the mall. Similarly, accurate memory of which of many similar professional conversations conveyed relevant warnings or advice can be crucial to litigation of malpractice claims.

Witnesses may be asked to report subjective impressions of the attitudes, demeanor, emotions, truthfulness, or apparent intent of the participants as context for interpretation of specific statements. Reports of what is not said are sometimes crucial—such as patient claims that a doctor failed to inform them of crucial facts or risks. Furthermore, the sequence of communications may be significant. Interviewers and police interrogators are increasingly asked to recall who first introduced the possibility of sexually abusive behaviors, or particular references to specific evidence into the conversation; and suspects are asked to recall statements that might have offered incentives or threats to encourage confession. A statement might reflect “guilty knowledge” or “breach of confidentiality,” if it occurred prior to widespread awareness of the statement, but not if after.

Finally, memory that a conversation did not actually take place can be crucial. This very form of failure of memory for conversation plays an integral role in a common crime against the elderly known as the “Where’s the check?” scam (Schacter, 2001). Essentially, perpetrators convince elderly targets that they had agreed in some way to give the perpetrator a check, whereas in reality the conversation never took place. Those lacking confidence in their memories are susceptible to accepting the perpetrator’s claims and often send the check.

Legal Relevance of Oral Communications

Specific statements and the many relevant contextual features just described may be offered as evidence pertinent to a wide variety of litigated issues. Perhaps most obviously, a prior statement may be offered as proof of the matter it asserts. That is, the statement may report some event or condition of significance to the litigation and then be presented to the trier of fact for the purpose of proving that the event or condition occurred just as the statement reported. For example, if Wilma testifies that Dottie said to her, “I was at the corner of State and Liberty last week when a blue car came roaring right through the red light,” Wilma’s testimony is relevant to prove that events occurred just as Wilma says Dottie described them—that is, that the blue car did indeed come roaring through the red light. Similarly, in a criminal case, the prosecution might wish to present testimony by a police officer that witness Whitney told him that “Donald stabbed Victor,” for the purpose of showing that Donald did indeed stab Victor. Though the evidence is unquestionably relevant in these cases, it may not be admissible. As discussed in the next section, such use of the evidence raises a problem under the rule against hearsay, and in the criminal case there is also a constitutional problem (posed, in our example, by the inability of the defendant [Donald] to cross-examine his accuser [Whitney], who was not present in trial).

Parties to litigation may also offer proof of an oral communication for some purpose other than to prove that a matter asserted by the communication is true. Many contracts are made orally, for example, and a witness may therefore testify that she observed an oral offer, acceptance, or both. Fraud consists of a false representation (which can be oral) that is intended to and does cause another person to rely on it, to that person’s detriment. Or a criminal conspiracy may be consummated largely through oral communications. Kingpin’s order to Underling, “Deliver two bags to Footman,” may help advance their conspiracy to distribute drugs.

Sometimes a statement is important for what it reveals about the speaker’s state of mind. For example, if Testator says, “Grubber has never been loyal to me,” the statement might strengthen a contention that Testator did not intend to make a substantial bequest to Grubber. A statement may also be important to show what information the recipient received. If Landlord received oral notice of a dangerous condition before an accident, such notice might support the conclusion that he was negligent in not correcting the condition. If a phone call gave him timely notice of Tenant’s intention to quit the lease, it might end Tenant’s obligation. If Donald struck Victor, his contention that he acted in self-defense might be strengthened by evidence that before the incident someone told him that Victor was a violent man. Often, proof that a witness previously spoke inconsistently with her current testimony is introduced to impeach the witness’s credibility. For example, if, some time before the charges were brought against pop singer Michael Jackson, the mother of his accuser had called him an angel, her statement might have strengthened Jackson’s defense. In contrast, if her prior statements had been consistent with her current accusations, they may have helped dispel the contention that a later-arising motive or interest had led the witness to distort her testimony.

On the Admissibility of Testimony Regarding Statements and Conversation

The preceding examples represent only a few of the many and varied ways in which reports of statements or conversations can be relevant to litigated issues. But relevance does not guarantee admissibility. Normally, the possibility that a witness recounting a prior oral communication may be testifying inaccurately will not cause the evidence to be excluded. But as we will see, the rule against hearsay or, in a criminal case, the accused’s right to confront the witnesses against him may nevertheless render the evidence inadmissible.

The Rule against Hearsay. The rule against hearsay might bar admission of, for example, Wilma’s testimony that Dottie told her the blue car roared through the red light. The hearsay problem is not that Wilma may be testifying inaccurately. The adjudicative system can address that possibility in the same ways that it would for other events—by allowing cross-examination of Wilma and rebuttal of her testimony. Rather, the hearsay problem arises because Dottie, the out-of-court declarant (the maker of the statement), is not testifying in court, and her statement is offered to prove that it is true. Perhaps Dottie misperceived, misremembered, lied, or spoke inarticulately about what happened. Because the opponent lacks the opportunity to cross-examine Dottie, his ability to test the truth of Dottie’s statement would be compromised. Indeed, even if there were no substantial doubt that Dottie made the statement—if, say, the evidence were a videotape of Dottie making the statement—the hearsay issue would remain the same.

Many of the illustrations we gave earlier stand in contrast to that of Wilma and Dottie, because in those cases evidence of the out-of-court utterance is offered for some reason other than to prove the truth of a matter that it asserts. In each of these other cases, the fact that the utterance was made is material to the case even if it was not an accurate report of some event or condition. Indeed, in some cases—such as Kingpin’s order to Underling to sell drugs—the utterance makes no assertion and hence has no truth value at all. And in the case of an allegedly fraudulent statement, the proponent of the evidence is affirmatively contending that the statement is not true. In other cases, evidence of the statement may have probative value, whether or not the statement was accurate. For example, even if Victor was not violent, the fact that someone told Donald that Victor was violent might support Donald’s contention of self-defense.

In each of these cases, then, the making of the utterance is an event of significance to the case without reliance on the accuracy of the out-of-court speaker. This oral event may be proved, as in the case of any other material event, by the testimony of a witness who observed it, and whose testimony is subject to cross-examination. That witness may be the maker of the utterance, its intended audience, or a bystander to the event—whether known or unknown to the others. Of course, the witness may have failed to perceive or remember the utterance accurately, or her testimony may be intentionally deceptive or unintentionally inarticulate. But as for all of these possibilities, the law takes the attitude that the ordinary means of testing a witness’s accuracy, principally cross-examination, are sufficient. The testimony is treated the same as if, instead of reporting utterances, it described an automobile accident, a fight, or a black eye.

Now suppose that Wilma does not testify to anything Dottie said, and that she does not remember what happened at the accident—but that she is prepared to testify that she herself said the blue car ran through the light. Significantly, if that testimony is offered to prove the truth of what she asserted, it is still hearsay, notwithstanding that it is the witness’s own statement. This principle is mystifying to many, and it has been substantially qualified in recent decades (see, e.g., Federal Rule of Evidence 801 (d) (1)). But there is more merit to it than is often recognized. Because the prior statement includes information that Wilma does not assert in direct testimony, the driver of the blue car is impaired in cross-examination. Cross-examining a witness about a statement to which the witness does not adhere is like pushing on a string (Friedman, 1996).

In short, the law puts great stock in the opportunity to cross-examine a person to test the accuracy of that person’s recollection. Without that opportunity, when testimony regarding recalled statements is offered to prove the truth of what they assert, then the testimony is presumptively inadmissible (Federal Rule of Evidence 802), though, in some circumstances, it may be determined admissible in the end. If the witness can be cross-examined, then the possibility of memory failure and inaccuracy will not render the statement inadmissible.

To underline this point, consider this hypothetical. A prosecutor is trying to prove that Bully attempted to fix prices at a meeting with competitors. The case does not come to trial until eight years have passed since the meeting. The prosecutor relies principally on two pieces of evidence. One is a memo written the day after the meeting by Competitor One (C1), who died of natural causes three weeks later, saying: “Yesterday’s meeting was so extraordinary I want to memorialize it while it is still fresh in my mind. Bully told us that if we raised our prices he would meet them, and that if we didn’t he would put us out of business.” The other is trial testimony by Competitor Two (C2), to the same effect as the second sentence in C1’s statement. Clearly C1’s memo poses less of a memory problem than does C2’s testimony eight years after the fact. Yet, C2’s testimony would clearly be admissible. Although C2 purports to be speaking from personal memory, she is in court and available for cross-examination, whereas the author of the memo presumably would not be. Offered to prove the truth of what it asserts, the memo is hearsay. If not within an exemption to the rule against hearsay, it would be inadmissible.

Exemptions. Even if a statement fits within the basic definition of hearsay, it may yet be that the rule does not require exclusion. There are numerous exemptions to the rule against hearsay. Some consist of rules removing certain categories of evidence (such as certain prior statements made by a person who appears as a witness at trial) from the definition of hearsay. Others simply take the form of exceptions to the presumptive rule excluding hearsay.

The most important exemption is the one for party admissions. Statements made by, or attributable to, a party and later offered as evidence against him are not excluded: Anything you say may be used against you. The rule is extended to statements made by an agent of the party, acting within the scope of the agency, and to statements of a conspirator of the party, made during the course of and in furthera...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• About the Editors
• Part I Forensic Adult Memory of Witnesses and Suspects
• Part II Potential Sources of Distorted Eyewitness Statements and Postdictors of Statement Accuracy
• Part III Lifespan Eyewitness Issues: Children
• Part IV Lifespan Eyewitness Issues: Older Adults
• Part V Conclusion
• Author Index
• Subject Index