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Witness Testimony Psychological, Investigative and Evidential Perspectives

by: Heaton-Armstrong, Anthony; Shepherd, Eric; Gudjonsson, Gisli; Wolchover, David

Witness Testimony Psychological, Investigative and Evidential Perspectives

by: Heaton-Armstrong, Anthony; Shepherd, Eric; Gudjonsson, Gisli; Wolchover, David

ISBN 13:
9780199278091
ISBN 10:
0199278091
Format: Paperback
Copyright: 12/07/2006
Publisher: Oxford University Press

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Summary

This book provides a comprehensive and easily accessible guide to the decision-making and actions of the complete spectrum of practitioner involvement in the criminal justice process, right from initial investigation through to court-room proceedings.

List of Editors and Contributors

xxxi

Editors' Curriculum Vitae

xxxiii

Table of Cases

xxxv

Table of Codes of Practice

xli

Table of Primary Legislation

xliii

Table of Secondary Legislation

xlv

Table of Treaties and Conventions

xlvii

Introduction

SECTION 1 PSYCHOLOGICAL PERSPECTIVES

Summary

1. General Review of the Psychology of Witness Testimony

A. Introduction

B. Perceiving events

(1) Event factors

(2) Witness factors

(3) Perceptual activity

C. Retaining Information in Memory

( 1) Post-event information

( 2) Enhancing memory

( 3) Compromise memories

( 4) Ousting of the true by the false

( 5) Central matters compared with peripheral details

( 6) Timing of new information

( 7) Non-verbal input

( 8) Post-event influence explained

( 9) Intrusion of the witness's own thoughts on the memory

(10) Labelling

(11) Guessing 8

(12) Freezing

D. Retrieving Information from Memory

(1) Retrieval environment

(2) Type of retrieval

(3) Question wording

(4) The questioner's status

(5) Confidence in recollection

(6) The 'knew-it-all-along' effect

E. Theoretical Issues

(1) Theories on representation in memory

(2) Coexistence versus alteration

F. Additional Factors Influencing the Eyewitness: Individual Differences

(1) General anxiety

(2) Gender

(3) Age

(4) Training

(5) Other factors

G. Judicial Knowledge of Psychological Factors Involved in Witness Testimony

H. Conclusion

2. Detecting Deception in Legal Contexts

A. Introduction

B. The Psychological Perspective: Theories About Cues to Deception

(1) Zuckerman, DePaulo, and Rosenthal's multi-factor model

(2) Buller and Burgoon's Interpersonal Deception Theory (IDT)

(3) DePaulo's self-presentational perspective

(4) Summary

(5) Reality Monitoring

(6) Orienting theory

C. Cues to Deceit

(1) Raising the stakes

D. The Investigative Perspective: Interview Protocols

( 1) Relevant-Irrelevant test

( 2) Control Question test

( 3) The Directed Lie test

( 4) Guilty Knowledge test

( 5) Statement Validity Assessment

( 6) Reality Monitoring

( 7) Non-verbal assessments

( 8) Interviewing to detect deception by looking at non-verbal cues

( 9) Countermeasures

(10) Non-intrusive, quick measures

E. The Evidential Perspective: The Use of Veracity Assessments in Legal Contexts

3. The Effect of Learning Disabilities on Witness Testimony

A. Introduction: Witnesses with Learning Disabilities

(1) Defining learning disabilities

(2) Learning disabilities and similar terminology

(3) Learning disabilities as a continuum

(4) The causes of learning disabilities

(5) The prevalence of learning disabilities

B. People with Learning Disabilities as Victims of Crime

(1) Physical and sexual abuse

(2) The vulnerability of people with learning disabilities

C. People with Learning Disabilities as Witnesses in the Criminal Justice System

(1) The limited involvement of people with learning disabilities

(2) Why do people with learning disabilities so rarely go to court?

D. Supporting Witnesses with Learning Disabilities

(1) The stringent rules for witnesses

(2) The demand for change

(3) The introduction of the 'special measures'

E. Witnesses with Learning Disabilities: Assessment and Support

(1) Carrying out a comprehensive assessment

(2) The need for pre-trial support

(3) Good practice in providing support for witnesses: an example

F. Conclusion

4. The Psychological Vulnerabilities of Witnesses and the Risk of False Accusations and False Confessions

A. Introduction

B. Components of Credibility

C. Suspects, Witnesses and Victims

D. Psychological Vulnerabilities

(1) Mental disorder

(2) Abnormal mental state

(3) Intellectual abilities

(4) Personality characteristics

E. Conclusion

5. Effects of Drugs on Witness Memory

A. Introduction

B. Types of Psychoactive Drug

(1) Prescribed drugs

(2) Self-administered drugs

C. What Types of Drug Influence Memory?

D. What Influences a Drug's Effects on Memory?

E. Drugs and Memories

F. Drugs and Episodic Memory

G. Drugs do not only Affect Memory

H. Assessing Evidence on Drug Use and Memory

6. Recovered Memory and False Memory

A. Introduction

B. Origins of a Scientific Controversy

C. The evidence Base

(1) Experimental evidence

(2) Naturalistic evidence

(3) Summary

D. Practical Considerations in Legal Settings

(1) Relevance of the scientific controversy

(2) When should concerns be raised about recovered memories?

(3) Characteristics of a good expert report

(4) What can the expert legitimately conclude?

7. Crime-related Amnesia

105

A. Introduction

B. Types of Crime-related Amnesia

(1) Prevalence

(2) Dissociative amnesia

(3) Organic amnesia

(4) Feigned amnesia

C. Instrumental versus Reactive Homicide

(1) The instrumental versus reactive dichotomy

(2) Associated features

D. How Offenders Describe their Amnesia

E. Dissociative versus Feigned Amnesia

(1) Do strong emotions produce amnesia?

(2) The role of alcohol

(3) The role of expectations

F. Organic versus Feigned Amnesia

(1) Head injury and post-traumatic amnesia

(2) Neurological conditions

G. Testing

(1) Symptom validity testing

(2) Self-report scales

(3) Other techniques

H. Concluding Remarks

SECTION 2 INVESTIGATIVE PERSPECTIVES

Summary

127

8. 'Have you told Management about this?': Bringing Witness Interviewing into the Twenty-first Century

131

A. Introduction

B. The disposition not to Disclose Too Much

(1) 'Pitch', powerful people and the 'less is best' strategy

(2) When 'less is best' and excessively controlling behaviour meet in the witness interview

C. Maximizing Spontaneous Disclosure and Comprehensively Capturing Detail

(1) The issue of control

(2) Creating a working relationship

(3) Information processing techniques integral to interviewing

(4) Developing conversation management in the police service

D. Why Directive Interviewing of Witnesses Remains the 'Norm'

(1) Directive interviewing reduces anxiety

(2) The assumption that observing procedure constitutes competent practice

(3) The disinclination to improve quality through reflection

(4) The disinclination to supervize performance

(5) The value attached to consistent and seamless accounts

(6) No time, no ownership

(7) Inappropriate messages from the judiciary and the CPS

E. Setting Officers Free to Conduct Quality Witness Interviews

(1) Hand-held tape recorders

(2) Digital recorders

(3) PC tablets

(4) Mobile phones

F. A summary and a Request

9. Investigative Interviewing with Children: Progress and Pitfalls

153

A. Children and the Law

B. The Reliability of Children as Witnesses

(1) Children's memory accuracy

(2) Suggestibility

(3) Deception

(4) The reliability of children as witnesses

C. Progress in Effective Interviewing Techniques

(1) The importance of planning

(2) Setting ground rules

(3) Asking the right questions

(4) The need for proper recording

(5) Taking the child's perspective into account

(6) Progress in effective interviewing techniques

D. Pitfalls, or when Interviews go Wrong

(1) Two famous cases

(2) Failing to keep an open mind

(3) Inappropriate assumptions and paraphrasing

(4) Use of repeated questions

(5) Inappropriate use of authority

(6) Pitfalls, or when interviews go wrong

E. Interview Guidelines

(1) The Memorandum of Good Practice

(2) But do interviewers follow the Guidance?

(3) Achieving Best Evidence in Criminal Proceedings

F. Conclusion

10. Obtaining, Recording and Admissibility of Out-of-Court Witness Statements

171

A. Introduction

B. Before the Criminal Justice Act 2003

(1) Emergence of the rule against hearsay

(2) Traditional rationale behind the rule against hearsay

(3) Witness statements exceptionally admissible in the absence of their maker

(4) Previous statements of witnesses who appear to give evidence

C. The Criminal Justice Act 2003

(1) Proving statements by unavailable or incapacitated witnesses

(2) Witnesses in court

(3) Factors to be considered in determining whether to allow hearsay and previous out-of-court statements by a witness

D. Weaknesses in the Process of Obtaining and Recording Out-of-Court Statement

(1) When was the statement made?

(2) Witness training or coaching

(3) Evidence of complaint

(4) Where and how accounts are given

(5) Assessing the 'difficulty' in challenging the statement of an absent witness

E. Concluding Remarks

11. Oral Confessions to Non-Investigator Witnesses

191

A. PACE: The Golden Age of Protective Investigation

B. The Approach of the Common Law to Confession Evidence Authenticity

(1) Confessions to officials and to private witnesses eventually equated

(2) Juridical suspicion of evidence alleging an oral confession

(3) Cases of confession to psychiatrists and probation officers

(4) Cautioning juries

C. Oral Confessions Alleged by Fellow Prisoners Contrasted with those Adduced by the Police

(1) Provisions under PACE for validating confessions made to police officers based on mistrust of the police

(2) Contrasting trust reposed in habitual criminals

D. Protecting the Accused against False Attestation by Co-inmates as to Confession

(1) Should resort be made to prison cell confessions as a matter of practice?

(2) Possible formal safeguards where resort is made to prison cell confessions

E. Formal Directions to be given to the Jury in Cases of Confessions to Prison Co-inmates: the Case of Michael John Stone

(1) The salient facts

(2) Stone's alleged cell confession

(3) The oddity of confessing immediately after going on segregation to avoid false allegations of confession

(4) Desirability of warning the jury that cell confessions are easy to concoct but difficult to disprove

(5) Other appropriate warnings

(6) A bleak conjecture

F. Concluding Observations

12. Interpreters and Translators in the Criminal Legal Process

211

A. Why Interpreters and Translators are Needed

(1) The increasingly multilingual nature of societies

(2) The existence of EU and domestic law and good practice requirements

(3) Risks of not engaging professional interpreters and translators

B. When Interpreters and Translators should be Engaged

(1) The degrees of second language fluency needed to be able to communicate accurately in speech or writing

(2) Which texts are to be translated

(3) Preserving the integrity of communication throughout the legal process

C. Which Interpreters and Translators should be Engaged

D. Hoy Interpreters and Translators should be Engaged

(1) Contracts/letters of agreement

(2) Briefing interpreters and translators

(3) Complaints and challenges

(4) Stressors

E. Interdisciplinary Good Practice-How to Work with Interpreters and Translators and Across Cultures

(1) Mechanics of the interpreting process

F. Conclusion

13. Witnesses who use British Sign Language

231

A. Introduction

B. Deaf People

(1) Issues for Deaf people

(2) Some definitions and clarifications

(3) Deaf people in the legal process

C. Use of Interpreters

D. Making a Statement

(1) Deaf views

(2) Understanding the statement

(3) Effects of restraint during custody

(4) Involving the solicitor

(5) The nature of the statement

E. Witness Testimony in Court

(1) Signing the testimony

(2) Establishing Deafness

(3) Significance of the case

(4) Legal terms in BSL

(5) Fitness to plead

F. Final Points

14. Investigative and Evidential Applications of Forensic Speech Science

247

A. Introduction

(1) General aim of the chapter

(2) Investigative vs evidential applications of forensic speech science

B. Investigative Application-Speaker Profiling

(1) Regional background

(2) Social and educational background

(3) Foreign language influence or ethnic minority characteristics

(4) Age

(5) Speech impediment and voice pathology

(6) Reading vs speaking spontaneously

(7) Other

(8) Further practical advice

(9) Example case

C. Evidential Applications

(1) Forensic speaker identification

(2) Questioned utterance analysis

(3) Further evidential applications

D. Summary

15. Identifying the Origins of Evidential Texts

263

A. Introduction

B. Some Recent History

C. Identifying the Origins of Witness Statements

(1) The nature of witness statements

(2) Identifying interviewer interference in witness statements

D. Interpreter Effects in Evidential Texts

(1) Interpreters in interviews

(2) Interpreters in court

E. Identifying National Origins of Interviewees

F. Identifying the Provenance of Other Evidential Texts

G. Some Limits of Forensic Linguistic Analysis

H. Conclusion

SECTION 3 EVIDENTIAL PERSPECTIVES

Summary

277

16. Forensic Facial Identification

281

A. The Role of Mistaken Identification in Wrongful Conviction

B. Introduction to Identification Procedures and Technologies

C. Investigative use of Eyewitness Identification

(1) Investigative and evidential use of eyewitness identification distinguished

(2) Investigative use generating a suspect

(3) When the identity of a suspect is unknown

D. Factors Involved in the Selection and Design of Formal Methods of Identification

(1) Estimator and system variables

(2) Sequential and simultaneous presentation compared

(3) Selecting foils by match to culprit description or by suspect resemblance

E. Methods of Formal Identification by Witness Selection

(1) Identity parades (live line-ups)

(2) Photospreads

(3) Video identification

F. Non-selection Modes of Identification

(1) Street identifications, showups and confrontations

(2) Dock identifications

G. The Relationship between Eyewitness Confidence and Accuracy

H. Identification by Viewing CCTV Footage

(1) Matching identities from CCTV

(2) Identification by police officers

(3) Facial comparison by experts

I. Biometric use of Facial Images

J. Conclusions and Recommendations

17. Improving Visual Identification Procedures under PACE Code D

309

A. Introduction

B. Methods of Eliciting First Descriptions

C. Perusing the Photographic Rogues' Gallery

(1) Hard albums and electronic compilations

(2) Recording the perusal

(3) Restricting the number of photographs perused or the exposure time to each

D. The Difficult Problem of 'Street' Identification

(1) The common scenarios: extrinsic factors of weakness in identifications

(2) Identification of potential suspects who have been stopped by the police

E. Video Identification Procedure

(1) Requirement for the selection of foils conforming to the suspect's 'general appearance'

(2) The rule against witness reminders

(3) Statements of confidence: a plea for the status quo

(4) Preventing reinforcement feedback by informing identification witnesses that they have picked out the suspect

(5) Preventing non-verbal cues during the identification process

(6) A flaw in the validation requirements for video identification

18. Assessing Contentious Eyewitness Evidence: A Judicial View

327

A. The Judge's Role as a Fact Finder

(1) A lowly but onerous and crucial duty

(2) The common law judge's fact-finding role compared with other assessors

B. Tackling the Assessment of Eyewitness Reliability

(1) The key questions

(2) Isolating common ground

(3) The judicial process of determining credibility

(4) Five tests of credibility

(5) Cross-examination as to credit on collateral issues

C. Assessing Reliability by Witness Demeanour

(1) Traditional emphasis on the importance of demeanour

(2) Latter-day tendency to distrust demeanour as an indicator of truthfulness and accuracy

(3) The limited value of demeanour, subject to three specific areas of doubt as to its utility

(4) Danger in relying on ambiguities of demeanour or intonation

(5) Consequences of justifying doubts as to the significance of demeanour

(6) Doubts: a cautionary tale

D. Assessing Reliability from Probability

E. Perceptions as to the Frequency of Deliberate Untruthfulness

F. Honest Witnesses: the Three Sources of Unreliability

(1) Omissions and errors of observation and memorization

(2) Loss of recollection

(3) Wishful thinking and self-exoneration

19. Judging Eyewitnesses, Confessions, Informants and Alibis: What is Wrong with Juries and Can they do Better?

345

A. Introduction

B. Eyewitness Identifications

(1) System and estimator variables

(2) Impact of eyewitness identifications on juries and others

(3) Mechanisms for improving jury performance

C. Police-Induced Confessions

(1) The primary source of error: coercive police interrogations

(2) The secondary source of error: where is the safety net?

(3) The assumption that innocent people do not confess

(4) The difficulty of distinguishing true and false confessions

(5) Interrogation as a corrupting, guilt-presumptive process

(6) The presence of credibility cues in false confessions

D. Informants, Snitches, and Other Cooperating Witnesses

(1) The cooperating witness problem

(2) Unknowns, and prospects for reform

E. The Alibis of Innocents

(1) People are poor alibi detectors

(2) People are sceptical of alibis

F. Closing Statement

20. Oral lestiniony from the Witness's Perspective-Psychological and Forensic Considerations

363

A. Introduction

B. Changing Witnesses' Experience of Giving Testimony

(1) Narrowing the 'justice gap'

(2) The Youth Justice and Criminal Evidence Act 1999

(3) Achieving 'best evidence'

C. The Journey of the Witness: Research and Practice

(1) Initial and subsequent treatment by the police

(2) Experience of criminal proceedings

D. The Findings of Research and Practice: a Summary

(1) The negative experience of being a witness

(2) What helps the witness

E. A Coordinated Infrastructure for Witness Support and Care

F. Concluding Remarks

21. Disclosure of Unused Material by Prosecution Authorities and Third Parties

381

A. Introduction

B. Focus of this Chapter

C. Principles

D. History

E. The New Disclosure Regime

(1) Implementation dates of the new disclosure law

(2) The Disclosure Protocol

F. Categories of Unused Material Relevant to the Themes and Contents of this Book

(1) Previous statements

(2) Statements to police investigators

(3) Statements made to non-police investigators

(4) Previous statements made to mental/medical health professionals

G. Health and Other Issues

(1) General

(2) Health records

(3) Psychopathological issues

H. Language Communication Issues

I. The Prosecution's Disclosure Obligations

(1) General

(2) Recording and retaining information

(3) Scheduling unused material, revelation to the prosecutor and disclosure to the defence

J. Defence Disclosure and Obtaining Prosecution Disclosure

(1) Defence case statements

(2) Applications for orders for further disclosure under section 8 of the CPIA

(3) Material held by third parties

K. The Use of Experts

L. Conclusion

22. The Admissibility of Expert Evidence

401

A. Introduction

B. Expert Evidence in the Context of the Rules of Evidence

(1) Relevance and admissibility

(2) Opinion evidence

(3) The admissibility of the opinion of an expert

C. Who is an Expert?

(1) The pragmatic approach of the English courts

(2) Traditional disciplines and other fields of expertise

(3) The increasing need for vigilance in vetting claims to expertise

(4) Requirement for expertise on the specific matters in issue

(5) The problem of establishing competence in non-regulated fields

(6) The trend towards accreditation and registration

D. Matters on which Experts may Testify

(1) Relevance, reliability and the test of admissibility

(2) Relevance and the 'common knowledge' rule

(3) The common knowledge rule in application

E. Ensuring the Reliability of Expert Evidence

(1) The English approach

(2) The approach of the United States Supreme Court: the 'general acceptance' test supplanted

(3) Pragmatism or incoherence? The influence of US decisions in England

(4) A reliability test for novel techniques?

F. Reform

(1) The obligation to adopt clear and rigorous rules of admissibility for expert evidence

(2) Practitioners' obligations

(3) Regulation of experts

(4) Judicial training

(5) Empirical research

23. Judicial Training

425

A. Introduction

B. Professional Judges

(1) Forensic experience

(2) Limitations on the value of professional and life experience

(3) Judicial training

C. Juries

(1) General

(2) Jury research

(3) How well do judges do?

(4) Communication techniques

(5) Remembering the evidence

(6) Tying the evidence to the issues that have to be determined

(7) An agenda for deliberations

(8) Advice to juries on how to determine factual issues

(9) Judicial training

D. Drawing the Threads Together

Editors' List of Recommended Further Reading

439

Index

441

Amazon no longer offers textbook rentals. We do!

Witness Testimony Psychological, Investigative and Evidential Perspectives

Witness Testimony Psychological, Investigative and Evidential Perspectives

9780199278091

0199278091

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

Amazon no longer offers textbook rentals. We do!

Witness Testimony Psychological, Investigative and Evidential Perspectives

Witness Testimony Psychological, Investigative and Evidential Perspectives

9780199278091

0199278091

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

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