The criminal justice system has for a long time relied on eyewitnesses, to establish the facts which surround the criminal events in any given case. Eyewitnesses may help the court to recall conversations, identify culprits, or to remember any other details. An eye witness who is confident and has no intention to lie, is a powerful tool of evidence for the jurors. Where an eyewitness is not contradicted by any other definitive proof, the account of the witness is accepted by the prosecutors, the police, juries and the judges.
However, the introduction of forensic DNA mode of testing, has recently shaken the faith which the legal system had previously placed on eye witnesses. When afforded the right circumstances, DNA testing can show and prove that, a person who had been convicted of a certain crime was not guilty, but innocent. Since 1992, the concept of DNA testing has been applied to analyze rulings stated earlier, relying on eye witnesses identification and proved that, most of the people who had been convicted on reliance of eyewitnesses evidence were in fact innocent.
Obtaining accurate information from children is very difficult, this is mainly because of the violations in the due process by unreliable and inaccurate hearsay. The interviewing techniques have been compromised and affects the reliability of testimony given by children. This paper will look into the serious questions about the reliability and accuracy of eyewitness testimony, and especially the contentious issue about the credibility of a minor’s testimony. Introduction
This paper will describe the empirical form of evidence, supporting the argument that, most of the problems facing the eyewitness evidence can be addressed by putting proper mechanisms in place to improve the way of collecting evidence and preserving it (Alinsworth, 2000). The paper will look at the interview procedure of the eyewitnesses, taking the child abuse case as the best example, and show the procedure of conducting lineups, and how any procedure can influence the resulting value of the eyewitness testimony.
This presents us to the system variables which are under the justice system control. According to Brewer, & Wilson (1995), many researchers have argued that, the variable system has been effective in solving the problem of collecting and preserving evidence. The importance of the variable system is that, eye witness mistakes can be reduced by realizing the traditional safeguard inadequacies against witness errors, such as the way of availing a counsel during lineups and the presentation of motions to limit suggestive procedures.
Dent & Flint (1992) posited that, though the variable system has helped in solving most of the problems in the process of collecting evidence, other factors touching the system are still present and attribute to witness errors. This portrays the importance of any other factor which may be non-system-controlled. The paper will therefore focus on practices and procedures, as well as research which has dealt with factors which commonly threaten the credibility and reliability of eyewitness evidence.
According to McGuire (2002), the number of sexual abuse incidents for children, have drastically increased in Australia causing a great concern, during the sexual malpractice, the only witness is the child who is the culprit. The other available evidence is the medical evidence which may not be accurate to identify the alleged perpetrator in some circumstances, and evidence from physical injury may not be present (O’Connor & Fairall, 1996). This leaves the jury with no other source to establish the evidence apart from the available witness who is the child.
Many scholars have argued that, children’s evidence is not credible and should not be admitted, while others argue that in certain circumstances where the right procedure is followed, the evidence may be admissible. In the adversarial proceeding, questions touching on the credibility and reliability of children’s evidence have been a contentious issue over a long period of time. This has lead to a debate touching on the limit and value of testimony given by children.
Hastie (1993) made observations to the effect that, the experts in the field observing the procedure of interviewing children are increasing overtime, and many journals are published on this area every now and then. Hastie (1993) stated that, researchers have given valid arguments to prove that, the eyewitnesses evidence cannot effectively be relied on, even in some situations where the witness did not have evil intentions to identify someone as the perpetrator of a crime.
Some scholars have argued that, the only evidence which can be relied on is the expert evidence, as the DNA testing has proved that most of the culprits convicted through the eyewitness identification were in fact innocent. Other factors questioning the incredibility of the witnesses are explained below. Weaknesses of Lineup Identification Ogloff (2002) explained that, this process involves the police placing the suspected culprit among people who are not suspects and asking the witness to identify the suspect among the people who are not suspects. The process is carried out by lining up people or using the U. S.
common practice of photograph lineups. Live lineup is comprised of the suspect plus four to five other people, while the photo lineup can have six or more photographs of people who are not suspects. Kemshall & Pritchard (2000) argued that, the lineup method is termed as ineffective due to factors which can influence the mind of the witness in the identification of the perpetrator. The first aspect is referred to as the meta-cognitive factor. Here, a suspect may have been so traumatized and scared during the occurrence of the criminal event, that they may not be in a good position to perfectly remember the appearance of the suspect.
This in turn may lead to the mistake of likening someone to the one who committed the crime. There are also witnesses who suffer from visual problems, which factor may affect the identification of the suspect. Stephenson (1992) stated that, the process in which the lineups are conducted are suggestive and this can lead to a witness who is not sure about the identity of the perpetrator, claiming that the person who resembles the one they encountered in the scene of crime, is the perpetrator.
The oriented approach of a multi componential correspondence, tries to assess on the memory of a witness, expert findings have been conducted assessing the accuracy of memory using experiments, experts apply the meta-cognition approach, plus the eyewitness memory to access the accuracy of the process. The neurological and neural science approaches have also been used to access the the accuracy of the witness memory. Most of the results have shown that, the eyewitness memory is most of the time inaccurate due the destruction of the mind during the criminal incident which may have caused shock and mental disturbance (O’Connor & Fairall, 1996).
Wrightsman, Nietzel, & Fortune (2002) expressed that, researchers have noted that, certain conditions attached to the interview process, have a critical effect of contaminating the reports given by witnesses, with the inclusion of children. Several factors have been blamed for contributing to the likelihood of eyewitnesses giving unreliable information about any personal events as will be considered below. Poor Methods of Conducting Interviews Kurke, & Scrivner (1995) posited that, the techniques applied in adducing of evidence are improper.
There are poor questioning methods, from the moment of requiring the eyewitness to give spontaneous disclosure using techniques which are non-leading, through moderately leading, menially leading, to the maximally techniques of leading witnesses. Bull (2001) explained that, if a witness is presented with post-event information that is inaccurate, or inaccurate explanations or interactions, this can modify the memory of any event that is being recalled. This especially affects small children who are vulnerable to accept the interpretation by someone else concerning an event which may be similar to the the original one.
Through numerous studies, it has been proved that, poor interviewing methods have had a negative impact on the credibility and reliability of eyewitnesses (Schuller, & Ogloff , 2001). The case of New Jersey Supreme Court v. Michael, was based on literature in social sciences and stated that, the techniques used by the state in adducing evidence from the child in question, were suggestive or coercive and were capable of distorting the recollection of the actual events that took place, therefore compromising the credibility and reliability of the testimony.
It has therefore been stated that, the justice system must ensure that, the techniques applied while interviewing the eyewitness are effective to avoid misleading the witness and compromising the credibility and reliability of the testimony. Repeated Questioning Ainsworth (2001) observed that, studies have shown situations where the witnesses are asked similar questions in the same proceedings. This affects their confidence and more often cause them to change their minds and give a different answer from the one they may have given before concerning the same event.
A person gets a conviction that, a question is repeated due to the fact that, the first answer they gave was wrong and this creates room for vulnerability as one tries to change the answer and look for another one which may sound more convincing. Children are the most vulnerable to this risk, Ogloff (2002) stated that, repeating questions while interviewing children is not advisable. The interviewers tend to listen to the first testimony given by the witnesses and form interpretations and opinions which they use in questioning the witnesses for a second time.
Studies have shown that, most of the suggestions which the witnesses give during the first time in interviews, were changed when they went through the same interview for a second time. Improper methods used to interview witnesses lead to contaminated evidence which cannot be relied on. Misleading or Suggestive Questioning According to Kerr, & Bray (1982), giving misleading questions during the interview session can have bad effects on the testimony given by the eye witness in that particular case.
Where a witness has had misleading information guiding them, this may lead to fabrication of information which may be completely different from the information required to guide the court in adducing evidence. Where information is applied in the right context, it may be incorporated in the true evidence of the witness such that, the evidence adduced will be compromised and distorted. These is the reasons as to why we end up with conviction of innocent people in most eyewitness testimonies while the guilty are acquitted. The Repeated misleading information which is given to the witnesses, destroy the evidence at the primary level.
In the case of children who have allegedly been sexually abused, giving them misguiding information totally destructs their evidence such that, at the end of the case, it is hard to tell what actually happened to them or who the perpetrator was (Liebling & Price, 2001) . Investigators who are involved in investigating the scene of crime, are trained not to touch any weapons, objects, or any features in the surrounding due to the fact that, such interference may spoil the evidence. Unfortunately, the same investigators do not take caution about the negative effects their poor interviewing methods may have on the testimony.
Emotional Expressions by the Interviewer Toch (1979) posited that, the testimony of an adult or of a minor can be influenced by the emotional tone of the interviewer. Witnesses have been destructed in the process of giving evidence by the emotional appearance of the accused such that, they end up fabricating and giving a different testimony due to the innocent conviction of the “crying” accused person. There is also the risk that, a testimony of abuse can be fabricated where the person who alleges to have been hurt in a criminal proceeding, presents an emotional tone.
Blackburn (1993) expressed that, this may cause the witnesses to be vulnerable, especially in children where they can fabricate events even where they cannot recall the occurrence of an incident, but still claim that a person was the perpetrator of crime. Effects of Peer Pressure According to McGurk, & Williams (1987) the peer pressure factor mostly affects young children, where an interviewer can lie to the minor that the friends have already testified to the position, and that the minor needs to stand by what the friends have said.
Wegener & Haisch (1989) observed that, in such circumstances, a minor may be tempted to lie when giving the testimony, so as not to disappoint the friends. The aim of the interviewer here is to make the child agree to the fact that, it is indeed a certain person who did the alleged act, and this may not be true. Witness Intimidation by Authoritative People Studies have shown that, the testimony of children is influenced by the presence of a mature adult because most of the children tend to rely on the opinion and guidance of the adult, as opposed to the opinion of their fellow children (Wrightsman, 2001).
An interviewer can therefore easily twist the evidence of a child, by misleading and convincing the child that, what they are stating is not the true position and the child is likely to buy the idea of the interviewer. Where the Interviewer is Biased on the Report of a Witness Blau (1994) observed that, some interviewers go to conduct the interviews with set minds that, the criminal act has already been conducted and their objective is to get the witness to admit that it is the alleged person who committed the act.
The interviewers have failed to consider the rivaling factors which may help to explain the character and behavior of a certain witness. Following one hypothesis is not good because when the witness gives a different hypothesis which may be true, the interviewer completely ignores it. Arguments in Support of Eyewitness and Children Testimony Kerr, & Bray (1982) posited that, the eyewitness testimony is the most accurate and reliable evidence in criminal matters, as the witness who came into contact with the perpetrator would be best placed to identify the person.
Other arguments put forward are that, all the other testimonies produced like the weapons, clothing and any other form of identification, function as related factors which may not be as accurate as the eyewitness who was present at the scene of crime. Gottffredson & Gottfredson (1988) emphasized about the testimony of a child being inevitable, especially in the sexual abuse incidences where no other testimony may be available apart from the child. Most sexual abuse cases occur where the perpetrator and the minor are the only people present.
The expert investigation of the semen has in some instances been defective in identifying the perpetrator and physical harm may not be present. Scholars have argued that, where a proper interviewing technique is applied, and where the child proves beyond any reasonable doubt and with confidence about the identity of the perpetrator, such evidence should be admitted by the jury as accurate and reliable. Discussion and Conclusion Both from the legal community and the psychological community, serious questions have been raised about the reliability and accuracy of eyewitness testimony and especially from children (Blackburn, 1993).
An improper conduction of the police lineup process which is suggestive in nature, has been identified and improper techniques have been applied while conducting interviews. These are the two major stages which can compromise the accuracy and reliability of the testimony obtained from a witness and especially from children. Evidence from a minor has oftenly been contaminated from repeatedly misguiding questions, this leave questions not answered, about what actually took place during the criminal act, especially where the minor has been sexually abused.
Videotaping has been recommended during children interviews for purposes of getting the correct testimony which would act as the true evidence in a child’s case. This helps in reviewing whether the interview methods applied were accurate or not, and protect the minor from the torture of suggestive, repeated and even coercive methods of interviews. Wrightsman (2001) stated that, the testimony of a child should be properly scrutinized due to the fact that, it is susceptible to various forms of contamination.
The legal machinery has not done much in protecting the minor from this susceptibility but rather, it disproves the resistance of a child in complying with the instructions of the interviewer. Authority figures such as the prosecutor, the police, counsel or parents may even influence the mind of the child unknowingly. With the above foregoing, the testimony of a child is most of the times distorted and there is need for the court to observe extreme measures before admitting evidence from children.
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