Witness Memory and Testimony Applied to Vulnerable Witnesses

This essay provides insights for understanding the psychological consideration concerning witness memory and testimony relevant to child witness alongside exploring the techniques available for evaluating witness statements. It explores psychological issues emphasising the child’s memory and suggestibility on the witness’s investigative interviews and the child’s performance as a witness. The statement validity analysis (SVA) is adopted to evaluate the child witness memory’s validity. The method emphasises psychological metrics such as cognitive and interferential questioning alongside semi-structured interviews. The paper concludes by five-point recommendations of potential reforms to the justice systems to enhance child witness statements’ credibility.

1.0. Witness Memory and Testimony

Issues become intricate when the witness is a child, as in this study. The attorneys and judges wonder how the child will provide correct eyewitness testimony, which is accurate and acceptable. However, the court can use psychological research to provide insights into children’s memory and suggestibility and witnesses’ performance (Poole, Brubacher, and Dickinson, 11). Much of the current psychological study emphasizes fundamental issues: (1) the child’s memory and suggestibility relating to investigative interviews for the child witness; (2) the child’s performance as a witness.

1.1. Memory and Suggestibility during Investigative Interview

The child’s ability as a witness to provide accurate detail of the event during an investigative interview and testimony relies on the capability to recall and communicate memories. The memory, on the one hand, relates to suggestibility. Therefore, the child’s memory and suggestibility are key psychological considerations in a legal system.

1.1.1. Child Witness Memory Ability

Extensive psychological research is available on children’s memory. Studies suggest that children tend to have a good memory, and as adults, their memory is not infallible. Contemporary studies indicate that children provide more reliable and accurate witness statements than initially supposed, though not without precincts requiring considerations. Researchers have proposed various cognitive development facets that impact the child witness credibility and accuracy (Poole, Brubacher, and Dickinson, 22).

  1. Memory Development When Witnessing An Incident

The investigation must account for the child witness memory development during the inquiry process. Even though the child’s ability to create memories is present right from birth, children’s long-term real-life memories can report range from three years of age. However, once fully established, children’s memories can be reliable and accurate in witness identification as adults. In this case, the eyewitnesses (6–7 years old at the time), and the Boy X can effectively create a memory from past events and can be interrogated provide that they are sound mental health. However, for effectiveness in providing accurate and reliable information, the children’s ability to encode an incident in memory is critical. Effective encoding is subjective to prior information and attention, while memory preservation may be influenced by script knowledge, memory strength, and storage capacity (Poole, Brubacher, and Dickinson, 23).

  • Memory Development In Reporting An Incident

Having witnessed an incident or event such as a crime, the child witness’s following role is to report the facts as witnessed. Accuracy of reporting in children depends on their memory retrieval capability and communication or linguistic skills. When asked to reconstruct or retrieve a memory, children less than seven years can organise the information into a descriptive format depending on their age. There must be assistance in the form of questioning to effectively give a detailed account of the event (Poole, Brubacher, and Dickinson, 23). However, the older children can provide an articulate and structured picture of the experience while responding to less complicated prompts such as “What happened?” Therefore, the examiners should ask leading questions to younger child witnesses, providing the narrative structure necessary to generate a coherent account of the event (Poole, Brubacher, and Dickinson, 25).

            However, researchers have consistently argued that free recall or least directive questions produce the most accurate information. They also generate less information, generally from children. Experts have developed interview strategies designed to provide cues and additional structure to child witnesses to maximise event recall accuracy and minimise the false recall (Brown and Lamb, 250). Such approaches include semi-structured interview and cognitive interview protocols discussed in the subsequent sections of this paper. The strategies seem to aid child witness effort to recreate events from memory.

  • Linguistic and Communication Ability

The assessor must cross-examine the child witness to ensure that they can communicate effectively. A child witness who cannot converse effectively may lack dependability and credibility, resulting perhaps in victimisation. It remains evident for most adults who never told of abuse during their childhood that the child’s ability to disclose an assault directed to them or witness against the abuser is not easy. However, when abuse is suspected, the various interview techniques discussed in this paper can help the child disclose such information (Brown and Lamb, 253).

1.1.2. Suggestibility

Suggestibility implies one’s ability to act or accept suggestions from others. The child may fill gaps in particular memories with others’ false information when recalling an event. The witness statement’s legitimacy often comes to question when the recall is attributed to a child due to their susceptibility to suggestibility. In the early 19th century, European writers criticised the child’s credibility as a witness based on suggestibility aspect.  In 1911, Varendonck, Belgium psychologist also asked: “When are we going to give up, in all civilised nations, listening to children in courts of law?” However, despite the criticism, the child witness has received an occasional endorsement for many reasons. Some scholars have argued that suggestibility in children reduces significantly, and by the time they reach the 10, children tend to be no longer suggestible and tend to be even more reliable than adults in providing witness accounts. However, to reduce the chances of suggestibility, the assessors can cue, and props can help the youngsters provide complete information.

2.0. Evaluating Credibility of Witness Statements

As eyewitness remains one single most effective conjecturer of the case outcomes, it binds upon the criminal systems to establish a reliable and valid approach to assess the witness credibility. The point becomes salient, particularly considering both experts and laypersons’ relatively low ability to detect deception. Researchers have consistently affirmed that people fail to discriminate truthful statements from untruthful statements accurately. Many professionals have confirmed the assertion, such as judges, police officers, psychiatric, university law scholars, and many urgent from law enforcement agencies (Dando, Coral J., et al. 91). Hypotheses have been formulated to explain the inability of humans in some instances to detect deceit.

The first hypothesis suggests that prevaricators are often keen to note the portion of their untrue statement; therefore, they easily monitor and obstruct noticeable behavioural cues. The second reason for the failure to detect deceit is due to truthful judging bias. People are often quick to judge a statement more truthful than deceptive. Thirdly, insufficient feedback about the veracity of witness statement makes it challenging even for professionals to perfect their lie-detecting skills (Dando, Coral J., et al. 102). These three hypotheses underscore the need for a systematic approach in detecting deceit in a witness statement. One of the techniques used to evaluate witness statements’ credibility is the Statement Validity Analysis (SVA) discussed in the subsequent subsection.

2.1. Statement Validity Analysis (SVA)

Statement Validity Analysis (SVA) is founded on the “Undeutsch” hypothesis, which postulates that memory for truthful and real occurrence deviates from fabricated events in terms of structure, quality, and overall content. SVA provides a compressive formula for developing and testing hypotheses concerning the source of a witness statement. The technique includes the approaches for gathering and analysing data around the hypothesis in question and the procedure for concluding the initial hypotheses (Nahari and Vrij, 98). SVA combines psychometric tests, systematic analysis, and clinical judgment. Even though initially developed to assess the validity of witness statements for children assaulted sexually, SVA comprises several components applicable for child witnesses, including eyewitnesses for several other cases (Nahari and Vrij, 99). SVA process includes four stages, as discussed in the subsequent subsection.

2.1.1. Case-File Analysis

The SVA procedure for evaluating a witness statement’s credibility starts with the case file analysis. The case file comprises the child witness’s information such as cognitive ability, age, sex, and relationship with the accused individual. It also encompasses the child’s previous statements and any other party involved and the nature of the incidence. The case-file analysis’s primary goal is to provide insight into disputed issues (Nahari and Vrij, 102). The subsequent three stages focus on the disputed elements to establish the issued statements.


2.1.2. Investigative Interview

An effective investigative interview’s primary objectives are to minimise trauma during the investigation, maximise information acquired, reduce contamination trace potential, and ensure integrity during the interview. The commonly used forms of interviews for SVA that meet the stated objectives include semi-structured, cognitive and inferential interviews for child witness or victim. Semi-Structured Interview

A semi-structured interview is the second phase of the SVA and entails the witness providing their allegation version. The interviewer habitually wants to dig deeper into more information than provided initially, leading to more interrogations and asking more questions concerning the incident (Bull and Ray 5). Many interviewers face a structured interview because they might suggest a possible answer or lead the child to prove a particular answer line. However, experts have designed special interview approaches based on psychological principles to get more accurate information for interviewees in a free narrative approach without providing suggestions or inappropriate prompts (Bull, Ray 8). Such include a structured interview, cognitive interview (CI), and inferential interview Cognitive Interview (CI) and Inferential Questioning

The Cognitive Interview (CI) method has also demonstrated effectiveness in meeting the investigative interview objectives. The CI is based on four mnemonic approaches resulting from merging research on schema-related recall, encoding specificity, and retrieval pathways. The integration of mnemonic enhances the highest degree of recollection by exhausting prospective retrieval cues and presenting multiple avenues to access coded information (Nahari and Vrij, 100). Since to deceive is a cognitively demanding task, the most common prevarication approach is to rehearse and prepare a fabricated description of an event mentally. In this case, the prevaricator adopts a superficial encoding to answer the questions asked. The responses rely primarily on properly-rehearsed scripts instead of objective reality (Paulo, Rui M., et al. 969).

As a result, lower thought processing levels are mostly engaged, reducing leakage. However, when a prevaricator is fronted with inferential questions, they will engage in unrehearsed lying, necessitating advanced cognitive processing compared to rehearse lying, leading to increased cognitive demand and anxiety turn invokes more leakage. As such, inferential questioning from the beginning of the interview section is necessary to discern the superficial encoding, promoting advance data-oriented processing and thwarting the effort to lie by interposing improvisational resources into otherwise is a properly-rehearsed script (Paulo, Rui M., et al. 971).

Meeting the above-stated objective will require a third interrogating condition characterised by short-answer inferential questions introduced between every CI mnemonic segment. The inferential questioning is an amplification of cognitive interview, which some scholars propose as a potential witness statement analysis tool. The rationale here is that mnemonics, which exhaust detail recall, integrated with inferential questioning, which promotes complex processing, will result in an unrehearsed lying for witnesses who prevaricate, resulting in unnoticeably altered designs of speech. On the contrary, the same manipulation pattern should not impact speech patterns for truthful witnesses (Paulo, Rui M., et al. 979).

2.1.3. Criteria-Based Content Analysis

The child witness or victim interviews are audiotaped and transcribed, and the records are applied in the third phase of the SVA; criteria-based content analysis (CBCA). Trained assessors look for the presence or absence of 19 criteria, as shown in figure 1. 

Figure 1: 19 Criteria for CBCA

Source (Amado, Arce and Fariña, 7).

CBCA operates on the Undeutsch hypothesis formerly postulated by Undeutsch (1967), that a statement resulting from the memory of a real experience is different from fantasy, invented, or a fabricated story in terms of content and quality. A truthful witness statement has more of the elements assessed by the CBCA compared to a fabricated or false story (Amado, Arce, and Fariña, 3). The theoretical framework reveals that both emotional and cognitive factors influence the CBCA scores. A truthful witness may not be keen to make a credible impression on the interrogator than a deceiver as they are confident that the truth will set them free (Amado, Arce, and Fariña, 9).

2.1.4 Evaluation of the CBCA Outcome

The CBCA score can be inadequate to conclude the validity of the information. For instance, older children’s statements contain more CBCA criteria than younger ones. The command of language and cognitive ability also impact the CBCA score. Therefore, the interviewer must evaluate if such alternative explanations could have affected the CBCA criteria’ presence in the statement. A validity Checklist has thus been designed, comprising 11 issues that can affect the CBCA score. By systematically tackling every issue captured in the Validity Checklist, the assessor explores and deliberates on the alternative versions of the CBCA outcomes. Every affirmative response the evaluator assigned to the checklist issues raises a question concerning the CBCA assessment outcome (Amado, Arce, and Fariña, 11).

3.0. Recommendations

  1. In legal cases, assessing the explanations put forth as memories is nearly essential to the litigation’s course and results. The law is oblivious to the scientific findings of human memory. Subsequently, the court systems typically do not incorporate such findings to inform the decision-making process (Clark, Steven, et al. 175). There is a need for justice reforms to make it an obligation for the courts to incorporate scientifically informed human memory considerations, taking into account the psychological review in this paper.
  2. The eyewitness is vulnerable to misinformation effect, as evidence in this paper’s previous sections. Since adjudicators tend to perceive eyewitness testimony as persuasive and compelling, it is reasoned that the jurors may give incorrect credence to eyewitness testimony. The jurors must be informed concerning the psychological verdicts on the misinformation effects.
  3. In factual disputes, witnesses provide key evidence based on which the case can fail or succeed. The credibility of the witness statement is, therefore, essential. The judge of the facts must establish the accuracy and the truthfulness of every testimony before making a judgment. The judge also decides whether the witness was mistaken or testified falsely instead of telling the truth and being accurate. A credible witness is competent to provide reliable evidence and is worthy of belief. Thus, it is pertinent to adopt scientific approaches to establish whether the witness can recall the issue meticulously as they testify. Also confirm whether the witness was present when the incident occurred, paid adequate attention to quality to report, and honestly relates the issue entirely without intention to suppress or deceive, or add anything to the truth.
  4. Special measures can be incorporated, mainly when dealing with a group of vulnerable witnesses such as children in this case. Special measures exist in the UK to safeguard susceptible witnesses such as children below 17. As for the case covered, allowing the children to provide private evidence can help maximise the information obtained and minimise false statements.
  5. It is also essential for the court systems to install mechanisms for assessing the child’s mental health status, memory stress, and maltreatment to ascertain their ability to provide reliable and accurate information. This will significantly reduce false statements; hence, accurate and reliable information is attainable.
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Works Cited

Amado, Bárbara G., Ramón Arce, and Francisca Fariña. “Undeutsch hypothesis and Criteria Based Content Analysis: A meta-analytic review.” The European Journal of Psychology Applied to Legal Context 7.1 (2015): 3-12.

Brown, Deirdre A., and Michael E. Lamb. “Can children be useful witnesses? It depends on how they are questioned.” Child Development Perspectives 9.4 (2015): 250-255.

Bull, Ray. “The investigative interviewing of children and other vulnerable witnesses: Psychological research and working/professional practice.” Legal and Criminological Psychology 15.1 (2010): 5-23.

Clark, Steven E., et al. “Eyewitness identification and the accuracy of the criminal justice system.” Policy Insights from the Behavioral and Brain Sciences 2.1 (2015): 175-186.

Dando, Coral J., et al. “Interviewing adult witnesses and victims.” Communication in Investigative and Legal Contexts: Integrated Approaches from Forensic Psychology, Linguistics and Law Enforcement. Chichester: John Wiley & Sons (2016): 79-106.

Dando, Coral J., et al. “Interviewing adult witnesses and victims.” Communication in Investigative and Legal Contexts: Integrated Approaches from Forensic Psychology, Linguistics and Law Enforcement. Chichester: John Wiley & Sons (2016): 79-106.

Nahari, Galit, and Aldert Vrij. “Systematic errors (biases) in applying verbal lie detection tools: richness in detail as a test case.” Crime Psychology Review 1.1 (2015): 98-107.

Paulo, Rui M., et al. “Enhancing the cognitive interview with an alternative procedure to witness-compatible questioning: Category clustering recall.” Psychology, Crime & Law 23.10 (2017): 967-982.

Poole, Debra Ann, Sonja P. Brubacher, and Jason J. Dickinson. “Children as witnesses.” APA handbook of forensic psychology, Vol. 2: Criminal investigation, adjudication, and sentencing outcomes. (2015): 3-31.