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How can the legal system ensure that evidence arising from witness testimony and or/interrogations is reliable?

How can the legal system ensure that evidence arising from witness testimony and or/interrogations is reliable?

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An essay for the 2011 Undergraduate Awards (Lecturer Nomination) Competition by Rebecca Gate. It is nominated by Lecturer Michael O'Connell of University College Dublin in the category of Psychology
An essay for the 2011 Undergraduate Awards (Lecturer Nomination) Competition by Rebecca Gate. It is nominated by Lecturer Michael O'Connell of University College Dublin in the category of Psychology

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Published by: Undergraduate Awards on Sep 01, 2012
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04/24/2014

 
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How can the legal system ensure that evidence arising from witness testimonyand or/interrogations is reliable?
Witness testimonies play a crucial role within the legal system both throughguiding the course of investigation (Zander & Henderson, 1993) and acting as animportant crutch with regard to jury decisions (Cutler, Penrod & Dexter, 1990).Whilst, originally assumed to be objective, recent analysis of the cause of wrongfulconvictions (as illustrated by subsequent DNA exonerations) has revealed thatunreliable testimonies contribute substantially to these false decisions (InnocenceProject, 2011). As a result of the combined infallible nature of witness testimoniesand the devastating consequences false convictions can potentially have; there has been a growing psychological and legal focus on how the reliability of witnesstestimony and interrogations can be improved (Semmler & Brewer, 2010). This essaywill look critically, including in terms of ecological validity, at how the legal systemcan use lab and field based findings in real-life scenarios to improve the reliability of interrogations and witness testimony. Techniques covered will include:interrogations, the double-blind technique; sequential lineups and confidence ratings.Central to attaining a reliable witness testimony is the interrogator’s ability toextract accurate information and the witness’s willingness and competency to expressknown information (Lamb et al, 2007). With regard to accurate information, in order to encourage reliability, it can be seen from protocols - such as the Cognitiveinterview (Fischer & Geiselman, 1992) and the NICHD (Orbach et al, 2000) - thatnew information from external sources (such as co-witnesses and the interrogator)
 
2should be minimised, whilst information generated from the actual witness should bemaximised (Lamb et al, 2007). Both protocols have effectively shown that these stepscan be achieved in the legal system, through encouraging the use of open-endedquestions whilst simultaneously minimising the use of both close-ended and leadingquestions (Kebell, Hatton & Johnson, 2002; cited in Kebell, Evans & Johnson, 2010).With regard to input from external sources, considerable research has suggested that ahighly motivated interviewer, using a coercive style and assumptive questioning, cancompromise and contaminate a testimony; thus making it both faulty and unreliable(Memon et al, 2010; Ceci & Bruck, 1995). This can occur in a number of ways,including as a result of social contagion through option-posing, close-ended andleading questioning. As Wright et al (2009) note during interrogation a witness issusceptible to biases as a result of the: Normative Influence (Asch, 1952), InformationDesire (Sherif, 1935) and False Memories (Loftus, 1979). During forced decisionmaking, such as in the case of close-ended questions, when an individual is uncertainthey become reliant upon their social field in order to seek clarification (Asch, 1952).Reliance on the latter is found to be greatest, when those opinions around theindividual are perceived to be of high value and trust (Festinger, 1957). Thus, incases of established authority, such as that of a police officer, there is a considerablerisk that the witness will be susceptible to conformity through pressure andinformation seeking (Lowenstein, Blank & Saucer, 2010). This effect of authority can be illustrated by greater conformity rates in uniformed as opposed to mufti officers(Davies, Westcott & Horn, 2000). Issues of power and susceptibility are further exasperated with child witnesses due to an increased unequal power-balancerelationship (Davies, Westcott & Horan 2000). In addition, leading questions havealso been found to be considerably detrimental to the reliability of testimonies. This
 
3is because often due to failures in source-monitoring, new information can beimbedded and incorporated as false memories, which are subsequently unreliablerepresentations of the witnessed events (see Loftus, 1979). Conversely, lab basedstudies (e.g. Oates & shrimpton, 1991) have found that open-ended questions and prompts (which encourage open unbiased free-recall) generally increase accuracy,through reducing the witness’s reliance on biases and contaminating evidence in their attempts to ‘gap-fill.’ Whilst in practice, legal system protocols focussing on promoting open-ended questions have been shown to be cross-culturally effectivewhen used correctly (Cyr et al, 2006; Lamb, Sternberg et al, 2006); problems emergeas improvements seldom transfer effectively from the lab to the real-life legal system(Compo, Gregory & Fischer, 2010). For example, interview training, such as thatassociated with the cognitive interview technique, has been shown to rarely changeactual behaviour with ‘negative’ techniques (close-ended, leading and confusingquestions) still predominating in both the legal system (Kebbell & Johnson, 2000;cited in Kebbell, Evans & Johnson, 2010) and the interrogation room (Compo,Gregory & Fischer, 2010). This may result from many factors; including: acompromise due to the interviewer’s over-concern for recording the witness’sresponse and subsequent neglect of self-monitoring of own behaviour (Fischer, 1995).In addition, issues may result due to the divergence in an interview’s believed andactual interview technique (Lamb et al, 2000). Furthermore, any beneficial reliabilityoutcomes tend to be limited to higher ranks (Milne & Bull, 2006). In contrast to this,Lamb et al (2002) have found that in order for long-term increases in reliability,continuous training with monitoring, feedback and refresher opportunities musthappen. Subsequently, in order for a genuine increase in reliability of testimonies, thelegal system must ensure that intensive continuous training in positive techniques is

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