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RESEARCH ARTICLE
What judges know about eyewitness testimony: A comparison of Norwegian
and US judges
Svein Magnussena*, Richard A. Wiseb, Abid Q. Rajad, Martin A. Saferc,
Nell Pawlenkoc and Ulf Stridbeckd
a
Department of Psychology, University of Oslo, 0317 Blindern, Oslo, Norway; bUniversity of North
Dakota, USA; cCatholic University of America, USA; dFaculty of Law, University of Oslo, 0317
Blindern, Oslo, Norway
(Received 23 March 2007; final version received 17 July 2007)
We surveyed 157 Norwegian judges about their knowledge and beliefs about eyewitness
testimony, and compared their answers to a prior survey of 160 US judges. Although the
Norwegian judges were somewhat more knowledgeable than the US judges, both groups
had limited knowledge of eyewitness testimony. The Norwegian judges, like the US
judges, frequently differed from eyewitness experts in their responses to such important
issues as whether eyewitness confidence is related to identification accuracy at trial and
what is the best method for conducting identification procedures. As was true for the US
judges, more knowledgeable Norwegian judges had many of the beliefs that may be
necessary for reducing and mitigating the effects of eyewitness error. The results suggest
that increasing judges’ knowledge of eyewitness testimony may be an important
component of the solution to eyewitness error.
Keywords: eyewitness testimony; beliefs; judges; USA; Norway
Introduction
In a recent criminal case in Norway, a young man was brought to trial accused of killing
his girlfriend who had been missing for 1 year when her remains were discovered. In the
absence of physical evidence, eyewitness testimony describing the defendant’s behaviour
and movements around the time of the girl’s disappearance was critical to a conviction.
During the trial an elderly man, described by the newspapers as a ‘key witness’, testified to
the following: He had seen the defendant, whom he did not know, passing him in the
opposite direction at 70 km/hour in the early morning on the day of her disappearance
close to the site of the discovery of the woman’s remains, long before anyone suspected a
crime had taken place (Dagbladet, 13 June 2003). We do not know what impact this truly
extraordinary memory feat had on the outcome of the trial, but a number of studies have
identified eyewitness error as a major factor contributing to wrongful convictions in the
USA (Rattner, 1988; Scheck, Neufeld, & Dwyer, 2000). According to Wells, Memon, and
Penrod (2006), eyewitness errors occurred in 75% or more of the DNA exoneration cases
tracked by the Innocence Project, and we can only speculate about the contribution of such
errors to wrongful convictions in less serious crimes. These figures are probably not unique
to the USA but likely also apply to other countries with different legal systems, such as
those in Europe (Sporer, Malpass, & Koehnken, 1996; van Koppen & Penrod, 2003) that
also rely on eyewitness testimony in criminal cases and have not instituted scientific
safeguards to prevent and mitigate the effects of eyewitness error.
Unfortunately, eyewitness errors cannot be eliminated because distortions of percep-
tion and memory are products of normal human information processing (Schacter, 2001).
To reduce the impact of such errors in trials, it is essential that the principal participants in
the criminal justice system jurors, law enforcement officers, attorneys, and judges are
aware of the limitations of eyewitness testimony and the factors that may distort it. Of all
the principal participants in the criminal justice system, judges have the most important
role in preventing and mitigating the effects of eyewitness error. Thus in the USA, judges
can determine how identification procedures are conducted and whether defendants have a
right to have an attorney present at identification procedures (Stinson, Devenport, Cutler,
& Krawitz, 1997; United States v. Ash, 1973; Kirby v. Illinois, 1972; United States v. Wade,
1967). They determine when eyewitness identifications are unduly suggestive or for some
other reason must be suppressed, and they instruct jurors about the factors they must
consider when evaluating the accuracy of eyewitness testimony (Neil v. Biggers, 1972).
Judges also decide if legal safeguards against erroneous eyewitness identifications, such as
expert testimony, are permissible. In trials where the defendant waives his or her right to a
jury, judges determine the accuracy of eyewitness testimony.
What do judges know about factors that affect the reliability of eyewitness testimony?
Despite their central role, few studies have examined judges’ knowledge and beliefs about
eyewitness testimony. Instead, most previous surveys have assessed the general public’s
beliefs about general questions of memory (Magnussen et al., 2006) or about eyewitness
factors (Brigham & Bothwell, 1983; Kassin & Barndollar, 1992; Schmechel, O’Toole,
Easterly, & Loftus, 2006) or have targeted selected groups of legal professionals on specific
topics, such as lineup fairness (Stinson et al., 1997), the reliability of child witnesses
(Brigham & Spier, 1992; Everson, Boat, Sherries, & Robertson, 1996; Melinder, Goodman,
Eilertsen, & Magnussen, 2004), and indicators of lies and deception (Strömwall, Granhag,
& Hartwig, 2004), or have surveyed a small sample of judges (Benton, Ross, Bradshaw,
Thomas, & Bradshaw, 2005).
However, Wise and Safer (2004) asked a sample of 160 US judges a wide range of
questions about factors known to affect eyewitness accuracy, that frequently occur in
criminal trials, and whose influence on eyewitness accuracy is supported by strong
empirical evidence (Kassin, Tubb, Hosch, & Memon, 2001). Their questionnaire contained
14 eyewitness statements (listed in Table 1), including eight statements from Kassin et al.’s
(2001) survey of eyewitness experts, which permitted the judges’ responses to be evaluated
in light of the ‘gold standard’ of the experts’ answers to those statements. The judges were
also asked to indicate for a subset of the questions (statements 711, Table 1) how they
believed the average juror would answer the eyewitness statement, and what legal
safeguards they would permit attorneys to use to inform jurors about the effect of
eyewitness factors on identification accuracy.
The results showed that US judges have limited knowledge of eyewitness factors, as
they averaged only 55% correct on the 14 statements. For example, a majority of judges
believed that the recall of minor details was a good indicator of accuracy, did not know
that eyewitness confidence at trial was not a good indicator of eyewitness accuracy, and
were unaware of the course of normal forgetting. Such lack of knowledge could well affect
the ability of judges to evaluate the accuracy of eyewitness testimony in cases like the one
involving the elderly man described earlier and to determine when eyewitness expert
testimony should be admitted in criminal trials. Considering that eyewitness error is
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Topic Statement
responsible for half or more of all wrongful felony convictions, the judges’ limited
knowledge of eyewitness factors is an alarming finding. However, we do not know if the
results for this sample of US judges generalize to judges in other countries with different
legal systems. To answer this question, we have replicated the Wise and Safer (2004) study
on an equally large sample of Norwegian judges. In a recent survey of the beliefs of
Swedish professionals, including judges, Granhag, Strömwall, and Hartwig (2005) covered
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some of the same issues as in the Wise and Safer (2004) study, and with a similar mixed
pattern of results; however, a direct comparison between the studies is not possible because
of differences in the formulation of statements and the response alternatives provided.
The Norwegian legal system is similar to the Swedish system but differs in significant
ways from the US system. In Norway, the courts consider all kinds of cases. The Supreme
Court and the lower courts, all the way down to the smallest districts magistrate offices,
adjudicate both criminal and civil cases. The procedure is adversarial. The composition of
the court differs depending upon whether there is a criminal or a civil case. In criminal
cases the courts are composed of both professional judges and laymen, with the laymen in
majority. The district courts are composed of one professional judge and two laymen, who
adjudicate cases on equal footing. The Courts of Appeal are composed of either three
professional judges and four laymen who reach a decision by simple majority, or, in cases
of serious crimes with a penal framework of more than 6 years’ imprisonment, of three
professional judges and a jury composed of 10 laymen. Jury proceedings are secret and
juries report a guilty verdict by ‘more than six votes’. The role of Norwegian judges in
regard to expert witnesses is different from the role of the US judges. In general, it is the
court that appoints experts and formulates the expert’s mandate; experts are witnesses for
the court rather than for the prosecutor or the defence. Eyewitness experts, if appointed,
are typically asked to educate the court on general issues of eyewitness reliability. If the
judge rules that an eyewitness expert is not required, the defence or the prosecutor may
appoint an expert witness in which case the judge decides what the expert witness may
testify about. Judges may also evaluate the reliability of an eyewitness and the
appropriateness of the expert witness testimony in their summing up of the case before
the jury retires. So far eyewitness experts have been appointed in only a handful of criminal
cases, which may reflect that Norwegian judges believe they possess sufficient knowledge
about factors affecting the accuracy of eyewitness testimony or that they are not aware of
this field of expert knowledge or both.
In addition, the process of recruiting and appointing judges is somewhat different in
Norway and the USA. One of the central principles of the judiciary in Norway is the
independence of the courts. Vacant positions are applied for by applicants with diverse
backgrounds in law, and the judges are appointed by the King in Council after nomination
by the Ministry of Justice and recommendation from an independent consultative body of
experts that evaluates the applicants’ professional qualifications. In the USA, judges are
attorneys who first practice law and then later are elected to the judiciary by the general
public, receive political appointments to the bench, or are first appointed and then later
stand for election as a judge. The judiciary in the USA is, along with the executive and
legislative, one of the three co-equal branches of government.
Method
Participants
The judges were requested to answer a brief questionnaire on eyewitness testimony,
distributed electronically on the internet, by the Administration of Norwegian Courts
(‘Domstoladministrasjonen’) to all Norwegian judges (n 511), and followed up by a
reminder after 3 weeks. Completed questionnaires were obtained from 157 judges. There
were 107 male and 49 female judges (one judge did not report gender), aged 2869 years
(M 50.23 years), they had been on the bench for an average of 9.11 (SD 6.72) years,
and practised law for an average of 13.65 (SD 7.21) years. Of the judges who participated
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in the survey, 80.1% were trial judges at the District court (‘tingretten’) and 19.9% were
appellate judges at the Court of Appeal (‘lagmannsretten’). Prior to becoming a judge,
20.5% had been prosecutors, 17.9% defence attorneys, 11.5% had been both a prosecutor
or defence attorney, and 50% had no criminal law experience. The sample constituted
32.3% of Norwegian judges, which is a relatively high percentage (e.g. in the survey of US
judges, the response rate was approximately 19% of the eligible sample).
Questionnaire
The questionnaire was a Norwegian translation of the questionnaire developed by Wise
and Safer (2004), adapted to the Norwegian judicial system. The judges were asked to: (a)
respond to 15 statements about eyewitness factors, we added one statement (no. 15) not
included in the US study (see Table 1, eyewitness statement 15)1; (b) indicate for a subset of
five of these statements how they believed the average juror would answer the statement;
(c) answer four related questions, and (d) provide the personal background information
that was summarized in the preceding paragraph. In Table 2, we designate what we deem to
be the correct answer for each statement. Nine of the 15 eyewitness statements were taken
from the Kassin et al. (2001) survey of 64 eyewitness experts, and for these items, we
compared the responses of the judges to the responses of the eyewitness experts. Because of
the different purposes of the surveys and the different roles of the respondents, the judges
and experts answered slightly different questions about the statements (see Wise & Safer,
2004). The Kassin et al. (2001) experts indicated whether an eyewitness statement was
‘reliable enough for psychologists to present in courtroom testimony’ (p. 407). The judges
indicated whether they agreed or disagreed with a statement, or whether they believed the
statement to be generally true or generally false.2 For statements 711, the Kassin et al.
(2001) experts also assessed whether ‘most jurors believe this statement to be true as a
matter of common sense’ (p. 407). The judges indicated for these five statements how they
believed the average juror would respond. They could also answer that they did not know
how a juror would respond.
Results
We first report the judges’ responses to the 15 statements about eyewitness factors and the
four related questions. In Table 2, the responses of the Norwegian judges are compared
with the responses of the US judges, calculated from tables 24 in Wise and Safer (2004).
To facilitate comparisons with the US survey, the statements from the original survey have
been renumbered, and the response categories ‘strongly agree’ and ‘agree’, and ‘disagree’
and ‘strongly disagree’ are combined. An asterisk next to a response indicates a correct
answer. Percentages were rounded to the nearest whole number, and therefore may not
total exactly 100% for every statement.
Eyewitness statements
The percentage of Norwegian judges giving what we deemed to be the correct answer
ranged from 31% to 98%, with 80% or more of the judges giving the correct response for
only 5 of the 15 eyewitness statements. Interestingly, although more than 80% of the judges
were aware of the effects of both confidence malleability and of post-event information on
eyewitness accuracy, only 31% of the judges correctly disagreed with statement 6 that ‘At
trial, an eyewitness’s confidence is a good predictor of his or her accuracy in identifying the
defendant as the perpetrator of the crime.’ More judges should have disagreed with
statement 6 if they truly appreciated how confidence malleability and post-event
information undermine the relationship between confidence and accuracy.
A comparison of the scores of US and Norwegian samples in Table 2 reveals a very
similar pattern of responses, but shows that, overall, a significantly higher proportion of
the Norwegian sample responded correctly compared to the US sample on five of the
statements (4, 5, 911), all ps B0.05. The differences were in the order of 1020%. In
particular, as a group, Norwegian judges were more aware of the course of normal
forgetting, the effect of post-event information, and that sequential lineups reduce the
number of erroneous eyewitness identifications.
x2(1, n221) 59.14, pB0.001, V 0.52; and the least difference on the confidence
malleability statement (85% vs 95%), x2(1, n221) 4.35, pB0.05, V 0.14. However, for
three of these five topics (weapon focus, mugshot-induced bias, and forgetting curve), the
majority of judges, nonetheless, agreed with the experts. For the following three eyewitness
statements there was no significant difference in the percentage of judges and experts who
gave what we deemed to be the correct response to the statement: attitudes and
expectations (98% vs 95%), effects of post-event information (94% vs 94%), and impact
of stress (70% vs 59%). Overall then, in agreement with the results for the US judges, the
Norwegian judges appeared to have limited knowledge of eyewitness factors compared to
the experts.
The results of Wise and Safer (2004) further showed that US judges were less sceptical
than experts about what jurors know about eyewitness testimony. The present results
indicated that the Norwegian judges were also less sceptical than experts about jurors’
knowledge of eyewitness factors. For eyewitness statements 711, both the judges and the
Kassin et al. (2001) eyewitness experts, in addition to answering the statement for
themselves, indicated how they believed the average juror would respond to the statement
(see Table 3). There was a significant difference in the percentage of judges and experts who
believed the average juror would know the correct answer to the following four eyewitness
statements: mugshot-induced bias (40% vs 13%), x2(1, n221) 15.30, p B0.001, V
0.26; lineup format (15% vs 0%), x2(1, n221)10.47, p 0.001, V 0.22; weapon focus
(21% vs 34%), x2(1, n 221) 4.34, p B0.05, V 0.14; confidence malleability (20% vs
9%), x2(1, n221) 3.87, pB0.05, V 0.13. There was no significant difference in the
percentage of judges and experts who believed the average juror would know the correct
answer to the eyewitness statement about the forgetting curve (20% vs 30%), x2(1, n
221) 2.22, p 0.05, V 0.10.
In Table 2, 73% of the judges correctly disagreed with the statement that ‘Jurors know
how most eyewitness factors affect identification accuracy’, whereas only 47% correctly
disagreed with the same statement about attorneys, z6.33, pB0.001; the correspond-
ing numbers in the US sample were 64% and 41% (Wise & Safer, 2004). These results
suggest that the judges in both samples apparently believe that due to their legal training
and experience, judges and attorneys know more about eyewitness factors than the average
juror, and thus they do not regard such knowledge as merely ‘common sense.’
7. Confidence malleability 20 8 20 52
8. Weapon focus 21 10 15 54
9. Mugshot-induced bias 40 5 10 47
10. Lineup presentation format 15 5 12 69
11. Forgetting curve 20 12 17 51
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eyewitness testimony and/or who realized that jurors cannot distinguish accurate from
inaccurate eyewitnesses (i.e. see eyewitness statement 14) were more likely to believe that
jurors have limited knowledge of eyewitness factors. Similar results were reported for the
US sample.
Furthermore, knowledge was unrelated to whether a judge had read literature about
eyewitness testimony, such as an article or book (indicated by 54% of the sample) or had
attended a lecture or seminar (indicated by 55%). However, the 30 judges (19%) who
reported no formal exposure of any kind to materials about eyewitness testimony had
marginally lower scores on the knowledge scale (M 9.23, SD 2.58) than did the 127
judges who reported some formal exposure (M 9.54, SD 2.45), t(155) 0.60, p 0.05.
In addition, how many years judges had practised law, been on the bench, or the combined
number of years a judge had practised law or been on the bench were not related to
eyewitness knowledge (r 0.02, r 0.12, r0.09, respectively; all three ps0.05).
Whether a judge had been a prosecutor, defence attorney, both, or neither did not have any
significant relationship to the knowledge scale F(3,152) 0.83, p0.05. In brief, judges
who had practised criminal law were no more knowledgeable about eyewitness testimony
than those who did not have that experience, and what type of criminal attorney a judge
had been was also unrelated to knowledge of eyewitness testimony. Judicial position was
also unrelated to knowledge.
Similarly for the US judges (Wise & Safer, 2004), scores on the knowledge scale were
unrelated to legal experience, judicial experience, criminal law experience, or judicial
position. Thus, legal and judicial experience do not seem to increase knowledge of
eyewitness factors.
Discussion
The results of the present study, in conjunction with the Wise and Safer study (2004), show
that judges in Norway and the US have limited knowledge of eyewitness factors, and they
harbour beliefs and opinions that are at odds with current scientific knowledge as defined
by the opinions of eyewitness experts (Kassin et al., 2001). Both samples of judges agreed
with the experts on two eyewitness statements memory may be affected by attitudes and
expectations (98/95% agreed) and by post-event information (94/84% agreed). In addition,
84% of the Norwegian judges agreed that lineup administrators should not know the
identity of the suspect and that exposure to mugshots of a suspect increases the likelihood
that the suspect will later be identified in a lineup. Thus, judges seem to be aware that
memory can be influenced by factors that occur after the crime. On other statements,
related to trial issues, judges have less knowledge. For example, judges in general seem to
be unaware that by the time of trial eyewitness confidence has little relationship to
eyewitness accuracy (Sporer, Penrod, Read, & Cutler, 1995; Ihlebæk, Løve, Eilertsen, &
Magnussen, 2003). This is particularly troubling, since research shows that eyewitness
confidence at trial is the most important factor that jurors rely upon in evaluating
eyewitness accuracy (Wells et al., 1998). In addition, the results show that the majority of
judges in Norway and the US do not know that jurors cannot distinguish between accurate
and inaccurate eyewitness testimony (Read, Lindsay, & Nicholls, 1998).
Despite significant differences in their legal systems, the pattern of responses to the
statements was very similar for Norwegian and US judges, except for an overall higher per
cent correct answers among the Norwegian judges. There is no obvious explanation for this
difference. The procedure of appointing judges to office differs between Norway and the
US but the two samples have comparable professional backgrounds. If anything,
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Notes
1. The Kassin et al. (2001) experts did not agree about the impact of very high stress on the accuracy
of testimony, and so Wise and Safer (2004) did not include statement no. 15 in their survey.
However a recent meta-analysis (Deffenbacher, Bornstein, Penrod, & McGorty, 2004) clearly
demonstrated the negative impact of extreme stress at the time of crime on later accuracy.
2. Judges gave two slightly different responses to the eyewitness statements. For eyewitness
statements 711, judges answered whether they believed the statement was generally true, generally
false, or I do not know. For the remaining eyewitness statements, the judges answered on a 15
Likert scale with labels of strongly agree, agree, neither agree nor disagree, disagree, and strongly
disagree. Generally true or generally false was used as the responses for eyewitness statements 711
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rather than a Likert scale to make it easier for the judges to answer these questions. This change in
the responses was necessary since for these eyewitness statements the judges not only indicated
how they would respond to the statement but also how they believed the average juror would
respond and, for the US sample, what legal safeguards they would permit attorneys to use to
educate jurors about the eyewitness factors.
3. The correlation is negative because the responses ‘strongly agree’ and ‘agree’ were values of 1 and
2, respectively, on a five-point Likert scale for statement 16.
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