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Are Victim or Eyewitness Statements Credible? Several Ways to Check Them

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ASSESSING RELIABILITY OF VICTIM’S STATEMENT 1

Are Victim or Eyewitness Statements Credible? Several Ways to Check Them

Nurul Arbiyah1,2, Henry Otgaar1,3, and Eric Rassin4

1
Department of Clinical Psychological Science, Faculty of Psychology and Neuroscience,

Maastricht University
2
Department of Research Methodology and Statistics, Faculty of Psychology,

Universitas Indonesia
3
Leuven Institute of Criminology (LINC), Faculty of Law, KU Leuven
4
Department of Psychology, Education & Child Studies, Erasmus School of Social and

Behavioural Sciences

In Press, In-Mind

Author Note

We have no conflicts of interest to disclose. Correspondence concerning this article should be

addressed to Nurul Arbiyah, Department of Clinical Psychological Science, Faculty of

Psychology and Neuroscience, Maastricht University, Universiteitssingel 40, 6229 ER

Maastricht, Netherland. Email: n.arbiyah@maastrichtuniversity.

ASSESSING RELIABILITY OF VICTIM’S STATEMENT 2

Abstract

Statements from eyewitnesses can play an essential role in legal cases. However, not all of these

statements are based entirely on memories of actual events but may also contain false memories.

Determining whether a statement originates from a real event or not is a crucial issue in many

legal cases, as psychological expert witnesses are often asked to assist in determining whether

the statement refers to experienced events or is fabricated. Expert witnesses need to further

examine whether the victim or witness's information is valid or not by using several tools to base

their judgment on the reliability of the statement. In general, these tools can be divided into tools

that a) look at the verbal content of statements, b) focus on how expert witnesses can protect

themselves from bias, and c) focus on the historical development of the statements. In this paper,

we provide a brief overview of these tools and demonstrate the importance of them for expert

witness work.

Keywords: reliability of the statements, verbal credibility assessment, alternative

scenario, examining the interview

ASSESSING RELIABILITY OF VICTIM’S STATEMENT 3

Introduction

In 2014, two teachers and six janitors were accused of child sexual abuse at Indonesia's

Jakarta International School (JIS). Three preschool children reported that they had been

repeatedly sexually abused by them. The statements of the alleged victims became one of the

most important pieces of evidence to convict the suspects. These testimonies were such

important evidence because corroborative evidence was absent to support the children's claims of

sexual abuse by the suspects. The teachers and janitors were eventually sentenced to between 7

and 11 years.1 However, memory scholars argued that the children’s testimonies might have

been false because of suggestive interviewing techniques by the children’s mothers (1).

The JIS case shows that statements of eyewitnesses and victims can play an essential role

in legal cases, especially in child sexual abuse cases where there is a lack of objective evidence

(2) . However, not all witness statements are valid. That is, our memories are not a perfect

reproduction of the past, but are reconstructive, and errors and distortions might slip in

unintentionally, leading to false memories (i.e., memories of non-experienced events; 3). Such

false memories may result in false accusations which might even result in miscarriages of justice

(4). Therefore, determining statements validity is crucial in many legal cases. Psychological

expert witnesses are oftentimes asked for advice on the validity of statements (2, 5, 6).

Reliability, Validity, and Credibility of Statements

Before we elaborate on which tools and methods can be used to assess witness

statements' validity, it is imperative to clarify various related terms such as validity, credibility,

and reliability. Particularly, in everyday language, these terms are virtually interchangeable; in

1
A teacher from Canada has been granted clemency by President of Indonesia, President Joko Widodo,
see https://www.nytimes.com/2019/07/12/world/asia/bantleman-canada-teacher-indonesia-abuse-
clemency.html

ASSESSING RELIABILITY OF VICTIM’S STATEMENT 4

psychometrics, they have distinct meanings. In the latter, reliability refers to the consistency,

such as temporal consistency, which means that a measurement should yield the same outcome if

repeated (7). By contrast, validity refers to the degree to which a test measures what it purports

to measure (7, 8). However, the use of terms such as reliability and validity in statistics varies

with how these terms are used in the courtroom. Suppose an expert witness wants to examine

whether statements of victims or eyewitness referred to events that they truly experienced. In this

case, expert witnesses want to examine whether the statements are valid, as validity in statistics

means to measure what is assumed to be measured. However, in the legal arena, the term

reliability is oftentimes used in this regard. That is, in the legal arena, statements' reliability

implies that victims’ or eyewitnesses' accounts originated from memories of experienced events

or were based on true memories (9). Meanwhile, credibility refers to apparent convincingness of

statements (e.g., detailedness, elaborateness, and more coherence; 2).

Other related terms are accuracy, consistency, and completeness (e.g., 10). In general,

accuracy refers to whether victims or eyewitnesses' statements reflect what precisely unfolded.

However, in many legal cases, this is unknown as the alleged event's ground truth is not clear.

Hence, judges, juries, and lawyers focus on inconsistencies and contradictions between two or

more statements (11). They tend to believe that inconsistency reflects inaccuracy (12; but see

10). Finally, completeness refers to the wholeness of information or detailed information without

omissions errors (10).

ASSESSING RELIABILITY OF VICTIM’S STATEMENT 5

Which Tools Exist to Evaluate Statement Validity?

Verbal Credibility Assessment

As an expert witness, several ways can be used to determine the reliability of a

statement. One method that is widely used is the statement validity assessment (13), of which the

main component is the assessment of the statement’s content quality through Criteria Based

Content Analysis (CBCA; 14). The CBCA contains 19 criteria, and the presence or absence of

those criteria is supposed to distinguish between truthful and fabricated statements.

One of the criteria is contextual embedding, which describes the events happening at

that time related to time, situation, etc. If a statement contains many contextual embeddings of

the event (very specific descriptions), it will score highly on this criterion. For example, a

statement such as “I was in the school toilet, right in front of the toilet door, was standing waiting

for the person inside to come out. It was right after school break time, around 10 am. I always

pee in the school toilet around that time.” contains a spatial and temporal context, and also

habits. Expert witnesses sometimes assess statements of victims using these CBCA criteria. An

account is considered to be likely true if a substantial number of criteria are present.

Another method to distinguish between truthful and fabricated statements is Reality

Monitoring (RM; 19). This approach is comparable to CBCA, but the underlying theory is rooted

in memory research. It is based on the finding that there are quantitative differences between

memories for perceived and imagined events. Compared with memories for imagined events,

memories for perceived events have more sensory, contextual, and affective information (20).

For example, the statement "I was very scared at that time, my hands were sweaty and my heart

was beating fast" is an example of a statement with much affective information. By contrast,
ASSESSING RELIABILITY OF VICTIM’S STATEMENT 6

imagined experiences are assumed to contain more references to cognitive operations (e.g.,

reasoning).

Recently, Nahari et al. (23, 24) introduced a new approach in verbal credibility

assessment called the Verifiability Approach (VA). This approach relies on the idea that liars

tend to avoid including too many details in their testimony because that would require them to

memorize these (false) details. Particularly, liars will avoid including details that might be

checked (i.e., verifiable details). For example, Nahari and colleagues (23) found that liars

provided fewer perceptual, spatial, and temporal details that could be verified, and truth-tellers

provide more verifiable details than liars.

Alternative Scenario Approach

As an alternative to the verbal validity assessment techniques such as CBCA, a scenario

approach has been recently described (26). In the (alternative) scenario approach, the likelihood

of the statement has to be estimated within two concurrent scenarios, the primary scenario

(suspect is guilty), and the alternative scenario (suspect is innocent) (27).

The scenario approach may well be irrelevant whether the statement scores high on

verbal validity assessment techniques. This is so because a credible statement fits well in the

guilt scenario, but also in the innocent scenario, if the witness suffers from false memory or lies

and is knowledgeable about credibility assessment techniques. Hence, the scenario approach

concentrates on the developmental history of the statement rather than on its final appearance.

A case illustration provided by Rassin (28) may help to illuminate the scenario approach.

Suppose the police found a body at a crime scene, and a second person was found next to him

with a knife in hand. This person is the main suspect but denies. He said that the victim had been
ASSESSING RELIABILITY OF VICTIM’S STATEMENT 7

stabbed when he found him, and he pulled the knife from his back to save him. Based on that

case, two scenarios might be postulated: the first scenario is that the person has indeed

committed murder, and the alternative scenario is that someone else who did. Subsequently, we

must wonder how likely it is that the police find the suspect next to the victim if the suspect just

stabbed the victim (primary scenario), and how likely it is to find the suspect if he just found the

victim tried to save him. The latter cognitive operation will make the decision-maker aware of a

potential lack of specificity of incriminating evidence. In our example: Finding the suspect next

to the victim seems incriminating, but maybe less so if we consider that finding him there also

perfectly fits in a sensible alternative scenario.

Examining the Interview

Interviewing victims as witnesses is a crucial way how the police can gather information

about crimes. When expert witnesses are asked to assess victim statements' reliability, one way

that can be used is to look at how the interview process took place and what the interview

content was (5, 29). Interviews play an key role in assessing the reliability of victims' statements

because the type of question asked might also determine how the victim provides the statement.

For example, when a police interviewer provides suggestive questions (e.g., “You were also

touched, right?”), these might negatively affect testimonies even potentially leading to false

memories (30).

An important task that expert witnesses can do is to analyze the types of questions

interviewers use when interviewing victims and eyewitnesses. For example, the National

Institute of Child Health and Development Protocol (NICHD; 29) is an evidence-based interview

protocol to interview children and contains well defined question types that interviewers should
ASSESSING RELIABILITY OF VICTIM’S STATEMENT 8

and should not ask during an interview. In general, the NICHD Protocol distinguishes between

invitations (e.g., “Tell me everything ....”), directives (e.g., “When did it happen?”), option

posing (e.g., “Did he touch you over or under your clothes?”), and suggestive questions (e.g.,

“He wanted to kiss you, didn’t he?”. The emphasis of NICHD protocol is on the continuous use

of invitations, and only when children's free recall is exhausted, closed-ended questions such as

directives can be asked. Research has revealed that the NICHD protocol leads to highly detailed

and accurate testimonies in children (29).

So, expert witnesses might analyze which type of questions was asked during an

interview. When victims or eyewitnesses are predominantly interviewed using invitations/open-

ended questions, then the expert witness can conclude that the interview was well conducted and

might have led to reliable accounts. The reason why expert witnesses cannot state that a well-

conducted interview has led to reliable accounts is because victims or eyewitnesses might have

been interviewed before by someone else (e.g., friends, therapists, teachers). These earlier

interviews might have been suggestive and might have already resulted in contaminated

memories. Therefore, besides looking at the interview, a thorough examination of the context of

the first statement and interview is necessary to examine the reliability of statements.

Furthermore, apart from looking at the types of questions asked using the NICHD

Protocol, expert witnesses can analyze in more detail how forensic interviews are conducted. A

promising way is to use The Griffiths Question Map (GQM; 5). GQM has been used to test the

quality of victim interviews by identifying the type of questions as a function of its context and

taking into account the chronological order of the questions and the questions' dynamics. The

idea is that well conducted interview should start with the use of invitations and can end with the

inclusion of more closed non-suggestive questions. Expert witnesses might use the GQM to help
ASSESSING RELIABILITY OF VICTIM’S STATEMENT 9

judges or jurors to evaluate the quality of young witnesses ' and victims' interviews. The use of

interview protocols (e.g., NICHD) and mapping the interview (e.g., the GQM) can help expert

witnesses have a complete picture of how the interview was conducted and when examining

witness or victim accounts about the events.

Final Remarks

Statements from eyewitnesses or victims play an essential role in legal cases. Expert witnesses

can use several tools to evaluate victim or eyewitness statements' reliability. Of the many tools

that expert witnesses can use, it is essential to note that expert witnesses need to understand that

each tool used has various strengths and weaknesses. When asked to provide expert testimony in

a particular case, expert witnesses must consider which approach is needed, varying from

analyzing statement characteristics with CBCA or RM, to analyzing interview quality (e.g., The

GQM). Moreover, expert witnesses might use the scenario approach and then analyze the

evidence supporting and against each scenario. The alternative scenario approach helps expert

witnesses to see all possibilities and might protect them against biases. Obviously, with various

tools at their disposal, it is crucial that experts consciously select the most appropriate approach

in each case. Particularly considering that expert witnesses' assessment results play an important

role in legal decisions.

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