Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 1

Analysis of Memory and Eyewitness Testimony in

Witness for the Defense

Nina Turner

Eckerd College
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 2

Famous legal cases throughout history have been highly publicized due to the intense

mystery surrounding the “perpetrator” of horrific or tragic crimes. One major example that

comes to mind is the John F. Kennedy assassination. After the assassination, several witnesses

and onlookers narrated details of their stories about the events which occurred on that fateful

day. Much to the dismay of detectives and those involved in the investigation, the witnesses’

accounts were wildly inconsistent with one another. A man by the name of Lee Harvey Oswald

was eventually declared the assassin responsible for the murder of the president. Still, years after

the investigation, the public continues to speculate about flaws in the investigation, which

ultimately led to the aforementioned conclusions. Was there a “Grassy Knoll” shooter? Was Lee

Harvey Oswald found fleeing the scene of the crime? Was there one shooter; or were there

multiple shooters? Unfortunately, the answers to these questions are impossible to know for

certain, because they partially rely on eyewitness testimony from a real life tragedy in American

history.

Eyewitness testimony is one of the most controversial, yet widely used procedures for

identifying suspects in a criminal case (Wrightsman & Fulero, 2009). Eyewitness testimony

relies on the memories of witnesses who were directly involved as a participant, as a victim, or

as an observer of the crime. The subject of memory itself has also been a widely debated topic

among psychologists, lawyers, judges, members of law enforcement, and even the public.

According to the research of Loftus and other psychologists, memory does not work like a “tape

recorder,” whereby we have the ability to replay memories in our heads exactly as they truly

happened (A. Schwarzmueller, eyewitness testimony lecture, April 9, 2010). This idea seems to

be the antithesis of a commonly held belief about memory. Instead, memory is a reconstructive

process: we take into account our beliefs, social obligations, our interpretation and understanding
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 3

of an event, and several other individual factors. These factors help us to recall a memory in our

own way. Therefore, the memory we have of an event may or not reflect what happened in

reality. Loftus and Ketcham (1991) continually assert the idea that memory is reconstructive

rather than reproductive. For these reasons, it is necessary to understand when memory works;

when memory fails; and why eyewitness testimony is problematic evidence to be presented in

criminal trials.

There are several debilitating effects of utilizing eyewitness testimony in criminal court

cases. As mentioned previously, eyewitness testimony relies on the memories of one or more

individuals. The generally accepted theory of memory among psychologists is that memory is

complex in how humans acquire, store, and retrieve memories (Loftus & Ketcham, 1991). When

an eyewitness takes the stand, and recalls the details of a crime, there is no absolute way of

knowing if he or she is recanting truthful events. According to Fulero and Wrightsman (2009),

the memories they recall, or memories we all recall, for that matter, are “influenced by more than

just memory processes” (p. 223). At times, the details described by eyewitnesses are contrary to

factual physical evidence (Wrightsman & Fulero, 2009). A witness may seem confident in his or

her recollection of details, or in the identification of the actual criminal, but their recollection

may not be accurate. Regrettably, this confidence can sometimes be mistaken for accuracy,

especially when factored into the decision of a jury.

The issue of confident yet erroneous eyewitness testimony can be illustrated by the case

of Steven Titus, who was convicted of raping a young girl named Nancy Von Roper in October

of 1980 (Loftus & Ketcham, 1991). While on the stand, Nancy was explicitly asked if she

recognized Titus from a series of photographs; then, she was asked if the person was present in

the courtroom; she ultimately pointed the finger at Titus. Of the many flaws which came about in
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the Titus case, two primary ones stand out in the way of eyewitness testimony. For starters, the

young victim was presented with a biased photo array. The photo array contained pictures of

Titus as well as other men who looked similar to him (Wrightsman & Fulero, 2009). His

photograph, however, was of a different size and other dissimilar characteristics than the other

photos. According to Loftus and Ketcham (1991), the investigator in the case made a suggestive

request of the young victim, “We want you to look at these photographs and see if you can pick

out the man who raped you” (p. 38). The quote is indicative of suggestive questioning on the part

of the investigator. Instead of asking the victim if the photo array contained a picture of her

possible rapist, they suggested to Nancy that the man who raped her could be found in one of the

photos. According to Loftus’ studies, simply interchanging between words such as “a” and “the”

can have a significant impact on the witness’s memory (A. Scwarzmueller, eyewitness testimony

lecture, April 9, 2010). The suggestive questioning led Nancy to identify Titus as being the one

who looked closest to the perpetrator.

Not only was there the issue of the biased photo array, but the problems of demand

characteristics and leading questions also played a big role in her identification. Being a

seventeen year-old girl most likely caused Nancy Von Roper to succumb to demand

characteristics, and feel a pressure to please authority figures, i.e. the investigators who believed

Titus was the true criminal. Also, instead of asking Nancy if she recognized any of the photos,

they employed leading questions by specifically asking which man had raped her (Wrightsman

& Fulero, 2009). By showing a biased photo array and subjecting the victim to leading questions,

the investigators suggested that Steve Titus was, in fact, the man who raped Nancy Von Roper.

When it came time to take the stand during the trial, Nancy’s memory had been

influenced, and she truly came to believe that Steve Titus had been the one who raped her and
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forever altered her life. Despite the lack of physical evidence against Titus, the jury was

undoubtedly swayed by Nancy’s powerful testimony. After several trials, and the tragedy that

ensued in the life of Steve Titus, the real criminal eventually came forward—effectively setting

Titus free. Though he was free in the eyes of the system, Steve Titus had lost everything that was

important to him (Loftus & Ketcham, 1991). Had the circumstances been different, and had the

investigators been wary of the testimony from Nancy Von Roper, Titus’ life may not have taken

a turn for the worse. In this case, the biased photo array and suggestive questioning proved to be

instrumental in Nancy’s testimony.

Titus is not the only victim of faulty eyewitness testimony. One cannot begin to imagine

the amount of prisoners whose sentence to jail or prison has been based on inaccurate eyewitness

testimony. Loftus and Ketcham (1991) discuss several other cases which have been characterized

by problematic eyewitness accounts. In 1989, a man by the name of Howard Haupt was accused

of kidnapping and murdering a young boy by the name of Billy Chambers. Like the Titus case,

the witnesses interviewed for the Haupt case took part in a photo-biased identification and were

also subjected to suggestive questioning (Loftus & Ketcham, 1991). Prior to seeing Howard

Haupt in an in-person lineup, the witnesses were exposed to his photograph in a photo array.

Even those witnesses who were not as sure of their identification during the photo array became

more confident when Haupt appeared before their eyes (Loftus & Ketcham, 1991). In a study by

Brown et. al (1977), researchers were interested in determining whether this biasing effect could

occur if a photo array of mug shots was presented before an in-person lineup (A.

Schwarzmueller, eyewitness testimony lecture, April 13, 2010). The researchers’ results showed

that participants were more likely to identify someone within the lineup if they had previously

been exposed to their actual mug shot. This research suggests that a biasing effect is possible,
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 6

though it is hard to pinpoint for certain. However, it seems to be more likely if photo arrays are

provided before in-person lineups take place. Loftus also argues that suggestive questioning of

the witnesses took place in the Haupt case. She pointed out the fact that the interviewer

continually asked questions which focused on confirming details about Howard Haupt. This

focus on Haupt likely hinted to the witnesses that the investigators saw him as their lead suspect

(Loftus & Ketcham, 1991). There are two important implications for the use of suggestive

questioning when interviewing witnesses (A. Schwarzmueller, eyewitness testimony lecture,

April 13, 2010). For one, it can cause the witness to have an altered memory for a person or an

event. Secondly, it may also cause a response bias by changing the witness’s verbal recall.

Though Howard Haupt was later acquitted of all the charges against him, the confounding

eyewitness testimonies were powerful enough to suspect him and almost convict him of the

violent act of murder.

Next, two other precarious aspects of eyewitness testimony include psychological

occurrences called unconscious transference and the weapon focus effect. In 1981, Clarence Von

Williams was accused of raping Sally Blackwell and her teenage daughter (Loftus & Ketcham,

1991). The rapist himself also possessed a weapon, which he used to threaten both of the victims.

After the crime, Sally was interviewed by the police and gave a description of the rapist. Later,

Sally’s boyfriend, Bob, continually pressed her for details, insisting that she had to have known

or seen the perpetrator somewhere before. Finally, he asked if Sally had possibly seen the

criminal at a party. Once he made the reference to a party, something suddenly clicked in her

head. She remembered attending a party with her friend Lois, and her husband Clarence. In her

mind, the description of the man she saw perfectly matched that of Clarence Von Williams,

which is part of the reason why he was brought up on charges (Loftus & Ketcham, 1991). Later,
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when the real criminal confessed, Sally was in disbelief. In her mind, Clarence Von Williams

was, in fact, the man who committed horrific acts against her. Sally had spent time with Clarence

before, but his face was from an entirely different source. Unconsciously and unintentionally,

Sally had replaced the memory of her actual rapist with the face of Clarence Von Williams

(Loftus & Ketcham, 1991). When put on the stand, Loftus cited research about the weapon focus

effect. Given the fact that Sally and her daughter’s rapist possessed a gun, Loftus says that their

ability to process and store the memory of the event and the perpetrator was significantly

reduced (Loftus & Ketcham, 1991). The principle Loftus refers to is the Yerkes-Dodson law,

which states that extreme stress has profound, debilitating consequences on memory acquisition

and retrieval (Loftus & Ketcham, 1991). Not only had Sally Blackwell unconsciously made a

source monitoring error, known as unconscious transference; but she was also negatively

affected by the presence of a weapon in the crime.

In sum, there are several reasons why eyewitness testimony is problematic evidence to

present in a criminal court case. Eyewitness testimony can be affected by the malleable nature of

memory (A. Schwarzmueller, eyewitness testimony lecture, April 13, 2010). Witness accounts

can be altered by photo-biased arrays or lineups; the use of suggestive or leading questions;

unconscious transference; and when a weapon is present, which is evidence for the weapon focus

effect. However, there are also some compelling reasons as to why the law should retain

eyewitness testimony as evidence in a trial. Most of the time, it is the first bit of evidence that

law enforcement can use to narrow down possible suspects of a crime. At times, there may not

be substantial physical evidence from which conclusions can be drawn in a case; here,

eyewitness testimony may be very helpful. Lastly, according to the Yerkes-Dodson law, a
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moderate amount of stress or arousal can lead to optimal memory acquisition and retrieval

(Loftus & Ketcham, 1991).

In Witness for the Defense, Loftus outlines an important case, which was largely built on

the testimony of a girl who was abducted by one of America’s most notorious serial killers: Ted

Bundy. The girl’s name was Carol DaRonch; she’d successfully managed to escape Ted Bundy

in 1974. When she was initially approached by Bundy, she was not under a great deal of stress;

he insisted that he was a policeman and had intentions to help her (Loftus & Ketcham, 1991).

Later, she identified Bundy from different photos and lineups. In her narrative, Loftus also

discusses the possible inaccuracies of DaRonch’s testimony. While Loftus was on the witness

stand during Bundy’s trial, she again cited principles behind the Yerkes-Dodson law. It was here

that the judge in the case, Hanson, made an outstanding point to the courtroom. For a good

period of time, DaRonch was not under severe stress; arguably, she was under a moderate

amount of stress. In this case, she may have been in her prime time to have optimal memory

performance; thus, she would have a better chance of remembering the abduction as well as

Bundy’s features (Loftus & Ketcham, 1991). In this scenario, it is clear that Carol DaRonch’s

memory and testimony aided in the conviction of Ted Bundy, who later admitted to the murder

of over thirty individuals.

Psychologists have studied the ways in which the accuracy of eyewitness testimony can

be improved. One way psychologists believe eyewitness testimony can be improved is through

the use of repeated interviews. Lab research shows that repeated interviews lead to more recall as

well as more accurate recall (A. Schwarzmueller, eyewitness testimony lecture, April 6, 2010).

Other psychological research shows that the use of mental or physical context reinstatement

helps victims of witnesses to remember more accurate information. In a study by Malpass and
Running head: ANALYSIS OF MEMORY AND EYEWITNESS TESTIMONY 9

Devine (1981), it was found that those participants who were asked to employ context

reinstatement were significantly more accurate in their recall than those who were not asked to

employ context reinstatement (A. Schwarzmueller, eyewitness testimony lecture, April 6, 2010).

Another research supported technique for eliciting correct information from witnesses is the use

of a cognitive interview. The cognitive interview is a four step process that involves context

reinstatement and recalling information in different orders and from different perspectives. A

study by Gieselman et. al (1985) showed that the use of a cognitive interview lead to more

accurate recall than other interview conditions, such as hypnosis (A. Schwarzmueller, eyewitness

testimony lecture, April 6, 2010).

Fulero and Wrightsman (2009) also outline several other mechanisms for improving the

accuracy of eyewitness testimony. Psychologists have also attempted to identify ways in which

each person involved in a case (i.e. the witness, law enforcement, and the jury) can be cautious in

their approach to a witness’s testimony. Some of these safeguards, on the part of law

enforcement, include slowing down the rate of questioning; tailoring questions to individual

witnesses; centering the interview on the witness; avoiding premature conclusions; and being

sensitive to the distinction between correct and incorrect responses. The witness should write

down everything, as soon as possible (H. White, memory lecture, March 18, 2010). He or she

should avoid discussing the event with others, to avoid the misinformation effect by altering the

original memory. Also, the witness should not try to be overly helpful to the police and should

simply report their own account. Jurors should be cautious not to mistake a witness’s confidence

for accuracy; they should realize the limits of human memory. Lastly, the jury should pay

attention to the use of leading questions on the part of attorneys and members of law

enforcement (H. White, memory lecture, March 18, 2010). Though the aforementioned
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safeguards may not be foolproof, they seem to be helpful ways of safeguarding eyewitness

testimony and aiding in accurate recall from witnesses.

From the evidence above, it seems there are more reasons than not to exclude eyewitness

testimony from criminal court cases. However, my own opinion is that eyewitness testimony

should be retained. Despite the sometimes questionable nature of the testimony obtained from

witnesses, it has still proven to be helpful in some cases. Take the Ted Bundy case, for instance.

What if the police were not able to use Carol DaRonch’s testimony in a court of law? How many

more lives would be lost at the hands of a murder, without her account? As we have seen from

many cases illustrated in Witness for the Defense, the information obtained from witnesses is

usually a helpful starting point for an investigation. I do not believe that eyewitness testimony is

more accurate than actual physical evidence, but I also do not think we should make it

inadmissible in court. The jury should realize the fundamental aspects of memory—when it

works and when it fails. When a witness or a victim points the finger at the defense and claims

that he or she committed the crime, the jury is likely to be swayed by their confidence. Rather

than rule out eyewitness testimony altogether, the legal system should focus its attention on

educating jurors and the general public on the limits of memory. Perhaps more education or the

continued admissibility of expert testimony can help the jury distinguish between the credible or

not so credible parts of an eyewitness account. Nonetheless, I feel it eyewitness testimony should

still be used in criminal court cases, but that it should not be mistaken for factual evidence.

In a perfect justice system, any given jury would be without bias. A perfect justice system

might also entail each juror being well aware of both the benefits and problems of eyewitness

testimony, or any testimony, for that matter. However, the legal system is less than perfect, and

must rely on many sources in its pursuit of truth. One of these sources the legal system
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sometimes refers to is an expert witness. According to Fulero and Wrightsman (2009), the role of

an expert witness is to give his or her own expert opinion in a case, which deals with special

knowledge he or she possesses on a given topic. The expert witness must also speak about what

they know to be true, from evidence and experience.

In Witness for the Defense, Loftus provides a narrative of important cases where she

served as an expert witness regarding memory and related issues. For most of her cases, she

appears to be as objective as possible, at least in the beginning. Loftus carefully analyzes records

from the defense and looks for factors in the case which could have contributed to problems with

testimony from witnesses. This process helps her decide whether or not she will appear before

the court. There are several instances in the narrative when Loftus mentions that the defense

attorney is convinced of the defendant’s innocence. At times, it seems as though defending the

innocent, or rather, preventing the innocent from being wrongfully accused, is a driving force

behind Loftus serving as an expert witness in some cases. In this regard, I would argue that she

might have been biased by her own feelings, albeit unconsciously at times. On the other hand, I

feel her true intention is to present scientific evidence to the courtroom and help the judge or a

jury determine what is true for a particular case. We as humans cannot help but to choose sides

or become biased at times; after all, our passion for what we believe in is what fuels our lives and

gives us a sense of purpose. Therefore, any time an expert witness is permitted to testify in a

criminal court case, there is no way of knowing if the person will be biased. In the way of

scientific evidence, a judge or jury may not be aware if an expert witness decides to present

skewed or unsupported scientific claims. Like the issues of eyewitness testimony, it appears as

though there are also some concerns for admitting expert testimony in the judicial process.
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Clearly, the judicial system is plagued with ethical dilemmas—dilemmas for which

answers are not readily available. Fulero and Wrightsman (2009) specifically outline some

temptations of those involved in the field of forensic psychology. Conflicts can arise when an

expert witness is tempted to become an advocate for a certain person or group rather than being a

neutral, objective party. An example of advocacy over scientific objectivity came into play when

Loftus became involved in the Tyrone Briggs case. Initially, the defense wanted to bring Loftus

in as an expert witness, but they were continually denied their request (Loftus & Ketcham,

1991). Though she could not be an expert witness, some of the people involved in the case

sought her out for advice and guidance. One woman in particular, Joyce, served on the jury and

became dedicated to the freedom of Tyrone Briggs. Joyce felt the evidence clearly showed that

Tyrone had not committed the crimes of which he was charged. Loftus agreed to meet with

Joyce, and later met with Tyrone. Soon after, she reported feeling as though she, too, would be

an advocate for Tyrone’s innocence if she had the opportunity to serve as an expert witness

(Loftus & Ketcham, 1991). Suppose Loftus did serve as a witness in the Briggs case: would she

allow her own personal opinions overcome empirically based findings? There is no way to know

for certain, but this is a simple example of why a judge might not permit expert testimony in the

judicial process.

As with eyewitness testimony, there are several pros and cons for the use of expert

testimony in the judicial process. However, I would argue that the nature of expert testimony is

an inherently neutral form of testimony. With this statement, I mean to say that experts who get

on the stand and talk about scientific findings, research, and other specialty-related knowledge

do not have anyone on their side, at least in the beginning. They are instructed to simply provide

their credentials and tell the courtroom what they know, or have experienced, to be true. It is the
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job of the judge or the jury to determine whether or not “the truth” spoken by the expert witness

is applicable to a criminal court case. An expert witness may be tempted to lie or stray away

from the facts, but I feel admitting their testimony is surely worth the potential risks. If the legal

system provided the opportunity for judges and jurors to learn more about human nature, such as

stuttering, or the limits of memory, then I might argue against the use of expert testimony in

criminal trials. For the time being, I believe it is crucial for the continued use of expert testimony

in such trials. The potential evidence and knowledge they can provide can drastically alter the

potentially fatal decision of a judge or jury. For this reason, and for the sake of presenting the

truth in a court of law, I believe our system should continue to take advantage of the benefits of

expert testimony.

Loftus and Ketcham’s critically acclaimed novel, Witness for the Defense, provides

important information about both the benefits and limitations of eyewitness testimony in criminal

court cases. There are several reasons why the judicial system should be careful in their

consideration of eyewitness testimony as viable evidence in a trial. In fact, research on memory

speaks to the weaker and sometimes stronger aspects of eyewitness accounts. Research has also

provided us with useful tools and safeguards for interviewing and preserving the testimony of

eyewitnesses. Loftus also provides readers with several shocking examples of the possible

implications and setbacks of eyewitness testimony, from guilty criminals who were almost set

free—to innocent people who almost lost their lives for good. In addition, Loftus does not seem

to be ashamed in admitting the imperfections of human nature. She details the temptations of

being potentially biased as an expert witness. Since the publication of the novel, drastic changes

have come about in the legal system and new research findings have surfaced regarding memory.

Nevertheless, eyewitness and expert testimony are still widely debated issues among
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psychologists and professionals in the justice system. Is there a right way to solve these

problems? To handle these critical concerns about our system? Perhaps the best we can do is

continue to be critical of the system itself, and press on as advocates for “truth”—a concept the

legal system should take into account more often.

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References

Fulero, S.M. & Wrightsman, L.S. (2009). Forensic Psychology (3rd ed.) Belmont, CA:

Wadsworth.

Loftus, E., & Ketcham, K. (1991). Witness for the defense: The accused, the eyewitness, and the

expert who puts memory on trial. New York: St. Martin’s Press.