Law, Psychology, and
Human Development
C. J. Brainerd
cb299@cornell.edu
Human Development Research Update
1 June 2007
Cornell Program in Law,
Psychology, and Human
Development: A Little History
- Cornell’s long tradition of research
in behavioral science & law
-
-
S. Ceci (children’s testimony)
D. Dunning (eyewitness identification)
Law school’s Project Death Penalty (J.
Blume, S. Johnson)
PhD program in Law, Psychology,
and Human Development
Cornell Program in Law, Psychology,
and Human Development
J. Blume: Capital punishment & mitigation
C. J. Brainerd: Memory & law; children & law
S. J. Ceci: Memory & law; children & law
D. Dunning: Eyewitness ID; effects of social
J.
V.
J.
V.
attitudes and bias
Eckenrode: Child abuse & neglect
Hans: Jury decision making and bias
Rachlinski: Legal decision making; judicial
reasoning bias
F. Reyna: Legal decision making; risky behavior
Today’s Topics
• Witnesses’ memory reports are
pervasive as legal evidence
• Memory reports are prone to falsepositive errors
• Some types of witnesses – children,
the aged – may be especially
vulnerable
• Experimental findings
Memory Reports As Evidence
• Memory reports enter criminal
proceedings in numerous ways:
•
•
•
•
•
•
•
Police narratives of witness interviews
Police narratives of crime scenes
Police narratives of suspect interrogations
Police narratives of confession statements
Police narratives of eyewitness field
identifications
Witness’s narratives of other witness’s
statements (hearsay)
Witness’s written narratives – spontaneous or
prompted
Memory Reports As Evidence
• Verbatim recordings of witness interviews
• Verbatim recordings of suspect
•
•
•
•
•
interrogations
Verbatim recordings of eyewitness field
identifications
Verbatim recordings of confessions
Written confession statements
Depositions
Courtroom testimony
Memory Reports As Evidence
• Even physical/forensic evidence is
presented as memory reports (testimony)
to triers of fact
• So, memory reports are the bulk of the
evidence in most criminal cases
Memory Reports As Evidence
• Hard data (HORVATH & MEESIG,
1996, 1999):
• Physical evidence is gathered in < 10% of
•
•
criminal cases in the U.S.
When gathered, physical evidence is
processed < 50% of the time
Investigators regard physical evidence as
having little intrinsic value and use it
chiefly as an adjunct to interviews and
interrogations
Law’s Memory
• So, we need to be especially
concerned about people who may
have vulnerable memories – e.g.,
children, the aged, people with
medical impairments
• When evidence consists of memory
reports, assumptions about how
memory works determine its
credibility to juries
• 7 working assumptions are
commonly made by juries
Memory Assumptions of Juries
Developmental Competence Principle  Children are
prone to false-memory reports
Identification Reliability  Confident eyewitness
identifications of suspects are highly reliable evidence
of guilt – except perhaps in children or the aged
Confession Reliability  Confession statements are
highly reliable evidence of guilt – in adolescents and
children, as well as in adults
Witness Admonition Reliability  Truth-telling
admonitions [oaths; truth-and-lies ceremonies in child
interviewing] ensure that false reports are lies
Memory Assumptions of Juries
Noncoercion Principle  Children are
vulnerable to suggestion and coercion, but
investigative interviews that do not have these
features do not taint later testimony; they
inoculate true memory against forgetting and do
not create false memories
Consistency Principle  True memories of
children and adults are more stable than false
ones [because true events happened] and,
hence, are less prone to inconsistent reporting
Reality Principle  True events are more likely
to be remembered than false ones
All of these
assumptions seem
pretty reasonable –
Are they true?
First, we need a
little theory
How False Memories Happen
• Opponent-processes and false
memory: fuzzy-trace theory
– Brain stores gist and verbatim
traces of experience
– Gist traces foment errors
– Verbatim traces suppress
errors
Standard Age-Decline
Pattern
• Is especially prominent in the
child law literature: Bruck,
Ceci, Goodman, Zaragoza
• It is a cornerstone of expert
testimony on the fallibility of
children’s memories
• Could we predict the opposite
pattern?
False Memories Could
Increase With Age
• 2 conditions:
- The gist memories that foment illusions
develop slowly
So, younger children simply do
not have the “positive” basis for FM
- The verbatim memories that
suppress illusions cannot be used
effectively
So, age improvements in
the “negative” process cannot
control errors
Effect #1: Age Increases In
False Memory
o
The developmental competence assumption is wrong.
Data show that there is no monolithic age decline in false
memory
o
Reason: Verbatim memory (suppresses false reports) and
gist memory (creates false reports) both increase with
age
o
Many studies have used a simple recipe for
counterintuitive age increases in false memory :
- Gist that supports false memory is difficult for young
children to extract from experience
- Its hard to use verbatim memory to suppress false
reports
P R O B A B IL IT Y
Effect #1: Data
[Brainerd, Reyna, & Forrest, 2002]
1
R E S P O N S E
0.8
0.6
0.4
0.2
0
5 YEARS
7 YEARS
11 YEARS
AGE LEVEL
FALSE RECALL
ADULT
FALSE RECOGNITION
R E C A L L P R O B A B IL I
Effect #1: More Data
[Howe, 2006]
0.4
0.3
F A L S E
0.2
0.1
0
5
6
7
8
AGE
ASSOCIATES
9
10
CATEGORIES
11
R A T E
Effect #1: Still More Data
[Brainerd & Reyna, 2007]
F A L S E -A L A R M
0.8
0.6
EXEMPLAR1
LABEL1
0.4
EXEMPLAR8
0.2
0
LABEL8
6
10
AGE
14
Effect #2: Low Reliability Of
Eyewitness Identification
o
The identification reliability assumption is
wrong. Data show that even in adults,
identifications are powerfully distorted by
many encoding and testing factors:
- Showups vs. line-ups
- Line-up fairness
- Mug shot bias
- Postevent information
- Cross-race bias
- Stress
- Weapon focus
- Age
- Memory recovery methods
Effect #2: Low Reliability Of
Eyewitness Identification
o Eyewitness identification is a prime
example of labile verbatim memory for
details
o Identification accuracy poorly related to
confidence and increases as time
passes [when memory is becoming
poorer]
o Over 90% of U.S. false convictions have
positive eyewitness identifications of
defendants (J.O.D., 1997)
P R O B A B IL IT
Effect #2: DATA: Haber & Haber’s
(2004) “Best Case” Adult Norms
1
COIN FLIP
R E S P O N S E
0.8
0.6
0.4
0.2
0
SUSPECT ABSENT
ERROR
SUSPECT PRESENT
CORRECT
Effect #2: Some Disturbing
Implications
o Haber & Haber: If you are innocent,
do not allow your face to appear in
a line-up. Case illustrations:
-
Arizona v. Gonzalez
Arizona v. Wagner
o But if you are guilty, go for it. It’s
50-50 that you won’t be picked!
Effect #2: Children Can be
More Accurate than Adults
Mitchell
Ricci
Effect #3: False
Confession
o
Criminal confessions are self-incriminating
statements that go to:
- Motive: “Well, I guess I could have been pretty ticked
off at my wife for leaving me alone with the baby
while she went to the party.” [Illinois V. DeBord]
- Opportunity: “Maybe you’re right and it was actually
midnight before I got home..” [California V. Silapie]
- Method: “I sure don’t remember it, but maybe my
hand sometimes slipped when I spotted the girls.”
[Illinois V. Cardemone]
Effect #3: Data
o
The confession reliability principle is wrong. It
is so well established that people make false
self-incriminating statements that researchers
have identified 3 different types:
-
Spontaneous [celebrity murders]
Coerced compliant – Without false memory, usually
recanted [Arizona V. Roman]
- Coerced internalized – With false memory [Illinois V.
DeBord; Washington v. Ingram]
o
Examples :
-
247 Chicago capital cases [Armstrong, Mills, & Possley,
2001]
Paul Ingram demonstration (Offshe)
Kassin & Kiechel (1997) Experiment
Jury inability to disregard tainted confessions
Effect #3: Just a Year
Ago…
Rochester, NY: Douglas Warney, who falsely
confessed to murder 10 years ago, is freed by
DNA evidence
Effect #3: Just 6 Months
Ago…
?????
Effect #3: More Data
o Vulnerability of children and
adolescents to false
confession:
- Children are highly susceptible to
persuasion
- Adolescents are highly susceptible to
altruistic confession
P R O B A B IL IT
1
F A L S E -A L A R M
Effect #3: The Worst News Of All:
False Confession Taints People’s
Memories
0
(Zaragoza’s Forced Confabulaion Effect)
0.8
0.6
0.4
0.2
EXP 1
CONTROL
EXP 2
NO FEEDBACK
FEEDBACK
Effect #4: Phantom
Recollection
o
The admonition assumption is wrong. Data
show that false reports are often supported by
illusory vivid phenomenology.
First discovered by Strong (1913).
How we discriminate true from false memories
in everyday life: Vivid phenomenology maps
with truth.
o
o
-
o
Recollection rejection (Brainerd et al., 1999);
distinctiveness heuristic (Schacter et al., 1999)
Phantom recollection foils truth-telling
admonitions & truth-and-lies ceremonies by
providing illusory vivid support for false
memories.
Effect #4: Data Patterns
O Phantom recollection increases steadily
as a function of known factors:
- False events are highly gist consistent
- The gist of experience is strong (e.g., schematized)
o When both factors are present (most
criminal cases), there can be near-equal
levels of true recollection and phantom
recollection
P R O B A B IL I
Effect #4: Payne et al.’s
(1996) DRM Data
1
R E P O N S E
0.8
0.6
0.4
0.2
0
REMEMBER
KNOW
TYPE OF ITEM
TRUE
FALSE
Effect #5: Mere-Testing
Distortion
o The noncoercion assumption of juries is
wrong. False events that fit with the
gist of experience are “remembered” at
higher and higher levels across
sequences of neutral memory tests
o Historical example: Bartlett’s repeated
telling effect (1932); The War of the
Ghosts; across tellings, reports
depended more on gist consistency than
on truth
o Many studies with children and adults
Effect #5: Data
d ' V A L U E
[BRAINERD & MOJARDIN, 1998]
1.7
1.45
1.2
0.95
0.7
0.45
0.2
TWICE
ONCE
NONE
PRIOR TESTING STATUS
5 YRS
8 YRS
11 YRS
Effect #6: False
Persistence
o The consistency assumption of juries
is wrong. Data show that falsememory reports that agree with the
gist of experience:
- Are quite stable over time
- Can be more stable than true memories
- Often show sleeper effects over time
o Many studies in children & adults,
going back 15 years
P R O B A B IL IT
Effect #6: Data
(Reyna & Kiernan, 1994)
A C C E P T A N C E
0.8
0.6
0.4
0.2
0
TRUE
FALSE1
IMMEDIATE
FALSE2
ONE WEEK
FALSE3
P R O P O R T IO N O F F A L S E R E
Effect #6: Sleeper Data
[POOLE & WHITE, 1993]
0.35
0.3
0.25
0.2
0.15
0.1
0.05
0
4
6
8
10 12 14 16 18 20 22 24 26 28
AGE IN YEARS
ONE-WEEK TEST
TWO-YEAR TEST
Effect #7: False
Superiority
o
The reality assumption of juries is wrong. Data
show that false events that fit with the gist of
experience:
- Can be “remembered” at high levels
-
o
Can be “remembered” as well or better than true events
False superiority occurs under known
conditions:
- Gist memories of experience are strong
-
-
False events fit well with that gist, better than some true
events
Many repetitions of that gist have been experienced
Considerable time as passed
Weak remembering criteria are adopted
Effect #7 : False
Superiority
o Many paradigms
consistently produce false
superiority:
- Memory for narratives (e.g., Bransford
& Franks, 1971)
- Memory for schematic situations (e.g.,
Alba & Hasher, 1981)
- Memory for thematic word sets (e.g.,
Deese, 1959)
- Memory for thematic picture sets
(e.g., Koutstaal, 1996)
Take-Home
Messages
•
Evidence in criminal proceedings is heavily
weighted towards memory reports, which are
obtained in a variety of ways
•
To fulfill their constitutional obligation to
assess the credibility of evidence, juries must
make assumptions about how memory works,
as a matter of course
•
Psychology/law research has identified
memory assumptions that are commonly used
by triers of fact, including assumptions about
vulnerable children and youth
•
Research shows some of juries’ assumptions to be
fundamentally invalid:
- Eyewitness identifications are highly reliable
- Noncoerced confessions are highly reliable
- Particular problems with children and youth
•
Research shows the validity of others to be seriously
limited
- Truth is more consistently reported than falsity
- Truth is more likely to be remembered that falsity
- Children are more susceptible to false reports than
adults
- Truth-telling admonitions suppress false memories, so
false reports under oath are lies
The Scientific Literature
Can Be Accessed Here