‘MUMMY SAID I DON'T REMEMBER ANYTHING’:
TRUE MEMORIES, FALSE MEMORIES AND CONSEQUENCES
BY BIANCA GRUBOR
LAW381: SUPERVISED LEGAL RESEARCH
SUPERVISOR: GUY HALL
WORD COUNT: 8,876
I dedicate all 8,876 words to an inspiring professor and even better friend.
I am a better me because of you.
2
CONTENTS PAGE
INTRODUCTION
4
EYEWITNESS TESTIMONY AND MEMORY RECALL
5
TYPES OF MEMORIES
7
REPRESSED MEMORIES
7
SUPPRESSED MEMORIES
9
ALTERED MEMORIES
10
FALSE MEMORIES
12
OBSTACLES TO THE TRUTH
13
INTERVIEWER TONE
15
POSITION OF AUTHORITY
16
REPEATED QUESTIONING
17
TIME AND TYPE OF INTERVIEWER
19
National Institute of Child Health and Human Development Protocol
22
EASTWOOD AND PATTON REPORT
23
INNOCENCE PROJECT
26
RONALD COTTON OR BOBBY POOLE?
27
CONCLUSION
28
REFERENCE LIST
30
3
I
INTRODUCTION
Since the 1990’s a ‘memory war’ has waged between scholars, physicians and scientists
alike over the validity and reliability of different forms of memory.1 The issue has come
into the fore of the legal arena because of its implications in the testimony of witnesses,
namely the legitimacy of child witnesses.2 Children are being called as witnesses and are
asked to recount certain events with as much accuracy as possible. There is the
underlying belief or expectation that these memories have not been tampered with.3
This paper will start by demonstrating that eyewitness testimony accounts are not
conclusive, and that memory is vulnerable to distortions; a problem that is further
aggravated in the case of children. An evaluation of the different forms of memory,
namely, repressed, suppressed, altered and false memories will demonstrate the degree of
variations in the processing of memory. This paper will then evaluate how suggestibility
and interviewer bias (through mechanisms such as: the tone of the interviewer; the
interviewer’s relative position of authority; repeated questioning; and the timing of the
interview) manipulate a child into changing, whether consciously or unconsciously, the
recall of their memory.
This paper will then consider the report titled ‘The Experiences of Child Complainants of
Sexual Abuse in the Criminal Justice System’4 (Eastwood and Patton Report) that
outlines some of the cross-jurisdictional concerns of children as witnesses.
The
Eastwood and Patton Report establishes trial processes can re-victimise children to such
as point where the trauma has a strong negative impact on their ability to recall a memory
1
Lawrence Patihis, Lavina Y Ho, Ian W Tingen, Scott O Lilienfeld and Elizabeth F Loftus, ‘Are the
“Memory Wars” Over? A Scientist – Practitioner Gap in Beliefs about Repressed Memory’ (2014)
25(2) Psychological Science 520.
2
Martine B Powell, Rebecca Wright and Carolyn H Hughes-Scholes, ‘Contrasting the perceptions of child
testimony experts, prosecutors and police officers regarding individual child abuse interviews’
(2010) 11(3) Psychiatry, Psychology and Law 35.
3
Karen Saywitz and Rebecca Nathanson, ‘Children’s testimony and their perceptions of stress in and out of
the courtroom’ (1993) 71 Child Abuse and Neglect 614.
4
C Eastwood, and W Patton, ‘The experiences of child complainants of sexual abuse in the criminal justice
system’ (2002) Report to the Criminology Research Council, Canberra.
4
with the requisite degree of accuracy. This paper will conclude with an assessment of the
United States initiative; the Innocence Project, a organisation dedicated to the
exoneration of wrongfully convicted individuals due to inaccurate eyewitness
testimonies. A brief look into the case study of Ronald Cotton will demonstrate the tragic
consequences of misidentification, and how it serves as a stern reminder that memory
recall is not as infallible as once perceived.
II
EYEWITNESS TESTIMONY AND MEMORY RECALL
For centuries, eyewitness testimony has been used as a primary means for establishing
the elements of a crime and determining the guilt of offenders. It is one of the most
persuasive forms of evidence that can be presented to the court. It is assumed that
humans can recollect most memories with a high degree of accuracy and detail and that
recounting a memory is analogous to a video recorder – it is this assumption that poses
real concerns for the courtroom.5 In light of recent developments in the study and
understanding of memory, the tenacity of eyewitness testimony has been drawn into
question. For decades, research and analysis was predominantly focused on quantity
based memory assessments6 concentrating primarily on traditional memory recognition
and input-bound measures. 7
In recent years, the studies have moved from this
quantitative approach to that of a qualitative one; namely, the various ways in which
memories can become distorted and erroneous.8
5
Tanya Rapus Benton, David F Ross, Emily Bradshaw, W Neil Thomas and Gregory Bradshaw,
‘Eyewitness Memory is still not Common Sense: Comparing Jurors, Judges and Law Enforcement
to Eyewitness Experts’ (2006) 20(1) Applied Cognitive Psychology 119.
6
W Schneider and D F Bjorklund, ‘Memory’ in W Damon, D Kuhn, and R S Siegler (eds), Handbook of
child psychology: Cognition, perception and language (Wiley, 1998) 475.
7
A Koriat and M Goldsmith, ‘Memory metaphors and the real-life/laboratory controversy: Correspondence
versus storehouse conceptions of memory (1996) 19 Behavioral and Brain Sciences 221.
8
H L Roediger III, ‘Memory illusions’ (1996) 35 Journal of Memory and Language 91.
5
Eyewitness testimony can be unreliable given its dependence on the interaction between
human senses and the brain’s processes in remembering these interactions.9 Memory is
suggestible to many different sources of distortions that can affect the integrity of the
original memory. 10 These problems are further exacerbated in the case of child
witnesses. Historically, the judicial system has been cautious when relying on children’s
evidence, attributable to the perceived inferiority of the accuracy of childrens’ memory11
and studies that revealed the high degree of suggestibility that children are vulnerable
to.12 In general, the studies show that overall, children remember less than adults.13
Some of the explanations posited for this are; children have not developed cogent storage,
encoding and retrieval faculties,14 they do not have established processes of semantic
organisation15 and their metacognitive skills and knowledge structures are under matured,
particularly at a young age.16
Since these early reports, studies have found that children’s ability for memory recall is
not as weak and suggestible as originally thought – particularly when open-ended
questions are used.17 Generally, studies have found that children will tend to remember
9
Joyce W Lacy and Craig E L Stark, ‘The Neuroscience of Memory: Implications for the Courtroom’
(2013) 14 Nature Reviews 649.
10
Ibid.
11
G S Goodman, ‘Children’s testimony in historical perspective’ (1984) 40 Journal of Social Issues 13.
12
Guy Whipple, ‘The observer as reporter: a survey of the “psychology of testimony”’ (1909) 6
Psychological Bulletin 161.
13
N Schneider and F E Weinert, ‘Universal Trends and Individual Differences in Memory Development’ in
A de Ribaupierre (eds), Transition Mechanisms in Child Development: The Longitudinal
Perspective (Cambridge University Press) 77.
14
C J Brainerd, ‘Three-state models of memory development: A review of advances in statistical
methodology’ (1985) 40 Journal of Experimental Child Psychology 387.
15
A L Brown, ‘Theories of memory and the problem of development: Activity, growth and knowledge’
(1979) Levels of Processing 240.
16
W Schneider and M Pressley, Memory development between 2 and 20 (Springer New York, 2nd ed,
1989).
17
W S Cassel, C E M Roebers and D F Bjorklund, ‘Developmental patterns of eyewitness responses to
repeated and increasingly suggestive questions’ (1998) 61 Journal of Experimental Child
Psychology 127; C Peterson, ‘Children’s memory for medical emergencies: 2 years later’ (1999) 35
Developmental Psychology 1501; B V Marin, D L Holmes, M Guth and P Kovac, ‘The potential of
6
distressing or stressful events better than mundane every day events.18 Further, memories
of events of a more personal nature are remembered with greater accuracy than if the
child did not have a personal connection to the event.19 Additionally in younger children,
the lack of preformed schemas makes them resistant to erroneous suggestions. A schema
is an encapsulated network structure of multiple sensory episodes that can be altered by
either assimilation or accommodation; essentially, where there are ‘missing pieces’ to a
memory, children may fill these with pieces that are consistent with preformed schemas
of a similar event.20 From the studies suggested above, it seems that the debate is not
centred on one of quantity, the issue lies in that of the quality and whether or not
children’s memories of events are as substantively accurate as they can be.
III
TYPES OF MEMORIES
A Repressed Memories
A repressed memory is one where an individual can recall, although it has been blocked
from their conscious mind or they have been previously unable to recall it.21
children as eyewitnesses: A comparison of children and adults on eyewitness tasks’ (1995) 3 Law
and Human Behavior 302; M R McCauley and R P Fisher, ‘Facilitating children’s eyewitness recall
with the revised cognitive interview’ (1995) 80 Journal of Applied Psychology 512.
18
Kelly McWilliams, Rachel Narr, Gail S. Goodman, Sandra Ruiz and Macaria Mendoza, ‘Children’s
memory of their mother’s murder: Accuracy, suggestibility, and resistance to suggestion’ (2013)
21(5) Memory 592.
19
M L Courage and M L Howe, ‘Autobiographical memory: Individual differences and developmental
course’ in A Gruszka, G Matthews and B Szymura (eds), Handbook of Individual Differences in
Cognition (Springer, 2010) 409; G S Goodman, L Rudy, B L Bottoms and C Aman, ‘Children’s
concerns and memory functioning: Conclusions from a longitudinal study of family violence’ in M
Howe, G S Goodman and D Cicchetti (eds), Stress, Trauma and Children’s Memory Development:
Neurobiological, Cognitive, Clinical and Legal Perspectives (Oxford, 1990) 255.
20
William C Thompson, Alison K Clarke-Stewart and Stephen J Lapore, ‘What did the Janitor do?
Suggestive interviewing and the accuracy of children’s accounts’ (1997) 21 Law and Human
Behavior 422.
21
James Ost, Dan B Wright, Simon Easton, Lorraine Hope and Christopher C French, ‘Recovered
memories, Satanic abuse, Dissociative Identity Disorder and false memories in the UK: A Survey of
Clinical Psychologists and Hypnotherapists’ (2013) 19(1) Psychology, Crime and Law 10.
7
Simply put, a repressed memory is where;
something happens that is so shocking that the mind grabs hold of the memory and pushes
it underground, into some unaccessible corner of unconscious. There it sleeps for years, or
even decades or even forever – isolated from the rest of mental life. Then one day it may
rise up and emerge into consciousness.22
A debate has occurred between clinicians and academics over the veracity of repressed
memories and what implications this debate will yield in future studies of memory. One
side argues for the validity of repressed memories and their importance particularly in
child sexual abuse cases, while the other side questions the probative value of a repressed
memory and the method of its ‘re-discovery’.23 Advocates for the former side argue that
skeptics of repressed memories misunderstand the true meaning of what constitutes a
repressed memory.24 Freud originally stated that ‘the essence of repression lies simply in
turning something away, and keeping it at a distance from the conscious’.25 Further,
Freud proposed two types of repression: the first being a fully unconscious defence,
where the mind subconsciously deletes the memory;26 while the second type concerns the
conscious and active avoidance of the memory, namely suppression.27 While there is
22
Elizabeth F Loftus, ‘The reality of repressed memories’ (1993) 48(5) American Psychologist 525.
23
Ayesha Khurshid and Kristine M Jacquin, ‘Expert Testimony Influences Juror Decisions in Criminal
Trials Involving Recovered Memories of Childhood Sexual Abuse’ (2013) 22(8) Journal of Child
Sexual Abuse 952.
24
Chris R Brewin and Bernice Andrews, ‘Why it is Scientifically Respectable to Believe in Repression: A
Response to Patihis, Ho, Tingen, Lilienfeld and Loftus (2014)’ (2014) Psychological Science 1965.
25
Martin A Conway, ‘Repression revisited’ (2001) 410 Nature 319.
26
C R Brewin and B Andrews, ‘Recovered Memories of Trauma: Phenomenology and Cognitive
Mechanisms’ (1998) 18(8) Clinical Psychology Review 963; K S Bones and P Farvolden,
‘Revisiting a century-old Freudian slip – From suggestion disavowed to the truth repressed’ (1996)
119(3) Psychological Bulletin 374.
27
M C Anderson and E Huddleston, ‘Towards a cognitive and neurobiological model of motivating
forgetting’ in R F Belli (eds), Nebraska Symposium on Motivation: Vol 58. True and false recovered
memories: Towards a reconciliation of the debate (Springer, 2012) 67; M C Anderson and C Green,
‘Suppressing unwanted memories by executive control’ (2001) 410 Nature 366.
8
little evidence to support the existence of the first type of repressed memory,28 advocates
argue that the second form of repression is not repression in the truest sense, but rather
the suppression of memory.29
B Suppressed Memories
Suppression is defined as an ‘active, deliberate conscious attempt to forget acutely
painful or unacceptable thoughts and wishes by diverting attention to other matters’.30
This is a process where an individual can consciously shut down the retrieval of a
particular memory.31 This process is voluntary and concerns conscious avoidance of the
memory and any associated stimuli.32 Anderson and Green33 conducted the renowned
‘think/no think’ study with word pairs to determine if preventing awareness to an
undesirable memory would inhibit its later retrieval. The study concluded that it is
possible to actively suppress a memory both in the short and long term.34 Further the
study also found that in the long term, the active avoidance of the memory inhibited its
later recall and increased the number of times details in the memory were forgotten.35
28
David S Holmes, ‘The Evidence for Repression: An examination of sixty years of research’ in J L Singer
(eds), Repression and Dissociation: Implications for Personality theory, Psychopathology and
Health (University of Chicago Press, 1990) 96; Loftus, above n 21, 522.
29
This principle will be discussed later in the paper.
30
Jaqueline Kanvovitz, ‘Hypnotic Memories and Civil Sexual Abuse Trials’ (1992) 45 Vanderbilt Law
Review 1190.
31
M C Anderson, R Bjork and E Bjork, ‘Remembering can cause forgetting: Retrieval dynamics in long
term memory’ (1994) 20(5) Journal of Experimental Psychology: Learning, Memory and Cognition
1074.
32
U Mayr and S W Keele, ‘Changing the internal constraints on action: the role of backward inhibition’
(2000) 129 Journal of Experimental Psychology: General 15.
33
Anderson and Green, above n 27, 368.
34
Ibid, 367.
35
Ibid.
9
While these studies are show promise in relation to memory suppression, the dependent
variable were words, not a traumatic autobiographical memory.36
Conversely, some scholars have also found that individuals who have experienced more
traumatic events in their lives had a greater degree of suppression than individuals who
did not. 37 While the studies do not paint a consistent picture as to the nature of
suppressed memories, one cannot ignore the findings above. Mechanisms do exist that
can push unwanted memories out of an individual’s conscious and this can have
permanent effects on the accessibility of these suppressed memories.38
Some advocates suggest that it is very unlikely that an individual can completely forget
or repress a traumatic experience. 39
Additionally, studies suggest that traumatic
experiences are in fact remembered clearly by victims as opposed to being repressed.40
Further, there is little scientific evidence to suggest that repeat traumatic events can be
repressed, for years and then be made recoverable through therapeutic intervention.41
C Altered Memories
Research demonstrates that individuals can unintentionally assimilate misinformation in
an original memory from the recollections of others, which is known as the
‘misinformation effect’. The misinformation effect refers to the process when misleading
information is presented to an individual in relation to a particular memory and that
36
Lawrence Patihis, Scott O. Lilenfeld, Lavina Y. Ho and Elizabeth F. Loftus, ‘Unconscious repressed
memory is scientifically questionable’ (2014) Psychological Science, 1968.
37
Anderson and Huddleston, above n 27, 82.
38
M C Anderson and B A Spellman, ‘On the status of inhibitory mechanisms in cognition: Memory
retrieval as a model case’ (1995) 102 Psychological Review 80.
39
Richard J McNally and Elke Geraerts, ‘A New Solution to the Recovered Memory Debate’ (2009) 4
Perspectives on Psychological Science 130; John F Kilstrom, ‘An Unbalanced Balancing Act:
Blocked, Recovered and False Memories in the Laboratory and Clinic [review and commentaries]
(2004) 11 Clinical Psychology: Science and Practise 38.
40
Ibid.
41
Holmes, above n 28, 85; Loftus, above n 22, 530.
10
misinformation is adopted as part of the original memory.42 The misinformation that is
presented is generally given unintentionally either through the types of questions asked,43
feedback provided post interviews, 44 and body language and the like during the
investigation process.45
Further, Fuzzy Trace Theory can be used to explain the misinformation effect.
According to Fuzzy Trace Theory;
Memories are duly recorded as verbatim representations of the exact and surface form of
details, and in parallel as gist representations containing the general sense of what
happened. Verbatim and gist traces are stored independently, and verbatim traces decay
at a faster rate than do gist traces. Younger children rely more on verbatim than gist
processing compared to older children…46
Fuzzy Trace Theory adopts a degree of the misinformation effect, namely that over time
the original memory will fade due to the decay of the verbatim representations, and be
replaced with a modified, tampered version. From a legal perspective, this can cause
severe issues with the reliability of memories as their integrity can be compromised by
their very source.
42
Elizabeth F Loftus, ‘Planting misinformation in the human mind: a 30-year investigation of the
malleability of memory’ (2005) 12(4) Learning & Memory 365.
43
Elizabeth F Loftus, Eyewitness Testimony (Harvard University Press, 2nd ed, 1996) 55.
44
Positive feedback can reinforce the strength of an individual’s eyewitness testimony; C Semmler, N
Brewer and G Wells, ‘Effects of post-identification feedback on eyewitness identification and nonidentification confidence’ (2004) 89 Journal of Applied Psychology 340. Contrariwise it can also
decrease the confidence in an individual’s testimony; C Luus and G Wells, ‘The malleability of
eyewitness confidence: co-witness and perseverance effects’ (1994) 79 Journal of Applied
Psychology 722.
45
L Garrioch and C Brimacombe, ‘Lineup administrator’s expectations: their impact on eyewitness
confidence’ (2001) 25 Law and Human Behaviour 312.
46
Kim P Roberts and Martine B Powell, ‘The roles of prior experience and the timing of misinformation
presentations on young children’s event memories’ (2007) 78(4) Child Development 1140.
11
D False Memories
A false memory is one where an individual can remember with vivid accuracy an event
that never happened.47 False memories are described as errors of commission, unlike
forgetting which is described as errors of omission.48 False memories are a result of
losing the particular source of the original memory.49 Studies have demonstrated that
children and adults will remember a plausible false event, suggesting that the cognitive
processes involved in memory are similar.50 Fuzzy trace theory assumes that individuals
store real memories, yet over time misinformation is moulded into the original memory,
and this can result in the true memory being lost.51 The main elements necessary for the
construction of a false memory are; that the event be a plausible one, that the individual
believes in the event and constructs a memory from that, and that the individual has
mistakenly attributed the constructed memory to actual memory.52
One of the main issues facing the judicial system is that, given the suggestibility of child
witnesses, there is the potential for their evidence to be tainted by either other evidence or
through juries and judges discounting part or whole of their testimony as they consider it
unreliable.53
47
Cara Laney and Elizabeth F Loftus, ‘Recent Advances in False Memory Research’ (2013) 43(2) South
African Journal of Psychology 141.
48
Marcia K Johnson, Carol L Raye, Karen J Mitchell and Elizabeth Ankudowich, ‘The cognitive
neuroscience of true and false memories’ in R F Belli (ed), Nebraska Symposium on Motivation: Vol
58. True and false recovered memories: Towards a reconciliation of the debate (Springer, 2012) 18.
49
Maggie Bruck, Stephen J Ceci and Laura Melnyk, ‘Draw it Again Sam: The Effects of Drawing on
Children’s Suggestibility and Source Monitoring Ability’ (2000) 77(3) Journal of Experimental
Psychology 187.
50
Kathy Pezdek and Danielle Hodge, ‘Planting False Childhood Memories in Children: the Role of Event
Plausibility’ (1999) 70 Child Development 891.
51
C J Brainerd, V F Reyna and E Brandse, Are children’s false memories more persistent than their true
memories?’ (1995) 6 Psychological Science above 363.
52
Deryn Strange, Mathew P Gerrie and Maryanne Garry, ‘A Few Seemingly Harmless Routes to a False
Memory’ (2005) 6 Cognitive Processes 239.
53
Elizabeth F Loftus, ‘Our Changeable Memories: Legal and Practical Implications’ (2003) 4 Nature
Reviews Neuroscience 233.
12
IV
OBSTACLES TO THE TRUTH
The issue with legal practitioners eliciting information out of children is the manner in
which that information is obtained and whether or not there have been suggestive
influences on that. 54
Scholars posit that inadequate and inefficient interviewing
techniques can increase the degree of suggestibility and contamination of memories in
children.55 Suggestibility has both a broad and narrow definition. The broad definition
concerns ‘the degree of which children’s encoding, storage, retrieval and reporting of
events can be influenced by a range of social and psychological factors’.56 The narrower
definition is ‘the extent to which individuals come to accept and subsequently incorporate
post-event information into their memory recollections.’57
Studies have also pointed to the impact that interviewer bias and confirmation bias have
on memory retrieval in children.58 Personal beliefs and expectations influence the way
individuals think, encode and remember then world around them.59 People tend to
interpret information presented to them in line with these held beliefs and expectations.60
Because of this, people actively seek information that confirms these beliefs and
expectations rather than disconfirm it.61
54
Ibid.
55
Maggie Bruck and Stephen J. Ceci, ‘The Suggestibility of Children’s Memory’ (1990) 50 Annual Review
of Psychology 420.
56
Ibid.
57
Ibid, 421.
58
Carolyn H Hughes-Scholes and Martine B Powell, ‘An examination of the types of leading questions
used by investigative interviewers of children’ (2008) 31(2) Policing (Bradford): An International
Journal of Police Strategies 212.
59
N J Rose and J W Sherman, ‘Expectancy’ in A W Kruglanski and E T Higgins (eds), Social Psychology:
Handbook of basic principles (Guilford Press, 2007) 94.
60
Bradley D McAuliff and Brian H Bornstein, ‘Beliefs and expectancies in legal decision making: an
introduction to the Special Issue’ (2012) 18(1) Psychology, Law and Crime 2.
61
C G Lord, L Ross and M R Lepper, ‘Biased assimilation and attitude polarization: the effects of prior
theories on subsequently considered evidence’ (1979) 37(11) Journal of Personality and Social
Psychology 2099.
13
Interviewer bias is characterised by interviewers holding a set of preconceived beliefs
about an event, and how (at times) interviews are moulded to reflect these beliefs.62
Similarly, confirmation bias is defined as ‘the seeking or interpreting of evidence in ways
that are partial to existing beliefs, expectations or a hypothesis in hand’.63 In relation to
eyewitness testimony, during the interview and investigation phase, the interviewer seeks
to confirm presumed particulars that the interviewee may have not disclosed.64 This bias
causes interviewers to seek confirmatory information and disregard information that they
believe to be inconsistent.65
This bias can affect the entire structure of the interview.66 Scholars point out that it is
challenging to have an unbiased interviewer as they rarely conduct interviews, for
example; on abuse, without prior background information that is indicative of the abuse.67
Even when trying to be neutral, interviewers can bias the questions asked in their
interviews.68 One of the main factors that affect confirmation and interviewer bias is the
preliminary information that the interviewer has before the interview, which can affect
the style of the interview and can result in the increase in the rate of false witness
62
Ceci and Bruck, above n 55, 425.
63
R S Nickerson, ‘Confirmation bias: A ubiquitous phenomenon in many guises’ (1998) 2 Review of
General Psychology 175.
64
Stephen J Ceci and Maggie Bruck, ‘The role of interviewer bias’ in Stephen J Ceci and Maggie Bruck,
Jeopardy in the courtroom: A scientific analysis of children’s testimony (American Psychological
Association, 1999) 91.
65
Martine B Powell, Carolyn N Hughes-Scholes and Stefanie J Sharman, ‘Skill in interviewing reduces
confirmation bias’ (2012) 9 Journal of Investigative Psychology and Offender Profiling 126.
66
Ceci and Bruck, above n 55, 430.
67
N M Aarons, M B Powell and J Browne, ‘Police perceptions of interviews involving children with
intellectual disabilities: a qualitative inquiry’ (2004) 14(3) Policing and Society 274.
68
Thompson, Clarke-Stuart and Lapore, above n 20, 408.
14
testimonies.69 Further, biased interviewers tend to ask more misleading questions with
the presumed aim of obtaining ‘withheld’ information.70
Other factors, when coupled with interviewer and confirmation bias can increase the
degree of suggestibility that a child is vulnerable to from an interviewer. These factors
include; the interviewer’s tone, the relative position of authority, utilisation of repeated
questioning and the timing and type of interview conducted.
A Interviewer Tone
The tone that an interviewer uses when interviewing a child can influence a child’s
suggestibility. Children can be influenced by the tone and urgency of an interviewer that
can lead to the child making false claims. The emotional tone moulds the linguistic
interaction between interviewer and interviewee and influences the amount of false
reports that are recorded.
In one study, Thompson, Clarke-Stewart and Lapore 71 assessed the degree of
suggestibility of young children in relation to the activities of a janitor. When a neutral
interviewer questioned the children, their recollections of the event were consistent and
correct. In interviews where the interviewer was overly supportive, the children provided
as many accurate as inaccurate statements. Finally, in interviews where the interviewer
was cold and authoritative, the rate of false statements was greater than accurate
statements. The beliefs that children held about the janitor prior to the interview were
altered and stored in their long-term memory.72
69
M B Powell, M Garry and N D Brewer, ‘Eyewitness Testimony’ in I Frekelton and H Selby (eds), Expert
Evidence (Thompson Reuters, 2009) 28.
70
Gail S Goodman, Anupama Sharma, Sherry F Thomas and Mary G Considine, ‘Mother knows best:
Effects of relationship status and interviewer bias on children’s memory’ (1995) 60 Journal of
Experimental Psychology 200.
71
Thompson, Clarke-Stuart and Lapore, above n 20, 405.
72
Ibid, 421.
15
B Position of Authority
The Social Demands/Response Biases Hypothesis predicts
… that children are seen to make a deliberate, conscious decision to report the suggested
item based on the social context and/or pragmatic cues presented to them at the time of
testing.73
This hypothesis is used as an alternate model to explain suggestibility as children will
report false evidence because of the social demands of the interview process.74 One of
these social demands relates to the perceived credible and authoritative position of the
interviewer to the child.75
Studies have found that children have a tendency to adopt statements made by adults as
credible, given their position of authority. 76 Additionally, due to the socialisation
process, it is presumed that children have a willingness to try and please adults by
providing information they believe is being asked of them.77 Young children rely on the
questions asked from the interviewer to provide a framework and guide them through
their memory recall.78
Young children are sensitive to the differences in credibility of the source of misleading
information. 79
Studies find that children are more resistant to suggestibility of
73
Robyn E Halliday, Valerie F Reyna and Brett Hayes, ‘Memory processes underlying misinformation
effects in child witnesses’ (2002) 22 Developmental Review 60.
74
Ibid.
75
Ibid, 61.
76
M S Zaragoza, ‘Preschool children’s susceptibility to memory impairment’ in J Doris (ed), The
suggestibility of children’s recollections: Implications for eyewitness testimony (American
Psychological Association, 1991) 34.
77
P Newcombe and M Siegal, ‘Where to look first for suggestibility in young children’ (1996) 59
Cognition 348; M Siegal and C Peterson, ‘Memory and suggestibility in conversations with young
children’ (1995) 47 Australian Journal of Psychology 39.
78
Sarina Butler, Julien Gross and Harlene Hayne, ‘The effects of drawing on memory performance in
young children’ (1995) 31 Developmental Psychology 464.
79
Rachel Sutherland and Harlene Hayne, ‘Age-Related Changes in the Misinformation Effect’ (2001) 79(4)
Journal of Experimental Child Psychology 389.
16
misinformation when presented post event from a young child compared to that of an
adult. 80
Academics have also concluded that the types of adults that provide
misinformation can influence the degree of suggestibility and misinformation that is
adopted into a child’s memory.81 As children get older, their understanding of social
roles tends to change and they can resist misleading suggestions that are presented by
adults.82 While the Social Demand/Response Biases Hypothesis does provide some
insight into the factors behind suggestibility, it is only tenable in some situations and is
seldom the only cause behind a child adopting misleading suggestions.
C Repeated Questioning
The literature suggests that when questioned repeatedly on a particular point, children
change their answer in an attempt to be more compatible with that of the interviewer.83
In the event of repeated questioning, the errors that are made in one interview can be
carried through to subsequent interviews. 84 In these subsequent interviews, when
children try and recall information, the information is erroneous, as the original memory
has now been altered.85 When children are asked repeatedly about false events, the assent
rate rises for each event; a child will more likely agree to a false claim in the third
interview rather than the second.86
80
Stephen J Ceci, D F Ross and M P. Toglia, ‘Suggestibility in Children’s Memory: Psycholegal
Implications’ (1987) 116 Journal of Experimental Psychology: General 43.
81
M J Lampinen and V L Smith, ‘The incredible (and sometimes incredulous) child witness: Child
eyewitnesses’ sensitivity to source credibility cues’ (1995) 80 Journal of Applied Psychology 625;
M P Toglia, D F Ross, S J Ceci and H Hembrooke, ‘The suggestibility of children’s memory; A
social, psychological and cognitive interpretation’ in M L Howe, C J Brainerd and V F Reyna (eds),
Development of long term retention (Springer-Verlag, 1992) 229.
82
Sutherland and Hayne, above n 79, 390.
83
S A Rose and M Blank, ‘The potency of context in children’s cognition: An illustration through
conversation’ (1974) 45 Child Development 503.
84
Karen Salmon and Margret-Ellen Pipe, ‘Recalling an event one year later: The effects of props, drawing
and prior interviews’ (2000) 14 Applied Cognitive Psychology 100.
85
Bruck, Ceci and Melnyk, above n 49, 193.
86
Ibid.
17
While the negative effects of repeated questioning is indisputable, some studies on
repeated questioning have revealed that they can help promote further recall and make
memories resistant to decay.87 Repeated questioning can enhance the strength of a
memory of an event as the child is made to continuously rehearse the event – stopping the
memory from fading.88 Some scholars have elaborated on this and suggest that repeated
questioning can lead to hypermnesia.89 Hypermnesia refers ‘to increased recall levels
associated with longer retention intervals’90 and ‘occurs when the recall of previously
unreported information exceeds the forgetting of previously recalled information.’91 One
of the main concerns with relying on ‘recalled’ information is the problem of whether or
not this new information is genuine or created through suggestion.
In relation to violent events, scholars suggest that witnesses can experience temporary
retrograde and anterograde amnesia, which affects their ability to provide accurate and
complete testimony directly after an event.92 What this suggests is that if in an initial
interview, a child’s memory is not complete, it does not mean that the missing pieces of
that memory have been permanently lost or decayed.93
87
Ibid, 190.
88
J A Quas, L C Malloy, A Melinder, G S Goodman, M D’Mello and J Schaaf, ‘Developmental differences
in the effects of repeated interviews and interviewer bias on young children’s event memory and
false reports’ (2007) 43 Developmental Psychology 835.
89
D La Rooy, M E Pipe and J E Murray, ‘Reminiscence and hypermnesia in children’s eyewitness
memory’ (2005) 90 Journal of Experimental Child Psychology 241; M L Howe, A Kelland, L
Bryant-Brown and S L Clark, ‘Measuring the development of children’s amnesia and hypermnesia’
in M L Howe, C J Brainerd and V F Reyna (eds), Development of long-term retention (New York:
Springer-Verlag, 1992) 77; H R Dent and G M Stephenson, ‘An experimental study of the
effectiveness of different techniques of questioning child witnesses’ (1979) 18 British Journal of
Social and Clinical Psychology 46.
90
. D G Payne, ‘Hypermnesia and reminiscence in recall: A historical and empirical review’ (1987) 10
Psychological Bulletin 15.
91
Ellen Scrivner and Martin A Safer, ‘Eyewitnesses show hypermnesia for details about a violent event’
(1988) 73(3) Journal of Applied Psychology 371.
92
S Christianson and L Nilsson, ‘Functional amnesia as induced by psychological trauma’ (1984) 12
Memory and Cognition 151; E F Loftus and T E Burns, ‘Mental shock can produce retrograde
amnesia’ (1982) 10 Memory and Cognition 320.
93
Scrivner and Safer, above n 91, 372.
18
Scholars have not reached a conclusive finding on the issue of repeated questioning.
While there is evidence in support, there is also a considerable body of evidence that
rejects these findings.
There is some discussion that the effectiveness of repeated
questioning should be assessed in conjunction with the form of questioning that
interviewers utilise.
D Time and Type of Interviewer
The timing of an interview with child witnesses is crucial for eliciting untainted, fresh
memories and also as a means of protecting these memories from the effects of
subsequent suggestibility.94 A higher degree of accurate information is elicited when
investigative interviews occur as soon after the event as possible. 95
Interviews
immediately preceding an event can restore and reinforce the strength of the original
memory and inoculate it against the threat of misinformation and suggestibility. 96
Memory trace-strength theory supports this hypothesis. A memory strength trace is
strong if ‘the original information is retained in an elaborate form in which many of the
semantic and formal features are preserved in a richly associated network
representation’97 and ‘that weaker memories are more suggestible to suggestion than
strong memories.’98 Academics suggest that the earlier an interview with a child witness
takes place, the more likely that the original memory will have a strong memory trace and
will be less suggestible to misleading information.99
94
G S Goodman, B L Bottoms, B M Schwartz-Kenney and L Rudy, ‘Children’s testimony about a stressful
event: Improving children’s reports’ (1991) 1(1) Journal of Narrative and Life History 74.
95
M B Powell and K P Roberts, ‘The effect of repeated experience on children’s suggestibility across two
question types’ (2002) 16 Applied Cognitive Psychology 368.
96
K Pezdek and C Roe, ‘The effect of memory trace strength on suggestibility’ (1995) 60 Journal of
Experimental Child Psychology 120.
97
Ibid, 117.
98
Ibid, 120.
99
V F Reyna, R Halliday and T Marche, ‘Explaining the development of false memories’ (2002) 22
Development Review 454.
19
Other studies have suggested that it is the delay between the event and the interview that
helps in memory recall as an individual has had time to consider both the original
memory and misinformation which in-turn allow the misinformation to be forgotten.100
The rationale is that the interview acts as a reminder and the original memory is reactivated during the interview.101 The only pre-condition is that the interview does not
occur so far outside the ‘time-window’ that it is forgotten.102 While there is evidence to
suggest that delay or non-delay can have an effect on the accuracy of memory retrieval,
there is no agreement among scholars that the effect of misinformation on original
memories is either mitigated or exacerbated by early or late investigative interviews.103
Studies have found that the form of questions asked of child witnesses can have
considerable effect on the answers given in interviews.104 As stated above, children rely
on the questioning technique of the interviewer to provide a framework which helps
guide them through the interview process.105 Studies suggest that children provide more
accurate reports of events when asked open-ended questions as it gives a child the
autonomy to recollect a specific set of events as they remember them to be,106 without
suspecting that there is a predetermined answer that the interviewer is looking for.107 In
100
R A Schmidt and R A Bjork, ‘New conceptualization of practise: Common principles in three paradigms
suggest new concepts for training’ (1992) 3 Psychological Science 212.
101
K P Roberts, M E Lamb and K J Sternberg, ‘Effects of the timing of post event information on
preschoolers’ memories of an event’ (1999) 13 Applied Cognitive Psychology 544.
102
C Rovee-Collier, ‘Time window in cognitive development’ (1995) 31 Developmental Psychology 155.
103
For evidence on delay leading to adoption of misinformation see, T A Marche, ‘Memory strength affects
reporting of misinformation’ (1999) 73 Journal of Experimental Child Psychology 67; and for
evidence that misinformation is adopted in interviews very soon after the event see, D S Lindsay,
‘Misleading suggestions can impair eyewitnesses’ ability to remember event details’ (1990) 16
Psychology: Learning, Memory and Cognition 1080.
104
H R Dent, ‘The effects of interviewing strategies on the results of interviews with child witnesses’ in A
Trankell (ed), Reconstructing the past (Kluwer 1982) 283.
105
Ceci and Bruck, above n 55, 430.
106
M E Lamb, Y Orbach I Hershkowitz, P W Esplin and D Horowitz, ‘Structured forensic interview
protocols improve the quality and informativeness of investigative interviews with children: A
review of research using the NICHD Investigative Interview Protocol’ (2007) 31 Child Abuse &
Neglect 1210.
107
C Peterson and M Biggs, ‘Interviewing children about trauma: Problems with “specific” questions’
(1997) 10 Journal of Traumatic Stress 283.
20
addition, open-ended questions require the child to contemplate all possible alternatives
when answering the questions,108 while specific questions only provide a child with a predetermined set of options to choose from.109 Open-ended questions allow children to
retrieve and attribute experience details to the memory, which, also assists in making
children’s memories resistant to suggestibility.110
While open-ended questions have been proven to educe better memory recall, children
lack the capacity to provide coherent, rich and detailed accounts of their memories purely
using only open-ended questioning. 111 Compared to adults, children employ fewer
memory strategies in memory retrieval and will need cues from the interviewer for their
memory systems to be activated.112 It is here that academics agree that the cues provided
from the interviewer can very easily become suggestive.113 One of the main problems
with the use of open-ended questions is that interviewers find it difficult to implement
them in the course of the interview, 114 as children can sometimes provide limited
information and the specific probing is necessary to extract the requisite information.115
Specific questioning techniques can be disruptive in an interview as the child is
108
Lamb, Orbach, Hershkowitz, Esplin and Horowitz, above n 106, 1214.
109
Ibid.
110
Deborah A Connolly and Heather L Price, ‘Children’s Suggestibility for an instance of a repeated event
versus a unique event: The effect of degree of association between variable details’ (2006) 93
Journal of Experimental Child Psychology 208.
111
G S Goodman, J A Quas, J M Batterman-Faunce, M M Riddlesberger and J Kuhn, ‘Predictors of
accurate and inaccurate memories of traumatic events experienced in childhood’ (1994) 3
Consciousness and Cognition 273.
112
D F Bjorklund, T R Coyle and J F Gaultney, ‘Developmental differences in the acquisition and
maintenance of an organisational strategy: Evidence for the utilisation deficiency hypothesis’ (1992)
54 Journal of Experimental Child Psychology 437.
113
Ibid.
114
Rebecca Wright and Martine B Powell, ‘Investigative interviewers’ perceptions of their difficulty in
adhering to open-ended questions with child witnesses’ (2006) 8(4) International Journal of Police
Science and Management 318.
115
Peterson and Biggs, above n 107, 281.
21
redirected from focusing on their own memories to focusing externally to the questions
posed by the interviewer.116
1
The National Institute of Child Health and Human Development Protocol
Some academics have theorised that the coordinated use of both open-ended and specific
questions is the preferable option when interviewing children.
The National Institute of Child Health and Human Development Protocol (NICHD
Protocol) is a program developed in the Untied States that assesses all stages of an
investigative interview and the role of all the actors in the interview.117 Interviews start
with introductions and rapport building in an attempt to establish a relationship with the
child, and also to explain the investigative interview process.118 Open-ended prompts
about the event follow in order for the child to familiarise themselves with the substantive
elements of the targeted event.119 When the interviewer is confident what the child has
sufficiently familiarised themselves with the target event, the interviewer will continue
with open-ended questions concerning parts of the memory, followed with direct
questions where necessary.120
While the NICHD Protocol has been found to promote more accurate memory recall than
other interviewing techniques, it cannot address the motivational factors behind a child’s
reluctance to disclose information about an event.121 Further, the literature is slim on
how the NICHD Protocol is tailored for those with mental and intellectual difficulties.122
116
M B Powell, R P Fisher and R Wright, ‘Investigative Interviewing’ in N Brewer and K Williams (eds),
Psychology and Law: An Empirical Perspective (Guilford Press, 2005) 25.
117
Lamb, Orbach, Hershkowitz, Esplin and Horowitz, above n 106, 1204.
118
Ibid.
119
Ibid, 1205.
120
Ibid.
121
M E Pipe, M E Lamb, Y Orbach and A Cederborg, Child Sexual Abuse: Disclosure, delay and denial
(Routledge, 2007) 52.
122
P M Sullivan and J F Knutson, ‘Maltreatment and Disabilities: A population-based epidemiological
study’ (2000) 24(10) Child Abuse and Neglect 1268.
22
Therefore, while there is promise in the research on the effective interviewing techniques
of children, there is still more work that needs to be done with relation to all the
competing variables and how they work together to elicit the most accurate information
out of child witnesses.
V
THE EASTWOOD AND PATTON REPORT
The issues discussed above are further aggravated when children move into the court
proceedings themselves. Not only is the misleading, deceptive and suggestive nature of
the trial damaging for children, it can have a devastating effect on their memories. The
Eastwood and Patton Report was produced by Dr Christine Eastwood and Professor
Wendy Patton, which assessed the criminal justice system’s response to child
complainants of sexual abuse. One of the significant issues faced by child witnesses is the
lack of protection offered by actors of the court system before, during or after the court
process.123 One defence lawyer stated;
The Crown don't care about the child. The police don't care about the child. And I don't
care about the child. You see the trial is not about the child. It simply makes the child a
witness… You've got to get around this idea that the criminal justice system is about the
child, it shouldn't be about the child, and hopefully will never be about the child.124
The Eastwood and Patton Report conducts a cross-jurisdictional analysis of Queensland
(Qld), New South Wales (NSW) and Western Australia (WA) to determine how the states
manage child witnesses and facilitate a process where the child can provide their
evidence in a safe and neutral environment. Out of the three states evaluated, it was
found that WA ranked the best, with Qld ranked the lowest. 125 One of the key
differentials that separated WA from the other states was the commitment to the
123
Sarah O’Neill and Rachel Zajac, ‘The role of repeated interviewing in children’s responses to cross
examination style questioning’ (2013) 104(1) British Journal of Psychology 24.
124
Eastwood and Patton, above n 4, 2.
125
Ibid, 11-32.
23
protection of children during the court process both in terms of legislation126 and legal
reform.127 The Attorney-General, in the Second Reading Speech of the Criminal Law
(Procedure) Amendment Bill128 was aware of the harm that the trial process have for
children and the authenticity of their memories, ‘the delays caused by preliminary
hearings also have severe repercussions as they can impact upon the ability of witnesses
to recall facts as clearly as they once might have.’129
Throughout their research, Eastwood and Patton with a host of other scholars have found
that the criminal justice system itself is responsible for causing further trauma and abuse
to child witnesses.130 The traditional criminal justice system was developed for adult use
and leaves children painfully vulnerable to its effects. The Eastwood and Patton Report
evaluated, from the child’s perspective, the various stages of the trial process from
committal hearings all the way to the final verdict and sentence.131 One of the most
detrimental effects of the court process is through cross-examination. Lawyers use crossexamination as a means of discrediting the witness through misleading, suggestive and
deceptive means.132 This is particularly more problematic in the case of children taking
the stand. The following extract of a court transcript demonstrates the degree of forced
suggestibility in children:
Mr X: Did he ever threaten you?
Child: I don't think so.
126
Evidence Act 1906 (WA) s 106.
127
Law Reform Commission of Western Australia, Evidence of Children and Other Vulnerable Witnesses,
Project No 87 (1991).
128
Criminal Law (Procedure) Amendment Bill 2002 (WA).
129
Western Australia, Parliamentary Debates, Legislative Assembly, 27 March 2002, 9026-9030 (James
Andrew McGinty, Attorney-General).
130
E Henderson, ‘Persuading and controlling: The theory of cross examination in relation to children’ in H
Westcott, G Davies and R Bull (eds), Children’s Testimony: A handbook of psychological research
and forensic practise (John Wiley & Sons, 2002) 285; C Smart, Feminism and the power of the law
(Routledge, 1989) 24.
131
Eastwood and Patton, above n 4, 49-62.
132
Henderson, above n 130, 200.
24
Mr X: What do you mean you don't think so?
Child: I can’t remember.
Mr X: So the answer is that he never threated you. Is that right?
Child: Yes.133
Comments made by children in the Eastwood and Patton Report about being crossexamined, highlight the judicially sanctioned contamination of children’s memories by
lawyers and actors of the court. Children from Qld stated how the defence council would
badger and ask compound questions in the hope of confusing them; ‘he asked lots of
difficult questions and tried to mess me up.’134 A child from NSW expressed how, ‘He
[defence council] was trying to get me to say all this stuff [that] wasn't true.’135 Another
child documented how the stress of the trial forced them to answer questions as quickly
as possible just so they could leave.136 In WA, even with the facilities available, one
child reported:
I think he [defence council] was trying to confuse me – and that’s awful because in my
mind I’m just trying to have my story out there and just to get it out. And then I’ve got
some guy twisting my words and saying no, no, no.137
Aside from the suggestibility that a child may be subject to during the investigative
interview stage prior to the trial, the above extract and comments is a clear and example
of the sanctioned contamination of a child’s memory at a highly stressful and critical
time. While the Eastwood and Patton Report did not focus on the suggestibility of child
witnesses exclusively, it does indicate that the issue of suggestibility is never far from
any evaluation of children and their participation in the judicial system.
133
Eastwood and Patton, above n 4,
134
Eastwood and Patton, above n 4, 59
135
Eastwood and Patton, above n 4, 60
136
Ibid
137
Eastwood and Patton, above n 4, 4.
25
VI
THE INNOCENCE PROJECT
While this paper has evaluated the problems with child witnesses and their evidence, this
section will go one step further and demonstrate the devastating effect of not having
adequate interviewing techniques in place during the investigation period and how that
can result in innocent people being sent to prison for crimes they did not commit.
The Innocence Project is a not-for-profit legal organisation in the United States,
dedicated to the exoneration of wrongfully convicted individuals.138 The use of DNA
testing has given those who are wrongfully accused a second chance for release and those
who are truly guilty to be bought to justice. The Innocence Project also works with law
enforcement, law and journalism schools, and lobbies for criminal law reform to prevent
further injustices in the future.139
One of the main features of the Innocence Project is the research and training that is
offered for law enforcement officials about the suggestibility of human memory, and
techniques that can be utilised to ensure the most accurate recall. Studies conducted have
found that close to 75% of wrongful convictions are due to eyewitness misidentification –
contributable to ineffective interviewing techniques, problematic line-ups and other
identification procedures.140 Some of the techniques identified to assist in more accurate
recall are the utilisation of double blind administration, proper line-up composition,
recording the procedure, adequate instructions for the witness, control of confidence
statements and sequential representation.141 While these techniques are being used now
in the facilitation of witness investigation, one case in particular bought to the fore the
impact of inadequate interviewing techniques and insufficient investigative procedures.
138
Benjamin N Cardozo School of Law, Yeshiva University,
<http://www.innocenceproject.org>
the Faces of Exoneration,
139
Ibid.
140
Ibid
141
Benjamin N Cardozo School of Law, Yeshiva University, Understand the Causes Eyewitness
Misidentification, <http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php>
26
This particular case tells the story of Ronald Cotton, a man wrongfully convicted of a
crime he did not commit.
A Ronald Cotton or Bobby Poole?
In 1984, an assailant entered Jennifer Thompson’s home where he robbed and raped
her.142 During the assault, Ms Thompson made every effort to familiarise herself with
her assailant; how tall he was, if he had any tattoos and whether or not he had any
unusual jewellery.143 Later on that same night, another woman was also assaulted in the
same manner as Ms Thompson. Authorities were provided with leads from different
people of the public, claiming to know whom the offender was, namely one, Ronald
Cotton (Cotton).144 Cotton heard of some of the claims being made against him and went
to the police station in an attempt to make sense of the allegations.145 The police then
arranged a photo array for Ms Thompson, with a photo of Cotton included, in which she
positively identified Cotton as her assailant.146 The authorities organised for a line-up, in
which Ms Thompson positively identified Cotton once again.147 Cotton was charged and
in 1985 was convicted of one count of burglary and one count of rape and was sentenced
to life imprisonment.148
While in prison, Cotton had heard another inmate, Bobby Poole, bragging how it was he
who had raped Jennifer Thompson and the other victim.149 Cotton was subsequently
142
State v Cotton, 351 S.E.2.d 277, 280 (N.C., 1987).
143
Steve J Joffee, ‘Long overdue: Utah’s incomplete approach to eyewitness identification and suggestions
for reform’ (2010) Utah Law Review 443.
144
Richard A Wise, Clifford S Fishman and Martin A Safer, ‘How to analyse the accuracy of eyewitness
testimony in a criminal case’ (2009) 42(2) Connecticut Law Review 439.
145
Ibid, 440.
146
Noah Clements, ‘Flipping a coin: A solution for the inherent unreliability of eyewitness identification
testimony’ (2007) 40 Indiana Law Review 276.
147
Gary L Wells, ‘Eyewitness Identification: Systemic Reforms’ (2006) Wisconsin Law Review 622.
148
Wise, Fishman and Safer, above n 1144, 438.
149
Ibid.
27
granted a re-trial given the second victim had failed to identify Cotton in a line-up.150
During the trial, the second victim decided that Cotton was in fact the man who had raped
her, even though she had never identified him in a line-up.151 Ms Thompson and the
second victim both confirmed hat Cotton was the man who had raped them.152 Further,
the court excluded evidence that Bobby Poole had confessed to the crimes.153 Cotton was
found guilty of both offences and was sentenced by the Alamance County Superior Court
to prison for life plus fifty-four years.154 It was not until 1995, that through the use of
DNA analysis, Cotton was exonerated from prison and all charges against him were
dropped.155
While this story does have a happy ending with an innocent man being released, and the
true offender being bought to justice, the fact cannot be dismissed that the same innocent
man was made to spend more then a decade in prison for a crime he did not commit.
What this story demonstrates is the tragic consequences of the inadequate handling of
eyewitness testimony. Even though Ms Thompson was sure that the person she identified
was her assailant, Cotton and Bobby Poole were still two different men. This story
shows the fallibility of human memory and highlights how more effective measures need
to be implemented in order to stop this from happening again.
VII
CONCLUSION
In conclusion, this paper has looked at some of the issues that impact the accurate recall
of memories in child witnesses. Studies, as exhibited above, demonstrate that memories
are incredibly malleable and subject to many forms of distortions. Types of memories
150
State v Cotton, 351 S.E.2.d 277, 280 (N.C., 1987).
151
Wise, Fishman and Safer, above n 144, 439.
152
Steven E Clark, ‘Costs and benefits of eyewitness identification reform psychological science and public
policy’ (2012) 7(3) Perspectives on Psychological Science 247.
153
Wise, Fishman and Safer, above n 144, 439.
154
State v Cotton, 351 S.E.2.d 277, 280 (N.C., 1987).
155
Neil Vidmar, James E Coleman Jnr and Theresa A Newman, ‘Rethinking reliance on eyewitness
testimony’ (2010) 94(1) Judicature 16.
28
such as repressed, suppressed, altered and false memories, while still the subject of some
academic debate, warrant concern. Their existence impacts the veracity of children’s
evidence and the probative value of that evidence in the eyes of judges and juries. A
child’s level of suggestibility and the damaging effects of confirmation and interviewer
bias is a devastating combination that has the potential to exacerbate damage to the
integrity of a child’s memory.
The NICHD protocol provides guidelines for law
enforcement officials and clinicians alike for more effective interviewing techniques with
relation to children, in order to elicit the most information-rich and uncontaminated
memories. While this is a positive step in the right direction, further studies need to be
conducted in order to develop a conclusive and effective interviewing strategy for
children.
This paper also evaluated the Eastwood and Patton Report for its insight into the
inadequate and often ineffective treatment of children as witnesses in sexual abuse cases.
The findings suggest the treatment of children as witnesses is not only inappropriate but
can have negative implications on a child’s ability to categorically recount their
testimony. Finally this paper assessed what would happen if the worst came to fruition –
namely that somebody’s eyewitness testimony would result in an innocent person being
sent to prison. While the evaluation of the Innocence Project did not exclusively focus on
child witnesses, it demonstrates the issues with eyewitness testimony and its reliability
irrespective of age. The issues and concerns about child witnesses will not go away as
children are getting more involved in legal processes than ever before. There is no
denying the positive steps that scholars and clinicians have taken in an attempt to
understand the complexity of children’s memory. More work needs to be undertaken to
ensure that the memories of children are not subsequently tampered with through
voluntary or involuntary adult influence and are as reliable as they can be when in a
court.
29
VIII
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B Edited Chapters
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Johnson, Marcia K, Carol L Raye, Karen J Mitchell and Elizabeth Ankudowich, ‘ The
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C Books
Loftus, Elizabeth F, Eyewitness Testimony (Harvard University Press, 2nd ed, 1996)
Pipe, M E, M E Lamb, Y Orbach and A Cederborg, Child Sexual Abuse: Disclosure,
delay and denial (Routledge, 2007)
Smart, C, Feminism and the power of the law (London: Routledge, 1989)
D Cases
State v Cotton, 351 S.E.2.d 277, 280 (N.C., 1987)
E Legislation
Criminal Law (Procedure) Amendment Bill 2002 (WA)
Evidence Act 1906 (WA)
F Other
Benjamin N Cardozo School of Law, Yeshiva University, the Faces of Exoneration,
<http://www.innocenceproject.org>
Eastwood C, and W Patton, ‘The experiences of child complainants of sexual abuse in the
criminal justice system’ (2002) Report to the Criminology Research Council, Canberra.
Western Australia, Parliamentary Debates, Legislative Assembly, 27 March 2002, 90269030 (James Andrew McGinty, Attorney-General)
Law Reform Commission of Western Australia, Evidence of Children and Other
Vulnerable Witnesses, Project No 87 (1991)
41